People v. Luna

2006 | Cited 0 times | California Court of Appeal | December 28, 2006


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 This opinion has not been certified for publication or ordered published for purposes of rule 977.


Appellant and defendant Ramon Frank Luna pled guilty to possession of concentrated cannabis. (Health & Saf. Code, § 11357, subd. (a).)1 The court suspended imposition of sentence and placed him on probation for three years. On appeal, defendant contends that the trial court abused its discretion in imposing gang-related probation conditions. He also argues that a condition requiring him to submit to and cooperate in a field interrogation by a peace officer is unconstitutional. We affirm.


Defendant was found to be in possession of approximately 46 baggies of marijuana when he was stopped by police for a traffic violation. Defendant was approximately 19 years old at the time of the offense.

Defendant was charged with transportation of marijuana (§ 11360, subd. (a)) and possession of marijuana for sale (§ 11359). Pursuant to a plea bargain, he pled guilty to possession of concentrated cannabis, a lesser included offense of possession of marijuana for sale. In exchange, the court placed him on felony probation for three years. Upon the recommendation of the probation officer, the court imposed six gang-related conditions, due to his admitted previous gang membership. Defense counsel objected to all six gang-related conditions. The court struck three of them. The remaining gang-related probation conditions required defendant to: 1) "Not associate with known gang members or frequent places of known gang activity"; 2) "Not display any gang hand signs"; and 3) "Not wear, display or have in [his] possession any item associated with gang dress or any items prohibited by the probation officer. . . ."

The court also imposed a probation condition that required defendant to "[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night" (the field interrogation probation condition).


I. The Court Properly Imposed the Gang-Related Probation Conditions

Defendant contends that the gang-related conditions must be stricken because they are not related to the instant offense or to future criminality. We disagree.

"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.' [Citations] . . . [¶] However, the trial court's discretion in setting the conditions of probation is not unbounded." (People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) 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. Lent (1975) 15 Cal.3d 481, 486 (Lent), italics added.)

Here, the court did not abuse its discretion in imposing the gang-related conditions. As discussed in Lopez, "[p]rohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. [Citations.]" (Lopez, supra, 66 Cal.App.4th at p. 624.) "[P]robation terms have been approved which bar minors from being present at gang gathering areas, associating with gang members, and wearing gang clothing. [Citation.]" (Ibid.) "Because `[a]ssociation with gang members is the first step to involvement in gang activity,' such conditions have been found to be `reasonably designed to prevent future criminal behavior.' [Citation.]" (Ibid.) Furthermore, "probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders. . . . The path from gang associations to criminal gang activity is open to adults as well as to minors." (Id. at p. 625.) Moreover, the federal courts "have found curtailments of an adult probationer's associations with specified groups to be proper where such restrictions serve a rehabilitative purpose, even where the crime in issue was not shown to have been group related. [Citations.]" (Ibid.)

Defendant's probation report disclosed that he admitted previous membership in the Eastside Verdugo gang. Furthermore, defendant has a history of juvenile offenses. He pled guilty to second degree burglary in 1997 and petty theft in 2001. Although he is an adult now, he was only 19 at the time of the instant offense.2 Defendant's age, gang affiliation, and consistent pattern of criminal behavior warranted a conclusion by the trial court that defendant's "disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation because it would insulate him from a source of temptation to continue to pursue a criminal lifestyle. [Citations.]" (Lopez, supra, 66 Cal.App.4th at p. 626.)

Defendant attempts to distinguish Lopez by asserting that the defendant in that case was an admitted current gang member. In contrast, defendant was an admitted previous gang member. However, whether defendant was currently connected with a gang was not critical. (Lopez, supra, 66 Cal.App.4th at p. 624.)

In sum, defendant's admitted association with a gang and his criminal history support the court's implied finding that defendant's gang association may deter him from successfully completing probation. Thus, the gang-related conditions promote the goals of rehabilitation and public safety by forbidding conduct reasonably related to future criminality, and are thus valid. (Lopez, supra, 66 Cal.App.4th at p. 626.)

II. The Field Interrogation Probation Condition Is Valid

Defendant contends that the probation condition that requires him to "[s]ubmit to, and cooperate in, a field interrogation by any peace officer at any time of the day or night," is unconstitutional as written because a reasonable person may interpret it to mean that he must, as a condition of his probation, waive his Fifth Amendment right against self-incrimination. We disagree.

Pursuant to section 1203.1, "the sentencing court has broad discretion to prescribe reasonable probation conditions to foster rehabilitation and to protect the public so justice may be done. [Citations.]" (People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) 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 (1993) 5 Cal.4th 228, 237), probation conditions may nevertheless place limits on constitutional rights if necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941.) Furthermore, as previously stated, "[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.]" (Lent, supra, 15 Cal.3d at p. 486.)

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 (Reyes) [the purpose of an unexpected search is to determine not only whether parolee disobeys the law, 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, and with the benefit of probation comes the burden of a search term, which can be used as a correctional tool].) The threat of an unexpected interrogation is fully consistent with the deterrent purposes of the field interrogation condition. (Reyes, supra, 19 Cal.4th at p. 752.)

Here, defendant's field interrogation probation condition will provide practical, on-the-street supervision of him. A field interrogation will be useful to monitor defendant's compliance with his other probation conditions. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality. In other words, the condition 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 probation condition serves the purposes of probation and is valid under the Lent criteria. (Lent, supra, 15 Cal.3d at p. 486.)

Defendant claims that the field interrogation probation condition infringes upon his Fifth Amendment right against self-incrimination because a reasonable person may interpret it to mean that he must, as a condition of his probation, waive his Fifth Amendment right. In other words, he cannot refuse to answer a question by a peace officer, even if he believes his answer will be incriminating. This claim is speculative and unsupported. Contrary to defendant's claim, the condition does not compel him to make incriminating disclosures, and it contains no language threatening to revoke his probation if he asserts the privilege against self-incrimination. The condition merely requires him to "[s]ubmit to and cooperate in a field interrogation by any peace officer." Moreover, 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 (1st Cir. 2001) 242 F.3d 49, 52 [finding no realistic threat of having the defendant's probation revoked in a requirement to "cooperate" with the probation officer].) Thus, although defendant must cooperate with the police and not walk away, 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, 434.) In any case, if a state does attach "[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.)

Furthermore, law enforcement officers may not ask harassing questions that 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.) In any event, we conclude that the field interrogation probation cannot be reasonably interpreted to require defendant to waive his right against self-incrimination.


The judgment is affirmed.

We concur: Richli J., Miller J.

1. All further statutory references will be to the Health and Safety Code, unless otherwise noted.

2. The probation report shows two birthdates; thus, he was either 19 or 20 when he committed the offense.

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