Criminal Appeal

Pet-Notification Probation Condition Stricken on Appeal

A California Court of Appeal (4th Dist., Div. 2) has stricken the pet-portion of a probation condition requiring a defendant convicted of possession of methamphetamine to “[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twentyfour (24) hours prior to any changes.” People v. Qunitero, no. E039290, filed 9/27/06).

The two-judge majority opinion (authored by Justice Barton C. Gaut and joined by Justice Douglas P. Miller) found the condition overbroad and unrelated to the offense, criminal activity, and future criminality. The majority, noting that probation supervision includes home visits, did allow that "If facts could have been brought to show that a 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 avoiding the anticipated danger."

Justice Betty Ann Richli dissented, finding the condition reasonably related to future criminality as it facilitated home visits and probation searches. She also would reject the argument that the condition was overbroad as it did not bar pet ownership, or require probation-officer approval; it only required notice to the probation officer of what animals were present in the home.

No Contact Condition for Juvenile Probationer Upheld Where Condition Limited to Persons "Disapproved" Rather than Persons "Not Approved" By Probation Officer or Parents. (In re Byron B., no. E034871 (Cal.Ct.App. 4/2, June 24, 2004).

Cal. Supreme Court to Review Juvenile Probation Condition Case. The California Supreme Court granted review today in In re Sheena K., no. S123980. The Court of Appeal (2d Dist., Div. 2) had vacated a probation condition that barred a minor from associating with anyone disapproved of by the probation officer. The court found the condition unconstitutionally vague and overbroad. The court reached the merits of this claim, despite the fact that the minor had not challenged the condition in the juvenile court. The court reached the merits because the issue was a pure question of law and because the minor merely requested modification of the condition such that it did not infringe her constitutional rights, rather than challenging the subject matter of the condition. It's not clear from the docket or the order list whether the issues presented include the waiver question.

Read the court of appeal opinion here. Read my original post on the court of appeal opinion here.

In the court of appeal, Steven A. Torres represented the minor and Deputy A.G. Yun K. Lee represented the state.

Vague Probation Condition Modified. Yesterday (3-2-04), in In re Sheena K., no. B167626, the California Court of Appeal (2d Dist., Div. 2) vacated a probation condition that barred a minor from associating with anyone disapproved of by the probation officer. The court found the condition unconstitutionally vague and overbroad, and ordered it modified to only bar the minor from associating with anyone the minor knows has been disapproved by the probation officer.

The court reached the merits of this claim, despite the fact that the minor had not challenged the condition in the juvenile court. The court reached the merits because the issue was a pure question of law and because the minor merely requested modification of the condition such that it did not infringe her constitutional rights, rather than challenging the subject matter of the condition.

Amount of Restitution May be Delegated to Probation Officer

A juvenile court has authority to direct the probation officer to determine the amount of victim restitution. So said the California Court of Appeal (2d Dist., Div. 3) today in In re Karen, A., no. B164433. Justice H. Walter Croskey wrote the opinion.

Probation Condition License Suspension Limited to 12 Months

The California Court of Appeal (1st Dist., Div. 3) held today that a juvenile court erred in suspending a minor's driver's license indefinitely as a condition of probation, following a conviction for vehicular manslaughter. A minor's license may be suspended as a condition of probation for no more than 12 months.

Interestingly, the Court reached the merits of the claims despite the fact that it was not raised in the trial court, noting that the issue presented a pure question of law:

we do not happily intervene when neither side brought the position it asserts on appeal to the attention of the trial court. Nonetheless, the issue presented is a pure question of law and implicates an explicit legislative directive nullifying the order that has been entered, so that appellate review remains appropriate. (In re Justin S. [(2001) 93 Cal.App.4th 811, 814-815.)

Justice Stuart R. Pollak authored the opinion in In re Colleen S., no. A100590