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People v. Vences

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E040343 (Cal. Ct. App. Apr. 3, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FSB052947, W. Robert Fawke, Judge.

Carmela F. Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION ON REMAND

King J.

Appellant and defendant Ismael Vences pled guilty to unlawfully taking or driving a vehicle under Vehicle Code section 10851, subdivision (a). The trial court sentenced defendant to 180 days in jail and placed him on three years’ felony probation. On appeal, defendant contends that a probation condition that he give 24-hour prior notification of a change of pets in his residence is invalid and unconstitutional. Because the California Supreme Court recently rejected the same challenge to an identical probation condition, we will affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts are taken from the probation officer’s report.

On November 4, 2005, a police officer saw defendant driving a vehicle which had been reported as stolen earlier that day. As the officer initiated a traffic stop, defendant pulled into a driveway and fled on foot. The officer contacted the owner, who confirmed that defendant did not have permission to drive the vehicle.

When defendant was arrested, he indicated that he fled because he knew the vehicle was stolen and because he did not have a driver’s license. The officer found a methamphetamine pipe in his pants pocket.

Defendant was charged with unlawfully driving a motor vehicle without an owner’s permission under Vehicle Code section 10851, subdivision (a) (count 1), receiving a stolen vehicle under Penal Code section 496d, subdivision (a) (count 2), and possessing an opium pipe under Health and Safety Code section 11364, subdivision (a) (count 3).

Defendant entered into a negotiated plea agreement. Defendant pled guilty to count 1. In exchange: (1) defendant would be placed on probation and ordered to serve 180 days in county jail; (2) the People agreed to dismiss the remaining charges; and (3) defendant was released from custody with a waiver under People v. Cruz (1988) 44 Cal.3d 1247.

On April 20, 2006, the trial court suspended imposition of judgment and placed defendant on three years’ formal probation. Defendant was ordered to serve 180 days in local custody. Defendant was ordered to report to a drug rehabilitation center, his driving privileges were revoked, and he was ordered, among other things, to “[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. . . .” Defense counsel objected to this requirement to the extent that it applied to “pets.” The trial court overruled the objection. Defendant appeals.

On May 10, 2007, we issued an opinion in this case in which we held that the pet probation condition is overbroad and not reasonably tailored to meet the objective for which it was imposed. Thereafter, our state Supreme Court granted review, then transferred the matter to this court with directions to vacate our decision and reconsider it in light of People v. Olguin (2008) 45 Cal.4th 375 (Olguin). Accordingly, we vacate our prior opinion and issue this revised opinion.

II. ANALYSIS

Trial courts have broad discretion to set conditions of probation in order to “foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see Pen. Code, § 1203.1, subd. (j); Olguin, supra, 45 Cal.4th at p. 379.) “If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)

However, the trial court’s discretion in setting the conditions of probation is not unbounded. “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 . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486; Olguin, supra, 45 Cal.4th at p. 379.) A condition of probation must satisfy all three requirements before it may be declared invalid. (Olguin, supra, at p. 379.)

In Olguin, the defendant pled guilty to two counts of driving with a blood-alcohol level in excess of 0.08 percent by weight (Veh. Code, § 23152, subd. (b)) and admitted allegations that he had suffered prior convictions (Olguin, supra, 45 Cal.4th at p. 378). Pursuant to a plea agreement, he was placed on three years’ supervised probation, including a one-year term to be served in county jail. (Ibid.) His terms of probation included the identical pet notification requirement that is the subject of this appeal: “‘[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.’” (Ibid.) On appeal, the defendant argued that the term was unconstitutional and overbroad. (Ibid.) The California Supreme Court disagreed.

The Olguin court held that the pet probation condition “is reasonably related to the supervision of defendant and hence to his rehabilitation and potential future criminality.” (Olguin, supra, 45 Cal.4th at p. 380.) The court explained that the requirement “serves to inform and protect a probation officer charged with supervising a probationer’s compliance with specific conditions of probation.” (Id. at p. 381.) “Animals,” the court reasoned, “can be unpredictable and potentially dangerous when faced with a stranger in their territory, and some pose a great or even life-threatening hazard to persons in these circumstances. Being informed at all times of the pets that are present at a probationer’s residence thus reduces the possible threat to the probation officer’s safety by enabling the officer to be aware of, and prepared for, situations that may arise should the officer choose to conduct an unscheduled ‘compliance visit’ to the probationer at his or her residence.” (Ibid., fn. omitted.) Although this rationale would not appear to apply to pets that could not possibly pose a threat to a probation officer, such as a goldfish, the court held that the condition was nevertheless reasonable and imposed no undue hardship or burden on the defendant. (Id. at pp. 382-386.)

The Olguin court specifically addressed and rejected the defendant’s argument that the condition was unconstitutionally overbroad. (Olguin, supra, 45 Cal.4th at pp. 384-387.) First, the court held that the condition did not infringe upon any constitutional right because it requires merely that the probationer notify the probation officer of pet ownership; because the condition did not preclude pet ownership, it did not deprive the probationer of any constitutionally protected property or associational right. (Id. at pp. 384-385.) Second, because a constitutional right is not implicated, the condition “is to be accorded deferential review for any abuse of discretion.” (Id. at p. 387.) Finally, because the court found that the condition was reasonable, there was no abuse of discretion. (Ibid.)

Olguin is factually and legally indistinguishable from the present case. Accordingly, we are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III. DISPOSITION

The judgment is affirmed.

We concur: McKinster Acting P.J., Miller J.


Summaries of

People v. Vences

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E040343 (Cal. Ct. App. Apr. 3, 2009)
Case details for

People v. Vences

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ISMAEL VENCES, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 3, 2009

Citations

No. E040343 (Cal. Ct. App. Apr. 3, 2009)