P. v. Estrada

Filed 10/17/07 P. v. Estrada CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James M. Dorr, Judge. Affirmed.

Amanda F. Benedict, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, Scott C. Taylor and Melissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant pled no contest to the crime of unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).) Defendant was granted three years probation, with the condition she serve 180 days in custody. Defendant essentially contends that probation term No. 18, which requires her to cooperate during field interrogations, infringes on her Fifth Amendment privilege against self-incrimination and, therefore, must be narrowly drawn. Defendant requests the probation condition be modified to include a provision indicating that she retains her Fifth Amendment privilege. In addition, defendant essentially contends that probation term No. 18 is invalid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on another ground by Proposition 8 as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295, because it is not related to the crime for which she was convicted or to future criminality.

FACTS

Defendant was arrested when she was discovered driving a car that had been reported stolen. Defendant pled no contest to unlawfully driving or taking a vehicle and was granted three years probation, with the condition she serve 180 days in custody. At the sentencing hearing, defense counsel objected to probation term No. 18, which requires defendant to [s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night.^[1] Defense counsel requested that the court modify the term to reflect that defendant retained her Fifth Amendment rights.^[2] The court overruled the objection.

DISCUSSION

Defendant presents two related contentions. First, defendant contends that probation term No. 18 could be interpreted as foreclosing her right to claim her Fifth Amendment privilege against self-incrimination and, therefore, the condition should be narrowly drawn to include a provision clarifying that she retains her privilege against self-incrimination. Second, defendant essentially contends that the probation condition violates the standard put forth in Lent, supra, 15 Cal.3d at page 486, because the condition is not related to the crime for which she has been convicted or to future criminality.

We begin by addressing defendants first contention. 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).) We find no such penalty associated with the probation condition at issue in this case.

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, 465 U.S. at p. 438.) In light of this well-settled rule, there is no reasonable basis for concluding probation term No. 18, requiring defendant to [s]ubmit to and cooperate in a field interrogation by any peace officer, places an impermissible penalty on defendants Fifth Amendment privilege. Nothing on the face of the condition, either expressly or by implication, suggests defendant would be subject to having her probation revoked if she were to assert her Fifth Amendment privilege while being questioned about a matter which could incriminate her for another crime. Accordingly, defendants Fifth Amendment privilege has not been infringed; therefore, we do not need to address the issue of whether the condition has been narrowly drawn. (See People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)

Second, we address defendants contention that probation term No. 18 is overbroad and violates the standard put forth in Lent, supra, 15 Cal.3d at page 486, because it is not related to the crime for which defendant was convicted or to future criminality. Defendant does not specifically cite to Lent; however, the cases she references rely on Lent for their discussion. (See Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319; In re Martinez (1978) 86 Cal.App.3d 577, 583; People v. Mayers (1980) 110 Cal.App.3d 809, 817, citing In re Martinez, supra, at p. 583, which cites Lent, supra.)

Under the Lent standard, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality. (Lent, supra, 15 Cal.3d at p. 486.) We review the courts decision regarding probation term No. 18 for an abuse of discretion. (People v. Welch (1993) 5 Cal.4th 228, 234.)

The field interrogation condition is related to future criminality because it can encourage defendant to comply with the other terms of her probation and to obey the law. Similar to the threat of a warrantless search, the ability of a law enforcement officer to question a probationer at any time in the field is a deterrent to future criminality and a strong incentive to comply with probation conditions. (See People v. Adams (1990) 224 Cal.App.3d 705, 712 [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 [she] obeys the law. Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and [her] amenability to rehabilitation].)

Accordingly, we conclude the probation condition does not violate the standard put forth in Lent because it related to future criminality.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

GAUT

J.

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^[1]Probation term No. 18 in the clerks transcript is referred to as term No. 19 in the reporters transcript.

^[2]In her opening and reply briefs, defendant incorrectly states that the district attorney requested probation term No. 18 be modified to include a provision that defendant retains her Fifth Amendment privilege. The reporters transcript reflects that the request was made by Mr. Martinez, the attorney who represented defendant at her plea hearing. The district attorney at the sentencing hearing, where the comment was made, was Ms. Dawson.