P. v. Vences 5/10/07 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E040343

Case Date: 07/18/2007

Preview:Filed 5/10/07 P. v. Vences 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ISMAEL VENCES, Defendant and Appellant. E040343 (Super.Ct.No. FSB052947) OPINION

APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed in part and reversed in part with directions. 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, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.

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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 one of the probation conditions is invalid and unconstitutional. We agree. I. FACTUAL AND PROCEDURAL BACKGROUND1 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

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

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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 the pet probation condition. The trial court overruled the objection. Defendant appeals. II. ANALYSIS The Pet Probation Condition is Overbroad Defendant contends that probation condition No. 7, that required him to give 24hour notification to any changes in ownership of pets, is invalid. 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,

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