Filed 4/3/15 P. v. Young CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059687

v.                                                                       (Super.Ct.No. SWF1207095)

WILLIE RAY YOUNG, JR.,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Thomas Glasser, Judge.

(Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed as modified with directions.

         Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Peter Quon and Meredith S. White, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       A jury found defendant and appellant Willie Ray Young, Jr., guilty of

misdemeanor assault (Pen. Code, § 240),1 as a lesser included offense of assault to

commit rape or oral copulation (§§ 220, subd. (a), 264.1, 288 & 289) as alleged in

count 1, and criminal threats (§ 422; count 3).2 Defendant was thereafter placed on

formal probation for a period of three years on various terms and conditions, including

serving 365 days in county jail. On appeal, defendant argues that (1) the probation

condition requiring him to have his residence approved by his probation officer is

unconstitutionally overbroad and impinges on his rights to travel and freedom of

association; and (2) the court’s minute order must be corrected because it reflects an

improper probation revocation fine. We agree that the challenged probation condition

should be modified. We also agree the judgment should be modified to reflect the trial

court’s oral pronouncement of judgment as to the probation revocation fine. Otherwise,

we affirm the judgment.

                                               I

                                FACTUAL BACKGROUND

       Defendant and Jane Doe met online in 2012. They were in a dating-type

relationship and had met in person three to five times. Each time they met in person, they

had engaged in sexual activity.

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

       2  The jury found defendant not guilty of a second count of assault to commit rape
or oral copulation as alleged in count 2, as well as a not true finding on the great bodily
injury enhancement (§ 12022.8) attached to count 1.


                                               2
       On September 15, 2012, defendant and Doe agreed to meet up. They initially met

at a fast food restaurant, but then drove separately to a more remote side street. Once at

the remote location, defendant and Doe moved to the backseat of Doe’s car and had

consensual intercourse. After they were done, defendant got out of Doe’s car and walked

back to his car. However, he then turned around and came back to Doe’s car. Doe was

outside her car, and defendant pushed her back into the backseat of her car and tried to

have intercourse with her again. Doe resisted and told defendant to stop. The two began

struggling and Doe screamed for help. Defendant put his hand on Doe’s neck.

Defendant threatened to take Doe down a nearby hill. Doe continued to resist, honked on

her car horn, and tried to reach for her cellular phone. Defendant grabbed her arm and

twisted. He also choked her and told her that he was going to “break your fucking hand

off.” Defendant eventually stopped and fled in his car when a nearby resident, who heard

the honking horn and Doe’s screams for help, called down to Doe that the police were on

the way.

                                             II

                                       DISCUSSION

       A.     Probation Condition

       Defendant argues the residence approval condition of his probation should be

struck because it is unconstitutionally overbroad and violates his constitutional rights to

travel and association.




                                              3
       Among other terms and conditions of probation, the court included the following

requirements as stated in condition No. 8: “Inform the probation officer of your place of

residence and reside at a residence approved by the probation officer. Give written notice

to the probation officer 24 hours before changing your residence and do not move

without the approval of the probation officer.” Defendant did not object to this probation

condition, and expressly agreed to all of the conditions of his probation.

       In general, trial courts are given broad discretion in fashioning terms of probation

or supervised release in order to foster the reformation and rehabilitation of the offender

while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People

v. Urke (2011) 197 Cal.App.4th 766, 774.) Thus, the imposition of a particular condition

of probation is subject to review for abuse of that discretion. “As with any exercise of

discretion, the court violates this standard when it imposes a condition of probation that is

arbitrary, capricious or exceeds the bounds of reason under the circumstances.

[Citation.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 702.) 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.) We agree with the parties that the failure to object below that a

condition of probation is unconstitutionally overbroad does not forfeit review of the issue

on appeal, as it is a pure issue of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 888-

889; People v. Welch (1993) 5 Cal.4th 228, 235.)



                                             4
       Defendant contends that the portions of the condition requiring him to “ ‘reside at

a residence approved by the probation officer’ ” and “ ‘not move without the approval of

his probation officer’ ” are overbroad as it restricts his right to travel and to freely

associate, and to live, with law abiding individuals. He believes that the residency

condition must be stricken since “it cannot be narrowly tailored to do no more than

further the state’s interest in fostering his rehabilitation.” He primarily relies on People v.

Bauer (1989) 211 Cal.App.3d 937 (Bauer).

       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.”3 (Bauer, supra,

211 Cal.App.3d at p. 942, italics in original.) “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.” ’ ” (People v. O’Neil (2008) 165 Cal.App.4th

1351, 1355 (O’Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 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

       3  We focus only on the constitutionality of the condition, not whether it is
reasonable as applied to defendant. (See People v. Lent (1975) 15 Cal.3d 481, 486 [test
for reasonableness of probation conditions].) By failing to object below, defendant has
forfeited all claims except a challenge “based on the ground the condition is vague or
overbroad and thus facially unconstitutional.” (In re Sheena K., supra, 40 Cal.4th at
p. 878.)



                                               5
rehabilitation . . . .” ’ ” (Bauer, supra, 211 Cal.App.3d at p. 942, quoting In re White

(1979) 97 Cal.App.3d 141, 146 (White).) Moreover, 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, quoting

In re 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

necessarily the same as what is constitutional in an assault case. The difficulties of the

probation department and the probationer will be quite different in cases where the

probationer may be fighting addiction than they will be in other cases. This broad



                                                6
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.

       Here, the offenses involve an assault and criminal threats. In Bauer, the defendant

was convicted of false imprisonment and assault. As a probation condition, the trial court

required the defendant to “obtain his probation officer’s approval of his residence . . . .”

(Bauer, supra, 211 Cal.App.3d at p. 940.) The Bauer court held this condition failed the

requirements for probation conditions, as it was not related to the defendant’s crime and

was not related to future criminality. (Id. at p. 944.) The Bauer court further concluded

the restriction was unconstitutionally overbroad, explaining “[t]he condition is 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,” and gave the

probation officer broad power over the defendant’s living situation. (Id. at pp. 944-945.)

       Bauer has been accepted since it was decided nearly 25 years ago, and has been

applied in analyzing other probation conditions. For example, in O’Neil, supra, 165

Cal.App.4th 1351 (a case involving drug sales but not usage), the appellate court found a

probation condition prohibiting the probationer from associating with persons not

approved by his probation officer to be unconstitutionally overbroad. (Id. at p. 1357-

1358.) Relying on Bauer, the court explained the probation condition placed no limits or

guidelines on the probation officer’s discretion. Thus, “[w]ithout a meaningful standard,



                                              7
the order is too broad and it is not saved by permitting the probation department to

provide the necessary specificity.” (Ibid.)

       The probation condition here suffers from the same infirmity as the one in Bauer.

It puts no limits on the probation officer’s discretion. Probationer’s residence could be

disapproved for any reason, including inconvenience. Nothing about the nature of the

charges suggests a need for such unfettered oversight, so we cannot approve this broad

restriction. Further, there is nothing in the record referring to defendant’s living situation.

Defendant was convicted of simple assault and criminal threats. There is no indication

that his home life contributed to these offenses. Thus, the condition was not in any way

related to defendant’s offenses. 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 approval was not

related to defendant’s crimes and living situation in this case.

       Furthermore, the condition is not reasonably related to defendant’s future

criminality. There is no indication that he was living or planned to live with individuals

that might impede his rehabilitation. It is mere speculation to believe he might move to

an undesirable location or live in a residence or community which “might be ‘a source of

temptation to continue to pursue a criminal lifestyle,’ ” as the People assert. Imposing

the residence approval portion of the condition was unreasonable.




                                              8
       The People contend that Bauer does not control here because that case “involved

an objection to the residence-approval condition as it applied to the defendant [citation],

whereas [defendant here] raises a facial constitutional challenge.” However, the court in

Bauer also held that the condition impinged on the right to travel and freedom of

association. (Bauer, supra, 211 Cal.App.3d at p. 944.) The People here claim that the

condition is “narrowly tailored to achieve the state’s compelling interest in

rehabilitation.” However, as the court in Bauer held, “[r]ather than being narrowly

tailored to interfere as little as possible with [the rights to travel and freedom of

association], the restriction is extremely broad.” (Ibid.)

       As the parties correctly observe, the constitutionality of probation conditions

requiring residence approval is presently before our Supreme Court in People v.

Schaeffer (2012) 208 Cal.App.4th 1 [Fourth Dist., Div. Two], review granted October 31,

2012, S205260. We distinguish this case from Schaeffer. In that case, we allowed a

similar probation condition to stand based on the defendant’s convictions for possessing

methamphetamine and being under the influence of a controlled substance. This is

because the defendant’s residence could negatively impact her rehabilitation should she

choose to live in a residence where drugs are used or sold. Here, defendant’s residence

would have no such foreseeable effect on his rehabilitation from assaulting and

threatening Doe.

       In view of the foregoing, we conclude that the challenged condition should be

modified. Because we find the residence approval portion of the condition to be



                                               9
overbroad, we will strike that portion of it. We do see the benefit of the probation officer

being informed if defendant’s residence has changed. We have the power to modify a

probation condition on appeal. (See In re Sheena K., supra, 40 Cal.4th at p. 892.) Thus,

the challenged condition, condition No. 8, should be modified to read as follows: “Keep

the probation officer informed of your place of residence and give written notice to the

probation officer twenty-four (24) hours prior to a change in residence.”

       B.     Correction of Court’s Minute Order

       Defendant also contends that the trial court’s minute order of the September 6,

2013 sentencing hearing should be corrected to reflect the correct probation revocation

restitution fine (§ 1202.44). The People correctly concede that the minute order should

be so corrected.

       At the time of the September 6, 2013 sentencing hearing, the trial court imposed a

total restitution fine in the amount of $420: $140 for the simple misdemeanor assault

offense in count 1 and $280 for the felony criminal threats offense in count 3. The trial

court, however, stayed the punishment for the simple misdemeanor assault offense,

including the $140 fine, pursuant to section 654. The court’s minute order of the

September 6, 2013 sentencing hearing correctly reflects the imposition of the total fine of

$420, and also correctly notes that a portion of that fine ($140) was stayed pursuant to

section 654. However, the minute order shows the imposition of a probation revocation

fine of $420, and there is no corresponding entry indicating that any portion of the

probation revocation fine was stayed.



                                             10
       The trial court must impose the probation revocation restitution fine at the same

time and in the same amount as the restitution fine. (§ 1202.44; People v. Guiffre (2008)

167 Cal.App.4th 430, 434.) Additionally, statutory fines constitute punishment within

the meaning of the section 654 ban on multiple punishment; and because the probation

revocation fine is considered punishment, and the punishment on the simple assault

conviction was stayed pursuant to section 654, the fine on that offense must also be

stayed. (§ 15, subd. 3; People v. Hanson (2000) 23 Cal.4th 355, 361-363; People v.

Tarris (2009) 180 Cal.App.4th 612, 628.) When the record of the court’s oral

pronouncement of judgment regarding sentencing conflicts with the court clerk’s minute

order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384,

fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral

pronouncement; where discrepancy exists between oral judgment and that entered in the

minutes, clerical error in minutes is presumed].) Accordingly, we order the court’s

minute order of the September 6, 2013 sentencing hearing corrected to show that the

probation revocation fine pursuant to section 1202.44 is $280, reflecting imposition of a

total probation revocation fine of $420 with $140 for the misdemeanor assault conviction

in count 1 stayed pursuant to section 654.




                                             11
                                             III

                                      DISPOSITION

       The trial court is ordered to modify probation condition No. 8 to read: “Keep the

probation officer informed of your place of residence and give written notice to the

probation officer twenty-four (24) hours prior to a change in residence.”

       Furthermore, the trial court clerk is directed to prepare an amended sentencing

minute order clearly reflecting imposition of a total probation revocation fine pursuant to

section 1202.44 as $420 with $140 for the misdemeanor assault conviction in count 1

stayed pursuant to section 654.

       We also direct the trial court to forward a copy of the amended sentencing minute

order to local custody officials.

       In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                         P. J.
We concur:



McKINSTER
                           J.



CODRINGTON
                           J.




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