IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S149303
v.
Ct.App. 4 EO39342
ALEJANDRO OLGUIN,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. FSB051372
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
1
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
2
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,
3
“[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
4
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
5
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.1 Being informed at
all times of the pets that are present at a probationer’s residence thus reduces the
1
For example, both statutory law and case law routinely address the notable
problems presented by dogs, dog bites, and poor dog owner/handler control. (See,
e.g., Pen. Code, §§ 399 [mischievous animal causing death or serious bodily
injury], 597.5 [felonious possession of fighting dogs]; Civ. Code, § 3342 [dog
bites; strict liability of owner]; People v. Henderson (1999) 76 Cal.App.4th 453
[upholding conviction for drawing or exhibiting a deadly weapon, a pit bull, with
the intent to resist or prevent an arrest]; see also People v. Knoller (2007) 41 Cal.
4th 139 [involving second degree murder conviction arising from inadequate
supervision of dogs known to be aggressive and highly dangerous].)
6
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.
7
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 pets, nor
does it require defendant to obtain permission from his probation officer in order
to obtain or keep any pet.
Because the condition literally encompasses the gamut of pets from puppies
to guppies, we observe, as did the Court of Appeal majority, that this term of
probation does not “authorize a probation officer to irrationally or capriciously
exclude a pet.” (See, e.g., Kwizera, supra, 78 Cal.App.4th at p.p. 1240-1241
[probation department’s authority to ensure compliance with terms of probation
does not authorize irrational directives by probation officer].)2 In the present case,
2
At one point its opinion, the Court of Appeal majority referred to an
implied power on the part of the probation officer “to exclude certain pets or direct
(Footnote continued on next page.)
8
it is not alleged that any probation officer has taken any action restricting
defendant’s ability to own or keep a pet at his residence. It therefore is speculative
on this record to define the scope of a probation officer’s supervisory authority
under the notification condition in responding to a notice concerning a pet.
Defendant challenges the condition on its face, but on its face the condition simply
requires notification that reasonably provides the probation officer with
information designed to assist in the supervision of defendant while he is on
probation. What action the officer may choose to take once he or she receives
information concerning a pet — whether to be accompanied by animal control
officers during any search, to request that defendant detain or relocate a pet during
a search, or to petition the trial court for modification of the terms of defendant’s
probation — is beyond the scope of a facial attack on the notification condition
itself.
Defendant suggests that a “less burdensome” and more “carefully tailored”
condition would be to require the probation officer to contact defendant prior to
making a compliance visit in order to determine whether defendant possesses any
pets or, if making an unannounced probation-compliance check, to require the
officer to request that all animals on the property be restrained prior to the
officer’s entry into the residence. These alternatives would interfere with the
effectiveness of unannounced compliance visits and searches. The probation
officer must be able to visit defendant and search his residence without any
(Footnote continued from previous page.)
the care of the pet (i.e., keeping [it] contained in order to allow searches).” In
response, the People assert that if a probation officer wished to prohibit defendant
from having a particular pet at his residence, the officer would be required to
petition the trial court pursuant to Penal Code section 1203.2 to modify the
conditions of probation.
9
advance notice or restriction, so as to be able to ascertain whether he is complying
with the other terms of his probation. More importantly, the relevant test is
reasonableness (Lent, supra, 15 Cal.3d at p. 486), and defendant does not
persuasively explain why it is unreasonable to place the burden on defendant to
keep the probation officer informed of the presence of any pets at the residence.
Finally, defendant argues this notification provision deprives him and other
probationers of due process of law. As we have acknowledged, “[a] probation
condition that imposes limitations on a person’s constitutional rights must closely
tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890;
see also People v. Smith (2007) 152 Cal.App.4th 1245, 1250; People v. Jungers
(2005) 127 Cal.App.4th 698, 704; In re Byron B. (2004) 119 Cal.App.4th 1013,
1016.)
On the other hand, we have observed that probation is a privilege and not a
right, and that adult probationers, in preference to incarceration, validly may
consent to limitations upon their constitutional rights — as, for example, when
they agree to warrantless search conditions. (People v. Ramos (2004) 34 Cal.4th
494, 506; Bravo, supra, 43 Cal.3d at p. 609; see also People v. Medina (2007) 158
Cal.App.4th 1571, 1580 [“a suspicionless search pursuant to a probation search
condition is not prohibited by the Fourth Amendment”]; Balestra, supra, 76
Cal.App.4th at p.p. 68-69 [upholding a probation condition requiring submission
to alcohol and drug testing at the discretion of the probation officer]; People v.
Lopez (1998) 66 Cal.App.4th 615, 628-629 (Lopez) [upholding a probation
condition prohibiting association with known gang members].)
Defendant, relying primarily upon decisions that govern probation
conditions limiting rights of association and speech protected by the First
Amendment (see, e.g., Lopez, supra, 66 Cal.App.4th at p. 615), contends that the
10
condition requiring notification of the presence of pets is overbroad. He invites us
to determine whether the condition is closely tailored to achieve its legitimate
purpose of rehabilitating defendant and protecting the probation officer. We do
not apply such close scrutiny in the absence of a showing that the probation
condition infringes upon a constitutional right. As noted, absent such a showing,
this court simply reviews such a condition for abuse of discretion, that is, for an
indication that the condition is “arbitrary or capricious” or otherwise exceeds the
bounds of reason under the circumstances. (Carbajal, supra, 10 Cal.4th at p.
1121.)
Attempting to identify a relevant constitutional right, defendant contends
that the condition requiring notification of the presence of pets unconstitutionally
deprives him of a property right without due process of law under the Fourteenth
Amendment. This claim is without merit. Putting aside the doubtful proposition
that pets constitute a type of property that is not subject to reasonable regulation,3
3
Other jurisdictions in different contexts have found that ownership of
animals, specifically dogs, “does not implicate fundamental constitutional rights
such as speech or association” (Colorado Dog Fanciers v. Denver (Colo. 1991)
820 P.2d 644, 651), and that regulations affecting or restricting dog ownership are
permissible despite claims that such regulation unduly impacts property interests.
(See American Dog Owners Ass’n. v. Dade County, Fla. (S.D.Fla. 1989) 728
F.Supp. 1533, 1541 [ordinance regulating the ownership of pit bull dogs did not
implicate any fundamental rights], relying in part on Nicchia v. New York (1920)
254 U.S. 228, 230 [“Property in dogs is of an imperfect or qualified nature and
they may be subject to peculiar and drastic police regulations by the state without
depriving their owners of any federal right”].) We find nothing to the contrary in
the federal authority cited by defendant, which simply recognizes that a peace
officer’s action in killing a suspect’s pet constitutes a “seizure” of property or
personal effects that must be justified under the Fourth Amendment. (See, e.g.,
San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose (9th Cir.
2005) 402 F.3d 962, 977-978 [“The Fourth Amendment forbids the killing of a
person’s dog . . . when that destruction is unnecessary — i.e., less intrusive, or less
(Footnote continued on next page.)
11
we note that defendant has not been prohibited from owning any pet, nor has any
pet been taken from him. A condition that requires defendant merely to notify his
probation officer of pet ownership does not deprive defendant of any property
right.
Defendant also asserts a constitutionally protected interest in sharing his
home with any animal of his choice. Again, putting aside the doubtful proposition
that such associational rights exist (see, e.g., Nahrstedt v. Lakeside Village
Condominium Assn. (1994) 8 Cal.4th 361, 388 [“There is no federal or state
constitutional provision . . . that confers [on persons involved in common interest
developments] a general right to keep household pets”], we observe that defendant
has raised a facial challenge to a probation condition that merely requires
notification of the presence of pets, and that does not provide for the probation
department’s approval or removal of any pet in his home. Defendant proffers no
reason for us to conclude that a notification requirement implicates any
associational rights, even assuming such rights exist.4
(Footnote continued from previous page.)
destructive, alternatives exist”]; Fuller v. Vines (9th Cir. 1994) 36 F.3d 65, 68
[killing a dog “is a destruction recognized as a seizure under the Fourth
Amendment”], overruled on other grounds in Robinson v. Solano County (9th Cir.
2002) 278 F.3d 1007, 1013.)
4
We note that as a further condition of probation that is not challenged,
defendant agreed not to associate with criminals and drug users and to keep his
probation officer informed of any cohabitants. Analogous restrictive probation
conditions have been upheld even though they clearly affect a probationer’s
associational rights. (See, e.g., People v. Lopez (1998) 66 Cal.App.4th 615, 628-
629 [condition prohibiting association with known gang members]; People v. Peck
(1996) 52 Cal.App.4th 351, 363 [condition prohibiting association with known
possessors, users, or traffickers of controlled substances who were unrelated to
probationer]; People v. Garcia (1993) 19 Cal.App.4th 97, 101-03 [condition
prohibiting association with known users or sellers of narcotics, felons, or ex-
(Footnote continued on next page.)
12
Defendant cites due process concepts that assertedly support an additional
constitutional interest — that of not being subject to punishment for violation of a
provision that is too vague to afford notice of what is prohibited or required. (See
In re Sheena K, supra, 40 Cal.4th at p. 890.) The notification provision in
question is clear, however. It requires defendant to inform his probation officer of
the presence of the pets in his household. Defendant counters that the terms of the
condition are so broad that he is subject to incurring a probation violation for
failing to notify the probation officer that he keeps a goldfish, despite his view that
the purpose of the condition would not be served by such an interpretation and that
the condition should not be interpreted to include such a requirement.5 This
argument, however, goes to the reasonableness of the requirement, and not to the
question of whether the term affords adequate notice of what is prohibited or
required. The reasonableness of the requirement is evaluated for abuse of
discretion. We have explained that it is reasonable to permit the probation officer,
rather than defendant or the trial court, to make the initial determination whether,
(Footnote continued from previous page.)
felons]; People v. Wardlow (1991) 227 Cal.App.3d 360, 366-367 [condition
prohibiting association with child molesters].)
5
As noted, no question involving actual enforcement of the notification
condition is presently before the court, only the reasonableness of the condition on
its face. As for the hypothetical situation of the unreported goldfish posited by
defendant, we note generally that a defendant’s violation of a condition imposed
as a requirement of probation does not necessarily signify that probation must be,
or even will be, revoked. The trial court ultimately maintains discretion whether
“the interests of justice” require that probation be revoked in any particular case.
(Pen. Code, § 1203.2, subd. (a).) Moreover, a defendant facing revocation of his
or her probation for violating a term of probation has the right before revocation to
a hearing, at which he or she has the right to counsel and to argue that a particular
application of a probation condition exceeds the bounds of reason under the
circumstances. (See generally ibid.; Pen. Code, § 1203.3.)
13
in the officer’s view, possession of a particular pet will have an impact on or
interfere with probation supervision.
The concurring and dissenting justice in the appellate court, without
referring specifically to constitutional principles, expressed the view that “the
provision is overbroad.” Although acknowledging that “probation requires careful
supervision by a probation officer” and that “a probation search may occur at
defendant’s premises,” this justice asserted that “the term and condition of
probation relative to the ownership of pets and the notification of the existence of
such pets should be limited to dogs and/or pets which pose a risk of injury to
individuals entering the premises. In that the condition is not so limited, it is
overbroad.” The dissenting opinion makes a similar argument in this court.
Setting aside the difficulty of administering a standard that would depend upon the
subjective judgment of the probationer or the probation officer concerning which
pets “pose a risk of injury,” we note the fallacy of this argument insofar it relies
upon principles applicable to probation conditions that impair constitutional rights,
while failing to identify any constitutional right impaired or infringed by the
notification condition here in question. In our view, in the absence of any
demonstrated impairment of a constitutional right, this notification condition is not
subject to exacting scrutiny for overbreadth; rather, it is to be accorded deferential
review for any abuse of discretion. As we have explained above, no abuse of
discretion occurred in the case before us.
IV.
For the reasons discussed above, we conclude that the trial court did not
abuse its discretion in imposing the condition that defendant, as a term of his
14
probation, notify his probation officer of the presence of any pets at defendant’s
place of residence. The judgment of the Court of Appeal is affirmed.
GEORGE, C. J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
15
DISSENTING OPINION BY KENNARD, J.
Defendant pled guilty to two counts of driving with a blood-alcohol level in
excess of .08 percent by weight. (Veh. Code, § 23152, subd. (b).) The trial court
placed him on three years of supervised probation. Among the conditions of
probation was that defendant, who had no history of animal abuse or keeping
dangerous animals, notify the probation officer before obtaining any pets, and that
he give 24 hours’ written notice “prior to any changes.” A divided Court of
Appeal upheld this condition, as does a majority of this court. But in my view, the
condition, which has no connection to defendant’s “drunk driving” conviction, is
overbroad and invalid. Hence, my dissent.
In granting probation, a trial court may in its discretion impose reasonable
conditions. (Pen. Code, § 1203.1, subd. (j).) A probation condition is valid if it
(1) has a connection to the crime committed, (2) relates to conduct that is criminal,
or (3) reasonably relates to future criminality. (People v. Lent (1975) 15 Cal.3d
481, 486.)
Here, there is no relationship between the pet probation condition and
defendant’s “drunk driving” conviction. Nor is it criminal conduct to have a pet.
With respect to the third factor — whether the condition has a reasonable
relationship to future criminality — the majority’s answer is a resounding “yes.” I
disagree.
1
As the majority sees it, any probation condition that makes it easier for a
probation officer to supervise a probationer is one that reasonably relates to
deterring future criminality and thus is valid. (See maj. opn., ante, at p. 1
[“condition facilitates the effective supervision of probationers and, as such, is
reasonably related to deterring future criminality”]; id., at p. 4 [“provides
information that is useful for effective probation supervision”]; id., at p. 5 [“A
condition of probation that enables a probation officer to supervise his or her
charges effectively is, therefore, ‘reasonably related to future criminality’ ”].)
Pets, the majority insists, can be potentially dangerous as they could pose a safety
threat to probation officers and could interfere with unscheduled visits and
unannounced searches by acting as a warning system. (Maj. opn., ante, at pp. 4, 6,
7.)
The flaw in the majority’s reasoning is that it treats all pets alike. The
majority’s concern is that some pets may “pose a great or even life-threatening
hazard to persons . . . .” (Maj. opn., ante, at p. 6.) Most pets do not fall into that
category. Yet the majority, in upholding the probation condition, treats any pet as
potentially “life threatening.” Falling within that reach would be Jaws the
goldfish, Tweety the canary, and Hank the hamster, hardly the kinds of pets one
would expect to strike fear in a probation officer. The majority’s safety concern
could easily be met by a more limited probation condition related to the keeping of
dangerous animals.
The majority expresses concern that pets may warn the probationer of the
probation officer’s presence, thereby interfering with unannounced visits and
searches. I find that concern puzzling for two reasons. First, the probation
condition does not solve the problem the majority poses because the probationer
need only give notice that he or she has a pet; nothing in the condition prohibits
probationers from having a pet. (Maj. opn., ante, at p. 8.) Second, warning the
2
probationer is irrelevant, because a probation officer cannot just barge into a
probationer’s residence. The law requires knocking or other means of notice of
the officer’s presence, and an announcement of the purpose of the visit. (People v.
Mays (1998) 67 Cal.App.4th 969, 973, fn. 4; see Pen. Code, §§ 844, 1531; People
v. Murphy (2005) 37 Cal.4th 490, 495-496.) This requirement itself warns the
probationer of the officer’s presence.
Because it treats all pets alike, the San Bernardino County probation
condition requiring petitioners to notify their probation officers of all pets at their
residences, and of any change in the status of those pets, is overbroad and thus
invalid. Most pets — including domestic cats, tropical fish, and song birds like
canaries — present no conceivable risk of impairing or interfering with probation
supervision. Indeed, the overbroad pet notification condition may itself interfere
with achievement of probation’s rehabilitative goals because the notification
burdens it imposes may discourage pet ownership, thereby depriving probationers
of the well-documented physical and mental health benefits of animal
companionship at home. To eliminate these unnecessary and counterproductive
burdens, I would require probation authorities to draft a narrower and more
rational probation condition.
KENNARD,
J.
I CONCUR:
MORENO, J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Olguin
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Unpublished Opinion
XXX NP opn. filed 12/15/06 – 4th Dist., Div. 2Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
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Opinion No.
S149303Date Filed: December 29, 2008
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Court:
SuperiorCounty: San Bernardino
Judge: Michael M. Dest
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Attorneys for Appellant:
John L. Staley, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Barry
Carlton and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
John L. Staley11770 Bernardo Plaza Court, Suite 305
San Diego, CA 92128
(858) 613-1047
Stephanie H. Chow
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2077
Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The case presents the following issue: May a trial court impose a condition of probation requiring a probationer to obtain permission from his or her probation officer in order to own any pet?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 12/29/2008 | 45 Cal. 4th 375, 198 P.3d 1, 87 Cal. Rptr. 3d 199 | S149303 | Review - Criminal Appeal | closed; remittitur issued | PEOPLE v. GAREY (S138316) |
| 1 | Olguin, Alejandro (Defendant and Appellant) Represented by John L. Staley Attorney at Law 11770 Bernardo Plaza Court, Suite 305 San Diego, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Stephanie Ho-Ray Chow Office of the Attorney General P.O. Box 85266 San Diego, CA |
| 3 | The People (Plaintiff and Respondent) Represented by Scott Charles Taylor Office of the Attorney General P.O. Box 85266 San Diego, CA |
| Opinion Authors | |
| Opinion | Chief Justice Ronald M. George |
| Dissent | Justice Joyce L. Kennard |
| Disposition | |
| Dec 29 2008 | Opinion: Affirmed |
| Dockets | |
| Jan 4 2007 | Received premature petition for review Alejandro Olguin, defendant and appellant by John L. Staley, CA-appointed counsel |
| Jan 17 2007 | Case start: Petition for review filed |
| Jan 17 2007 | Record requested |
| Jan 19 2007 | Received Court of Appeal record one doghouse |
| Mar 8 2007 | Time extended to grant or deny review to and including April 17, 2007 |
| Mar 21 2007 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. |
| May 10 2007 | Counsel appointment order filed Upon request of appellant for appointment of counsel, John L. Staley is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| Jun 4 2007 | Request for extension of time filed to July 9, 2007 to file Appellant's Opening Brief on the Merits by John L. Staley, Supreme Court appointed counsel |
| Jun 8 2007 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the Appellant's Opening Brief on the Merits is extended to and including July 9, 2007. |
| Jul 16 2007 | Request for extension of time filed to and including August 9, 2007, to file Appellant's Opening Brief on the Merits. (Faxed copy received 7-12-2007) |
| Jul 16 2007 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and fle the opening brief on the merits is extended to and including August 9, 2007. No further extension of time will be granted. |
| Aug 6 2007 | Opening brief on the merits filed Allejandro Olguin, defendant and appellant by John L. Staley, CA-appointed counsel (Filed in San Diego) |
| Aug 29 2007 | Request for extension of time filed Counsel for respondent requests extension of time to October 5, 2007, to file the answer brief on the merits |
| Aug 29 2007 | Compensation awarded counsel Atty Staley |
| Sep 7 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 5, 2007. No further extensions will be granted. |
| Oct 5 2007 | Answer brief on the merits filed Respondent People's by Stephanie H. Chow, Deputy AG - San Diego (Filed in San Diego) |
| Oct 26 2007 | Received: (Faxed copy) motion to file late (one day) appellant's reply brief/merits. |
| Oct 30 2007 | Reply brief filed (case fully briefed) Alejandro Olguin, appellant John L. Staley, Supreme Court appointed counsel (Filed with permission) |
| Aug 20 2008 | Case ordered on calendar to be argued Wednesday, October 8, 2008, at 9:00 a.m., in Riverside County |
| Sep 2 2008 | Request for Extended Media coverage Filed The California Channel by James Gualtieri |
| Sep 5 2008 | Request for Extended Media coverage Granted The request for media coverage, filed by the California Channel on September 2, 2008, is granted, subject to the conditions set forth in rule 1.150, of the California Rules of Court. |
| Oct 1 2008 | Request for Extended Media coverage Filed The Desert Sun Mike Snyder, photographer |
| Oct 1 2008 | Request for Extended Media coverage Filed Calif. State University, San Bernardino-Palm Desert Campus Mike Singer, photographer |
| Oct 3 2008 | Request for Extended Media coverage Granted The request for extended media coverage of the Supreme Court's Oral Argument Special Session on October 7, and 8, 2008, filed by the California State University, San Bernardino-Palm Desert Campus photographer on September 26, 2008, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Oct 3 2008 | Request for Extended Media coverage Granted The request for extended coverage of the Supreme Court's Oral Argument Special Session on October 7 and 8, 2008, filed on October 1, 2008, by The Desert Sun to serve as pool photographer is granted subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Oct 8 2008 | Cause argued and submitted |
| Dec 26 2008 | Notice of forthcoming opinion posted |
| Dec 29 2008 | Opinion filed: Judgment affirmed in full Opinion by George, C.J. -- joined by Baxter, Werdegar, Chin, and Corrigan, JJ. Dissenting opinion by Kennard, J. -- joined by Moreno, J. |
| Jan 29 2009 | Remittitur issued (criminal case) |
| Feb 4 2009 | Received: Acknowledgment of receipt for remittitur from Fourth Appellate District, Division Two, signed for by Michelle Parlapiano, Deputy Clerk. |
| Mar 11 2009 | Compensation awarded counsel Atty Staley |
| Briefs | |
| Aug 6 2007 | Opening brief on the merits filed |
| Oct 5 2007 | Answer brief on the merits filed |
| Oct 30 2007 | Reply brief filed (case fully briefed) |
| Brief Downloads | |
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| May 21, 2011 Annotated by gregory rosenberg | FACTS: Defendant Alejandro Olguin was sentenced to three years eight months in state prison after pleading guilty to two counts of driving with a blood-alcohol level in excess of 0.08 percent by weight (Vehicle Code § 23152, subd. (b)) and admitting having suffered prior convictions. By the terms of the plea agreement, the court suspended his sentence and place him on three years' supervised probation with one year to be served in county jail. Olguin challenged three conditions of his probation, including the requirement that he inform his probation officer of any pets kept in his residence and give the officer 24 hours written notice to any changes in the presence of pets. PROCEDURAL HISTORY: At defendant's sentencing hearing, he requested that the word "pets" be stricken from the probation condition 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." Defendant challenged this condition as "unconstitutional and overbroad." The trial court denied the request. On appeal, the Court of Appeal issued a split decision with the majority affirming the trial court's order. The Supreme Court of California granted defendant's petition for review to resolve conflicting appellate court decisions on this issue. ISSUE: Does a trial court abuse its discretion in setting a probation condition that a defendant must notify his or her probation officer of the presence of any pets at defendant's residence? HOLDING: The requirement that defendant notify his probation officer of the presence of any pets in defendant's residence is reasonably related to deterring future criminality and does not implicate any fundamental constitutional right. Thus, the probation condition is valid. ANALYSIS: The Court, reviewing the trial court's condition of probation for abuse of discretion, applied the three-part test from People v. Lent (1975) 15 Cal.3d 481, 486 to determine whether the pet notification condition was invalid. The Lent test requires a defendant to show all of the following three factors: (1) the condition has no relationship to the crime of which the offender was convicted; (2) the condition relates to conduct which is not itself criminal; and (3) the condition requires or forbids conduct which is not reasonably related to future criminality. It was undisputed that defendant met the first two factors--the pet notification condition is unrelated to driving under the influence of alcohol and owning a pet is not itself criminal. The case turned on whether the pet notification condition was reasonably related to future criminality. The Court agreed with the Court of Appeal majority that the pet notification condition was reasonably related to future criminality because it served to protect a probation officer charged with supervising a probationer's compliance with all terms of probation. Probation supervision assists in preventing future criminality. Effective probation supervision requires that a probation officer be able to search safely, without advanced notification, a probationer's residence. The pet notification condition promotes officer safety by enabling the officer to be aware of and prepared for potential dangers that may arise from the presence of an animal in the probationer's residence when conducting a compliance visit. The condition also facilitates unannounced searches because a pet may act as a warning system, alerting the probationer to the officer's presence and allowing the probationer to destroy or hide evidence of illegal activity. The Court also noted that notifying a probation officer about the presence of pets imposes no undue burden on probationers and does not implicate any constitutional rights. While the condition required notification of all pets--including innocuous pets like goldfish--the Court found the requirement a reasonable alternative to having the defendant or the trial court decide how the possession of a particular pet might impact probation supervision. The condition does not forbid the probationer from owning any pets or even require that he or she seek permission to own any pets; the duty is merely to inform the probation officer. The Court rejected defendant's claim that the probation condition deprived of a property right without due process of law. Even if a pet constitutes a type of property that cannot be subject to reasonable regulation, the condition did not forbid ownership of any pet. Thus, defendant was not deprived of any property right. The Court applied the same logic in rejecting the claim that defendant has a constitutionally protected interest in sharing his home with animals of his choice. Even if such a right exists, the probation condition did not infringe upon it. Finally, the Court rejected defendant's claim that the probation condition violated a due process right to not be subject to punishment for violation of a provision that is too vague to afford notice of what is prohibited or required. The Court found that the probation condition is clear. Justice Kennard, joined by Justice Moreno, dissented. The dissent noted that the majority opinion's reasoning wrongly treated all pets alike. While the majority was concerned that some pets pose a serious hazard to probation officers, most pets do not fall into that category. The safety concern could be met by a more limited condition related to the keeping of dangerous animals. The dissent also took issue with the notion that the condition assists with unannounced visits for two reasons. First, the condition does not solve the problem of pets acting as an early warning system because the condition does not forbid probationers from owning pets. Second, a pet alerting a probationer to an officer's presence is irrelevant because the law requires an officer to knock or otherwise give notice of the officer's presence and an announcement of the purpose of the visit. The probationer is required by law to have a warning of the officer's presence. The dissent also noted that the condition may actually work against probation's rehabilitative goals in that it may discourage pet ownership, which has well-documented physical and mental health benefits. TAGS: due process, pets, probation, probation conditions, probation supervision, unannounced search, vague prohibitions |
| Mar 13, 2009 Annotated by diana teasland | Written by Tim Fisher Summary: Olguin plead guilty to two counts of driving under the influence of alcohol. As part of his plea agreement, Olguin was required 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.” Olguin challenged the requirement that he inform his probation officer of any pets as not reasonably related to future criminality, as unconstitutional, and as overbroad. Writing for a 5-2 majority, Chief Justice George rejected Olguin’s challenge. Because probation officers are charged with supervising probationer’s compliance with the probation terms, which are themselves intended to prevent future criminality, measures that assist the probation officer to complete the supervisory role are reasonably related to future criminality. Pets, if unknown to the probation officer, could interfere with the probation officer’s safety or his/her ability to carry out unannounced visits to probationer’s home. In this way, the requirement that Olguin notify his probation officer of any pets was reasonably related to future criminality. The probation term also did not infringe upon any constitutional rights. As such, it could also not be deemed “overbroad,” because it meets the relevant standard, namely reasonableness. |
