P. v. Ortiz

Filed 5/7/07 P. v. Ortiz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Michael M. Dest, Judge. Affirmed with directions.

Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Quisteen S. Shum, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Jose Angel Ortiz challenges three of the probation conditions imposed by the trial court at his sentencing after a guilty plea: a pet reporting condition, a field interrogation condition, and a gang attire condition. As described below, we affirm the judgment with directions to strike the reference to pets in probation condition No. 7.

Statement of Facts and Procedure

On December 16, 2005, defendant was arrested for driving a stolen vehicle. On March 2, 2006, defendant pled guilty to receiving stolen property (Pen. Code, 496d, subd. (a)) in exchange for dismissal of a vehicle theft charge (Veh. Code, 10851, subd. (a)) and three years probation, on condition he serve 180 days in county jail. Defendant failed to appear for sentencing on April 12, 2006, and so the trial court issued a bench warrant. Defendant was arrested on the bench warrant on May 5, 2006. Defendant agreed to 270 days in county jail in exchange for the People not filing any new charges. On June 6, 2006, the trial court granted defendant three years of probation with 270 days of jail time. Counsel for defendant objected to several terms of probation, including condition Nos. 7, 22, and 30. The trial court refused to strike these conditions. This appeal followed.

Discussion

1. Standard of Review and Lent^[1]Test

The purpose of probation is rehabilitation of the offender. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.) In granting probation, the primary considerations are: 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. ([Pen. Code,] 1202.7.) (People v. Orabuena (2004) 116 Cal.App.4th 84, 100.)

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 (Carbajal).) The courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. (Id. at p. 1120.) That broad discretion nevertheless is not without limits. (Id. at p. 1121.) 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.] (Ibid.)

The reasonableness of a particular condition depends, as noted, upon all of the circumstances being considered. (Carbajal, supra, 10 Cal.4th at p. 1121.) In addition, we have interpreted Penal Code section 1203.1 to require 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.] (Ibid.)

The seminal case on invalid probation conditions is Lent, supra, 15 Cal.3d 481. There, the Supreme Court stated: A condition of probation will not be held invalid 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 . . . . [Citation.] (Id. at p.486.) A condition of probation must satisfy all three requirements before it may be declared invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365-366.)

2. Pet Reporting Condition

Condition No. 7 of defendants conditions of probation requires him to [k]eep the probation officer informed of . . . pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. The trial court overruled defendants objection, saying its a safety issue. Defendant now challenges this condition as not reasonably related to his rehabilitation, and asks that the condition be modified to delete any reference to pets.

The ownership of pets is not in itself a criminal matter. Thus, such a condition must satisfy the requirement that it be reasonably related to the crime of which the

defendant was convicted or to future criminality.

The probation condition here does violate all three criteria set forth in Lent.

First, defendants ownership or contact with a pet of any kind had nothing to do with the crime of which he was convicted. He was found driving a stolen vehicle. There is no indication in the record that a pet was present at the time of the crime or had anything to do with defendants actions in driving the stolen vehicle.

Second, having a pet is not in itself criminal. Indeed, the harboring of pets has been recognized as an important part of our way of life. (Cf. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514; see also Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163.)

Third, pet ownership, of itself, is not indicative of or related to future criminality. Defendant did not commit any crime relating to ownership of or access to any animals whatsoever, and there is no basis upon which to anticipate that defendant would commit such a crime in the future.

The People argue that the condition helps insure that a probation officer can safely determine whether defendant is complying with the terms of his probation. The concern is whether there might be a dangerous animal, such as a vicious attack dog, at defendants residence.

The purpose of officer safety, to permit the probation officer to reasonably supervise defendant so as to prevent future criminality, as by conducting visits to the residence or probation searches without interference from dangerous animals, is not met by the condition imposed. Stated another way, the pet probation condition here is not reasonably tailored to meet the objective for which it has been imposed.

First, whether defendant or any other person living at his residence had unquestionably harmless animals, such as a goldfish or a hamster, has nothing to do with officer safety. Second, as written, the probation condition impinges on defendants liberty, privacy, and associational interests. He could be imprisoned for violation of his probation if he fails to inform the probation officer of the presence of any pet, including, again, such innocuous animals as a goldfish or a hamster. Defendants probation could be violated if he fails to give written notice 24 hours in advance of any changes. Defendant could thus be subjected to violation proceedings for such conduct as failing to predict a pets death. His probation could be violated if he were unaware that a resident had a pet.

Third, assuming that a dangerous animal was present in the residence, the probation condition requiring defendant to inform the officer of pets and to give 24 hours written notice of any changes regarding pets would not do anything to enhance officer safety. Rather, something further is implied: i.e., the probation officers ability to order defendant to confine the animal, or the ability to direct him not to possess, or not to live with anyone who possesses, such a dangerous animal.

We have conducted a thorough search of hundreds of cases concerning probation conditions related to pets. Virtually all the cases of pet probation conditions involve convictions of animal cruelty, harboring a vicious pet, or some other offense in which an animal was actually involved. (See, e.g., Stephens v. State (2001) 247 Ga.App. 719 [545 S.E.2d 325] [conviction of cruelty to animals (pit bull dogs used for fighting, kept in unsafe and unhealthy conditions), probation condition forbade the defendant from owning any dogs or to live at a residence where dogs were present]; State v. Choate (Mo.App. 1998) 976 S.W.2d 45 [one count of animal neglect, the defendant was ordered as conditions of probation to pay for care of the dog while it was in protective custody and not to return the dog to the county]; State v. Sheets (1996) 112 Ohio App.3d 1 [677 N.E.2d 818] and State v. Barker (1998) 128 Ohio App.3d 233 [714 N.E.2d 447] [animal owner convicted of animal cruelty may be required as a condition of probation to forfeit all the animals (horses), even those not specifically the subject of the charges]; State v. Bodoh (1999) 226 Wis.2d 718 [595 N.W.2d 330] [defendant convicted of injury by negligent handling of dangerous weapons (rottweiler dogs attacking cyclist) and ordered as a condition of probation not to have any dogs at his residence unless approved by the probation officer]; Scott v. Jackson County (D.Or. 2005) 403 F.Supp.2d 999 [defendant guilty of animal neglect (rabbits), ordered as a condition of probation not to possess any animals]; Mahan v. State (Alaska App. 2002) 51 P.3d 962 [defendant convicted of animal neglect for multiple kinds of animals, ordered as a condition of probation not to own or be the primary caretaker of more than one animal, and not to own or care for any horse]; Hurst v. State (Ind.App. 1999) 717 N.E.2d 883 [probation condition of suspension of hunting license for violation of fish and game and wild animal laws]; cf. People v. Torres (1997) 52 Cal.App.4th 771, 778 [commenting in passing that [p]ersons convicted of cruelty to animals could be ordered not to own or possess pets].)

We have found two cases that mention a condition of parole (not probation) involving pets, where the condition is related to officer safety. United States v. Crew (D.Utah 2004) 345 F.Supp.2d 1264 refers to a defendants release on parole, including as a parole condition: 4. HOME VISITS: I will permit visits to my place of residence by agents of Adult Probation and Parole for the purpose of ensuring compliance with the conditions of my parole. I will not interfere with [this] requirement, i.e. having vicious dogs, perimeter security doors, refusing to open the door, etc. (Id. at p. 1264.) United States v. Pyeatt (D.Utah, June 15, 2006, 2:05-CR-890 TC) 2006 U.S.Dist. Lexis 40337 referred to an identical parole condition.

The genuine concern to be addressed by the probation condition, as suggested by the parole conditions in United States v. Crew and United States v.Pyeatt, is whether a probation officer making a home visit or conducting a probation search will be able to do so without being at risk from a dangerous animal, such as a vicious dog. The probation condition here is not tailored to meet that objective. A probation condition is constitutionally overbroad when it substantially limits a persons rights and those limitations are not closely tailored to the purpose of the condition. (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146 [. . . The Constitution, the statute, all case law, demand and authorize only reasonable conditions, not just conditions reasonably related to the crime committed. [Citation.] [] Careful scrutiny of an unusual and severe probation condition is appropriate.].) [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.] (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) To the extent that the generic pets condition here is not tailored to meet that legitimate objective, it is not related to defendants offense or to his future criminality. It therefore fails to meet the test of reasonableness under Lent and is invalid.

That is not to say that a valid probation condition could not be imposed to meet the concern for officer safety identified here. As already observed, a similar parole condition has been imposed in Utah.

Here, however, no one had any reason to think that defendant owned a pit bull or a tiger, or for that matter a goldfish, a golden retriever, a tadpole, or a tabby cat. If facts could have been brought to show that a defendant is likely to have, or to live on premises that have, a dangerous animal, then there might be some justification for a probation condition narrowly tailored to avoiding the anticipated danger. But the condition imposed, which related to all pets without limitation, was overbroad and unreasonable.

We direct the trial court to strike the reference to pets in probation condition No. 7. The trial court may then, at its option, modify condition No. 7 to include a condition narrowly tailored to address concerns about dangerous animals when probation officers conduct home visits.

3. Field Interrogation Condition

Probation condition No. 22^[2]requires that defendant [s]ubmit to, and cooperate in, a field interrogation by any peace officer at any time of the day or night. Defendant contends that this violates his Fifth Amendment right against self-incrimination because it can be interpreted to mean that defendant cannot refuse to answer a question posed during a field interrogation, even when he believes the answer will be incriminating.

We disagree with defendants contention that the condition violates his Fifth Amendment right to refuse to answer an incriminating question. While probationers have long been required to cooperate with their probation officers, a probationer is not foreclosed from asserting his Fifth Amendment privilege, and it would not be inherently uncooperative for him to assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding no realistic threat in a requirement to cooperate with the probation officer].) Therefore, although defendant must cooperate with the police, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 427, 434.) In Minnesota v.Murphy, the Supreme Court explained that if a state attaches [t]he threat of punishment for reliance on the privilege against self-incrimination by asserting either expressly or by implication . . . that invocation of the privilege would lead to revocation of probation . . . the probationers answers would be deemed compelled and inadmissible in a criminal prosecution. (Id. at p. 435.) However, defendants probation condition contains no such threat. It would not be inherently uncooperative for defendant to assert the Fifth Amendment; defendant could still follow instructions and answer nonincriminating questions. (See United States v.Davis, supra, at p. 52.) Therefore, although defendant must generally cooperate with the police, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right. Furthermore, law enforcement officers may not engage in harassing questions, searches, or other limitations that, for example, have no relation to the crime for which defendant is under supervision. If the officer inquires into improper matters or otherwise acts improperly, defendant may present evidence at the probation violation hearing to show that the interrogation or conduct was arbitrary, capricious, harassing, or otherwise not reasonably related to the purposes for which he is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5.) Also, defendant may, when questioned, give a truthful answer, and his answer may be used at trial without offending the Fifth Amendment. His obligation to answer questions truthfully is the same obligation borne by any witness at a trial or before a grand jury. (Minnesota v. Murphy, supra, at p. 427.) It is not too onerous to require him, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because he has a duty to answer an officers questions truthfully, unless he asserts the privilege, it does not violate his right not to incriminate himself. The purpose of probation is, of course, defendants reformation and rehabilitation, and speaking truthfully to a peace officer is arguably an implied condition of probation. (See People v. Cortez (1962) 199 Cal.App.2d 839, 844.) Nevertheless, defendant is not required to give up his freedom to decline to answer particular questions. (Minnesota v.Murphy, supra, at p. 429.) The Constitution does not forbid the asking of incriminating questions (id. at p. 428), and the state in this case has neither expressly nor by implication threatened that invocation of the Fifth Amendment privilege would lead to revocation of probation. Thus, we reject defendants challenge to the field interrogation condition of his probation and decline to direct the trial court to modify the condition.

4. Gang Attire Condition

At the sentencing hearing, the trial court imposed condition No. 30, requiring defendant [n]ot wear, display or have in your possession any item associated with gang dress or any item prohibited by the probation officer including but not limited to any insignia, emblem, button, badge, cap[,] hat, scarf, bandanna or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang. After objection by defendants counsel, the trial court struck the other gang-related conditions (not associate with known gang members, report to the local police gang detail, not display gang hand signs, not be present at a courthouse unless on court-related business) but stated, Ill keep 30 in place. Defense counsel then said, And for the record, object as unconstitutional.

Defendant contends the condition is invalid because it is unconstitutionally vague and overbroad and is not reasonably related to his rehabilitation.

Defendant should reasonably know what constitutes gang hand signs and what items are associated with gang dress. It stretches credulity to believe that defendant does not or that he would display gang hand signs or display, wear or possess gang clothing by accident. The condition does not require defendant to guess what is and what is not inappropriate, especially since the condition requires the probation officer to give defendant specific direction about what violates these conditions. Condition No. 30 states that defendant shall not possess, wear, use or display gang emblems or signs prohibited by the probation officer. Implicit in the condition is a knowledge requirement.

As for defendants challenge to the condition based on the three-prong test laid on in Lent, supra,15 Cal.3d at page 486, we cannot say on this record that the trial court abused its discretion. This is because the condition could be related to future criminality. Although the trial court struck the other gang-related conditions, it specifically declined to strike this one. There is some evidence on the record to support the trial courts decision. On the face page of the probation report, under Gang Information, Florencia 13 is listed. In addition, when he was arrested defendant was in possession of 13 keys that were shaved, indicating some experience in car theft. We recognize that the detailed description of then-22-year-old defendants rather long criminal history does not include any other mention of gang involvement or activity. However, given the cryptic reference to Florencia 13 under Gang Information, and defendants relatively young age compared with his long criminal record, we conclude that there is some reason for the trial court to want to prevent defendant, whom the record indicates may be on the fringe of some gang activity if not an active gang member, from displaying any outward signs of gang membership so as to discourage any future affiliation with gangs.

Disposition

The judgment is affirmed. We direct the trial court to strike the reference to pets in probation condition No. 7. The trial court may then, at its option, modify condition No. 7 to include a condition narrowly tailored to address concerns about dangerous animals when probation officers conduct home visits.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

I concur:

/s/ Miller

J.

KING, J., Concurring and dissenting.

I concur with the majority in all respects, save and except as to term 22. While I agree with the majority that term 22 does not implicate the Fifth Amendment, I nonetheless believe it is overbroad. Based on that, I would remand for purposes of the trial court striking term 22 or modifying it such that it would be limited to allow field interrogation of the probationer only as it relates to the probationers criminality and compliance with the other terms and conditions of probation.

Term 22 provides: Submit to and cooperate in a field interrogation by any peace officer at any time of the day or night.

I believe the provision is overbroad. The general propriety of such a term has been recognized. (See Minnesota v. Murphy (1984) 465 U.S. 420 [104 S.Ct. 1136, 79 L.Ed.2d 409].) It must nonetheless be tailored, so that it is reasonably related to the crime of which defendant was convicted, or to defendants future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.)

By its provision, term 22 allows for the probationer to be interrogated as to any subject matter, whether related or unrelated to the conduct of the probationer.

/s/ King

J.

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^[1]People v. Lent (1975) 15 Cal.3d 481 (Lent).

^[2]The clerks transcript lists the field interrogation condition as No. 19, not No. 22. However, based on the context of the sentencing hearing and because the probation report lists the field interrogation condition as No. 22, we conclude that the parties understood the field interrogation condition as being designated No. 22.