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People v. Olguin

December 29, 2008

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALEJANDRO OLGUIN, DEFENDANT AND APPELLANT.



San Bernardino County Ct.App. 4 EO39342, Super. Ct. No. FSB051372. Judge: Michael M. Dest.

The opinion of the court was delivered by: George, C. J.

At issue in this case is a condition of probation requiring defendant to notify his probation officer of the presence of any pets at defendant's place of residence. Defendant contends the challenged condition is not reasonably related to future criminality, limits his fundamental rights, and is unconstitutionally overbroad. We disagree. Probation officers are charged with supervising probationers' compliance with the specific terms of their probation to ensure the safety of the public and the rehabilitation of probationers. Pets residing with probationers have the potential to distract, impede, and endanger probation officers in the exercise of their supervisory duties. By mandating that probation officers be kept informed of the presence of such pets, this notification condition facilitates the effective supervision of probationers and, as such, is reasonably related to deterring future criminality. Defendant's other arguments are without merit, because no fundamental or constitutional rights are implicated by the challenged term of probation. We therefore conclude that this notification condition is valid. The Court of Appeal's decision, which reached the same conclusion, is affirmed.

I.

Defendant pleaded guilty to two counts of driving with a blood-alcohol level in excess of 0.08 percent by weight (Veh. Code § 23152, subd. (b)) and admitted allegations that he had suffered prior convictions. He was sentenced to three years eight months in state prison. Pursuant to a plea agreement, execution of this sentence was suspended and defendant was placed on three years' supervised probation, including a one-year term to be served in county jail. During the sentencing hearing, defendant requested that the trial court modify three conditions of his probation. Relevant to this appeal, defendant asked that the word "pets" be stricken from the probation term requiring 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." Defense counsel argued that this term was "unconstitutional and overbroad."

The trial court denied this request, and defendant appealed. In a split decision, the Court of Appeal majority concluded that his challenge to the condition requiring notification of the presence of pets was without merit and that the trial court did not abuse its discretion in overruling defendant's objections to this term of probation; the concurring and dissenting justice disagreed. We granted defendant's petition for review in order to resolve the conflict among the appellate decisions addressing this issue.

II.

"Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citation.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure '[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' (Pen. Code, § 1202.7.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any "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. . . ." (Pen. Code, § 1203.1, subd. (j).) Although the trial court's discretion is broad in this regard, we have held that a condition of probation must serve a purpose specified in Penal Code section 1203.1. (Carbajal, supra, 10 Cal.4th at p. 1121; People v. Richards (1976) 17 Cal.3d 614, 619.) If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. (People v. Mason (1971) 5 Cal.3d 759, 764 (Mason), disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486 fn. 1 (Lent).) Additionally, at the sentencing hearing, a defendant can seek clarification or modification of a condition of probation. (See, e.g., People v. Bravo (1987) 43 Cal.3d 600, 610 fn. 7 (Bravo) ["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."]; see also Pen. Code, § 1230.3, subd. (a) ["The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence."].)

We review conditions of probation for abuse of discretion. (Carbajal, supra, 10 Cal.4th at 1121; People v. Welch (1993) 5 Cal.4th 228, 233.) Generally, "[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.]" (Lent, supra, 15 Cal.3d at p. 486.) This test is conjunctive - all three prongs must be satisfied before a reviewing court will invalidate a probation term. (Id. at p. 486, fn. 1; see also People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 (Balestra).) As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality. (See Carbajal, supra, 10 Cal.4th at 1121.)

The condition of probation at issue in the present case requires 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." (Italics added.) It is undisputed that the condition requiring notification of the presence of pets has no relationship to driving under the influence of alcohol, the crime of which defendant was convicted, and ownership of most pets is not itself criminal. Defendant argues that pet ownership additionally is not reasonably related to future criminality, and thus the notification condition is invalid under the test set forth in Lent. (Lent, supra, 15 Cal. 3d 481.) The Court of Appeal majority disagreed, holding that this condition is reasonably related to deterring future criminality, because it provides information that is useful for effective probation supervision. For example, a pet can threaten a probation officer's safety during a probation visit, distract an officer attempting to conduct a probation search, or prevent the officer from entering a probationer's residence in the first instance. The appellate court majority also upheld this condition as facilitative of the search condition, a term of probation that defendant does not challenge. We agree with the Court of Appeal majority that the notification condition in question is reasonably related to the supervision of defendant and hence to his rehabilitation and potential future criminality.

Penal Code section 1203, subdivision (a), defines probation as "the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer." (Italics added.) Generally speaking, conditions of probation "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." (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [also citing research suggesting that "more intensive supervision can reduce recidivism," and noting that "the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes"].) For example, probation conditions authorizing searches "aid in deterring further offenses . . . and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers." (People v. Robles (2000) 23 Cal.4th 789, 795.) A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, "reasonably related to future criminality." (See, e.g., People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 (Kwizera) [affirming probation condition requiring the defendant to " '[f]ollow such course of conduct as the probation officer prescribes' " as reasonable and necessary to enable the probation department to supervise compliance with specific conditions of probation]; Balestra, supra, 76 Cal.App.4th at pp. 65-67 [upholding warrantless search condition that served valid rehabilitative purpose of helping probation officer ensure that probationer obeys all laws].)

The condition requiring notification of the presence of pets is reasonably related to future criminality because it serves to inform and protect a probation officer charged with supervising a probationer's compliance with specific conditions of probation. As noted above, to ensure that a probationer complies with the terms of his or her probation and does not reoffend, a probation officer must be able to properly supervise that probationer. Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer's residence. Probation officer safety during these visits and searches is essential to the effective supervision of the probationer and thus assists in preventing future criminality. Therefore, the protection of the probation officer while performing supervisory duties is reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality.

There are several ways in which notification concerning pets contributes to the safety of probation officers. Animals can be unpredictable and potentially dangerous when faced with a stranger in their territory, and some pose a great or even life-threatening hazard to persons in these circumstances.*fn1 Being informed at all times of the pets that are present at a probationer's residence thus reduces the possible threat to the probation officer's safety by enabling the officer to be aware of, and prepared for, situations that may arise should the officer choose to conduct an unscheduled "compliance visit" to the probationer at his or her residence.

Ensuring advance knowledge of the presence of pets at a probationer's place of residence also is a reasonable means of facilitating unannounced searches of the probationer's residence during these compliance visits. The specific terms of defendant's probation require him to "[s]ubmit to a search . . . of your . . . residence . . . at any time of the day or night. . . ." " 'The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he 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 the defendant and his amenability to rehabilitation.' [Citation.]" (Mason, supra, 5 Cal.3d at pp. 763-764; see also People v. Reyes (1998) 19 Cal.4th 743, 753 ["the purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches"]; Bravo, supra, 43 Cal.3d at p. 610 [noting that probation search conditions serve to deter the commission of further offenses and to assist in ascertaining whether probationers are complying with the terms of their probation]. A pet, such as even a harmless small dog barking in the front yard, may act as a warning system, alerting the probationer to a probation officer's approach prior to the officer's knock at the door and allowing the probationer to destroy or hide evidence of illegal activity; it also may distract the probation officer or prevent or delay the officer from entering a residence or conducting a search. Knowing in advance which pets are present also can help avoid surprise to the officer and avert unnecessary injury or death of animals possessed by a probationer. Reporting the presence of pets to a probation officer is a simple task, imposes no undue hardship or burden, and is a requirement that clearly falls within the bounds of reason. Although some pets may be so innocuous that they could not possibly interfere with a probation officer's performance of his or her duties, it would be unreasonable and impractical to leave it to a probationer to decide which pets could interfere with an officer's supervisory duties, or to require a trial court to define the type, nature, and temperament of every animal that a probationer must report. On the other hand, it is reasonable to place the burden on a probationer to inform the probation officer which animals are present at his or her residence; the probation officer then can decide which precautions, if any, to take.

Defendant claims that this notification condition restricts his ability to own a pet. A probation condition should be given "the meaning that would appear to a reasonable, objective reader." (Bravo, supra, 43 Cal.3d at p. 606.) On its face, the condition requires defendant only to inform his probation officer of the presence of any pets at his place of residence and to give timely notice "prior to any changes" in that situation. It does not forbid defendant from owning ...


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