Filed 8/30/18 P. v. Hawk CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted by a jury of unlawful possession of a firearm. He challenges three conditions imposed by the trial court in its order of formal probation. The first challenged condition forbids defendant from traveling outside of Humboldt County without authorization from his probation officer; the next two conditions require him to notify his probation officer prior to any changes in residence and employment. We find defendant’s challenges to these conditions lack merit, and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 3, 2017, M.W. was working at a Chevron station in Eureka when she noticed defendant walking back and forth in front of the windows. Defendant entered the Chevron store. He had no shoes on. As defendant began walking toward the registers, he stated he needed help and for someone to call 9-1-1. He then walked behind the registers where M.W. was located. At some point, the manager walked out from the back room, dialed 9-1-1 on her cell phone, and handed the phone to defendant. While speaking with the dispatcher, defendant stated some “gunmen” were following him.

During the incident, M.W. saw a gun in defendant’s right pocket, and she motioned with her hands to let the manager know defendant had a gun. M.W. left the register area, went to the backroom, entered the cooler, and called 9-1-1. In the meantime, defendant removed the firearm from his pocket, and the manager had him set it on the counter next to one of the registers.

When Sergeant Sopoaga of the Eureka Police Department arrived at the Chevron station in response to a dispatch, he remained outside initially, and signaled defendant to come outside. Defendant complied, leaving the store. After placing defendant in his patrol car, Sopoaga entered the Chevron store. He located a semiautomatic, nine-millimeter Beretta on the counter. He then placed defendant under arrest.

An information was filed charging defendant with unlawful possession of a firearm. (Pen. Code, § 29805.) A jury found defendant guilty as charged. The court suspended imposition of sentence and granted defendant formal probation with various terms and conditions. Defendant did not object to the probation conditions.

Defendant filed a timely appeal.

II. DISCUSSION

Defendant challenges three probation conditions: he shall not leave his county of residence without permission of his probation officer; he shall notify his probation officer before any change of residence; and he shall notify his probation officer prior to any change in employment.

Initially, we reject the People’s claim defendant forfeited his challenge to the probation conditions by failing to object to them in the trial court. Although the failure to make a timely objection to a probation condition ordinarily forfeits the claim of error on appeal, where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a question of law which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 890 [forfeiture rule does not apply to defendant’s contention that as a matter of law a probation condition, on its face, is unconstitutionally vague and overbroad].) Accordingly, we address defendant’s claims on their merits.

A. Legal Principles

“When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are ‘fitting and proper to the end that justice may be done, that amends may be made to society for the breach of law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.’ ” (People v. Moran (2016) 1 Cal.5th 398, 402–403 (Moran), quoting Pen. Code, § 1203.1, subd. (j).) Thus, “a sentencing court has ‘broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1,’ ” and an appellate court generally reviews probation conditions for abuse of discretion. (Moran, at p. 403, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) However, we review constitutional overbreadth challenges to probation conditions de novo. (In re J.B. (2015) 242 Cal.App.4th 749, 754.)

Though the trial court’s discretion is broad, it is not unlimited. “[A] condition of probation must serve a purpose specified in the statute.” (Carbajal, supra, 10 Cal.4th at p. 1121.) As relevant here, an otherwise valid probation condition that fosters rehabilitation and protects public safety “may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 624, quoting People v. Peck (1996) 52 Cal.App.4th 351, 362.) However, “[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.)

B. Probation Condition Prohibiting Defendant from Leaving the County Without Permission of His Probation Officer

Defendant maintains the condition requiring him to seek permission from his probation officer before leaving the county is unconstitutionally overbroad because it impinges on his constitutional rights to freedom of movement and is not carefully tailored to the state’s interests.

We disagree with the suggestion that a probation condition requiring a probationer to seek and obtain the approval of his or her probation officer before leaving the county is not sufficiently tailored and reasonably related to the compelling state interest of facilitating supervision and rehabilitation of the probationer. In fact, “[i]mposing a limitation on probationers’ movements as a condition of probation is common, as probation officers’ awareness of probationers’ whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release.” (Moran, supra, 1 Cal.5th at p. 406.) “Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible.” (Ibid.)

Moreover, despite being frequently subjected to as-applied challenges regarding the proper scope, the imposition of travel restrictions subject to permission being granted by probation is regularly upheld. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1195–1196 [upholding against constitutional overbreadth challenge a probation condition requiring defendant to obtain written permission from probation officer prior to leaving state].) Thus, the imposition of a travel restriction is not a facial violation of a probationer’s right to travel.

Here, the burdens on defendant are comparatively minor. He is not subject to an outright travel ban; he is only prohibited from leaving the County of Humboldt without prior permission. Defendant has also not pointed to any specific or regular need to travel outside of the county, or identified any anticipated difficulties with obtaining permission for the occasional trip. Likewise, defendant acknowledges he may not have a stable residence.

Nor does defendant argue the travel restriction could be modified in such a way as to reduce any infringement on his right to travel, while still serving the intended rehabilitative function, and nor does he propose any specific modification. (In re White (1979) 97 Cal.App.3d 141, 151.) There is thus ample evidence to support the conclusion the travel restriction is directed toward defendant’s rehabilitation.

Defendant’s reliance on People v. Soto (2016) 245 Cal.App.4th 1219 is misplaced. In Soto, the court found a probation condition requiring the defendant to obtain permission from his probation officer or an order from the court prior to change of his residence from Monterey County was invalid under People v. Lent (1975) 15 Cal.3d 481, because the record did not support the trial court’s conclusion the condition was reasonably related to defendant’s crimes, driving under the influence and driving with a suspended license. (Soto, at p. 1228.) Importantly, the Soto court never reached the issue raised here by defendant that the challenged condition is overbroad. Nor does defendant claim pursuant to Lent that the condition is not reasonably related to defendant’s crime or future criminality. (Lent, at p. 486.)

In sum, under the circumstances of this case, the trial court could reasonably conclude any burden imposed by the permission requirement constituted a minor burden on defendant’s constitutional rights which was reasonably necessary to carry out the rehabilitative purposes of probation.

C. Probation Conditions Requiring Defendant to Notify Probation Before Changing Residence or Employment

Defendant asserts the conditions compelling him to notify his probation officer in advance of any change of his residence or employment “should be modified to require notification in advance only when [defendant] is aware of those impending changes, and within a reasonable time afterwards if he does not know in advance.” We disagree with defendant. These conditions require no modification.

The residence and employment notification conditions imposed by the trial court are analogous to the condition imposed in People v. Arevalo (2018) 19 Cal.App.5th 652, 657–658. There, the court found the condition requiring the defendant to maintain a residence approved by her probation officer was constitutionally valid. (Id. at p. 656.) In discussing the condition, the court explained, “Although conditions requiring prior approval of a probationer’s residence may affect the constitutional rights to travel and freedom of association [citation], courts have the authority to do so if there is an indication the probationer’s living situation contributed to the crime or would contribute to future criminality [citation]. A trial court may impose probation conditions that place limits on constitutional rights if they are reasonably necessary to meet the twin goals of rehabilitation of the defendant and protections of the public.” (Id. at p. 657.)

In the instant matter, defendant has pointed to nothing in the record to suggest approval of these conditions was “designed to banish [defendant] from a particular neighborhood or stop [him] from living where [he] desires” (People v. Arevalo, supra, 19 Cal.App.5th at p. 657) or interfere with potential employment opportunities. Even assuming defendant were to be terminated from his employment or evicted from his home without notice in advance, it would not necessarily result in a probation violation because defendant could argue he lacked the willful intent to violate the probation condition. (See People v. Hall (2017) 2 Cal.5th 494, 498 [revocation of probation requires proof the probationer willfully violated a condition].)

III. DISPOSITION

The judgment is affirmed.

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Margulies, J.

We concur:

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Humes, P.J.

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Dondero, J.

A151798

People v. Hawk