P. v. Perdomo





















Filed 1/16/13 P. v. Perdomo CA4/3











NOT TO BE PUBLISHED IN OFFICIAL REPORTS







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ANGEL PERDOMO and JOSE DOMINGUES, Defendants and Appellants.

G046019 (Super. Ct. No. 09NF3522) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Frank F. Fasel, Judge.
Affirmed as modified.

Gerald
J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant Perdomo.

Julie
Sullwold, under appointment by the Court of Appeal, for Defendant and Appellant
Domingues.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia Garcia and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Angel Perdomo and Jose Domingues of three counts of
assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1); all statutory citations are to the Penal Code
unless otherwise noted). Defendants
contend the trial court erred in imposing the following term and condition of
probation: “Maintain a residence subject
to the approval of the probation officer.”
For the reasons expressed below, we modify the probation order to delete
the condition.

I

Factual and Procedural History

On the evening of October 31, 2009, Perdomo and his cousin Domingues started a fight at an Anaheim residence
after refusing to pay a cover charge to enter a Halloween party. Domingues swung an aluminum baseball bat at
Jose Garcia, and Perdomo threw a brick, hitting Garcia in the chest. Perdomo then hit Garcia in the face with a
bottle. Garcia required surgery and 100
stitches to close the wound he suffered in the assault.

In August 2011, a jury
convicted Perdomo and Domingues of three counts of assault with a deadly weapon
against Garcia. In October 2011, the
trial court suspended imposition of sentence and placed Perdomo and Domingues
on probation for three years on various terms and conditions, including jail
terms.

II

Discussion

The Court Erred by Requiring Probation Officer
Approval of Defendant’s Residences as a Condition of Probation

Perdomo and Domingues contend the trial court erred by imposing the
following term and condition of probation:
“[Defendants] to maintain a suitable residence . . . as approved by the
probation officer.” We agree.

Section 1203.1,
subdivision (a), authorizes the court to place a defendant on probation “upon
those terms and conditions as it shall determine.” The discretion to determine proper terms and
conditions has limits. (>People v. Garcia (1993)
19 Cal.App.4th 97, 101.) “[A]
condition of probation which requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably related to the crime of which
the defendant was convicted or to future criminality.” (People
v. Lent (1975) 15 Cal.3d 481, 486.)
“[E]ven if a condition of probation has no relationship to the crime of
which a defendant was convicted and involves conduct that is not itself
criminal, the condition is valid as long as the condition is reasonably related
to preventing future criminality.
[Citation.]” (>People v. Olguin (2008) 45 Cal.4th 375,
380.)

Defendants did not
object to the probation condition at the sentencing hearing. The forfeiture rule bars a claim a probation
condition is unreasonable when the defendant fails to object on that ground in
the trial court. (People v. Welch (1993)
5 Cal.4th 228, 234-238; see also In
re Sheena K. (2007) 40 Cal.4th 875, 882 [“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 that 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”].) But a defendant may raise
on appeal, without having objected in the trial court, an appellate claim
amounting to a “facial challenge” based on a constitutional defect that does
not require scrutiny of individual facts and circumstances.name="SDU_886">

Perdomo and Domingues
contend the probation condition to obtain the probation officer’s approval of
their residence is constitutionally infirm because the language is overbroad. A probation condition that imposes
limitations “on a person’s constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.” (In re
Sheena K., supra, 40 Cal.4th
at p. 890.) A “court may leave to the
discretion of the probation officer the specification of the many details that
invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely
open-ended.” (People v. O’Neil (2008)
165 Cal.App.4th 1351, 1358-1359 [probation condition forbidding defendant from
associating with all persons designated by his probation officer was “overbroad
and permit[ted] an unconstitutional infringement on defendant’s right of
association”].)

In >People v. Bauer (1989) 211 Cal.App.3d
937, the defendant was convicted of false imprisonment and assault. As a probation condition, the trial court
required the defendant to “obtain his probation officer’s approval of his
residence . . . .” (Ibid.) The court in Bauer concluded the
condition was unconstitutionally overbroad because it unnecessarily limited the
defendant’s associational rights. (Ibid.;
see also People v. Burden (1988) 205 Cal.App.3d 1277, 1280 [restriction
on the defendant’s constitutional right to employment was overbroad].)

The requirement that
Perdomo and Domingues obtain probation officer approval of their residences is
overbroad. There is nothing in the
record to show the nature of the defendants’ residences contributed to their
crimes or related to future criminality.
It impedes defendants’ rights to travel and freely associate, and gives
too much discretionary control to the probation officer, failing to provide a
standard to which the probation officer must adhere. Under the imposed probation condition, the
probation officer has the discretion to prohibit a defendant from living with
any person, including an elderly parent or future spouse who has no association
with the offense committed and no criminal record. The condition is not narrowly tailored to the
government’s interests of rehabilitation and protection of the public.

Finally, we note the
unchallenged conditions of the probation order require defendants to notify the
probation officer within 48 hours of any change of address. They also must submit themselves, their
residences, and their property to search and seizure at any time without
warrant or reasonable cause. The order
also bars them from contact with the victim, and prevents them from associating
with persons they know are parolees, convicted felons, users or sellers of
illegal drugs, or “otherwise disapproved of by probation.” These conditions adequately address the
state’s interest in rehabilitation and protection of the public without unduly
burdening defendants’ constitutional right to freedom of association. For these reasons, we will modify the
probation order to delete the conditions requiring Perdomo and Domingues to
obtain approval of their residences from their probation officer.

III

Disposition



The
probation order is modified (§ 1260) to delete the condition that Perdomo
and Domingues “Maintain a residence subject to the approval of the probation
officer.” In all other respects, the
judgment is affirmed.







ARONSON,
J.





WE CONCUR:







MOORE, ACTING P. J.







IKOLA, J.