Wednesday, June 25, 2008
Page 3
Court Rejects Probation Condition Requiring Pet Status Updates
By STEVEN M. ELLIS, Staff Writer
A trial court erred when it ordered a former prison guard convicted of bringing marijuana to work to keep her probation officer up to date on any pets in her home, the Fourth District Court of Appeal ruled yesterday.
Ruling in an unpublished opinion that the condition was overbroad, Div. Two directed San Bernardino Superior Court Judge John P. Vander Feer to modify Irene Sisneros’ probation to strike a requirement that she keep her probation officer informed of any pets at her residence, and provide written notice 24 hours in advance of any pet-related changes.
Sisneros was employed in 2004 as a correctional officer at the Baker Community Correctional Facility in San Bernardino County, a privately contracted correctional facility operated by Cornell Corrections, when another officer reported her for suspicious behavior because she was writing a personal letter when she was supposed to be overseeing inmates and visitors.
A subsequent search of Sisneros revealed a small baggie of marijuana and a marijuana pipe enclosed in a black coin purse, and she was charged with one count of bringing drugs into a prison and one count of possessing drugs in a prison.
Sisneros claimed that she had found the items in the prison yard and had simply forgotten, or not had time to turn in the contraband, but the prosecution presented evidence at trial that private correctional officers such as Sisneros were trained to secure contraband and take it immediately to a control area and to notify a supervisor, and never to hold it until the end of a shift.
The prosecution also introduced the letter, which Sisneros admitted writing in the visitation room, in which she had written, “Now I want 2 get faded. I feel like drinking tequila and smoking a lil,” and testimony from an officer that the statements referred to marijuana use.
A jury convicted Sisneros on both counts, and granted her probation on the condition that she “[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.”
Sisneros’ counsel did not object to the condition, and it was not argued on appeal. But the appellate panel noted that issue of whether a probationer may be required to obtain permission in order to own a pet is currently pending before the California Supreme Court, and addressed the propriety of the order based on its independent review of the record.
The Court of Appeal upheld Sisneros’ convictions—noting that the evidence was “more than sufficient” to sustain them—and held that Sisneros’ letter was properly admitted. However, it remanded the case to the trial court to modify the probation condition to strike the reference to pets in general.
Citing precedent that a probation condition “will not be held invalid unless it…has no relationship to the crime of which the offender was convicted,…relates to conduct which is not in itself criminal,…and requires or forbids conduct which is not reasonably related to future criminality,” Justice Art W. McKinster wrote that the reference to pets in Sisneros’ probation condition violated all three criteria.
“Defendant’s ownership or contact with a pet of any kind has no logical connection with the crime of which she was convicted,” he wrote. “Having a pet is not in itself criminal. Pet ownership is not indicative of or related to future criminality.
Addressing the prosecution’s argument that the condition was directly related to the probation officer’s ability to effectively and safely supervise Sisneros, McKinster wrote that the court could only infer that the concern was whether she “might have a dangerous animal, such as a vicious attack dog, at her residence,” and observed that “[i]t is already unlawful to keep vicious or dangerous animals…, and defendant’s probation conditions already require her to violate no law.”
Nevertheless, McKinster conceded that if Sisneros acquired a vicious or dangerous animal, “it might unduly hamper parole or probation supervision, the purpose of which is to prevent future criminality,” writing that “[a] probation condition narrowly tailored to require notice of such animals” would be appropriate.
Justices Barton C. Gaut and Douglas P. Miller joined McKinster in his opinion.
The case is People v. Sisneros, E042862.
Copyright 2008, Metropolitan News Company