P. v. Gamboa

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Filed 4/12/07 P. v. Gamboa CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JORGE GAMBOA,
Defendant and Appellant.
E040668
(Super.Ct.No. FSB055852)
OPINION
APPEAL from the Superior Court of San Bernardino County. John W. Bunnett,
Judge. (Retired judge of the L.A. Mun. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,

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Lilia E. Garcia, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy
Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant pleaded guilty to discharge of a firearm
with gross negligence (Pen. Code, § 246.3) and assault with a deadly weapon by means
of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). In return,
defendant was sentenced to 120 days in county jail and placed on probation for a period
of three years on various terms and conditions. On appeal, defendant contends (1) the
probation condition requiring him to submit to and cooperate in field interrogations
infringes upon his Fifth Amendment constitutional privilege against self-incrimination
and is unconstitutionally vague; (2) the probation condition requiring him to submit to a
search and seizure of his person, residence, and/or property under his control at any time
of the day or night by any law enforcement officer, with or without a search warrant and
with or without cause, is unconstitutionally overbroad; and (3) the probation condition
requiring him to keep the probation officer informed of whether he owns any pets is
unconstitutionally overbroad. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND1
On May 2, 2006, San Bernardino Sheriff’s deputies responded to a call of
someone shooting a gun. When the officers arrived, they saw defendant driving at a high
rate of speed through a stop sign. When the officers pulled him over, defendant had a
1 The factual background is taken from the probation officer’s report.

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nine-millimeter handgun in his car and admitted he had fired shots into the air to
celebrate seeing his mother. A box of ammunition was found in the trunk of the car.
Defendant stated he lived in Arizona, and it was not a “big deal” to shoot into the air
there. The officers found four spent cartridges in the area, and defendant admitted firing
at least five times.
II
DISCUSSION
A. Field Interrogation Condition
At sentencing, defense counsel objected to the probation condition requiring
defendant to “[s]ubmit to and cooperate in a field interrogation by any peace officer at
any time of the day or night,” as “unconstitutional and overbroad.” The court denied the
request to strike this condition.
Defendant contends this probation condition violates his constitutional right
against self-incrimination and is vague and overbroad. We disagree.
“‘The primary goal of probation is to ensure ‘[t]he safety of the public . . . through
the enforcement of court-ordered conditions of probation.’ [Citation.] [C]onditions of
probation ‘are routinely imposed when the sentencing court determines, in an exercise of
its discretion, that a defendant who is statutorily eligible for probation is also suitable to
receive it.’ [Citation.] In the granting of probation, the Legislature has declared the
primary considerations to be: ‘the nature of the offense; the interests of justice, including
punishment, reintegration of the offender into the community, and enforcement of

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conditions of probation; the loss to the victim; and the needs of the defendant.’
[Citation.] [¶] In granting probation, courts have broad discretion to impose conditions
to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.] ‘The court may impose and require . . . [such] reasonable conditions[] 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.’ [Citation.] The trial court’s discretion, although broad,
nevertheless is not without limits: a condition of probation must serve a purpose specified
in the statute. In addition, . . . Penal Code section 1203.1 . . . require[s] that probation
conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime
of which the defendant was convicted or to future criminality.’ [Citation.]” (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120-1121; see also § 1203.1; People v. Welch (1993)
5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.)
Defendant’s concern that the field interrogation condition is overly broad, vague,
and serves no legitimate purpose is not well founded. Like the standard probation search
condition, a field interrogation probation condition is a correctional tool that can be used
to determine whether the defendant is complying with the terms of his or her probation or
disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an
unexpected search is to determine not only whether parolee disobeys the law, a basic
condition of parole, but also whether he or she obeys the law; the condition helps

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measure the effectiveness of parole supervision]; In re Anthony S. (1992) 4 Cal.App.4th
1000, 1006 [probation is an alternative form of punishment, carrying with it certain
burdens, such as a search term, which can be used as a correctional tool].)
This court observed in People v. Adams (1990) 224 Cal.App.3d 705 that “a
warrantless search condition is intended and does enable a probation officer ‘“to ascertain
whether [the defendant] is complying with the terms of probation; to determine not only
whether [the defendant] disobeys the law, but also whether he obeys the law.
Information obtained . . . would afford a valuable measure of the effectiveness of the
supervision given the defendant and his amenability to rehabilitation.”’ [Citation.]” (Id.
at p. 712.) In addition, as our Supreme Court observed, “[w]hen [warrantless search and
seizure] conditions are imposed upon a probationer . . . , it is established that the
individual ‘consents to the waiver of his Fourth Amendment rights in exchange for the
opportunity to avoid service of a state prison term. Probation is not a right, but a
privilege.’ [Citation.]” (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo
(1987) 43 Cal.3d 600, 608.)
Likewise, here, the field interrogation probation condition will provide practical,
on-the-street supervision to defendant. Field interrogations will be used to monitor
defendant’s compliance with conditions of his probation. Also, information obtained
from field interrogations will provide a valuable measure of his amenability to
rehabilitation, which is related to his future criminality. A condition allowing field
interrogations may further dual purposes of deterring future offenses by the probationer

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and ascertaining whether he is complying with the terms of his probation. The purpose of
an unexpected, unprovoked field interrogation of defendant is to ascertain whether
defendant 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 defendant. (See, e.g., People v. Reyes, supra, 19 Cal.4th at p. 752.)
Although the field interrogation probation condition forbids defendant from doing
something that is not in itself criminal, that is, “‘ignore his interrogator and walk away’”
(United States v. Mendenhall (1980) 446 U.S. 544, 553), it is related to the purposes of
probation as described in People v. Lent (1975) 15 Cal.3d 481. It provides officers with a
means of assessing defendant’s progress toward rehabilitation, it assists them in enforcing
other terms of his probation, and it deters further criminal activity. Thus, the field
interrogation condition serves the purposes of probation and is valid under the Lent
criteria. (Id. at p. 486.) In addition, implicit in almost every probation condition,
including the field interrogation condition, is reasonableness.
Here, defendant discharged a firearm with gross negligence (Pen. Code, § 246.3)
while driving around in a public street and committed an assault with a deadly weapon by
means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). By
his grossly negligent actions, he endangered the lives of innocent people. In addition,
defendant had a proclivity to carry deadly weapons as evidence by his criminal history.
He had been convicted in January 2004 of carrying a concealed weapon in a vehicle (Pen.

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Code, § 12025) and previously had been charged with carrying a loaded firearm in a
public place (Pen. Code, § 12031, subd. (a)(1)). We believe the field interrogation
condition is necessary to help reform defendant by discouraging him from carrying
dangerous and deadly weapons and firearms or concealing future criminality and to
ensure that defendant remains in compliance with probation. The field interrogation term
is reasonably related to defendant’s future criminality.
Additionally, “interrogation” inherently means questions related to “seek solution
of a crime.” (See Black’s Law Dict. (6th ed. 1990) p. 818, col. 2.) Thus the inherent
meaning of the term limits the questions that could be asked of a probationer in a field
interrogation to those designed to monitor the probationer’s compliance with the other
terms of his or her probation as well as future criminality. We do not find that the failure
to make this limitation explicit provides any justification for striking the condition. It
may be that this limitation is implicit in the language that the court adopted and could be
permitted to stand without modifying the language of the condition. Moreover, as
discussed in detail, post, it is unlikely that a probationer would likely be found to have
violated the field interrogation term in a probation revocation hearing for merely refusing
to answer questions unrelated to the conduct of the probationer. This condition would
assist defendant in maintaining compliance with the law and the terms of his probation.
Defendant claims the field interrogation condition implicates his Fifth Amendment
privilege against self-incrimination. We find no constitutional violation.

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Defendant is not an ordinary citizen. He is a convicted felon who has been
granted the privilege of probation. It has long been settled that certain constitutional
rights can be limited where appropriate in the probation process. (See People v.
Arvanites (1971) 17 Cal.App.3d 1052, 1063 [prohibition against planning and engaging
in demonstrations was valid where the defendant falsely imprisoned a man during a
protest rally]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969 [probation condition
prohibiting the defendant from active participation in demonstrations following his
conviction of assault at a college demonstration was reasonable], overruled on other
grounds in People v. Welch, supra, 5 Cal.4th at p. 237; People v. King (1968) 267
Cal.App.2d 814, 822-823 [condition of probation proscribing participation in
demonstrations valid where the defendant battered police officers at an antiwar
demonstration].) Because of his status as a felon, defendant may be detained and
questioned by a peace officer without the requirement that the officer have at least a
reasonable suspicion, based on articulable facts, that defendant is engaged in criminal
activity. (See Terry v. Ohio (1968) 392 U.S. 1.) Although an ordinary citizen “may not
be detained even momentarily without reasonable, objective grounds for doing so; and
his refusal to listen [to a peace officer] or answer [any question put to him] does not,
without more, furnish those grounds[,]” we repeat that defendant is not an ordinary
citizen. (Florida v. Royer (1983) 460 U.S. 491, 498.) The impingement on his
constitutional right to remain silent is warranted due to his status as a felon. The
condition is sufficiently narrow to serve the interests of the state and his reform and

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rehabilitation while merely requiring him to submit to and cooperate in a field
interrogation. Defendant still retains his Fifth Amendment privilege, as discussed below.
Furthermore, any custodial interrogation that might follow a field interrogation would be
subject to the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 478-479.
While probationers have long been required to “cooperate” with their probation
officers, a probationer is not foreclosed from asserting his Fifth Amendment privilege,
and it would not be inherently uncooperative for him to assert that privilege. (See United
States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 (Davis) [finding no realistic threat in a
requirement to “cooperate” with the probation officer].) Therefore, although defendant
must cooperate with the police, he retains the right to assert the Fifth Amendment, and
his probation cannot be revoked based on a valid exercise of that right. (Minnesota v.
Murphy (1984) 465 U.S. 420, 427, 434 (Murphy).) In Murphy, the Supreme Court
explained that if a state attaches “[t]he threat of punishment for reliance on the privilege”
against self-incrimination by asserting either “expressly or by implication . . . that
invocation of the privilege would lead to revocation of probation . . . the probationer’s
answers would be deemed compelled and inadmissible in a criminal prosecution.” (Id. at
p. 435.) However, defendant’s probation condition contains no such threat. It would not
be inherently uncooperative for defendant to assert the Fifth Amendment; defendant
could still follow instructions and answer nonincriminating questions. (See Davis, at p.
52.) Therefore, although defendant must generally cooperate with the police, he retains

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the right to assert the Fifth Amendment, and his probation cannot be revoked based on a
valid exercise of that right.
Furthermore, if the officer inquires into improper matters or otherwise acts
improperly, defendant may present evidence at the probation violation hearing to show
that the interrogation or conduct was arbitrary, capricious, harassing, or otherwise not
reasonably related to the purposes for which she is on probation. (See In re Tyrell J.
(1994) 8 Cal.4th 68, 87, fn. 5.) Similarly, the field interrogation condition does not allow
law enforcement officials to awaken defendant “at any time or place.” Rather, the
challenged condition requires defendant to submit to and cooperate in a field
interrogation -- the condition does not allow officers to barge into defendant’s home and
question him unnecessarily. Also, defendant may, when questioned, give a truthful
answer, and his answer may be used at trial without offending the Fifth Amendment. His
obligation to answer questions truthfully is the same obligation borne by any witness at a
trial or before a grand jury. (Murphy, supra, 465 U.S. at p. 427.) It is not too onerous to
require him, for purposes of rehabilitation and reform, to speak truthfully to an officer.
Because he has a duty to answer an officer’s questions truthfully, unless he asserts the
privilege, it does not violate his right not to incriminate himself. The purpose of
probation is, of course, defendant’s reformation and rehabilitation, and speaking
truthfully to a peace officer is arguably an implied condition of probation. (See People v.
Cortez (1962) 199 Cal.App.2d 839, 844.) Nevertheless, defendant is not required to give
up his freedom to decline to answer particular questions. (Murphy, at p. 429.) The

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Constitution does not forbid the asking of incriminating questions (id. at p. 428), and the
state in this case has neither expressly nor by implication threatened that invocation of the
Fifth Amendment privilege would lead to revocation of probation.
The defendant in People v. Miller (1989) 208 Cal.App.3d 1311, 1315, who was
required to submit to polygraph testing at the direction of his probation officer as a
condition of probation, also argued that the condition violated his privilege against self-
incrimination. The Miller court stated: “Defendant misconstrues the nature of the
privilege. The privilege against self-incrimination is not self-executing; it must be
claimed. [Citation.] Although defendant has a duty to answer the polygraph examiner’s
questions truthfully, unless he invokes the privilege, shows a realistic threat of self-
incrimination and nevertheless is required to answer, no violation of his right against self-
incrimination is suffered. [Citation.] The mere requirement of taking the test in itself is
insufficient to constitute an infringement of the privilege.” (Ibid.)
Moreover, the field interrogation condition is less intrusive than some of the other
properly imposed conditions of defendant’s probation. For example, condition No. 15
forbids defendant from associating “with known convicted felons or anyone actively
engaged in criminal activity . . . .” Likewise, condition No. 16 prohibits defendant from
associating “with known illegal users or sellers of controlled substances . . . .” Further,
condition No. 18 requires defendant to “[c]arry at all times, a valid California driver’s
license or Department of Motor Vehicles identification card containing [his] true name,

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age and current address, and display such identification upon request by any peace officer
and not use any other name for any purpose without first notifying the P.O.”
Defendant recognizes that under Murphy a probation condition that merely
requires a probationer to be truthful does not violate a person’s right against self-
incrimination. (Murphy, supra, 465 U.S. at p. 436.) The condition here is similar. The
obligation to “cooperate” entails the general obligation to appear and to answer questions
truthfully, just as in Murphy and Davis, supra, 242 F.3d 49. Defendant is constrained by
the condition from doing something which is otherwise lawful, i.e., he may not simply
“‘ignore his interrogator and walk away’” (United States v. Mendenhall, supra, 446 U.S.
at p. 553), but it is integral to the purposes of probation as described in Lent, supra, 15
Cal.3d 481. It provides officers with a means of assessing defendant’s progress toward
rehabilitation, it assists them in enforcing other terms of his probation, and it deters
further criminal activity. Thus, the field interrogation condition serves the purposes of
probation and is valid under the Lent criteria.
To the extent defendant relies on United States v. Saechao (9th Cir.2005) 418 F.3d
1073 (Saechao), that reliance is misplaced. In Murphy, supra, 465 U.S. 420, the United
States Supreme Court held that the probation condition that a defendant “be truthful with
his probation officer in all matters” was constitutional because it only proscribed false
statements. (Id. at p. 436.) There was nothing in the probation condition that compelled
the defendant to answer all questions; the defendant was only required to be truthful if he
chose to answer his probation officer’s questions. (Ibid.) In contrast, the probation

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condition in Saechao explicitly stated that the defendant must “‘promptly and truthfully
answer all reasonable inquiries’” during a field interrogation. (Saechao, at p. 1075,
italics added.) The Ninth Circuit held that this probation condition was unconstitutional
because, “[n]ot only was [the defendant] required to be truthful to his probation officers,
but he was expressly required, under penalty of revocation, to ‘promptly . . . answer all
reasonable inquiries.’” (Id. at p. 1078.) The court held that this condition violated the
Fifth Amendment because, unlike the condition in Murphy, the probationer was not
permitted to invoke the privilege against self-incrimination without jeopardizing his
supervised release. (Saechao, at p. 1078.)
Here, defendant is not subject to a condition like the one found impermissible in
Saechao requiring him to answer all reasonable inquiries; he is subject to a condition like
the one found permissible in Murphy, bearing the implied general obligation to be
truthful in his answers. If asked a question, the answer to which is likely to incriminate
him, he is free to invoke his Fifth Amendment privilege and refuse to respond.
Additionally, as explained above, “interrogation” inherently means questions
related to “seek solution of [a] crime.” (See Black’s Law Dict., supra, p. 818, col. 2.)
Thus, the inherent meaning of the term limits the questions that could be asked of a
probationer in a field interrogation to those designed to monitor the probationer’s
compliance with the other terms of his or her probation, i.e., future criminality. We do
not find that the failure to make this limitation explicit provides any justification for
striking the condition. This limitation is implicit in the language of the probation

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condition, and may stand without modifying the language of the condition. Moreover,
pursuant to this decision, we hold that a probationer may not be found to have violated
the field interrogation term in a probation revocation hearing for merely refusing to
answer questions, where those questions are unrelated to the conduct of the probationer.
In summary, we note that the limitation on defendant’s liberty is warranted due to
his status as a felon. The condition is sufficiently narrow to serve the interests of the
state -- his reform and rehabilitation -- while requiring him merely to submit to and
cooperate in a field interrogation. Any custodial interrogation that might follow a field
interrogation would be subject to the requirements of Miranda v. Arizona, supra, 384
U.S. 436. In these circumstances, we conclude that the condition is reasonable and
constitutional.
B. Warrantless Search Condition
At sentencing, defense counsel also objected to the standard warrantless search
condition requiring defendant to “[s]ubmit to a search and seizure of [his] person,
residence and/or property under [his] control at any time of the day or night by any law
enforcement officer, with or without a search warrant, and with or without cause . . . .” as
duplicative and “unconstitutional as phrased.” The court struck the duplicative condition
but impliedly denied counsel’s the request to strike the standard search condition.
Defendant argues the warrantless search condition is unconstitutionally overbroad
and requests that the condition be modified to limit prospective searches to weapons and
only for cause. This issue has been well resolved against him. (See, e.g., People v.

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Adams, supra, 224 Cal.App.3d at p. 712; People v. Bauer (1989) 211 Cal.App.3d 937,
942; People v. Wardlow, supra, 227 Cal.App.3d at pp.366-367.) In Bravo, the Supreme
Court explained: “A probationer, unlike a parolee, consents to the waiver of his Fourth
Amendment rights in exchange for the opportunity to avoid service of a state prison
term.” (People v. Bravo, supra, 43 Cal.3d at p. 608; see also In re York, supra, 9 Cal.4th
at p. 1150.)
“Probation is ‘. . . an alternative form of punishment . . . when it can be used as a
correctional tool. [Citation].’ [Citation.] With the benefit of probation comes the burden
of a ‘consent search term.’ Such a term serves as a correctional tool . . . .” (In re
Anthony S., supra, 4 Cal.App.4th at p. 1006.)
A sentencing court has broad discretion to impose “reasonable conditions” of
probation “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 . . . .”
(Pen. Code, § 1203.1, subd. (j)); see People v. Warner, supra, 20 Cal.3d at pp. 682-683.)
“If a probation condition serves the statutory purpose of ‘“reformation and
rehabilitation of the probationer,”’ such condition is ‘“reasonably related to future
criminality”’ and will be upheld even if it has no ‘“relationship to the crime of which the
offender was convicted.”’ [Citation.]” (People v. Brewer (2001) 87 Cal.App.4th 1298,
1311.)

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In People v. Balestra (1999) 76 Cal.App.4th 57, a warrantless search condition of
probation was imposed upon a defendant who entered a guilty plea to inflicting willful
cruelty on an elder (Pen. Code, § 368, subd. (a)). (Balestra, at p. 61.) The condition was
found valid, despite the lack of any relationship between the underlying offense to theft,
narcotics, or use of firearms. (Id. at pp. 67-68.) The court stated: “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 (as here) that a probationer ‘obey all laws.’
Thus, warrantless 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 . . . .’” [Citations.]’” (Id. at p. 67,
italics and fn. omitted.)
Defendant argues that the warrantless search condition “violates the restrictions
the Court places on Fourth Amendment waivers” because although the waiver is similar
to the condition in Bravo, his condition adds the phrase “with or without cause.” We are

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unpersuaded by defendant’s argument that the language “without cause suggests that a
search may be conducted for any reason, including harassing, arbitrary or capricious
reasons, which the Bravo holding specifically forbids.” Rather, “Bravo . . . establishes
that an adult probationer subject to a search condition may be searched by law
enforcement officers having neither a search warrant nor even reasonable cause to believe
their search will disclose any evidence.” (In re Tyrell J., supra, 8 Cal.4th at p. 80, fn.
omitted.)
“In California, a person may validly consent in advance to warrantless searches
and seizures in exchange for the opportunity to avoid serving a state prison term.
[Citations.] Warrantless searches are justified in the probation context because they aid
in deterring further offenses by the probationer and in monitoring compliance with the
terms of probation. [Citations.]” (People v. Robles (2000) 23 Cal.4th 789, 795.) The
California Supreme Court has held that a warrantless search of a probationer’s house,
undertaken to discover incriminating evidence against a third party residing there, is not
constitutionally invalid if the circumstances, viewed objectively, justified the officer’s
actions. (People v. Woods (1999) 21 Cal.4th 668, 671-672 (Woods).)2 In People v.
2 In Woods the court approved of the use of a probation search condition to
investigate the probationer’s cotenant, a use that was solely intended to further a criminal
investigation. In doing so, Woods relied heavily on the United States Supreme Court’s
holding in Whren v. United States (1996) 517 U.S. 806 that “‘[s]ubjective intentions play
no role in ordinary, probable-cause Fourth Amendment analysis.’” (Woods, supra, 21
Cal.4th at p. 689.) Woods concluded that “Whren’s analysis logically extends, at the very
least, to a search where, as here, the circumstances, viewed objectively, show a possible
probation violation that justifies a search of the probationer’s house pursuant to a search
condition.” (Id. at pp. 678-679.)

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Reyes, supra, 19 Cal.4th 743, our Supreme Court held that a search of a parolee subject to
search conditions need not be based on reasonable suspicion so long as the search is not
arbitrary, capricious, or harassing. The Supreme Court reasoned that, even in the absence
of particularized suspicion, a parole search does not intrude on any expectation of privacy
that society is prepared to recognize as legitimate. (Id. at p. 754.) “As a convicted felon
still subject to the Department of Corrections, a parolee has conditional
freedom -- granted for the specific purpose of monitoring his transition from inmate to
free citizen. The state has a duty not only to assess the efficacy of its rehabilitative
efforts but to protect the public, and the importance of the latter interest justifies the
imposition of a warrantless search condition.” (Id. at p. 752; see also People v. Ramos
(2004) 34 Cal.4th 494, 506; People v. Sanders (2003) 31 Cal.4th 318, 332-333.)
Here, we do not find that the language “without cause” is contrary to the holding
in Bravo or subsequent Supreme Court cases. Case law establishes that a probationer
may lawfully be searched without reasonable suspicion, i.e., without cause, as long as the
search is not arbitrary, capricious, or intended to harass.3 (See People v. Reyes, supra, 19
Cal.4th at p. 754; Woods, supra, 21 Cal.4th at p. 682 [probation searches may not be
“undertaken in a harassing or unreasonable manner”]; People v. Robles, supra, 23 Cal.4th
at p. 797 [probation searches “must be reasonably related to the purposes of probation”];
People v. Bravo, supra, 43 Cal.3d at pp. 608, 610-611.) The warrantless search condition
3 Of course, a defendant may later challenge the search if undertaken for
improper motivations.

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would assist defendant in maintaining compliance with the law and the terms of his
probation. The condition is reasonably related to defendant’s rehabilitation and
deterrence of future criminality. We find the condition as imposed is specifically tailored
to the individual probationer. Thus, the condition is narrowly drawn to serve the
important interests of public safety and rehabilitation.
Nor are we persuaded that the search condition imposed was overbroad. (See In
re Babak S. (1993) 18 Cal.App.4th 1077, 1084 [condition that impinges upon
fundamental right to travel must be narrowly drawn and specifically tailored to
defendant].) Defendant argues, by analogy to People v. Kay (1973) 36 Cal.App.3d 759,
762, in which the court invalidated a condition allowing search of the person because the
weapons used at a sit-in were not the type that could be concealed on the person, but
upheld a condition allowing search of the defendant’s car because the defendant could
carry a similar bludgeon in his car, that the search condition in this case is overbroad
because it is not limited to a firearm or other weapon. That case is distinguishable from
the present case. Kay involved limiting a search to a particular location, i.e., person,
residence, or property, not limiting what type of contraband could be searched for. Here,
defendant concedes that a firearm can be concealed on a person, in a residence, and in
other property. We conclude that the search condition was not overbroad, and the court
did not exceed the boundaries of its discretion, as defined by Lent in imposing it.

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C. Pet Condition
At sentencing, defense counsel asked that the trial court strike the word “pets”
from probation condition No. 7 on the grounds that it was unconstitutional and
overbroad. The court denied that request.
Condition No. 7 specifically provides that defendant “[k]eep the Probation Officer
informed of place of residence, cohabitants and pets . . . .” (Italics added.)
Defendant contends the trial court abused its discretion in denying his request to
strike the pet condition because the condition is not reasonably related to his crime or
future criminality and is constitutionally overbroad. We disagree.4
As described above, trial courts have broad discretion in determining what
conditions of probation will aid the reformation and rehabilitation of the defendant. (Pen.
Code, § 1203.1; People v. Carbajal, supra, 10 Cal.4th at pp. 1120-1121.) Again, a
condition will not be held invalid unless it has no relationship to the crime of which the
defendant is convicted, relates to conduct which is not itself criminal, and requires or
forbids conduct which is not reasonably related to future criminality. (People v. Lent,
supra, 15 Cal.3d at p. 486.) All three factors must be present for a condition of probation
to be invalid. (People v. Wardlow, supra, 227 Cal.App.3d at p. 366.)
4 We note that this issue is currently pending before the Supreme Court.
(People v. Olguin (Dec. 15, 2006, E039342) review granted Mar. 21, 2007, S149303;
People v. Lopez (Nov. 30, 2006, E039251) review granted Mar. 21, 2007, S149364.)

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While pet ownership is not, in itself, criminal, it is reasonably related to the
supervision of a probationer and hence to his future criminality.
“‘[C]onditions of probation that impinge on constitutional rights must be tailored
carefully and “reasonably related to the compelling state interest in reformation and
rehabilitation . . . .” [Citation.]’ [Citation.]” (In re Byron B. (2004) 119 Cal.App.4th
1013, 1016 [Fourth Dist., Div. Two], quoting People v. Delvalle (1994) 26 Cal.App.4th
869, 879, quoting People v. Mason (1971) 5 Cal.3d 759, 768 (dis. opn. of Peters, J.).)
However, there is no constitutional right to keep a pet. (See Nahrstedt v. Lakeside
Village Condominium Assn. (1994) 8 Cal.4th 361, 388.) A fortiori, there is no
constitutional right to keep a pet without telling your probation officer.5
Absent any such constitutional concerns, “[a]n adult probation condition is
unreasonable 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 . . . .” [Citation.]’
[Citation.]” (In re Byron B., supra, 119 Cal.App.4th at p. 1016, quoting People v. Lent,
supra, 15 Cal.3d at p. 486, fn. omitted, quoting People v. Dominguez (1967) 256
Cal.App.2d 623, 627.) “As with any exercise of discretion, the sentencing court violates
this standard when its determination is arbitrary or capricious or ‘“‘exceeds the bounds of
5 Arguably, if keeping the pet was, in itself, a crime, such a requirement
might violate the right against self-incrimination. This, however, is not the thrust of
defendant’s argument.

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reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (People v.
Carbajal, supra, 10 Cal.4th at p. 1121, quoting People v. Welch, supra, 5 Cal.4th at
p. 234, quoting People v. Warner, supra, 20 Cal.3d at p. 683, quoting People v. Giminez
(1975) 14 Cal.3d 68, 72.)
“[Probation conditions] are meant to assure that the probation serves as a period of
genuine rehabilitation and that the community is not harmed by the probationer’s being at
large. [Citation.] These same goals require and justify the exercise of supervision to
assure that the restrictions are in fact observed. Recent research suggests that more
intensive supervision can reduce recidivism, [citation], and the importance of supervision
has grown as probation has become an increasingly common sentence for those convicted
of serious crimes, [citation].” (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [97
L.Ed.2d 709, 107 S.Ct. 3164].) A probation condition therefore may be deemed
reasonable if it “enable[s] the [probation] department to supervise compliance with the
specific conditions of probation.” (People v. Kwizera (2000) 78 Cal.App.4th 1238,
1240.)
A probation officer may need to visit a probationer’s home unannounced. Here,
for example, defendant’s probation conditions required him to “[s]ubmit to a search . . .
of your . . . residence . . . at any time of the day or night . . . .” Knowing, in advance,
what animals are in the probationer’s home is reasonably related to the safety of the
probation officer. While some pets are so innocuous that they could not possibly
interfere with a probation officer’s performance of his or her duties, it is perfectly

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reasonable for the trial court not to be more specific as to species, breed, or temperament.
Animals can be unpredictable, particularly when confronted by a stranger in what they
consider to be their own territory. Ask any letter carrier. Or ask any professional animal
trainer -- they have a saying: “[A]nything with a mouth bites.” (Sutherland, Kicked,
Bitten and Scratched (2006) p. 63.)
Moreover, a probation officer is entitled to some protection against undue surprise.
A trial court drafting probation conditions in the abstract might not think to include a
parrot among the pets that must be disclosed; presumably, however, a probation officer
would appreciate being warned that that voice in another room may just be a bird.
Likewise, any probation officer who has to open a closet or reach under a bed during a
search would no doubt like to know ahead of time whether the probationer keeps
snakes -- regardless of whether the snakes are venomous.
Even assuming the challenged condition could have been more narrowly tailored,
that does not render it invalid; rather, it simply must not exceed the bounds of reason. It
not unreasonable to put the burden on the probationer to tell the probation officer what
animals may be present. The probation officer can then decide what precautions to take.
The challenged condition does not prevent the probationer from owning a pet of any
kind. It does not even require approval of the pet. It simply requires notice to the
probation officer. This is amply within the bounds of reason.
Significantly, defendant does not challenge the portion of the probation condition
that required him to keep the probation officer informed of his cohabitants. This

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condition serves the salutary, rehabilitative purpose of preventing defendant from
associating with those who might lead him into criminal behavior. Defendant does not
seem to think this condition had to be more narrowly drawn so as to require defendant to
report only cohabitants who are gang members, drug users, or known felons. It is just as
reasonable to require defendant to report all of his pets as it is to require him to report all
of his cohabitants.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
HOLLENHORST
J.

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