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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Kenneth Shawn HOPKINS, Defendant and Appellant.

No. A065278.

Decided: November 22, 1994

Robert Spertus, Berkeley, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Allan Yannow, Deputy Atty. Gen., San Francisco, for respondent.

In this appeal we are called upon to consider whether California law permits the imposition of curfew and family support conditions on a probationer convicted of weapons offenses.   After pleading no contest to two weapons offenses, Kenneth Shawn Hopkins (appellant) was placed on three years' probation, the conditions of which required appellant to formalize his child support payments and to adhere to a curfew.   Appellant contends that the trial court was not authorized to impose these conditions.   We find that, even though the conditions are reasonable, innovative and specially tailored to advance appellant's rehabilitation, longstanding Supreme Court precedent compels us to invalidate them.


On November 16, 1993, at approximately 2:10 a.m., Oakland Patrolman Edward Tracey noticed two men in a parked BMW with a cracked windshield.   As the car began to pull away, Officer Tracey effected a traffic stop.   During a discussion with appellant, who was the driver of the car, Officer Tracey observed appellant pushing napkins over the butt of a pistol located next to the driver's seat.   After calling for and receiving backup, Officer Tracey searched the car and found a loaded semi-automatic pistol.

Appellant pled no contest to possession of a firearm by a felon (felony) and to carrying a concealed weapon (misdemeanor), and he admitted a prior felony conviction for possession of narcotics.   The court suspended imposition of sentence (maximum three years) and placed appellant on three years' probation, but delayed specifying the conditions of probation until a determination was made regarding his eligibility for work furlough.   The court informed appellant that his probation might include serving one year in county jail, but he would be allowed to serve through the work furlough unit if he was eligible.

However, the Alameda County Sheriff's Department denied appellant's application for work furlough.   Appellant implored the court to allow him to remain on probation because he was aiding his mother, who had recently undergone three major surgeries for cancer, and he also wanted to continue to be involved with the upbringing of his two children.   Several of his friends, family members and neighbors wrote letters confirming that appellant aided his mother and was involved in his children's lives.   The mother of his two children reported that she was receiving welfare payments and that appellant provided her with $200 to $300 a month.   Ultimately, the court imposed a one-year jail sentence but stayed its execution pending appellant's successful completion of probation.   The court conditioned probation by requiring that appellant enter into a formal child support arrangement and make support payments through the family support unit at the district attorney's office.   The court also imposed a six-month, 10:00 p.m. curfew.   When the court announced these conditions of probation, defense counsel timely objected to both.   Appellant challenges their imposition in this appeal.


 Trial judges possess the unique authority to extend a conditional release to a convicted defendant in the hope that he or she will become a responsible, law-abiding citizen.  “Probation is not a matter of right but an act of clemency, the granting and revocation of which are within the sound discretion of the trial judge.”  (People v. Beach (1983) 147 Cal.App.3d 612, 623, 195 Cal.Rptr. 381.)  “When granting probation, courts have broad discretion to impose restrictive conditions to foster rehabilitation and to protect public safety.”  (In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.)

 The authority to place conditions on probation derives from Penal Code 1 section 1203.1, subdivision (j), which vests courts with broad discretion in prescribing conditions:  “The court may impose ․ 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 that breach, and generally and specifically for the reformation and rehabilitation of the probationer․”  Section 1203.1 has also been interpreted to limit the authority which the court may exercise.  (People v. Richards (1976) 17 Cal.3d 614, 619, 131 Cal.Rptr. 537, 552 P.2d 97;  People v. Keller (1978) 76 Cal.App.3d 827, 832, 143 Cal.Rptr. 184.)   A valid condition of probation must “serve one of the purposes specified in the code section.”  (People v. Richards, supra, 17 Cal.3d at p. 619, 131 Cal.Rptr. 537, 552 P.2d 97.)

 The test for determining whether a probation condition is within the authority of section 1203.1 originated in People v. Dominguez (1967) 256 Cal.App.2d 623, 64 Cal.Rptr. 290.  “A condition of probation which has no relationship to the crime of which the offender was convicted, relates to conduct which is not in itself criminal, and requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid.”  (Id. at pp. 623–624, 64 Cal.Rptr. 290.)   Our Supreme Court, in In re Bushman, supra, 1 Cal.3d at p. 777, 83 Cal.Rptr. 375, 463 P.2d 727, adopted this standard but inadvertently used the disjunctive rather than the conjunctive when applying it, and repeated the error in People v. Mason (1971) 5 Cal.3d 759, 764, 97 Cal.Rptr. 302, 488 P.2d 630.   In People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545, the Supreme Court recognized its mistake and clarified the test:  “[A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”

A. The Child Support Condition Adheres To The Language and Purpose of Section 1203.1, But Does Not Pass Supreme Court Muster

 Appellant contends that the trial court abused its discretion because the child support requirement is an unreasonable condition of probation.   He also asserts that the court departed from case-developed authorities when it imposed the condition.   Although we believe that the child support condition is reasonable, furthers the purpose of rehabilitation of the probationer, and benefits society, longstanding Supreme Court precedent compels us to order that the trial court strike the condition.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

The requirement that appellant enter into a formal child support arrangement is a “reasonable condition” which is “fitting and proper ․ generally and specifically for the reformation and rehabilitation of the probationer.”  (§ 1203.1) Appellant sought probation so he could continue to participate in the upbringing of his two children.   The mother of those two children reported that she was receiving welfare payments and that appellant provided her with an additional $200 to $300 a month.   In an effort to ensure that he fulfilled his parental obligations, the trial court conditioned appellant's probation upon reporting to the family support unit of the district attorney's office to formalize financial support arrangements.   The court stated that “the only motivation of keeping him out of jail is so he can meet the financial obligations that he suggests that he has, and I want to make sure that he in fact does satisfy.”

Additionally, possession of a firearm by a felon and carrying a concealed weapon are serious offenses which demonstrate a lack of responsibility.   In setting the terms of probation, the trial court sought to encourage appellant to be responsible:  “People, you and I, as fathers, are obliged to take care of our children.   If you are doing it voluntarily, well and good, but I want it to be supervised.”   This child support requirement was obviously imposed by a thoughtful trial court as a reasonable and proper means of attempting to rehabilitate appellant.

Further, two legal sources authored by prestigious organizations, the American Bar Association and American Law Institute, advocate conditioning probation on meeting family responsibilities.   The American Bar Association's Standards for Criminal Justice recommend the adoption of rules which allow sentencing courts “to individualize the conditions of probation to fit the circumstances of each case.”  (3 ABA Standards for Criminal Justice, std. 18–2.3(d) (2d ed. 1980), p. 18.72.)   The Standards specifically provide that it is appropriate for a court to require a probationer to meet family responsibilities as a condition of probation.  (3 ABA Standards for Criminal Justice, std. 18–2.3(f)(ii) (2d ed. 1980), p. 18.72.)   The American Law Institute's Model Penal Code lists specific conditions that a court may impose which it “deems necessary to insure that he [probationer] will lead a law-abiding life or (are) likely to assist him to do so.”  (Model Pen.Code, § 301.1, subd. (1).)  Section 301.1, subdivision (2) of the Model Penal Code reads:  “The Court, as a condition of its order, may require the defendant:  (a) to meet his family responsibilities.”

 However, despite the condition's literal compliance with section 1203.1, it is invalid under Lent.   Prior to sentencing, there was no court order requiring appellant to pay child support.   Thus, failing to provide financial support through the District Attorney's office would not be criminal conduct.   If a condition prohibits conduct which is not illegal, it must be “reasonably related to the crime of which the defendant was convicted or to future criminality.”  (People v. Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.)   The two weapons-related offenses have no relation to appellant's duty to support his children.   Further, there is no indication that the child support requirement will prevent future criminality.   Therefore, Lent renders this family support condition invalid.

B. Although The Curfew Condition Furthers This Probationer's Rehabilitation, It Conflicts With Lent

 Appellant also contends that the 10:00 p.m. curfew is an unreasonable condition of probation.2  Once again, we believe this condition is reasonable and specially tailored to appellant's reformation, but we are compelled by Lent to strike it.

Appellant requested that he be allowed to continue his probation, without going to jail, because he wanted to continue to assist his sick mother, with whom he lived.   By imposing a curfew the court ensured that appellant would stay home at night and assist his mother rather than cruising the streets and getting into trouble:  “You [appellant] have responsibilities.   You've identified them.   And now what you have to do is show that you are willing to take care of them.”   Thus, the trial court sought to rehabilitate appellant by encouraging him to fulfill the responsibilities that he, himself, had advanced as justification for probation.

Relying on In re White (1979) 97 Cal.App.3d 141, 158 Cal.Rptr. 562, appellant contends that the curfew was “an overbroad and arbitrary intrusion on his constitutionally protected rights of intramunicipal travel.”   Although the statutory authority of section 1203.1 is circumscribed by constitutional considerations, “[l]ike all constitutional rights the right of free movement is not absolute and may be reasonably restricted in the public interest.”  (In re White, supra, 97 Cal.App.3d at p. 149, 158 Cal.Rptr. 562.)

In White, the trial court placed a woman convicted of soliciting prostitution on probation.  (In re White, supra, 97 Cal.App.3d at p. 143, 158 Cal.Rptr. 562.)   She challenged by writ of habeas corpus a probation condition which excluded her from certain high prostitution areas.  (Id., at pp. 143–144, 158 Cal.Rptr. 562.)   The California appellate court concluded that the condition was unconstitutional because it unnecessarily infringed on the defendant's right to intrastate travel, which includes intramunicipal travel.  (Id., at p. 148, 158 Cal.Rptr. 562.)   The court acknowledged that when a condition limits a constitutional right it must be narrowly drawn.   (Id., at p. 146, 158 Cal.Rptr. 562.)  “ ‘To the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation.’ ”  (Ibid, quoting from People v. Mason, supra, 5 Cal.3d at p. 768, 97 Cal.Rptr. 302, 488 P.2d 630.)   The White court further opined that “[t]he manifest goals of probation and the need for individualistic treatment compels the imposition of special probation conditions framed to meet the particular needs of each individual case.”  (In re White, supra, 97 Cal.App.3d at pp. 150–151, 158 Cal.Rptr. 562.)   The court determined that complete exclusion from an area at all times was too broad because there were less restrictive alternatives, including establishing reasonable hours when the probationer could enter the area for legitimate purposes and prohibiting the probationer from entering specific places within the restricted area.  (Id., at p. 151, 158 Cal.Rptr. 562.)   Therefore, the court ordered that the condition be eliminated or modified so that it did not unnecessarily impinge on the probationer's rights.  (Id., at p. 152, 158 Cal.Rptr. 562.)

Here, the court did not impose an overly broad probation condition.   In an effort to encourage appellant to meet the responsibilities he, himself, had identified, the trial court fashioned “case-specific conditions of probation.”   The 10:00 p.m. curfew guaranteed that, at a minimum, appellant would be home in the late evenings to assist his mother.   Unlike White, the court did not completely exclude appellant from certain areas or from participating in certain activities.   Instead, the court imposed a minimal restraint on his liberty to insure that he fulfilled his responsibilities.   Thus, the curfew was narrowly drawn and not an arbitrary abrogation of appellant's constitutional rights.

 Although the constitutionality of curfew as a condition of probation has not been previously challenged in California, the Oregon Court of Appeals concluded, as do we, that a specially tailored curfew condition does pass constitutional muster.  (State v. Sprague (1981) 52 Or.App. 1063, 629 P.2d 1326.)   In Sprague, after the defendant was convicted of a misdemeanor, the court suspended execution of a 60–day sentence, placed the defendant on probation and imposed a 2–year 10:00 p.m. curfew because she was the mother of an 11–month–old child, and the court believed she was associating with the wrong people.  (Id., 629 P.2d at p. 1327) On appeal she challenged the constitutionality of the curfew.  (Ibid.)  The Oregon court held that the curfew did not unnecessarily infringe upon a constitutional right because it was “a minimal restraint on defendant's liberty and reasonably related to an effective probation.”  (Id., at pp. 1328–1329.)

However, even though the curfew here meets the literal statutory test of “reasonable” and is constitutional, it does not satisfy our Supreme Court's Lent requirements.   Because being out after 10:00 p.m. is not, in itself, criminal conduct, Lent limits the determination of whether this condition is “reasonable” under section 1203.1 in its relationship to either the underlying offense or to future criminality.  (People v. Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.)   Therefore, according to California Supreme Court precedent, appellant's familial responsibilities, even though they motivated the court to opt for probation rather than incarceration, do not provide justification for the probation conditions because they do not relate to appellant's weapons offenses or to his future criminality.

Here, the only relation between curfew and the crime that brought appellant to court is the time that the firearm was discovered, i.e., nighttime.   Possession of a firearm by a felon and concealing a firearm are not crimes unique to nighttime.   If we were to extend Lent by finding the curfew condition related to appellant's crime, Lent would then sanction curfew for any probationer convicted of a crime committed at night, regardless of whether the curfew is appropriate for rehabilitating the probationer.   Appellant did not here engage in a pattern of nighttime criminal activity or even a crime which is more easily effected at night.   Without such it is exceedingly difficult to find that the curfew relates to appellant's future criminality.   Thus, applying Lent, as we must (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937), we are compelled to find the curfew here to be invalid simply because it is not related to appellant's weapons offenses or to his future criminality.

C. Lent Is Ripe For Reexamination

This appeal squarely illustrates one situation where probation conditions unrelated to the underlying offense and to future criminality do assist in the reformation of a probationer.  “The major goal of section 1203.1 is to rehabilitate the criminal.”  (People v. Richards, supra, 17 Cal.3d at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97.)   Thus, section 1203.1 should be interpreted in a manner which allows for reasonable probation conditions that motivate probationers toward responsible citizenship.   The language of section 1203.1 does not imply that a condition of probation must be related to the crime or future criminality.   On the contrary, it authorizes conditions that are “generally and specifically for the reformation and rehabilitation of the probationer.”

Dominguez, which prompted our Supreme Court's Lent interpretation, concluded that a condition of probation that prohibits legal conduct and does not relate to the offense or to future criminality “does not serve the statutory ends probation.”  (People v. Dominguez, supra, 256 Cal.App.2d at p. 627, 64 Cal.Rptr. 290.)   We believe that this premise, which is neither supported nor explained in Dominguez, is simply wrong.   As this case well demonstrates, conditions unrelated to the offense and future criminality can further rehabilitation, which is the primary purpose of probation.  Lent, in adopting the Dominguez test, unnecessarily limits our trial judges' authority to fashion reasonable, creative and individualized conditions of probation.   Thus, Lent actually frustrates the intent of section 1203.1.

We firmly believe that appellate courts should invalidate a condition, which is related to one of the goals enumerated in section 1203.1, only in cases where that condition is not reasonable.   A condition is not reasonable if it (1) is overly harsh in relation to the crime committed,3 (2) unnecessarily infringes upon a constitutional right,4 or (3) is completely unrelated to the probationer's circumstances.   Substitution of such a standard adheres to the plain meaning of section 1203.1 and furthers the primary purpose of rehabilitation by encouraging judges' creativity in tailoring conditions of probation to each individual probationer's needs.   We respectfully encourage our Supreme Court to reexamine Lent and to focus more on a common sense interpretation of section 1203.1 and the central purpose of probation, which is to assist probationers in becoming productive and contributing citizens of the community.


 Although the family support and curfew conditions here imposed are not reasonably related to appellant's conviction or to his future criminality, they certainly further his rehabilitation.   Appellant identified his familial responsibilities as justification for granting probation.   The court was obviously impressed with appellant's stated desire to assume these responsibilities and creatively fashioned probation conditions to insure that appellant actually fulfilled those responsibilities.   Nevertheless, Lent unnecessarily and unreasonably compels us to strike these innovative, specially tailored and otherwise reasonable conditions.   Regrettably, we must order that the trial court strike the curfew and family support conditions.   The judgment is affirmed in all other particulars.


FN1. Unless otherwise indicated all statutory references are to the Penal Code..  FN1. Unless otherwise indicated all statutory references are to the Penal Code.

2.   Although the six months for the curfew has elapsed, because of its importance and the possibility of recurrence, we address its validity.

3.   See People v. Beach, supra, 147 Cal.App.3d at pp. 620–621, 195 Cal.Rptr. 381 (holding that a banishment condition was overly broad);  and People v. Keller, supra, 76 Cal.App.3d at pp. 839–840, 143 Cal.Rptr. 184 (stating that the condition of waiving the Fourth Amendment right to be free from unreasonable searches and seizures on a plea to theft of a 49–cent ballpoint pen was like using “a Mack truck to crush a gnat”).

4.   See People v. Beach, supra, 147 Cal.App.3d at pp. 621–623, 195 Cal.Rptr. 381 (holding that a banishment condition was overly intrusive of constitutional rights);  In re White, supra, 97 Cal.App.3d at pp. 148–150, 158 Cal.Rptr. 562 (holding that a condition preventing the probationer from entering a certain area of town unnecessarily infringed upon the right of free movement);  and People v. Pointer (1984) 151 Cal.App.3d 1128, 199 Cal.Rptr. 357 (finding that a condition prohibiting conception during probation was too restrictive).

ANDERSON, Presiding Justice.

PERLEY and REARDON, JJ., concur.

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