Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA056561, James R. Dabney, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Michael Hunt, was convicted for falsely reporting a bomb threat (Pen. Code, § 148.1). Sentenced to probation for three years, Hunt claims the trial court breached a plea bargain agreement and that there was sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
1. Circumstances of the offense.
Hunt pled no contest to a charge of falsely reporting a bomb threat. The facts giving rise to that charge are taken from the preliminary hearing testimony.
The Westminster Senior Center, at 1234 Pacific Avenue in Venice, is adjacent to Westminster Park, which contains a dog park and a recreation area. The Senior Center is the site of the Ocean Front Lottery. This lottery, held on alternate Saturdays, was established by the City of Los Angeles to regulate the street vendors who work along the Venice Boardwalk. The lottery has been controversial among the vendors, and it is not uncommon for the group gathering at the Senior Center to include both participants and protesters. Defendant Hunt was one of the regular protesters.
On May 28, 2005, Ryan Bernaldo, a Los Angeles park ranger, was working at the Senior Center. Part of Bernaldo’s job is to maintain order while the lottery is held. Around 8:00 a.m., he saw Hunt inside the Senior Center. After speaking to the park recreation director, Bernaldo asked Hunt to leave the premises. Hunt became irate and announced to the people gathered there, “You don’t have to be here. I have a court order to be here.” and “You don’t have to be part of this lottery. Leave.” Hunt was “standing in front of the hoppers where people put their permits in to participate in the lottery, [and he was physically] preventing them from putting their permits in.” Because Hunt would not leave, Bernaldo called the police.
Paulette Stanton, a police service representative for the City of Los Angeles, was working as a 911 operator on May 28, 2005. She testified that at 7:59 a.m., she took a call from a man who said he “needed a place cleared out, evacuated, because there was a crowd near the Dog Park and . . . someone was going to place a bomb.” The caller said his name was Michael. He also said “people were threatening his life, to blow him up specifically, and that’s why there was a bomb.”
Emery Newsom, a Los Angeles police officer, testified he was dispatched to the Westminster Senior Center on May 28, 2005, in response to a reported bomb threat. On the way there, he got another call informing him the park rangers at the Senior Center needed assistance in dealing with a disturbance. When Newsom arrived, at about 8:30 a.m., he saw Hunt arguing with the park recreation director and a police officer. Hunt was arrested and put into a patrol car. Newsom participated in searching the Senior Center, but no bomb was found. Newsom testified that during his eight months working as an officer at Venice Beach, he had seen Hunt on a daily basis and spoken to him more than a hundred times. Newsom testified he had seen Hunt “hit somebody, strike a vendor when he was upset with them, [and throw] a video camera.” Newsom listened to a tape of the 911 call and recognized Hunt’s voice. On the tape, Hunt told the 911 operator “the lottery was going [on] and it needed to stop and the people needed to be evacuated.”
Kristen Zalokar, a Los Angeles police officer, testified that on the day before the bomb threat she had spoken to Mario Acosta, an employee of the Parks and Recreation Department. Acosta reported Hunt had told him, “ ‘I’m going to shut that place down tomorrow. The lottery is not going to happen,’ or something to that effect.” Zalokar testified the police “usually deploy[ed] an officer or two at the lottery system to make sure it goes smoothly,” and that whenever the lottery takes place “[t]here are people there to protest and there are people there to be involved in the lottery system.” Asked if she had any specific knowledge that Hunt was one of the people protesting against the lottery, Zalokar testified she had seen “a videotape of [Hunt] standing in front of the door on the first day of the lottery protesting the fact that the lottery was going on and blocking the people from entering the building.”
2. Proceedings below.
Following the preliminary hearing, Hunt was charged with two felony counts of violating section 148.1 (falsely reporting the presence of a bomb). On December 6, 2005, Hunt withdrew his not guilty plea to the charges and pled no contest to one felony count of making a bomb threat. The other count was to be dismissed as part of a plea bargain in which Hunt agreed to undergo outpatient psychological counseling for six months, after which his conviction would be reduced to a misdemeanor and he would be put on probation after serving 60 days in county jail.
Section 148.1, subdivision (a), provides, in pertinent part: “Any person who reports to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33 . . . that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the report is false, is guilty of a crime punishable by imprisonment in the state prison, or imprisonment in the county jail not to exceed one year.” Section 148.1, subdivision (b) provides: “Any person who reports to any other peace officer defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 that a bomb or other explosive has been or will be placed or secreted in any public or private place, knowing that the report is false, is guilty of a crime punishable by imprisonment in the state prison or in the county jail not to exceed one year if (1) the false information is given while the peace officer is engaged in the performance of his or her duties as a peace officer and (2) the person providing the false information knows or should have known that the person receiving the information is a peace officer.”
Section 148.1 is a “wobbler” that is punishable by imprisonment in state prison or imprisonment in county jail for up to one year.
The formal probation and sentencing hearing took place on July 14, 2006. After determining Hunt had completed the required counseling, the trial court convicted him on count 1, dismissed count 2, suspended imposition of sentence and placed him on three years’ probation. One of the probation conditions consisted of the following stay-away order: “Defendant is ordered to stay 100 yards away from the area bordered on the north by Marine Avenue, on the south by Washington Boulevard, on the east by Pacific Avenue, and the west by the Pacific Ocean, in the city of Los Angeles, unless he is lawfully engaged in the permitted activity of selling items with a permit, in accordance with the city ordinance. [¶] Defendant is also ordered to stay away from Westminster Dog Park, unless he is civilly attending an organized meeting.”
On September 19, 2006, Hunt was brought to court on an allegation he had violated the terms of his probation by entering the stay-away area. Defense counsel filed a motion to modify the stay-away order, arguing: “The complete ban of Mr. Hunt from the Venice Boardwalk unless he has a permit to sell is not related to the crime of criminal threats. The crime occurred at West minister [sic] Park, and there is no link connecting the criminal threats to the Boardwalk. Further, the act of frequenting the Boardwalk is not criminal conduct. The probation condition imposed by the court amounts to a broad ban, or a banishment of Mr. Hunt from the Venice area.” The trial court subsequently denied Hunt’s motion to modify the stay-away order, although it clarified that the prohibited zone only extended up to the stated boundaries and was not to include an additional 100 yards beyond those boundaries.
CONTENTIONS
1. The trial court breached the plea agreement by refusing to reduce Hunt’s conviction to a misdemeanor.
2. The probation condition requiring Hunt to stay away from Venice Beach was unconstitutional.
DISCUSSION
1. Trial court did not breach the plea bargain agreement.
Hunt contends the trial court breached the plea bargain agreement by refusing to reduce his conviction to a misdemeanor. This claim is meritless.
a. Proceedings below.
The terms of the plea agreement were entered on the record orally during the December 6, 2005, change of plea hearing:
“[Prosecutor]: Your Honor, defendant will be pleading to count 1 of the information. He’ll be placed on three years’ formal felony probation with the condition that he receive some sort of psychological counseling. [¶] Once he completes that counseling . . . the defendant can make a motion to reduce it to a misdemeanor. And pursuant to that, he’ll also do 60 days in county jail at sentencing time.
“[Defense counsel]: My understanding maybe would be worded a little bit differently; that he was pleading today, putting over sentencing six months. . . . If he completes the six months of counseling, on sentencing date it would be sentenced as a misdemeanor. [¶] If he doesn’t do what he is supposed to do, it would be sentenced as a felony. Either way, then he would get his jail time. He would surrender for the jail time on either a misdemeanor or felony.
“The Court: What he’s supposed to do is psychological counseling?
“[Defense counsel]: Six months of psychological counseling, outpatient.
“The Court: That’s what he’s supposed to do, and stay out of trouble?
“[Defense counsel]: Right, the jail time. And after he’s sentenced, I assume it’s summary probation.
“[Prosecutor]: Yes. At that point, yes.
“The Court: Is that your understanding of the agreement, Mr. Hunt?
“The Defendant: Yes, it is.”
When the probation and sentencing hearing was held on July 14, 2006, the trial court was informed Hunt had been convicted of other offenses since agreeing to the plea bargain in the bomb threat case. Based on that information, the trial court ruled the bomb threat conviction would remain a felony:
The exact nature and circumstances of these new offenses are unclear from the record.
“The Court: Well, here’s the deal: As far as I’m concerned, the preconditions for reduction to a misdemeanor in this case have not been met, so I would proceed and sentence today. He would be placed on felony probation for a period of three years in either case. The agreement was that he was going to do 60 days in county jail, whether it was a felony or misdemeanor.
“[Defense counsel]: And he’s done the time. He had 56 actual days.
“The Court: Okay. And the conditions would be that he obey all laws, that he obey all orders of the court, which would include his probationary conditions in his misdemeanor matters.”
b. Discussion.
Hunt contends the trial court’s refusal to reduce his conviction to a misdemeanor constituted an impermissible breach of the plea agreement. He argues: “Because the express condition precedent – completion of counseling (and jail time as well) had been met by him, appellant should have received the benefit of the plea bargain, namely, reduction of the conviction on Count 1 to a misdemeanor and his placement on summary probation for three years. [¶] Instead, the trial court decided to impose post hoc an additional precondition – ‘obey all laws of the court, which would include his probationary conditions in his misdemeanor matters’ – for reduction of the offense to a misdemeanor, which precondition was neither stated as a further precondition to a misdemeanor reduction, nor accepted by appellant, at the December 6, 2005 hearing. The trial court proceeded to determine that its post hoc precondition had not been met, and thus no misdemeanor reduction would occur, because appellant had picked up two misdemeanors in the interim.”
We do not agree with Hunt’s interpretation of the trial record. In our reading, the trial court’s reference to Hunt having to obey all laws and court orders related to the new three-year probationary period the trial court was then imposing. As a mere matter of chronology, it is apparent the trial court first ruled Hunt had failed to meet “the preconditions for reduction to a misdemeanor,” and then imposed a three-year term of probation with the condition that he obey all laws and court orders. Moreover, we agree with the Attorney General that Hunt is overlooking the portion of the change of plea hearing during which “the trial court confirmed with appellant and his counsel that the contemplated [plea bargain] agreement included, inter alia, a requirement that [Hunt] refrain from violating any laws.” The Attorney General is referring to the following colloquy:
“The Court: What he’s supposed to do is psychological counseling?
“[Defense counsel]: Six months of psychological counseling, outpatient.
“The Court: That’s what he’s supposed to do, and stay out of trouble?
“[Defense counsel]: Right, the jail time. And after he’s sentenced, I assume it’s summary probation.
“[Prosecutor]: Yes. At that point, yes.
“The Court: Is that your understanding of the agreement, Mr. Hunt?
“The Defendant: Yes, it is.”
Referring to the italicized portion of this colloquy, Hunt argues “trial counsel was referring only to appellant serving jail time immediately after the time when he was to undergo psychological counseling; the served jail time would effectively keep him ‘out of trouble.’ ” We find this interpretation unconvincing. Far more persuasive is the Attorney General’s interpretation: “The clear implication of the trial court’s question . . . was that the judge intended to make his approval of the agreement contingent on the inclusion of a requirement that appellant ‘stay out of trouble,’ which would necessarily subsume a condition that he ‘obey all laws.’ When appellant confirmed that this was indeed his understanding, and subsequently pled no contest, he agreed to a standard probationary term that he had to obey all laws.”
Although the grammar of defense counsel’s remark, “Right, the jail time,” might argue in favor of Hunt’s interpretation, that grammar is merely an artifact of the court reporter’s transcription. Another court reporter might have transcribed the remark as, “Right. The jail time. And after he’s sentenced . . . .”
Moreover, we also agree with the Attorney General that, even if the trial court had not expressly warned Hunt to stay out of trouble, Hunt’s claim would still fail because not every deviation from the express terms of a plea bargain agreement constitutes a breach of that agreement.
“When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon. [¶] ‘ “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobello v. New York [(1971)] 404 U.S. [257,] 262 [30 L.Ed.2d 427, 433, 92 S.Ct. 495].) [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.’ . . . [¶] This does not mean that any deviation from the terms of the agreement is constitutionally impermissible. As Santobello . . . suggests, the variance must be ‘significant’ in the context of the plea bargain as a whole to violate the defendant’s rights. A punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
An obligation to obey all criminal laws is just such a standard condition, one that is implied in every order granting probation. In People v. Lippner (1933) 219 Cal. 395, a defendant who had violated the Corporate Securities Act contested the legality of a probation order setting forth only one condition: that he reimburse his victims. The defendant argued the probation order was void because it allowed him, in effect, to reimburse his victims by committing future securities fraud. Our Supreme Court rejected this claim, reasoning that the statutes governing probation grant trial courts “full authority to revoke the probation of a defendant, who after being granted probation engages in criminal practices or has become abandoned to a vicious life even though there are no such conditions expressed in the order of probation. [¶] These grounds of revoking probation are, in effect, made conditions upon which every order of probation is granted. . . . [T]he code . . . has for all practical purposes made these conditions a part of every order of probation, whether expressly set forth therein or not . . . .” (Id. at p. 399.)
In sum, we conclude that, both expressly and implicitly, one of the terms of Hunt’s plea bargain agreement promising a reduction of his conviction from a felony to a misdemeanor was that he obey all laws. Because Hunt violated that term, the trial court did not breach the plea agreement when it refused to reduce the conviction to a misdemeanor.
2. The stay-away order did not amount to unconstitutional banishment.
Hunt contends the probation condition requiring him to stay away from the Venice Beach and Boardwalk area constituted a banishment order which violated the First Amendment. This claim is meritless.
a. Legal principles.
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] ‘The court may impose and require . . . [such] reasonable conditions[ ] as it may determine 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 generally and specifically for the reformation and rehabilitation of the probationer.’ (Pen. Code, § 1203.1, subd. (j).) The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” [Citations.]’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121, italics added.)
In general, banishment has been characterized as an improper way of excluding someone from an entire political entity, such as a state, a county or a municipality. “ ‘To permit one state to dump its convict criminals into another would entitle the state believing itself injured thereby to exercise its police and military power, in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several states which is the basis of the Union itself. Such a method of punishment is not authorized by statute, and is impliedly prohibited by public policy.’ [¶] . . . [¶] The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city. The old Roman custom of ostracizing a citizen has not been adopted in the United States.” (In re Scarborough (1946) 76 Cal.App.2d 648, 649-650.)
However, the constitutionality of any particular probation condition infringing on fundamental rights depends on that condition’s reasonableness, which in turn requires a careful balance between the degree of infringement and the legitimate aims of probation. “Probation conditions have been upheld even though they restrict a probationer’s exercise of constitutional rights if they are narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer. [Citations.] Conditions of banishment affect the probationer’s basic constitutional rights of freedom of travel, association and assembly. [Citations.] Thus, in order to survive constitutional scrutiny, such conditions not only must be reasonably related to present or future criminality, but also must be narrowly drawn and specifically tailored to the individual probationer.” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.)
Some banishment orders have been held to be unreasonable probation conditions. (See In re Babak S., supra, 18 Cal.App.4th at 1085 [condition ordering minor to reside with his parents in Iran was unreasonable because “it effectively banished appellant from the country for a two-year period” and it “lacked any reasonable nexus to Babak’s present or future criminality, violated his constitutional rights of travel, association, and assembly, and constituted a de facto deportation”]; People v. Bauer (1989) 211 Cal.App.3d 937, 944 [condition that probation officer approve defendant’s residence was unreasonable where 26-year-old defendant had always lived with his parents, there was “nothing . . . suggesting in any way that appellant’s home life . . . contributed to the crime of which he was convicted or is reasonably related to future criminality”]; People v. Beach (1983) 147 Cal.App.3d 612, [where elderly widow had been convicted of involuntary manslaughter after becoming frightened and shooting a stranger who came onto her property, order that she leave her neighborhood was unreasonable because it would not necessarily prevent future similar conduct, it was likely to make her feel more insecure, and “psychological stress attendant to removing an elderly woman from her home of 24 years could be traumatic”].)
On the other hand, some banishment orders have been held to be proper conditions of probation. In United States v. Bolinger (9th Cir. 1991) 940 F.2d 478, a defendant convicted of being a felon in possession of a gun was directed “ ‘not [to] participate in the activities, or be a member of any motorcycle clubs, including but not limited to the Dirty Dozen.’ ” (Id. at p. 480.) This condition was upheld despite a claim it impermissibly restricted the defendant’s freedom of association. In United States v. Lowe (9th Cir. 1981) 654 F.2d 562, protesters were convicted of illegally entering a Navy submarine base in order to protest the Trident weapons system. A probation condition prohibiting the defendants from coming within 250 feet of the naval base, even if permission had been granted by adjoining property owners, was held not to violate their First Amendment rights of free speech and association: “The probation condition reasonably meets the goal of keeping the peace and deterring further criminal activity. The sentencing judge did not forbid participation in the anti-nuclear movement, nor did he forbid further anti-Trident speech. Rather, he forbade approach to the base. Climbing the fence was the particular offense he intended to prevent. Keeping the defendants away from the fence was a logical means of prevention.” (Id. at pp. 567-568.) In State v. Morgan (1980) 389 So.2d 364, the Louisiana Supreme Court affirmed a probation condition requiring a woman convicted of attempted prostitution to stay out of the French Quarter of New Orleans. The court found the condition reasonable because it affected the defendant’s access to only a small part of the city.
In People v. Arvanites (1971) 17 Cal.App.3d 1052, the defendants’ false imprisonment convictions arose out of a college campus protest during which they blockaded a U.C.L.A. administrator’s office. Arvanites held that some of the ensuing probation conditions were reasonable and some were unreasonable. For instance, a prohibition against planning and engaging in demonstrations was approved: “The defendants’ own testimony in the case at bar, in which they demonstrated a total lack of regret for their actions, entitled the trial court to believe that any demonstration planned or engaged in by them would turn into a repetition of their conduct . . . . The condition related directly to the crime of which they were convicted and forbade conduct reasonably related to future criminality. [Citation.]” (Id. at p. 1063.) However, a “prohibition against planning or engaging in picketing, posting or carrying signs or placards and handing out or distributing leaflets or pamphlets” was struck down as “too sweeping. . . . It encompasses any attempt by defendants to disseminate any idea by means of picketing, signs, placards, leaflets or pamphlets, even if the particular defendant acts entirely on his own. Obviously many of the perfectly legal activities covered by these further prohibitions may have no relationship whatever to the crime of which defendants have been convicted and may be not at all related to further criminality.” (Ibid.)
b. Discussion.
Here, the stay-away order barred Hunt from entering that portion of the Venice Beach and Boardwalk area bounded by Marine Ave., Pacific Ave., Washington Blvd., and the Pacific Ocean. Hunt says this stay-away area measures one and one half miles long by 1,000 feet wide, an assertion the Attorney General accepts for purposes of this appeal. Hunt contends the stay-away order amounts to an unconstitutional banishment. However, the designated area constitutes but a small sliver of Los Angeles. This is not, therefore, the sort of banishment order whereby a political entity seeks to dump an undesirable person into the jurisdiction of any other political entity. And although Hunt complains about being banned from an area where he grew up and lived for 25 years, he does not claim the stay-away order required him to change his current residence.
Hunt relies principally on the case of In re White (1979) 97 Cal.App.3d 141, where a woman convicted for soliciting an act of prostitution was banned from three sections of Fresno that had been deemed by the police to be major prostitution areas. White argued the probation condition was unreasonable because she had relatives who lived in one of the stay-away areas, she frequently traveled by a Greyhound bus whose depot was in a second stay-away area, and it would be difficult to take her children to the local park and zoo because they bordered one of the stay-away areas. The Court of Appeal held that, although the probation condition “may have some relationship to the crime of soliciting. . . . a blanket prohibition against being in a designated area of Fresno ‘anytime, day or night,’ appears to be unduly harsh and oppressive.” (Id. at p. 147.)
Hunt argues the stay-away order in White was substantially the same as the order in his case. We disagree. The ban on White was total; there were no exceptions. Hunt, on the other hand, was allowed into the stay-away area whenever he was lawfully pursuing his livelihood as a street vendor by attending the lottery or selling on the street. Moreover, there was evidence in White that the stay-away order was not likely to keep the defendant from future criminality. As the Court of Appeal said, “Keeping White out of the [designated stay-away] area will have a minimal effect on future criminal conduct except possibly in that particular area. As previously noted, there was prosecution testimony in the superior court hearing that this type of probation condition only moves solicitors to other areas of Fresno. . . . There is little factual nexus between the proscribed activity and future criminality.” (In re White, supra, 97 Cal.App.3d at p. 147, italics added.)
For instance, the stay-away order barred Hunt from the designated areas “unless he is lawfully engaged in the permitted activity of selling items with a permit, in accordance with the city ordinance.” (Italics added.)
Moreover, White did not simply strike the probation condition but, pointing out that “[l]ike all constitutional rights the right of free movement is not absolute and may be reasonably restricted in the public interest” (id. at p. 149), White held the lower court should be given the chance to reasonably narrow the probation condition: “If available alternative means exist which are less violative of the constitutional right and are narrowly drawn so as to correlate more closely with the purposes contemplated, those alternatives should be used [Citations.]” (Id. at p. 150.)
In the case at bar, on the other hand, the record shows there was a strong factual nexus between the stay-away order and future criminality.
At the July 14, 2006, sentencing hearing, in response to the prosecutor advising the trial court that Hunt had incurred additional convictions since agreeing to the plea bargain, defense counsel asserted these convictions had been incurred when Hunt tried to exercise his constitutional right to sell on the street in Venice Beach: “[H]e has a valid permit to work in Venice Beach. And the People have been insistent on trying to violate his right to maintain his livelihood on Venice Beach. . . . [H]e has a right to be there and a right to work there.” (In addition to the assignment of vending spots by lottery, it appears another of Hunt’s ongoing disputes with officials had to do with whether the particular items he was selling were approved by the relevant municipal ordinance.)
During the October 19, 2006, hearing on Hunt’s motion to modify the probation conditions, the trial court pointed out the obvious connection between the bomb threat and Hunt’s activities as a street vendor, and then explained why merely ordering Hunt not to sell on the street without the required permit would not be a sufficient deterrent: “The reason why I think the situation here is a little more serious, serious enough to warrant having him stay out of the area in general during the course of the probation – [¶] . . . [¶] – is because of the ongoing volatile dispute which has gotten to the point where he’s making false bomb threats.”
The trial court and defense counsel then engaged in the following colloquy:
“[Defense counsel]: But, Your Honor . . . he was convicted of making a false bomb threat at a particular location [i.e., the Westminster Senior Center]. You have prohibited him from going to that location. That suffices. That suffices. [¶] What you’re saying is because he made a bomb threat at a particular location, he should now be banished from Venice Beach.
“The Court: Well, because the incidents are related.
“[Defense counsel]: But even if the incidents are related – [¶] . . . [¶] – that justifies banishing him from the entire Venice Beach area? I think that’s overbroad. . . . and it serves no rehabilitative or public safety purpose.
“The Court: Well, I don’t know about the rehabilitative purpose, because that is not the basis of it. It is to avoid future problems that can amount to other violations of the law.”
In its written order denying Hunt’s motion to modify the probation conditions, the trial court noted that, in addition to the bomb threat conviction, Hunt had also been convicted of other related offenses, including two counts of disturbing the peace and one count of battery. The trial court then said: “The area . . . which the defendant has been ordered to stay away from is involved in all the above referenced cases and all involve either vendors in the area with whom the defendant has gotten into disputes, or authorities responsible for administering and overseeing the vendors operating in the stay away zone (the Venice Beach boardwalk); culminating in the present case, defendant’s felony conviction for calling in a false bomb threat. It is important to note that the threat was called in to a location [where] vendor spaces on the boardwalk were to be allocated. The record strongly supports the conclusion that due to the numerous disputes the defendant gets involved in [in] this area resulting in arrests and convictions, the stay away condition is reasonably related to avoid[ing] future criminality. There is every reason to believe that if the defendant returns to the stay away zone, he will once again become involved in criminal confrontations with vendors in the area or the authorities responsible for regulating the vendors in the area.” (Italics added.)
The probation report indicates Hunt had been convicted of battery and disturbing the peace before he made the bomb threat.
Hunt does not dispute any of the trial court’s factual assertions. Indeed, Hunt acknowledges that “all of [his] offenses stem in one way or another from the enactment, administration (via lottery), or enforcement of the Venice Beach/Boardwalk ordinance.” Rather, Hunt’s complaint is that the stay-away order was overbroad. We disagree. The record shows that, in devising the stay-away order, the trial court reasonably relied on the strong nexus between Hunt’s conduct in the Venice Beach/Boardwalk area relating to street vending, and Hunt’s making the bomb threat at the Senior Center where the street vendors’ lottery was held. The stay-away order was reasonably related to the crime for which Hunt had been convicted, and to the risk of future criminality. By allowing Hunt to enter the restricted portion of Venice Beach for the lawful purpose of attending the lottery and selling on the street with a valid vending permit, the trial court fashioned a banishment order that “not only [was] reasonably related to present or future criminality, but also [was] narrowly drawn and specifically tailored to the individual probationer.” (In re Babak S., supra, 18 Cal.App.4th at p. 1084.)
In his reply brief, Hunt argues: “Because his existing permit to do business in that stay-away area had been suspended by the City of Los Angeles and the subject of a pending federal court suit, appellant could not be in that area at all until and unless he could obtain a new permit, and he faced court-promised ‘custody’ if he went there in the interim.” We cannot see why this should change the result here; certainly the trial court could not have been expected to allow Hunt to enter the stay-away area in order to illegally sell on the street.
The stay-away order did not violate Hunt’s constitutional rights.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J. ALDRICH, J.