Probation condition requiring defendant to stay away from a retail store he burglarized in the past is not unreasonable, vague, or overbroad. Contreras pled no contest to felony second degree commercial burglary (Pen. Code, §§ 459, 461) for stealing seven pairs of jeans from Sears and to felony possession of heroin (Health & Saf. Code, § 11350). At the time of the offenses, he was on misdemeanor probation for two prior burglaries, one for burglarizing a Kohl’s. The court suspended imposition of sentence and granted three years of formal probation with various conditions. One condition required that he stay out of all Kohl’s stores and of all Sears stores. On appeal, Contreras raised a number of issues, including that the Kohl’s probation condition was vague, overbroad, and unreasonable under People v. Lent (1975) 15 Cal.3d 481, 486. Held: Affirmed on this point. The Kohl’s condition is not unreasonable under the Lent test. Even though Contreras’ current conviction was for stealing from Sears, he has victimized both Sears and Kohl’s in the past (this was his fourth commercial burglary) and therefore the condition is related to the crime for which he was convicted. Additionally, the condition is reasonably related to his future criminality, as his crimes are intimately related to the retail function of the stores and the condition will prevent him from further victimizing these businesses. Contreras also argued that the Kohl’s condition was overbroad because it burdened his right to travel, but the court reasoned that the condition was narrowly tailored to protect Kohl’s from further theft. His argument that the condition is unconstitutionally vague because it does not contain a knowledge requirement lacked merit: “Given the signage on modern retail establishments, we fail to see how one could unknowingly enter a Kohl’s store.” [Editor’s Note: The court noted that the following issue is currently pending in the California Supreme Court: Was the condition of probation barring defendant from all Home Depot stores and their parking lots after he was convicted of shoplifting at a single Home Depot store unconstitutionally overbroad as impinging on his constitutional right to travel? (People v. Moran (Dec. 16, 2013, H039330) [nonpub. opn.], review granted 3/26/2014 (S215914).)]

Probation condition requiring that defendant not use or possess “surveillance equipment” was vague and overbroad and must be modified on remand. One of Contreras’ probation conditions required that he not have access to, use, or possess any police scanner device or surveillance equipment on his person, vehicle, place of residence, or personal effects. This condition was vague and overbroad because innocuous items like an iPad or cellphone could arguably be considered surveillance equipment. The problem with the condition could be better addressed by listing “police scanners” and “surveillance equipment” as examples of prohibited items, and then describing the functions of the prohibited items or devices the trial court sought to curtail. A knowledge requirement is also necessary to eliminate vagueness and overbreadth in the description of the prohibited devices and activities. The court also questioned whether it was necessary to mention the location of the items. The case was remanded to the trial court so it could fashion an appropriate condition.

Appellant was unable to obtain Proposition 47 relief on appeal in the first instance because there were unresolved factual issues related to his eligibility for resentencing that needed to be decided by the trial court. While Contreras’ appeal was pending, California voters enacted Proposition 47. In a supplemental opening brief, Contreras argued that the Court of Appeal should reduce both his felony convictions to misdemeanors because Proposition 47’s provisions apply retroactively to cases, like his, which are not yet final on direct review. The Court of Appeal rejected the argument without deciding whether Proposition 47 applies retroactively because the record on appeal was incomplete. Contreras had filed Proposition 47 petitions in the trial court, and at least one was denied. These petitions and the trial court’s order were not part of the record in this appeal and are the subject of a separate pending appeal. There were also numerous factual issues that needed to be resolved by the trial court in the first instance before Proposition 47 relief could be provided. For example, Contreras’s felony conviction for second degree commercial burglary could be reduced to misdemeanor shoplifting under Proposition 47, but a finder of fact must first determine that the seven pairs of jeans he stole from Sears were valued at less than $950 and that he stole them during regular business hours. Furthermore, a finder of fact must determine that Contreras would not pose an unreasonable risk of danger to public safety if resentenced to misdemeanors. Such factual questions are not for an appellate court and must be made in the first instance by the trial court. (See In re Zeth S. (2003) 31 Cal.4th 396, 405.)