CRUELTY TO HORSES

 

California Court of Appeals (2008)  Terms of probation found reasonable.

 

People v. Floyd

Terms of probation found reasonable.  ADDED XXXX2008

 

 

 

People v. Floyd

Court of Appeal, First District, Division 5, California

UNPUBLISHED OPINION

2008 WL 2569313

June 30, 2008

 

Summary of Opinion

Animal Control took control of the horses of Plaintiff Evelyn Floyd following an investigation of horses to be malnourished, dehydrated, and with open sores on two of her properties.  Following a plea of no contest, Plaintiff appeals from the conditions of her probation.  This court finds the terms of her probation to be reasonable and they are affirmed.

 

Text of Opinion

Evelyn Floyd appeals from an order placing her on probation. She challenges two of the probation conditions that were imposed. We conclude the court did not abuse its discretion when it imposed the conditions and affirm the probation order.

 

I. FACTUAL AND PROCEDCURAL BACKGROUND

 

The facts of appellant's offense are set forth in the probation report as follows:

 

“On [May 14, 2006], Humane Animal Services received a complaint that horses owned by [appellant] and housed at a property in Vacaville had no food or water and were thin. Humane Animal Services responded and posted an abatement notice on the fence for [appellant] to abate the complaint. On [May 15, 2006], Solano County Animal Control received a second complaint that horses, owned by [appellant], were getting under the fence on the property. The reporting party also complained that some of the horses were skinny and appeared to have open sores and cuts.

 

“On [May 16, 2006], Animal Control went to check on the horses, which were located at two separate properties in Vacaville. Upon arrival at the first location, officers confirmed that several of the horses appeared to be skinny and that the property had an accumulation of debris and junk, on which the horses could injure themselves. One of the horses appeared to have some type of discharge coming from the rectum area. The officer [noticed] that [the] hay on the property was of poor quality. The officer was unable to clearly see the horses housed at the second location due to an accumulation of ... debris and junk.

 

“On [May 17, 2006], Animal Control officers met the defendant at the first location and found that several of the horses, which were housed on the property, were emaciated and skinny (ribs showing) and had poor hoof care and what appeared to be some type of skin problem. The horses housed at the second location were in a coral panel, which was dangerous, as it had jagged pieces of metal protruding into it. The officer noted that the hay and straw located at the second location was of poor quality.

 

“On [May 18, 2006], University of California Davis, School of Veterinary Medicine, Large Animal Field Services personnel examined the horses on behalf of [appellant]. Their findings indicated that the horses were provided insufficient nutrition (starvation), lacked adequate hoof care, had sharp enamel points (needed dental care), had severe [l]ouse infestation and parasitism, inadequate housing, and an inadequate fresh water supply. Additionally, one of the horses had hemorrhagic vulvar discharge (possibly from urine scalding).

 

“On [May 20, 2006], [appellant's] veterinarian conducted a follow-up visit and found that one of the two foals on the property was ill, suffering from an elevated heart rate, labored breathing, congested lungs, and dehydration. [Appellant] elected to have the animal euthanized. The remaining animals, including 16 horses and one foal, were seized by Animal Control on [May 22, 2006]. The grounds for the seizure were gross neglect and malnourishment. On [July 11, 2006], Animal Control inspected the two properties and found that the properties had been cleaned up and all concerns had been abated. On [July 20, 2006], seven horses were returned to [appellant], as they were deemed to be in a better state of well being. The nine remaining horses and foal remained in the possession of Animal Control and received on-going veterinary care. The [appellant] was billed for the cost incurred for the daily care, food and veterinary care.”

 

Based on these facts, a complaint was filed charging appellant with one count of felony cruelty to animals, (Pen.Code, § 597, subd .(b))  and two counts of failure to care for animals (§ 597f).

 

Appellant pled no contest to all three counts.

 

Subsequently, the court suspended the imposition of sentence and placed appellant on probation.

 

II. DISCUSSION

 

A. Background and General Principles

 

The trial court placed appellant on probation subject to several conditions. Three of those conditions are relevant here. The first stated appellant was obligated to submit her person, real or personal property, automobile and any object under her control, to search and seizure in and out of her presence, as requested by any peace or probation officer, at any time of the day or night, with or without probable cause, notice, consent, or warrant. The second required that appellant not leave the state without the permission of the court or probation. The third required that appellant not own horses without permission from probation. Appellant now challenges these conditions arguing they were invalid.

 

Section 1203.1, subdivision (j), states that a trial court may impose all “reasonable conditions [of probation], 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....”

 

A condition of probation that regulates conduct that is not itself criminal must be “reasonably related to the crime of which the defendant was convicted or to future criminality.”(People v.. Lent (1975) 15 Cal.3d 481, 486.) A probation condition will be held invalid only 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....’ “ (Ibid.)The trial court has broad discretion to determine what conditions of probation are appropriate. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) On appeal, we will uphold the trial court's decision unless the appealing party demonstrates that the trial court's exercise of discretion was arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. (Id. at p. 1121.)

 

With these principles in mind, we turn to the specific arguments appellant has advanced.

 

1. Search condition

 

Appellant challenges the search condition arguing it is not related to the offense she committed or to future criminality. We disagree with both arguments.

 

The probation report specifically noted that animal welfare officials were unable to see the horses that were on appellant's property due to an accumulation of junk and debris. To the extent the condition permitted a search of appellant's property, it clearly is valid.

 

The remainder of the search condition was also valid. People v.. Balestra (1999) 76 Cal.App.4th 57, is instructive here. The defendant in Balestra was convicted of elder abuse. She was placed on probation subject to a search condition. On appeal, she challenged that condition arguing it was invalid. The Balestra court disagreed: “[W]arrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms: ‘The threat of a suspicionless search is fully consistent with the deterrent purposes of the search condition. “ “ ‘The purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the probationer] 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....” “ “ (Id. at p. 67, italics & fn. omitted.)

 

Here, as in Balestra, the court could reasonably conclude a search condition was needed to ensure that appellant was complying with the terms of her probation and that she was obeying all laws.

 

In arguing the condition was invalid, appellant relies primarily on People v. Keller (1978) 76 Cal.App.3d 827. There, the defendant who was convicted of petty theft was subject to a search condition. Prior to that conviction, the defendant had suffered convictions for possession of marijuana and grand theft. The defendant's home was searched pursuant to the search condition and he was subsequently convicted of possessing heroin. (Id. at p. 830.)On appeal, the defendant argued his conviction had to be reversed because the search condition itself was invalid. The Keller court agreed finding that there was no evidence that the defendant had stolen the pen for reasons related to narcotics use. (Id. at pp. 838-839.)Finding no such nexus, the court concluded that it was unreasonable to impose a search condition that permitted the police to conduct a search for narcotics. (Id. at p. 840.)

 

Keller is factually distinguishable. But there is another, more important reason not to follow that case here. Keller was disapproved by the same court that issued it. In Balestra, the court noted that Keller went “far beyond the Lent test to list a total of seven factors we would require to uphold a probation condition....” (People v. Balestra, supra, 76 Cal.App.4th at p. 66.) “It is clear that Keller is inconsistent with the Fourth Amendment jurisprudence since the date of that decision. As our Supreme Court has recently (and repeatedly) made clear, a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement ... that a probationer ‘obey all laws.’ “ (Id. at p. 67.)

 

We conclude the search condition was valid.

 

2. Travel condition

 

Appellant challenges the condition that required her to obtain the permission from the court or probation before leaving the state. She argues that condition unreasonably restricted her constitutional right to travel.

 

“Probation conditions have been upheld even though they restrict a probationer's exercise of constitutional rights if they are narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer.”(In re Babak S. (1993) 18 Cal.App .4th 1077, 1084.)

 

Here, appellant's travel restriction is narrowly tailored because it does not prohibit her from traveling out of state; it only requires that she obtain permission from the court or probation before leaving the state. The condition is related to deterring future criminality because it fosters effective supervision by ensuring that appellant complies with the terms of her probation. The condition is also valid because it will assist the probation department in carrying out its responsibility to supervise appellant. (Cf. People v. Thrash (1978) 80 Cal.App.3d 898, 902.) As the trial court here noted trenchantly: “you cannot supervise on probation if she's not here. Therefore, I want her to get consent before leaving.”We conclude the travel condition is valid.

 

3. Restriction on owning horses

 

Appellant challenges the condition that she not own horses without first obtaining permission from the probation department. She contends that condition is invalid because it restricted her constitutional right to employment, and because it was inconsistent with another probation condition that she seek and maintain full-time gainful employment.

 

Appellant cannot validly raise this issue because she did not object to the condition in the court below. (People v. Welch (1993) 5 Cal.4th 228, 237.) It is also unpersuasive. Appellant conceded in the trial court that “restrictions regarding the ownership of horses” would be valid. Indeed, appellant told her probation officer that she was not capable of owning any horses at that point in time: “In order to prevent it from happening again, I will not own one single horse, unless and until I am financially and emotionally able to care for them properly.”The trial court could reasonably conclude that a third party such as the probation department was best suited to make the determination of when appellant had reached the mental state where it was safe for her to own horses again.

 

Furthermore, the restriction did not prevent appellant from working. The probation report indicated appellant had many skills. She had a teaching degree, she worked as a phlebotomist, she gave horseback-riding instructions, and she had worked as a painter and postal worker. None of those jobs required that appellant ownhorses. The restriction appellant challenges was not unreasonable.

 

III. DISPOSITION

 

The probation order is affirmed.