Stay-away orders
Penal Code section 123.1:
The court may impose any reasonable conditions as it may determine are fitting and proper to the end that justice may be done, that amends may be made to the society for breach of the law for any injury done to any person resulting from such breach and generally and specifically for the reformation and rehabilitation of the probationer.
The general rule is that a condition of probation will not be held invalid unless it has no relationship to the crime of which the offender was convicted (2) relates to conduct which is not itself criminal and (3) requires or forbids conduct which is not reasonably related to future criminality (People v. Lent (1975) 15 Cal.3d 481, 486.
A court's discretion in imposing conditions of probation under this section is broad, but not boundless (People v. Keller (1978) 76 Cal.App.3d 827, 831-832, disapproved on other grounds by People v. Welch (1993) 5 Cal.4th 228; In re White (1979) 97 Cal.App.3d 141, 146.) The discretion is circumscribed by statute as well as by constitutional safeguards. "Human liberty is involved. A probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth, and Fourteenth Amendments to the federal Constitution. (In re White, supra, 97 Cal.App.3d 146, quoting Keller', supra, 76 Cal.App.3d at 832.) "There is an overall requirement of reasonableness in relation to the seriousness of the offense for which a defendant is convicted." (Ibid.)
Constitutional rights to intrastate travel. In re White - "the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitution as a whole. Such a right is impolicit in the concept of a democratic society and is one of the attributes of personal liberty under common law." (In re White 148, citations omitted;
King v. New Rochelle Municipal; Housing Authority (2d Cir. 1971) 442 F.2d 646, 648 It would be meaningless to describe the right to travel between states as a fundamental precept of personal libert and not to acknowledge a correlative constitutional right to travel within a state."
The power of locomotion, of changing situation or moving one's person to whatever place one's inclination may direct, without imprisonment or restraint, unless by due course of law it is a right strictly natural. In re White
Many other fundamental rights such as free speech, free assembly, and free association are often tied in with the right to travel. It is simply elementary in a free society. Freedom of movement is basic in our schemes of value. In re White
Banishment
In re Babak S (1993) 18 Cal.App.4th 1077, 1085, citing People v. Beach (1983) 147 Cal.App.3d 612, 620-623
In re White, 97 Cal.App.3d 148, 149
People v. Bauer (1989) 211 Cal.App.3d 937, 940
People v. Blakeman (1959) 170 Cal.App.3d 596, 597, but pre-Lent
Requirement for Probation COnditions Which Imapct the Exercise of Condition RIghts
Where a condition of probation requires the waiver of precious constitutional rights, the condition must be narrowly drawn, to the extent it is overbroad is is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restrict on the exercise of fundamental constitutional rights. In re White
It must also be specifically tailored to the individual probationer. In re Babak S (1993) 18 Cal.App.4th 1077, 1085.
A reasonable condition of probation is not only fit and appropriate to the end in view but it must be a reasonable means to that end. Reasonable means are moderate, not excessive, not extreme, not demanding too much, well-balanced." In re White
Why stay-away orders are so sweeping so punitive that it is unlreated to rehabilitaiton:
It prohibit client's mere presence at a particular place, without more, at all times of the day or night.
It prohibit client's being a passenger on a bus or trolley ( or in a private car) traveling through the area.
it prohibit's client access to public parks, a common recreational gathering area and a critical part of the commnunity.
It porhibits client from doing all kinds of lawful activity, which he as a transient human being has to do somewhere such as sit, relax, read, eat, take off his shoes, take a nap, smoke a cigarette, drink a cup of coffee, chat with a friend, read the newspaper. The cumulative effect of all of the stay-away orders in all his probation cases ultimate become that he is banished.
For illegal lodging, what is lodge? Nap? Lie down? Sit eye with eyes close? Sit with eye open? Eat a meal? Sleep with belongings nearby? Sleep with cover to protect from elements?