Opinion
E041748 E043206
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. WILFRED LAMOR BATISTE, Defendant and Appellant.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant Wilfred Lamor Batiste pleaded guilty to one count of unlawful possession of a firearm by a narcotic addict. (Pen. Code, § 12021, subd. (a)(1).) He filed notices of appeal both from the judgment of conviction and from denial of a petition for writ of coram nobis. Appellate counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] raising no arguable issues, and asking this court to undertake a review of the entire record. Upon such review, we discovered one arguable issue upon which we requested further briefing. We strike one term of defendants probation, without prejudice to modifying those terms, but in all other respects we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On May 25, 2006, police officers contacted defendant at a motel where defendant had been living for about a week. Defendant told the officers he was under the influence of cocaine and had been using cocaine for 23 years. Defendant stated that his addiction had affected his whole life, his lifestyle, and his marriage. He had attempted drug rehabilitation several times, but was unsuccessful.
Defendant consented to a search of his motel room. The officers found a sawed-off shotgun on the floor underneath the bed, wrapped inside three nylon bags. At defendants preliminary hearing, photographs of the shotgun were admitted. The arresting officer testified that the barrel of the gun measured 16½ inches. Defendant admitted that all the clothing, shoes, and other items in the room belonged to him, but he denied any knowledge of the shotgun.
Defendant was charged by information with a felony count of possession of a short-barreled shotgun in violation of Penal Code section 12020, subdivision (a), and one felony count of possession of a firearm by a narcotic addict, in violation of Penal Code section 12021, subdivision (a)(1).
At defendants arraignment, he initially pleaded not guilty, but his attorney requested a settlement conference. At further proceedings that day, pursuant to a plea agreement, defendant changed his plea. He pleaded guilty to count 2, possession of a firearm by a narcotic addict. Count 1, possession of a short-barreled shotgun, was dismissed.
Defendant was released from custody pending his sentencing hearing, pursuant to Cruz waivers. When defendant appeared for sentencing however, he instead moved to withdraw his guilty plea. The court denied the motion to withdraw defendants guilty plea. The court proceeded to sentence defendant, granting him three years formal, supervised probation.
People v. Cruz (1988) 44 Cal.3d 1247.
In February 2007, defendant filed a petition for a writ of error coram nobis; he again sought to set aside his guilty plea, but on the supposed ground of newly discovered evidence. That is, defendant had had the gun newly examined and measured and determined that it was not a short-barreled gun under the standards set forth in the statute. Both the length of the barrel and the overall length of the weapon were greater than the limit for a short-barreled gun.
The trial court denied the writ petition.
Defendant filed notices of appeal challenging his guilty plea and appealing from the denial of his writ petition. This court consolidated the appeals.
ANALYSIS
As noted, counsel has filed a brief under People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, stating that there are no arguable issues on appeal. Counsel has identified the issue whether the writ of coram nobis was properly denied as an area of possible inquiry. We have advised defendant of his right to file a supplemental brief raising any additional issues, but he has not filed such a brief.
We have now undertaken an examination of the entire record, and we conclude as follows:
I. The Writ of Error Coram Nobis Was Properly Denied
The petition for writ of error coram nobis was properly denied. As the People pointed out in opposition to the petition, defendants newly discovered evidence—that the shotgun was not, in fact, short-barreled—was irrelevant to the offense to which defendant pleaded guilty. He was not convicted of possession of a short-barreled gun; that charge was dismissed. Defendant pleaded guilty to a charge of possession of a firearm—short-barreled or otherwise is immaterial—by a narcotic addict. Remeasuring the gun had no bearing or effect on the validity of the charge to which defendant pleaded guilty.
At a minimum, defendant was required to show that some fact existed, which, through no fault of his own, was not presented at the trial on the merits, and which if presented, would have prevented rendition of a judgment. (People v. Gontiz (1997) 58 Cal.App.4th 1309, 1313.) That the gun may not have met the statutory definition of a short-barreled gun was irrelevant to the charge to which defendant pleaded guilty and would not have prevented rendition of a judgment.
II. Additional Issue: Probation Condition
We have, however, discovered one additional issue, on which we have requested further briefing: Whether the condition of defendants probation, requiring him 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," (italics added) was a proper condition of probation. Defense counsel at the time of sentencing failed to object to the imposition of the pet condition, even though the propriety of such a condition is an unsettled issue pending before the California Supreme Court. (See People v. Olguin, review granted Mar. 21, 2007, S149303; and People v. Lopez, review granted Mar. 21, 2007, S149364.) We now consider that issue.
A. Standard of Review and the Lent Test
People v. Lent (1975) 15 Cal.3d 481 to 488.
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.) The courts "have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (Ibid.) 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. (People v. Carbajal, supra, 10 Cal.4th 1114, 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 People v. 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.)
B. Failure to Object Does Not Preclude Consideration of the Issue
The People argue, at the threshold, that defendant failed to object to the condition at the sentencing proceedings below, and therefore waived any right to raise a challenge to it on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.)
Nonetheless, as the People also recognize, the failure to object below did not result in a waiver of the right to claim that the condition is unconstitutional. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) In addition, just as appointed appellate counsel failed to note the issue, although it is presently unresolved and pending before the California Supreme Court, trial counsel also apparently overlooked the issue. The quiet insertion of new language into a previously accepted "standard condition" of probation also apparently went unnoticed by anyone for some time. Counsel can have had no valid tactical purpose in failing to object to the questionable condition. (People v. Pope (1979) 23 Cal.3d 412, 426.) To forestall a claim of ineffective assistance of counsel (Strickland v. Washington (1984) 466 U.S. 668, 687, [104 S.Ct. 2052, 80 L.Ed.2d 674]), we shall address the issue.
C. The Probation Condition Here Is Invalid
The probation condition here violated all three criteria in Lent.
First, whether defendant owned or had contact with a pet had nothing to do with the crime of which he was convicted (unlawful possession of a firearm by a narcotic addict). There is no indication in the record that a pet was present at the time of the offense, or that any pet had anything to do with defendants possession of the gun.
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 whatsoever, and there is no basis upon which to anticipate that defendant would commit such a crime in the future.
The Peoples position is that the condition is related to future criminality, in that it helps ensure that a probation officer can safely conduct supervisory visits at the probationers residence. Assuming, without deciding, whether this properly relates to "future criminality," the particular condition imposed here was not properly tailored to serve that purpose.
The purported purpose of officer safety is not met by the condition imposed. Stated another way, the pet probation condition is not reasonably tailored to meet the objective for which it has been imposed. It is not reasonable means to the end desired. It is overbroad.
Whether defendant—or a co-resident—owns a pet, in general, is not reasonably related to his future criminality. No one had any reason to think he or anyone in his home owned a pet that could endanger a probation officers life. If facts could have been brought to bear to show that a defendant is likely to have, or live on premises that have, a dangerous animal, then there might be some justification for a probation condition narrowly tailored to avoid the anticipated danger. But the portion of the condition imposed here, which related to all pets, without limitation, is overbroad.
DISPOSITION
The trial court is directed to strike the reference to "pets" in probation condition No. 7. The trial court may, in the exercise of its discretion, modify the terms of probation to include a condition narrowly tailored to address concerns about dangerous animals when probation officers conduct home visits. In all other respects, the judgment is affirmed.
We concur:
GAUT J.
MILLER J.