Mannino, In re

• Decision Date: 01 February 1971
• Docket Number: Cr. 9005
• Citation: 92 Cal.Rptr. 880,14 Cal.App.3d 953
• Court: California Court of Appeals Court of Appeals
• Parties: , 45 A.L.R.3d 996 In re Vincent Martin MANNINO, On Habeas Corpus.

Page 880

92 Cal.Rptr. 880

14 Cal.App.3d 953, 45 A.L.R.3d 996

In re Vincent Martin MANNINO, On Habeas Corpus.

Cr. 9005.

Court of Appeal, First District, Division 1, California.

Feb. 1, 1971.

Hearing Denied March 31, 1971.

Robert G. Parker, Paul N. Halvonik, American Civil Liberties Union of Northern California, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Sanford Svetcov, Dep. Attys. Gen., San Francisco, for respondents.

SIMS, Associate Justice.

By his petition for habeas corpus the petitioner seeks a judgment declaring that certain conditions upon which he was granted probation are void, and releasing him from all custody and obligations under those conditions. ¹ He contends (1) that the state may not grant the privilege of probation on conditions requiring the relinquishment of First Amendment rights, (2) that the complained of conditions of probation are an unconstitutional prior restraint on free speech, (3) that those conditions are unreasonable and excessive in the light of California probation law, and (4) that those conditions constitute and unconstitutional infringement of the First Amendment rights of petitioner's potential audience.

For reasons hereinafter set forth it is determined that many of the conditions in question exceed the criteria prescribed by law for terms of probation, and are therefor invalid; and that insofar as the remaining conditions impinge on freedom guaranteed by the United States Constitution they are warranted, because of the status of the petitioner as a convicted felon, as conditions, which are reasonably related and sufficiently narrowly drawn, to serve the interest of the state in providing for the reform and rehabilitation of the petitioner. The writ must be granted to the extent that the trial court must be ordered to revise its order in accordance with the views expressed in this opinion.

Attached to the petition are a copy of a judgment and commitment to the county jail, copy of minutes of the court, bearing date of November 5, 1969, which contain the conditions of which the petitioner complains, ² and a memorandum decision of the court dated March 30, 1970 denying the petitioner's petition to modify the terms and conditions of his probation. In their return to an order to show cause issued by this court the People adopted by reference a copy of a probation report dated September 3, 1969 and a copy of the transcript of the sentencing proceedings held November 5, 1969, both of which had previously been lodged with this court.

From the foregoing it appears that on August 1, 1969 after a jury trial, the petitioner was found guilty of assault with force likely to produce great bodily harm in violation of section 245 of the Penal Code; that the matter was referred to the probation officer for a report; and that subsequently, presumably after the receipt of the probation officer's report dated September 3, 1969, the petitioner was referred to the Department of Corrections under the provisions of section 1203.03 of the Penal Code for diagnosis and recommendation; and that on November 5, 1969 following his return to court for sentencing, he was sentenced to state prison for the term prescribed by law, execution of sentence was suspended, and defendant was granted probation for a term of five years on the following conditions, in addition to those which have been noted in the margin: first, that he serve six months in the county jail with credit for time served with the Department of Corrections under the section 1203.03 order; second, that 'he shall, during the period of probation, attend an accredited school or university taking at least 12 semester units or equivalent quarter units each semester or quarter enrolled, for at least 2 semesters or 3 quarters per year, commencing not later than the fall 1970 semester and continuing until a bachelor's degree is obtained'; and third, 'He shall make restitution to the victim in the amount to be determined by the probation officer and to be paid thru the probation officer.'

I

'When granting probation, courts have broad discretion to impose restrictive conditions to foster rehabilitation and to protect public safety. Penal Code section 1203.1 authorizes the court to impose any 'reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, * * * and specifically for the reformation and rehabilitation of the probationer. " (In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 380, 463 P.2d 727, 732. See also, In re Allen (1969) 71 Cal.2d 388, 390 and 393, 78 Cal.Rptr. 207, 455 P.2d 143; People v. Osslo (1958) 50 Cal.2d 75, 103, 323 P.2d 397; People v. King (1968) 267 Cal.App.2d 814, 822, 73 Cal.Rptr. 440, cert. den. (1970) 396 U.S. 1028, 90 S.Ct. 576, 24 L.Ed.2d 524; In re Peeler (1968) 266 Cal.App.2d 483, 488--489, 72 Cal.Rptr. 254; People v. Kern (1968) 264 Cal.App.2d 962, 964--965, 71 Cal.Rptr. 105; People v. Dominguez (1967) 256 Cal.App.2d 623, 626--627, 64 Cal.Rptr. 290; and People v. Bresin (1966) 245 Cal.App.2d 232, 240, 53 Cal.Rptr. 687.)

'The appellate courts of this state have had occasion repeatedly to emphasize that a defendant has no right to be granted probation; probation is a privilege, an act of grace or clemency. (Citations.)' (In re Osslo (1958) 51 Cal.2d 371, 377, 334 P.2d 1, 5. See also, People v. King, supra, 267 Cal.App.2d 814, 822, 73 Cal.Rptr. 440; and In re Peeler, supra, 266 Cal.App.2d 483, 489, 72 Cal.Rptr. 254.) It is also generally stated, 'If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence. (Citations.)' (In re Bushman, supra, 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 381, 463 P.2d 727, 733. See also, In re Osslo, supra, 51 Cal.2d 371, 381, 334 P.2d 1; People v. Osslo, supra, 50 Cal.2d 75, 103, 323 P.2d 397; People v. King, supra, 267 Cal.App.2d 814, 826, 73 Cal.Rptr. 440; People v. Kern, supra, 264 Cal.App.2d 962, 965, 71 Cal.Rptr. 105; People v. Williams (1966) 247 Cal.App.2d 394, 403--404, 55 Cal.Rptr. 550; and People v. Bresin, supra, 245 Cal.App.2d 232, 240, 53 Cal.Rptr. 687.)

It is sometime suggested that the principle that the convicted defendant has the right to refuse probation and suffer his sentence renders him powerless to attack any condition of probation which he has accepted. ³ An examination of the cases last cited in the text indicates that in each case the term of probation under attack was expressly found to be reasonable or proper when it was upheld. (See, People v. Osslo, supra, 50 Cal.2d at p. 103, 323 P.2d 397; People v. King, supra, 267 Cal.App.2d at pp. 823--824, 73 Cal.Rptr. 440; People v. Kern, supra, 264 Cal.App.2d at p. 965, 71 Cal.Rptr. 105; and People v. Bresin, supra, 245 Cal.App.2d at p. 240, 53 Cal.Rptr. 687.) Moreover, it has often been recognized that if the sentencing court has exceeded its powers, the defendant, despite acceptance of probation, may attack an improper term of probation by appeal or application for a writ of habeas corpus. (In re Bushman, supra, 1 Cal.3d at p. 776, 83 Cal.Rptr. 375, 463 P.2d 727 (fn. 1 above); People v. Osslo, supra, 50 Cal.2d at p. 104, 323 P.2d 397; People v. Dominguez, supra, 256 Cal.App.2d at p. 629, 64 Cal.Rptr. 290; and People v. Williams, supra, 247 Cal.App.2d 394, 404, 55 Cal.Rptr. 550.)

'Although the discretion of the trial court in granting probation, and imposing the conditions of probation and in revoking or modifying those conditions * * * is wide, its powers are not boundless.' (In re Peeler, supra, 266 Cal.App.2d 483, 489, 72 Cal.Rptr. 254, 259. See also, People v. Dominguez, supra, 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290; and People v. Williams, supra, 247 Cal.App.2d 394, 407, 55 Cal.Rptr. 550.) 'A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid.' (People v. Dominguez, supra, 256 Cal.App.2d at p. 627, 64 Cal.Rptr. at p. 293.) ⁴

The application of these criteria can be traced through the cases which have been referred to above and through earlier cases, which are reviewed in People v. Dominguez, 256 Cal.App.2d at pp. 627--628, 64 Cal.Rptr. 290, and People v. Williams, 247 Cal.App.2d at pp. 403--404, 55 Cal.Rptr. 550 and need not be reexamined here. The pertinent precedents are noted below.

The first condition, set forth in what has been denominated paragraph '(3)' of the order admitting petitioner to probation, restrains his freedom to associate with others. The right to 'become a member, either actively or passively, of any political or other organization, either on or off campus that participates in or advocates any form of protest or change in existing conditions' is a constitutionally protected right. In Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961, the opinion states, 'The United States Supreme Court * * * pointed out that persons who join an organization but do not share in its unlawful activities pose no threat either as citizens or as public employees, that a law which applies to membership without the specific intent to further the illegal aims of the organization infringes unnecessarily on protected freedoms and rests on the doctrine of guilt by association, and that such a law cannot stand. (Elfbrandt v. Russell (1966) 384 U.S. 11, at pp. 17--19, 86 S.Ct. 1238, 16 L.Ed.2d 321.)' (68 Cal.2d at p. 23, 64 Cal.Rptr. at p. 412, 434 P.2d at p. 964. See also, Keyishian v. Board of Regents (1967) 385 U.S. 589, 607, 87 S.Ct. 675, 17 L.Ed.2d 629; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 508--509, 55 Cal.Rptr. 401, 421 P.2d 409; and Fort v. Civil Service Commission (196...