DISCUSSION

Defendant argues the residence approval condition of his probation should be

stricken because it is not related to the crime or future criminality, is unconstitutionally

overbroad and impairs his rights to travel and freedom of association. The People argue

defendant forfeited his challenge to the residency condition because he failed to object at

the sentencing hearing and his claim does not fall under the narrow exception to the

forfeiture rule. In the alternative, the People assert the residency restrictions on

defendant’s constitutional rights to travel and association are not overbroad but are

reasonably related to the crimes defendant committed and to his future criminality.

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

requirements: “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

indicated that he did not have any questions about the terms and conditions of his

probation and that he had reviewed them.

Where a claim that a probation condition is facially overbroad and violates

fundamental constitutional rights is based on undisputed facts, it may be treated as a pure

question of law, which is not forfeited by failure to raise it in the trial court. (In re

Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); People v. Welch (1993) 5 Cal.4th

228, 235.) As the court in Sheena K. explained, the doctrine of forfeiture on appeal does

not apply to challenges to probation conditions based on “facial constitutional defects”

4 that do “not require scrutiny of individual facts and circumstances.” (Sheena K., at pp.

885-886.) However, the forfeiture doctrine does apply if the objection involves a

discretionary sentencing choice or unreasonable probation conditions “premised upon the

facts and circumstances of the individual case.” (Id. at pp. 885, 888.)

Here, defendant claims that even though he did not object to this condition on

constitutional grounds at sentencing, his overbreadth argument presents a facial

constitutional challenge with pure questions of law based on undisputed facts and, thus,

can be properly raised on appeal for the first time. We agree with defendant and reject

the People’s forfeiture argument.2

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.” (People v. Bauer (1989) 211

Cal.App.3d 937, 942 (Bauer).) “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,

2 We focus 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.” (Sheena K., supra, 40 Cal.4th at p. 878.)

5 ‘“reasonably related to the compelling state interest in reformation and

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

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

A probation condition cannot be overbroad. “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 a theft-related case or, as here, a case

involving domestic violence. This broad 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 are corporal injury to a domestic partner, simple battery and

misdemeanor false imprisonment. The appropriate inquiry therefore, is whether the

6 probation condition is reasonably related to the supervision of a person convicted of those

crimes. In that regard, we find Bauer instructive. 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 over 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 O’Neil court explained the probation condition placed no

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

standard, the order is too broad and it is not saved by permitting the probation department

to provide the necessary specificity.” (O’Neil, at p. 1358.)

7 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. The nature of the crimes does not

suggest a need for such unfettered oversight, so we cannot approve this broad restriction.

Further, there is nothing in the record to show that where defendant lived contributed to

the crimes. Although defendant was convicted of inflicting injury on the mother of his

child, with whom he had previously lived, and the assault took place in defendant’s

apartment, where defendant actually resided did not increase the opportunity or motive

for the attack. The same can be said for the battery on Rikki’s cousin—there is nothing

in the record to indicate that defendant living within walking distance of the grandmother

contributed to his decision or opportunity to commit the crime. Neither was there

anything criminal about where defendant resided. 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. As defendant argues, he is already subject to criminal protective orders

protecting Rikki and her cousin from contact with defendant. As discussed at sentencing,

defendant is to have no contact at all with the cousin, whether direct or indirect, and no

negative contact with Rikki. Presumably, the trial court anticipated that defendant and

Rikki would have to come into contact because they have a child together. For this

8 reason, imposing the residence approval portion of the condition was both unnecessary

and unreasonable.

As the People 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, 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 the crimes of violence he committed,

especially considering the criminal protective orders and the circumstance that defendant

and Rikki have a child together. Because defendant’s living situation has not been shown

to be reasonably related to future criminality and because there is no nexus between these

circumstances and the instant offenses, we conclude that the challenged condition should

be modified. 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 Sheena K., supra, 40 Cal.4th at p. 892.) Thus, the challenged probation condition

should be modified to read as follows: “Defendant shall keep the probation officer

informed of his place of residence and give written notice to the probation officer twenty-

four (24) hours prior to a change in residence.”

9

DISPOSITION

We modify the residence restriction condition of defendant’s probation to read as

follows: “Defendant shall keep the probation officer informed of his place of residence

and give written notice to the probation officer twenty-four (24) hours prior to a change

in residence.”

The judgment is affirmed as modified.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

McKINSTER J.

10