Martinez, In re

• Decision Date: 21 November 1978
• Docket Number: Cr. 32961
• Citation: 150 Cal.Rptr. 366,86 Cal.App.3d 577
• Parties: In re Jesus Quiroz MARTINEZ, on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 366

150 Cal.Rptr. 366

86 Cal.App.3d 577

In re Jesus Quiroz MARTINEZ, on Habeas Corpus.

Cr. 32961.

Court of Appeal, Second District, Division 2, California.

Nov. 21, 1978.

Wilbur F. Littlefield, Public Defender of Los Angeles County, Dennis A. Fischer, Howard C. Waco, Stephen F. Moeller, Deputy Public Defenders, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., James H. Kline, William R. Pounders, Deputy Attys. Gen., for Probation Officer of the County of Los Angeles.

COMPTON, Associate Justice.

In this habeas corpus proceeding defendant seeks to be freed from a condition of probation imposed on him as a result of his plea of guilty to the crime of battery on a police officer. (Pen.Code, §§ 242, 243.)

Defendant was originally charged with a felony offense of assault by means of force likely to produce great bodily injury on a police officer. (Pen.Code, § 245, subd. (b).) With the consent of the district attorney he was permitted to plead guilty to the lesser charge. Defendant was sentenced as a misdemeanant.

In granting probation to the defendant the trial court imposed, and the defendant accepted, inter alia, the following conditions:

(1) That defendant not possess any dangerous or deadly weapon, and

(2) That defendant submit to warrantless searches of his person or property by law enforcement officers. It is this "search" condition which defendant challenges here.

The circumstances of the underlying offense of which defendant was convicted were as follows:

On November 25, 1976, two uniformed police officers were attempting to impound an illegally parked vehicle. A crowd of approximately fifty young males and females began to form, yelling obscenities and throwing beer cans and bottles. The officers called for additional police, who arrived to assist them. As the police prepared to leave the location, one of the officers observed the defendant throw a beer bottle at the police vehicle. The bottle broke against the patrol car, shattering glass and spewing beer over the officer.

Defendant argues that the condition that he submit to future warrantless searches is invalid in that it is unrelated to the charge of which he was convicted and is therefore outside the scope of the rehabilitative goal of Penal Code section 1203.1. ¹

In granting probation, courts have broad discretion to impose restrictive conditions to foster rehabilitation and to protect society. (In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727.) Requiring the probationer to submit to warrantless searches has been held to be proper and reasonable under certain circumstances on the theory that probation is a privilege and the person granted such privilege after conviction of a crime does not enjoy the full constitutional protection of persons otherwise situated. (People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630.)

Of course the condition concerning warrantless searches, like any other condition, may be challenged as being unreasonable or excessively harsh under the particular circumstances. (In re Osslo, 51 Cal.2d 371, 334 P.2d 1; People v. Frank, 94 Cal.App.2d 740, 211 P.2d 350; In re Bushman, supra.)

The test for determining whether a particular condition of probation is invalid and an abuse of the trial court's discretion was enunciated in People v. Dominguez, 256 Cal.App.2d 623, 64 Cal.Rptr. 290, and approved by the Supreme Court in In re Bushman, supra, and In re Mason, supra.

The most recent expression of the law on the subject is People v. Lent, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545. It was there stated at page 486, 124 Cal.Rptr. at page 908, 541 P.2d at page 548:

"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 . . . .' (People v. Dominguez (1967) 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290." (Emphasis added.)

In footnote 1, at page 486, 124 Cal.Rptr. 905, 541 P.2d 545, the court expressly disapproved the use of the disjunctive in In re Bushman, supra, and People v. Mason, supra, and stressed the conjunctive nature of the test.

The Attorney General defends the "search" condition on the grounds that the Condition prohibiting possession of dangerous or deadly weapons by defendant is related to the present offense assaultive conduct by the defendant is related to future criminality by deterring the possible use of weapons in a future assault And that the latter "search" condition is necessary to permit effective enforcement of the former condition.

In other words, the Attorney General's argument is that whenever a condition prohibiting possession of concealable weapons can be reasonably imposed, a "search" condition may also reasonably be imposed. This argument, then, requires a preliminary discussion of the condition prohibiting possession of dangerous and deadly weapons, even though in these proceedings defendant has not challenged that condition.

The Deadly Weapons Control Law (Pen.Code, §§ 12000, et seq.) prohibits possession of certain described weapons by anyone (Pen.Code, § 12020) and also prohibits possession of firearms by certain classes of persons or under certain conditions (Pen.Code, §§ 12021, 12021.5, 12025). This leaves situations outside the ambit of the Deadly Weapons Control Law in which mere possession of deadly or dangerous weapons is legal. (Pen.Code, §§ 12026, 12027.)

A condition of probation which prohibits possession of all weapons under any circumstances restricts what would otherwise be lawful conduct. A condition simply prohibiting violation of the Deadly Weapons Control Law would be a redundancy.

Here defendant was convicted of an assault by means of force likely to produce great bodily injury. This type of assault can be committed by the use of common articles whose generic nature, under normal conditions, is not dangerous and whose possession would not be unlawful. In fact, the missile which defendant used in this case was not by definition either a dangerous or deadly weapon.

Facially the prohibition against defendant's future possession of dangerous or deadly weapons is not related to the crime for which he was convicted unless it can be said that in all cases of assault by any means such a prohibition is reasonable. We think that is not the case.

We are not prepared to declare, however, that in all cases where a defendant is convicted of an assault not involving the use of dangerous or deadly weapons, imposition of such a condition would per se be unreasonable. As we will indicate, Infra, the propensities of the individual defendant as manifested by the present offense and Past behavior, may justify such a condition in order to deter future criminality.

Given the inordinately large role which weapons play in the high incident of violent crime that our society is experiencing, it could be argued that imposing such a condition on anyone who suffers a criminal conviction for any offense would go a long way in preventing future crimes. Such an approach, however, would be unreasonable and would result in denying to a large group of non-violent persons the right to own or possess weapons for any reason.

Further, if, as the Attorney General contends, the imposition of such a condition necessarily carries with it the additional condition that the probationer be subjected to warrantless searches, the approach becomes even more onerous and unreasonable. There would then be created a large class of persons stripped of their protection against unreasonable searches and seizures in the name of speculative crime prevention.

We are not unmindful of the great value to effective law enforcement which this probationary device provides in the classic cases, such as narcotic offenses and offenses involving concealable weapons, where such a probationary condition is proper and truly serves the goals of rehabilitation and protection of society. (People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630.) Prosecutors, however, would be well advised to be judicious in seeking imposition of this condition lest...