Filed 9/28/16 P. v. Bouchafra CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A147078
v.
HAMZA BOUCHAFRA,                                                     (San Francisco County
                                                                     Super. Ct. No. SCN220555)
         Defendant and Appellant.


         Defendant Hamza Bouchafra was placed on probation after he pleaded guilty to
three misdemeanors related to his harassment of his ex-girlfriend. His probation officer
directed him to obtain authorization from the trial court before traveling out of the state
(the travel-authorization requirement), though this command was not expressly listed as a
probation condition. After Bouchafra traveled to Morocco to attend his father’s funeral
without permission, the court found that Bouchafra had violated his probation and
required him to submit to GPS monitoring.
         On appeal, Bouchafra claims that the travel-authorization requirement is not
binding because it was not imposed by the trial court and is therefore unconstitutionally
vague.1 We conclude that the requirement, while sufficiently specific, is not reasonably
related to any express probation condition and that the trial court therefore could not use
it as a basis upon which to find a probation violation. Accordingly, we reverse.

1
  In light of our disposition, we need not address Bouchafra’s additional claim that he
never agreed to the travel-authorization requirement and may have refused probation had
the requirement been one of the conditions.


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                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       In September 2013, Bouchafra pleaded guilty to one count of battery on a person
with whom he was in a dating relationship and two counts of annoying phone calls, all
misdemeanors.2 We do not discuss the facts supporting these convictions because they
are not relevant to the issues on appeal.
       The trial court sentenced Bouchafra to a total term of one year, 364 days in county
jail, comprised of a term of 364 days for the battery and consecutive sentences of six
months each for the annoying phone calls. The court suspended execution of the
sentence and placed Bouchafra on formal probation for three years. His probation
conditions included a warrantless search condition, an order to stay away from his ex-
girlfriend, and a requirement that he “comply with all the terms and conditions of the
Adult Probation Department’s individualized treatment and rehabilitation plan.”3
       No travel-authorization requirement was included in either the written or oral
probation conditions, but on multiple occasions the trial court told Bouchafra not to travel
outside the state without permission. The first time was in connection with a probation
violation. He admitted this violation in June 2015, after he disobeyed the stay-away
order. Probation was reinstated on the original terms and conditions, and he was ordered
to attend additional domestic violence classes. Bouchafra then asked for a delay of his
court progress-report date to accommodate his work commitment in Los Angeles. The
court told him, “You need to report to your probation officer and let your probation
officer know that you’re traveling out of the county down to L.A. for employment


2
  These charges were brought under Penal Code sections 243, subdivision (e)(1) (battery)
and 653m, subdivision (a) (annoying phone calls). As part of the plea, a number of
felony charges against Bouchafra were dismissed. All further statutory references are to
the Penal Code.
3
 This last probation condition was imposed orally but did not appear in the written
probation conditions. We conclude that the trial court’s oral pronouncement controls.
(See People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)


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purposes because they need to know at all times.” After Bouchafra responded, “Okay,”
the court said, “You need to get their permission so you can leave the county.” Later in
the hearing, the court again told him, “[Y]ou have to know that you cannot travel outside
of the county of San Francisco unless you have the permission of your probation officer,
and that probation officer needs to be informed of what your plans are, especially
business and employment, so that she or he can best schedule and enroll you or get you
started with respect to your additional [domestic violence] classes.”
       The second time Bouchafra was told not to travel outside the state without
permission was in August 2015. After a motion was filed to revoke probation based on
another incident involving his ex-girlfriend, the parties discussed future court dates.
Bouchafra’s trial counsel requested that the trial court schedule around Bouchafra’s
business trip to New York. The probation department representative stated that
Bouchafra had not informed his probation officer of the planned travel and indicated that
“if he is traveling, probation would need to know, and he would need to get permission as
well.” Bouchafra’s trial counsel indicated she was unsure whether the probation
department still had a policy requiring misdemeanor probationers to obtain permission
from their probation officers to travel. After stating that it did not know what
Bouchafra’s probation terms were or what the probation department’s travel policy was,
the court told Bouchafra, “I do think you should at least get in touch with your probation
officer to let her know about that. I’m not going to say right now whether it’s a violation
for you not to have told her.”
       The third time Bouchafra was told not to travel outside the state without
permission was a week later. At another hearing, a probation department representative
indicated that Bouchafra’s probation officer had not authorized the trip to New York and
“therefore [Bouchafra] was instructed to wait to speak to” the trial court. Noting that a
motion to revoke probation was pending, the representative indicated that the department
opposed Bouchafra’s request to leave the state for over two weeks. After Bouchafra was
able to compress his planned trip to nine days, the court permitted him “to travel to New
York for work purposes” despite the probation department’s continuing objection. The


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court told him, “You should check in with your probation officer before you leave,
immediately before, and the day after you get back.”
       At an October 2015 hearing, it came to light that Bouchafra never went to New
York and instead traveled to Morocco for his father’s funeral without first informing his
probation officer. Bouchafra’s probation officer noted the pending motion to revoke
probation and requested that Bouchafra be remanded into custody or, in the alternative,
be subject to GPS monitoring, because he had withheld information and disobeyed a
court order. The probation officer conceded that there were no explicit travel-related
restrictions in Bouchafra’s probation conditions but indicated that “it is a policy within
[the probation] department that if the defendant wants to travel, [he or she has] to come to
the court and the court has to grant permission to travel.”
       The probation department soon filed a motion to revoke probation based on
Bouchafra’s travel to Morocco. At the contested hearing on that motion later in October,
Bouchafra’s probation officer testified that she told Bouchafra, “based on [p]robation
policy,” not to travel out of the state without submitting his itinerary and obtaining a
permission slip and not to travel out of the country at all. The trial court held that
Bouchafra violated his probation, stating, “I don’t see how leaving the country without
permission while you’re on . . . supervised probation could be a non-violation of the
terms of your probation. [¶] . . . [I]t appears to me implicit in any grant of probation that
you’ve got to stay at least within the United States unless you’re given permission to
leave.” The court reinstated probation and ordered Bouchafra to submit to GPS
monitoring.
                                              II.
                                        DISCUSSION
       Bouchafra claims that the trial court erred by finding him in violation of probation
based upon his unapproved travel to Morocco because the “implicit” travel-authorization
requirement was unconstitutionally vague. Although we disagree that the requirement
was vague, we agree that it could not support a finding that Bouchafra violated probation




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because the court did not impose the requirement and the requirement was not reasonably
related to any term the court did impose.
       Under section 1203.2, subdivision (a), a trial court may revoke probation after
proper notice and a hearing “if the interests of justice so require and the court, in its
judgment, has reason to believe from the report of the probation . . . officer or otherwise
that the person has violated any of the conditions of his or her supervision.” The
determination whether to revoke probation involves (1) the factual question of whether
the probationer has violated a probation condition and (2) a discretionary determination
of whether the violation justifies revocation, modification, or continuance of probation.
(Black v. Romano (1985) 471 U.S. 606, 611; § 1203.2, subd. (b)(1).) Although we
generally review decisions on probation-revocation motions with “great deference” to the
trial court (People v. Urke (2011) 197 Cal.App.4th 766, 773), the issue here, whether the
trial court could validly find a probation violation based on Bouchafra’s failure to comply
with the travel-authorization requirement, is a primarily legal question that we review de
novo. (See People v. Stanphill (2009) 170 Cal.App.4th 61, 78.)
       Bouchafra contends that the travel-authorization requirement is unconstitutionally
vague because he had no notice that his failure to comply with it could result in a finding
that he violated probation. “[T]he underpinning of a vagueness challenge is the due
process concept of ‘fair warning,’ ” which encompasses the “ ‘concepts of preventing
arbitrary law enforcement and providing adequate notice to potential offenders.’ ” (In re
Sheena K. (2007) 40 Cal.4th 875, 890.) In contrast to the typical vagueness claim, which
focuses on the language of the challenged probation condition itself, Bouchafra’s claim is
not that the probation department’s policy was unclear or that he lacked notice of it.
Instead, his claim is that because the trial court did not order it as an express condition of
his probation, he lacked notice that it was binding.
       We agree that the travel-authorization requirement could not support a probation
violation. Consistent with the understanding of the parties and the trial court, there is no
basis to conclude that the requirement became a probation condition by virtue of the
court’s indications to Bouchafra at various hearings that he should get permission from


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his probation officer before traveling outside the county. Under section 1203.3, a court
has “authority at any time during the term of probation to revoke, modify, or change its
order of suspension or execution of sentence” (§ 1203.3, subd. (a)), and probation may be
modified even if a defendant has not violated his or her existing conditions of probation.
(People v. Cookson (1991) 54 Cal.3d 1091, 1100.) Before a new probation condition is
imposed, however, notice must be given and a hearing must be held. (§ 1203.3,
subd. (b)(1)-(2); see also § 1203.2, subds. (a) & (b).) Here, there is no indication that the
court ever gave notice that it intended to impose the requirement as a probation condition,
and there was never a hearing on the matter. Indeed, in finding that Bouchafra had
violated probation, the court itself characterized the requirement as an “implicit”
condition.
       Nor was the travel-authorization requirement a binding term of probation by virtue
of its being a directive of the probation department. It is true that “[p]robation officers
have wide discretion to enforce court-ordered conditions, and directives to the
probationer will not require prior court approval if they are reasonably related to
previously imposed terms.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373
(Pedro Q.); accord People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358.) 4 So long as a
directive of the probation department is a “derivative order that flowed logically from a
general term, such as an order to ‘violate no laws,’ ” as opposed to “an altogether new
term,” it can support a probation violation. (Pedro Q., at pp. 1371-1373.) As we shall
explain, the travel-authorization requirement is not reasonably related to any of
Bouchafra’s probation conditions under Pedro Q.
       In Pedro Q., supra, 209 Cal.App.3d 1368, the minor was subject to a probation
condition prohibiting him from associating with other members of his gang, and his
“probation officer . . . added several conditions to his probation,” including that the minor

4
  At our request, after oral argument the parties submitted supplemental briefing on
whether the travel-authorization requirement could support a probation violation on the
theory that it was reasonably related to other conditions of Bouchafra’s probation under
Pedro Q., supra, 209 Cal.App.3d 1368.


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stay away from an area that was the gang’s “operating territory.” (Id. at p. 1371.) The
minor’s probation was revoked after he was found in the prohibited area, although there
was no indication that he had been in contact with any other gang members. (Id. at
pp. 1371, 1373, fn. 3.) The Fourth District Court of Appeal determined that if the
prohibited-area directive was “truly ‘derivative’ ” of the nonassociation term, “then the
nonassociation term would support the revocation, but the facts belie such a contention.
[The minor’s] mere presence in the prohibited area did not establish a violation of any
court[-]imposed condition” and therefore did not constitute a probation violation. (Id. at
p. 1373, italics in original.) Thus, as Bouchafra persuasively argues, although the
prohibited-area directive was “ ‘reasonably related’ ” to the nonassociation term in the
sense that it enabled compliance with that term, under Pedro Q. a probation department’s
directive “must be one that is limited to clarifying or enforcing the trial court order such
that it would be impossible to violate the ‘derivative’ . . . directive without also violating
a court-ordered condition of probation.” (Quoting Pedro Q., at p. 1373.)
       Here, Bouchafra’s probation conditions do not include any “general term” from
which the travel-authorization requirement logically flows. (Pedro Q., supra,
209 Cal.App.3d at p. 1373.) The trial court imposed the condition that Bouchafra
“comply with all the terms and conditions of the Adult Probation Department’s
individualized treatment and rehabilitation plan,” but the record does not reveal any
specific requirements of such a plan, and we agree with Bouchafra that this condition
cannot be read to require compliance with any directive of the probation department. In
addition, although the travel-authorization requirement is reasonably related to the search
condition and the stay-away order in the sense that both conditions would be impossible
to enforce without knowledge of Bouchafra’s whereabouts, there is no evidence that
Bouchafra violated, or would have necessarily violated, these or any of his other
conditions by traveling to Morocco without authorization. In sum, although Bouchafra
had notice of the travel-authorization requirement and its dictates were reasonably clear,
it could not support a probation violation because the trial court did not impose it and,



                                               7
under Pedro Q., it was not reasonably related to any of the conditions the court did
impose.
       In reversing the trial court’s order, we express no view on whether Bouchafra’s
unauthorized travel to Morocco could have supported a modification of probation on the
theory that the travel constituted “[a] change in circumstances” not amounting to a
probation violation. (People v. Cookson, supra, 54 Cal.3d at pp. 1095, 1100; People v.
Medeiros (1994) 25 Cal.App.4th 1260, 1263.) Thus, nothing in this opinion should be
construed to prevent the trial court on remand from modifying Bouchafra’s probation to
require GPS monitoring based on such a change in circumstances.
                                            III.
                                       DISPOSITION
       The October 30, 2015 order modifying probation to require GPS monitoring is
reversed.




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                                    _________________________
                                    Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Dondero, J.




People v. Bouchafra (A147078)




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