P. v. Williams

Filed 7/19/07 P. v. Williams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Theodore M. Cropley and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction

Defendant and appellant Tyrone Lee Darnell Williams appeals after he pleaded guilty to possession of marijuana for sale. (Health & Saf. Code, 11359.) He complains that one of his probation conditions was overly broad. We agree. We order the probation stricken, but without prejudice to the trial courts modification of the probation terms to include an appropriately drawn condition.

2. Factual and Procedural History

Defendant was riding in a car stopped by police. The driver was apparently a parolee or probationer, and the officers conducted a probation/parole search. They also searched defendant. Defendant stated that he had some marijuana in the car; police found marijuana on the floor by the doorframe of the passenger door. Defendant agreed to plead guilty in exchange for release on probation.

The probation report recommended terms of supervision, including that defendant [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. . . .

At defendants sentencing hearing, defense counsel moved to strike the reference to pets as unconstitutionally overbroad and vague. The trial court denied the motion, stating, Its a safety issue.

Defense counsel also objected to probation condition No. 19, and the trial court agreed to strike that condition.

Defendant now appeals. He argues that the pets probation condition was invalid and should have been stricken. He further argues that the record fails to reflect the courts order striking probation condition No. 19.

3. Analysis

A. The Generic Condition To Apprise The Probation Officer Of Pets Was Invalid

Trial courts have broad discretion in setting reasonable terms of probation to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) That discretion is not without limits, however. (Id. at p. 1121; People v. Welch (1993) 5 Cal.4th 228, 233 (Welch).)

The California Supreme Court in People v. Lent (1975) 15 Cal.3d 481 (Lent), established the rule on probationary conditions: 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, abrogated by Prop. 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) It is well established that probation conditions which regulate conduct not itself criminal must be reasonably related to the crime of which the defendant was convicted or to future criminality. (Welch, supra, 5 Cal.4th 228, 233-234, quoting Lent, supra, 15 Cal.3d 481, 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365-366.)

A probation condition requiring defendant to notify the probation department of any pets violates all three factors of Lent. First, defendant had some marijuana in his brothers car. Pet ownership had nothing to do with the offense he committed. Nothing indicated that any animals were involved in any way. Second, having a pet is not in itself criminal. Third, pet ownership had nothing to do with defendants future criminality. There was no reason to think that the existence of any animal at defendants residence would lead him to offend.

The sole justification proffered for the condition is, as the trial court suggested, a safety issue. The difficulty is that the condition as drawn does not address that concern. It is overbroad or vague or both.

A probation condition is subject to the void for vagueness doctrine. (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).) In addition, a probation condition is 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.) Under a condition requiring defendant to notify the probation officer of pets in the residence, either defendant must guess at his peril what counts as a pet, or if pets truly and plainly means any pet, then his liberty and privacy interests are at risk for matters not tailored to the purpose of the condition, i.e., safety.

If it be argued that pets does not mean nondangerous pets, then the probation condition is vague and unclear. Unless pets means any pets or all pets, a probationer is left hopelessly to guess which pets would result in a violation of probation and which ones would not. (See Lopez, supra, 66 Cal.App.4th 615, 630.) If, however, the term pets is not vague, and if it does include wholly innocuous and safe animals, then the condition is manifestly overbroad for the purpose for which it is imposed. Likewise, if it includes the requirement to notify the probation officer of pets possessed by coresidents, whether or not defendant knows of their presence, the condition is also overbroad. (See, e.g., id. at pp. 628-629 [probation condition prohibiting association with gang members is overbroad because it includes in its sweep persons not known to the probationer to be gang members].) Defendant should not be vulnerable to imprisonment for failure to notify a probation officer of, e.g., a goldfish. He should not be vulnerable to imprisonment for failure to notify of pets he has no reason to think are present. Defendant should not be vulnerable to imprisonment for failure to predict any changes to pets 24 hours in advance, potentially requiring a degree of omniscience not normally available to ordinary human beings.

A probation condition requiring defendant to notify the probation officer of pets and to give written notice 24 hours in advance of any changes regarding pets, is invalid.

That does not mean to say, however, that a valid probation condition could not be imposed to meet the concern of officer safety. Basically, probation officers making home visits to supervise probationers fear being attacked by vicious dogs. Home visits are integral to the purposes of probation and relate to the probationers future criminality. Home visits, like probation searches, enable the probation officer to supervise the probationers progress and compliance with the other terms of probation, not only to determine whether he or she disobeys the law, but also whether he or she obeys the law. (Cf. People v. Reyes (1998) 19 Cal.4th 743, 752 [parole].)

A probation condition narrowly tailored to meet the objective of officer safety during home visits might be to prohibit defendant or any coresidents from having a named breed, such as a rottweiler or a pit bull dog. A reasonable condition could forbid having a vicious dog or a dangerous animal. Our research has discovered another possible example of a reasonable condition, closely tailored to the legitimate purposes of probation, imposed on a Utah parolee: 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, . . . refusing to open the door, etc. (United States v. Crew (D.Utah 2004) 345 F.Supp.2d 1264.) Such a condition, like the other suggestions outlined, would relate to future criminality and thus satisfy Lent.

B. The Stricken Condition Has Not Been Imposed

As noted, the trial court agreed to strike condition No. 19 from defendants terms of probation. Appellate counsel argues that the courts minutes fail to reflect this ruling. Counsel is mistaken. Defense counsel objected to probation condition No. 19, as recommended in the probation report. That condition required defendant to Submit to, and cooperate in, a field interrogation by any peace officer at any time of the day or night. The trial court agreed to strike that condition. The record accords with this ruling, as the probation report shows the original condition No. 19, field interrogations, was lined through by the court. As a result of deleting the field interrogation condition, probation condition No. 20, as stated in the probation report, became probation condition No. 19 in the courts minutes, requiring defendant to Carry at all times, a valid California Drivers License . . . . This was not the condition stricken by the trial court and correctly reflects a condition properly imposed upon defendant. There was no clerical error.

4. Disposition

The pets probation condition imposed was invalid. The court is directed to strike the reference to pets in probation condition No. 7. The trial court may, however, modify the terms of probation to include a condition narrowly tailored to address concerns about dangerous animals when probation officers conduct home visits. Otherwise, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ GAUT

J.

I concur:

/s/ MILLER

J.

HOLLENHORST, Acting P. J.

I dissent from the holding that the probation condition as written was invalid. I would uphold the probation condition as written.

The goals of probation are that (1) justice be done, (2) amends be made to society, and (3) the probationer be rehabilitated and reformed. (Pen. Code, 1203.1, subd. (j).) If the defendant believes the conditions of probation are harsher than the potential sentence, he may refuse probation and choose to undergo the sentence. (People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 (Balestra).)

Any condition of probation that restrict[s] constitutional rights must be carefully tailored and reasonably related to the compelling state interest in reforming and rehabilitating the defendant. [Citations.] (People v. Jungers (2005) 127 Cal.App.4th 698, 704.) A term of probation may be considered invalid if it (1) has no relationship to the crime, (2) involves conduct that in itself is not criminal, and (3) forbids conduct that is not reasonably related to future criminality. (People v.Lent (1975)15 Cal.3d 481, 486 (Lent).) All three conditions must be present to invalidate a probation term. (Balestra, supra, 76 Cal.App.4th at p. 65, fn. 3.)

Defendant claims that the requirement to report ownership of pets should be stricken because it has no relationship to the marijuana possession charge, and owning a pet is not criminal and does not relate to future criminality. Although ownership of a pet does not relate to marijuana possession and is not criminal, a probation term that regulates conduct that is not itself criminal is still valid as long as it is reasonably related to future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

Probation is geared toward preventing future criminality, which requires careful supervision by a probation officer. In United States v. Knights (2001) 534 U.S. 112, 120, the Supreme Court stated that probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation . . . . (Accord, People v. Reyes (1998) 19 Cal.4th 743, 753 [holding that probation search conditions prevent future criminal activities by probationers].)

A pet could enable defendant to conceal drugs by either distracting or preventing a probation officer from entering or searching defendants residence. Also, without prior knowledge of a pet, a probation officer might endanger his or her own life or safety or the life or safety of the pet when visiting defendants residence unannounced. Although some pets are not dangerous and would not inhibit the duties of a probation officer, to require a trial court to outline the type, nature, temperament, and treatment of a pet that would fall within the probation term would be unreasonable and impractical. Many animals are unpredictable and may threaten or attack a stranger who attempts to enter a defendants residence; thus, it would be inadequate to limit the term only to animals known to be dangerous or vicious.^[1] I would conclude that the probation condition as written complied with the requirements of Lent, supra, 15 Cal.3d 481, in that it was reasonably related to defendants future criminality.

Defendant further argues that the probation condition, as written, was invalid because it is overbroad and vague. However, a probation term should be given the meaning that would appear to a reasonable, objective reader. (People v. Bravo (1987) 43 Cal.3d 600, 606-607 (Bravo).) Under the challenged probation condition, defendant merely has to notify his probation officer of a pet 24 hours in advance. This does not prevent defendant from owning a pet or authorize a probation officer to irrationally or capriciously exclude a pet. (See People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [holding that a trial court empowering a probation department to supervise probation

conditions does not conflict with the standards set in Lent, supra, 15 Cal.3d at p. 486, and does not authorize irrational directives by the probation officer].)

For these reasons, I would uphold the challenged probation condition.

HOLLENHORST

Acting P. J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] For example, reports by the Center for Disease Control state that, although certain breeds of dogs are responsible for more fatalities, all breeds of dogs can cause injury. In addition, the main factor affecting the behavior of a dog is the owner. Therefore, it would be more effective to target dog owners than specific breeds in order to promote public safety. (Sacks et al., Breeds of Dogs Involved in Fatal Human Attacks in the United States Between 1979 and 1998 (Sept. 2000) 217 J. Amer. Veterinary Medicine Assn. 817, 839-840; Centers for Disease Control and Prevention, U. S. Dept. of Health and Human Services/Public Health Service, Dog-Bite-Related Fatalities United States, 1995-1996 (May 1997) 46 Morbidity and Mortality Weekly Rep. 463-467.) Following this line of reasoning, the challenged probation term focuses on the probationer to keep the probation officer safe.