Filed 1/28/15 P. v. Poirier CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065707

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE335153)

BENJAMIN ROBERT POIRIER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Lantz

Lewis, Judge. Affirmed as modified with directions.

         Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and

Respondent.

         In yet another case where there were no objections made in the trial court,

appellant Benjamin Robert Poirier challenges two of the conditions of probation. He
contends they are reasonable conditions, but that they are constitutionally vague and

overbroad. We will disagree as to one of the conditions and remand the case to the trial

court for further proceedings as to the other condition.

       Poirier was convicted by a jury of one count of petty theft after prior petty theft

convictions. (Pen. Code,1 §§ 484, 490.5.) The trial court found true the alleged prior

convictions under section 666 and one prison prior under section 667.5, subdivision (b).

       The court sentenced Poirier to three years in custody, two years of which were

suspended to be served under mandatory supervision pursuant to section 1170,

subdivision (h)(1).

                                STATEMENT OF FACTS

       Since this appeal does not challenge either the sufficiency or admissibility of the

evidence supporting his conviction, we will offer only a very brief summary of the

offense.

       On the early morning of November 1, 2013, two men broke into a gas station in La

Mesa. A review of the surveillance video revealed that Poirier's companion made entry

by throwing a stone through the station window. He entered and took various items of

property. The video also showed Poirier enter the station and leave carrying an

unidentified object.




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

       Poirier was placed on mandatory supervision based on various conditions. The

two conditions challenged here are:

          "Follow such course of conduct that the Probation Officer ("P.O.")
          communicates to defendant."

          "Obtain P.O. approval as to residence [and] employment."

       Poirier did not object to these conditions in the trial court. He now contends the

conditions are constitutionally infirm as vague and overbroad. He does concede,

however, that the conditions are "reasonable." Thus Poirier contends he has not forfeited

the issue by failure to raise it in the trial court. He also contends we should strike the two

conditions.

       As we will discuss below, case law has established the condition which requires

Poirier to follow the course of conduct communicated by the P.O. is valid, thus we will

affirm that condition. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 (Kwizera).)

As to the condition requiring Poirier to get P.O. approval as to residence and

employment, we will find that condition facially overbroad. We will remand the case to

the trial court to conduct further proceedings as to that condition.

                                    A. Legal Principles

       Conditions of mandatory supervision "must be reasonably related to the

compelling state interest of fostering a law-abiding lifestyle in the parolee." (In re

Stevens (2004) 119 Cal.App.4th 1228, 1234.) We evaluate the reasonableness of parole

conditions under the same standard as that developed in probation conditions. (In re


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Hudson (2006) 143 Cal.App.4th 1, 9; People v. Martinez (2014) 226 Cal.App.4th 759,

763-764.)

       The question of whether a term of probation is unconstitutionally vague or

overbroad is a question of law to be reviewed on appeal under the de novo standard.

Failure to raise the issue in the trial court at sentencing does not forfeit the issue for

review on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889; People v. Quiroz

(2011) 199 Cal.App.4th 1123, 1127.)

       Poirier argues the challenged conditions in this case are "reasonable" and yet are

unconstitutional as vague and overbroad. We are somewhat puzzled by that argument.

Certainly the standards for analyzing the challenges are different. The standards by

which we determine if a condition is reasonable are directed toward rehabilitation and the

prevention of future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) The

approach to determining if a condition is constitutionally infirm is somewhat different as

stated in In re Sheena K., supra, 40 Cal.4th 875. However, we struggle to conceive of a

condition that is "reasonable" under Lent that is so vague or overbroad as to be

unconstitutional. Certainly such an invalid condition cannot be reasonably related to

deterring future criminality or designed to rehabilitate the defendant. Rather, we suspect

the purported distinction is offered to attempt to distinguish cases which have found

similar conditions to be valid as being "reasonable." The distinction may also have been

offered to further support the contention that the issues were not forfeited by failure to

timely object. In any event we do not pause to further dissect any differences in the

analytical approaches.

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      B. The Condition Requiring Poirier to Follow the P.O.'s "Course of Conduct"

       Poirier contends the condition is both vague and overbroad. At the outset, we

conclude there is nothing vague about the condition. It plainly directs the defendant to

follow any course of conduct communicated to him by the P.O.

       As to being overbroad, appellant argues the condition allows the P.O. to more or

less roam at large to set other, unstated conditions. We disagree.

       In Kwizera, supra, 78 Cal.App.4th at pages 1240 to 1241, we addressed the

identical condition. There we observed it is the court that has the power and

responsibility to set conditions of probation. It is the responsibility of the P.O. to

administer the conditions and to set the time and place for those things necessary to

enforce compliance with the ordered conditions. We said: "The phrase 'follow such

course of conduct as the probation officer prescribes,' as used in condition 6.f is

reasonable and necessary to enable the department to supervise compliance with the

specific conditions of probation. It does no more. Since the court does not have the

power to impose unreasonable probation conditions, it could not give that authority to the

probation officer through condition 6.f. When the clear words of Penal Code sections

1202.8 and 1203 are applied, the trial court has authority to empower the probation

department with authority to supervise the probation conditions. Condition 6.f does not

conflict with People v. Lent, supra, 15 Cal.3d 481, or authorize the probation officer to

tell a defendant 'to jump' as defense counsel fears. Condition 6.f is a reasonable

probation condition to enable the department to supervise compliance with the other

probation conditions." (Kwizera, supra, at pp. 1240-1241.)

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       As the court observed in People v. Olguin (2008) 45 Cal.4th 375, 383, the

probation department's authority to supervise compliance with the conditions of

probation, does not empower the department to engage in irrational conduct or make

irrational demands.

       Poirier contends our opinion in Kwizera, supra, 78 Cal.App.4th 1238 and the

court's opinion in People v. Olguin, supra, 45 Cal.4th 375 are not dispositive here

because they considered "reasonableness" and not constitutional infirmity. As we have

stated, we do not believe a condition which is reasonably tailored to the rational goals of

probation could also be so vague and overbroad as to be unconstitutional.

       Our analysis of the virtually identical condition demonstrates we considered the

condition appropriately tailored to the need of probation officers to be able to supervise

compliance with those conditions imposed by the court. The direction is not vague and

as we have pointed out it is appropriate for its lawful purpose. Of necessity such an

appropriate grant of authority to the probation department is not "overbroad"

notwithstanding appellate counsel's speculations about irrational things a probation

officer might suggest.

                         C. Approval of Residence and Employment

       The remaining condition requires appellant to obtain the probation officer's

approval for both employment and residence. Since he has a right to select his residence

and employment, he contends the limitations placed on the exercise of such rights are

overbroad. We agree.



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       The condition is not related to any identifiable rehabilitative goal. Of course, had

Poirier timely objected we might have either a clearer purpose defined, or the trial court

may have made appropriate modifications. Alas defense counsel at trial never

complained about the conditions. However, as we have noted the issue has not been

forfeited so we are left with the language of the condition and nothing else.

       In People v. Bauer (1989) 211 Cal.App.3d 937, 944, the court dealt with the same

condition. There, as here there is nothing to relate the requirement of probation officer

approval of employment and residence to the rehabilitative needs of the defendant. As

the court observed, the unlimited nature of the grant of authority could result in the

arbitrary denial of the exercise of a basic right. We will follow the Bauer opinion and

find the condition overbroad.

       We decline to strike the condition. Rather, we will remand the case to the trial

court to determine whether to strike the condition or whether a more narrowly tailored

condition will accomplish the goal of preventing future criminality. We express no view

on the proper course of action but leave that to the trial court's discretion upon further

analysis.

                                       DISPOSITION

       The case is remanded to the superior court to determine what, if any, conditions

ought to be imposed regarding appellant's employment and residence and to make such




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modification of the probation conditions as may be appropriate. In all other respects the

judgment is affirmed.




                                                                           HUFFMAN, J.

WE CONCUR:


             BENKE, Acting P. J.


                        HALLER, J.




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