People v. Tongolei

2006 | Cited 0 times | California Court of Appeal | November 6, 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 This opinion has not been certified for publication or ordered published for purposes of rule 977.


A jury found appellant and defendant Hasi Lemoto Tongolei guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1 The court suspended imposition of sentence and placed him on probation for three years. On appeal, defendant contends that one of his probation conditions is unconstitutional. We disagree and affirm.


The victim, John Tuutau, went to defendant's house to discuss a construction job. Tuutau and defendant got into an argument. Defendant punched Tuutau in the head and chest. Tuutau grabbed defendant's arms, held them behind him, and pinned him against a trailer. Defendant grabbed a metal sign post from the trailer and hit Tuutau several times with it. Tuutau suffered two major cuts to his abdomen and bruises on his head and face. He was treated at the hospital for his injuries.

A jury found defendant guilty of one count of assault with a deadly weapon. The court suspended imposition of sentence and placed him on probation. One of defendant's probation conditions, number 13, required him to "[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night."


Probation Condition No. 13 Is Valid

Defendant contends that probation condition No. 13, which requires him 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 or the condition) is unconstitutional as written because it implicates his constitutional right against self-incrimination and is overbroad. 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, "[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 (Lent).)

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 it is so broadly written that he will "necessarily be arrested and [his] probation revoked if he dares assert his Fifth Amendment right and refuses to answer incriminating or harassing questions." This claim is unsupported. Contrary to defendant's claim, the condition does not compel him to make incriminating disclosures, and it contains no threat that his probation will be revoked 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 U.S. 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 (Murphy).) 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, as discussed above, defendant is not required to forgo his right to decline to answer particular questions. (Murphy, supra, 465 U.S. 420, 434.)


The judgment is affirmed.

I concur:

Richli J.

KING, J., Dissenting.

I dissent. I would reverse and remand for further sentencing. Term 13 of the probation conditions should be limited to allow field interrogation of the probationer only as it relates to the probationer's criminality and compliance with the other terms and conditions of probation.

Term 13 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, term 13 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. All further statutory references will be to the Penal Code, unless otherwise noted.

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