Santa
Clara County Super. Ct. No. C1243366, Ct.App. 6 H039330 Ron
M. Del Pozzo Judge.
Joshua
H. Schraer, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Gerald A. Engler, Assistant
Attorney General, Laurence K. Sullivan, Jeffrey M. Laurence,
Alisha M. Carlile and Leif M. Dautch, Deputy Attorneys
General, for Plaintiff and Respondent.
WERDEGAR, J.
We
granted review in this case to consider the Court of
Appeal’s ruling that a probation condition prohibiting
defendant Moran from entering the premises or adjacent
parking lot of any Home Depot store in California violates
his constitutional right to travel. Because we find no such
constitutional violation, we reverse the judgment of the
Court of Appeal.
I.
Facts
Defendant
Moran entered a Home Depot store in San Jose, placed items
valued at $128 in his backpack, and left the store without
paying. Confronted by store security, he admitted the theft
and explained that he had hoped to resell the stolen items.
He later pleaded no contest to second degree burglary and
having served a prior prison term for vehicle theft (Pen.
Code, §§ 459, 667.5, subd. (b)), [1] in exchange
for an indicated sentence of probation on conditions
including a year in jail and, at issue here, the condition
that he not “go on the premises, parking lot adjacent
or any store of Home Depot in the State of California.”
He did not object to these conditions.
On
appeal, the Court of Appeal found that “[a]lthough...
there is an obvious nexus between appellant’s crime and
the probation condition as it relates to the specific Home
Depot store from which he took the merchandise, ... the
condition should contain an exception that would allow [him]
to be on Home Depot property on legitimate
business....” According to the appellate court, because
the condition lacked this exception, it was
unconstitutionally overbroad. That court also suggested the
condition violated defendant’s constitutional right to
travel, noting that the “right to travel ‘is
simply elementary in a free society. Freedom of movement is
basic in our scheme of values.’ ” The Court of
Appeal struck the challenged probation condition and, as so
modified, affirmed the judgment. We granted the
People’s petition for review.
II.
Discussion
The
People argue the state may place a criminal offender on
probation, subject to a condition that he or she stay away
from the property of the victim, without contravening the
constitutionally guaranteed right to travel. Consistent with
established law, [2] we first address whether the probation
condition was permissible under state law before turning to
resolve any potential federal constitutional issue posed in
the case.
A.
Statutory Basis for the Condition
Following
a defendant’s conviction of a crime, the sentencing
court may choose among a variety of dispositional options.
One option is to release the offender on probation.
“Probation is generally reserved for convicted
criminals whose conditional release into society poses
minimal risk to public safety and promotes
rehabilitation.” (People v. Carbajal (1995) 10
Cal.4th 1114, 1120 (Carbajal).) A grant of probation
is “qualitatively different from such traditional forms
of punishment as fines or imprisonment. Probation is neither
‘punishment’ (see § 15) nor a criminal
‘judgment’ (see § 1445). Instead, courts
deem probation an act of clemency in lieu of punishment
[citation], and its primary purpose is rehabilitative in
nature [citation].” (People v. Howard (1997)
16 Cal.4th 1081, 1092.) Accordingly, we have explained that a
grant of probation is an act of grace or clemency, and an
offender has no right or privilege to be granted such
release. (People v. Anderson (2010) 50 Cal.4th 19,
32.) Stated differently, “[p]robation is not a right,
but a privilege.” (People v. Bravo (1987) 43
Cal.3d 600, 608.)
Although
the Legislature has directed in some circumstances that
probation be unavailable[3] or limited, [4] in most
circumstances the trial court has broad discretion to choose
probation when sentencing a criminal offender. A reviewing
court will defer to such choice absent a manifest abuse of
that discretion. (People v. Franco (1986) 181
Cal.App.3d 342, 348; People v. Goodson (1978) 80
Cal.App.3d 290, 295.)
When an
offender chooses probation, thereby avoiding incarceration,
state law authorizes the sentencing court to impose
conditions on such release that are “fitting and proper
to the end that justice may be done, that amends may be made
to society for the breach of the law, for any injury done to
any person resulting from that breach, and... for the
reformation and rehabilitation of the probationer.”
(§ 1203.1, subd. (j).) Accordingly, we have recognized a
sentencing court has “broad discretion to impose
conditions to foster rehabilitation and to protect public
safety pursuant to Penal Code section 1203.1.”
(Carbajal, supra, 10 Cal.4th at p. 1120.)
But such discretion is not unlimited: “[A] condition of
probation must serve a purpose specified in the statute,
” and conditions regulating noncriminal conduct must be
“ ‘reasonably related to the crime of which the
defendant was convicted or to future criminality.’
” (Id. at p. 1121.) “If the defendant
finds the conditions of probation more onerous than the
sentence he would otherwise face, he may refuse
probation” (People v. Anderson,
supra, 50 Cal.4th at p. 32) and simply “choose
to serve the sentence” (People v. Olguin
(2008) 45 Cal.4th 375, 379 (Olguin)).[5]
On
appeal, “[w]e review conditions of probation for abuse
of discretion.” (Olguin, supra, 45
Cal.4th at p. 379.) That is, a reviewing court will disturb
the trial court’s decision to impose a particular
condition of probation only if, under all the circumstances,
that choice is arbitrary ...