PEOPLE v. MORAN (To be called and continued to the late May 2016 calendar.)Respondent’s Petition for ReviewCal.January 16, 2014$215914 (12 Iu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. JEFFREY MICHAEL MORAN, Defendant and Appellant. SUPREME COURT Case No. = ILED JAN 16 2014 Frank A. McGuire Clerk Deputy Sixth Appellate District, Case No. H039330 Santa Clara County Superior Court, Case No. C1243366 The Honorable Ron Del Pozzo, Judge PETITION FOR REVIEW KAMALAD. HARRIS Attorney General of California DANER.GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General ALISHA M. CARLILE Deputy Attorney General State Bar No. 264202 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5205 Fax: (415) 703-1234 Email: Alisha.Carlile@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue presented 00... cee ecesesessescesreceeeeseseaseeeeesesecnsecesssseesesaecessssuseessssesessaeeseees l Statement of the case and facts ........ccesccssccsesseesecsesseecesessessessessseeesneseteeas 1 Reasons for granting reVicw .......cccsscessscssscssscessessecssessrseeeseeseecssssesssenseeneesase 4 I. Review is required because prohibiting appellant from entering other retail outlets of the store he stole from does not violate the right to travel and is consistent with this court’s holding that corporate entities are considered crime victims when imposing probation CONCITIONS....... ce eecceceteseeesscecececeeceesssssessessueesesesersssesseeneesressness 4 A. Review is necessary to resolve an important Question Of LAW ........eeescessceceeeseceeeesessaesssesssssesesessseesees 4 B. The probation condition does not impinge on appellant’s state or federal constitutional right CO traVELeeecccsseeeseeeseceseeesereaeersateeatsnatseeseessessnteaes 5 C. The decision below is inconsistent both with this court’s holding that corporations are considered victims when imposing probation conditions under Penal Code section 1203.1 and with the Victim’s Bill of Rights ....... cc ceeeseeeeseeenees 9 COMCIUSION ooo... eeeeesseseeesececenteesaetenscesessssecnsessseceaeceneceseeesseesressusnessesesetenass 11 TABLE OF AUTHORITIES Page CASES Crandall v. Nevada (1867) 73 U.S. (6 Wall.) 35 eccccsessssscsesctenstecsesesessssseesessesteesssssesaeess 5 Inre EJ. (2010) 47 Cal.4th 1258ooececcceescesescnseeeenececnecsessenersesesatieesssaeeeceeas 6 In re Sheena K. (2007) 40 Cal.4th 875 oo. cccccsccsteeeseesseneetseeeesseteteveeetetesaeeeeseeesesasees 2,8 Inre White (1979) 97 Cab.App.3d 141icecesesceeesessteetseeessseseseteneeetseees 5, 6, 7, 8 People v. Anderson (2010) 50 Cal.4th 19 ooo ceccceecseessccscesseeseeeseeseenseseenseesseersaseetesees 9, 10 People v. Barajas (2011) 198 Cal.App.4th 748 oo.cccccseeceseesesesesseecsessessetessesnesessteeeeees 7 People v. Beach (1983) 147 CalApp.3d 612occseeeestetseensseersesesenreeteeseees 6, 7 People v. Patel (2011) 196 CalApp.4th 956 oocceeccteceseseteeneresssenestessressraenenenesneeaes 6 People v. Perez (2009) 176 CalApp.4th 380 occccseeessesesesecseeeseerscensecseeserseeeteereseees 8 People v. Urke (2011) 197 CalApp.4th 766 oo. ccsescsccesesseeessesescnecceeessssersaetseesetaeenes 7 Shapiro v. Thompson (1969) 394 U.S. G18.cccccscecceesenstecsceseseessecsescescseeetstsetessceetacsesetsenesseenes 5 Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069 oo. ccccccecessseeseseseeeceeseeecsceecesseessecesenaeestseeesseeers 5 il STATUTES Penal Code ce1 § 460 Subd. (b) ooeeseececeectectteeeaeeneseceaeeseenseseessasatessesenaeeaseseeeeeeseneeneeegs 1 § 1202.4, SUD. (K) once ceecccsccccsscsceessescssseescseessnecessscseseescesseteasceeneeeeeeaseegs 10 § 1202.4, SUD. (kK)... ceccecccsssesseessessecsseeseesecessecseseascsusessuesseseatscseecseeaeesteegs 5 § L203.) ve eeecccccscssccseecssecsseeceeeeseeeeseesseesseecseseaesseegesscseasesessessaeeeeneees 5,9, 10 COURT RULES California Rules of Court, Rule 8.500(€) oo... ce eecescncccsneesneeeeecssesseeseceeseaeeaesseesaessecsaeseeesseesasesessesenteanss 1 iii Respondentrespectfully petitions for review of the decision of the Court of Appeal for the Sixth Appellate District. The unpublished decision, attached as Exhibit A, was filed on December 16, 2013. Neither party sought rehearing. This petition is timely. (Cal. Rules of Court, rule 8.500(e).) . ISSUE PRESENTED Maya court, as a condition of probation for theft from onestore of a retail chain, bar the probationer from entering any of the chain’s stores in California, or is the order unconstitutionally overbroad in violation of the defendant’s right to travel? STATEMENT OF THE CASE AND FACTS On October 19, 2012, appellant Jeffrey Moran entered a Home Depot store located at 2181 Monterey Highwayin San Jose. (Aug. CT 11.) Asset Protection Specialist Tom Nguyen observed appellant as he concealed merchandise with a value of $128.46 in his backpack. (/bid.) Subsequently, appellant passed all points of sale and exited the store without attempting to pay for the merchandise. (/bid.) Nguyen stopped appellant and recovered the items. (/bid.) Appellant admitted to Nguyen that he was sent into Home Depotto steal in exchange for money, andthat he was hoping to collect half of what the merchandise was worth. (bid.) The Santa Clara County District Attorney charged appellant with second degree burglary. (Pen. Code, §§ 459, 460, subd. (b); CT 2.) Pursuantto a negotiated disposition, appellant entered a plea of no contest to burglary and admitted a prior conviction. (CT 7; RT 3, 4-16, 17-18.) Thetrial court suspended imposition of the sentence and placed appellant on probation for three years. (CT 8, 12.) The court imposed a probation condition requiring appellant not to enter “the premises, parking lot adjacent or any store of Home Depotin the State of California.” (CT 12; RT 24-25.) Appellant appealed to the Sixth District Court of Appeal. He contendedthat the probation condition unconstitutionally restricted him from entering “at least 14 Home Depot stores within 20 miles of his home zip code,” as well as “any other Home Depotstore or adjacent parkinglot in California,” and “would also keep him away from dozensofother stores located in Home Depotparkinglots [sic] in violation of his fundamental right to travel.” (Slip opn. at pp. 2-3.) Relying on Jn re Sheena K. (2007) 40 Cal.4th 875, 878-879, 888-889, the Court of Appeal entertained the claim as one of constitutional facial overbreadth requiring no objection in the trial court, because the alleged defect was capable of correction without reference to the particular sentencing record in thetrial court. (/d. at p. 3.) Citing general principles from Sheena K. at page 980 and decisions by lowercourts, the Court of Appeal agreed with appellant that the condition was unconstitutionally overbroad, by infringing on appellant’s right to travel in parking lots and shops, and wasinvalid as not closely tailored to the purpose of the condition. (Slip opn.at pp. 1, 3-4.) The Court of Appeal began its analysis of the merits by finding it “quite apparent that the purpose ofthe probation condition at issue here is to prevent appellant from entering Home Depotstores and taking merchandise without payingforit,” but found the condition lacked the close tailoring constitutionally needed for that purpose. (Slip Opn.at p. 4.) In an apparentcritique of the condition’s efficacy, the court said that the condition would have only “minimal effect appellant’s rehabilitation as he could simply decide to take merchandise from an endlesslist of other stores.” (/bid.) Furthermore, the court said, “although [the restriction] might relate to avoiding recurrences of appellant’s criminal conduct in Home Deport stores, it does not prevent him from engaging in his criminal conduct elsewhere.” (/bid.) The court found that condition “akin to an order directing a defendant to stay away from all persons with blonde hair because he assaulted a man with blonde hair.” (Lbid.) The court next observed that “stay away” orders generally are imposed becausethey “relate to the nature or cause”ofthe crime like gang or drug activity, or “to the class of persons who would be a source of temptation to the probationer such as gang membersand drugusers,” or they “are imposed to protect actual victims of the probationer’s crime.” (Slip opn. at pp. 4-5.) By contrast, the court found the order to stay away from Home Depotstores and their parking lots categorically distinguishable because the “stores . . . belong to a business corporation, not a person or class of personsrelated to the probationer’s crime.” (/d. at p. 5.) The court also stated the condition wasso broadit “prevented activities unrelated to criminal activity,” by reading that condition as “effectively . .. prohibit[ing] appellant from entering any store that shares a parking lot with a Home Depot.” (bid., fn. omitted.) Though finding “an obvious nexus” between appellant’s crime and the condition as it relates to the particular Home Depotoutlet that was the locus of the crime, the court next found that the condition “should contain an exception that would allow appellant to be on Home Depot property on legitimate business for the condition to pass constitutional muster.” (/d. at pp. 5-6.) The court added, in footnote dictum,that “[f]rankly”it believed “a much better way to achieve what seemsto be the purposeofthe probation condition”is the implicit condition of every grant of probation that the defendant “refrain from engaging in criminalpractices, i.e., obey all laws.” Cd. at p. 6, fn. 5.) The court did not remand for reformation of the condition. Instead,it struck the condition requiring appellant to not enter the premises or adjacent parking lot of any Home Depotstore in California and, as modified, affirmed the judgment. (/d. at p. 6.) REASONS FOR GRANTING REVIEW I. REVIEW IS REQUIRED BECAUSE PROHIBITING APPELLANT FROM ENTERING OTHER RETAIL OUTLETS OF THE STORE HE STOLE FROM DOES NOT VIOLATE THE RIGHT TO TRAVEL AND IS CONSISTENT WITH THIS COURT’S HOLDING THAT CORPORATE ENTITIES ARE CONSIDERED CRIME VICTIMS WHEN IMPOSING PROBATION CONDITIONS A. Review Is Necessary to Settle an Important Question of Law The Sixth District Court of Appeal struck a probation condition that bars a thief from frequenting a retail goods chain from whichhestole. It found the probation restriction violated appellant’s constitutional right to enter commercial property during the term of felony probation. It found the probationrestriction overbroad becauseit bars a thief from entering stores belonging to the retail chain apart from the location identified as the crime’s locus. The court also declared such a probation restriction must contain a “legitimate business exception” to pass review under constitutional overbreadth analysis. Although the decision is unpublished, the state is compelled to seek review in this case. The broad language of the opinion indicates thatit represents the Court of Appeal’s approach to overbreadth challenges to probation conditions generally and to “stay away”orders specifically. The opinion logically calls into question the constitutionality of a broad variety of stay away conditions in cases of shoplifting, commercial theft, and fraud, especially those whichas in the present case extend to any of the victim’s retail property and omit a “legitimate business” exception like the one the Court of Appeal believes is constitutionally required. The Court of Appeal’s conclusion that the probation condition can constitutionally restrict appellant only from entering the Home Depotstore where he stole merchandise ignores the fact that a corporate entity is the victim of the crime for purposes of probation orders under Penal Code section 1203.1. The quixotic analysis of the right to travel as conceived and applied by the Court of Appeal below holdsthat a court granting probationis helpless to bar a thief from the retail chain he victimized apart the particular store he stole from. That is inconsistent with this court’s precedent holding that corporations, not outlets or storefronts, are considered a victim of crime for purposes ofprobation conditions. The decision below is also inconsistent with Penal Codesection 1202.4, subdivision (k), added by the Victim’s Bill of Rights. Therefore, although unpublished, the opinion raises significant questions of law worthy of review. B. The Probation Condition Does Not Impinge on Appellant’s State or Federal Constitutional Rightto Travel This court should grant review to determine whetherthe right to travel precludesa trial court from imposing a probation condition banning a probationer from the outlets of a retail chain from which the probationer stole. The United States Supreme Court has long recognizeda right to interstate travel. (See, e.g., Crandall v. Nevada (1867) 73 U.S. (6 Wall.) 35 {holding the right of interstate travel is a right of national citizenship essential for a citizen to pass freely through another state to reach the national or a regional seat of the federal government]; Shapiro v. Thompson (1969) 394 U.S. 618, 630 [holding a state residency requirement for welfare benefits violated the right to travel].) California also recognizesa right to intrastate travel. (Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1100, citing In re White (1979) 97 Cal.App.3d 141, 148 [“We conclude that the right to intrastate travel (which includes intramunicipal travel) is a basic humanright protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one ofthe attributes of personal liberty under common law”’].) In re White, supra, 97 Cal.App.3d at p. 144, held that a probation condition requiring a woman convicted ofsoliciting an act of prostitution to stay out of certain “control areas” of the City of Fresno violated her right to travel. The “control areas” encompassedthe Greyhoundbusstation, several public transit stops, several restaurants defendant had previously patronized, a local park and zoothat her children liked to go to, as well as the homesofseveral friends and relatives. (/d. at pp. 144-145.) In rejecting this probation condition, the appellate court contrasted the broad geographic scope of the ban with commonlyupheld restrictions prohibiting entry into particular places or types of establishments (such as bars or pool halls). Ud. at p. 150.) The appellate court held the restrictions, which required defendantto stay out of the control areas 24 hours a day and contained no exception allowing her to attend to legitimate business in the area, were overbroad. (/d. at pp. 147-148.) In People v. Beach (1983) 147 Cal.App.3d 612, 622-623, the Court of Appeal found a violation ofthe right to travel where a probation condition required an elderly defendant to relocate from the neighborhood where she had lived for 24 years and become embroiled in a confrontation culminating in a shooting that resulted in her conviction of involuntary manslaughter. While exclusions from large geographic areas and banishments from a given community mayviolate the right to travel in somecases,it is well settled that courts may place reasonable limitations on travel as a condition of probation. (See Jn re E.J. (2010) 47 Cal.4th 1258, 1282, fn. 10). For example, probation conditions requiring a defendantto stay out specific establishments or types places of are regularly upheld. (See, e.g., Peoplev. Patel (2011) 196 Cal.App.4th 956, 960 [upholding condition prohibiting defendant from knowingly entering store where alcoholis the chief item for sale]; People v. Urke (2011) 197 Cal.App.4th 766, 774-775 [upholding condition requiring defendant convicted of lewd acts on a child to stay away from places children are knownto congregate]; People v. Barajas (2011) 198 Cal.App.4th 748, 755 [upholding condition requiring defendant to stay away from areas where gang membersare knownto congregate].) In holding unconstitutional the broad protected zone condition in Jn re White, supra, 97 Cal.App.3d 141, the Court of Appeal refusedto strike the condition. Instead, it remanded with the suggestion that the trial court “set[] out a specific list of particular places (such as bars, pool rooms, motels and the like) from which the probationer may specifically be prohibited from entering.” (/d. at p. 151.) The inconsistency between the remand directions in White and the holding below in this case is obvious. It is reason alone to grant review. Thatis particularly true since the decision belowraises potential arguments that (1) corporate entities in California are not entitled to be free from thieves in their commercialretail outlets the way the government in White was entitled to bar a purveyorof vice from a potentially much longer and morevariedlist of identified locations within a swath of the city’s borders, or (2) the disposition in White was incorrect and should be disapproved. At any rate, unlike the condition struck down in Jn re White, supra, 97 Cal.App.3d 141, appellant is not barred from a large geographic region of a city, preventing him access to important public services. Nor does the condition banish him from a community in which he had deep roots. (See People v. Beach, supra, 147 Cal.App.3d at pp. 622-623.) Rather, the condition is similar to the types of conditions which are regularly upheld by the court, such as banning a gang member from knowngangterritory, or preventing a child molester from going near parks and playgrounds. The condition doesnotinfringe appellant’s right to travel into particular areas or neighborhoodsgenerally, only his ability to enter the property of the Home Depot, the corporation that he victimized. (Cf. In re White, supra, 97 Cal.App.3d at pp. 144-145.) The condition is clearly related to appellant’s theft and to his future rehabilitation, as it aims to prevent him from re- victimizing the Home Depot. Un re Sheena K., supra, 40 Cal.4th at 890.) Additionally, it is limited in geographical scope, and does not in fact preclude him from entering anyretail outlets apart from the Home Depot, nor from entering the parking lots, streets, or sidewalks adjacent to other retail outlets. The Court of Appeal said requiring appellant to stay out of parking lots adjacent to Home Depots“effectively. . . prohibits appellant from entering any store that shares a parking lot with a Home Depotstore.” (Slip Opn. at 5.) This analysis is flawed. Contrary to the court’s assertion, appellant cannot violate the condition by entering a parking lot adjacent to another store that shares a parking lot with a Home Depotoutlet. Ifthe defendant has businessin the other store, he only needs to park onthestreet, in another parkinglot, or in the portion of the shared lot adjacentto the other store, and walk on the public sidewalk to that store. The Court of Appeal inappositely relied on People v. Perez (2009) 176 Cal.App.4th 380, which struck downa probation condition barring the defendant from coming within 500 feet of any courthouse unless he was the defendant in a case or under subpoena as a witness. That case is clearly distinguishable. Perez’s conviction for robbery, unlike a conviction for witness intimidation or interfering with court proceedings, had no connection to the courthouse. (/d. at p. 383.) Here, in contrast, the condition barring appellant from Home Depotstoresis closely related to his crime against that retailer. Additionally, Perez noted courthousesare often located in governmentcenters that house offices for important public services and public forums, and that the condition would prevent the defendant’s entry into such places. (Ud. at 385.) Home Depot bears no resemblance to a government courthouse located adjacent to government offices providing essential public services. Moreover, appellant is not banned from doing business with public entities, only with a particular retail goods chain, which has many competitors. Barring his access to Home Depotstores does not prevent him from accessing otherretail services, or preclude him from participation in public discourse. C. The Decision Below Is Inconsistent Both with This Court’s Holding That Corporations Are Considered Victims When Imposing Probation Conditions under Penal CodeSection 1203.1 and with the Victim’s Bill of Rights The Court of Appeal deemed appellant constitutionally entitled to enter Home Depotstores throughout the state except his crime’s locus, becausethe chain of “stores belong to a business corporation, not a person or class of personsrelated to the probationer’s crime.” (Slip Opn. at 5.) To recognize that a particular store in a commercial retail chain was the locus of a given crimeis neither the logical nor the legal equivalent of a conclusion that the store, and not the parent corporate entity, is the crime victim. Nor canit be logically said that courts may excludethe financial victimizer of a corporate entity during a term of probation only from the crime’s locus and/or only when the victimizer can claim nolegitimate business on corporate property. If left unreviewed, the opinion will cloud similar legitimate probation conditions imposed in the Sixth Appellate District. The conclusion of the Court of Appealis inconsistent with the decision in People v. Anderson (2010) 50 Cal.4th 19, 33-34. Anderson held a defendant properly subjected to a condition of probation under Penal Code, section 1203.1 rendering him liable for paymentofrestitution to a hospital corporation that incurred expensestreating the defendant’s crime victim. (/bid.) Recognizing the broad discretion oftrial courts to fashion probation andrestitution orders under Penal Code section 1203.1 in order to promote justice and encourage rehabilitation, this court in Anderson found it appropriate for the probationer to makerestitution payable to the hospital corporation, even thoughit was notthe direct victim of the offense. (/d.at pp. 33-34.) It is apparent from Anderson that underthis court’s probation Jurisprudence a corporation can be recompensedthroughrestitution as directed by a probation condition. That furthers rehabilitation by impressing uponthe probationer the impact of the crime on corporate entities, including those not immediately associated with the named victim of the defendant’s crime. Surely then, an actual corporate victim can be protected from its victimizer, and the probationary goalofrehabilitation furthered, by a condition of probation that forbids the defendant from entering corporate retail premises during the term of probation. This conclusion is supported by statute. Specifically, corporations are listed among the victims protected in Proposition 8, passed by ballot initiative in 1982, also knownas the Victim’s Bill of Rights. Amongits several provisions, the initiative added Penal Codesection 1202.4, subdivision (k). That statute provides for restitution to “[a]ny corporation, businesstrust, . . . partnership, association, joint venture, ... or any other legal or commercial entity when that entity is a direct victim of a crime.. .” Thus, the electorate has recognized that the corporate entity itself—not merely a particular locus where that corporation does business—is properly considered to be a “victim” under California law. The Court of Appeal’s cramped view ofthe status of Home Depotas a crime victim is inconsistent with the Victim’s Bill of Rights and should be corrected through a grant of review. 10 CONCLUSION For the reasons stated, respondent respectfully requests that review be granted. Dated: January 16, 2014 SF2013404397 40866014.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General ALISHA M.,Yusha“) Deputy Attorney General Attorneys for Respondent 1] CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 3,167 words. Dated: January 16, 2014 KAMALAD. HARRIS Attorney General of California ALISHA M. CARLILE Deputy Attorney General Attorneysfor Respondent EXHIBIT A Filed 12/16/13 P. v. Moran CA6 NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 8.11145(a), prohibits courts and parties from citing or relying on opinions notcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposesof rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H039330 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1243366) Vv. JEFFREY MICHAEL MORAN, Defendant and Appellant. In this appeal, appellant Jeffrey Moran challenges as overbroad a condition of probation that requires him to not "go on the premises, parking lot adjacent or any store ofHome Depotin the state of California." For reasons that follow we agree with appellant that the condition is overbroad. Facts and Proceedings Below’ On October 19, 2012, appellant took batteries and other merchandise from a display rack in the Home Depotstore located at 2181 Monterey Road. Appellant concealed the merchandise in his backpack and then walked out ofthe store past all the points of sale without paying for the items. ! There was nopreliminary hearing in this case. Accordingly, we summarize the facts from the police report and the Home Depotasset protection specialist's reports that were the stated factual basis for appellant's plea in this case. On July 9, 2013, we granted appellant's request to augmentthe record with these reports. Tom Nguyen,the store's asset protection specialist, confronted appellant outside the store and instructed appellant to accompany him back inside. Appellant complied. All the merchandise was recovered. When appellant was asked why hedid not pay for | the merchandise, appellant said he wassent into the store to steal items in exchange for money. Nguyen contactedthe police and an officer took appellant into custody and booked him into jail. The Santa Clara County District Attorney charged appellant by felony complaint with one count of second degree burglary. (Pen. Code, §§ 459-460, subd. (b).) The complaint contained anallegation that appellant had served prior prison term within the meaning of Penal Code section 667.5, subdivision (b). On November6, 2012, appellant entered a no contest plea and admitted the prison prior in exchangefor a promised disposition of one year in county jail top/bottom. On December21, 2012, the court suspended imposition of sentence and placed appellant on felony probation for three years on the condition that he serve one yearin county jail. The court imposed various other terms and conditions of probation including that. appellant not "go onthe premises, parking lot adjacent or any store ofHome Depotin the state of California." Appellantfiled a timely notice of appeal based on the sentence imposed. Onappeal, appellant contends that the probation condition requiring him to not enter the premises or parking lot of any Home Depotstore is overbroad and must be modified. Discussion Appellant argues that the condition here is "clearly overbroad" becausethere are at least 14 Home Depotstores within 20 miles of his home zip code. Appellant contends that restricting him from entering these or any other Home Depotstore or adjacent parking lot in California not only would prohibit him from shoppingat suchstores, but would also keep him away from dozensof other stores located in Home Depotparking lots in violation of his fundamentalright to travel. The right to travel "is simply elementary in a free society. Freedom ofmovement is basic in our schemeofvalues [citation]." (dn re White (1979) 97 Cal.App.3d 141, 149.) "The right of intrastate travel has been recognized as a basic humanright" of constitutional dimension. (Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1100.) Furthermore, "other fundamentalrights such as free speech, free assembly, and free association are often tied in with the right to travel." (In re White, supra, 97 Cal.App.3d at p. 149.) A plurality of the United States Supreme Court has recognized that "the freedom to loiter for innocent purposesis part of the 'liberty' protected by the Due Process Clause ofthe Fourteenth Amendment." (City ofChicago v. Morales (1999) 527 USS. 41, 53, fn. omitted (plur. opn. of Stevens, J.).) A claim that a probation condition is unconstitutionally overbroad may be reviewed on appeal without an objection in the trial court if it is capable of correction without reference to the particular sentencing record in thetrial court. Un re Sheena K. (2007) 40 Cal.4th 875, 878-879, 888-889 (Sheena K.).) "A probation condition that imposeslimitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) "[Where an otherwise valid condition ofprobation impinges on constitutionalrights; such conditions must be carefully tailored, ' "reasonably related to the compelling state interest in reformation and rehabilitation. ..."' [Citations.]" (People v. Bauer (1989) 211 Cal.App.3d 937, 942.) "Under the overbreadth doctrine, '"a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invadethe area of protected freedoms."' [Citations.] 'A law's overbreadth represents the failure of draftsmen to focus narrowly on 3 tangible harms sought to be avoided, with the result that in some applications the law burdensactivity which does notraise a sufficiently high probability of harm to governmentalinterests to justify the interference.’ [Citation.]" (Un re Englebrecht (1998) 67 Cal.App.4th 486, 497 [discussing challenges to a preliminary injunction].) It is quite apparent that the purpose of the probation condition at issue hereis to prevent appellant from entering Home Depotstores and taking merchandise without paying for it. "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purposeofthe restriction [preventing appellant from entering Home Depotstores to take merchandise] and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such mattersis impossible, and that practical necessity will justify some infringement." (/n re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Keeping appellant out of all Home Depotstores will have minimaleffect on appellant's rehabilitation as he could simply decide to take merchandise from an endless list of other stores. Thus, although it might relate to avoiding recurrences of appellant's criminal conduct in Home Depotstores, it does not prevent him from engagingin his criminal conduct elsewhere. Thus, it is not closely tailored to appellant's rehabilitation. As appellant points out, the probation condition here is akin to an order directing a defendant to stay away from all persons with blonde hair because he assaulted a man with blonde hair. As such it casts too wide a net, and thus fails the requirementthatit be narrowlytailored to the state interest in reformation and rehabilitation. Generally, probation conditions requiring a probationer to "stay away" from certain people or places are commonly used in drug cases, gang cases, and certain other types of cases such as domestic violence cases or criminalthreats cases.” As such, these 2 Penal Code section 136.2 authorizes a trial court, exercising jurisdiction over a criminal matter, to issue stay away orders to protect victims of violent crime from all communication or contact by the defendant. (Pen. Code, § 136.2, subds.(a)(4), (7)(A); 4 conditions relate to the nature or cause ofthe probationer's crime such as gang activity or drug possession,to the class of persons who would be a source oftemptation to the probationer such as gang members and drugusers or they are imposedto protect the actual victims of the probationer's crime. Here, however, the condition requires appellant to stay away from all Home Depot stores and their parking lots in the state of California—stores that belong to a business corporation, not a person orclass of personsrelated to the probationer's crime. In People v. Perez (2009) 176 Cal.App.4th 380 (Perez), the Second District Court of Appeal struck downa probation condition that provided: "'The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendantis neither a defendant nor under subpoena. The defendant shail inform the probation officer prior to any Court appearance.'" (Jd. at pp. 383, 386.) The court observed that the condition wasneither "limited to protecting specific witnesses or parties" nor "confined to trials involving gang members"and,as written, it was "so broad"that it prevented activities unrelated to future criminality. (Jd. at p. 384.)° The sameistrue of the condition at issue here. As written, effectively, the condition prohibits appellant from entering any store that shares a parking lot with a Home Depotstore.’ Although wefind thatthere is an obvious nexus between appellant's crime and the probation condition as it relates to the specific Home Depotstore from which he took the merchandise, webelieve that the condition should contain an exception that would allow see People v. Selga (2008) 162 Cal.App.4th 113, 118 [authority does not extend to keep a defendant away from persons whoare not victims or witnesses].) 3 Although Perez concernedthe constitutional right to access the courts (Perez, supra, 176 Cal.App.4th at p. 385), the constitutional right to travel is no less important. In fact, the "right is so important thatit is 'assertable against private interference as well as governmentalaction . . . a virtually unconditional personalright, guaranteed by the Constitution to usall.’ [Citation.]" (Saenz v. Roe (1999) 526 U.S. 489, 498.) ‘ Respondent suggests that appellant may enter any store that shares a parkinglot with a Home Depotstore as long has he abstains from entering through the parkinglot. Respondentfails to explain how this is possible. 5 appellant to be on Home Depotproperty onlegitimate business for the condition to pass constitutional muster. "[E]ven where probation accessrestrictions are appropriate, ‘provision should be madeto allow for lawful travel through theareaofrestriction and for access to the areafor legitimate purposes ... | (Oyoghok v. Municipality of Anchorage (1982) 641 P.2d 1267, 1270, fn. 4, italics added; In re White, supra, 97 Cal.App.3d at p. 150...; In re JW. (2003) 204Ill.2d 50, 272 Ill.Dec. 561, 787 N.E.2d 747, 765; see also State v. Churchill (N.C.App.1983) 62 N.C.App. 81, 302 S.E.2d 290, 293 [probation provision restricting defendant's access to a transportation facility was valid because'[t]he court allowed defendant accessto the terminal premises for the legitimate business purposeoftraveling by bus'].)" (Perez, supra, 176 Cal.App.4th at p. 386.)° Disposition Westrike the probation condition requiring appellantto not enter the premises or adjacent parking lot of any Home Depotstore in California. As so modified, the judgmentis affirmed. , Frankly, we believe a much better way to achieve what seemstobethe purpose of the probation condition at issue here is a condition of probationthatis implicit in every order granting probation (People v. Campos (1988) 198 Cal.App.3d 917, 921; People v. Cortez (1962) 199 Cal.App.2d 839, 844) that appellant refrain from engaging in criminal practices, i.e. obey all laws. 6 ELIA,J. WE CONCUR: RUSHING,P.J. PREMO,J. DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Jeffrey M. Moran : No.: H039330 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business, On January 16, 2014, I served the attached Petition for Review by placing a true copy enclosed in sealed envelopesin the internal mail collection system at the Office of the Attorney Generalat 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Joshua H. Schraer Attorney at Law 5173 Waring Road, #247 San Diego, CA 92120 (2 copies) Santa Clara Superior Court Criminal Division - Hall of Justice Attention: Criminal Clerk's Office 191 North First Street San Jose, CA 95113-1090 The Honorable Jeffrey F. Rosen District Attorney Santa Clara District Attorney's Office 70 W. Hedding Street San Jose, CA 95110 Michael A. Kresser Executive Director Sixth District Appellate Program 100 North Winchester Blvd., Suite 310 Santa Clara, CA 95050 I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on January 16, 2014, at San Francisco, California. J. Espinosa Declarant Poex $F2013404397 40862140.doc AMENDED DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Jeffrey M. Moran No.: H039330 T declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On January 16, 2014,I served the attached Petition for Review by placing true copies enclosed in sealed envelopes in the internal mail collection system at the Office of the Attorney Generalat 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Joshua H. Schraer Attorney at Law 5173 Waring Road, #247 San Diego, CA 92120 (2 copies) Santa Clara Superior Court Criminal Division - Hall of Justice Attention: Criminal Clerk's Office 191 North First Street San Jose, CA 95113-1090 The Honorable Jeffrey F. Rosen District Attorney Santa County District Attorney's Office 70 W. Hedding Street San Jose, CA 95110 Michael A. Kresser Executive Director Sixth District Appellate Program 100 North Winchester Blvd., Suite 310 Santa Clara, CA 95050 RECEIVED JAN 162014 CLERK SUPREME COURT Further, on January 16, 2014, I served the attached Petition for Review by placing a true copy enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: . California Court of Appeal Sixth Appellate District 333 West Santa Clara St., Suite 1060 San Jose, California 95113 I declare under penalty of perjury underthe lawsofthe State of California the foregoingis true and correct andthat this declaration was executed on January 16, 2014, at San Francisco, California. J. Espinosa GESpter Declarant Signature $F2013404397. 40866547.doc
