P. v. Gurrola

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Filed 7/31/07 P. v. Gurrola 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
STEVEN GURROLA,
Defendant and Appellant.
E041043
(Super.Ct.No. FSB056588)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. Affirmed.
Gregory Marshall, under appointment by the Court of Appeal, for Plaintiff and
Respondent.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch,
Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for
Plaintiff and Respondent.

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Defendant pled guilty to one count of assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)) and was granted three years of supervised probation on the condition,
inter alia, that he keep his probation officer informed of his household pets and “give
written notice twenty-four (24) hours prior to any changes.” He here contends that this
condition is invalid.1
FACTS
Defendant threatened his sister and father with something like a police officer’s
baton and threatened to destroy his sister’s computer and other items in the home.
Defendant said he was on methamphetamine at the time.
ISSUE AND D ISCUSSION
A term of probation is invalid 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.”
(People v. Lopez (1998) 66 Cal.App.4th 615, 624, internal quotation marks omitted.) All
three factors must be present in order for the condition to be invalid. (People v. Wardlow
(1991) 227 Cal.App.3d. 360, 365-366.) While we agree with defendant that this
condition was not related to the crime for which he was convicted and it involves conduct
which is not itself criminal, we disagree with him that it is not reasonably related to
future criminality. In fact, it is reasonably related to his supervision by his probation
1 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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officer, and, therefore, to his future criminality. Recent research suggests that more
intensive supervision can reduce recidivism. (Griffin v. Wisconsin (1987) 483 U.S. 868.)
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.)
Defendant’s probation officer or other law enforcement officers may need to visit
his home unannounced. Another of defendant’s probation conditions requires him to
“[s]ubmit to a search . . . of [his] . . . residence . . . at any time of the day or night . . . .”
Awareness of what animals are in the defendant’s home is reasonably related to officer
safety. Animals can be unpredictable, particularly when confronted by a stranger in what
they consider to be their own territory and the searchers are entitled to some protection
against undue surprise. Searchers may be needlessly surprised by the presence of even
so-called “nondangerous pets.”2
In his reply brief, defendant, for the first time in his appeal, contends that the
condition is overbroad because it limits his constitutional rights and the limitation is not
closely related to the purpose of the condition. (See People v. Harrison (2005) 134
Cal.App.4th 637, 641.)3 He asserts that the constitutional rights involved in having a pet
2 We cannot fathom a sentencing court attempting to define, when fashioning a
probation condition, what constitutes a “dangerous pet.” (See People v. Knoller (May 31,
2007, S134542)__Cal.App.4th__[2007 D.A.R. 7781].)
3 Of course, there is no constitutional right to keep a pet. (See Nahrstedt v.
Lakeside Village Condominium Assoc. (1994) 8 Cal.4th 361, 388.)

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without notifying his probation officer are the rights to liberty, privacy and association.
We fail to see how defendant, who has, as further conditions of his probation, agreed not
to associate with criminals and drug users, to have his home and person searched at any
time and be drug tested and to notify his probation officer of co-habitants, has any
independent rights of liberty, privacy and association in keeping pets without informing
his probation officer.
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.
(See People v Carbajal (1995) 10 Cal.4th 1114, 1121.) It is not unreasonable to put the
burden on the defendant to inform his probation officer what animals are in his home.
The probation officer or other law enforcement officers can then decide what precautions
to take if they need to enter the home. The challenged condition does not prevent
defendant 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 within the bounds of reason.
D ISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
I concur:
RICHLI
J.

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KING, J., Dissenting.
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).)
“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.) A condition of probation must satisfy all three requirements before it may be
declared invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365-366.)
The pet probation condition here violates all three criteria set forth in Lent.
First, defendant’s ownership or contact with a pet of any kind has nothing to do
with the crime of which he was convicted. Here, defendant pled guilty to assault with a
deadly weapon. There is no indication in the record that a pet was present at the time of
the crime or had anything to do with defendant’s actions.
Second, having a pet is not in itself criminal.

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Third, pet ownership, of itself, is not indicative of or related to future criminality.
Defendant did not commit any crime relating to ownership of or access to any animals
and there is no basis upon which to anticipate that defendant would commit such a crime
in the future.
The People contend the condition is valid because it is reasonably related to future
criminality. The argument on the point is that the probation condition at issue helps
insure that a probation officer can safely conduct his supervisory visits at defendant’s
residence. As a pet itself can be a weapon, knowledge of any pets in defendant’s
residence can be crucial to insuring a probation officer’s safety in supervising defendant’s
compliance with the other conditions of probation.
The concern, it appears, is whether defendant might have a dangerous animal at
his residence. Knowing whether a defendant keeps dangerous animals as pets would
assist an officer when conducting a search of a probationer’s residence for probation
violations such as being in the possession of weapons or drugs.
The purpose of officer safety, to permit the probation officer to reasonably
supervise defendant so as to prevent future criminality by conducting visits to the
residence or probation searches without interference from dangerous animals, is not met
by the condition imposed. Stated another way, the pet probation condition here is
overbroad and not reasonably tailored to meet the objective for which it has been
imposed.
To the extent there exists a legitimate and justifiable concern as to the safety of
individuals conducting a probation search, the condition must be narrowed to deal with

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dogs and/or animals which pose a foreseeable risk of injury to persons entering the
premises.
Two cases mention a condition of parole (not probation) involving pets, where the
condition is related to officer safety. United States v. Crew (D.Utah 2004) 345 F.Supp.2d
1264 refers to a defendant’s release on parole, including as a parole condition: “4.
HOME VISITS: I will permit visits to my place of residence by agents of Adult
Probation and Parole for the purpose of ensuring compliance with the conditions of my
parole. I will not interfere with [this] requirement, i.e. having vicious dogs, perimeter
security doors, refusing to open the door, etc.” United States v. Pyeatt (D.Utah, June 15,
2006, 2:05-CR-890 TC) 2006 U.S.Dist. Lexis 40337 referred to an identical parole
condition.
The genuine concern to be addressed by the probation condition, as suggested by
the parole conditions in Crew and Pyeatt, is whether a probation officer making a home
visit or conducting a probation search will be able to do so without being at risk from a
dangerous animal, such as a vicious dog. The probation condition here is not tailored to
meet that objective, or the objective of allowing the officer to approach the residence
unannounced. “A probation condition is constitutionally overbroad when it substantially
limits a person’s rights and those limitations are not closely tailored to the purpose of the
condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White
(1979) 97 Cal.App.3d 141, 146 [“‘. . . The Constitution, the statute, all case law, demand
and authorize only “reasonable” conditions, not just conditions “reasonably related” to
the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and severe

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probation condition is appropriate [citation].”].) “[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.]” (People v.
Delvalle (1994) 26 Cal.App.4th 869, 879.) To the extent that the generic “pets” condition
here is not tailored to meet that legitimate objective, it is not related to defendant’s
offense or to his future criminality. It therefore fails to meet the test of reasonableness
under Lent and is invalid.
The present condition relating to all pets without limitation is overbroad.
I would therefore remand the case to modify probation condition No. 7 to strike
the reference to pets in general but to add a new condition narrowed to deal with dogs
and/or animals which pose a foreseeable risk of injury to persons entering the premises.
KING
J.

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