Filed 3/16/17



                            CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                  E064824

v.                                                 (Super.Ct.No. RIF1404449)

LUTHER DARNELL STAPLETON, JR.,                     OPINION

        Defendant and Appellant.




        APPEAL from the Superior Court of Riverside County. Mark E. Johnson and

Christian F. Thierbach, Judges. Affirmed.

        Laurel E. Simmons, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.

Ragland, Kathryn Kirschbaum, and Scott C. Taylor, Deputy Attorneys General, for

Plaintiff and Respondent.



                                            1
         In a plea to the court, defendant and appellant Luther Darnell Stapleton, Jr.,

pleaded guilty to petty theft with a prior (Pen. Code, § 666).1 In return, defendant was

placed on probation for a period of 36 months on various terms and conditions. On

appeal, defendant challenges two of his probation conditions on constitutional grounds.

For the reasons explained below, we find no error and affirm defendant’s probationary

terms.

                                                 I

                      FACTUAL AND PROCEDURAL BACKGROUND

         On October 17, 2014, defendant stole less than $950 worth of property from a

Target store. Defendant had prior theft-related convictions, as well as failing to register

pursuant to section 290.

         On December 17, 2014, a felony complaint was filed charging defendant with one

count of petty theft with a prior (§ 666). The complaint further alleged that defendant

was previously required to register as a sex offender under section 290.

         On September 16, 2015, defendant pleaded guilty to the petty theft with a prior

charge and admitted that he was required to register as a sex offender. Immediately

thereafter, defendant was placed on probation on various terms and conditions. Among

other terms and conditions, defendant was required to inform his probation officer of his

place of residence, reside in a residence approved by his probation officer, give written

notice to his probation officer 24 hours before changing his residence, and not to move

         1   All future statutory references are to the Penal Code unless otherwise stated.


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without approval from his probation officer. Defendant was also prohibited from having

direct or indirect contact with Target stores and Target parking lots. Defendant accepted

his terms and conditions without objection.

                                              II

                                       DISCUSSION

       Defendant contends the two above-referenced probation conditions are overbroad,

violate his constitutional rights, and must be stricken.

       Trial courts have broad discretion to “impose . . . reasonable [probation]

conditions, as [they] may determine are fitting and proper . . . for the reformation and

rehabilitation of the probationer . . . .” (§ 1203.1, subd. (j).) This discretion, however, “is

not unbounded.” (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) To be valid, a

probation condition “must (1) . . . relate[] to the crime of which the defendant was

convicted, or (2) relate to conduct that is criminal, or (3) require or forbid conduct that is

reasonably related to future criminality.” (People v. Bauer (1989) 211 Cal.App.3d 937,

942 (Bauer).) However, constitutional challenges are reviewed under a different

standard. Whether a term of probation is unconstitutionally vague or overbroad presents

a question of law, which we review de novo. (In re J.H. (2007) 158 Cal.App.4th 174,

183; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

       “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.” ’ ”



                                              3
(People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, quoting People v. Lopez, supra,

66 Cal.App.4th at p. 624.) But an otherwise valid condition that impinges upon

constitutional rights “must be carefully tailored, ‘ “reasonably related to the compelling

state interest in reformation and rehabilitation . . . .” ’ ” (Bauer, supra, 211 Cal.App.3d at

p. 942, quoting In re White (1979) 97 Cal.App.3d 141, 146 (White); accord, People v.

Olguin (2008) 45 Cal.4th 375, 379 (Olguin); In re Sheena K. (2007) 40 Cal.4th 875, 890

(Sheena K.).)

       A probation condition cannot be overbroad. (Olguin, supra, 45 Cal.4th at

p. 384; Sheena K., supra, 40 Cal.4th at p. 890.) “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.] 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.)

       However, even a facial challenge to constitutionality requires more than a one-

size-fits-all approach. Our inquiry does not take into account the individual facts

pertaining to this particular probationer—as would an “as applied” challenge—but it

must take into account the nature of the case and the goals and needs of probation in

general. For example, what is constitutional in a case involving drug usage is not



                                                4
necessarily the same as what is constitutional in a theft-related case. This broad

consideration of the nature of the case must inform all decisions about whether the

condition has been “narrowly tailored,” even where, as here, we do not reach the personal

circumstances of the probationer.

       Moreover, a probation condition cannot be 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, quoting Sheena K., supra, 40 Cal.4th at p. 890.) On the other

hand, probation is a privilege and not a right, and adult probationers, in preference to

incarceration, may validly consent to limitations upon their constitutional rights. (Olguin,

supra, 45 Cal.4th at p. 384.) For example, probationers may agree to warrantless search

conditions or restrictions on their constitutional right of association. (Id. at pp. 384 &

385, fn. 4, citing People v. Ramos (2004) 34 Cal.4th 494, 506; People v. Medina (2007)

158 Cal.App.4th 1571, 1580 [“a suspicionless search pursuant to a probation search

condition is not prohibited by the Fourth Amendment”]; People v. Balestra (1999) 76

Cal.App.4th 57, 68-69 [upholding a probation condition requiring submission to alcohol

and drug testing at the discretion of the probation officer]; People v. Lopez, supra, 66

Cal.App.4th at pp. 624, 628-629 [upholding condition prohibiting association with known

gang members]; People v. Peck (1996) 52 Cal.App.4th 351, 363 [condition prohibiting

association with known possessors, users, or traffickers of controlled substances]; and

other cases.)



                                              5
       Defendant did not object to either of the probation conditions at issue in the trial

court. But where a claim that a probation condition is facially overbroad and violates

fundamental constitutional rights is based on undisputed facts, it may be treated as a pure

question of law, which is not forfeited by failure to raise it in the trial court. (Sheena K.,

supra, 40 Cal.4th at pp. 888-889; People v. Welch (1993) 5 Cal.4th 228, 235.) The

forfeiture doctrine does apply if the objection involves a discretionary sentencing choice

or unreasonable probation conditions “premised upon the facts and circumstances of the

individual case.” (Sheena K., supra, at pp. 885, 888.)

       A.     Residency Terms

       Defendant contends the residency conditions violate his constitutional right to

travel and freedom of association and should be stricken.2 Defendant relies primarily on

Bauer, supra, 211 Cal.App.3d 937.

       The right to travel and freedom of association are undoubtedly “constitutional

entitlements.” (Bauer, supra, 211 Cal.App.3d at p. 944.) But, as discussed, a probation

condition may restrict these rights so long as it reasonably relates to reformation and

rehabilitation. (White, supra, 97 Cal.App.3d at p. 146.) In Bauer, the reviewing court

struck a residence condition apparently designed to prevent the defendant from living


       2  As noted by the People, the California Supreme Court was 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 reside at a residence approved by the probation officer and
not move without his/her prior approval. However, recently on September 21, 2016, the
California Supreme Court dismissed the case as moot and remanded it to this court.


                                               6
with his overprotective parents. (Bauer, supra, at p. 944.) Nothing in the record

suggested the defendant’s home life contributed to the crimes of which he was convicted

(false imprisonment and simple assault), or that living at home reasonably related to

future criminality. (Ibid.) The court concluded the probation condition impinged on the

defendant’s right to travel and freedom of association, and was extremely broad since it

gave the probation officer the power to forbid the defendant “from living with or near his

parents—that is, the power to banish him.” (Ibid.)

       The present case is distinguishable. Unlike the condition in Bauer, the residence

condition imposed here is not a wolf in sheep’s clothing; it is not designed to banish

defendant or to prevent him from living where he pleases. Moreover, unlike the

defendant in Bauer, where defendant lives may directly affect his rehabilitation,

considering his history with issues related to his mental health and substance abuse. The

record shows that defendant struggled with mental health and substance abuse. While on

probation in this case, defendant repeatedly tested positive for methamphetamine use.

Defendant also had a lengthy criminal history. At the plea hearing, the prosecutor

objected to placing defendant on probation, noting defendant had 14 felony convictions,

“he’s 50 years old, [and] he is still going strong stealing from Target.” The trial court

understood the People’s objection, but believed defendant was “treatable.” The court

further noted that defendant had a documented mental health history, and the Department

of Mental Health believed the offense was mental health related and defendant was

suitable for the mental health program, which included inpatient residency. Additionally,



                                              7
defendant was required to register as a sex offender. Without a limitation placed by the

residence conditions or without supervision, for example, defendant could opt to live in a

residence where drugs are used or sold. A probation officer supervising a person like

defendant must reasonably know where he resides and with whom he is associating in

deterring future criminality.

       The residency conditions are necessary under these circumstances to aid in

defendant’s rehabilitation, and not to banish defendant from any geographic region. The

residency conditions properly serve the state’s interest in reformation and rehabilitation

because where he lives will directly affect his rehabilitation. Contrary to defendant’s

claims, there is no evidence to suggest defendant’s residence could be disapproved for

any reason or that it would be impractical for a defendant to find a place of residence

with the notice and approval requirements. The nature of defendant’s crime and criminal

history suggests a need for oversight. Like the court in Bauer, we do not find that the

condition itself is inappropriate in all circumstances (see Bauer, supra, 211 Cal.App.3d at

p. 944 [finding residence approval condition not related to the defendant and his crimes

in the case, but not invalidating the condition in every case]), but that such notice and

approval here was warranted as the requirements relate to defendant’s future criminality

and crimes.

       Furthermore, the legal landscape has changed since Bauer, supra, 211 Cal.App.3d

937. Bauer was decided before our Supreme Court’s decision in Olguin, supra, 45

Cal.4th 375, which held that a “condition of probation that enables a probation officer to



                                              8
supervise his or her charges effectively is . . . ‘reasonably related to future criminality.’ ”

(Id. at pp. 380-381.) In Olguin, the defendant challenged a condition of probation

requiring him to notify his probation officer of the presence of any pets at his residence.

In part, the defendant challenged the condition on reasonableness grounds. The Supreme

Court rejected the defendant’s arguments, noting that “[t]he condition requiring

notification of the presence of pets is reasonably related to future criminality because it

serves to inform and protect a probation officer charged with supervising a probationer’s

compliance with specific conditions of probation.” (Id. at p. 381.)

       The Supreme Court in Olguin, supra, 45 Cal.4th 375 also stated that “[a] probation

condition should be given ‘the meaning that would appear to a reasonable, objective

reader.’ [Citation.]” (Id. at p. 382.) We view the residence approval condition here in

light of Olguin and presume a probation officer will not withhold approval for irrational

or capricious reasons. (Id. at p. 383.) A probation officer cannot issue directives that are

not reasonable in light of the authority granted to the officer by the court. Thus, a

probation officer cannot use the residence condition to arbitrarily disapprove a

defendant’s place of residence. The condition does not grant a probation officer the

power to issue arbitrary or capricious directives that the court itself could not order. (See,

e.g., People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [a case concerning a

condition requiring a probationer to obey directions from his probation officer].)

       Moreover, we observe that “probation is a privilege and not a right, and that adult

probationers, in preference to incarceration, validly may consent to limitations upon their



                                               9
constitutional rights—as, for example, when they agree to warrantless search conditions.

[Citations.]” (Olguin, supra, 45 Cal.4th at p. 384.) “If a defendant believes the

conditions of probation are more onerous than the potential sentence, he or she may

refuse probation and choose to serve the sentence. [Citation.]” (Id. at p. 379.)

       We conclude that the trial court did not abuse its discretion in imposing the

condition that defendant, as a term of his probation, reside at a residence approved by the

probation officer, not move without the probation officer’s prior approval, and give

written notice to his probation officer 24 hours before changing his residence.

       B.     Target Stay-Away Term

       Defendant contends the probation condition requiring him to stay away from all

Target stores and Target parking lots is unconstitutionally overbroad and restricts his

right to travel. In his reply brief, defendant asserts “in many instances in which Target

shares a parking lot with other stores, it would be difficult to delineate which part of a

parking lot belongs to Target, and which to another store.” Recently, defendant’s exact

contentions were rejected by our Supreme Court in People v. Moran (2016) 1 Cal.5th 398

(Moran).

       In Moran, supra, 1 Cal.5th 398, the California Supreme Court considered whether

a probation condition prohibiting the defendant from entering the premises or adjacent

parking lot of Home Depot stores violated his constitutional right to travel or whether it

was overly broad. (Id. at pp. 401, 404-405.) The court found no such constitutional

violations. (Ibid.) The defendant in Moran asserted that “Home Depot has 232 stores in



                                             10
California (including 14 such stores within 20 miles of his home ZIP code) and argue[d]

that when considered with those stores’ respective parking lots, the stay-away probation

condition sweeps much too broadly.” (Id. at p. 404, fn. omitted.) The court rejected this

argument, noting “But that defendant’s crime was confined to a single Home Depot store

in San Jose and not the entire chain of stores does not fatally undermine the trial court’s

exercise of discretion in imposing a more wide-ranging stay-away condition, for

conditions of probation aimed at rehabilitating the offender need not be so strictly tied to

the offender’s precise crime.” (Id. at pp. 404-405)

       In rejecting the defendant’s constitutional issues, the court concluded that although

defendants placed on probation retain their constitutional right to travel, reasonable and

incidental restrictions on their movement are permissible. (Moran, supra, 1 Cal.5th at

p. 406.) The court explained: “Imposing a limitation on probationers’ movements as a

condition of probation is common, as probation officers’ awareness of probationers’

whereabouts facilitates supervision and rehabilitation and helps ensure probationers are

complying with the terms of their conditional release. [Citations.]” (Ibid., citing Hayes

v. Superior Court (1971) 6 Cal.3d 216, 220 [probation condition prohibited the defendant

from leaving the state without permission]; People v. Vogel (1956) 46 Cal.2d 798, 806

[same]; People v. Cruz (2011) 197 Cal.App.4th 1306, 1309 [probation condition

prohibited defendant from leaving the county or state without permission].)

       In conclusion, the court further found the defendant’s attempts to demonstrate the

Home Depot stay-away condition is an unreasonable, or unconstitutionally overbroad,



                                             11
restriction on his right to travel unavailing. (Moran, supra, 1 Cal.5th at p. 407.) The

court stated: “The [defendant’s] effort fails, as the condition simply does not implicate

his constitutional travel right. Indeed, one struggles to perceive how the condition

curtails his right to free movement in any meaningful way. Although defendant argues

he is prohibited ‘from entering large areas of the state’ and from ‘shopping or working in

any store that shares a parking lot with a Home Depot,’ that surely is an exaggeration.

He remains free to drive on any public freeway, street or road, use public transportation,

work (except in Home Depot stores), shop, visit the doctor’s office, attend school, enjoy

parks, libraries, museums, restaurants, bars, clubs, and movie theaters. He may—without

violating the challenged condition—freely move about his community, the city, and the

State of California. In short, the restriction on his movement imposed by the probation

condition is too de minimis to implicate the constitutional travel right. [¶] Nor does the

directive that defendant stay out of any parking lot ‘adjacent to’ any Home Depot store

change the analysis. Although that part of the condition in theory adds to the area

covered by the restriction on defendant’s movement, it remains a question of scale, and

even considering the area the parking lot condition adds to the movement restriction, the

overall limitation remains so minimal that the Home Depot stay-away condition does not

implicate the concerns that underlie the constitutional right to travel.” (Ibid.)

       Accordingly, we find the Target stay-away condition here is constitutionally

permissible and not an infringement on defendant’s constitutional right to travel.




                                             12
                                     III

                                 DISPOSITION

     The judgment is affirmed.

     CERTIFIED FOR PUBLICATION
                                               RAMIREZ
                                                         P. J.
We concur:



HOLLENHORST
                       J.



MILLER
                       J.




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