Filed 2/11/16 P. v. Raymundo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

JAIME RAYMUNDO, SR.,

Defendant and Appellant.

 H042080

 (Monterey County

 Super. Ct. No. SS142975A)

Defendant Jaime Raymundo, Sr., pleaded nolo contendere to one count of 

inflicting corporal injury upon a spouse or cohabitant (Pen. Code, § 273.5, subd. (a))1and 

one count of misdemeanor child endangerment (§ 273a, subd. (b)). The trial court 

suspended imposition of sentence and placed him on four years’ felony probation. On 

appeal, he argues that the probation condition requiring him to obtain permission from his 

probation officer before changing his place of residence from Monterey County or 

leaving the State of California is overbroad, unconstitutional, and unreasonable. He also 

claims he is entitled to additional presentence credit and that this court should clarify the 

trial court’s order regarding restitution fines. For the reasons set forth below we modify 

several of his probation conditions. As modified, we affirm the order of probation.

 

1 Unspecified statutory references are to the Penal Code.
2

BACKGROUND

Facts2

On November 24, 2014, officers responded to a report of domestic violence at a 

supermarket parking lot. The victim lived with defendant. She stated that defendant had 

struck her on the face with car keys and had choked her after a verbal argument. She said 

that defendant assaulted her while he held their one-year-old son in his free arm. The 

victim also told officers that defendant had assaulted her in the past, but she had not 

reported the incidents to police. Defendant acknowledged that he had an argument with 

the victim but denied the assault. 

Procedural History

On December 23, 2014, defendant was charged by information with one count of 

corporal injury to a cohabitant (§ 273.5, subd. (a); count 1), assault by means likely to 

produce great bodily injury (§ 245, subd. (a)(4); count 2), and misdemeanor child abuse

(§ 273a, subd. (a); count 3).

On February 3, 2015, the information was amended to add count 4, misdemeanor 

child endangerment (§ 273a, subd. (b)). Thereafter, defendant pleaded nolo contendere to 

inflicting corporal injury on a cohabitant and misdemeanor child endangerment. He 

entered his plea with the understanding that he would receive felony probation. 

On March 12, 2015, the trial court suspended imposition of sentence for four years 

and placed defendant on formal probation under various terms and conditions. One of 

the conditions of probation stated: “Do not change your place of residence from 

Monterey County or leave the state of California without permission of the probation 

officer.” Defendant objected to the imposition of the condition, arguing that it was 

overbroad and infringed upon his constitutional right of intrastate travel. He agreed that 

 

2

Since defendant pleaded nolo contendere, we derive our facts from the probation 

report, which is based on a report prepared by the Salinas Police Department. 
3

he “should give advance notice to the probation department prior to moving,” but that the 

imposed condition “allows probation to block his movement.” The court responded that 

it believed that defendant could seek relief from the court if he felt his rights had been 

infringed. Thereafter, the court stated, “If you feel that probation has infringed upon your 

rights to travel, the Court would be happy to entertain an application for modification of 

sentence to further modify or strike that sentence.”

The trial court attached a three-page memorandum justifying the imposition of the 

change of residence probation condition to the minute order of the sentencing hearing. 

The memorandum asserted, broadly speaking, that the condition would allow for

meaningful supervision by the probation officer and that the condition was not an 

unreasonable restriction on a defendant’s right to travel.

The court also incorporated the terms and conditions of probation recommended in 

the probation report, which included: “In lieu of a fine, pay $300.00 to a Women’s 

Shelter Program as directed by the probation officer. (P.C. § 1203.097(a)(11)(A).)” The 

court ordered defendant to serve 213 days in county jail and awarded him custody credit 

of 107 actual days and 106 days of conduct credit. 

Defendant appealed.

DISCUSSION

On appeal, defendant makes the following claims: (1) the probation condition 

requiring him to get permission from his probation officer before moving from Monterey 

County or leaving the State of California was not reasonably related to his crime and is 

unconstitutional, (2) he is entitled to additional presentence credit because he was in 

custody longer than indicated in the probation report, and (3) the order regarding the 

$300 fine imposed under section 1203.097, subdivision (a)(11)(A) should be clarified 

that the fine is meant to replace the restitution fine under section 1202.4. 
4

1. Probation Condition Requiring Permission to Move or Leave the State

First, defendant argues that the residence condition is not reasonably related to his 

crime and fails the test articulated by our Supreme Court in People v. Lent (1975) 15 

Cal.3d 481 (Lent). He also claims that the condition is unconstitutionally overbroad. We 

address these claims separately.

a. Reasonableness of the Probation Condition

Under Lent, supra, 15 Cal.3d 481, a condition is “invalid [if] it ‘(1) has no 

relationship to the crime of which the offender was convicted, (2) relates to conduct 

which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably 

related to future criminality.’ ” (Id. at p. 486.) “This test is conjunctive—all three prongs 

must be satisfied before a reviewing court will invalidate a probation term.” (People v.

Olguin (2008) 45 Cal.4th 375, 379.)

Preliminarily, we note that defendant’s opening brief appears to attack the validity 

of the probation condition by asserting that it was unreasonable under the Lent test and 

because it was not narrowly tailored and therefore unconstitutionally overbroad. The 

reasonableness of a probation condition and the condition’s unconstitutional overbreadth

are different concepts.3 Some of defendant’s arguments appear to conflate these two 

issues.4 Whether a probation condition is unreasonable depends on if the condition meets 

all the requirements set forth in Lent, supra, 15 Cal.3d 481. Whether a condition is 

 

3

For example, defendant argues in his opening brief that “[t]he trial court’s 

reasons for insisting on the condition [as articulated in the memorandum attached to the 

minute order] were inadequate because they did not relate to either [defendant] or his 

crime.” However, this is an argument pertaining to the condition’s reasonableness, not 

its overbreadth.

4

In part, this confusion may arise from defendant’s reliance on People v. Bauer

(1989) 211 Cal.App.3d 937 (Bauer), which we discuss, infra, in the next section of this 

opinion. Bauer considered whether a similar probation condition was unreasonable under 

the Lent test and whether it was an unconstitutional infringement on the defendant’s 

rights. (Id. at pp. 943-945.)
5

unconstitutionally overbroad depends on if the condition impinges on a constitutional 

right and is not narrowly tailored and reasonably related to a compelling state interest. 

(In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).)

As a general rule, failure to object to a probation condition on the grounds that it is 

unreasonable under Lent waives the claim of error on appeal. (People v. Welch (1993) 5 

Cal.4th 228, 237.) Here, defendant objected to the imposition of the probation condition, 

but not on the grounds that it was not reasonably related to his crime. Rather, he objected 

on the grounds that the condition was an “overbroad term” and that it “infringe[d] on his 

constitutional right of intrastate travel.” Accordingly, we find that defendant has waived 

any challenges to the reasonableness of the condition, since he failed to raise an objection 

on that ground below.

b. Overbreadth5

Defendant, however, has not waived his claims regarding the constitutionality of 

the probation condition. On appeal, we review the constitutionality of a probation 

condition de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889; In re Shaun R.

(2010) 188 Cal.App.4th 1129, 1143.) 

A probation condition cannot be overbroad or vague, it “ ‘ “must be sufficiently 

precise for the probationer to know what is required of him, and for the court to 

determine whether the condition has been violated . . . .” ’ ” (People v. Barajas (2011) 

198 Cal.App.4th 748, 753.) “A restriction is unconstitutionally overbroad . . . if it 

(1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably 

related to the compelling state interest in reformation and rehabilitation.’ [Citations.] 

 

5 Although neither party acknowledges this, the California Supreme Court is 

presently considering the constitutionality of a similarly worded probation condition in 

People v. Schaeffer (2012) 208 Cal.App.4th 1, review granted October 31, 2012, 

S205260. The condition at issue there required the defendant to “ ‘[r]eside at a residence 

by the Probation Officer and not move without his/her prior approval.’ ” (Id. at p. 4.)
6

The essential question in an overbreadth challenge is the closeness of the fit between the 

legitimate purpose of the restriction and the burden it imposes on the defendant’s 

constitutional rights—bearing in mind, of course, that perfection in such matters is 

impossible, and that practical necessity will justify some infringement.” (E.O., supra,

188 Cal.App.4th at p. 1153.)

In part, defendant relies on Bauer, supra, 211 Cal.App.3d 937. In Bauer, the 

defendant challenged a term of probation requiring that he obtain his probation officer’s 

approval of his residence. (Id. at p. 940.) The Bauer court found that based on the facts 

of the defendant’s case, the imposed condition was not reasonable and failed to satisfy 

the test set forth in Lent, supra, 15 Cal.3d 481. (Bauer, supra, at p. 944.)

Bauer further noted that the condition was “all the more disturbing because it 

impinges on constitutional entitlements—the right to travel and freedom of association. 

Rather than being narrowly tailored to interfere as little as possible with these important 

rights, the restriction is extremely broad. The condition gives the probation officer the 

discretionary power, for example, to forbid appellant from living with or near his 

parents—that is, the power to banish him. It has frequently been held that a sentencing 

court does not have this power.” (Bauer, supra, 211 Cal.App.3d at p. 944.)

There is a difference between the condition contemplated in Bauer and the one 

imposed in this case. The condition contemplated in Bauer required the probationer to 

obtain his probation officer’s approval of his residence. Therefore, the probation officer 

in Bauer could conceivably disapprove of the probationer’s residence, forcing him to 

move. Here, the condition requires defendant to obtain his probation officer’s approval 

before he can change his residence or leave the state. Unlike Bauer, defendant is not 

subjected to a risk of banishment. 

As the trial court acknowledged in its memorandum, the condition is reasonably 

related to the state’s interest in reformation and rehabilitation, because it would facilitate 
7

the effective supervision of probationers and the ability of the court to ensure that the 

probationer is able to receive adequate services wherever he or she decides to move.

6

 

We agree that this is a compelling state purpose.

The issue is whether the condition is narrowly tailored. Courts may leave “many 

details that invariably are necessary to implement the terms of probation” to a probation 

officer. (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359.) However, they 

should not grant a probation officer “unfettered discretion.” (People v. Leon (2010) 181 

Cal.App.4th 943, 953.) 

The probation condition at issue here provides the probation officer without 

standards to guide their decisions to either approve or disapprove a defendant’s request

for a change of residence or for travel out of state. The trial court offered to ameliorate 

this concern by stating, “If you feel that probation has infringed upon your rights to 

travel, the Court would be happy to entertain an application for modification of sentence 

to further modify or strike that sentence.” We do not believe this is sufficient and find 

that modification of the probation condition is necessary. The condition is modified to 

read: “Do not change your place of residence from Monterey County or leave the state of 

California without permission of the probation officer or of the court.” As modified, we 

find the probation condition to be sufficiently tailored to the compelling state interest.

2. Presentence Credit

Next, defendant argues that he is entitled to an additional three days of presentence 

credit, because he was in custody between November 24, 2014 and March 12, 2015 (a 

total of 109 actual days). He points out that the probation report incorrectly stated that he 

was in custody between November 24, 2014, and March 10, 2015. The People concede 

 

6 We decline to express an opinion on the trial court’s conclusion, as set forth in 

the memorandum attached to the sentencing minute order, that the probation condition is 

statutorily compelled.
8

this issue, and we find the concession appropriate. Pursuant to section 2900.5, 

subdivision (a), a defendant is entitled to presentence credit for all days spent in custody. 

Section 4019, subdivision (f) further provides that a defendant shall receive conduct 

credit consisting of two days for every two days of actual custody. We therefore modify 

the trial court’s order to award defendant an additional three days of presentence credit, 

consisting of two days of actual custody and one day of conduct credit. 

3. Modification of the Order Regarding Fines

Lastly, defendant argues that the trial court’s order regarding fines is confusing 

and should be clarified. He notes that the trial court imposed as a condition of probation: 

“In lieu of a fine, pay $300.00 to a Women’s Shelter Program as directed by the 

probation officer. (P.C. § 1203.097(a)(11)(A).)” He claims that the only other $300 fine 

imposed on defendant was the felony portion of the restitution fund fine imposed under 

section 1202.4. To provide clarification, defendant suggests that we strike the felony 

portion of the $300 restitution fund fine under section 1202.4 and clarify that the $300 

fine imposed under section 1203.097, subdivision (a)(11)(A) was imposed in lieu of that 

fine.

Out of an abundance of caution, we will adopt defendant’s recommendations. 

Section 1203.097, subdivision (a)(11)(A), provides that for crimes of domestic violence, 

the conditions of probation “may include, in lieu of a fine, but not in lieu of the fund 

payment required under [section 1203.097, subdivision (a),] paragraph 5, one or more of 

the following requirements: [¶] (A) That the defendant make payments to a battered 

women’s shelter, up to a maximum of five thousand dollars ($5,000).” The court 

directed defendant to pay $300 under section 1203.097 “[i]n lieu of a fine,” but did not 

specify what fine.

Further, the minute order imposed a total restitution fund fine of $450, which 

consisted of $300 imposed for defendant’s felony and $150 imposed for defendant’s 
9

misdemeanor.

7 However, the minute order did not contain a detailed breakdown of the 

aggregate restitution fund fine imposed under section 1202.4, only directing defendant to 

pay a $450 fine. Accordingly, we agree with defendant that clarification is necessary and 

modify the probation condition as requested.

DISPOSITION

The following conditions of probation from the trial court’s March 12, 2015 

minute order are modified as follows: 

Condition No. 3: “Do not change your place of residence from Monterey County 

or leave the state of California without permission of the probation officer or of the 

court.”

Condition No. 6: “Pay a restitution fine of $150 to the State Restitution Fund for 

Count 4. (Pen. Code, § 1202.4, subd. (b).)”

Condition No. 7: “In lieu of a restitution fund fine (Pen. Code, § 1202.4) of $300

for Count 1, pay $300 to a Women’s Shelter Program as directed by the probation officer. 

(Pen. Code, § 1203.097, subd. (a)(11)(A).)”

As modified, the order granting probation is affirmed.

 

7

The court adopted the probation report’s recommendations, which included that 

defendant be required to pay a $300 restitution fine for the felony count and a $150 fine 

for the misdemeanor count.
Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.

People v. Raymundo

H042080