Is a condition of probation valid even if it relates to conduct that is not itself criminal?

California, United States of America


The following excerpt is from Mannino, In re, 14 Cal.App.3d 953, 92 Cal.Rptr. 880 (Cal. App. 1971):

4 In re Bushman, supra, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727 restates this rule in the disjunctive as follows: 'A condition of probation imposed pursuant to Penal Code section 1203.1 is invalid if it (1) has no relationship to the crime of which the defendant is convicted, (2) relates to conduct that is not itself criminal, or (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Dominguez (1967) 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290.)' (1 Cal.3d at pp. 776--777, 83 Cal.Rptr. at p. 381, 463 P.2d at p. 733.) It is questionable that the court intended to invalidate any condition of probation which relates to conduct that is not itself criminal, on that ground alone. The discussion that follows indicates that if the condition had a relationship to the crime of which petitioner was convicted, Or was reasonably related to future criminality it would be proper even though it related to conduct that is not itself criminal, i.e., refusal to secure psychiatric care, provided, as was not the case in Bushman, the need for such care had been established by the record.

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