IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 15, 2011
ALBERT HUNTER, PETITIONER,
THE SUPERIOR COURT OF SACRAMENTO COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST.
(Super. Ct. No. 08F05883)
The opinion of the court was delivered by: Hull , Acting P. J.
Hunter v. Superior Court CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 hold that the probation officer's directive exceeded his authority.*fn1
1. Obey All Laws Applicable to You
First, the People claim the probation officer's directive not to leave Rosewood Manor without permission was reasonably related to another condition that provided: "Obey all laws applicable to you." The People note that petitioner was subject to a temporary conservatorship and cite from the code governing conservatorships under the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst. Code, § 5000 et seq.) For example, the LPS Act provides that a temporary conservatorship is designed to make arrangements necessary for the provision of food, shelter and care pending determination of a conservatorship. (Welf. & Inst. Code, § 5353.) If necessary, a conservatee may be detained in a treatment facility. (Welf. & Inst. Code, §§ 5353, 5358.5.) Various statutory provisions specify how such placements may be made. (Ibid.)
The People argue: "Since petitioner was placed in Rosewood Manor under the LPS Act, by extension, he was required to follow Rosewood Manor's rules under the LPS Act." The People claim the goals of the LPS Act cannot be met if conservatees, like petitioner, ignore the rules relevant to their placement. The People claim the probation officer's directive to obey the rules is analogous to caselaw holding that a probation officer may select the time and place of drug tests, where testing is a specific condition of probation. (See People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.)
We disagree. The broad directive to obey all laws must be considered in the context of laws that carry with them criminal implications. The requirement to obey all laws is a standard probation condition, and cases applying it have done so in the context of criminal violations. (See, e.g., People v. Enriquez (2008) 160 Cal.App.4th 230, 241-242; People v. Bianco (2001) 93 Cal.App.4th 748, 752;*fn2 People v. Andre (1974) 37 Cal.App.3d 516, 520, fn. 8.) The People cite no authority holding a standard probation condition to obey all laws applies in a context analogous to the temporary conservatorship at issue here.
Indeed, if the standard probation condition to obey all laws were not limited to violations of criminal laws, it would be subject to challenge by a defendant in court. A probation condition that forbids non-criminal conduct must be reasonably related to the crime of which a defendant is convicted or to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) A probation condition requiring a defendant to obey specific non-criminal laws or regulations may still be imposed by the court in an appropriate case if it meets the criteria. But the defendant must have notice of the imposition of such a probation condition and an opportunity to challenge it.
It is true that the "obey all laws" probation condition at issue here included the language "applicable to you." But we do not construe this language as modifying the standard condition since there is no specific reference to any non-criminal laws such as the LPS Act.
Finally, the directive of the probation officer that petitioner not leave Rosewood Manor without consent goes beyond even the express statutory provisions of the temporary conservatorship law itself. The probation officer did not simply order petitioner to continue to live at Rosewood Manor, consistent with his placement under the temporary conservatorship. Rather, the probation officer's order was designed to enforce the specific rules of the facility where petitioner had been placed. The probation officer's directive goes much further than simply attempting to ensure that petitioner obey the law.
2. Take Prescribed Medication and Not Contact the Victim
The People also refer to two additional probation conditions. Specifically, petitioner was required to "have no contact whatsoever with the victim without the prior approval of the probation officer." Further, he was required to "take all prescribed medication as prescribed by a physician." The People argue that requiring petitioner to check with staff before leaving would make it "less likely that [petitioner] would attempt to surreptitiously contact the victim." Staff would, presumably, also help ensure petitioner was taking his medications.
The requirement that petitioner obtain permission before leaving his residence imposes a substantial restriction on his liberty that is not reasonably related to enforcement of either of these probation conditions. For purposes of our analysis, there is little difference between petitioner's placement at Rosewood Manor and a defendant living at home or in an apartment with family. There was no probation condition requiring petitioner to live at Rosewood Manor, and petitioner could leave the facility whenever he liked and still be in compliance with both of the conditions cited by the People. Further, the probation officer could reasonably monitor petitioner's compliance with both conditions whether or not petitioner obtained permission before leaving.
Having complied with the procedural requirements for issuance of a peremptory writ in the first instance, we are authorized to issue the peremptory writ forthwith. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) Let a peremptory writ of mandate issue directing respondent superior court to vacate its order finding probable cause to hold petitioner on counts I and II of the Petition for Violation of Probation filed February 22, 2010, and to enter a new and different order dismissing both allegations.
We concur: BUTZ , J. HOCH , J.