Filed 12/10/14 P. v. Hill CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Siskiyou)


THE PEOPLE,
                                                                                             C075607
                   Plaintiff and Respondent,
                                                                                   (Super. Ct. No.
         v.                                                                    MCYKCRF-120001869-002)

KRISTEN MARIE HILL,

                   Defendant and Appellant.


THE PEOPLE,                                                                                  C075607

                   Plaintiff and Respondent,                                       (Super. Ct. No.
                                                                               MCYKCRF12-0001869-003)
         v.

PAUL ZACHARY BLEDSOE,

                   Defendant and Appellant.




         Defendants Kristen Marie Hill and Paul Zachary Bledsoe entered pleas of no
contest to assault by means of force likely to produce great bodily injury and failure to




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appear and admitted on-bail enhancements. The trial court suspended imposition of
sentence and granted probation for both defendants.
       Defendants appeal. They challenge a condition of probation which grants the
probation officer the right to approve where they live and work. They also challenge the
stayed portion of a restitution fine. We will modify the probation orders, striking the
challenged condition, and remand to the trial court to impose an authorized restitution
fine. In all other respects, we will affirm the orders of probation.
                                          FACTS
       After a night of drinking and partying on October 15, 2012, defendants were
involved in the beating of the victim. The victim sustained serious injuries. Defendants
were released on bail after their arrests and failed to appear at a court hearing. Bench
warrants were issued and defendants were located in Michigan.
                                       DISCUSSION
                                              I
       Prior to sentencing, the probation officer recommended probation for defendants
subject to certain terms and conditions including probation condition number 5 which
provides: “That [her/his] place of employment and residence must meet with the
approval of the Probation Officer.” The court so ordered at sentencing.
       Defendants contend that the condition is constitutionally overbroad, violating their
rights to travel, association, and employment.1 The People concede that condition
number 5 is constitutionally overbroad. Based on People v. Bauer (1989)
211 Cal.App.3d 937, 944 (Bauer), People v. Burden (1988) 205 Cal.App.3d 1277, 1279-
1281, and People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359, we agree.



1 Defendant Bledsoe also contends the probation condition is unconstitutional as applied
but since he did not object on this ground at sentencing, this portion of his challenge to
the condition is forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.)

                                              2
       Bauer struck a probation condition which required the defendant to obtain the
probation officer’s approval of his place of residence. (Bauer, supra, 211 Cal.App.3d at
pp. 943-945.) Bauer explained, “The 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. The condition gives the probation officer the
discretionary power, for example, to forbid appellant from living with or near his parents-
-that is, the power to banish him. It has frequently been held that a sentencing court does
not have this power.” (Id. at p. 944.)
       Here, condition number 5 unconstitutionally interferes with defendants’ rights to
travel, association, and employment, granting the probation officer unfettered discretion
concerning defendants’ living and working situations.
       Defendants argue that condition number 5 must be stricken because other
conditions were imposed to achieve the same results of rehabilitation and protection of
society such as condition numbers 3 and 10. The People agree that condition number 5
should be stricken since there are other terms and conditions which “are narrowly drawn
so as to correlate more closely with the probation department’s need to monitor Hill’s and
Bledsoe’s movements.”
       Condition number 3 provides “[t]hat [she/he] allows the Probation Officer or an
agent of the probation department to visit [her/his] home or place of employment.”
Condition number 10 provides, “Inform [her/his] probation officer or an agent of the
probation department and collections within 24 hours of any change in residence or living
arrangements.”




                                             3
       We will strike condition number 5. There are other conditions (condition numbers
3 and 10) which achieve the same results of rehabilitation and protecting society.2
                                             II
       As the probation officer recommended, the trial court imposed condition number
25 which provides that defendants shall pay a restitution fine of $2,240, all but $280 of
which is stayed pending successful completion of probation, as well as a $2,240
probation revocation restitution fine (probation fine).
       Defendants contend that the trial court erred in imposing the restitution fine and
that the amount for the restitution fine and the probation fine must each be reduced on
appeal to $280. Relying upon People v. Mustafaa (1994) 22 Cal.App.4th 1305
(Mustafaa), defendants argue that the trial court imposed “a lawful aggregate sentence by
ordering [defendants] to pay a restitution fine in the amount of $280 because this amount
satisfies the statutory requirement for the minimum amount of restitution fine that must
be imposed” but “fashioned the sentence in an unlawful manner by ordering a total
restitution fine of $2,240 and staying all but $280.”
       The People argue that the trial court had no authority to stay a portion of the
restitution fine but disagree that the amount should be reduced to $280, arguing the
amount should remain at $2,240.
       Defendants’ reliance upon Mustafaa is misplaced. In Mustafaa, the defendant
entered a plea of guilty to three counts of robbery with enhancements for personal
arming. (Mustafaa, supra, 22 Cal.App.4th at pp. 1309, 1311.) The trial court erred in
fashioning a sentence which separated the felony from the enhancement and imposed a




2 As defendants and the People acknowledge, the issue of a probation officer’s approval
of the defendant’s residence as a condition of probation is presently pending review
before the California Supreme Court. (People v. Schaeffer (2012) 208 Cal.App.4th 1,
review granted Oct. 31, 2012, S205260.)

                                             4
concurrent term for the felony and a consecutive term for the enhancement. (Id. at p.
1311.) Mustafaa concluded the trial court imposed a “legal aggregate sentence [but]
fashion[ed] it in an unauthorized manner.” (Id. at pp. 1311-1312.) Thus, Mustafaa found
that double jeopardy prevented a greater aggregate term on remand. (Ibid.)
         We disagree that the trial court imposed a “lawful aggregate” restitution fine but
unlawfully “fashioned” the fine. There was one restitution fine unlike the sentence in
Mustafaa which was comprised of several convictions and enhancements. We conclude
that the trial court imposed an unauthorized restitution fine by staying a portion of the
restitution fine. An unauthorized sentence (restitution fine) is one that “could not
lawfully be imposed under any circumstance in the particular case.” (People v. Scott
(1994) 9 Cal.4th 331, 354.) When defendants committed their offenses, the trial court
had no authority to stay a portion of the restitution fine. Penal Code section 1202.4,
subdivision (m) provides that the court shall make the restitution fine a condition of
probation and makes no mention of any authority to stay all or a portion. Staying all or a
portion of a restitution fine was previously authorized but has not been authorized for
years. (Stats. 1994, ch. 1106, § 3, p. 6550; Stats. 1994, 1st Ex. Sess. 1994, ch. 46, § 3, p.
8755.)
         We disagree that we must reduce the amount to $280. In view of the trial court’s
order that defendants pay a probation fine of $2,240, it is unclear whether the trial court
would only impose $280 as the restitution fine.
         We will remand for the trial court to impose an authorized restitution fine and a
corresponding probation fine in the same amount for both defendants. Contrary to
defendants’ assertion, remand for this purpose does not violate their rights to due process
and is not barred by double jeopardy because the trial court imposed an unauthorized
sentence (restitution fine). (People v. Serrato (1973) 9 Cal.3d 753, 764-765, disapproved
on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)



                                               5
                                      DISPOSITION
       The orders of probation are modified, striking condition number 5. The matters
are remanded to the trial court to impose an authorized restitution fine with a
corresponding probation fine in the same amount. In all other respects, the orders of
probation are affirmed.

                                             BLEASE                    , J.


We concur:


         RAYE                      , P. J.


         BUTZ                      , J.




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