White, In re

• Decision Date: 24 September 1979
• Docket Number: Cr. 4360
• Citation: 158 Cal.Rptr. 562,97 Cal.App.3d 141
• Court: California Court of Appeals Court of Appeals
• Parties: In re Barbara WHITE On Habeas Corpus.

Page 562

158 Cal.Rptr. 562

97 Cal.App.3d 141

In re Barbara WHITE On Habeas Corpus.

Cr. 4360.

Court of Appeal, Fifth District, California.

Sept. 24, 1979.

Melvin W. Nitz, Public Defender, and Katherine Hart, Deputy Public Defender, County of Fresno, Fresno, for petitioner

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Wm. George Prahl, Deputy Attys. Gen., Sacramento, for respondents.

OPINION

HOPPER, Associate Justice.

In this habeas corpus proceeding petitioner (White) seeks to be free from certain conditions of probation imposed on her as a result of her plea in municipal court to a violation of Penal Code section 647, subdivision (b), soliciting an act of prostitution, which took place on November 14, 1978. In granting probation to White for a two-year term the trial court imposed, and White accepted, inter alia, the following condition:

4. Not to be present within the following designated areas at any time, day or night, or be present upon either side of any street which is a border of such area:

Clinton Avenue on the north, Olive Avenue on the south, North Parkway Drive on the west, and Weber on the east. (North Control Area # 1.)

Fresno Street on the north, Ventura Street on the south, "E" Street on the west, and "H" Street on the east. (Central Control Area # 2.)

East California Avenue on the north, West Church Avenue on the south, Golden State on the west, and South East Avenue on the east. (South Control Area # 3.)

As part of the written conditions White received a map of the three control areas. (For convenience these areas are sometimes hereafter referred to as "map areas".)

The municipal judge asked White if any condition would constitute a hardship. White told the judge that she had been living within one of the "map areas" for approximately three months. She was given three weeks to move out of the "map areas" which she did. An additional condition of probation was that White perform a certain amount of community service. The facility at which she was to perform this community service was within one of the "map areas" and consequently she was reassigned to another facility.

While on probation White was arrested January 5, 1979, on a charge of solicitation. While released on bail on that charge she was observed on January 18, 1979, parked alone on a street in one of the "map areas". On January 25, 1979, she was sentenced to 90 days for violation of probation. On February 5, 1979, she pled guilty to the January 5, 1979, charge and was sentenced to a 90-day jail term to run concurrently with the time received on the revocation of probation. The superior court denied her petition for habeas corpus as to the map condition.

Statistics introduced at the habeas corpus hearing in the superior court established that the three map areas constituted major areas of arrest for prostitution activity in the city of Fresno. A fourth area of prostitution activity existed along Blackstone Avenue (which was Not in any map area) and an increase in such activity was noted as occurring after restriction from the "map areas" was utilized as a condition of probation.

White claimed that she had friends or relatives who lived in map area # 1, and that, furthermore, before probation she had patronized three restaurants within the same map area. She further claimed that before probation she took the Greyhound Bus frequently which she was unable to do under probation because the depot is within map area # 2. White also testified that it was most difficult for her to take her children to the local park and zoo because it bordered one of the "map areas".

Officer Robert Rodriguez, a detective in the vice division with the Fresno Police Department, testified that since the "map" was imposed in July of 1978 the "visibility of prostitutes on the street is down." Additionally, Rodriguez stated that the actual crimes reported to the Fresno Police Department are down, as far as crimes that are normally associated with prostitution activity. " Rodriguez also testified that a number of persons he knew to be prostitutes are no longer seen in the "map area"; instead, they are all seen in another area of town.

In terms of enforcement of the "map" Rodriguez said that if a person who is on formal probation for soliciting prostitution is seen in this area he would make an arrest without a warrant. The only reason for the arrest would be that person's presence in a proscribed area.

White contends that the map condition violates her rights of free speech, free association, privacy, her right to be free of unreasonable seizures, her rights to travel, and that the condition does not comport with the California probation law and that it is an improper banishment.

The relevant statute is Penal Code section 1203.1 which provides in pertinent part:

"The court . . ., in the order granting probation, may suspend the imposing, or the execution of the sentence . . . upon such terms and conditions as it shall determine. (P) The court may impose and require any . . . Reasonable conditions, as it may determine 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 such breach and generally and specifically for the reformation and rehabilitation of the probationer . . . ," (emphasis added.) ¹

Under that section a sentencing court has broad discretion to describe conditions of probation to foster rehabilitation and to protect the public to the end that justice may be done. (People v. Richards (1976) 17 Cal.3d 614, 619, 131 Cal.Rptr. 537, 552 P.2d 97; In re Martinez (1978) 86 Cal.App.3d 577, 580, 150 Cal.Rptr. 366; People v. Keller (1978) 76 Cal.App.3d 827, 831, 143 Cal.Rptr. 184.) In the Keller case, the court commented upon this discretion in probation sentencing by stating:

"The discretion granted is not boundless. In the first place, the authority is wholly statutory; the statute furnishes and limits the measure of authority which the court may exercise (citations). (P) Secondly, the discretion to impose conditions of probation as granted by Penal Code section 1203.1 is further circumscribed by constitutional safeguards. Human liberty is involved. A probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth and Fourteenth Amendments to the Federal Constitution (citations)." (People v. Keller, supra, 76 Cal.App.3d 827 at p. 832, 143 Cal.Rptr. 184 at p. 187.)

quoting from the landmark case of People v. Dominguez (1967) 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290, our California Supreme Court has set out the standard in People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 908, 541 P.2d 545, 548 as follows:

"A condition of probation will not be held invalid unless it '(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 . . . .' (citation)."

There is an overall requirement of reasonableness in relation to the seriousness of the offense for which a defendant is convicted (People v. Keller, supra, 76 Cal.App.3d 827, 839-840, 143 Cal.Rptr. 184). " . . . The Constitution, the statute, all case law, demand and authorize only 'reasonable' conditions, not just conditions 'reasonably related' to the crime committed." (Keller, at p. 839, 143 Cal.Rptr. at p. 192.)

Careful scrutiny of an unusual and severe probation condition is appropriate (United States v. Pastore (2d Cir. 1976) 537 F.2d 675, 681).

The fact that a defendant has the right to refuse probation does not preclude attack on an improper term of probation by appeal or application for a writ of habeas corpus. (In re Mannino (1971) 14 Cal.App.3d 953, 959, 92 Cal.Rptr. 880 and cases cited therein.)

"Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is Not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights." (People v. Mason (1971) 5 Cal.3d 759, 768, 97 Cal.Rptr. 302, 307, 488 P.2d 630, 635. In re Allen (1969) 71 Cal.2d 388, 391, 78 Cal.Rptr. 207, 455 P.2d 143.)

Applying the above rules of law to the instant case, we conclude that the condition in question is unreasonable. The map condition may have some relationship to the crime of soliciting. However, a blanket prohibition against being in a designated area of Fresno "anytime, day or night", appears to be unduly harsh and oppressive. While we do not suggest that the offense of soliciting for prostitution is limited to the nighttime hours in spite of the oft used phrase "ladies of the night", we do note that the events resulting in the arrest for revocation of probation took place at a time of darkness and that the evil to be eliminated by the statute, i. e. "streetwalking", is more prevalent in the later hours of the day. Undoubtedly even practitioners of prostitution have particular or usual "business" hours.

Mere presence at a particular place, without more, does not amount to solicitation. Nor, without more, is " 'waving to a passing vehicle, nodding to a passing stranger, or standing on a street corner in a miniskirt' " (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 346, 138 Cal.Rptr. 66, 69, 562 P.2d 1315, 1318). ² There are simply innumerable situations in which a probationer could be in the map area which are unrelated to prostitution. The condition relates to conduct which is not criminal. Many perfectly legal activities are covered by this condition which have no relationship whatsoever to soliciting (cf. People v. Arvanites (1971) 17 Cal.App.3d 1052, 1063, 95...