People v. Mason

2009 | Cited 0 times | California Court of Appeal | July 8, 2009


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Appellant and defendant Marsha Edwards Mason1 pled nolo contendere to possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) The trial court suspended imposition of sentence and placed her on probation for three years. On appeal, defendant contends that a condition requiring her to submit to and cooperate in a field interrogation by a peace officer is unconstitutional, and that two of her probation conditions are unconstitutionally vague and overbroad and must be modified to include an express knowledge requirement. We affirm.


On October 7, 2004, the police executed a search warrant at defendant's home (the residence). The police searched the residence and found empty baggies, baggies containing methamphetamine, $13,097 in cash, a gun holster, an empty paper bindle, a video surveillance camera, glass pipes, a list with a breakdown of grams to pounds, a baggie of marijuana, and a loaded .38-caliber handgun.

On February 11, 2005, the police returned to the residence to conduct a parole search, as parolee Abdella Jaloudi (Jaloudi) had reported the residence as his current address. When the officers entered, they saw Jaloudi in the kitchen. They ordered him to come out, but he did not comply. He put his hands in his pockets and crouched behind the counter. When the officer ordered Jaloudi to come out with his hands out of his pockets, the officer saw him drop something on the floor; the officer later discovered it was a baggie containing methamphetamine. The officers handcuffed Jaloudi. The police also saw defendant and searched her. They found her to be in possession of two baggies of methamphetamine and $75. Throughout the search, defendant was yelling and uncooperative.

On February 15, 2005, a felony complaint was filed in case No. FVI020934, charging defendant with possession of methamphetamine for sale on October 7, 2004 (Health & Saf. Code, § 11378, count 1); possession of methamphetamine with a firearm on October 7, 2004 (Health & Saf. Code, § 11370.1, subd. (a), count 2); forgery on October 7, 2004 (Pen. Code, § 476, count 3); possession of methamphetamine on February 11, 2005 (Health & Saf. Code, § 11378, count 4); and resisting an officer on February 11, 2005 (Pen. Code, § 148, subd. (a)(1), count 7).2

Subsequently, a second felony complaint was filed in case No. FVI701840, alleging that defendant received stolen property (Pen. Code, § 496, subd. (a), count 1) and possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 2). The complaint also alleged that both counts were committed while defendant was released on her own recognizance on bail in case No. FVI020934 (Pen. Code, § 12022.1).

Pursuant to a plea bargain, defendant pled nolo contendere in case No. FVI020934 to possession of methamphetamine for sale. In exchange, the prosecution dismissed the remaining counts in that case and both counts in case No. FVI701840. Pursuant to the plea agreement, the court placed defendant on felony probation for three years under certain conditions.


I. The Field Interrogation Probation Condition Is Valid

Defendant contends the probation condition that requires her to "[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night," is unconstitutional because it impermissibly infringes on her Fifth Amendment privilege against self- incrimination. We disagree.

Pursuant to Penal Code 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.) Furthermore, "[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.]" (People v. Lent (1975) 15 Cal.3d 481, 486.) A probation condition is valid under the Fifth Amendment unless there is a reasonable basis for concluding an impermissible penalty has been attached to the exercise of the privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 436-437 (Murphy).) Murphy sets forth the rule that the Fifth Amendment privilege is not lost when a person is granted probation: A state cannot "constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege." (Murphy, supra, at p. 438.)

In light of this well-settled rule, there is no reasonable basis for concluding that the field interrogation probation condition places an impermissible penalty on defendant's Fifth Amendment privilege. The condition does not compel her to make incriminating disclosures. The condition merely requires her to "[s]ubmit to and cooperate in a field interrogation by any peace officer." While probationers have long been required to "cooperate" with their probation officers, a probationer is not foreclosed from asserting her Fifth Amendment privilege, and it would not be inherently uncooperative for her 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, she retains the right to assert the Fifth Amendment, and her probation cannot be revoked based on a valid exercise of that right. (Murphy, supra, 465 U.S. at p. 434.) Accordingly, we conclude defendant's Fifth Amendment privilege has not been infringed by the field interrogation probation condition.

II. The Probation Conditions Prohibiting Defendant from Associating with Certain "Known" Individuals Are Not Vague or Overbroad

Defendant contends that two of her probation conditions, as currently worded, are unconstitutionally vague and overbroad. One condition provides that she not associate with "known convicted felons or anyone actively engaged in criminal activity, or co-defendants (except those involved in recovery)." The other one provides that she not associate with "known illegal users or sellers of controlled substances, except those involved in [her] recovery." Defendant specifically complains that these two conditions have no knowledge requirement and, thus, fail to notify her in advance with whom she must not associate. She contends they must be modified. This claim is meritless.

"[T]he underpinning of a vagueness challenge is the due process concept of `fair warning.' [Citation.] The rule of fair warning consists of `the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders.' [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K).) "A probation condition `must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (Ibid.)

Defendant cites Sheena K. in support of her claim. However, Sheena K. is distinguishable. In that case, the defendant claimed the probation condition forbidding her association with "anyone disapproved of by probation" was vague and overbroad. (Sheena K., supra, 40 Cal.4th at p. 889.) The Supreme Court concluded that "in the absence of an express requirement of knowledge, the probation condition imposed upon defendant [was] unconstitutionally vague." (Id. at p. 891.) The court found that "the probation condition did not notify [the] defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892.)

In contrast, both of the challenged probation conditions in the instant case contain express knowledge elements precluding defendant from associating with "known convicted felons or anyone actively engaged in criminal activity," and "known illegal users or sellers of controlled substances." (Italics added.) The conditions must be interpreted "on the basis of what a reasonable person would understand from the language of the condition itself." (People v. Bravo (1987) 43 Cal.3d 600, 607.) These two conditions notify defendant in advance with whom she is prohibited from associating through references to persons whom she knows to be convicted felons or actively engaged in criminal activity and to persons whom she knows to be illegal users or sellers of controlled substances. No modification is needed.


The judgment is affirmed.

We concur: MCKINSTER J., GAUT J.

1. This court acknowledges that defendant has numerous aliases, including Marti Joann Edwards. For clarity, we will refer to defendant as Marsha Edwards Mason.

2. Counts 5 and 6 were alleged against Jaloudi.

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