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Pursuant to a plea agreement, defendant pleaded guilty to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court thereafter suspended imposition of sentence and placed defendant on formal probation for three years on various terms and conditions, including serving 365 days in county jail and submitting to a field interrogation by any peace officer. On appeal, defendant contends (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 unconstitutional; and (2) the trial court erred in failing to determine his conduct credits under Penal Code section 4019. We agree with the parties that the trial court should have determined defendant's conduct credits but reject defendant's remaining contention.
I. FACTUAL BACKGROUND1
On November 10, 2004, police officers patrolling the city of San Bernardino observed three men, including defendant, at the corner of 21st and "E" Streets with an open can of beer in violation of a local ordinance. Upon further investigation, the officers discovered that defendant had an outstanding arrest warrant. A search of defendant yielded a baggie containing approximately 1.6 grams of methamphetamine, additional zip lock baggies, a pocket scale with white residue on it, pay/owe sheets, a cellular telephone, and $189 in cash.
A. The Field Interrogation Probation Condition
Defendant contends 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" violates his Fifth Amendment constitutional right against self-incrimination. We disagree.
It is well 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]; 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].)
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 the Fifth Amendment. (See U.S. v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding no realistic threat in a requirement to "cooperat[e]" 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.) 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, fn. omitted.) 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.)
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 matter or otherwise acts improperly, defendant may present evidence at the probation violation hearing to show 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.) It is not too onerous to require defendant, for purposes of rehabilitation and reform, to cooperate with an officer.
Like the standard probation search condition, a field interrogation probation condition is a correctional tool which 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].) Here, defendant's field interrogation probation condition will provide practical, on-the-street supervision of him. A field interrogation will also be useful to monitor defendant's compliance with other conditions and ensure that defendant is not engaging in the sale or possession of controlled substances. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality.
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.
B. Conduct Credits
Defendant next asserts, and the People correctly concede, that the trial court erred in failing to calculate and award conduct credits pursuant to Penal Code section 4019.2 We also agree.
As the People point out, Penal Code section 2900.5, subdivision (d) requires the sentencing court "to determine the number of days of custody and any conduct credits earned pursuant to [Penal Code] section 4019." (People v. Daniels (2003) 106 Cal.App.4th 736, 740.) Defendant here was awarded 63 days of actual presentence custody credits. Conduct credits are calculated on a "two-for-four" basis. (Pen. Code, § 4019; People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Applied here, defendant was entitled to have 30 days of conduct credit -- dividing 63 by four and rounding down to a whole number yields 15, which when multiplied by two equals 30. (§ 4019.)
The judgment is hereby modified to correct defendant's presentence credits to award 93 (63 actual credit plus 30 conduct credit) days. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy of the corrected abstract to the Director of the Department of Corrections. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P.J., GAUT J.
1. The factual background is taken from the probation officer's report.
2. Pursuant to Penal Code section 1237.1, by letter dated June 30, 2005, defendant had requested the trial court to award these credits. The court awarded these credits but mistakenly believed the sheriff was responsible for actual determination of those credits. The court specifically noted, "Request denied -- deft. earns good time credits which are calculated by the sheriff[.]"