Filed 8/4/16




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S215914
           v.                        )
                                     )                         Ct.App. 6 H039330
JEFFREY MICHAEL MORAN,               )
                                     )                         Santa Clara County
           Defendant and Appellant.  )                       Super. Ct. No. C1243366
____________________________________)


        We granted review in this case to consider the Court of Appeal’s ruling that
a probation condition prohibiting defendant Moran from entering the premises or
adjacent parking lot of any Home Depot store in California violates his
constitutional right to travel. Because we find no such constitutional violation, we
reverse the judgment of the Court of Appeal.
                                       I. FACTS
        Defendant Moran entered a Home Depot store in San Jose, placed items
valued at $128 in his backpack, and left the store without paying. Confronted by
store security, he admitted the theft and explained that he had hoped to resell the
stolen items. He later pleaded no contest to second degree burglary and having
served a prior prison term for vehicle theft (Pen. Code, §§ 459, 667.5, subd. (b)),1
in exchange for an indicated sentence of probation on conditions including a year


1       All further statutory references are to this code.



                                           1
in jail and, at issue here, the condition that he not “go on the premises, parking lot
adjacent or any store of Home Depot in the State of California.” He did not object
to these conditions.
       On appeal, the Court of Appeal found that “[a]lthough . . . there is an
obvious nexus between appellant’s crime and the probation condition as it relates
to the specific Home Depot store from which he took the merchandise, . . . the
condition should contain an exception that would allow [him] to be on Home
Depot property on legitimate business . . . .” According to the appellate court,
because the condition lacked this exception, it was unconstitutionally overbroad.
That court also suggested the condition violated defendant’s constitutional right to
travel, noting that the “right to travel ‘is simply elementary in a free society.
Freedom of movement is basic in our scheme of values.’ ” The Court of Appeal
struck the challenged probation condition and, as so modified, affirmed the
judgment. We granted the People’s petition for review.
                                   II. DISCUSSION
       The People argue the state may place a criminal offender on probation,
subject to a condition that he or she stay away from the property of the victim,
without contravening the constitutionally guaranteed right to travel. Consistent
with established law,2 we first address whether the probation condition was
permissible under state law before turning to resolve any potential federal
constitutional issue posed in the case.


2       Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 128–129;
Santa Clara County Local Transportation Authority v. Guardino (1995) 11
Cal.4th 220, 230–231; see also Lyng v. Northwest Indian Cemetery Prot. Assn.
(1988) 485 U.S. 439, 445 (“A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional questions in advance of
the necessity of deciding them.”).



                                           2
       A. Statutory Basis for the Condition
       Following a defendant’s conviction of a crime, the sentencing court may
choose among a variety of dispositional options. One option is to release the
offender on probation. “Probation is generally reserved for convicted criminals
whose conditional release into society poses minimal risk to public safety and
promotes rehabilitation.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120
(Carbajal).) A grant of probation is “qualitatively different from such traditional
forms of punishment as fines or imprisonment. Probation is neither ‘punishment’
(see § 15) nor a criminal ‘judgment’ (see § 1445). Instead, courts deem probation
an act of clemency in lieu of punishment [citation], and its primary purpose is
rehabilitative in nature [citation].” (People v. Howard (1997) 16 Cal.4th 1081,
1092.) Accordingly, we have explained that a grant of probation is an act of grace
or clemency, and an offender has no right or privilege to be granted such release.
(People v. Anderson (2010) 50 Cal.4th 19, 32.) Stated differently, “[p]robation is
not a right, but a privilege.” (People v. Bravo (1987) 43 Cal.3d 600, 608.)
       Although the Legislature has directed in some circumstances that probation
be unavailable3 or limited,4 in most circumstances the trial court has broad
discretion to choose probation when sentencing a criminal offender. A reviewing
court will defer to such choice absent a manifest abuse of that discretion. (People



3       See, e.g., section 667, subdivision (c)(2) (probation is prohibited in Three
Strikes cases); section 667.61, subdivision (h) (probation is prohibited in One
Strike sex offense cases); section 12022.53, subdivision (g) (probation is
prohibited for crimes committed with a firearm within the meaning of the “10-20-
life” enhancement).

4       See section 186.22, subdivision (c) (grant of probation in a case involving a
crime or enhancement involving street gangs requires a minimum of 180 days in
jail as a condition of probation).



                                          3
v. Franco (1986) 181 Cal.App.3d 342, 348; People v. Goodson (1978) 80
Cal.App.3d 290, 295.)
       When an offender chooses probation, thereby avoiding incarceration, state
law authorizes the sentencing court to impose conditions on such release that are
“fitting and proper to the end that justice may be done, that amends may be made
to society for the breach of the law, for any injury done to any person resulting
from that breach, and . . . for the reformation and rehabilitation of the
probationer.” (§ 1203.1, subd. (j).) Accordingly, we have recognized a sentencing
court has “broad discretion to impose conditions to foster rehabilitation and to
protect public safety pursuant to Penal Code section 1203.1.” (Carbajal, supra, 10
Cal.4th at p. 1120.) But such discretion is not unlimited: “[A] condition of
probation must serve a purpose specified in the statute,” and conditions regulating
noncriminal conduct must be “ ‘reasonably related to the crime of which the
defendant was convicted or to future criminality.’ ” (Id. at p. 1121.) “If the
defendant finds the conditions of probation more onerous than the sentence he
would otherwise face, he may refuse probation” (People v. Anderson, supra, 50
Cal.4th at p. 32) and simply “choose to serve the sentence” (People v. Olguin
(2008) 45 Cal.4th 375, 379 (Olguin)).5



5       Irrespective of whether a defendant accepts or declines the terms of
probation, he or she may, on appeal following an objection in the trial court,
challenge a condition as unreasonable or unconstitutional. Even absent an
objection, a defendant may, on appeal, argue a condition is unconstitutional if the
claim presents a “ ‘ “pure question[] of law that can be resolved without reference
to the particular sentencing record developed in the trial court.” ’ ” (In re Sheena
K. (2007) 40 Cal.4th 875, 889, quoting People v. Welch (1993) 5 Cal.4th 228,
235.) In the usual case, however, probationers are well advised to object at
sentencing to conditions they find improper or unjustified, thereby ensuring they
have preserved the issue for appeal.



                                           4
       On appeal, “[w]e review conditions of probation for abuse of discretion.”
(Olguin, supra, 45 Cal.4th at p. 379.) That is, a reviewing court will disturb the
trial court’s decision to impose a particular condition of probation only if, under
all the circumstances, that choice is arbitrary and capricious and is wholly
unreasonable. (Carbajal, supra, 10 Cal.4th at p. 1121.)
       As noted, ante, the types of conditions a court may impose on a probationer
are not unlimited. We first recognized the limits on probation conditions in the
seminal case of People v. Lent (1975) 15 Cal.3d 481 (Lent).6 “Generally, ‘[a]
condition of probation will not be held invalid unless 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 . . . .” [Citation.]’ [Citation.] This test is
conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term. [Citations.] As such, even if a condition of probation
has no relationship to the crime of which a defendant was convicted and involves
conduct that is not itself criminal, the condition is valid as long as the condition is
reasonably related to preventing future criminality.” (Olguin, supra, 45 Cal.4th at
pp. 379–380, quoting Lent, supra, at p. 486.)
       Applying this test, we conclude the trial court did not abuse its discretion
under state law when it imposed the Home Depot “stay away” condition on
defendant’s probation. Indeed, the condition fails Lent’s first factor for invalidity:
Because defendant stole from a Home Depot store, the condition that he stay away
from all such stores is reasonably related to his crime. He was not, after all,


6     Lent’s subsidiary holding concerning the use of misdemeanors for
impeachment was superseded by Proposition 8 in 1982. (See People v. Wheeler
(1992) 4 Cal.4th 284, 290–291.)



                                            5
prohibited from entering all retail establishments nor even all home improvement,
hardware, or big box stores. The condition simply prevented him from entering
the stores (and adjacent parking lots) of the company he victimized. As the test is
one of reasonableness and deference to the trial court’s exercise of discretion, we
find sufficient grounds to uphold the trial court’s choice in this regard.
       Were more support needed for our conclusion, we observe that the
condition also fails Lent’s third factor for invalidity, because prohibiting defendant
from entering Home Depot stores is reasonably directed at curbing his future
criminality by preventing him from returning to the scene of his past transgression
and thus helping him avoid any temptation of repeating his socially undesirable
behavior. (See § 1203.1, subd. (j)) [probation conditions should be aimed at “the
reformation and rehabilitation of the probationer”] Lent, supra, 15 Cal.3d at
p. 486.) Sentencing courts often condition a grant of probation on the offender’s
agreement to avoid future contact with his or her victim. (See, e.g., People v.
Armas (2011) 191 Cal.App.4th 1173, 1176, fn. 2 [defendant ordered to stay away
from his victim]; People v. Hall (1990) 218 Cal.App.3d 1102, 1104, fn. 2
[defendant ordered to stay 100 yards from victim’s residence].) Indeed, such so-
called stay-away orders are common in domestic violence cases. (See § 1203.097,
subd. (a)(2) [authorizing protective orders that may include stay away
conditions].)
       Defendant asserts Home Depot has 232 stores in California (including 14
such stores within 20 miles of his home ZIP code) and argues that when
considered with those stores’ respective parking lots, the stay-away probation
condition sweeps much too broadly.7 But that defendant’s crime was confined to

7      As noted, defendant did not object to the condition at the time of
sentencing. As a rule, failure to object to a probation condition in the trial court on
                                                          (Footnote continued on next page.)


                                           6
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. For
example, in Carbajal, supra, 10 Cal.4th 1114, this court upheld a condition of
probation requiring an offender to pay the victim restitution notwithstanding the
victim’s losses (from damage to his parked car) were not technically caused by
defendant’s actual crime (felony hit and run). (Id. at p. 1124.) And in People v.
Lopez (1998) 66 Cal.App.4th 615, the Court of Appeal upheld a condition of the
defendant’s probation that he avoid gang activities, known gang symbols, and
persons known to be gang members, even though his crime of unlawfully taking or
driving a vehicle had not been shown to have been specifically gang related. The
Court of Appeal properly upheld the condition because the defendant was an
admitted gang member with tattoos identifying him as allied with the Norteños.
        In defendant’s case, although the sentencing court could reasonably have
limited the geographic reach of the Home Depot stay-away condition, the
condition’s statewide scope does not render it improper within the meaning of
Lent, supra, 15 Cal.3d 481. Such wide scope recognizes the possibility that
defendant specifically targeted Home Depot because of a common feature of the



(Footnote continued from previous page.)

standard state law or reasonableness grounds forfeits the claim for appeal. (People
v. Welch, supra, 5 Cal.4th at p. 237.) We need not decide whether defendant
forfeited his state law based challenge because the Attorney General does not urge
forfeiture on this ground. But we observe that had he brought these facts to the
attention of the sentencing court, that court would have had the opportunity, if it
chose, to tailor the condition of probation by limiting the areas from which
defendant was prohibited. (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)



                                           7
company’s stores, such as their layout, the difficulty in monitoring such a large
facility, the easy access to multiple exits, companywide security methods or
practices, or some other factor that influenced defendant to choose Home Depot as
his victim rather than some other retail establishment.
       We thus conclude the probation condition prohibiting defendant from
entering the premises or adjacent parking lot of any Home Depot store in
California is reasonably related both to his crime and to helping him avoid future
criminality. Having found the trial court did not abuse its broad discretion under
state law by imposing such a condition on defendant’s probation, we turn to
whether that condition violates defendant’s constitutional rights.

       B. Constitutional Issues
       Defendant contends the condition of his probation that he stay away from
all Home Depot stores and adjacent parking lots violates his constitutional right to
travel. Although not explicitly guaranteed in the United States Constitution, “[t]he
right to travel, or right of migration, now is seen as an aspect of personal liberty
which, when united with the right to travel, requires ‘that all citizens be free to
travel throughout the length and breadth of our land uninhibited by statutes, rules,
or regulations which unreasonably burden or restrict this movement.’ ” (Tobe v.
City of Santa Ana (1995) 9 Cal.4th 1069, 1098, quoting Shapiro v. Thompson
(1969) 394 U.S. 618, 629.) This right also includes the right of intrastate travel,
which “has been recognized as a basic human right protected by article I, sections
7 and 24 of the California Constitution.” (Tobe, supra, at p. 1100.) Like all
constitutional rights, the right to travel is subject to limits: “Neither the United
States Supreme Court nor this court has ever held . . . that the incidental impact on
travel of a law having a purpose other than restriction of the right to travel, and




                                           8
which does not discriminate among classes of persons by penalizing the exercise
by some of the right to travel, is constitutionally impermissible.” (Ibid.)
       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. (See, e.g.,
Hayes v. Superior Court (1971) 6 Cal.3d 216, 220 [probation condition prohibited
defendant from leaving the state without permission]; People v. Vogel (1956) 46
Cal.2d 798, 806 (dis. opn. of Shenk, J.) [same]; People v. Cruz (2011) 197
Cal.App.4th 1306, 1309 [probation condition prohibited defendant from leaving
the county or state without permission].)
       Although criminal offenders placed on probation retain their constitutional
right to travel, reasonable and incidental restrictions on their movement are
permissible. People v. Petty (2013) 213 Cal.App.4th 1410 (Petty) is illustrative.
In that case, the defendant attended a party given by an acquaintance and, once
inside the home, stole jewelry worth $9,500 from the bedroom of his host’s
parents. After the defendant pleaded guilty to felony grand theft (§ 487, subd. (a)),
the trial court imposed a condition of probation “requiring defendant to stay at
least 50 yards from the victim’s residence and 100 yards from the victim and her
daughter.” (Petty, supra, at p. 1413.) On appeal, the appellate court rejected the
defendant’s argument the stay-away condition violated his constitutional right to
intrastate travel. (Id. at p. 1421.) After surveying past cases, the court explained
the condition occasioned “no substantial interference” with Petty’s constitutional
rights because “[t]he intrusion on [his right to] travel is minimal by comparison
and the forbidden zone is specifically linked to his past crime.” (Id. at p. 1422.)
       Other courts have rejected right-to-travel challenges to probation conditions
involving far more extensive geographic restrictions than in Petty. For example,

                                            9
in In re Antonio R. (2000) 78 Cal.App.4th 937, a juvenile offender whose legal
residence was in Orange County was granted probation on conditions including
that he not travel to Los Angeles County unless accompanied by a parent or with
his probation officer’s permission. On appeal, he challenged the condition on
grounds it violated his constitutional right to travel. (Id. at p. 940.) The appellate
court rejected the argument. The court explained that although “Los Angeles is a
large place” (id. at p. 942), the extensive geographic restriction was reasonably
related to the crime, as defendant was a member of a gang located in Los Angeles
County and had previously committed several gang-related offenses there (id. at
pp. 941–942). Accordingly, his constitutional rights were not “impermissibly
burdened,” because the stay-away order was “consistent with the rehabilitative
purpose of probation.” (Id. at p. 942.)
       Seeking to distinguish these decisions, defendant attempts to demonstrate
the Home Depot stay-away condition is an unreasonable, or unconstitutionally
overbroad, restriction on his right to travel. The 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.



                                          10
       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.
       We thus agree with the People the condition here is constitutionally
permissible and not an infringement on defendant’s constitutional right to travel.
This conclusion makes it unnecessary to decide whether such a constitutional
claim requires a heightened level of scrutiny. As we explained in Olguin, supra,
45 Cal.4th 375, “in the absence of a showing that the probation condition infringes
upon a constitutional right,” “this court simply reviews such a condition for abuse
of discretion, that is, for an indication that the condition is ‘arbitrary or capricious’
or otherwise exceeds the bounds of reason under the circumstances.” (Id. at
p. 384, italics added.) As previously indicated, the trial court here acted well
within its discretion in barring defendant from entering any Home Depot stores or
their adjacent parking lots as a condition of his probation.




                                           11
                                    CONCLUSION
       We conclude the condition of defendant’s probation that he stay out of all
Home Depot stores and their adjacent parking lots is reasonably related to his
crime and to preventing future criminality, rendering it permissible under state
law. (§ 1203.1, subd. (j); Lent, supra, 15 Cal.3d at p. 486.) We further conclude
that, given the minimal restriction the condition places on defendant’s movement,
the condition does not implicate his right to travel and is thus constitutionally
permissible. Accordingly, we reverse the judgment of the Court of Appeal and
remand the case for further proceedings consistent with this opinion.8
                                                  WERDEGAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




8      Shortly before we held oral argument in this case, the Attorney General
informed us that defendant Moran’s probation was terminated on July 18, 2013,
and that he served the balance of his sentence in local custody and was released
from jail on May 18, 2014. Although the question of the validity of the probation
condition that he not enter any Home Depot store or adjacent parking lot is moot,
“we have exercised our inherent power to retain this case for argument and
opinion, to settle an interpretive issue that has troubled the lower courts . . . .”
(People v. Anzalone (1999) 19 Cal.4th 1074, 1076.)



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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Moran
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 12/16/13, 6th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S215914
Date Filed: August 4, 2016
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Ron M. Del Pozzo

__________________________________________________________________________________

Counsel:

Joshua H. Schraer, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Laurence K. Sullivan, Jeffrey M. Laurence, Alisha M. Carlile and Leif M.
Dautch, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Joshua H. Schraer
5173 Waring Road, #247
San Diego, CA 92120
(619) 206-2892

Alisha M. Carlile
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5205
