Filed 2/11/16 P. v. Raymundo CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H042080
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS142975A)

         v.

JAIME RAYMUNDO, SR.,

         Defendant and Appellant.


         Defendant Jaime Raymundo, Sr., pleaded nolo contendere to one count of
inflicting corporal injury upon a spouse or cohabitant (Pen. Code, § 273.5, subd. (a))1 and
one count of misdemeanor child endangerment (§ 273a, subd. (b)). The trial court
suspended imposition of sentence and placed him on four years’ felony probation. On
appeal, he argues that the probation condition requiring him to obtain permission from his
probation officer before changing his place of residence from Monterey County or
leaving the State of California is overbroad, unconstitutional, and unreasonable. He also
claims he is entitled to additional presentence credit and that this court should clarify the
trial court’s order regarding restitution fines. For the reasons set forth below we modify
several of his probation conditions. As modified, we affirm the order of probation.




         1
             Unspecified statutory references are to the Penal Code.
                                      BACKGROUND
       Facts2
       On November 24, 2014, officers responded to a report of domestic violence at a
supermarket parking lot. The victim lived with defendant. She stated that defendant had
struck her on the face with car keys and had choked her after a verbal argument. She said
that defendant assaulted her while he held their one-year-old son in his free arm. The
victim also told officers that defendant had assaulted her in the past, but she had not
reported the incidents to police. Defendant acknowledged that he had an argument with
the victim but denied the assault.
       Procedural History
       On December 23, 2014, defendant was charged by information with one count of
corporal injury to a cohabitant (§ 273.5, subd. (a); count 1), assault by means likely to
produce great bodily injury (§ 245, subd. (a)(4); count 2), and misdemeanor child abuse
(§ 273a, subd. (a); count 3).
       On February 3, 2015, the information was amended to add count 4, misdemeanor
child endangerment (§ 273a, subd. (b)). Thereafter, defendant pleaded nolo contendere to
inflicting corporal injury on a cohabitant and misdemeanor child endangerment. He
entered his plea with the understanding that he would receive felony probation.
       On March 12, 2015, the trial court suspended imposition of sentence for four years
and placed defendant on formal probation under various terms and conditions. One of
the conditions of probation stated: “Do not change your place of residence from
Monterey County or leave the state of California without permission of the probation
officer.” Defendant objected to the imposition of the condition, arguing that it was
overbroad and infringed upon his constitutional right of intrastate travel. He agreed that
       2
         Since defendant pleaded nolo contendere, we derive our facts from the probation
report, which is based on a report prepared by the Salinas Police Department.


                                              2
he “should give advance notice to the probation department prior to moving,” but that the
imposed condition “allows probation to block his movement.” The court responded that
it believed that defendant could seek relief from the court if he felt his rights had been
infringed. Thereafter, the court stated, “If you feel that probation has infringed upon your
rights to travel, the Court would be happy to entertain an application for modification of
sentence to further modify or strike that sentence.”
       The trial court attached a three-page memorandum justifying the imposition of the
change of residence probation condition to the minute order of the sentencing hearing.
The memorandum asserted, broadly speaking, that the condition would allow for
meaningful supervision by the probation officer and that the condition was not an
unreasonable restriction on a defendant’s right to travel.
       The court also incorporated the terms and conditions of probation recommended in
the probation report, which included: “In lieu of a fine, pay $300.00 to a Women’s
Shelter Program as directed by the probation officer. (P.C. § 1203.097(a)(11)(A).)” The
court ordered defendant to serve 213 days in county jail and awarded him custody credit
of 107 actual days and 106 days of conduct credit.
       Defendant appealed.
                                        DISCUSSION
       On appeal, defendant makes the following claims: (1) the probation condition
requiring him to get permission from his probation officer before moving from Monterey
County or leaving the State of California was not reasonably related to his crime and is
unconstitutional, (2) he is entitled to additional presentence credit because he was in
custody longer than indicated in the probation report, and (3) the order regarding the
$300 fine imposed under section 1203.097, subdivision (a)(11)(A) should be clarified
that the fine is meant to replace the restitution fine under section 1202.4.



                                              3
   1. Probation Condition Requiring Permission to Move or Leave the State
       First, defendant argues that the residence condition is not reasonably related to his
crime and fails the test articulated by our Supreme Court in People v. Lent (1975) 15
Cal.3d 481 (Lent). He also claims that the condition is unconstitutionally overbroad. We
address these claims separately.
       a. Reasonableness of the Probation Condition
       Under Lent, supra, 15 Cal.3d 481, a condition 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.’ ” (Id. at p. 486.) “This test is conjunctive—all three prongs
must be satisfied before a reviewing court will invalidate a probation term.” (People v.
Olguin (2008) 45 Cal.4th 375, 379.)
       Preliminarily, we note that defendant’s opening brief appears to attack the validity
of the probation condition by asserting that it was unreasonable under the Lent test and
because it was not narrowly tailored and therefore unconstitutionally overbroad. The
reasonableness of a probation condition and the condition’s unconstitutional overbreadth
are different concepts.3 Some of defendant’s arguments appear to conflate these two
issues.4 Whether a probation condition is unreasonable depends on if the condition meets
all the requirements set forth in Lent, supra, 15 Cal.3d 481. Whether a condition is
       3
          For example, defendant argues in his opening brief that “[t]he trial court’s
reasons for insisting on the condition [as articulated in the memorandum attached to the
minute order] were inadequate because they did not relate to either [defendant] or his
crime.” However, this is an argument pertaining to the condition’s reasonableness, not
its overbreadth.
        4
          In part, this confusion may arise from defendant’s reliance on People v. Bauer
(1989) 211 Cal.App.3d 937 (Bauer), which we discuss, infra, in the next section of this
opinion. Bauer considered whether a similar probation condition was unreasonable under
the Lent test and whether it was an unconstitutional infringement on the defendant’s
rights. (Id. at pp. 943-945.)


                                             4
unconstitutionally overbroad depends on if the condition impinges on a constitutional
right and is not narrowly tailored and reasonably related to a compelling state interest.
(In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).)
       As a general rule, failure to object to a probation condition on the grounds that it is
unreasonable under Lent waives the claim of error on appeal. (People v. Welch (1993) 5
Cal.4th 228, 237.) Here, defendant objected to the imposition of the probation condition,
but not on the grounds that it was not reasonably related to his crime. Rather, he objected
on the grounds that the condition was an “overbroad term” and that it “infringe[d] on his
constitutional right of intrastate travel.” Accordingly, we find that defendant has waived
any challenges to the reasonableness of the condition, since he failed to raise an objection
on that ground below.
       b. Overbreadth5
       Defendant, however, has not waived his claims regarding the constitutionality of
the probation condition. On appeal, we review the constitutionality of a probation
condition de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889; In re Shaun R.
(2010) 188 Cal.App.4th 1129, 1143.)
       A probation condition cannot be overbroad or vague, it “ ‘ “must be sufficiently
precise for the probationer to know what is required of him, and for the court to
determine whether the condition has been violated . . . .” ’ ” (People v. Barajas (2011)
198 Cal.App.4th 748, 753.) “A restriction is unconstitutionally overbroad . . . if it
(1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably
related to the compelling state interest in reformation and rehabilitation.’ [Citations.]

       5
        Although neither party acknowledges this, the California Supreme Court is
presently considering the constitutionality of a similarly worded probation condition in
People v. Schaeffer (2012) 208 Cal.App.4th 1, review granted October 31, 2012,
S205260. The condition at issue there required the defendant to “ ‘[r]eside at a residence
by the Probation Officer and not move without his/her prior approval.’ ” (Id. at p. 4.)


                                              5
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.” (E.O., supra,
188 Cal.App.4th at p. 1153.)
       In part, defendant relies on Bauer, supra, 211 Cal.App.3d 937. In Bauer, the
defendant challenged a term of probation requiring that he obtain his probation officer’s
approval of his residence. (Id. at p. 940.) The Bauer court found that based on the facts
of the defendant’s case, the imposed condition was not reasonable and failed to satisfy
the test set forth in Lent, supra, 15 Cal.3d 481. (Bauer, supra, at p. 944.)
       Bauer further noted that the condition was “all the more disturbing because it
impinges on constitutional entitlements—the right to travel and freedom of association.
Rather than being narrowly tailored to interfere as little as possible with these important
rights, the restriction is extremely broad. The condition gives the probation officer the
discretionary power, for example, to forbid appellant from living with or near his
parents—that is, the power to banish him. It has frequently been held that a sentencing
court does not have this power.” (Bauer, supra, 211 Cal.App.3d at p. 944.)
       There is a difference between the condition contemplated in Bauer and the one
imposed in this case. The condition contemplated in Bauer required the probationer to
obtain his probation officer’s approval of his residence. Therefore, the probation officer
in Bauer could conceivably disapprove of the probationer’s residence, forcing him to
move. Here, the condition requires defendant to obtain his probation officer’s approval
before he can change his residence or leave the state. Unlike Bauer, defendant is not
subjected to a risk of banishment.
       As the trial court acknowledged in its memorandum, the condition is reasonably
related to the state’s interest in reformation and rehabilitation, because it would facilitate

                                               6
the effective supervision of probationers and the ability of the court to ensure that the
probationer is able to receive adequate services wherever he or she decides to move.6
We agree that this is a compelling state purpose.
       The issue is whether the condition is narrowly tailored. Courts may leave “many
details that invariably are necessary to implement the terms of probation” to a probation
officer. (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359.) However, they
should not grant a probation officer “unfettered discretion.” (People v. Leon (2010) 181
Cal.App.4th 943, 953.)
       The probation condition at issue here provides the probation officer without
standards to guide their decisions to either approve or disapprove a defendant’s request
for a change of residence or for travel out of state. The trial court offered to ameliorate
this concern by stating, “If you feel that probation has infringed upon your rights to
travel, the Court would be happy to entertain an application for modification of sentence
to further modify or strike that sentence.” We do not believe this is sufficient and find
that modification of the probation condition is necessary. The condition is modified to
read: “Do not change your place of residence from Monterey County or leave the state of
California without permission of the probation officer or of the court.” As modified, we
find the probation condition to be sufficiently tailored to the compelling state interest.
   2. Presentence Credit
       Next, defendant argues that he is entitled to an additional three days of presentence
credit, because he was in custody between November 24, 2014 and March 12, 2015 (a
total of 109 actual days). He points out that the probation report incorrectly stated that he
was in custody between November 24, 2014, and March 10, 2015. The People concede

       6
         We decline to express an opinion on the trial court’s conclusion, as set forth in
the memorandum attached to the sentencing minute order, that the probation condition is
statutorily compelled.


                                              7
this issue, and we find the concession appropriate. Pursuant to section 2900.5,
subdivision (a), a defendant is entitled to presentence credit for all days spent in custody.
Section 4019, subdivision (f) further provides that a defendant shall receive conduct
credit consisting of two days for every two days of actual custody. We therefore modify
the trial court’s order to award defendant an additional three days of presentence credit,
consisting of two days of actual custody and one day of conduct credit.
   3. Modification of the Order Regarding Fines
        Lastly, defendant argues that the trial court’s order regarding fines is confusing
and should be clarified. He notes that the trial court imposed as a condition of probation:
“In lieu of a fine, pay $300.00 to a Women’s Shelter Program as directed by the
probation officer. (P.C. § 1203.097(a)(11)(A).)” He claims that the only other $300 fine
imposed on defendant was the felony portion of the restitution fund fine imposed under
section 1202.4. To provide clarification, defendant suggests that we strike the felony
portion of the $300 restitution fund fine under section 1202.4 and clarify that the $300
fine imposed under section 1203.097, subdivision (a)(11)(A) was imposed in lieu of that
fine.
        Out of an abundance of caution, we will adopt defendant’s recommendations.
Section 1203.097, subdivision (a)(11)(A), provides that for crimes of domestic violence,
the conditions of probation “may include, in lieu of a fine, but not in lieu of the fund
payment required under [section 1203.097, subdivision (a),] paragraph 5, one or more of
the following requirements: [¶] (A) That the defendant make payments to a battered
women’s shelter, up to a maximum of five thousand dollars ($5,000).” The court
directed defendant to pay $300 under section 1203.097 “[i]n lieu of a fine,” but did not
specify what fine.
        Further, the minute order imposed a total restitution fund fine of $450, which
consisted of $300 imposed for defendant’s felony and $150 imposed for defendant’s

                                              8
misdemeanor.7 However, the minute order did not contain a detailed breakdown of the
aggregate restitution fund fine imposed under section 1202.4, only directing defendant to
pay a $450 fine. Accordingly, we agree with defendant that clarification is necessary and
modify the probation condition as requested.
                                         DISPOSITION
          The following conditions of probation from the trial court’s March 12, 2015
minute order are modified as follows:
          Condition No. 3: “Do not change your place of residence from Monterey County
or leave the state of California without permission of the probation officer or of the
court.”
          Condition No. 6: “Pay a restitution fine of $150 to the State Restitution Fund for
Count 4. (Pen. Code, § 1202.4, subd. (b).)”
          Condition No. 7: “In lieu of a restitution fund fine (Pen. Code, § 1202.4) of $300
for Count 1, pay $300 to a Women’s Shelter Program as directed by the probation officer.
(Pen. Code, § 1203.097, subd. (a)(11)(A).)”
          As modified, the order granting probation is affirmed.




          7
         The court adopted the probation report’s recommendations, which included that
defendant be required to pay a $300 restitution fine for the felony count and a $150 fine
for the misdemeanor count.


                                               9
                           Premo, J.




     WE CONCUR:




           Rushing, P.J.




           Márquez, J.




People v. Raymundo
H042080
