(Super. Ct. No. 08F05883)
The opinion of the court was delivered by: Hull , Acting P. J.
Hunter v. Superior Court CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Petitioner Albert Hunter is charged with violating his probation in a felony case by failing to obey reasonable instructions of his probation officer. Specifically, he is charged with leaving the residential facility where he was living without staff permission, contrary to a prior directive of his probation officer. He is currently confined at Napa State Hospital after being found incompetent to participate in the legal proceedings. The petition alleging he violated his probation remains pending, and the proceedings were suspended until his competency is restored.
The current petition challenges the trial court's ruling that there is probable cause to support the probation violation allegations. Petitioner claims the probation officer exceeded the scope of his authority in directing petitioner not to leave the residential facility without staff permission, and that the directive imposed a substantively new condition of probation requiring court approval. We agree and conclude there is no cause to continue to hold petitioner for the alleged probation violations.
Petitioner was previously convicted of a felony for annoying or molesting a minor and was granted probation. (Pen. Code, § 647.6, subd. (a).) Among the conditions of probation was a general provision that specified: "You are to follow in all respects any reasonable instructions given to you by the probation officer having your supervision."
While on probation, petitioner was living at a residential facility called Rosewood Manor Board and Care (Rosewood Manor) pursuant to a temporary conservatorship. One of the facility rules prohibited petitioner from leaving the premises without staff permission. Staff informed petitioner's probation officer that on the weekends petitioner had been leaving without permission in the mid-afternoon and returning in the early evening. Petitioner's probation officer directed him not to leave Rosewood Manor without permission and/or supervision of the staff. There is evidence petitioner nevertheless did so on two subsequent occasions.
On February 22, 2010, petitioner was arraigned on a petition alleging three violations of probation. One of the allegations was ultimately rejected by the trial court, leaving the two at issue here. Both of the remaining violations (counts I and II) are based on allegations petitioner left Rosewood Manor without staff knowledge or permission, in violation of the probation condition that petitioner obey reasonable instructions of his probation officer. Petitioner's counsel requested a probable cause hearing on the alleged violations and moved to dismiss. (See generally Pen. Code, § 1368.1.) The People did not oppose holding a probable cause hearing. At the hearing on September 16, 2010, the trial court found probable cause to support the two alleged violations at issue.
On November 18, 2010, petitioner filed a petition for writ of habeas corpus in this court that challenged the trial court's finding of probable cause. We denied the petition without prejudice to filing a petition for writ of mandate in this court that included adequate supporting documentation. (In re Hunter (Nov. 18, 2010, C066576) [pet. denied].) On November 30, 2010, petitioner filed this petition for writ of mandate. This court requested the People file written opposition to the petition, which was filed on January 13, 2011. Petitioner filed a reply on February 3, 2011. We subsequently advised the parties that we were considering issuing a peremptory writ in the first instance and provided additional time to file any further opposition. The People advised this court that they would submit the matter on the opposition they had previously filed.
This case requires us to consider the probation officer's authority to issue the directive that petitioner not leave Rosewood Manor without permission. "Probation officers have wide discretion to enforce court-ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) But the substantive probation conditions must be imposed by the courts. The issue before us is whether the probation officer's directive was reasonably related to other probation conditions or whether, as petitioner contends, the probation officer imposed a substantively new condition that unlawfully impinged on petitioner's freedom of movement.
The People claim the probation officer acted consistently with his authority to enforce other conditions of probation. Accordingly, we consider each of the probation conditions cited by the People. As we shall explain, we disagree with the People's contentions and ...