Filed 3/4/13 P. v. Esparza CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062190

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD239782)

GUADALUPE ESPARZA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.

Eyherabide, Judge. Affirmed as modified with directions.



         As part of a plea agreement, Guadalupe Esparza entered a guilty plea to one count

of felony theft (Pen. Code,1 § 487, subd. (a)). The remaining counts and allegations were

dismissed and the parties agreed the prosecutor would not oppose probation with 240

days of custody, to run concurrently with a sentence in a separate case.


1        All further statutory references are to the Penal Code unless otherwise specified.
       At the time of sentencing, Esparza objected to two conditions of probation as

having no nexus to the current offense. Those conditions were 10.g. which provided:

"Obtain P.O. approval of residence [and] employment"; and 12.g. which provided: "Do

not remain in any building, vehicle or in the presence of any person where you know a

firearm, deadly weapon, or ammunition exists."

       The trial court overruled Esparza's objections and imposed the contested terms as

conditions of probation.

       Esparza appeals contending the trial court erred in imposing conditions 10.g. and

12.g. In their briefing, the parties agree the language of condition 12.g. is overbroad.

The respondent has proposed the following modification, with which Esparza agrees:

"Esparza is prohibited from being in the presence of those he knows illegally possess

firearms, deadly weapons or ammunition." We agree with the parties that condition 12.g.

as imposed was overbroad and will order the agreed upon modification on remand.

       With regard to condition 10.g., we find the court erred in imposing that condition

in addition to uncontested conditions, which require Esparza to keep the probation officer

informed of his residence and employment. We will find no basis in the offense or in any

specific need for rehabilitation of Esparza to justify this condition, which limits otherwise

lawful activity. Accordingly, we will direct the trial court to modify the probation order

by striking condition 10.g. and by modifying condition 12.g. Otherwise we will affirm

the judgment.




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                                 STATEMENT OF FACTS

       Since this is an appeal following a guilty plea to one count we see no purpose in

setting forth the facts from the preliminary hearing transcript. The factual basis for the

plea was expressed in the following exchange:

          "THE COURT: It states here by way of a factual basis of your plea
          that you unlawfully took the property of NASSCO without
          permission, and it was in excess of $950; is that what you did in this
          case, sir?

          "THE DEFENDANT: Yes."

                                       DISCUSSION

       Sentencing courts have broad discretion in imposing conditions of probation

meant to protect the public and rehabilitate the defendant. (People v. Carbajal (1995) 10

Cal.4th 1114, 1120.) A defendant may refuse probation if he believes the conditions are

too harsh. (In re Bushman (1970) 1 Cal.3d 767, 776, overruled on another ground in

People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) Accepting probation, however, does not

prevent a defendant from then challenging conditions of that probation on appeal. (In re

Bushman, supra, at p. 776.)

       We review probation conditions for abuse of discretion. (People v. Carbajal,

supra, 10 Cal.4th at p. 1121.) A probation 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 . . . ." ' " (People v. Olguin (2008) 45 Cal.4th 375, 379,

quoting People v. Lent, supra, 15 Cal.3d 481, 486.) All three parts of this test must be


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satisfied before a reviewing court will invalidate a condition of probation. (Olguin,

supra, at p. 379.)

       In People v. Bauer (1989) 211 Cal.App.3d 937, the defendant was convicted of

false imprisonment and assault and was placed on probation. One probation condition

was that he "obtain his probation officer's approval of his residence . . . ." (Id. at p. 940.)

The defendant argued that the condition was not related to his crime or his rehabilitation

and unreasonably infringed on his constitutional rights. (Ibid.) The Bauer court agreed,

holding that nothing in the record indicated the defendant's home life contributed to his

crimes or was reasonably related to his future criminality, and his residence was not in

itself criminal. (Id. at p. 944.) The court noted that the condition was especially

disturbing because it infringed on the defendant's constitutional rights of travel and

freedom of association and gave the probation officer too much discretionary power over

the defendant's living situation. (Ibid.)

       In People v. Burden (1988) 205 Cal.App.3d 1277, the defendant pleaded guilty to

writing checks with insufficient funds and was placed on probation with several

conditions, including prohibiting him from working in a sales position. (Id. at p. 1279.)

The Burden court noted that a sales position might give the defendant the opportunity to

misrepresent his financial status or write checks while claiming that he would soon

receive a large commission. (Id. at p. 1280.) However, because there was nothing in the

record to indicate the defendant had used those tactics in the past, the court held the




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restriction to the defendant's constitutional right to employment was overbroad and

should be stricken. (Id. at pp. 1280-1281.)

       Similarly here, the record does not support an inference that Esparza's choice of

residence or employment will influence his future criminality. At the sentencing hearing

defense counsel objected to these conditions. In response the probation officer simply

noted they were "standard." The prosecutor made no comments on the challenged

conditions and simply "submitted" the matter.

       The court thereafter imposed the conditions without any comment. Thus, nothing

in the record directly addresses the relevance of the contested conditions to the purpose of

Esparza's performance on probation.

       Respondent argues the residence and employment conditions are related to

Esparza's rehabilitation. Specifically it is argued that since Esparza was homeless at the

time of the theft offenses and claimed he committed the crimes because he needed

money, it is therefore reasonable to require probation officer approval of both residence

and employment. Nothing in the trial court record or in the briefing explains why prior

probation officer approval should be required or why it would be beneficial. The

argument thus seems predicated on the assumption that since Esparza committed theft

because he needed money and was homeless, his future selection of employment or

residence might pose some kind of risk. In our view that is a generic argument that

would presumably cover all theft convictions because they are quite often motivated by a

desire or need for money.



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       We think the argument in favor of such conditions is speculative. Being homeless

or broke does not imply some potential problem in the person's future choice of where to

live, or what kind of job the person may be able to get. Although there is no reason to

believe the probation officer would abuse the authority to deny Esparza permission to

move or change employment, that alone does not permit the court to unnecessarily limit

Esparza's rights. (People v. Bauer, supra, 211 Cal.App.3d at p. 944.)

       While Esparza's probation officer has an interest in knowing the location of

Esparza's residence and place of employment, the unchallenged requirement that Esparza

notify his probation officer within 72 hours of any change of address or employment

satisfies that interest. Therefore the requirement that Esparza obtain probation officer

approval before changing his residence or employment is, in this case, overbroad. The

requirement improperly impedes Esparza's right to travel, his freedom of association and

his right to employment. It also gives too much discretion to the probation officer. For

these reasons, and because the restriction applies to conduct that is not criminal, we strike

the probation condition requiring Esparza to obtain approval from his probation officer

before changing his residence or employment.

                                      DISPOSITION

       Probation condition 10.g. is stricken. The trial court is directed to modify

condition 12.g. consistent with the views expressed in this opinion. In all other respects




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the judgment is affirmed. The superior court is directed to amend the probation order in

accordance with the views expressed in this opinion.




                                                                HUFFMAN, Acting P. J.

WE CONCUR:



                       NARES, J.


                     HALLER, J.




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