P. v. Correa

Filed 7/19/06 P. v. Correa CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Affirmed in part and modified in part.

Adan Javalera Correa appeals a judgment entered after he pleaded guilty to one count of knowingly receiving stolen property. (Pen. Code, § 496, subd. (a).)^[1] The court suspended imposition of sentence and placed him on three years' probation subject to conditions, including a condition he not own, possess, or use a dog with violent propensities. Correa contends the court erred by: (1) imposing the dog-possession probation condition not related to his crime or future criminality; and (2) imposing an unconstitutionally vague and overbroad dog-possession probation condition. We modify the judgment to the extent the dog-possession condition is vague and overbroad. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On July 23, 2005, Imperial County police officers searched a room occupied by Correa and others. In the room, they found stolen checks and credit cards, as well as a glass pipe with methamphetamine residue. Correa was charged with one count of receiving stolen property (§ 496, subd. (a)), two counts of forgery (§ 476, subd. (c)), one count of being under the influence of a controlled substance (methamphetamine) (Health & Saf. Code, § 11550, subd. (a)), and one count of possession of a smoking device. (Health & Saf. Code, § 11364.) He pleaded guilty to receiving stolen property in exchange for imposition of a suspended sentence, 120 days in jail, three years of formal probation, dismissal of the other counts, and termination of probation in two unrelated domestic violence cases.

The trial court granted Correa probation and imposed conditions recommended by the probation officer, including a requirement to submit to search of his person, automobile, or residence by a peace or probation officer without a search warrant. During sentencing, Correa objected to the imposition of a condition that ordered him not to own, possess, or use a dog that exceeds 20 pounds in weight. He argued there was no evidence of violence in his case and therefore, the condition was not reasonably related to his crime or to future criminality. The People recommended modifying the condition to provide Correa not "have or possess a dog that exhibits propensities for violence or aggressiveness." The People claimed this condition was necessary because probation officers would need to visit Correa's residence as part of formal probation.

The court found: "[a]s to the dog, the defendant is being supervised on formal probation. The probation officer does have to go by his residence occasionally . . . . Just the size of the dog isn't relevant because, of course, we all know large dogs that are wusses and small dogs that are really tough." Correa made no further objections.

The court imposed the following dog-possession probation condition: "Defendant is ordered not to own, possess, or use a dog with violent propensities."

DISCUSSION

Correa contends the trial court abused its discretion by imposing the dog-possession probation condition because the condition is not reasonably related to his current offense of receiving stolen property or to the prevention of future criminality, and relates to conduct not itself criminal. He further contends the condition is unconstitutionally vague and overbroad.

Reasonableness of Probation Condition

"The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) In imposing probation conditions, the primary goal is to ensure the safety of the public while promoting rehabilitation of the probationer. (Ibid.) "The court may impose and require . . . [such] reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j).) A condition of probation is valid unless 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 . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486.)^[3] The sentencing court abuses its discretion when a probation condition is "arbitrary, capricious, or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " [Citations.]' " (Carbajal, at p. 1121.)

Although the receipt of stolen property in this case was not connected to the ownership, use or possession of a dog, we find the probation condition is reasonably related to the prevention of future criminality. We have previously concluded probation conditions that allow warrantless searches of probationers are permissible because they prevent future criminality by ensuring probationers comply with the terms of their probation. (See, e.g. People v. Balestra (1999) 76 Cal.App.4th 57, 67.) Here, the condition permitting warrantless searches of Correa's home is reasonably related to his current offense of receiving stolen property. It also relates to the prevention of future criminality because probation officers will be able to detect stolen property in his possession. Because the dog-possession condition is intended to facilitate search of Correa's home by ensuring the safety of the probation officers performing those searches, we conclude it is also reasonably related to the prevention of future criminality. Thus, the imposition of a dog-possession probation condition properly promotes section 1203.1's goals of rehabilitation and public safety.

Vagueness and Overbreadth of Probation Condition

Correa contends the probation condition ordering him not to own, possess or use a dog with violent propensities is unconstitutionally vague. A probation condition is subject to the "void for vagueness" doctrine. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) Probation conditions must be " 'sufficiently precise for the probationer to know what is required of him [or her].' " (Ibid.)

Correa asserts the term "violent propensities" is unconstitutionally vague. A probation condition is not unconstitutionally vague if it has a "plain commonsense meaning, which is well settled." (People v. Rodriquez (1975) 50 Cal.App.3d 389, 398.) We do not find the term "violent propensity" to be ambiguous or unsettled. Examining the definitions of the terms "violent" and "propensity" in various dictionaries provides a plain meaning for the term "violent propensity": an inclination or tendency toward things marked by extreme force or sudden intense activity. (See Merriam-Webster's Collegiate Dict. (11th ed. 2006) pp. 996, 1396; Random House Dict. of the English Language (2d ed. 1987) pp. 1550, 2124; American Heritage Dict. (2d college ed. 1982) pp. 993, 1350.) The consistency among the dictionaries suggests the meaning is settled. Further, the use of the term "violent propensity" in case law to mean a tendency to act with physical force further reinforces the conclusion that the term is not vague or ambiguous. (See, e.g., Singer v. Superior Court (1999) 70 Cal.App.4th 1315,1318; Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 186.) Here, the use of the term "violent propensities" as it relates to a dog has the plain and commonsense meaning that the dog poses a danger to the safety of others. The condition is sufficiently precise for Correa to know what is required of him.

Correa also requests the court include an explicit knowledge requirement in the dog-possession condition. A probation condition preventing Correa from owning, possessing or using dogs not known to have violent propensities is vague and unconstitutional. (See People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Without a knowledge requirement, Correa is subject to unintentional violation of his probation. Thus, the condition is inconsistent with the rule that probation conditions affecting constitutional rights must be narrowly drawn. (Ibid.) The People do not oppose the inclusion of an explicit knowledge requirement to increase the clarity of the probation condition. We conclude this addition cures the vagueness problem.

Correa further contends the condition ordering him not to own, possess, or use dogs with violent propensities is overbroad. " ' "Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn . . . ." ' " (People v. Pointer (1984) 151 Cal.App.3d 1128, 1139.) " 'If available alternative means exist which are less violative of a constitutional right and are narrowly drawn so as to correlate more closely with the purpose contemplated, those alternatives should be used [citations].' " (Ibid.)

Here, the probation condition is not narrowly drawn to address the court's concern for the safety of probation officers. An alternative probation condition could sufficiently protect probation officers from vicious dogs while intruding less substantially on Correa's constitutional rights. For example, a limitation on the manner in which Correa can keep a dog with violent propensities could protect probation officers from attack. A vicious dog owned by Correa but kept at a location other than his residence would not pose a threat to the probation officer. Because an alternative condition would be less violative of Correa's rights and correlate more closely with the intended purpose of protecting officer safety, the condition ordering Correa not to own, possess, or use a dog with violent propensities is unconstitutionally overbroad. (See People v. Pointer, supra, 151 Cal.App.3d at p. 1139.)

We conclude the court did not abuse its discretion by including a condition regarding the possession of dangerous dogs in the probation order; however, the condition is modified to include an explicit knowledge requirement and to correlate more closely with the court's objective of protecting probation officers.

DISPOSITION

The dog-possession condition of probation is modified to provide as follows:

Defendant may not keep at his place of residence any dog that he knows or reasonably should know has violent propensities and may endanger the safety of others.

In all other respects, the judgment is affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] Because Correa pleaded guilty, the facts are taken from the probation officer's report.

^[3] All three factors must be present to invalidate a condition of probation. (People v. Lent, supra, 15 Cal.3d at p. 486, fn. 1.)