NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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OPINION
Pursuant to a plea agreement, defendant and appellant Alex Garcia (defendant) pleaded guilty to possession of a controlled substance for sale under Health and Safety Code section 11378. The trial court sentenced defendant to 365 days in San Bernardino County Jail with credit for time served, and three years of supervised probation. On appeal, defendant contends that (1) the probation condition requiring him to "[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night" is overly broad and infringes upon his Fifth Amendment right against self-incrimination; and (2) the minute order of the sentencing hearing should be corrected. The People concede, and we agree, that the minute order should be corrected to accurately reflect the sentence. In all other respects, we affirm the judgment.
I. FACTUAL BACKGROUND1
On December 3, 2004, officers served a search warrant where defendant resided. Inside defendant's bedroom, the officers located 15.14 grams of methamphetamine, $307 in cash, a digital scale, dozens of small baggies, and a small spoon.
II. DISCUSSION
A. Defendant's Probation Condition Does Not Violate Defendant's Constitutional Rights
Defendant contends the probation condition requiring him to "submit to and cooperate in a field interrogation by any peace officer at any time of the day or night" violates his Fifth Amendment constitutional right against self-incrimination and is overly broad. We disagree.
"`The primary goal of probation is to ensure `[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' [Citation.] [C]onditions of probation `are routinely imposed when the sentencing court determines, in an exercise of its discretion, that a defendant who is statutorily eligible for probation is also suitable to receive it.' [Citation.] In the granting of probation, the Legislature has declared the primary considerations to be: `the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant.' [Citation.] [¶] In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] `The court may impose and require . . . [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.' [Citation.] The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, . . . Penal Code section 1203.1 . . . require[s] that probation conditions which regulate conduct `not itself criminal' be `reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; see also Pen. Code, § 1203.1; People v. Welch (1993) 5 Cal.4th 228, 233.)
As with any exercise of discretion, the sentencing court violates the above 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, supra, 10 Cal.4th 1114 at p. 1121.) While a probationer retains rights of privacy and liberty under the federal Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237), probationary conditions may nevertheless place limits on constitutional rights if reasonably necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941; see also Gilliam v. Municipal Court (1979) 97 Cal.App.3d 704, 708 ["[a] condition of probation which requires a defendant to give up a constitutional right is not per se unconstitutional"].)
In People v. Lent (1975) 15 Cal.3d 481, the California Supreme Court established the rule on probationary conditions: "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.]" (Id. at p. 486, fn. omitted, abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) It is well established that "probation conditions which regulate conduct `not itself criminal' must be `reasonably related to the crime of which the defendant was convicted or to future criminality.'" (People v. Welch, supra, 5 Cal.4th 228, 233-234, quoting Lent, at p. 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365-366.)
Like the standard probation search condition, a field interrogation probation condition is a correctional tool that can be used to determine whether the defendant is complying with the terms of his probation or disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an unexpected search is to determine not only whether parolee disobeys the law, a basic condition of parole, but also whether he obeys the law; the condition helps measure the effectiveness of parole supervision]; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006 [probation is an alternative form of punishment, carrying with it certain burdens, such as a search term, which can be used as a correctional tool].)
In People v. Adams (1990) 224 Cal.App.3d 705, we have observed that "a warrantless search condition is intended and does enable a probation officer `"to ascertain whether [the defendant] is complying with the terms of probation; to determine not only whether [the defendant] disobeys the law, but also whether he obeys the law. Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation."' [Citation.]" (Id. at p. 712.) In addition, the California Supreme Court has observed that, "[w]hen [warrantless search and seizure] conditions are imposed upon a probationer . . . it is established that the individual `consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. Probation is not a right, but a privilege.' [Citation.]" (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo (1987) 43 Cal.3d 600, 608.)
Likewise, here, the field interrogation probation condition will provide practical, on-the-street supervision to defendant. Field interrogations will be used to monitor defendant's compliance with conditions of his probation. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality. A condition allowing field interrogations may further dual purposes of deterring future offenses by the probationer and ascertaining whether he is complying with the terms of his probation. The purpose of an unexpected, unprovoked field interrogation of defendant is to ascertain whether defendant is complying with the terms of probation-to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given defendant. (See, e.g., People v. Reyes, supra, 19 Cal.4th at p. 752.)
Although the field interrogation probation condition forbids defendant from doing something that is not in itself criminal, that is, "`ignore his interrogator and walk away'" (United States v. Mendenhall (1980) 446 U.S. 544, 553), it is related to the purposes of probation as described in People v. Lent, supra, 15 Cal.3d 481. It provides officers with a means of assessing defendant's progress toward rehabilitation, it assists them in enforcing other terms of his probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria. (Lent, at p. 486.) In addition, implicit in almost every probation condition, including the field interrogation condition, is reasonableness.
Here, during a search of defendant's residence, officers found 15.14 grams of methamphetamine, $307 in cash, a digital scale, dozens of small baggies and a spoon. In addition, defendant was convicted in 1998 of (1) carrying a loaded firearm in a public place, a violation of Penal Code section 12031; and (2) obstructing/resisting a public officer, a violation of Penal Code section 148. Given defendant's prior conviction for possessing a loaded firearm in a public place and obstructing/resisting a public officer, and his current conviction for possessing methamphetamine for sale, the likelihood of officers being called to investigate future narcotics charges at his home is foreseeable. The field interrogation condition would potentially prevent further criminality. We believe the field interrogation condition is necessary to help reform defendant by discouraging him from concealing future criminality and to ensure that defendant remains in compliance with probation. The field interrogation term is reasonably related to defendant's future criminality. This term also serves a rehabilitative purpose.
Additionally, "interrogation" inherently means questions related to "seek solution of a crime." (See Black's Law Dict. (6th ed. 1990) p. 818, col. 2.) Thus the inherent meaning of the term limits the questions that could be asked of a probationer in a field interrogation to those designed to monitor the probationer's compliance with the other terms of his or her probation as well as future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. It may be that this limitation is implicit in the language that the court adopted and could be permitted to stand without modifying the language of the condition. Moreover, as discussed in detail, post, it is unlikely that a probationer would likely be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions unrelated to the conduct of the probationer. Again, we recognize that implicit in almost every probation condition, including the field interrogation condition, is reasonableness.
Even assuming the challenged condition could have been more narrowly tailored, the fact that it was not does not render it invalid; rather, it simply must not exceed the bounds of reason. The challenged condition will provide a means to monitor defendant's progress toward rehabilitation and deter future criminality. This is amply within the bounds of reason.
Defendant claims the field interrogation condition implicates his First, Fourth, Fifth, and Fourteenth Amendment rights of personal liberty and security. We find no constitutional violation.
Defendant is not an ordinary citizen. He is a convicted felon who has been granted the privilege of probation. It has long been settled that certain constitutional rights can be limited where appropriate in the probation process. (See People v. Arvanites (1971) 17 Cal.App.3d 1052, 1063 [prohibition against planning and engaging in demonstrations was valid where defendant falsely imprisoned a man during a protest rally]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969, overruled on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237 [probation condition prohibiting defendant from active participation in demonstrations following his conviction of assault at a college demonstration was reasonable]; People v. King (1968) 267 Cal.App.2d 814, 822-823 [condition of probation proscribing participation in demonstrations valid where defendant battered police officers at an antiwar demonstration].) Because of his status as a felon, defendant may be detained and questioned by a peace officer without the requirement that the officer have at least a reasonable suspicion, based on articulable facts, that defendant is engaged in criminal activity. (See Terry v. Ohio (1968) 392 U.S. 1.) Although an ordinary citizen "may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen [to a peace officer] or answer [any question put to him] does not, without more, furnish those grounds," we repeat that defendant is not an ordinary citizen. (Florida v. Royer (1983) 460 U.S. 491, 498.) The impingement on his constitutional right to remain silent is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state and his reform and rehabilitation while merely requiring him to submit to and cooperate in a field interrogation. Defendant still retains his Fifth Amendment rights, as discussed below. Furthermore, any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 478-479.
While probationers have long been required to "cooperate" with their probation officers, a probationer is not foreclosed from asserting his Fifth Amendment privilege, and it would not be inherently uncooperative for him to assert that privilege. (See United States v. Davis 242 F.3d 49, 52 (1st Cir. 2001) (Davis) [finding no realistic threat in a requirement to "cooperate" with the probation officer].) Therefore, although defendant must cooperate with the police, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 427, 434 (Murphy).) In Murphy, the Supreme Court explained that if a state attaches "[t]he threat of punishment for reliance on the privilege" against self-incrimination by asserting either "expressly or by implication . . . that invocation of the privilege would lead to revocation of probation . . . the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." (Id. at p. 435.) However, defendant's probation condition contains no such threat. It would not be inherently uncooperative for defendant to assert the Fifth Amendment; defendant could still follow instructions and answer nonincriminating questions. (See Davis, at p. 52.) Therefore, although defendant must generally cooperate with the police, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right.
Furthermore, law enforcement officers may not engage in harassing questions, searches, or other limitations that, for example, have no relation to the crime for which defendant is under supervision. If the officer inquires into improper matters or otherwise acts improperly, defendant may present evidence at the probation violation hearing to show that the interrogation or conduct was arbitrary, capricious, harassing, or otherwise not reasonably related to the purposes for which he is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5.)
Additionally, the field interrogation condition is less intrusive than some of the other conditions of defendant's probation, to which defendant raises no challenge. For example, condition number 9 requires defendant to "[s]ubmit to a search and seizure of [his] person, residence and/or property under [his] 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 [citation]." Also, condition number 16 forbids defendant from associating "with known convicted felons or anyone actively engaged in criminal activity." Furthermore, condition number 17 prohibits defendant from associating "with known illegal users or sellers of controlled substances," and condition number 13 bans defendant from consuming any alcoholic beverages or entering places where such beverages are the primary item for sale, and submit to tests at the direction of the probation officer.
"[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.)
In summary, we note that the limitation on defendant's liberty is warranted because of his status as a felon. The condition is sufficiently narrow to serve the interests of the state-his reform and rehabilitation-while requiring him merely to submit to and cooperate in a field interrogation. And, any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona, supra, 384 U.S. 436. Under these circumstances, we conclude that the condition is reasonable and not overbroad.
B. The Minute Order of the Sentencing Hearing Must Be Corrected
Defendant contends that the court's minute order of the sentencing hearing erroneously included a condition of probation that was struck and a finding that was not made by the court. The People concede, and we agree, that the order is incorrect.
During defendant's August 2, 2005, sentencing hearing, defense counsel objected to a term of probation regarding a gang condition, Term 19. The court struck Term 19 because the crime was not gang related. Moreover, the court correctly stated that a motor vehicle was not involved in this crime. The minute order of the hearing, however, imposed the gang condition as Term 18, and stated that a motor vehicle was used in the commission of the crime. Therefore, the minute order should be corrected to strike the gang condition and motor vehicle finding.
III. DISPOSITION
The case is remanded to the trial court to amend the July 29, 2005, minute order to strike the gang condition and motor vehicle finding. In all other respects, the judgment is affirmed.
I concur:
GAUT J.
KING, J., Concurring and dissenting.
I concur with the majority relative to remanding the matter to the trial court for purposes of amending the minute order.
I dissent regarding the term and condition of probation dealing with field interrogation. The term should be limited to allow field interrogation of the probationer relative to his criminality and compliance with the other terms and conditions of probation.
The term provides: "Submit to and cooperate in a field interrogation by any peace officer at any time of the day or night."
I believe the provision is overbroad. The general propriety of such a term has been recognized. (See Minnesota v. Murphy (1984) 465 U.S. 420 [104 S.Ct. 1136, 79 L.Ed.2d 409].) It must nonetheless be tailored, so that it is reasonably related to the crime of which defendant was convicted, or to defendant's future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) By its provision, the term allows for the probationer to be interrogated as to any subject matter, whether related or unrelated to the conduct of the probationer.
King J.
1. The factual background is taken from the probation officer's report.