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

The PEOPLE, Plaintiff and Respondent, v. Fred Bertil VINSON, Defendant and Appellant.

No. A069763.

Decided: April 30, 1996

Kent A. Russell, Russell and Russell, San Francisco, for Appellant. Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Tyler R. Meade, Deputy Attorney General, San Francisco, for Respondent.

After being found guilty by a jury on two counts of selling a controlled substance (Health & Saf.Code, § 11352), defendant Fred Bertil Vinson was admitted to probation upon specified conditions.   He appeals, contending that his trial was infected by prejudicial evidentiary error, and that two of the conditions of his probation are invalid.   We reject these contentions and affirm.


By reason of the trial defense of entrapment, much of the prosecution's case against defendant is undisputed.   The essential features of that case can therefore be summarized briefly.

Upon being arrested in May of 1994 on drug charges, Paul Hamilton agreed to assist police.   No promise of leniency was made;  Hamilton was advised that any help he provided in apprehending his suppliers would be brought to the attention of the probation department and the court.   Hamilton identified one of his suppliers as defendant, whom police already suspected.   Hamilton made two “controlled buys” from defendant.   The second ended with defendant's arrest in his car, where officers found several bindles of cocaine, some of which had been secreted in a hairbrush.   The second buy was recorded on videotape, which was received in evidence and played for the jury.

Defendant's residence was searched pursuant to a warrant.   Officers discovered a scale, baggies, hidden “pay-owe” sheets, and more than $14,000 (most of which was in a fake soft drink can hidden in the basement).

Defendant admitted the two sales to Hamilton, but claimed they were not for profit and were done because Hamilton had been threatening and harassing.




The trial court imposed concurrent mid-terms of four years in state prison for each offense, suspended execution of those sentences, and admitted defendant to probation upon specified conditions.   Among those conditions are that, after serving a year in the county jail, defendant must (1) “be full-time employed, not in a family business” and (2) “not live with his mother or any other family member.”   Defendant contends these conditions are invalid because they encroach upon constitutional rights.

 We first take up the Attorney General's argument that these issues are not properly before us because defendant did not object to these conditions at the time he was sentenced.   The Attorney General relies upon our Supreme Court's recent adoption of a rule of waiver to most run-of-the-mill probation conditions.  (People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   With one partial exception noted hereafter, we do not think this waiver rule is applicable here.   The concept of waiver has traditionally been thought not to govern situations where fundamental public policy was implicated in probation conditions, particularly if the issue is characterized as involving the trial court's jurisdiction to impose the condition.  (E.g., People v. Blakeman (1959) 170 Cal.App.2d 596, 598–599, 339 P.2d 202.)   Nothing in the Welch opinion expressly disapproved this approach.   Moreover, several concurring justices specifically noted their understanding that the waiver rule would not apply to conditions restricting fundamental or constitutional rights.  (People v. Welch, supra, at pp. 240–241, 19 Cal.Rptr.2d 520, 851 P.2d 802 (conc. opn. of Arabian, JJ.).)   In the absence of express direction from the Supreme Court, we will review probation conditions claimed to violate basic liberties or established public policy.   The waiver rule will, however, apply to the condition that defendant obtain full-time employment.   This was one of the conditions imposed in Welch.   (Id. at p. 232, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

 A probation condition may regulate conduct not itself criminal if the condition is reasonably related to (1) the crime for which the defendant was convicted, or (2) future criminality.  (People v. Welch, supra, 5 Cal.4th 228, 233–234, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   If necessary to effectuate the goals of probation, conditions may impinge upon the exercise of constitutional rights.  (E.g., People v. Bauer (1989) 211 Cal.App.3d 937, 941, 260 Cal.Rptr. 62.)

 The common thread of the conditions is to bring defendant out of the cosseted life he had led up to the time of his arrest.   Defendant was 30 years of age, but he still lived at his mother's home.   Defendant had been going to college for 12 years, but he still had not graduated.   He had been sporadically employed at hotels and restaurants, but he had not worked since 1990.   His mother provided everything—shelter, clothing, food, college expenses, his car and the cost of its upkeep, and a $200 monthly allowance.   Defendant told the probation officer that “he would comply with and complete probation, get a job, and finish his education.   In addition, he wants to settle down with someone, buy a house, and have children.”   The probation officer, who recommended a prison commitment, was not impressed:  “Coming from a thirty-year-old man who has not bothered to look for work for years, these laudable goals ring hollow.  [¶] Since high school, his approach to education and work has been that of a dilettante.   It is evident his real pursuit was drug dealing.”

The trial court agreed.   Its approach was to structure probation in such a way that defendant would be required to face the world on his own two feet, in the hope that his energies would be channeled into more lawful activities:  “He has been supported by his family all his life.   He needs to learn how to support himself and be responsible for himself.   And working for his brother [who offered to provide defendant full-time employment] is not going to help him.   He needs to go out and get a job and work full time, at least 40 hours a week.  [¶] Mr. Vinson, you are 30 years old, and you don't have anything to show for your life but this cocaine conviction.   You can't live with your mother.   You have to develop your own life.   You have to find other people to hang around with.   People who are law abiding.   You have to get a career, and you have to start being a person.”

Defendant calls the requirements that he work and live apart from his family “banishment.”   The term has been used when a defendant's rights of travel and association were restricted.  (E.g., People v. Bauer, supra, 211 Cal.App.3d 937, 944, 260 Cal.Rptr. 62.)   The term derives from situations where defendants were granted probation on condition they stay out of the state (People v. Lopez (1927) 81 Cal.App. 199, 203, 253 P. 169) or the county where the crimes were committed (People v. Blakeman, supra, 170 Cal.App.2d 596, 597–598, 339 P.2d 202;  In re Scarborough (1946) 76 Cal.App.2d 648, 649–651, 173 P.2d 825).   That is not the case here.  People v. Bauer, supra, is not dispositive and is easily distinguished.   The condition there gave the probation officer effective control of where the defendant could reside.   Division Two of this Court found the condition failed to satisfy either of the “reasonably related” criteria:  “There is nothing in the probation report or otherwise a part of the record in this case suggesting in any way that appellant's home life ․ contributed to the crime of which he was convicted or is reasonably related to future criminality.”  (People v. Bauer, supra, at pp. 943–944, 260 Cal.Rptr. 62 [fn. omitted].)

In this case, however, both the probation officer and the trial court saw a clear connection with defendant's idle lifestyle and his involvement in criminality.   It is equally clear that the court saw the possibility for a resumption of defendant's criminality unless that lifestyle was altered dramatically.   The court believed—and reasonably so, in our opinion—that defendant must be forced to break free of his mother's apronstrings.   Her good intention cannot be doubted, but the consequence of defendant getting everything handed to him on a platter was his susceptibility to the temptation of criminality, a temptation which he had demonstrably been unable to resist.   If forced to earn his own way, the court could legitimately conclude that defendant might stiffen his resistance to future criminality, and thus have a chance to achieve the “laudable goals” he described to the probation officer.

The order of probation is affirmed.


FOOTNOTE.   See footnote *, ante.

POCHÉ, Acting Presiding Justice.

REARDON and HANLON, JJ., concur.