P. v. Olguin

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Filed 12/15/06 P. v. Olguin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
ALEJANDRO OLGUIN,
Defendant and Appellant.
E039342
(Super.Ct.No. FSB051372)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising
Deputy Attorney General, and Stephanie H. Chow and Scott C. Taylor, Deputy Attorneys
General, for Plaintiff and Respondent.

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Defendant Alejandro Olguin pled guilty to two counts of driving under the
influence of alcohol (Veh. Code, § 23152, subd. (b)) and was sentenced to three years
eight months in state prison. The sentence was suspended for a grant of probation.
During the sentencing hearing, defendant objected to probation terms 8, 10, and 12, but
was overruled. Defendant raises the same objections on appeal. As the trial court set
legitimate probation terms in order to rehabilitate defendant and promote public safety,
we affirm.
I. FACTS
On August 6, 2005, officers conducted an enforcement stop of defendant for
making a nonemergency stop on the freeway. Officers noticed a strong smell of alcohol
emanating from inside the vehicle, and observed an open can of beer near defendant.
Officers also noted that defendant’s eyes were bloodshot and watery, and that his speech
was slow and slurred. Defendant admitted to drinking earlier in the day, and could not
produce a driver’s license, registration, or proof of insurance. Defendant failed the field
sobriety test and was then arrested.
Defendant was charged with four counts: Counts 1 and 3 alleged violation of
Vehicle Code1 section 23152, subdivision (a), driving under the influence of alcohol, and
counts 2 and 42 alleged violation of section 23152, subdivision (b), driving with a blood
1 All future statutory references are to the Vehicle Code unless otherwise
specified.
2 Count 4 is based on an incident that occurred on July 30, 2004; however, the
record contains no facts pertaining to that incident. [footnote continued on next page]

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alcohol level in excess of .08 percent by weight. All four counts alleged that defendant
had suffered four prior convictions within the meaning of sections 23550 and 23550.5.
On September 29, 2005, defendant pled guilty to counts 2 and 4, and on
October 31, 2005, defendant was sentenced to three years eight months in state prison.
The execution of the sentence was suspended, however, and defendant was granted three
years of supervised probation with one year in county jail. During sentencing, defendant
requested the trial court to modify probation terms 8 and 12 by striking the terms “pets”
and “controlled substances,” respectively, and to strike term 10 as having no relation to
the offense.3 Defense counsel stated the terms were “unconstitutional and overbroad” or
had “no nexus to [defendant’s] offense.” The trial court denied each request, and
defendant appeals.4
II. STANDARD OF REVIEW
“‘[T]he trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
[footnote continued from previous page]
3 Probation term 8 reads, “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.”
Term 10 reads, “Submit to a search and seizure of your person, residence and/or
property under your 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 [(People v. Bravo
(1987) 43 Cal.3d 600)].”
Term 12 reads, “Submit to a controlled substance test at direction of probation
officer.”
4 The defendant preserved the issue for appeal by objecting to the probation terms
during sentencing. (People v. Welch (1993) 5 Cal.4th 228, 232-233 (Welch).)

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set aside on review’” without a showing that the sentence was arbitrary or capricious.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).) The trial
court also has broad discretion when determining whether probation is appropriate, and if
so, has the discretion to impose terms necessary to promote justice, or to reform and
rehabilitate a defendant. (Pen. Code, § 1203 et seq.; People v. Lent (1975) 15 Cal.3d 481,
486 (Lent); see People v. Wardlow (1991) 227 Cal.App.3d 360, 365 (Wardlow).) The
defendant has the burden of proving that the trial court abused its discretion. (Alvarez,
supra, 14 Cal.4th at pp. 977-978.)
III. DISCUSSION
Defendant argues that the trial court abused its discretion by failing to strike or
modify probation terms 8, 10, and 12 in order to comport with the standards set forth in
Lent, which we discuss below. (Lent, supra, 15 Cal.3d at. p. 486.)
The goals of probation are that 1) justice be done, 2) amends be made to society,
and 3) the probationer be rehabilitated and reformed. (Pen. Code, § 1203.1, subd. (j).)
Any condition of probation “that restrict[s] constitutional rights must be carefully tailored
and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating
the defendant. [Citations.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 704.) If the
defendant believes the conditions of probation are harsher than the potential sentence, he
may refuse probation and choose to undergo the sentence. (People v. Balestra (1999) 76
Cal.App.4th 57, 68-69 (Balestra).)
In addition, a term of probation may be considered invalid if it 1) has no
relationship to the crime, 2) involves conduct that itself is not criminal, and 3) forbids

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conduct that is not reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p.
486.) All three conditions must be present to invalidate a probation term. (Balestra,
supra, 76 Cal.App.4th at p. 65, fn. 3.)
A. Probation Term 8 Is Reasonably Related to Future Criminality
Defendant claims that the requirement to report ownership of pets as required in
probation term 8 should be stricken because it has no relationship to DUI charges, and
owning a pet is not criminal and does not relate to future criminality.
Although ownership of a pet does not relate to DUI charges and is not criminal, a
probation term that regulates conduct that is not itself criminal is still valid as long as it is
reasonably related to defendant’s crime or to future criminality. (People v. Carbajal
(1995) 10 Cal.4th 1114, 1121.) Probation is geared toward preventing future criminality,
which requires careful supervision by a probation officer. In United States v. Knights
(2001) 534 U.S. 112, 120 (Knights), the Supreme Court stated that “probationers have
even more of an incentive to conceal their criminal activities and quickly dispose of
incriminating evidence than the ordinary criminal because probationers are aware that
they may be subject to supervision and face revocation of probation . . . .” (Accord,
People v. Reyes (1998) 19 Cal.4th 743, 753) [holding that probation search conditions
prevent future criminal activities by probationers].)
A pet can enable defendant to conceal alcohol or drugs by either distracting or
preventing a probation officer from entering or searching defendant’s residence. Also,
without prior knowledge of a pet, a probation officer may endanger his own life or the
life of the pet by visiting defendant’s residence unannounced. While certain pets are not

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dangerous and would not inhibit the duties of a probation officer, to require a trial court
to outline the type, nature, temperament, and treatment of a pet that would fall within the
probation term is unreasonable and impractical. Many animals are unpredictable and
may attack a stranger who attempts to enter a defendant’s residence; thus, it is inadequate
to limit the term only to dangerous or vicious animals.5
Further, a probation term should be given “the meaning that would appear to a
reasonable, objective reader.” (People v. Bravo (1987) 43 Cal.3d 600, 606-607.) Under
probation term 8, defendant simply has to notify his probation officer of a pet 24 hours in
advance. This does not prevent defendant from owning a pet or authorize a probation
officer to irrationally or capriciously exclude a pet. (See People v. Kwizera (2000) 78
Cal.App.4th 1238, 1240-1241 [holding that a trial court empowering a probation
department with the authority to supervise probation conditions does not conflict with the
standards set in Lent, supra, 15 Cal.3d at p. 486, and does not authorize irrational
directives by the probation officer].)
5 For example, reports by the Center for Disease Control state that, while certain
breeds of dogs are responsible for more fatalities, all breeds of dogs can cause injury. In
addition, the main factor affecting the behavior of a dog is the owner. Therefore, it
would be more effective to target dog owners than specific breeds in order to promote
public safety. (Sacks et. al., Breeds of Dogs Involved in Fatal Human Attacks in the
United States Between 1979 and 1998 (Sept. 2000), 217 J. Amer. Veterinary Medicine
Assn. 817, 839-840; Center for Disease Control and Prevention, U. S. Dept. of Health
and Human Services / Public Health Service, Dog-Bite-Related Fatalities – United
States, 1995-1996 (May 1997) 46 Morbidity and Mortality Weekly Rep. 463-467.)
Following this line of reasoning, probation term 8 focuses on the probationer to keep the
probation officer safe.

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If there is any ambiguity about a probation term, “[o]ral advice at the time of
sentencing . . . afford[s] defendants the opportunity to clarify any conditions they may not
understand and intelligently to exercise the right to reject probation granted on conditions
deemed too onerous.” (Bravo, supra, 43 Cal.3d at p. 610, fn. 7.) Here, defendant did not
request clarification of term 8, even though he did feel free to question the trial court
about a term that imposed a mandatory interlock device on any of his vehicles.
The interpretation of “pets” is a case of first impression, but should be analyzed
using the same standards as that used to approve notification of “cohabitants,” which is
also included in probation term 8. Notification of “cohabitants” is imposed in order to
ascertain whether the probationer is associating with people who would negatively affect
his rehabilitation. (See People v. Lopez (1998) 66 Cal.App.4th 615, 622-625 [holding
that a condition forbidding contact with gang members was necessary to rehabilitation
and future criminality].) For example, a defendant convicted of drug possession should
not live with drug users or dealers. The purpose of notification about pets is similar: 1)
assure proper rehabilitation of defendant, 2) protect the probation officer. We believe
knowledge of pets is a prerequisite to the search condition, which makes sure that
defendant is complying with his sentence and is not reoffending. (See Bravo, supra, 43
Cal.3d at p. 610 [holding that probation search conditions serve to promote rehabilitation
and reduce recidivism while helping to protect the community from potential harm by
probationers].) The implied power of the probation officer regarding both cohabitants
and pets is also the same: notification of pets implies a probation officer’s authorization
to exclude certain pets or direct the care of the pet (i.e. keeping them contained) in order

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to allow searches. Again, this does not authorize capricious exclusions, but allows
directives that further the rehabilitation of defendant.
Thus, probation term 8 is valid, as it protects the probation officer and allows him
to oversee the defendant for future criminality.
B. Probation Term 10 Relates to Defendant’s Crime and Future Criminality
Defendant contends that the waiver of his Fourth Amendment right to freedom
from unreasonable search and seizure under probation term 10 is excessive, and
therefore, the condition should be stricken or modified to limit searches to areas likely to
contain alcohol.
The search term is related to defendant’s crime and to future criminality, and
concerns criminal conduct because defendant drives after drinking alcohol. Defendant
has shown his proclivity numerous times to drive under the influence, and a search term
for defendant’s residence is necessary to combat recidivism. (Knights, supra, 534 U.S. at
pp. 119-121.) Further, warrantless and suspicionless probation searches do not violate a
defendant’s Fourth Amendment rights, and are necessary to determine if defendant is
complying with his sentence. (Bravo, supra, 43 Cal.3d at p.608; Samson v. California
(Feb. 22, 2006, No. 04-9728) __U.S.__, [126 S.Ct. 2193, 2202, 2006 U.S. Lexis 4885]
(Samsun), [holding that suspicionless searches do not violate a parolee’s Fourth
Amendment rights];6 see Knights, supra, at pp. 119-120.) Even if, as defendant argues, a
6 Bravo held that probationers have less of a right to privacy than parolees, and
Samson held that parolees do not have a Fourth Amendment right of protection against
suspicionless searches. (Samson, supra, 126 S.Ct. at p. 2205; Bravo, supra, 43 Cal.3d at
[footnote continued on next page]

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full waiver of defendant’s Fourth Amendment rights is excessive, alcohol is an item that
can be concealed anywhere. Thus, the search term would not be effective if it were
limited.
Therefore, term 10 is valid.
C. Probation Term 12 Is Related to the Crime and Involves Criminal Conduct
Defendant states that he should not be subjected to drug testing as required in
probation term 12 because he has not used drugs for 15 years and the testing requirement
is excessive in relation to his crime. In support of this argument, defendant cites People
v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo), disapproved on other grounds in Welch,
supra, 5 Cal.4th at p. 236. The defendant in Kiddoo pled guilty to methamphetamine
possession and was ordered to refrain from alcohol as a condition of probation. The
appellate court held that the term was invalid because alcohol consumption was not
related to defendant’s crime, was not illegal, and did not reasonably relate to future
criminality. (Kiddoo, supra, 225 Cal.App.3d at pp. 927-928.)
Here, drug testing applies to defendant because it involves conduct that is
criminal. Moreover, defendant had a prior conviction for violating Health and Safety
Code section 11378 (possession for sale). Drug use is also reasonably related to future
criminality, as highlighted by the empirical evidence establishing a nexus between
alcohol and drug use: “It is well documented that the use of alcohol lessens self-control
[footnote continued from previous page]
pp. 607-608.) Therefore, if a suspicionless search does not violate a parolee’s Fourth
Amendment rights, then, a fortiori, a suspicionless search does not violate a probationer’s
Fourth Amendment rights. (Samson, supra, 126 S.Ct. at. pp. 2204-2205.)

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and thus may create a situation where the user has reduced ability to stay away from
drugs. [Citations]” (People v. Beal (1997) 60 Cal.App.4th 84, 87.)
Therefore, drug testing is reasonably required for defendant’s rehabilitation.
IV. CONCLUSION
Defendant’s challenges to probation terms 8, 10, and 12 have no merit, and the
trial court did not abuse its discretion in overruling defendant’s objections to those terms.
V. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
I concur:
RICHLI
J.

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KING, J., Concurring and dissenting.
I concur with the majority, save and except as it relates to probation term 8. I
would strike the requirement that defendant be required to notify a probation officer with
24-hour written notice relative to defendant informing a probation officer of pets.
While the court maintains broad discretion to impose conditions of probation, the
discretion “nevertheless is not without limits . . . . 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.]’” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
In People v. Lent (1975) 15 Cal.3d 481, the California Supreme Court stated, “A
condition of probation will not be 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
. . . .’” (Id. at p. 486.) For a condition of probation to be invalid, it must satisfy all three
of the above requirements. Clearly, the ownership of pets is not criminal. Nor does it
have a relationship to driving under the influence of alcohol or driving with a blood
alcohol level in excess of .08 percent by weight. Lastly, the ownership of a pet is not
reasonably related to future criminality. There is nothing to warrant an expectation that
defendant, who pled guilty to felony driving under the influence, would commit a future
crime involving the ownership of or access to an animal. Thus, I would remand for the
purpose of striking the pet portion of term 8.

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To the extent that one accepts the argument that pet ownership is reasonably
related to future criminality, the provision is overbroad. Here, there are a number of
conditions of probation which relate to the prohibition of future criminal conduct. One
such condition is term 3 which indicates that the probationer shall “violate no law.” As
the majority states, probation requires careful supervision by a probation officer. Thus, it
is arguably within the contemplation of all, that a probation search may occur at
defendant’s premises. With this in mind, the term and condition of probation relative to
the ownership of pets and the notification of the existence of such pets should be limited
to dogs and/or pets which pose a risk of injury to individuals entering the premises. In
that the condition is not so limited, it is overbroad.
/s/ King
J.

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