Opinion
E039984
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM RICHARD THOMPSON, Defendant and Appellant.
Daphne Sykes Scott, 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, and Scott C. Taylor, Supervising Deputy Attorney General.
William Richard Thompson (defendant) pleaded guilty to possession for sale of methamphetamine (count 1) and cruelty to a child (count 3). On appeal, defendant argues that one of the terms of probation was invalid. We agree and we order that probation term stricken.
FACTUAL AND PROCEDURAL HISTORY
On October 13, 2005, police officers saw defendant in his driveway area as the officers were serving a search warrant at defendants home. The officers detained defendant as he walked away from them. Defendant admitted to having methamphetamine and told the officers where it was located. The officers found three bags of methamphetamine in a hollowed-out block of wood, approximately 50 unused plastic baggies, a scale, and a camera monitoring system in defendants home. After receiving Miranda warnings, defendant admitted that the drugs belonged to him and he was selling the drugs.
Miranda v. Arizona (1996) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
RICHLI, J.
I must respectfully dissent. While pet ownership is not, in itself, criminal, nor particularly related to possession of methamphetamine, it is reasonably related to the supervision of a probationer, and hence to his or her 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.
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 (1995) 10 Cal.4th 1114, 1121, quoting People v. Welch (1993) 5 Cal.4th 228, 234, quoting People v. Warner (1978) 20 Cal.3d 678, 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, 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 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. The majority even concedes that "[i]t is true, however, that if defendant were to acquire a vicious or dangerous animal like a pit bull, rottweiler or other dangerous animal, it would unduly hamper parole or probation supervision, the purpose of which is to prevent future criminality." (Maj. opn., ante, at p. 4.) Thus, the majority concedes that defendant could be forbidden to keep a vicious dog. (Ibid.)
However, 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., <http://www.cuteoverload.com>, as of September 12, 2006), it is perfectly reasonable for the trial court 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.
But 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 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. The majority 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. (Maj. opn., ante, at pp. 3-4.) 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. All that is necessary is that the condition be reasonable under all the circumstances. This condition here meets this requirement.
"[A] probation condition also may be challenged as excessively vague." (In re Byron B., supra, 119 Cal.App.4th at p. 1018.) Defendant may suggest that he could be found to have violated his parole by failing to give written notice 24 hours before the death of a pet. I refuse to believe that any court of this state would interpret the condition so as to require the impossible. Notes:
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 either defendants argument or the majoritys opinion.
Defendant pleaded guilty to felony possession for sale of methamphetamine, in violation of Health and Safety Code section 11378 (count 1), and misdemeanor cruelty to a child, in violation of Penal Code section 273a, subdivision (b). In exchange, the trial court dismissed count 2 — allowing a place for preparing or storing methamphetamine, in violation of Health and Safety Code section 11366.5, subdivision (a).
After defendant pleaded guilty, the trial court granted probation. One of the terms of probation was that defendant should "[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." Defense counsel specifically objected to the condition concerning pets, arguing that it was unconstitutional and overbroad. The trial court overruled the objection.
ANALYSIS
A. The Probation Condition Concerning Pets Must Be Stricken as Overbroad
Probation is an act of clemency (People v. McGavock (1999) 69 Cal.App.4th 332, 337), allowing an eligible convicted person limited freedom in lieu of incarceration. (People v. Guzman (2005) 35 Cal.4th 577, 590-591.) 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 or 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.)
"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." (People v. Lent (1975) 15 Cal.3d 481, 486.)
In this case, we find that the pet probation condition violates 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. Defendant possessed drugs and drug paraphernalia. No animal was present and there was no reason to think that any animal had anything to do with defendants possession of the drugs.
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. There was no reason to think that defendant had committed, would commit, or was likely to commit any crime relating to ownership of or access to any animals whatsoever.
The People argue that the condition "directly relates to the probation officers ability to effectively and safely supervise [defendant]." The sole argument on the point is that, "[k]nowledge of [defendants] residence, of others living in the residence and of any pets in the residence, can be crucial to a probation officer in supervising [defendant], as such knowledge is particularly important in maintaining the safety of the probation officer during any unscheduled visits to [defendants] residence."
The People never explain, however, how knowledge about defendants pets, if any, could improve the probation officers ability to supervise defendant. We can only infer that the concern apparently addressed is whether defendant might have a dangerous animal, such as a vicious attack dog, at his 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.
In this case, no one had any reason to think that defendant owned a pet that could endanger a probation officers life. If facts could have been brought to bear to show that 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 avoid the anticipated danger. But the condition imposed, which related to all pets without limitation, was overbroad.
DISPOSITION
The trial court is directed to strike the reference to "pets" in probation term 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. In all other respects, the judgment is affirmed.
I Concur:
GAUT, J.