Metropolitan News-Enterprise


Tuesday, October 9, 2018


Page 1


Court of Appeal:

Requirement for Probationer to Seek Approval to Move Unconstitutional


By a MetNews Staff Writer


The Third District Court of Appeal has said that a condition of probation requiring a man to obtain approval from his probation officer before changing his residence was unconstitutionally overbroad on its face.

The opinion, filed Thursday, was written by Justice Elena J. Duarte. It remands the matter with directions to strike or modify the condition.

Defendant Howard W. Neel was found guilty of insurance fraud after making false statements to his doctors in support of a workers’ compensation claim. Butte Superior Court Judge Michael R. Deems placed Neel on probation with the following condition, among others:

“4. You must maintain your residence as approved by the probation officer and not change your residence without prior written approval of the probation officer.”

Previous Case

The defendant relied on a 1989 opinion from the First District Court of Appeal, People v. Bauer, in which a similar condition had been stricken. In that opinion, Presiding Justice J. Anthony Kline of Div. Two applied the test for whether a condition is reasonable from People v. Lent, a 1975 state Supreme Court opinion.

Kline wrote:

“There is nothing in the probation report or otherwise a part of the record in this case suggesting in any way that appellant’s home life (which is exemplary compared to that of most convicted felons) contributed to the crime of which he was convicted or is reasonably related to future criminality. For these reasons, and because residing with one’s parents relates to conduct not in itself criminal, the condition imposed by the court fails to satisfy the test…adopted in People v. Lent….

 “The 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. The condition gives the probation officer the discretionary power, for example, to forbid appellant from living with or near his parents—that is, the power to banish him. It has frequently been held that a sentencing court does not have this power.”

Government’s Contention

The government contended that a later state Supreme Court opinion, 2008’s People v. Olguin, had limited the Bauer holding. In Olguin, then-Chief Justice Ronald M. George (now retired) explained that a condition requiring a probationer to notify his probation officer of any pets at his residence only required notice, not approval.

George wrote:

“Defendant claims that this notification condition restricts his ability to own a pet. A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’ ”

Writing in People v. Stapleton, Div. Two of the Fourth District Court of Appeal in 2017 applied Olguin to a residence restriction similar to those in Bauer and in Neel’s case. There, Presiding Justice Manuel A. Ramirez declared:

“We view the residence approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons….A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court. Thus, a probation officer cannot use the residence condition to arbitrarily disapprove a defendant’s place of residence. The condition does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order.”

Duarte wrote:

“We need not decide here whether we agree with the Stapleton court’s reading of Olguin to narrow what otherwise would be an overbroad condition by assuming the probation officer will exercise unlimited authority to deny a constitutional right in a reasonable manner. Stapleton (and Arevalo) are readily distinguishable from the instant case because despite their self-characterization as reviews for facial overbreadth, they each rely heavily on the particular facts of the case to support the constitutionality of the conditions.”

Because Neel had not timely objected to the condition, the court did not consider arguments requiring it to look to the record, such as the condition’s reasonableness under the Lent test.

The jurist continued:

“In our view, Bauer is not diminished by Olguin. Like the probation conditions in Bauer…the condition at issue here is unlimited. Rather than requiring notification of residence changes to the probation officer, which would be analogous to the condition upheld in Olguin, the condition requires the probation officer’s prior approval of residence changes, with no guidance as to unacceptable locations. Although it is true that a probation officer is not permitted to act arbitrarily, this legal limit does not permit imposition of open-ended orders. On remand, general condition No. 4 must be stricken or modified to delimit the probation officer’s authority to veto defendant’s proposed changes of residence or to require prior notice rather than prior approval.”

The case is People v. Neel, C080559.


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