NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties rom 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Christopher Wood pled guilty to one count of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)),1 in return for the People agreeing to dismiss three counts of misdemeanor child endangerment (§ 273a, subd. (b)). The trial court sentenced defendant to three years probation with the condition that he spend 90 days in county jail. Defendant challenges several of the other conditions of his probation.
Statement of Facts2
On December 17, 2005, police were dispatched to defendant's residence to answer a call about possible domestic violence between a father and son. The officers first interviewed defendant's wife, who said defendant had been hitting her all night and that she wanted it to stop. Defendant's wife stated that defendant is a habitual drunk and that he hits her when he drinks. She showed the officers injuries to her forearm and neck, which were consistent with her description of defendant grabbing her forearm with his nails and using the collar of her shirt to pull her. Defendant's wife also said that he pulled her hair and hit her in the back with his fist. Defendant initially denied injuring his wife.
Defendant's son told the officers that defendant had thrown a piece of musical equipment at him, hit him in the back, and had pushed him off a chair. The son also stated that defendant drank nearly every day and usually became abusive when he drank. Other children in the residence agreed that defendant drank and was abusive.
On January 18, 2006, defendant admitted to the author of the probation report that he was drunk the night police were called to his home and that he probably did injure his wife. He also admitted that this sort of behavior was an "on-and-off thing." Defendant stated that he was willing to cooperate with the court and the probation department, and that he wanted to complete this case so he and his wife could participate in marriage counseling.
Defendant challenges four of the conditions of his probation. Condition No. 7 requires that defendant keep his probation officer informed of "pets" and that he give prior notice of any changes. Condition No. 9 requires that defendant submit to a law enforcement search of his person, residence, and property under his control at any time of the day or night, without a search warrant or probable cause. Condition No. 20 requires defendant to submit to and cooperate in a field interrogation by any peace officer at any time of the day or night. Condition No. 24 requires defendant to carry a copy of the terms and conditions of his probation at all times, and to offer them to any peace officer upon contact. Defendant challenged each of these conditions at the January 30, 2006, sentencing hearing, and so he preserved these issues for appeal. Before addressing each of the conditions individually, we first set forth the statutes and relevant case law on probation conditions and the standard of review on appeal.
1. Standard of Review and Lent Test
The purpose of probation is rehabilitation of the offender. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.) "In granting probation, the primary considerations are: `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.' ([Pen. Code,] § 1202.7.)" (People v. Orabuena (2004) 116 Cal.App.4th 84, 100.)
"The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. (Pen. Code, § 1203.1, subd. (b); Cal. Rules of Court, rule 414; People v. Warner (1978) 20 Cal.3d 678, 682-683.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) The courts "have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (Carbajal, supra, 10 Cal.4th at p. 1120.) That broad discretion "nevertheless is not without limits." (Id. at p. 1121.) "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or `"`exceeds the bounds of reason, all of the circumstances being considered.'" [Citations.]' [Citation.]" (Ibid.)
The reasonableness of a particular condition depends, as noted, upon all of the circumstances being considered. (Carbajal, supra, 10 Cal.4th at p. 1121.) "In addition, [the California Supreme Court has] interpreted Penal Code section 1203.1 to require 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.'" (Carbajal, supra, 10 Cal.4th at p. 1121.)
The seminal case on invalid probation conditions is People v. Lent (1975) 15 Cal.3d 481 (Lent). There, the California Supreme Court 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.]" (Id. at p. 486.) A condition of probation must satisfy all three requirements before it may be declared invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365-366 (Wardlow).)
2. Probation Condition No. 7 - Pets
Defendant challenges the imposition of condition No. 7 that states that he is to "[k]eep the probation officer informed of . . . cohabitants and pets, and give written notice . . . twenty-four (24) hours prior to any changes."
The ownership of pets is not in itself a criminal matter. Thus, such a condition must satisfy the requirement that it be "reasonably related to the crime of which the defendant was convicted or to future criminality." (Wardlow, supra, 227 Cal.App.3d at p. 366.)
The probation condition here does violate all three criteria set forth in Lent.
First, defendant's ownership or contact with a pet of any kind had nothing to do with the crime of which he was convicted. He inflicted corporal injury on his wife. There is no indication in the record that a pet was present at the time of the crime or had anything to do with defendant's actions toward his wife.
Second, having a pet is not in itself criminal. Indeed, "the harboring of pets" has been recognized as "an important part of our way of life." (Cf. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514; see also Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163.)
Third, pet ownership, of itself, is not indicative of or related to future criminality. Defendant did not commit any crime relating to ownership of or access to any animals and there is no basis upon which to anticipate that defendant would commit such a crime in the future.
The People concede that the condition is overbroad because it includes animals that could not be a threat to probation officer safety and could interfere with the supervision of defendant on probation. The People then propose that the condition be modified to require defendant to notify his probation officer of any "dogs" rather than "pets." We decline to direct the trial court to modify the condition in any particular way, but rather direct the trial court to strike the reference to "pets" in probation condition No. 7. The trial court may then, at its option, modify condition No. 7 to include a condition narrowly tailored to address concerns about dangerous animals when probation officers conduct home visits.
3. Probation Condition No. 9 - The Search Condition
Condition No. 9 states that defendant must "[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." Defendant argues that the search condition is invalid because there is no nexus between the crime of which he was convicted and concealed items that could be recovered during a search.
We agree with the People and with the numerous cases from this and other California courts that the condition, while not related to the crime of which defendant was convicted, is related to future criminality. In People v. Adams (1990) 224 Cal.App.3d 705 (Adams), we 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.)
Specifically relevant to this case is People v. Balestra (1999) 76 Cal.App.4th 57, in which the court upheld a search condition of probation where the defendant was convicted of physically abusing her elderly mother. The court found that the condition was related to future criminality because, as in Adams, it assisted authorities in determining whether the defendant was complying with the terms of his probation.
As with the defendant convicted of elder abuse in Balestra, the fact that defendant was convicted of spousal abuse does not reduce the benefit of this search condition in measuring the effectiveness of his supervision and determining his amenability to rehabilitation. Thus, the condition is related to defendant's future criminality and was properly imposed.
4. Probation Condition No. 20 - Field Interrogation
Probation condition No. 20 requires that defendant "[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night." Defendant contends that this condition is not related to the crime of spousal battery. He also contends that it violates his Fifth Amendment right against self-incrimination because it can be interpreted to mean that defendant cannot refuse to answer a question posed during a field interrogation, even when he believes the answer will be incriminating.
As with the search term contained in probation condition No. 9, the field interrogation term is related to defendant's future criminality, and for the same reasons.
We also disagree with defendant's contention that the condition violates his Fifth Amendment right to refuse to answer an incriminating question. 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 (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." (Murphy, supra, 465 U.S. 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, supra, 242 F.3d at p. 52.)
Also, defendant may, when questioned, give a truthful answer and his answer may be used at trial without offending the Fifth Amendment. His obligation to answer questions truthfully is the same obligation borne by any witness at a trial or before a grand jury. (Murphy, supra, 465 U.S. at p. 427.) It is not too onerous to require him, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because he has a duty to answer an officer's questions truthfully, unless he asserts the privilege, it does not violate his right not to incriminate himself. The purpose of probation is, of course, defendant's reformation and rehabilitation, and speaking truthfully to a peace officer is arguably an implied condition of probation. (See People v. Cortez (1962) 199 Cal.App.2d 839, 844.)
Nevertheless, defendant is not required to give up his freedom to decline to answer particular questions. (Murphy, supra, 465 U.S. at p. 429.) The Constitution does not forbid the asking of incriminating questions (id. at p. 428) and the state in this case has neither expressly nor by implication threatened that invocation of the Fifth Amendment privilege would lead to revocation of probation. Thus, we reject defendant's challenge to the field interrogation condition of his probation.
5. Probation Condition No. 24 - Carry a Copy of Probation Conditions
Probation condition No. 24 requires defendant to "[c]arry a copy of [his] terms and conditions of probation on [defendant's] person at all times, and offer them to any peace officer upon contact." Defendant asserts that this condition is unrelated to his crime or to future criminality, and that the sentencing court acted arbitrarily and capriciously in imposing this onerous condition. We disagree.
As with the search and field interrogation conditions, this condition assists in defendant's rehabilitation by first notifying law enforcement officers with whom he comes into contact with of the terms of his probation so that they can then determine whether he is in compliance. We do not view this condition as particularly onerous, in that defendant can easily keep a copy of the conditions in the same place as other important identifying documents, such as a driver's license. Neither do we give any credence to defendant's concern that his parole could be violated if he answers his front door in the middle of the night in his pajamas, in that the solution would be for him to simply go to wherever his wallet is located and produce the conditions. Thus, the trial court did not act in an arbitrary and capricious manner when it imposed condition No. 24.
The trial court is directed to strike the reference to "pets" in probation condition No. 7. The trial court may, however, modify the terms of probation to include a condition narrowly tailored to address concerns about dangerous animals when probation officers conduct home visits. In all other respects, the judgment is affirmed.
I concur: MILLER J.
KING, J., Concurring and dissenting.
I concur with the majority in all respects, save and except as to term 20. Term 20 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 20 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 20 allows for the probationer to be interrogated as to any subject matter, whether related or unrelated to the conduct of the probationer.
1. All further statutory references are to the Penal Code unless otherwise indicated.
2. The facts are taken from the probation report.