Filed 9/18/14

                    CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                     E058212

v.                                                    (Super.Ct.No. RIF1202797)

BRYAN ALEXANDER WATT,                                 OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed in part; reversed in part with directions.

        Joshua H. Schraer, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Parag

Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.


*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts 1 and 3.




                                             1
       A jury convicted defendant, Bryan Watt, of receiving stolen property (Pen. Code,

§ 496, subd. (a))1 and he was granted probation. He appeals, claiming there was

insufficient evidence to support the verdict, the jury was misinstructed and two of his

probation terms are invalid. We disagree with his first two contentions, agree with the

third, and, therefore, strike the probation terms at issue while affirming the remainder of

the judgment. The facts are reported in connection with the first issue discussed.

       1. Insufficient Evidence of Knowledge that the Property Was Stolen and that

Defendant Possessed the Property

       The next door neighbor of the victim’s property testified that around 7:30 or 8:00

a.m. on March 24, 2012, he saw drag marks coming out of the gate that marked the entry

to the victim’s property and followed the marks down the hill one-fourth of a mile to

defendant’s truck, where defendant was attempting to hoist a piece of irrigation

equipment onto its bed. The neighbor asked the man what he was doing with the piece of

equipment, but the neighbor did not say what defendant said in response. The neighbor

then called the property manager and asked him to come to the property and “take over.”

The neighbor had not seen the piece of equipment at the side of the road in that spot

before and he had never seen it “just hanging out on the side of the road.” There were no

“No Trespassing” signs in the area where defendant’s truck and the piece of equipment

that was being hoisted onto the rock were located.

       1   All further statutory references are to the Penal Code unless otherwise indicated.




                                              2
       The manager of the victim’s property testified that around 7:00 a.m. on March 24,

2013, he received a call from the above-mentioned neighbor who reported that someone

was leaving the victim’s property with a piece of metal from the property. When the

manager arrived, he saw defendant, who was standing next to the neighbor, and

defendant’s truck in the middle of a public road one-half to three-quarters of a mile from

the gate that marked the entry to the victim’s property. The gate had two “No

Trespassing” signs, a chain and two locks on it. One of the links in the chain had been

freshly cut, although the gate was closed when the manager arrived. The working piece

of irrigation equipment, which the manager testified had come from the victim’s

property, weighed about 3,000 pounds, and was three and one-half to four feet in

diameter, had been hoisted up by a chain in preparation for being loaded onto defendant’s

truck. There were marks created by dragging the piece of equipment from where it had

been kept on the victim’s property,2 at an elevation of about 800 to 1000 feet, which was

three-quarters to one mile from defendant’s truck and at least one-half mile from the gate,

up the only road that went through that property, to the back of defendant’s truck. Going

through the gate was the only way to get to where the piece of equipment had been kept.

In front of where the piece of equipment had been kept was a water tank that had fresh

cut marks in it, a “used-up” saw blade, used for cutting steel, a sign that read, “Private


       2  He testified that the drag marks and where the piece of equipment had been kept
started three-quarters of the way up the mountain, almost to its top. The road towards the
top was passable only by a pickup or four wheel drive.



                                              3
Property” which was off its post and lying on the ground and a blue tarp. The manager

opined that the saw blade was the type that was used in the kind of saw which was in the

bed of defendant’s truck and the blade might have fit that saw, which cuts steel. The

manager, who had last been to the property a month before, had not seen the saw blade,

the cuts to the tank nor the tarp before March 24, 2012. Also in the bed of defendant’s

truck were three pieces of airstrip landing metal, weighing a total of 150 to 200 pounds.

The landing strip metal had been kept on the victim’s property, beyond the gate, one-half

mile from where defendant’s truck was parked and it was accessible by the road that ran

between the gate and where the piece of equipment had been kept and the tank was

located. The landing strip metal had been used to block trails to keep people off the

victim’s property. The property manager had not given defendant permission to be on

the property or to take anything from it. There were more than 12 “No Trespassing”

signs posted throughout the victim’s 182 acre property.

       The owner of the property testified that no one, including defendant, had

permission to be on the property on March 24, 2012 or to take anything from it, including

the piece of equipment and the airstrip landing metal. A representative of the company

that manufactured the piece of equipment testified that it cost $35,000 brand new and half

that used.

       A deputy sheriff testified that he arrived at the property at 8:11 a.m. on March 24,

2012, and saw the piece of equipment chained to the hoist. He spoke to the property

manager who “explain[ed] to [him] what had happened[,]”the officer “questioned [the



                                             4
manager] thoroughly about the incident” and defendant told him that he tried to buy the

piece of equipment from the manager. The officer testified that the manager had not told

him about the link in the chain being cut or finding the used saw blade near the tank. At

some point that day, which was not specified, the officer also spoke to the neighbor.

After completing his investigation, the officer arrested defendant, who did not attempt to

flee, was cooperative and did not appear to be evasive. The officer testified that the blade

on defendant’s saw was for cutting metal, not concrete. He said that he had never seen

people riding BMX bikes in the area at 6:00 or 7:00 a.m. and riders normally rode in the

afternoon.

       Defendant testified that a woman at a market near his home and 10 minutes from

the victim’s property, whose last name he did not know, had told him that there was

metal on a hill where defendant first parked his truck on March 23, 2012.3 Defendant

planned to pick up the metal and turn it into the scrap yard for money, so he could buy

gas to get to his work site in Santa Barbara the next work day. There was a BMX track

that his son used on the other side of the street where he eventually parked his truck and

he had been to that track four to five times before. At 6:00 or 7:00 a.m., or while it was

light, he parked his truck in the desert, around the mountain from where he later parked,

and hiked 100 feet up the mountain on a dirt bike trail where he found the pieces of


       3 When defendant first testified, he said the woman had sent him to a hill “off
Leon [Street] . . . and by the new school. However, where defendant later in his
testimony indicated he had first gone was nowhere near Leon Street.



                                             5
landing strip metal, as well as a tire, beer cans and bundled barbed wire, which he

thought was scrap. It did not appear to him that he was on someone’s property—in fact,

he thought he was on Bureau of Land Management land, which, he said was “for public

use”—and he saw no “No Trespassing” signs. He threw the tire and the landing strip

metal down the hill and loaded them into the bed of his truck. He then drove his truck

around to the BMX track to see if his son and the son’s friends were there4 and he saw

the piece of equipment on the side of the public road, with no signs near it. He saw the

drag marks leading up to the piece of equipment and it appeared to him that someone had

drug it “down the hill or something” to there and abandoned it. He planned to load it into

the bed of his truck and use it to get gas money—he expected to collect about $400 for it.

He denied seeing the gate at the entrance to the victim’s property and he denied driving

past it. He was in the process of loading the piece of equipment into the bed of his truck

when the neighbor arrived and said he thought it belonged to the property manager.

Defendant told the neighbor he had just found it and he would call the property manager

and see if he could buy it from him. The neighbor said he would call the property

manager to come out or defendant told the neighbor to call him. The neighbor left and

defendant waited two to three hours for the property manager to show up. When he did,

he was very angry and he immediately told defendant that the latter was going to jail and

the police were on their way. Defendant asked the manager if he could buy the piece of

       4
       He testified after the police officer did that he expected to see his son at the
BMX area around 8:00 or 9:00 a.m.



                                             6
equipment and he did not know that it had not been abandoned and it was “laying

out . . . in the field.” The property manager replied in the negative and reasserted that

defendant was going to jail. An hour later, the deputy sheriff arrived and asked defendant

what he was doing there. Defendant denied at trial entering the gate, seeing the “No

Trespassing” signs on it, dragging the piece of equipment from the victim’s property to

where his truck was parked or going any further up the hill towards the gate than where

his truck was parked. He denied that his truck, a 1995 Dodge with 256,000 miles on it,

was capable of dragging the piece of equipment down to where he was trying to get it

into his truck. He testified that the saw in his truck was a concrete saw which he used for

his work and whose blade could not cut metal. He denied seeing the tank or making cuts

in it on March 24, 2012 and he said the saw he had in his truck could not have made

those cuts. He did not recognize the saw blade that had been found near the tank. He did

not believe that the piece of equipment and the landing strip metal belonged to someone

else—he believed that they had been dumped where he found them and abandoned.

       As already stated, defendant testified to a number of statements he made to the

neighbor and the property manager that tended to exculpate him, however, there was no

corroboration by these witnesses that he made any of these statements. Other portions of

defendant’s story directly conflicted with the testimony of all three prosecution witnesses.

Defendant’s timeline, including his claims of waiting two to three hours for the property

manager to appear at the scene and another hour for the deputy sheriff to appear,

contradict the testimony of all three that they met up with defendant before 8:15 a.m.



                                              7
Defendant also claimed that he waited alone for the property manager to arrive, yet the

property manager testified that when he arrived, the neighbor was standing next to

defendant. Defendant’s description of where the lady at the store recommended he go to

pick up scrap metal differed from where he testified he actually went. Defendant claimed

that the piece of equipment was at the side of the public road, yet the neighbor testified

that he did not see it there and both he and the property manager testified that the drag

marks went from the area at the gate to the back of defendant’s pickup truck, which

would not have been possible had defendant found the piece of equipment at the side of

the road. Defendant testified that he told the property manager that he found the piece of

equipment “laying out here in the field” yet he testified repeatedly at trial that he found it

at the side of the public road. Defendant claimed the blade in his saw was for cutting

concrete, while the deputy sheriff testified it was for cutting metal. Defendant’s and the

officer’s testimony conflicted about when people rode BMXs in the area. Defendant

claimed he found the landing strip metal and tire in a different place than the property

manager testified the former was kept. Defendant testified on direct examination that he

threw the landing strip metal down the hill, however, after the manager testified that it

weighed 150 to 200 pounds, defendant changed his testimony and said he rolled it three

or four times down the hill. According to the manager, defendant could not have gotten

to where the landing strip metal was by going the way he testified he had, nor could he

have driven to where he claimed he parked and picked up the landing strip metal or from

there to where he parked on the public road and saw the piece of equipment in the



                                              8
manner he testified he did. In fact, the trial court at sentencing said to defendant, “I

found your testimony to be absolutely unbelievable [in] many respects.”

       In asserting that there is insufficient evidence that defendant knew the airstrip

landing metal and the piece of equipment were stolen, defendant insists that we accept as

gospel truth his testimony that he believed he was on public land when he found both of

the items, believed both had been abandoned and attempted to purchase them from the

property manager when he was disabused of these beliefs by the latter. However, given

the conflict between his story and that of the other witnesses, we are compelled to

disbelieve the defendant’s version, and the jury and the trial judge said as much. On the

other hand, defendant admitted that he saw the drag marks leading up to the piece of

equipment. A better piece of circumstantial evidence that the item had been moved by

someone who was not authorized to move it could not be found. Defendant recognizes

that “possession of stolen property, accompanied by . . . suspicious circumstances . . . will

justify an inference that the goods were received with knowledge that they had been

stolen.” (People v. Perez (1974) 40 Cal.App.3d 795, 799 overruled on other grounds in

People v. Allen (1999) 21 Cal.4th 846, 863.) The drag marks are such circumstances,

especially when coupled with defendant’s familiarity with the area, having been there a

number of times before to watch his son at the BMX track. Certainly, defendant could

have assumed that someone dragged the piece of equipment to where he saw it and

abandoned it there. However, what did that say about the relationship between that

person and the piece of equipment? Does the rightful owner of an item drag it to a place



                                              9
where other people have access to it and can take it? Although some rightful owners

abandon their property, defendant believed the item was worth at least $400 as scrap

metal. Therefore, the jury could reasonably conclude that defendant knew the item was

stolen. As to the pieces of landing strip metal, defendant, himself, admitted that they

were on land he believed belong to the Bureau of Land Management. Few among us

would feel at liberty to remove something that was on federal land and the jury was free

to reach this reasonable inference or to conclude, in fact, that defendant had taken the

metal, knowing that it, like the piece of equipment, had been stolen, or that he had

actually taken it from the victim’s property.5

       Defendant also asserts that there is insufficient evidence that he “took possession

and control of” the piece of equipment, apparently conceding that sufficient evidence

supports this in regard to the landing strip metal. However, the fact remains that the

chains of defendant’s chain hoist devise were secured around the piece of equipment.

Much like someone who is in the process of kidnapping a dog and had their own collar

and leash on the dog, defendant cannot now claim that he did not take possession and




       5  The fact that the jury found defendant not guilty of grand theft as charged in the
Information does not foreclose the latter conclusion. The prosecutor elected to require
the jury to conclude that defendant stole both the piece of equipment and the landing strip
metal in order to convict him of the charged grand theft. In acquitting defendant, the jury
could have indicated that it entertained a reasonable doubt that defendant took the piece
of equipment with the intent of permanently depriving the victim of it, but not the landing
strip metal.



                                             10
control of the piece of equipment when he secured the chains of his chain hoist devise

around it, in anticipation of lifting and placing it into the bed of his truck.

       Defendant asserts that his failure to successfully hoist the piece of equipment into

the bed of his truck means that there was insufficient evidence of possession and control.

We disagree. In the early morning hours, when no one else was around, defendant, as he

himself admits, “tried to lift the [piece of equipment] into his truck, but it was too

heavy. . . . [He then] wrapped . . . chains around a rock and tried to hoist [the piece of

equipment] . . . into his truck” using a hoisting device capable of pulling, according

solely to defendant, less poundage than the piece of equipment weighed. As defendant

concedes, the neighbor testified that defendant was trying to hoist it into the bed of his

truck. When the property manager arrived, he saw, as defendant concedes, “the [piece of

equipment] propped up on a rock with a chain hoisted around it. [¶] . . . [¶] [T]he

record reveals that [defendant] was attempting to hoist the [piece of equipment] into the

back of his truck when [the neighbor] drove by him . . . .” That’s possession and control.

The fact that defendant testified that his “pull-chain hoist thing” was only capable of

lifting 2200 pounds and the piece of equipment weighed 3000 pounds, therefore he would

have been unsuccessful in getting it into the bed of his truck, does not overcome the

finding that he had possession and control. First, there is no requirement that the

defendant place the object within his property in order to gain possession and control. As

we have already concluded, defendant took possession and control when he secured the

chains of his chain hoist device around the piece of equipment. Second, defendant, once



                                               11
again, requires us to accept as gospel truth his testimony that his device was not capable

of lifting the piece of equipment onto the bed of his truck. Under the circumstances, we

are unwilling to do this. Finally, defendant candidly admits that he cannot locate a case

holding that the failure to load a heavy item into the defendant’s property undermines a

finding of possession and control.

       As to defendant’s assertion that once he learned that the piece of equipment

belonged to someone, he immediately stopped his efforts to move it onto the bed of his

truck and directed the neighbor to call the manager so he could buy it from him. That

version was based entirely on defendant’s self-serving, completely uncorroborated

testimony that the jury was free to reject the evidence, and did so.

       2. Jury Instruction

       Defendant contends that the trial court erred in instructing the jury, at the request

of both parties,6 that defendant would not be guilty of receiving stolen property if he

believed that the piece of equipment and the runway metal were dumped only if that

belief was reasonable. Specifically, the jury was instructed with a modified version of

CALCRIM No. 3406, which provided, in pertinent part, “The defendant is not guilty

of . . . receiving stolen property if he . . . did not have the intent or mental state required

to commit the crime because he reasonably did not know a fact or reasonably and

mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under

       6 To foreclose a claim of incompetency of trial counsel, we will sidestep the
People’s argument that defendant invited the error by requesting this instruction.



                                               12
the facts as he reasonably believed them to be, he did not commit the crime

of . . . receiving stolen property. If you find that the defendant believed that the [piece of

equipment] and pieces of [runway metal] were dumped, and if you find that belief was

reasonable, he did not have the specific intent or mental state required for the crime

of . . . receiving stolen property. [¶] If you have a reasonable doubt about whether the

defendant had the specific intent or mental state required for the crime[] of . . . receiving

stolen property, you must find him not guilty of th[at] crime[.]”

       The instructions given on the receiving stolen property charge required that

defendant “have knowledge at the time he concealed or withheld the property that it had

been stolen” in order for him to be guilty.

       The use note for CALCRIM No. 3406 reads, in pertinent part, “If the mental state

at issue is . . . knowledge, do not use the . . . language requiring the belief to be

reasonable.” Defendant correctly points out that we intoned this concept in dicta in

People v. Lawson (2013) 215 Cal.App.4th 108, 115 (Lawson).

       We begin with the observation that the jurors were never told the standard they

were to apply in determining the reasonableness of defendant’s belief—certainly, they

were not told that it had to be objectively, rather than subjectively, reasonable. A mistake

of fact must be in good faith. (People v. Lucero (1988) 203 Cal.App.3d 1011, 1016,

1017; People v. Vineberg (1981) 125 Cal.App.3d 127, 137.) In determining if a mistake

of fact has negated a specific mental state, the jury may consider reasonableness in

deciding if the belief was in good faith—a highly unreasonable belief can support an



                                               13
inference of bad faith, so while objective reasonableness is not a requirement of the

defense of mistake, subjective reasonableness can be a relevant consideration on the

subject of good faith. (People v. Navarro (1979) 99 Cal.App.3d Supp. 1,11 (Navarro);

Vineberg, at p. 137.)

       Two cases are cited in the use note for CALCRIM No. 3406.—People v. Reyes

(1997) 52 Cal.App.4th 975, 984, 984 footnote 6 (Reyes) and People v. Russell (2006) 144

Cal.App.4th 1415, 1425-1426 (Russell). In Reyes, the defendant’s conviction of

receiving stolen property was reversed because the trial court excluded expert testimony

showing that he lacked knowledge that the property was stolen due to mental disorders

and difficulty in cognitive functioning. (Reyes, at pp. 981, 986.) Additionally, despite

evidence that the defendant was intoxicated with drugs when found with the victim’s

property, the trial court instructed the jury that voluntary intoxication was not a defense

to receiving stolen property and it refused to give a defense-proffered instruction that

there must exist a union of act and mental state and the latter may be shown by the

circumstances surrounding the act. (Reyes, at pp. 985-986.)

       In Russell, the trial court refused to instruct on mistake of fact, although the

appellate court concluded that there was substantial evidence of it. (Russell, supra, 144

Cal.App.4th at p. 1431.) The defendant’s conviction of receiving a stolen motor vehicle

was reversed under the Watson7 harmless error test, i.e, that it appears reasonably


       7   People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).



                                             14
probable the defendant would have obtained a more favorable outcome had the error not

occurred. (Russell, at p. 1432.)8 Russell cited Navarro (id. at p. 1427), a theft case, in

which the appellate department of Superior Court held that the trial court’s modification

of the instruction on mistake of fact to include a requirement that the defendant’s good

faith belief that the property had been abandoned was reasonable constituted error.

(Navarro, supra, 99 Cal.App.3d at pp. Supp. 1, 3, 10, 11.) The Navarro court reversed

the conviction, without discussing the standard of error to be applied. (Id. at p. Supp. 11.)

       Defendant cites three federal circuit court cases in which those courts concluded

that the failure to instruct on a defense constituted federal constitutional error, and,

therefore, he urges, “at a minimum” that we should apply the Chapman9 test that the

error requires reversal unless the People show beyond a reasonable doubt that it was

harmless. (Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091; Davis v. Strack (2nd Cir.

2001) 270 F.3d 111; Barker v. Yukins (6th Cir. 1999) 199 F.3d 867.) However, in each

of those cases, the appellate court concluded that the failure to instruct deprived the

defendant of his right to present a defense and so infected the entire trial that it violated

due process and the right to a fair trial. (Bradley v. Duncan, supra, 315 F.3d at p. 1094;

Davis v. Strack, supra, 270 F.3d at p. 131; Barker v. Yukins, supra, 199 F.3d at p. 876.)


       8 In Lawson, supra, 215 Cal.App.4th 108, 118, this court concluded that Russell’s
holding that the trial court had a sua sponte duty to instruct on the defense of mistake of
fact was no longer good law.

       9   Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).



                                              15
The same cannot be said here. Defendant fully presented his defense and argued it to the

jury and the prosecutor addressed it in his argument to the jury. “Defendant argues a

violation of state law also violates federal due process, thus mandating the more stringent

standard for federal constitutional error. He is wrong. Mere instructional error under

state law regarding how the jury should consider evidence does not violate the United

States Constitution. [Citation.]” (People v. Carpenter (1997) 15 Cal. 4th 312, 393.) The

California Supreme Court has not yet determined the test of prejudice for failure to

instruct on an affirmative defense. (People v. Salas (2006) 37 Cal.4th 967, 984.)

However, we have not found one published opinion that embraces the Chapman standard

for either the failure to instruct, or, as here, error in the instruction that was given.

Rather, published opinions have concluded that the Watson test applies. (People v.

Breverman (1998) 19 Cal.4th 142, 165 (Breverman) [failure to instruct on a lesser

included offense]; People v. Hanna (2013) 218 Cal.App.4th 455, 462, 463 [failure to

instruct on mistake of fact]; People v. Zamani (2010) 183 Cal.App.4th 854, 866 [same];

People v. Villanueva (2008) 169 Cal.App.4th 41, 52 [failure to instruct on self defense];

Russell, supra, 144 Cal.App.4th at p. 1431 [see above]; People v. Elize (1999) 71

Cal.App.4th 605, 616 [failure to instruct on self defense].)10 Even if we apply the


       10  Defendant cites several cases, predating People v. Flood (1998) 18 Cal.4th 470,
which hold that “the failure to instruct on a defense that is supported by substantial
evidence requires reversal unless the factual issue posed by the erroneous instruction
necessarily was decided adverse to the defendant under other, properly given,
instructions.” Of course, a reviewing court examining the record to determine whether

                                                                     [footnote continued on next page]


                                               16
Chapman test, if the issue was necessarily decided under other instructions given,

reversal is not required. (People v. Johnson (1993) 6 Cal.4th 1, 45-47.) In applying the

Watson standard, we may look to the other instructions given, as well as whether the

evidence supporting the existing judgment is so relatively strong, and the evidence

supporting a different outcome is so comparatively weak, that there is no reasonable

probability that the error affected the result. (Breverman, supra, 19 Cal.4th at p. 177;

People v. Wooten (1996) 44 Cal.App.4th 1834, 1849.)

        Despite the presence in this case of the requirement that defendant’s belief that the

landing strip metal and piece of equipment had been dumped be reasonable, and the

possibility that at least one juror construed that to mean objectively reasonable, under

other instructions given, as well as the last sentence of the disputed instruction, the jury

was still required to find beyond a reasonable doubt that defendant knew the items had

been stolen. Not only did the instruction at issue not foreclose the jurors from acquitting

defendant if they had a reasonable doubt that defendant knew the property had been

stolen, it expressly required the jurors to acquit him if they had such a doubt. Moreover,

the evidence supporting the jury’s implied finding that defendant knew the items were

stolen was so relatively strong and the evidence supporting a different outcome was so

comparatively weak that there is no reasonable probability that the instruction given


[footnote continued from previous page]
the jury necessarily made the finding under other instructions given is “a type of harmless
error analysis.” (Id. at p. 490.)



                                              17
affected the result. Therefore, under either test, the error does not require reversal of

defendant’s conviction.

3. Probation Terms

       One of the terms of defendant’s probation was that he “reside at a residence

approved by [his] probation officer” and “not move without the approval of [his]

probation officer.” Neither defendant nor defense counsel objected orally to these terms

and defendant signed a sentencing memorandum, which contained the terms, in which he

stated, “I have read, I understand , and I accept these terms . . . ” Defendant now

contends that the terms violate his constitutional right to travel and to associate freely and

is improperly overbroad.

       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 . . . .”’

(People v. Lent (1975) 15 Cal.3d 481,486. “If a probation condition serves to rehabilitate

and protect public safety, the condition 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.’” [Citation.]” (People v. O’Neil (2008) 165

Cal.App.4th 1351, 1355 “[W]here an otherwise valid condition of probation impinges on

constitutional rights, such conditions must be carefully tailored, “‘reasonably related to

the compelling state interest in reformation and rehabilitation . . . .’” [Citations.]”

(People v. Bauer (1989) 211 Cal.App.3d 937, 942.)



                                              18
       The People correctly assert that the environment in which a probationer serves his

probation is an important factor in whether the probation will be successfully completed.

(People v. Robinson (1988) 199 Cal.App.3d 816, 818.) However, short of a declaration

that, therefore, residency conditions are proper in all cases, the People offer no

explanation as to how these terms are narrowly tailored to serve the state’s compelling

interest in rehabilitating defendant. While the state has a legitimate concern that

defendant not continue to receive stolen property, this concern is addressed by the search

term and the mandate that he obey all laws. Therefore, the terms are not reasonably

related to the compelling state interest in reformation and rehabilitation.11

                                       DISPOSITION

       The terms of defendant’s probation that he reside at a residence approved by his

probation officer and he not move without the approval of his probation officer are

stricken. The trial court is directed to remove them from the minutes of the sentencing

hearing. In all other respects, the judgment is affirmed.

       CERTIFIED FOR PARTIAL PUBLICATION
                                                                RAMIREZ
                                                                                      P. J.


We concur:


       11   As the People point out, the legitimacy of these terms is currently pending
before the California Supreme Court in People v. Schaeffer (2012) 208 Cal.App.4th 1
[145 Cal.Rptr.3d 29], review granted October 31, 2012, S205260, formerly an opinion of
this court.



                                             19
RICHLI
         J.

MILLER
         J.




              20
