P. v. Ford

Filed 7/3/07 P. v. Ford CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed as modified.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Christopher Allen Ford, Jr., pleaded guilty to corporal injury to a cohabitant, in violation of Penal Code section 273.5, subdivision (a).^[1] The trial court sentenced defendant to three years probation on various conditions. On appeal, defendant contends that (1) the probation condition requiring him to keep the probation officer informed of whether he owns any pets is invalid; and (2) the probation revocation fine imposed by the trial court should be reduced. We reject defendants challenge to the pet probation condition; however, we agree with defendant that his probation revocation fine should be reduced.

I

FACTUAL BACKGROUND^[2]

Defendant lived with his girlfriend (the victim) and their seven-month-old child. On February 28, 2006, the victim woke defendant in the early afternoon and asked him to assist her with their child. Defendant became angry and started to argue with the victim. Defendant slapped the victim on the left side of her face and pushed her into a door. The victim called the police; defendant fled the house. Defendant was arrested later that day.

II

ANALYSIS

A. Pet Condition

Probation condition No. 7 requires defendant to [k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. . . .  Defendant contends that the pet notification portion of the condition must be stricken as constitutionally overbroad. For the reasons set forth below, we disagree.

The primary goal of probation is to ensure [t]he safety of the public . . . through the enforcement of court-ordered conditions of probation. [Citation.] [C]onditions of probation are routinely imposed when the sentencing court determines, in an exercise of its discretion, that a defendant who is statutorily eligible for probation is also suitable to receive it. [Citation.] In the granting of probation, the Legislature has declared the primary considerations to be: the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant. [Citation.] [] In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] 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. [Citation.] The trial courts discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, . . . Penal Code section 1203.1 . . . require[s] that probation conditions which regulate conduct not itself criminal be reasonably related to the crime of which the defendant was convicted or to future criminality. [Citation.] (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; see also 1203.1; People v. Welch (1993) 5 Cal.4th 228, 233.)

While pet ownership is not in itself criminal, it is reasonably related to the supervision of a probationer and hence to defendants future criminality.

[C]onditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation . . . . [Citation.] [Citation.] (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016 [Fourth Dist., Div. Two], quoting People v. Delvalle (1994) 26 Cal.App.4th 869, 879, quoting People v. Mason (1971) 5 Cal.3d 759, 768 (dis. opn. of Peters, J.).) However, there is no constitutional right to keep a pet. (See Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 388.) A fortiori, there is no constitutional right to keep a pet without telling your probation officer.

Absent any such constitutional concerns, [a]n adult probation condition is unreasonable 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 . . . . [Citation.] [Citation.] (In re Byron B., supra, 119 Cal.App.4th at p. 1016, quoting People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. [Citations.] [Citation.] (People v. Carbajal, supra, 10 Cal.4th at p. 1121.)

[Probation conditions] are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationers being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. Recent research suggests that more intensive supervision can reduce recidivism, [citation], and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes, [citation]. (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [107 S.Ct. 3164, 97 L.Ed.2d 709].) A probation condition therefore may be deemed reasonable if it enable[s] the [probation] department to supervise compliance with the specific conditions of probation. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.)

A probation officer may need to visit a probationers home unannounced. Here, for example, defendants probation conditions required him to [s]ubmit to a search . . . of your . . . residence . . . at any time of the day or night . . . . Knowing, in advance, what animals are in the probationers home is reasonably related to the safety of the probation officer.

While some pets are so innocuous that they could not possibly interfere with a probation officers performance of his or her duties, it is perfectly reasonable for the trial court not to be more specific as to species, breed, or temperament. Animals can be unpredictable, particularly when confronted by a stranger in what they consider to be their own territory. Ask any letter carrier. Or ask any professional animal trainer ‑‑ they have a saying: [A]nything with a mouth bites. (Sutherland, Kicked, Bitten and Scratched (2006) p. 63.)

Moreover, a probation officer is entitled to some protection against undue surprise. A trial court drafting probation conditions in the abstract might not think to include a parrot among the pets that must be disclosed; presumably, however, a probation officer would appreciate being warned that that voice in another room may just be a bird. Likewise, any probation officer who has to open a closet or reach under a bed during a search would no doubt like to know ahead of time whether the probationer keeps snakes â€‘‑ regardless of whether the snakes are venomous.

Even assuming the challenged condition could have been more narrowly tailored, that does not render it invalid; rather, it simply must not exceed the bounds of reason. It not unreasonable to put the burden on the probationer to tell the probation officer what animals may be present. The probation officer can then decide what precautions to take. The challenged condition does not prevent the probationer from owning a pet of any kind. It does not even require approval of the pet. It simply requires notice to the probation officer. This is amply within the bounds of reason.

Significantly, defendant does not challenge that portion of the probation condition that required him to keep the probation officer informed of his cohabitants. This condition serves the salutary, rehabilitative purpose of preventing defendant from associating with those who might lead him into criminal behavior. Defendant does not seem to think this condition had to be more narrowly drawn so as to require defendant to report only cohabitants who are gang members, drug users, or known felons. It is just as reasonable to require defendant to report all of his pets as it is to require him to report all of his cohabitants. Therefore, defendants challenge to probation condition No. 7 fails.

B. Probation Revocation Fine

Defendant contends, and the People agree, that the probation revocation fine imposed by the trial court should be reduced from $220 to $200 because the amount imposed improperly exceeds the amount of the restitution fine. We agree with the parties.

1 Background

At the sentencing hearing on April 19, 2006, the trial court ordered defendant to pay a restitution fine in the amount of $200 under section 1202.4, subdivision (b). The trial court also ordered defendant to pay a probation revocation fine in the amount of $220 under section 1202.44. The trial court stayed payment of the $220 probation revocation fine pending successful completion of probation.

2. Analysis

Section 1202.44 states: In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. (Italics added.)

Section 1202.4, subdivision (b) states, in pertinent part: In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.

Here, the trial court imposed a probation revocation fine of $220 and a restitution fine of $200. However, under section 1202.44, the probation revocation fine must be in the same amount as the restitution fine. Therefore, the probation revocation fine should be reduced to $200.

III

DISPOSITION

The probation restitution fine is reduced to $200. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

McKINSTER

J.

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

^[2] The factual background is taken from the probation report.