Metropolitan News-Enterprise


Thursday, November 14, 2013


Page 3


Banning Thief From ‘Parking Lot’ of Store Held Unconstitutional


By JUSTIN LEVINE, Staff Writer


A probationary order requiring a defendant to stay away from the “parking lot and store” of an establishment he stole from was unconstitutionally vague and overbroad, the Sixth District Court of Appeal ruled yesterday.

The panel ordered a modification of the probation conditions imposed on a man who pled no contest to commercial burglary and battery. But it declined to consider Angel John Ortega’s argument that the probation conditions were unduly vague for lack of a knowledge requirement, saying its modification order rendered the issue moot.

As modified, the probation conditions make no reference to the parking lots of the targeted stores.

Ortega was charged after he entered a Lucky supermarket in San Jose and placed several items into a backpack before attempting to leave without paying for them. After a loss prevention officer approached him, Ortega tried to strike the officer with his backpack but was apprehended after tripping.

He eventually pled no contest to the charges and was placed on probation for three years.

At the sentencing hearing, the judge issued the terms of probation, saying:

“You cannot go on the premises of any Lucky store, Savemart store or Food Maxx store in the State of California or you’ll be in violation of probation. That means parking lot and store.”

Lucky, Savemart and Food Maxx stores are all operated by the same parent company, Save Mart Supermarkets.

The defendant argued that the probation conditions were vague and unconstitutionally overbroad because it infringed on his “constitutional right to travel.” Offering a hypothetical, he complained that he could be found in violation of probation by entering a parking lot even if he was unaware that any of the specified supermarkets were nearby.

In an unpublished opinion, Court of Appeal Justice Nathan Mihara held that while probation terms can justifiably keep the defendant from entering Save Mart Supermarkets themselves, he could not be prevented from entering other establishments that may share the same lot space.

Citing In re Sheena K., 40 Cal.4th 875 (2007), Mihara said “[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.”

He also said that such conditions must be “sufficiently precise” so that a probationer can reasonably know what is required of him.

The justice elaborated:

“Though ‘[t]he right of intrastate travel has been recognized as a basic human right protected by’ the California Constitution…as defendant acknowledges, probation conditions frequently require a probationer to stay away from his or her victim. Here, the parent company of the Lucky supermarket that was victimized by defendant requested that he be ordered to stay away from all Lucky, Save Mart, and FoodMaxx supermarkets. Defendant may exercise his right to travel as long as he stays away from the premises of his victim. Thus, to the extent that the probation condition prohibits him from entering these stores, it does not impermissibly infringe on his constitutional right to travel. However, there is no justification to keep defendant away from any business that is attached to the same parking lots…”

The case is People v. Ortega, H039218.


Copyright 2013, Metropolitan News Company