Goldfish and tabby cats don’t often rise to a hot topic of discussion, much less debate, in California’s appellate courts.

Yet there was plenty of both at the Fourth District Court of Appeal last week, in a case that questioned what kind of pets a convict should be allowed to keep secret from his probation officer.

At the outset of the San Bernardino County case, sheriff’s deputies had busted appellant Reyes David Quintero with methamphetamine. When he pleaded guilty to one count of possession, his probation conditions specified Quintero had to let his probation officer know where he was living and inform him of all his “cohabitants and pets.” Before changing any of those things, he was also supposed to give 24 hours’ notice in writing.

In published opinion Wednesday, an incredulous-sounding Justice Barton Gaut wrote for the majority that the pet requirement was overbroad and unreasonable, finding pet ownership wasn’t related to either Quintero’s drug possession or his future criminality.

And Gaut wasn’t shy about pointing out how ridiculous he found the whole idea.

“He had some drugs in his car,” the justice wrote. “No animal was present, and there was no reason to think that any animal had anything to do with [Quintero's] possession of the drugs.”

Assuming the point was to warn Quintero’s probation officer of any dangerous animals he might encounter, Gaut added, the restriction wasn’t tailored enough to that purpose.

“Whether defendant or any other person living at his residence had unquestionably harmless animals, such as a goldfish or a hamster, has nothing to do with officer safety,” Gaut wrote.

Justice Douglas Miller was on board with Gaut, but Justice Betty Ann Richli thought the condition entirely reasonable.

“While some pets are so innocuous that they could not possibly interfere with a probation officer’s performance,” the dissenting justice wrote � and here Richli pointed to, a Web site that just this week was featuring photos of fluffy little kittens and, yes, even a baby seal � “it is perfectly reasonable for the trial court not to be more specific as to species, breed or temperament.”

Presumably, Richli added, a probation officer would appreciate knowing he might reach under a bed and encounter a snake, or that the strange voice he might hear in another room may be just a bird talking. “A trial court drafting probation conditions in the abstract,” Richli wrote, “might not think to include a parrot.”

Pam Smith


Isidro Hernandez might yet escape being found guilty of hit-and-run murder. It all comes down to whether he’s sane or not.

On Wednesday, Santa Ana’s Fourth District Court of Appeal released an unpublished ruling upholding Hernandez’s conviction for the 1999 death of 18-year-old bicyclist John Labord. Yet in a separate published decision(.pdf) on the same day, the court ordered a new sanity trial for Hernandez that very well could end up negating the unpublished ruling.

“Although the judgment cannot be pronounced until the resolution of the sanity proceedings,” Justice Eileen Moore wrote in the unpublished opinion(.pdf), “the verdict in the guilt trial remains in full force and effect pending the outcome of the new sanity trial.”

Moore found Hernandez’s trial lawyer erred by not objecting to the expert testimony of several prosecution witnesses in the underlying sanity trial.

Fourth District Justices Kathleen O’Leary and Raymond Ikola concurred, both in upholding the guilt verdict and in ordering the new sanity trial.

Hernandez was convicted of first-degree murder in 2004 and sentenced to 25 years-to-life for running down Labord in Anaheim late one August night in 1999. Witnesses said Hernandez, who was driving a white Honda Civic, intentionally hit Labord on his bicycle and then sped away. Hernandez pleaded not guilty by reason of insanity.

While the Fourth District had no trouble affirming Hernandez’s conviction, the justices had qualms about the fairness of his sanity trial. They were bothered by the fact that Hernandez’s lawyer hadn’t objected to the admission of statements by several psychiatrists and psychologists. All had found some evidence of mental illness or personality disorder, the court noted, but testified Hernandez was faking.

Hernandez’s statements had been made while he was involuntarily confined in Patton State Hospital, a mental health facility in San Bernardino. The appellate court found that all of Hernandez’s statements to the doctors were subject to the state’s judicially declared rule of immunity, which prevents prosecutors from impeaching defendants with their own words from competency hearings.

The justices concluded Hernandez’s trial lawyer, Mark Smith of Long Beach, committed prejudicial error by not making that argument.

“In this case, despite abundant evidence of malingering, the jury believed the issue of petitioner’s sanity to be a close case,” Justice Moore wrote. “Because the jury considered this to be a close case � we conclude [Hernandez] has met his burden of demonstrating a reasonable probability of a more favorable result absent counsel’s error.”

Smith didn’t return calls seeking comment. But Hernandez’s appellate lawyer, Doris Frizzell of Salida, Colo., spoke favorably about Smith, even though she argued on appeal that he had erred.

“His actions in connection with this appeal were the epitome of ethical behavior by a lawyer in this situation,” she said Thursday in an e-mail message. “He cooperated at all times to the extent necessary to do the right thing for the client.”

The unpublished ruling is People v. Hernandez, G034061. The published opinion is In re Hernandez, 06 C.D.O.S. 9188.

Mike McKee