By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has rejected the contention of a homeless probationer that requiring him to report daily to his probation officer is, on its face, unconstitutional because it stymies his right to travel and is unreasonable.
Justice Carol D. Codrington authored the opinion, which was filed Wednesday and was not certified for publication.
The appellant, recidivist Donald Ray Gompf, challenged the condition of probation when revocation was sought based on his failure to keep his daily appointments. The probation was imposed in connection with his conviction for violating a domestic violence restraining order secured by his ex-wife.
Codrington observed that the time to contest a term of probation is at sentencing, and noted that Gompf has now served the remaining 226 days of his sentence, reduced by conduct credits, rendering the matter moot. She nonetheless addressed his contentions.
Trial Judge’s Comment
San Bernardino Superior Court Judge Cara D. Hutson was quoted in her opinion as telling Gompf, at the probation revocation hearing:
“Probation has to keep track of people. So people with homes can have home inspections to make sure they’re complying with probation. If they are transient, there’s no way to tell whether they are compliant with probation.
“I agree with the People’s point, probation is a privilege, not a right. And so when you agree to probation, you agree to the terms and conditions of probation. That’s done at sentencing.”
With respect to the impairment of his ability to travel, Codrington said:
“The right to travel and freedom of association are undoubtedly ‘constitutional entitlements…..But…a probation condition may restrict these rights so long as it reasonably relates to reformation and rehabilitation.
“Defendant’s homelessness prevented the probation officer from making a home inspection to check for compliance, especially whether defendant was complying with the no-contact order or coming within 100 yards of his ex-wife. Defendant had demonstrated an unwillingness to seek help for his homelessness and apparent domestic violence issues. Defendant’s underlying criminal conviction directly related to his homelessness. Thus, defendant’s homelessness called for closer supervision of defendant. Defendant’s probation officer in the present case had to supervise defendant closely given his long history of domestic violence, his repeated violations of probation and protective orders, his demonstrated physical violence against his ex-wife, and his previous probation violation in the current case for failure to report.
“The foregoing record establishes that the imposition of the homeless reporting probation condition was necessary to protect public safety, deter future criminality, and serve the compelling state interest in defendant’s reformation and rehabilitation.”
Not Arbitrary, Oppressive
Codrington went on to say that in light of these circumstances, the condition was reasonable, observing:
“The alternative method of supervision, incarceration, would be much more restrictive than the privilege of probation. Therefore, the homeless reporting condition was reasonably necessary to effectively supervise and rehabilitate defendant and did not violate his right to be free from arbitrary and oppressive official action.”
The case is People v. Gompf, E073837.
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