Opinion
A152217
09-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JAN ELIZABETH VAN DUSEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 169934)
This case has twice been before us. In defendant's first appeal (People v. Van Dusen (Sept. 15, 2016, A142665) [nonpub. opn.]), we affirmed her conviction of felony animal cruelty (Pen. Code, § 597, subd. (b)). In defendant's second set of appeals (People v. Van Dusen (April 18, 2017, A145929, A147201) [nonpub. opn.]), we affirmed restitution orders.
All statutory references are to the Penal Code unless otherwise indicated.
In the meantime, the trial court suspended imposition of sentence and placed defendant on five years of felony probation. The conditions included mental health counseling for the duration of probation. Defendant was also subject to a statutorily mandated 10-year animal ban. (§ 597.9, subd. (b).) Following issuance of our opinion in the restitution appeals, defendant filed a petition to vacate the animal ban. The trial court denied the petition on numerous grounds, which the court recited on the record in detail. Defendant has appealed from that denial order.
Section 597.9, subdivision (b) provides in relevant part: "[A]ny person who has been convicted of a felony violation of subdivision (a) or (b) of Section 597, or Section 597b or 597.5, and who, within 10 years after the conviction, owns, possesses, maintains, has custody of, resides with, or cares for any animal is guilty of a public offense, punishable by a fine of one thousand dollars ($1,000)."
This was defendant's second such petition. She filed her first approximately a year and a half earlier, before we issued our opinion in the first appeal. The court denied that petition, and no appeal was taken. --------
Defendant's appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of her right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the challenged order.
A defendant can petition the court to reduce the duration of the statutory animal ban. (§ 597.9, subd. (d)(1).) The defendant must, as a threshold matter, establish "by a preponderance of the evidence" that he or she (a) "does not present a danger to animals," (b) "has the ability to properly care for all animals in his or her possession," and (c) "has successfully completed all classes or counseling ordered by the court." (Id., subd. (d)(1)(A)-(C).) If the defendant carries this burden, the court "may" reduce the mandatory ban. (Id., subd. (d)(2).)
Defendant supported her petition with a memorandum of points and authorities and her own declaration.
The court (the same judge who tried and convicted defendant and pronounced sentence) held a lengthy hearing, commencing with a recitation of the history of the case. It took judicial notice of its own files, and pointed out that, contrary to what defendant asserted in her supporting declaration, the court had never stated that once defendant completed the required counseling it would vacate the statutory ban. Defendant responded by claiming a friend who had attended the hearing on the prior petition had been left with the impression the court had made such a statement. Defendant then took issue with the statutory counseling requirement (§ 597.9, subd. (h)), claiming she had been denied the right to present evidence of her mental state and it was a denial of due process to require counseling in the absence of evidence that she suffered from any disorder that required treatment. We observe that defendant did not appeal her sentence, and thus has long since forfeited any challenge to that statutory requirement or any other condition of her probation. Defendant next asserted probation considered her counseling "completed," but admittedly did not provide any evidence of that. Defendant then maintained she did not have the funds to pay for any further counseling, but acknowledged she had sought and been denied economic relief and had not made any renewed effort to obtain financial assistance. Defendant further accused the court of imposing the counseling requirement because it had been "pressur[ed]" to do so by "animal rights advocates" who had attended the sentencing hearing. The court again pointed out counseling was statutorily mandated.
Defendant also asserted she had not had enough time to gather evidence, but acknowledged she had filed her petition aware that, under the statute, a hearing was required within 30 days. In fact, as the court noted, she had emphasized the 30-day hearing requirement in bold in her papers. Defendant then asserted her application was "unopposed." The court pointed out that, in fact, the prosecutor was present at the hearing and it was not a prerequisite that the prosecution file written opposition.
After defendant completed her argument, the prosecutor orally opposed the petition on the ground defendant had not carried her burden of establishing the three threshold requirements for the court to exercise its discretion as to the duration of the animal ban.
In orally ruling on and denying defendant's petition, the court addressed the issue of counseling at length. Among other things, the court observed defendant had produced no evidence corroborating her assertion that probation considered her counseling complete. But even had she done so, the court explained it still would not have lifted the ban. Apart from completing counseling, defendant was also required to establish that she is "not a danger to animals" and can "properly care for all animals." But in her declaration, defendant had repeatedly minimized her culpability, leading the court to conclude defendant "still lacks appreciation and understanding of how her malfeasance led to the horrific and deplorable circumstances that underlie her conviction for felony animal cruelty." The court then went on to recount in fairly graphic detail the evidence during the trial, and the probation department's summary of the case. That in the face of this evidence defendant continued to minimize and rationalize her conduct, as she did in her supporting declaration, "underscore[d]" to the court that she remained a danger to animals. Thus, despite whatever counseling she had received, the court found she still "has no enlightenment regarding what actual conduct she engaged in that led to the needless suffering of these animals," leading the court to conclude defendant failed to establish that she was not a danger to animals. The court further found that defendant failed to establish that she had the "ability to properly care for" animals. The court pointed out defendant's evidence was several documents which pre-dated her conviction and thus were not relevant, and which did not, in any case, support defendant's assertion that even at that time she had the "ability" to care for the excessively large number of animals on her property. The court found defendant's reliance on these documents and the assertions in her declaration as "really further proof that the defendant does not see her conduct or culpability clearly."
In sum, defendant had every opportunity to fully present her petition. Her claims that she was not allowed to present evidence are meritless. The trial court heard extensive argument on her petition, and explained in detail the basis for its denial. As the trier of fact, it was the province of the trial court to assess the credibility of defendant's declaration, and we agree with the court's assessment that her declaration was replete with statements minimizing and attempting to rationalize her conduct.
DISPOSITION
After a full review of the record, we find no arguable issues and affirm the order denying defendant's petition pursuant to section 597.9, subdivision (d) to vacate the statutory animal ban.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.