Filed 7/26/16 P. v. Stonebreaker CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069260

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN349682)

JENNIFER STONEBRAKER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael J.

Popkins, Judge. Affirmed as modified and remanded with directions.

         Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie

Featherman Fraser, and Christine Levingston Bergman, Deputy Attorneys General, for

Plaintiff and Respondent.
       As part of a plea agreement, Jennifer Stonebraker entered a guilty plea to one

count of corporal injury to a cohabitant (Pen. Code,1 § 273.5, subd. (a)). The remaining

counts and allegations were dismissed.

       Stonebraker was granted probation subject to a number of terms and conditions.

Stonebraker's application for a certificate of probable cause was denied. (§ 1237.5.) She

thereafter filed a notice of appeal challenging her sentence.

       Although she did not object to any of the proposed conditions of probation

Stonebraker now contends two conditions are unconstitutionally overbroad. On appeal

she contends the condition requiring her to get the probation officer's approval of her

residence and her employment improperly restrict her rights of freedom of movement and

association. Stonebraker further contends that her failure to object in the trial court does

not amount to forfeiture because the conditions restrict a constitutional right and can be

reviewed on the record without reference to the facts of the case. (In re Sheena K. (2007)

40 Cal.4th 875.)

       After reviewing the record, we find Stonebraker has not forfeited the challenge to

the two probation conditions and that the conditions are impermissibly overbroad as they

limit protected rights without any demonstrated nexus to either the crime or the

defendant's rehabilitation.2 Accordingly, we will modify the judgment to strike the



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

2      Appellant also argues that if we find forfeiture, we must find trial counsel was
ineffective. Since we do not apply forfeiture here, we will not discuss the claim of
ineffective assistance of counsel
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challenged conditions. We will remand the case to the superior court with directions to

modify its order.

                                STATEMENT OF FACTS

       On September 1, 2015, Stonebraker and her boyfriend, Wayne Bowling, were in

their apartment. Stonebraker began pushing Bowling, which caused him to fall over

backwards and hit his head. Bowling was unconscious for an unknown period of time.

                                      DISCUSSION

       Without objection, the trial court imposed a condition of probation that

Stonebraker get approval from the probation officer of her employment and her

residence. The challenged condition was not discussed by the court, and it is not

addressed in the body of the probation report. What we can glean from the probation

report is that Stonebraker is disabled due to her mental condition, receives disability

payments and has not been employed since 2013. There is no discussion in the report

about concerns regarding any choice of residence she might make. The court did issue a

restraining order to prevent the defendant from contacting the victim.

                                    A. Legal Principles

       We independently review a challenge to the constitutionality of probation

conditions. (People v. Cromer (2001) 24 Cal.4th 889, 899-902; In re Shaun R. (2010)

188 Cal.App.4th 1129, 1143.)

       Ordinarily, failure to object to a proposed condition of probation amounts to a

forfeiture of the issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) The

court has recognized an exception to forfeiture in cases where the imposition of an

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unconstitutional probation condition is "correctable without referring to factual findings

in the record or remanding for further findings . . . ." (In re Sheena K., supra, 40 Cal.4th

at p. 887.)

       Since there are no factual findings, or even discussion of the challenged conditions

in the record, we believe we are bound to follow In re Sheena K., supra, 40 Cal.4th 875,

and find the challenge to the residence and employment approval has not been forfeited.

       Turning to the validity of the current restrictions, several cases have addressed the

issues. In People v. Burden (1988) 205 Cal.App.3d 1277, 1281 (Burden), this court

addressed a restriction that limited certain types of employment for the defendant. We

observed that People v. Lent (1975) 15 Cal.3d 481, 486, permits courts to impose

probation conditions unless they have no relationship to the crime for which the

defendant was convicted, relates to conduct that is not itself criminal, and requires or

forbids conduct that is not reasonably related to future criminality. (Burden, supra, at

p. 1279.)

       In Burden, supra, 205 Cal.App.3d 1277, we determined that the restriction on

employment was an improper limitation on the right of the defendant to engage in lawful

employment as it bore no relationship to the crime or the defendant's rehabilitation. (Id.

at p. 1280.)

       In People v. Bauer (1989) 211 Cal.App.3d 937, 944, the court found a probation

condition, which required the defendant to seek the probation officer's approval of

residence, was an improper restriction on the right to travel and freedom of association.



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The court held the condition was not narrowly drawn to balance the need to prevent

recidivism as opposed to the exercise of the right to engage in otherwise lawful behavior.

                                        B. Analysis

       We recognize probation officers need substantial discretion in order to supervise

persons who have been placed on probation following conviction. (People v. Kwizera

(2000) 78 Cal.App.4th 1238.) Such discretion can, in an appropriate case, limit otherwise

lawful activity that might lead the probationer to continue criminal conduct. (People v.

Lopez (1998) 66 Cal.App.4th 615, 626.)

       In the present case there is nothing in the record, including the probation officer's

report, which could justify restriction on employment or residence. Certainly if a

probationer is required to seek approval from the probation officer, that implies the

officer could refuse. In this case, there would be no guidance to the probation officer, or

to a reviewing court as to why the condition was imposed. Certainly nothing in the

record before the trial court would explain the limitation. From all that appears in the

record the boxes were checked on the set of conditions without discussion or explanation.

       Stonebraker has apparently not been employed for some time. She suffers from a

mental disability for which she receives monthly income. As to her residence, the only

concern, which would be apparent from the record, would be a possible proximity to the

victim. However, the court issued a restraining order preventing contact, which is not

challenged on this appeal.

       Since location of residence and choice of employment are otherwise lawful

activities, treated as fundamental rights, we cannot uphold mere "check-the-box"

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limitations on such rights without something in the record that justifies limiting otherwise

lawful activity.

                                      DISPOSITION

       The formal probation order is modified to strike condition 10g. which requires the

defendant to "Obtain P.O. approval as to residence [and] employment . . . ." The case is

remanded to the trial court with directions to modify the formal probation order

consistent with the views expressed in this opinion. In all other respects, the judgment is

affirmed.




                                                                            HUFFMAN, J.

WE CONCUR:



              McCONNELL, P. J.



                       AARON, J.




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