P. v. Lopez

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Filed 11/30/06 P. v. Lopez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ENRIQUE GARCIA LOPEZ,
Defendant and Appellant.
E039251
(Super.Ct.No. FSB051759)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. Affirmed with directions.
Beatrice C. Tillman, under appointment by the Court of Appeal, and David K.
Rankin for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, and Scott C. Taylor,
Supervising Deputy Attorney General, for Plaintiff and Respondent.

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Pursuant to a plea agreement, defendant pleaded guilty to unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)). In return, defendant was granted
three years of supervised probation on various terms and conditions. Defendant’s sole
contention on appeal is that the probation condition requiring him to keep the probation
officer informed of whether he owns any pets is invalid. We agree and will modify that
probation term.
1. Factual Background1
On August 25, 2005, police officers were conducting a “[b]ait car operation.” A
bait car was parked along a street while police officers in an unmarked vehicle were
observing it about a block away. Defendant walked by the bait car a few times and then
entered the car through the driver’s door and drove the car away. Defendant was stopped
about a mile away from the original location and arrested.
2. Discussion
At sentencing, the trial court granted defendant three years probation on various
terms and conditions, including serving 180 days in local custody and condition No. 8,
which provides: “Keep 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. Prior to any move, provide written authorization to the Post Office to
forward mail to the new address.”
1 The factual background is taken from the probation report.

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Defense counsel objected to the inclusion of the term “pets” of this condition on
the grounds that it was vague and overbroad. The court overruled the objection.
Defendant argues this condition should be modified or stricken as it is
unreasonable, improper, overbroad, and vague. We agree.
“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, fn.
omitted, abrogated by Proposition 8 on another ground as recognized in People v.
Wheeler (1992) 4 Cal.4th 284, 290-292.)
The probation condition here requiring defendant to keep his probation officer
informed of any pets violates all three criteria set forth in Lent. Defendant’s ownership or
contact with a pet of any kind had nothing to do with the crime of which he was
convicted. Having a pet is not in itself criminal. Pet ownership is not indicative of or
related to future criminality.
The People argue the condition is directly related to the probation officer’s ability
to effectively and safely supervise defendant. The sole support on the point is that,
“[k]nowledge of [defendant’s] residence, of others living in the residence and of any pets
in the residence, can be crucial to a probation officer in supervising [defendant], as such
knowledge is particularly important in maintaining the safety of the probation officer
during any unscheduled visits to [defendant’s] residence.”

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The People never explain, however, how knowledge about defendant’s pets, if
any, could improve the probation officer’s ability to supervise defendant. We can only
infer that the concern apparently addressed is whether defendant might have a dangerous
animal, such as a vicious attack dog, at his residence. It is already unlawful to keep
vicious or dangerous animals, however, and defendant’s probation conditions already
require him to violate no law. (See Food & Agr. Code, § 31601 et seq.; Pen. Code,
§ 399.)
As noted, the offense of which defendant was convicted had nothing to do with
any pets. He stole a car. The ownership of pets is a lawful activity; indeed, “the
harboring of pets” has been recognized as “an important part of our way of life . . . .”
(Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514; accord, Yuzon v. Collins (2004)
116 Cal.App.4th 149, 163.)
Whether defendant owns a pet is not reasonably related to his future criminality.
It is true, however, that if defendant were to acquire a vicious or dangerous animal like a
pit bull, rottweiler or other dangerous animal, it would unduly hamper parole or probation
supervision, the purpose of which is to prevent future criminality. A probation condition
narrowly tailored to require notice of such animals is therefore appropriate.
3. Disposition
We remand the case to modify the probation condition No. 8 to strike the
reference to pets in general but to add a new condition prohibiting defendant from

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owning a rottweiler, pit bull, or similar dangerous animal. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
I concur:
s/Miller
J.

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Richli, J.
I must respectfully dissent. While pet ownership is not, in itself, criminal, nor
particularly related to possession of methamphetamine, it is reasonably related to the
supervision of a probationer, and hence to his or her 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.1
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
(1975) 15 Cal.3d 481, 486, fn. omitted, quoting People v. Dominguez (1967) 256
1 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
either defendant’s argument or the majority’s opinion.

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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
reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (People v.
Carbajal (1995) 10 Cal.4th 1114, 1121, quoting People v. Welch (1993) 5 Cal.4th 228,
234, quoting People v. Warner (1978) 20 Cal.3d 678, 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. The majority even concedes that “[i]t is true, however, that if

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defendant were to acquire a vicious or dangerous animal like a pit bull, rottweiler or other
dangerous animal, it would unduly hamper parole or probation supervision, the purpose
of which is to prevent future criminality.” (Maj. opn., ante, at p. 4.) Thus, the majority
concedes that defendant could be forbidden to keep a vicious dog. (Ibid.)
However, while some pets are so innocuous that they could not possibly interfere
with a probation officer’s performance of his or her duties (see, e.g.,
<http://www.cuteoverload.com>, as of September 12, 2006), it is perfectly 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.
But 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

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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 probation condition that required
him to keep the probation officer informed of his cohabitants. The majority 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. (Maj. opn.,
ante, at pp. 3-4.) 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. All that is necessary is that the condition
be reasonable under all the circumstances. This condition here meets this requirement.
“[A] probation condition also may be challenged as excessively vague.” (In re
Byron B., supra, 119 Cal.App.4th at p. 1018.) Defendant may suggest that he could be
found to have violated his parole by failing to give written notice 24 hours before the
death of a pet. I refuse to believe that any court of this state would interpret the condition
so as to require the impossible.
RICHLI
Acting P.J.

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