People v. Moran CA6

Filed 12/16/13 P. v. Moran CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039330 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1243366)

v.

JEFFREY MICHAEL MORAN,

Defendant and Appellant.

In this appeal, appellant Jeffrey Moran challenges as overbroad a condition of probation that requires him to not "go on the premises, parking lot adjacent or any store of Home Depot in the state of California." For reasons that follow we agree with appellant that the condition is overbroad. Facts and Proceedings Below1 On October 19, 2012, appellant took batteries and other merchandise from a display rack in the Home Depot store located at 2181 Monterey Road. Appellant concealed the merchandise in his backpack and then walked out of the store past all the points of sale without paying for the items.

1 There was no preliminary hearing in this case. Accordingly, we summarize the facts from the police report and the Home Depot asset protection specialist's reports that were the stated factual basis for appellant's plea in this case. On July 9, 2013, we granted appellant's request to augment the record with these reports.

Tom Nguyen, the store's asset protection specialist, confronted appellant outside the store and instructed appellant to accompany him back inside. Appellant complied. All the merchandise was recovered. When appellant was asked why he did not pay for the merchandise, appellant said he was sent into the store to steal items in exchange for money. Nguyen contacted the police and an officer took appellant into custody and booked him into jail. The Santa Clara County District Attorney charged appellant by felony complaint with one count of second degree burglary. (Pen. Code, §§ 459-460, subd. (b).) The complaint contained an allegation that appellant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). On November 6, 2012, appellant entered a no contest plea and admitted the prison prior in exchange for a promised disposition of one year in county jail top/bottom. On December 21, 2012, the court suspended imposition of sentence and placed appellant on felony probation for three years on the condition that he serve one year in county jail. The court imposed various other terms and conditions of probation including that appellant not "go on the premises, parking lot adjacent or any store of Home Depot in the state of California." Appellant filed a timely notice of appeal based on the sentence imposed. On appeal, appellant contends that the probation condition requiring him to not enter the premises or parking lot of any Home Depot store is overbroad and must be modified. Discussion Appellant argues that the condition here is "clearly overbroad" because there are at least 14 Home Depot stores within 20 miles of his home zip code. Appellant contends that restricting him from entering these or any other Home Depot store or adjacent parking lot in California not only would prohibit him from shopping at such stores, but