P. v. Rosa

Filed 8/14/09 P. v. Rosa CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

----

Defendant David Joseph Rosa pled guilty to infliction of corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a)) and dissuading a witness by force or threat (Pen. Code,  136.1, subd. (c)(1)). In exchange, five related counts and an enhancing allegation were dismissed. Imposition of sentence was suspended and defendant was placed on probation for 60 months on conditions including 365 days of incarceration with credit for 157 days. As a general term and condition of probation he was ordered: Do not leave the State of California.

On appeal, defendant contends the imposition of a probation condition that absolutely bans interstate travel has no rational connection to his crime or future criminality and violates his constitutional rights to due process and to travel. We shall modify the probation condition.

FACTS[1]

In March 2008 defendant was in a dating relationship and cohabiting with C.S. While in their residence, defendant and C.S. began to argue and their argument escalated. Defendant struck C.S. in the face, grabbed her by the hair, pulled her up from the floor to the couch, and continued to hit her about the face. When C.S. stated that she would call 911, defendant went outside and pulled the wiring for their telephone from the terminal box.

DISCUSSION

A trial court has broad discretion to set terms of probation. However, the discretion can be abused. A term of probation is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation.] (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) Furthermore, a term of probation may also impermissibly infringe on the exercise of the probationers constitutional rights. (In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.).)

Defendant contends the probation condition absolutely prohibiting him from leaving the State of California (1) has no rational connection to his crime or future criminality, and (2) is facially overbroad in that it restricts his federal and state constitutional rights to travel while making no exception for work- or family-related travel, and/or for travel approved in advance by the probation officer.

Connection to Crime and Future Criminality

As a threshold matter, we consider the Attorney Generals contention that defendants failure to raise the lack-of-rational-connection issue at sentencing forfeits the claim on appeal because it does not present a purely legal question. We agree.

In People v. Welch (1993) 5 Cal.4th 228, the Supreme Court, rejecting what had been a majority rule to the contrary, approved this courts holding that failure to timely challenge a probation condition on Lent grounds forfeits the claim on appeal. The court noted the well-settled rule that failure to object to error or omissions in the probation report waives the claim on appeal and concluded no different rule should apply to probation conditions. (Welch, at pp. 234-235.) Traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court. (Id. at p. 236.) The rule was reaffirmed in Sheena K., supra, 40 Cal.4th 875, where the Supreme Court declared an adult probationer who elects to receive probation in lieu of incarceration fairly may be charged with the need to timely challenge any conditions imposed and . . . application of the forfeiture doctrine would deter the promulgation of invalid conditions in the trial court and decrease the number of appeals contesting such conditions. (Id. at p. 882.) The court indicated the forfeiture rule would even apply to constitutional challenges of probation conditions if the constitutional question cannot be resolved without reference to the particular sentencing record developed in the trial court. (Id. at p. 889.)

Whether there is a rational connection between the travel restriction and the present offenses cannot be determined without reference to the particular sentencing record developed in the trial court. (Sheena K., supra, 40 Cal.4th at p. 889.) The fact that the probation condition was labeled general does not foreclose the possibility that a connection with this case could have been shown had the issue been raised. Defendants failure to raise the issue in the trial court forfeits the contention on appeal. (Ibid.)

A defendant challenging a probation condition on Lent grounds must establish all three Lent criteria. (People v. Lopez (1998) 66 Cal.App.4th 615, 624 & fn. 4.) Thus, it is not necessary to consider whether the travel restriction is rationally connected to future criminality. Forfeiture with respect to one criterion (relationship to present offenses) necessarily forfeits the entire Lent claim.

Defendant counters that he did not have a meaningful opportunity to object to the travel restriction in the trial court. The record does not support his argument.

The probation report did not recommend a condition absolutely barring interstate travel. At sentencing, the trial court stated that it would paraphrase the Order of Probation. The court told defendant that he would have a chance to go over it with [his trial counsel], and told him to sign it before you leave here today. The court then summarized several probation conditions but did not mention the prohibition on interstate travel. The court asked defendant whether he understood the terms as the court had paraphrased them; defendant said he understood them and agreed to them. The court then took a recess of unknown duration. Following the recess, the court heard a request for, and issued, a posttrial protective order. Nothing in this record suggests defendant lacked sufficient time to review the written probation order with his trial counsel as directed and to raise any necessary objections before the proceedings concluded.

Overbreadth

Defendant contends, and the Attorney General concedes, the facial overbreadth claim is a purely legal constitutional challenge that is not forfeited for failure to assert it in the trial court. (Sheena K., supra, 40 Cal.4th at p. 889.) We accept the Attorney Generals concession.

[The United States Supreme Court] long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. (Shapiro v. Thompson (1969) 394 U.S. 618, 629 [22 L.Ed.2d 600], disapproved on other grounds in Edelman v. Jordan (1974) 415 U.S. 651, 671 [39 L.Ed.2d 662].) Thus, interstate travel is a necessary element of a federal union. (In re White (1979) 97 Cal.App.3d 141, 148, fn. omitted.)

Probation conditions restricting a probationers exercise of his constitutional rights are upheld only if narrowly drawn to serve the important interests of public safety and rehabilitation, and if they are specifically tailored to the individual probationer. (People v. Smith (2007) 152 Cal.App.4th 1245, 1250 (Smith), quoting In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.)

The Attorney General acknowledges that the foregoing is a correct statement of the law. As we have seen, the interstate travel prohibition was not specifically tailored to defendant, the individual probationer (Smith, supra, 152 Cal.App.4th at p. 1250); rather, the prohibition was one of the General Terms and Conditions evidently applicable to most or all probationers in Amador County.

The Attorney General nevertheless contends the interstate travel prohibition is reasonable because [s]uccessful supervision of a probationer requires that a probation officer monitor a probationers travel habits within the state and be aware of the probationers physical whereabouts at all times. We disagree. Defendant was not placed on electronic monitoring or any other regimen that would allow the probation officer to be aware of the probationers physical whereabouts at all times. Nor does the probation order require or allow the probation officer to gather that information.

The Attorney General contends that should this court find the interstate travel prohibition overly broad, it may modify the condition to require that defendants probation officer approve any interstate travel. (In re Daniel R. (2006) 144 Cal.App.4th 1, 8-9 [probation condition imposing absolute ban on minors travel to Mexico overbroad; condition modified to allow travel accompanied by and under control of parents and with prior permission of probation officer]; cf. In re Antonio R. (2000) 78 Cal.App.4th 937, 939-942 [rejecting overbreadth challenge to probation condition that minor not travel to Los Angeles County without a parent or the permission of the probation officer].) We conclude such a modification is appropriate.

Defendant counters that the travel ban should be stricken outright because [t]he record does not contain any facts specific to [him], which would justify physical monitoring of his whereabouts on a daily basis. However, that state of the record exists because defendant failed to object to the travel ban in the trial court. Striking the condition outright, or remanding to the trial court for development of a factual record to justify a travel ban, would stand the forfeiture rule on its head.

DISPOSITION

General probation condition number 5 is modified to read: Do not leave the State of California without the advance approval of your probation officer. As so modified, the judgment is affirmed.

RAYE , J.

We concur:

SIMS , Acting P. J.

CANTIL-SAKAUYE , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Because the matter was resolved by plea, our statement of facts is taken from the prosecutors statement of factual basis.