Filed 2/26/15 P. v. James 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                             C076303

                   Plaintiff and Respondent,                                (Super. Ct. No. 13F04451)

         v.

TYRELL VONTE JAMES,

                   Defendant and Appellant.




         Defendant Tyrell Vonte James pleaded no contest to carrying a concealed firearm
in a vehicle (Pen. Code, § 25400, subd. (a)(3)—count one),1 carrying a loaded firearm in
public (§ 25850, subd. (a)—count two), and willful resistance, delay, or obstruction of a
peace officer (§ 148, subd. (a)(1)—count three). As to count one, he admitted the firearm
was loaded and that he was not its registered owner. (§ 25400, subd. (c)(6).) As to count
two, he admitted he was not the registered owner of the firearm. (§ 25850, subd. (c)(6).)




1 Undesignated statutory references are to the Penal Code.



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       The trial court suspended imposition of sentence and ordered defendant to serve
five years of formal probation, including as a condition of probation that defendant serve
305 days in county jail for count one and a consecutive 60 days in county jail for count
two. The court also awarded defendant 32 days of credit for time served, and ordered
him not to enter any Walmart store in Sacramento County for the duration of his
probation.

       On appeal, defendant contends the trial court (1) erred in failing to award
presentence conduct credits pursuant to section 4019, and (2) imposed an
unconstitutionally overbroad probation condition by prohibiting defendant from entering
any Walmart store in Sacramento County. We conclude defendant is entitled to an award
of presentence conduct credits but forfeited his challenge to the probation condition, and
even if he had not forfeited the challenge, it would fail because the probation condition is
not unconstitutionally overbroad. Therefore, we modify the judgment (order of
probation) to award 32 days of presentence conduct credit, and affirm the judgment as
modified.

       The underlying facts of defendant’s offenses are not at issue and need not be
recounted. Relevant procedural facts will be set forth in the ensuing discussion.

                                      DISCUSSION

                                   I. Conduct Credits

       The trial court did not award defendant any presentence conduct credits at the time
of sentencing. During the pendency of this appeal, defendant requested the trial court
award conduct credits. The trial court denied the request, finding, “Sacramento County
Sheriff’s personnel calculate conduct credit for local/county jail commitments and a
defendant may be subject to loss of some or all of that time due to errant behavior. The
court will calculate pre-sentence conduct credit on cases where state prison is imposed.”



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Defendant contends, and the People agree, defendant is entitled to 32 days of presentence
conduct credit pursuant to section 4019. We concur and shall order the judgment to be
modified accordingly.

         Section 2900.5, subdivision (a) provides, in pertinent part, “In all felony . . .
convictions, . . . when the defendant has been in custody, including, but not limited to,
any time spent in a jail, . . . hospital [or] prison, . . . all days of custody of the defendant,
. . . shall be credited upon his or her term of imprisonment . . . .” “For the purposes of
this section, ‘term of imprisonment’ includes any period of imprisonment imposed as a
condition of probation or otherwise ordered by a court in imposing or suspending the
imposition of any sentence . . . .” (§ 2900.5, subd. (c).) Section 2900.5, subdivision (d)
provides, in pertinent part, “It is the duty of the court imposing the sentence to determine
. . . the total number of days to be credited pursuant to this section. The total number of
days to be credited shall be contained in the abstract of judgment provided for in Section
1213.”

         Under section 4019, a person confined in county jail following arrest and prior to
imposition of sentence for a felony conviction is entitled to conduct credits “unless it
appears by the record that the prisoner has not satisfactorily complied with the reasonable
rules and regulations established by the sheriff . . . .” (§ 4019, subds. (a)(4), (c).)
“Although the sheriff is authorized to deduct conduct credits for inmates jailed under a
misdemeanor sentence or as a condition of probation, his role with respect to presentence
custody credit is to provide the sentencing court with information, records and
recommendations. [Citations.] The sheriff or the People have the burden to show that a
defendant is not entitled to Penal Code section 4019 credits.” (People v. Duesler (1988)
203 Cal.App.3d 273, 276.)

         Here, defendant was confined in the Sacramento County jail following arrest prior
to the imposition of sentence for 32 days (from July 12 to 13, 2013, and from Feb. 27 to


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Mar. 28, 2014). The probation department’s report is silent regarding any deduction of
conduct credits, and the People did not argue nor did the trial court find that defendant
was not entitled to credits pursuant to section 4019, subdivisions (b) and (c). Under these
circumstances, we conclude the trial court erred in failing to award defendant presentence
conduct credits. Accordingly, we shall order the judgment modified to reflect that
defendant is entitled to 32 days of conduct credit, in addition to the 32 days of actual
credit already awarded, for a total of 64 days of presentence custody credit. (§ 4019,
subds. (b), (c) & (f).)

                                 II. Probation Condition

       Defendant stole and subsequently surrendered $66.81 in merchandise from a
Walmart store located on Elk Grove Boulevard in Sacramento County. The probation
department recommended that defendant be ordered to stay away from that store as a
term of his probation. When the matter came up for sentencing, the trial court ordered
that defendant must not enter any Walmart in Sacramento County for the duration of his
probation. Defendant contends this probation condition is unconstitutionally overbroad
and must be stricken because it impinges his constitutional right to travel. The Attorney
General contends that defendant forfeited this contention by failing to object to the
probation condition at sentencing, and that the condition is not overbroad. We conclude
defendant’s contention is forfeited because it is factually dependent, and regardless, the
contention would fail on its merits because the condition is not overbroad.

       “As a general rule, a defendant must first raise the issue in the trial court to
challenge a probation condition on appeal.” (People v. Quiroz (2011) 199 Cal.App.4th
1123, 1127.) Defendant did not challenge the condition in the trial court. Nonetheless,
defendant relies on In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.) to argue his claim
is not forfeited in this instance, as the issue presents a pure question of law. In Sheena K.,
the Supreme Court held that where the challenge is to a “facial constitutional defect in the


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relevant probation condition” and is “capable of correction without reference to the
particular sentencing record developed in the trial court,” the general rule of forfeiture
does not apply. (Sheena K., at p. 887.) However, not “ ‘all constitutional defects in
conditions of probation may be raised for the first time on appeal, since there may be
circumstances that do not present “pure questions of law that can be resolved without
reference to the particular sentencing record developed in the trial court.” [Citation.] In
those circumstances, “[t]raditional objection and waiver principles encourage
development of the record and a proper exercise of discretion in the trial court.” ’ ”
(Id. at p. 889.)

       Because defendant has raised this issue as a facial challenge to the probation
condition, we address defendant’s contention on the merits and reject it. A probation
condition is unconstitutionally overbroad if it imposes limitations on the probationer’s
constitutional rights, and it is not closely or narrowly tailored and reasonably related to
the compelling state interest in reformation and rehabilitation. (Sheena K., supra,
40 Cal.4th at p. 890.) “The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the burden it
imposes on the defendant’s constitutional rights—bearing in mind, of course, that
perfection in such matters is impossible, and that practical necessity will justify some
infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Here, defendant
contends the probation condition limits his right to travel. It does not.

       Though intrastate and intramunicipal travel have been recognized as
constitutionally protected human rights (In re White (1979) 97 Cal.App.3d 141, 148;
accord, Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100), these rights may be
impinged by a probation condition if that condition “serves to rehabilitate and protect
public safety.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355.) Here, Walmart
was the victim of defendant’s theft, and defendant may continue to exercise his right to


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travel as long as he stays out of Walmart’s stores in Sacramento County.2 Such a
condition does not impermissibly infringe on defendant’s constitutional right to travel.
Therefore, it is not unconstitutionally overbroad.

                                      DISPOSITION

       The judgment (order of probation) is modified to reflect that defendant is entitled
to 32 days of presentence conduct credit in addition to the 32 days of actual credit
previously awarded. The clerk of the trial court is directed to prepare an amended order
of probation reflecting these additional credits and to forward a certified copy of the
amended order to the probation department. As modified, the judgment is affirmed.




                                                        BUTZ                  , J.



We concur:



      BLEASE                , Acting P. J.



      DUARTE                , J.




2 Defendant requests we take judicial notice that “Walmart owns and operates 16 stores
in Sacramento County” based on the printout of a map of Sacramento County and a four-
page printout of Walmart store locations in Sacramento County. We deny the request
because the location and number of stores are irrelevant given the limited nature of the
probation condition, as discussed herein.


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