Lead Opinion
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 conсurring and dissenting justice disagreed. We granted defendant’s petition for review in order to resolve the conflict among the appellate decisions addressing this issue.
“Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] 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 probatiоn.’ (Pen. Code, § 1202.7.)” (People v. Carbajal (1995)
We review conditions of probation for abuse of discretion. (Carbajal, supra,
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,
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 thе 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)
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 рrobationer 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.
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 temрerament 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,
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 pp. 1240-1241 [probation department’s authority to ensure compliance with terms of probation does not authorize irrational directives by probation officer].)
Defendant suggests that a “less burdensome” and more “carefully tailored” condition would be to rеquire 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 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,
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)
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)
Defendant, relying primarily uрon decisions that govern probation conditions limiting rights of association and speech protected by the First Amendment (see, e.g., Lopez, supra,
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
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)
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 аsserted 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 as it relies upon principles applicable to probation conditiоns that impair constitutional rights, while failing to identify any constitutional right impaired or infringed by the notification condition
HI.
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 probation, notify his probatiоn officer of the presence of any pets at defendant’s place of residence. The judgment of the Court of Appeal is affirmed.
Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
Notes
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)
At one point in 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 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 рrobation.
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)
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 probatiоn conditions have been upheld even though they clearly affect a probationer’s associational rights. (See, e.g., People v. Lopez (1998)
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 counsеl 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.)
Dissenting Opinion
Defendant pled guilty to two counts of driving
with a blood-alcohol level in excess of 0.08 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)
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 answеr is a resounding “yes.” I disagree.
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. 378
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. 381.) 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 cаnary, 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 pеt; nothing in the condition prohibits probationers from having a pet. (Maj. opn., ante, at pp. 382-383.) Second, warning the 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)
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, аnd 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
Moreno, J., concurred.