Howard William Neel was a mobile driver for Elite Security. His car was hit while he was pumping gas on December 12, 2009. He made numerous false statements regarding his injuries and what caused them to several doctors. Based on the false representations, defendant submitted and received workers’ compensation benefits for his injuries.
Neel was found guilty by jury of six counts of insurance fraud. (Ins. Code, § 1871.4, subd. (a)(1).) The trial court suspended imposition of sentence and placed him on a three-year term of formal probation.
Among the terms and conditions, Neel was required to maintain his residence as approved by the probation officer and not to change his residence without prior written approval of the probation officer; defendant was also prohibited from leaving California without written permission from the probation officer. The trial court also ordered defendant to cooperate with any psychological or psychiatric testing or counseling suggested by the probation officer, and to authorize the release of any records from a psychologist, psychiatrist, counselor, or physician.
Defendant contends on appeal that general condition No. 4’s requirement to “maintain [his] residence as approved by the probation officer and not change [his] residence without written approval of the probation officer” is unconstitutionally overbroad and impermissibly restricts his right to travel.
The Court of Appeal agreed in the unpublished case of People v Neel, and the matter is remanded to the trial court with directions to either strike general condition No. 4 or to revise it in a manner consistent with this opinion. In all other respects, the judgment is affirmed.
He relies in large part on People v. Bauer (1989) 211 Cal.App.3d 937, where the First Appellate District, Division Two, found unconstitutional a probation condition that required the defendant to obtain the probation officer’s approval of his residence. (Id. at pp. 943-945.) The condition was evidently intended to prevent the defendant from residing with his overprotective parents. (Id. at p. 944.) The court explained: “The condition is 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 . . . to banish [the defendant].”
The Supreme Court noted in People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin) that even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.
The probation condition at issue in Olguin was different in key respects from that presented here. First and foremost, the condition in Olguin required the probationer to notify and inform the probation officer, not to obtain prior permission and approval. Second, the dispute in Olguin centered on pets, not residences. Here, in sharp contrast, condition No. 4 confers open-ended authority to the probation officer to prevent defendant from changing his residence.