California Court of Appeal Oct 22, 2021 No. E076727Unpublished
Filed 10/22/21 P. v. Stewart CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076727
v. (Super.Ct.No. FSB21000044)
PHILLIP BLAINE STEWART, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
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Phillip Blaine Stewart pled no contest to possessing a “zip gun.” In exchange for
his plea, the trial judge sentenced him to two years’ probation. One condition of his
probation required Stewart to obtain written permission from his probation officer before
leaving the state. Stewart argues the condition is unconstitutionally overbroad. We
The state also has a compelling interest in restricting Stewart’s travel in particular
because of his history of probation violations. Indeed, in 2014 Stewart was convicted of
and placed on probation for the same offense, possession of a zip gun. This suggests two
reasons for an increased government interest in controlling Stewart’s movement. First,
because previous rehabilitation was ineffective, and stricter standards are required to
ensure rehabilitation works this time. Second, because Stewart has a history of violating
conditions, and needs to be more heavily monitored to avoid further violations.
Accordingly, the condition’s requirement that Stewart seek written permission
before leaving the state is narrowly tailored to meet the government’s compelling
interest.
Stewart’s argument that less restrictive alternatives exist is unavailing. He argues
the state’s interest could be met through a simple notice requirement, and that
preapproval is overly restrictive. But a simple notice requirement would not allow the
state to prevent Stewart’s travel into another state, as is implicitly required by
section 1203, subdivision (i). Nor would it be enough to maintain sufficient contact with
him to ensure his compliance and rehabilitation, since it would potentially allow Stewart
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to leave the state without allowing probation to first make the necessary preparations to
keep in contact with him.
Stewart also argues there must be a direct relationship between the crime and the
restriction on travel, and that no such connection exists here. (See, e.g. Smith, supra, 152
Cal.App.4th at pp. 1250-1252 [concluding out-of-county travel restriction for registered
sex offender was “constitutionally infirm” in part because “the prohibition bears no
reasonable relation to the crime”]; White, supra, 97 Cal.App.3d at pp. 149-150 [finding
condition banning defendant from entering certain areas unconstitutional because “there
is no direct relationship between the commission of soliciting for prostitution and the
exercise of the right to travel”]; People v. Relkin (2016) 6 Cal.App.5th 1188, 1195
(Relkin) [upholding imposing similar interstate travel restriction as at issue here in part
because the defendant was convicted for selling drugs and “[t]here is a direct relationship
between the sale and transport of drugs and the exercise of the right to travel”].)
However, the cases Stewart relies on for this proposition are factually
distinguishable. Both White and Smith concerned categorical bans on travel. Indeed, this,
not the condition’s relationship to the crime, was also dispositive in Relkin. The court in
Relkin said it best: “here, unlike White, the condition’s limitation on interstate travel is
closely tailored to the purpose of monitoring defendant’s travel to and from California
not by barring his ability to travel altogether but by requiring that he first obtain written
permission before doing so. Indeed, the court in White concluded that the condition in
question there could be modified by, for example, ‘establish[ing] reasonable hours during
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the day or night when the [defendant] may under certain specified circumstances and for
a particularly enumerated purposes [sic]’ enter into the prohibited areas. [Citation.] In
other words, the condition would pass constitutional muster if it were modified to specify
certain times and reasons the defendant would be permitted to enter while continuing to
prohibit other times and reasons. Such is the case here.” (Relkin, supra, 6 Cal.App.5th at
pp. 1195-1196.) Though Relkin also considered the connection between the condition and
the crime, this connection merely informed its narrow tailoring analysis and was not a
necessary precondition for the condition’s constitutionality.
Accordingly, we conclude the probation condition is not overbroad because the
state’s interest in compelling compliance with the administrative process when a
probationer is out of state is critical, and preapproval is a narrowly tailored means of
achieving that end in this case.
III. DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
McKINSTER Acting P. J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. A probation condition requiring a defendant to obtain written permission from a probation officer before leaving the state is not unconstitutionally overbroad because it is narrowly tailored to the state's compelling interest in supervision and compliance with interstate compacts.
Issues
Whether a probation condition requiring written permission to leave the state is unconstitutionally overbroad.
Whether the probation condition is narrowly tailored to the state's interest in supervision and rehabilitation.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Accordingly, the condition’s requirement that Stewart seek written permission before leaving the state is narrowly tailored to meet the government’s compelling interest.”
“the state’s interest in compelling compliance with the administrative process when a probationer is out of state is critical, and preapproval is a narrowly tailored means of achieving that end in this case.”