Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FWV034883, Katrina West, Judge. Affirmed.
Andrew E. Rubin and Cindi B. Mishkin, under appointments 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, Assistant Attorney General, and Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Karluki Larry Jones pleaded no contest to one count of identity theft. (Pen. Code, § 530.5, subd. (a).) Six other felony charges — one count of burglary (Pen. Code, § 459), three counts of grand theft (Pen. Code, §§ 484, subd. (a), 487, subd. (a)), one count of attempted grant theft (Pen. Code, § 664), and an additional count of identity theft — were dismissed. Defendant was placed on probation for three years.
In this appeal, defendant contends that the trial court erred by:
1. Denying defendant’s request to address the court personally at sentencing.
2. Imposing a probation condition requiring defendant to keep the probation officer informed of his pets.
3. Requiring defendant to pay $15 a month in probation supervision costs (Pen. Code, § 1203.1b) without holding an evidentiary hearing regarding his ability to pay.
Finding no prejudicial error, we will affirm.
I
REFUSAL TO ALLOW DEFENDANT TO ADDRESS THE COURT AT SENTENCING
Defendant contends that the trial court denied him the right to address the court personally at sentencing.
A. Additional Factual and Procedural Background.
At sentencing, the trial court asked, “Any legal cause why judgment should not now be pronounced?” In response, defense counsel requested a continuance. The trial court then asked, “Any other reason why judgment should not now be pronounced than the one given?” Defense counsel responded, “[Defendant] is still saying he doesn’t understand what is in the probation report.” He also took issue with the trial court’s previous denial of defendant’s motion for new trial. The trial court then denied a continuance.
The trial court asked, “Do you wish to be heard on any of the proposed terms and conditions of probation?” Defense counsel answered, “We do,” then argued extensively concerning the appropriate sentence. He concluded:
“[DEFENSE COUNSEL:] Mr. Jones would ask permission to address the Court concerning his sentencing.
“THE COURT: Denied.”
The trial court heard further argument from both sides, then pronounced sentence.
B. Analysis.
Recently, the California Supreme Court discussed a defendant’s right to address the court at sentencing in People v. Evans (2008) 44 Cal.4th 590 (Evans). It held that, under Penal Code sections 1200 and 1201, a defendant has a statutory right to state reasons why judgment should not be pronounced at all, but not to state reasons why a more lenient judgment should be pronounced. (Evans, at p. 597.) In addition, under section 1204, a defendant does have a statutory right to state why a more lenient judgment should be pronounced, but only under oath and subject to cross-examination. (Evans, at p. 598.) The court added that there is no federal due process right to address the court at sentencing other than under oath and subject to cross-examination. (Id. at p. 600.)
In Evans itself, at sentencing, after discussing the appropriate sentence, defense counsel stated, “‘Submitted.’” (Evans, supra, 44 Cal.4th at p. 593.) During the pronouncement of judgment, the defendant asked, “‘Can I speak, your honor?’” The trial court replied, “‘No.’” (Ibid.) The Supreme Court noted, “Defense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so.” (Id. at p. 600.) It concluded, “Under these circumstances, there was a forfeiture of defendant’s right to testify in mitigation of punishment.” (Ibid.)
Finally, the court stated: “It was only after the trial court had denied probation and was in the process of sentencing defendant to prison that defendant asked, ‘Can I speak, your honor?’ Assuming for the sake of argument that this may be construed as a request to testify in mitigation of punishment, it came too late; it should have been made before the court started to pronounce defendant’s sentence. [Citations.]” (Evans, supra, 44 Cal.4th at p. 600.)
Here, unlike in Evans, defendant sought leave to speak before the trial court began to pronounce sentence. It does appear that he was asking to address the court directly, rather than to testify. Even so, it could be argued that, until Evans was decided, defendant and his counsel had no way of knowing that his request should have been in the form of a request to testify. (See People v. Black (2007) 41 Cal.4th 799, 810-812 [objection not raised below nevertheless is not forfeited “‘when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.’”].) For this reason, we assume, without deciding, that the asserted error has not been forfeited. Accordingly, we also assume, without deciding, that the trial court erred by failing to allow defendant to testify under oath at sentencing.
Even if so, however, the error is exclusively one of state statutory law. Admittedly, Evans held only that there is no federal constitutional right “to make an unsworn personal statement without being subject to cross-examination.” (Evans, supra, 44 Cal.4th at p. 600.) It did not directly address whether there is a federal constitutional right to make a sworn personal statement. Nevertheless, given the holding of Evans, an erroneous refusal to allow the defendant to testify at sentencing is just a species in the genus of the erroneous exclusion of evidence.
It has been held that “[t]he complete exclusion of defense evidence could ‘“theoretically could rise to [the] level”’ [citation] of a due process violation. But short of a total preclusion of defendant’s ability to present a mitigating case to the trier of fact, no due process violation occurs; even ‘“[i]f the trial court misstepped, ‘[its] ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’”’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 452-453, quoting People v. Boyette (2002) 29 Cal.4th 381, 428.)
Here, the trial court did not completely exclude the defense evidence. To the contrary, it allowed defense counsel to make multiple unsworn factual representations (see also part III.A, post.) — e.g., that when defendant had been arrested for possession of a fraudulent driver’s license, the driver’s license in his possession was actually valid. Moreover, defendant had previously made a statement to the probation officer, which was in evidence by way of the probation report.
Accordingly, the error asserted here must be deemed harmless unless it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) This same standard has been applied in the past to the denial of an opportunity to address the court at sentencing. (People v. Thomas (1955) 45 Cal.2d 433, 438.) In general, such a denial has been held harmless if the defendant was represented by counsel who was free to assert reasons why a more lenient judgment should be imposed. (Id. at pp. 438-439; see also People v. Billetts (1979) 89 Cal.App.3d 302, 311.) That was the case here. We conclude that the putative error was harmless.
II
PROBATION CONDITION REGARDING PETS
Defendant contends that the trial court erred by imposing a probation condition that required him to keep the probation officer informed of his pets.
A. Additional Factual and Procedural Background.
Probation condition No. 7 required 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.” At sentencing, defense counsel objected that the term “pets, unless large dogs or something, is a little broad.” The prosecutor disagreed. The trial court overruled the objection and imposed the condition.
B. Analysis.
“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 court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. 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.] 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 (1995) 10 Cal.4th 1114, 1120-1121, quoting Pen. Code, § 1203.1, subd. (j); People v. Lent (1975) 15 Cal.3d 481, 486 and People v. Welch (1993) 5 Cal.4th 228, 233.)
“‘[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, 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.
While pet ownership is not, in itself, criminal, it is reasonably related to the supervision of a probationer, and hence to his or her future criminality. “[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 probationer’s 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 [97 L.Ed.2d 709, 107 S.Ct. 3164].) 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 probationer’s home unannounced. Here, for example, defendant’s 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 probationer’s home is reasonably related to the safety and security of the probation officer.
Certain pets can pose a significant danger to humans. Statutory and case law routinely address the problems presented by dogs, dog bites, and poor control by the dog-owner or handler. (See, e.g., People v. Henderson (1999) 76 Cal.App.4th 453, 461; Pen. Code, § 399 [mischievous animal causing death or serious bodily injury]; Pen. Code, § 597.5 [felonious possession of fighting dogs]; Civ. Code, § 3342 [dog bites; strict liability of owner].) Dangerous pets can also include reptiles, spiders and pigs. While some pets are so innocuous that they could not possibly interfere with a probation officer’s performance of his or her duties, the trial court could reasonably choose 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 — 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.
We conclude that the trial court did not err by imposing the pet condition.
III
THE IMPOSITON OF PROBATION SUPERVISION COSTS
Defendant contends that the trial court erred by requiring him to pay $15 a month in probation supervision costs (Pen. Code, § 1203.1b) without holding an evidentiary hearing.
A. Additional Factual and Procedural Background.
According to the probation report, defendant was 56 years old. He was unemployed and had no income. He had $2,000 in assets. He had an 11th grade education, plus training as a plumber and as a small equipment driver. He was the guardian of a 17-year-old nephew. He told the probation officer that his “goal in life is to get a good job for ten years so he can retire.” The probation report recommended that he be required to pay $15 a month in probation supervision costs.
At sentencing, defense counsel asked the trial court not to impose probation supervision costs, “given [defendant’s] current financial situation.” He represented that defendant was “living off the $2,000 savings, and it’s being depleted rapidly having had difficulty finding employment during the pendency of this case.” He added that defendant’s “special training . . . was as a civilian contractor with the Navy which required security clearance. Those opportunities will be foreclosed if this is a felony.” The prosecution objected. The trial court found: “The defendant does not have the present ability to pay appointed counsel fees, arresting agency fees, or investigation fees. However, he does have the ability to pay supervision fees and is ordered to do so pursuant to Penal Code Section 1203.1(b) [sic] at the rate of $15 per month . . . until paid in full.”
B. Analysis.
Section 1203.1b, as it stood from 1989 through 1995, provided:
“(a) In any case in which a defendant is . . . granted probation, the court . . . shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of probation . . . . At a hearing, the defendant shall be entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court . . . . If the court determines that the defendant has the ability to pay all or part of the costs, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability . . . .” (Former Pen. Code, § 1203.1b, subd. (a); Stats. 1989, ch. 1059, § 1, p. 3666; Stats. 1993, ch. 158, § 19, pp. 1433-1434; Stats. 1993, ch. 159, § 1, p. 1442; Stats. 1993, ch. 273, § 2.5, pp. 1962-1963; Stats. 1993, ch. 502, § 4, pp. 2631-2632.)
In 1994, People v. Phillips (1994) 25 Cal.App.4th 62 held that “although section 1203.1b permits a separate hearing on a defendant’s ability to pay probation costs, the statute does not prohibit a sentencing court from conducting the hearing as part of the sentencing process. [Citation.] [¶] Similarly, the statute does not require a hearing at which evidence is formally presented if a defendant is amenable to an informal proceeding.” (Id. at p. 70.) Accordingly, any objection to the form of the hearing was forfeited if not raised in the trial court. (Ibid.)
In 1995, section 1203.1b was amended, so that it now provides:
“(a) In any case in which a defendant . . . is granted probation . . . the probation officer . . . shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision . . . . The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.
“(b) When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer . . . . The following shall apply to a hearing conducted pursuant to this subdivision:
“(1) At the hearing, the defendant shall be entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court . . . .” (Pen. Code, § 1203.1b, subds. (a), (b); Stats. 1995, ch. 36, § 1, pp. 109-110.)
It could be argued that the 1995 amendment abrogated the holding of Phillips. Nevertheless, in People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), the court held that “a defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of Penal Code section 1203.1b waives the claim on appeal, consistent with the general waiver rules of People v. Welch (1993) 5 Cal.4th 228 . . . (Welch) and People v. Scott (1994) 9 Cal.4th 331 . . . (Scott).” (Valtakis, at p. 1068, fn. omitted.) It “assume[d] that the 1995 amendment’s addition of separate-hearing and waiver language was a legislative response to Phillips.” (Id. at p. 1074.) However, it held that the amendments had no “effect . . . on the usual appellate rule that a claim is waived if not raised in the proceedings below[.]” (Id. at p. 1075.) It reasoned, in part, that “the waiver language does not speak to appellate review.” (Ibid.) Also, “to construe the language as abrogating Welch and Scott . . . would work results horribly at odds with the overarching cost conservation policy of the section.” (Ibid.)
The defendant in Valtakis had raised no objection whatsoever to the imposition of probation costs. (Valtakis, supra, 105 Cal.App.4th at p. 1069.) Defendant therefore argues that Valtakis does not apply here, because his counsel did object. Defense counsel, however, merely urged the court to find that defendant did not have the ability to pay. He did not ask the court to hold any separate or more formal evidentiary hearing. Defendant is now belatedly claiming that the trial court failed to comply with the statutory hearing requirement. Accordingly, Valtakis is controlling here.
There was sufficient evidence in the record that defendant had the ability to pay $15 a month. There was no apparent reason why he was unemployed. He had training as a plumber and as a small-equipment operator, both jobs that could be done for employers other than the Navy. He himself told the probation officer that he intended “to get a good job for ten years so he can retire.” Obviously, in his own mind, he was employable, and not only at a bare subsistence level.
We therefore conclude that defendant forfeited his present contention — that the trial court erred by failing to hold a full-blown evidentiary hearing — by failing to raise it below.
IV
DISPOSITION
The judgment is affirmed.
I concur: McKINSTER, Acting P.J.
King, J., Concurring and Dissenting.
I concur in all respects, save and except as to the condition of probation requiring defendant to keep the probation officer informed of his pets. I believe, as written, the 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 court’s 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, defendant’s ownership or contact with a pet of any kind has nothing to do with the crime of which he was convicted.
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 People contend 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 defendant’s residence. As a pet itself can be a weapon, knowledge of any pets in defendant’s residence can be crucial to insuring a probation officer’s safety in supervising defendant’s compliance with the other conditions of probation.
The concern, it appears, is whether defendant might have a dangerous animal at his residence. Knowing whether a defendant keeps dangerous animals as pets would assist an officer when conducting a search of a probationer’s residence 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 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 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 defendant’s 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 Crew and 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 person’s 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 [citation].”].) “[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 defendant’s 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.