P. v. Hernandez
Filed 4/3/07 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HERNANDEZ, Defendant and Appellant. | E040847 (Super.Ct.No. FSB055301) OPINION |
APPEAL from the Superior Court of San Bernardino County. Elva R. Soper, Judge. Affirmed.
James M. Crawford, 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, Barry Carlton, Supervising Deputy Attorney General, and Marissa A. Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant pleaded guilty to unlawfully taking or driving a vehicle (Veh. Code, 10851, subd. (a)). In return, defendant was sentenced to 90 days in county jail and placed on probation for a period of three years on various terms and conditions. On appeal, defendant contends (1) the probation condition requiring him to keep the probation officer informed of whether he owns any pets is invalid, and (2) the probation condition requiring him to submit to and cooperate in field interrogations infringes upon his Fifth Amendment constitutional right against self-incrimination and is overly broad. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND[1]
On April 1, 2006, a patrol officer noticed a vehicle driving in circles in the middle of a road. The officer followed the car in an attempt to conduct a traffic stop; however, the vehicle sped off, driving at a high rate of speed and failing to stop at posted stop signs. When the car eventually stopped, the officer contacted the driver, identified as defendant. Defendant informed the officer he did not have a license. When asked if he had permission to drive the vehicle, defendant said no and explained that he was giving his friend (the passenger) a ride to Rialto. A search of defendants person revealed identification cards and bank cards belonging to others. Upon further investigation, the officer believed the vehicle may have been an unreported stolen car. Contact was eventually made with the owner of the vehicle, who told the officer that she knew defendant was her boyfriends friend but that she had not given him permission to drive her car.
II
DISCUSSION
A. Pet Condition
At sentencing, defense counsel asked that the trial court strike the word pets from probation condition No. 7 on the grounds that it was unconstitutional and overbroad. The court denied that request.
Condition No. 7 specifically provides that defendant [k]eep the Probation Officer informed of place of residence, cohabitants and pets . . . . (Italics added.)
Defendant contends the trial court abused its discretion in denying his request to strike the pet condition because the condition is not reasonably related to his crime or future criminality. We disagree.[2]
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; People v. Warner (1978) 20 Cal.3d 678, 682-683.)
While pet ownership is not, in itself, criminal, it is reasonably related to the supervision of a probationer and hence to his 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.[3]
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, quoting People v. Welch, supra, 5 Cal.4th at p. 234, quoting People v. Warner, supra, 20 Cal.3d at p. 683, quoting People v. Giminez (1975) 14 Cal.3d 68, 72.)
[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.) 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.) In addition, implicit in almost every probation condition, including the pet condition, is reasonableness.
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 (see, e.g.,
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 ‑‑ 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 is 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 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.
[A] probation condition also may be challenged as excessively vague. (In re Byron B., supra, 119 Cal.App.4th at p. 1018.) Any ambiguity in a probation condition can be dispelled when, at the time probation is granted, the defendant is advised of the condition. (People v. Bravo (1987) 43 Cal.3d 600, 610, fn. 7.) Oral advice at the time of sentencing . . . afford[s] defendants the opportunity to clarify any conditions they may not understand and intelligently to exercise the right to reject probation granted on conditions deemed too onerous. (Ibid.) Here, at sentencing, defense counsel objected that the challenged condition was unconstitutional and overbroad. He did not object that it was vague; he did not request any clarification. Thus, defendant waived any objection that it was vague or ambiguous. In any event, defense counsel advised the court that defendant had indicated to counsel that he understood the terms and conditions of his probation and that he was not requiring the court to read each and every terms and conditions in open court. In addition, the term is not sufficiently vague to require that it be stricken. All that is necessary is that the condition be reasonable under all the circumstances. This condition meets that requirement.
B. Field Interrogation Condition
At sentencing, defense counsel also objected to the probation condition requiring defendant to [s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night, as unconstitutional and overbroad. The court denied the request to strike this condition as well.
Defendant contends that probation condition violates his constitutional right against self-incrimination and is unreasonable and overbroad. We disagree.
As described above, trial courts have broad discretion in determining what conditions of probation will aid the reformation and rehabilitation of the defendant. ( 1203.1; People v. Carbajal, supra, 10 Cal.4th at pp. 1120-1121.) Again, a condition will not be held invalid unless it has no relationship to the crime of which the defendant is convicted, relates to conduct which is not itself criminal, and requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 366.)
Defendants concern that the field interrogation condition is overly broad and serves no legitimate purpose is not well founded. Like the standard probation search condition, a field interrogation probation condition is a correctional tool that can be used to determine whether the defendant is complying with the terms of his or her probation or disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an unexpected search is to determine not only whether parolee disobeys the law, a basic condition of parole, but also whether he or she obeys the law; the condition helps measure the effectiveness of parole supervision]; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006 [probation is an alternative form of punishment, carrying with it certain burdens, such as a search term, which can be used as a correctional tool].)
This court observed in People v. Adams (1990) 224 Cal.App.3d 705 that a warrantless search condition is intended and does enable a probation officer to ascertain whether [the defendant] is complying with the terms of probation; to determine not only whether [the defendant] disobeys the law, but also whether he obeys the law. Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation. [Citation.] (Id. at p. 712.) In addition, as our Supreme Court observed, [w]hen [warrantless search and seizure] conditions are imposed upon a probationer . . . , it is established that the individual consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. Probation is not a right, but a privilege. [Citation.] (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo, supra, 43 Cal.3d at p. 608.)
Likewise, here, the field interrogation probation condition will provide practical, on-the-street supervision to defendant. Field interrogations will be used to monitor defendants compliance with conditions of his probation. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality. A condition allowing field interrogations may further dual purposes of deterring future offenses by the probationer and ascertaining whether he is complying with the terms of his probation. The purpose of an unexpected, unprovoked field interrogation of defendant is to ascertain whether defendant is complying with the terms of probation ‑‑ to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given defendant. (See, e.g., People v. Reyes, supra, 19 Cal.4th at p. 752.)
Although the field interrogation probation condition forbids defendant from doing something that is not in itself criminal, that is, ignore his interrogator and walk away (United States v. Mendenhall (1980) 446 U.S. 544, 553), it is related to the purposes of probation as described in Lent. It provides officers with a means of assessing defendants progress toward rehabilitation, it assists them in enforcing other terms of his probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria. (People v. Lent, supra, 15 Cal.3d at p. 486.) In addition, implicit in almost every probation condition, including the field interrogation condition, is reasonableness.
Here, defendant committed a vehicle theft. He essentially took his friends girlfriends car and went on a joy ride. We believe the field interrogation condition is necessary to help reform defendant by discouraging him from taking and driving anothers vehicle without permission or concealing future criminality and to ensure that defendant remains in compliance with probation. The field interrogation term is reasonably related to defendants future criminality.
Additionally, interrogation inherently means questions related to seek solution of a crime. (See Blacks Law Dict. (6th ed. 1990) p. 818, col. 2.) Thus the inherent meaning of the term limits the questions that could be asked of a probationer in a field interrogation to those designed to monitor the probationers compliance with the other terms of his or her probation as well as future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. It may be that this limitation is implicit in the language that the court adopted and could be permitted to stand without modifying the language of the condition. Moreover, as discussed in detail, post, it is unlikely that a probationer would likely be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions unrelated to the conduct of the probationer. This condition would assist defendant in maintaining compliance with the law and the terms of his probation.
Defendant claims the field interrogation condition implicates his Fifth Amendment right of self-incrimination. We find no constitutional violation.
Defendant is not an ordinary citizen. He is a convicted felon who has been granted the privilege of probation. It has long been settled that certain constitutional rights can be limited where appropriate in the probation process. (See People v. Arvanites (1971) 17 Cal.App.3d 1052, 1063 [prohibition against planning and engaging in demonstrations was valid where the defendant falsely imprisoned a man during a protest rally]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969 [probation condition prohibiting the defendant from active participation in demonstrations following his conviction of assault at a college demonstration was reasonable], overruled on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237; People v. King (1968) 267 Cal.App.2d 814, 822-823 [condition of probation proscribing participation in demonstrations valid where the defendant battered police officers at an antiwar demonstration].) Because of his status as a felon, defendant may be detained and questioned by a peace officer without the requirement that the officer have at least a reasonable suspicion, based on articulable facts, that defendant is engaged in criminal activity. (See Terry v. Ohio (1968) 392 U.S. 1.) Although an ordinary citizen may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen [to a peace officer] or answer [any question put to him] does not, without more, furnish those grounds[,] we repeat that defendant is not an ordinary citizen. (Florida v. Royer (1983) 460 U.S. 491, 498.) The impingement on his constitutional right to remain silent is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state and his reform and rehabilitation while merely requiring him to submit to and cooperate in a field interrogation. Defendant still retains his Fifth Amendment rights, as discussed, post. Furthermore, any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 478-479.
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 (Davis) [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 (Murphy).) In 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 Davis, 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 she is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5.) Similarly, the field interrogation condition does not allow law enforcement officials to awaken defendant at any time or place. Rather, the challenged condition requires defendant to submit to and cooperate in a field interrogation ‑‑ the condition does not allow officers to barge into defendants home and question him unnecessarily. 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. (Murphy, supra, 465 U.S. 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. (Murphy, 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.
The defendant in People v. Miller (1989) 208 Cal.App.3d 1311, 1315, who was required to submit to polygraph testing at the direction of his probation officer as a condition of probation, also argued that the condition violated his privilege against self-incrimination. The Miller court stated: Defendant misconstrues the nature of the privilege. The privilege against self-incrimination is not self-executing; it must be claimed. [Citation.] Although defendant has a duty to answer the polygraph examiners questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. [Citation.] The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege. (Ibid.)
Moreover, the field interrogation condition is less intrusive than some of the other conditions of defendants probation that defendant does not challenge. For example, condition No. 9, requires defendant to [s]ubmit to a search and seizure of [his] person, residence and/or property under [his] control at any time of the day or night by any law enforcement officer, with or without a search warrant, and with or without cause . . . . Condition No. 21 requires defendant to [c]arry a copy of [his] terms and conditions of probation on [his] person at all times, and offer them to any peace officer upon contact. Condition No. 15 forbids defendant from associating with known convicted felons or anyone actively engaged in criminal activity . . . . Likewise, condition No. 16 prohibits defendant from associating with known illegal users or sellers of controlled substances.
Defendant recognizes that under Murphy a probation condition which merely requires a probationer to be truthful does not violate a persons right against self-incrimination. (Murphy, supra, 465 U.S. at p. 436.) The condition here is similar. The obligation to cooperate entails the general obligation to appear and to answer questions truthfully, just as in Murphy and Davis, supra, 242 F.3d 49. Defendant is constrained by the condition from doing something which is otherwise lawful, i.e., he may not simply ignore his interrogator and walk away (United States v. Mendenhall, supra, 446 U.S. at p. 553), but it is integral to the purposes of probation as described in Lent. It provides officers with a means of assessing defendants progress toward rehabilitation, it assists them in enforcing other terms of his probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria.
To the extent defendant relies on United States v. Saechao (9th Cir. 2005) 418 F.3d 1073 (Saechao), that reliance is misplaced. In Murphy, the United States Supreme Court held that the probation condition that a defendant be truthful with his probation officer in all matters was constitutional because it only proscribed false statements. (Murphy, supra, 465 U.S. at pp. 436-437.) There was nothing in the probation condition that compelled the defendant to answer all questions; the defendant was only required to be truthful if he chose to answer his probation officers questions. (Ibid.) In contrast, the probation condition in Saechao explicitly stated that the defendant must promptly and truthfully answer all reasonable inquiries during a field interrogation. (Saechao, at p. 1075, italics added.) The Ninth Circuit held that this probation condition was unconstitutional because, [n]ot only was [the defendant] required to be truthful to his probation officers, but he was expressly required, under penalty of revocation, to promptly . . . answer all reasonable inquiries. (Id. at p. 1078.) The court held that this condition violated the Fifth Amendment because, unlike the condition in Murphy, the probationer was not permitted to invoke the privilege against self-incrimination without jeopardizing his supervised release. (Saechao, at p. 1078.)
Here, defendant is not subject to a condition like the one found impermissible in Saechao requiring him to answer all reasonable inquiries; he is subject to a condition like the one found permissible in Murphy, bearing the implied general obligation to be truthful in his answers. If asked a question, the answer to which is likely to incriminate him, he is free to invoke his Fifth Amendment privilege and refuse to respond.
Additionally, as explained, ante, interrogation inherently means questions related to seek solution of [a] crime. (See Blacks Law Dict., supra, p. 818, col. 2.) Thus, the inherent meaning of the term limits the questions that could be asked of a probationer in a field interrogation to those designed to monitor the probationers compliance with the other terms of his or her probation, i.e., future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. This limitation is implicit in the language of the probation condition, and may stand without modifying the language of the condition. Moreover, pursuant to this decision, we hold that a probationer may not be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions, where those questions are unrelated to the conduct of the probationer.
In summary, we note that the limitation on defendants liberty is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state ‑‑ his reform and rehabilitation ‑‑ while requiring him merely to submit to and cooperate in a field interrogation. Any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona, supra, 384 U.S. 436. In these circumstances, we conclude that the condition is reasonable and constitutional.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
I concur:
RAMIREZ
P.J.
KING, J., Dissenting.
The Pet Probation Condition is Overbroad
Trial courts have broad discretion to set conditions of probation in order to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see Pen. Code, 1203.1, subd. (j).) If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is not entitled to the same degree of constitutional protection as other citizens. [Citation.] (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)
However, the trial courts discretion in setting the conditions of probation is not unbounded. 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.] (People v. Lent (1975) 15 Cal.3d 481, 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.)
The pet probation condition here violates all three criteria set forth in Lent.
First, defendants ownership or contact with a pet of any kind has nothing to do with the crime of which he was convicted. Here, defendant pled guilty to unlawfully taking or driving a 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.
Second, having a pet is not in itself criminal.
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 and there is no basis upon which to anticipate that defendant would commit such a crime in the future.
The majority indicate that the condition is valid because it is reasonably related to future criminality. The argument on the point is that the probation condition at issue helps insure that a probation officer can safely conduct his supervisory visits at defendants residence. As a pet itself can be a weapon, knowledge of any pets in defendants residence can be crucial to insuring a probation officers safety in supervising defendants compliance with the other conditions of probation.
The concern, it appears, is whether defendant might have a dangerous animal at his residence. The majority state that knowing whether a defendant keeps snakes as pets would assist an officer when conducting a search of a probationers closet or under a bed for probation violations such as being in the possession of weapons or drugs.
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 overbroad and not reasonably tailored to meet the objective for which it has been imposed.
To the extent there exists a legitimate and justifiable concern as to the safety of individuals conducting a probation search, the condition must be narrowed to deal with dogs and/or animals which pose a foreseeable risk of injury to persons entering the premises.
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. 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, or the objective of allowing the officer to approach the residence unannounced. 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.
The present condition relating to all pets without limitation, is overbroad.
The Interrogation Condition is Overbroad
The probation condition dealing with interrogation should 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.
The challenged term provides: Submit to and cooperate in a field interrogation by any peace officer at any time of the day or night.
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, the term 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.
Publication Courtesy of California free legal resources.
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[1] The factual background is taken from the probation officers report.
[2] We note that this issue is currently pending before the Supreme Court. (People v. Olguin (Dec. 15, 2006, E039342) review granted Mar. 21, 2007, S149303; People v. Lopez (Nov. 30, 2006, E039251) review granted Mar. 21, 2007, S149364.)
[3] Arguably, if keeping the pet was, in itself, a crime, such a requirement might violate the right against self-incrimination. This, however, is not the thrust of defendants argument.
