P. v. Mendez
Filed 2/28/07 P. v. Mendez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. LETICIA MARIE MENDEZ, Defendant and Appellant. | E040413 (Super.Ct.No. FSB054013) OPINION |
APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed.
Anna M. Jauregui, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant pleaded guilty to one count of child endangerment (Pen. Code, 273a, subd. (a)).[1] In return, the remaining two counts of child endangerment were dismissed, and defendant was placed on probation on various terms and conditions. On appeal, defendant contends (1) the probation condition requiring her to keep the probation officer informed of whether she owns any pets is invalid; and (2) the probation condition requiring her to submit to and cooperate in field interrogations is overly broad and infringes upon her constitutional rights. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND[2]
On January 18, 2006, San Bernardino County Sheriffs deputies executed a search warrant at defendants residence. Inside the home, deputies found marijuana, methamphetamine, and a smoking pipe within access and reach of defendants three young children. Deputies also found a homemade water bong next to a bench marked timeout inside the garage.
II
DISCUSSION
A. Pet Condition
At sentencing, defense counsel asked that the trial court strike the word pets from probation condition No. 7 on the grounds that it was unconstitutional and overbroad. The court denied that request.
Condition No. 7 specifically provides that defendant [k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. Prior to any move provide written authorization to the Post Office to forward mail to the new address. (Italics added.)
Defendant contends the trial court abused its discretion in denying her request to strike the pet condition because the condition is not reasonably related to her crime or future criminality, and it is unconstitutionally overbroad and vague. We disagree.
The primary goal of probation is to ensure [t]he safety of the public . . . through the enforcement of court-ordered conditions of probation. [Citation.] [C]onditions of probation are routinely imposed when the sentencing court determines, in an exercise of its discretion, that a defendant who is statutorily eligible for probation is also suitable to receive it. [Citation.] In the granting of probation, the Legislature has declared the primary considerations to be: 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. [Citation.] [] In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] The court may impose and require . . . [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. [Citation.] The trial courts discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, . . . Penal Code section 1203.1 . . . require[s] 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. [Citation.] (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; see also 1203.1; People v. Welch (1993) 5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.)
While pet ownership is not in itself criminal, it is reasonably related to the supervision of a probationer and in some respect to child endangerment, and hence to defendants future criminality.
[C]onditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation . . . . [Citation.] [Citation.] (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016 [Fourth Dist., Div. Two], quoting People v. Delvalle (1994) 26 Cal.App.4th 869, 879, quoting People v. Mason (1971) 5 Cal.3d 759, 768 (dis. opn. of Peters, J.).) However, there is no constitutional right to keep a pet. (See Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 388.) A fortiori, there is no constitutional right to keep a pet without telling your probation officer.[3]
Absent any such constitutional concerns, [a]n adult probation condition is unreasonable if 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.] [Citation.] (In re Byron B., supra, 119 Cal.App.4th at p. 1016, quoting People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) 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.] (People v. Carbajal, supra, 10 Cal.4th at p. 1121.)
[Probation conditions] are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationers being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. Recent research suggests that more intensive supervision can reduce recidivism, [citation], and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes, [citation]. (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [97 L.Ed.2d 709, 107 S.Ct. 3164].) A probation condition therefore may be deemed reasonable if it enable[s] the [probation] department to supervise compliance with the specific conditions of probation. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.)
A probation officer may need to visit a probationers home unannounced. Here, for example, defendants probation conditions required her to [s]ubmit to a search . . . of your . . . residence . . . at any time of the day or night . . . . Knowing, in advance, what animals are in the probationers home is reasonably related to the safety of the probation officer.
While some pets are so innocuous that they could not possibly interfere with a probation officers performance of his or her duties (see, e.g.,
Moreover, a probation officer is entitled to some protection against undue surprise. A trial court drafting probation conditions in the abstract might not think to include a parrot among the pets that must be disclosed; presumably, however, a probation officer would appreciate being warned that that voice in another room may just be a bird. Likewise, any probation officer who has to open a closet or reach under a bed during a search would no doubt like to know ahead of time whether the probationer keeps snakes ‑‑ regardless of whether the snakes are venomous.
Even assuming the challenged condition could have been more narrowly tailored, that does not render it invalid; rather, it simply must not exceed the bounds of reason. It not unreasonable to put the burden on the probationer to tell the probation officer what animals may be present. The probation officer can then decide what precautions to take. The challenged condition does not prevent the probationer from owning a pet of any kind. It does not even require approval of the pet. It simply requires notice to the probation officer. This is amply within the bounds of reason.
Significantly, defendant does not challenge the probation condition that required her to keep the probation officer informed of her cohabitants. This condition serves the salutary, rehabilitative purpose of preventing defendant from associating with those who might lead her into criminal behavior. Defendant does not seem to think this condition had to be more narrowly drawn so as to require defendant to report only cohabitants who are gang members, drug users, or known felons. It is just as reasonable to require defendant to report all of her pets as it is to require her to report all of her cohabitants.
[A] probation condition also may be challenged as excessively vague. (In re Byron B., supra, 119 Cal.App.4th at p. 1018.) Any ambiguity in a probation condition can be dispelled when, at the time probation is granted, the defendant is advised of the condition. (People v. Bravo (1987) 43 Cal.3d 600, 610, fn. 7.) Oral advice at the time of sentencing . . . afford[s] defendants the opportunity to clarify any conditions they may not understand and intelligently to exercise the right to reject probation granted on conditions deemed too onerous. (Ibid.) Here, at sentencing, defense counsel objected that the challenged condition was unconstitutional and overbroad. He did not object that it was vague; he did not request any clarification. Thus, defendant waived any objection that it was vague or ambiguous. In any event, defense counsel clarified for the court that he had gone over all of the terms and conditions of probation with defendant and that defendant had indicated to counsel that she understood them and was willing to accept them. In addition, the term is not sufficiently vague to require that it be stricken. All that is necessary is that the condition be reasonable under all the circumstances. This condition here meets this requirement.
B. Field Interrogation Condition
At sentencing, defense counsel also objected to probation condition No. 19, 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, as unconstitutional[,] overbroad and overburdensome. The court denied the request to strike this condition as well.
Defendant contends this probation is unreasonable, is overbroad, and violates her constitutional rights against self-incrimination, personal privacy, and liberty.[4] We disagree.
As described above, trial courts have broad discretion in determining what conditions of probation will aid the reformation and rehabilitation of the defendant. ( 1203.1; People v. Carbajal, supra, 10 Cal.4th at pp. 1120-1121.) Again, a condition will not be held invalid unless it has no relationship to the crime of which the defendant is convicted, relates to conduct which is not itself criminal, and requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 366.)
Defendants concern that the field interrogation condition is overly broad and serves no legitimate purpose is not well founded. 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 or her 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 or she 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].)
This court observed in People v. Adams (1990) 224 Cal.App.3d 705 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 [or she] obeys the law. Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and his [or her] amenability to rehabilitation. [Citation.] (Id. at p. 712.) In addition, as our Supreme Court observed, [w]hen [warrantless search and seizure] conditions are imposed upon a probationer . . . , it is established that the individual consents to the waiver of his [or her] Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. Probation is not a right, but a privilege. [Citation.] (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo, supra, 43 Cal.3d at p. 608.)
Likewise, here, the field interrogation probation condition will provide practical, on-the-street supervision to defendant. Field interrogations will be used to monitor defendants compliance with conditions of her probation. Also, information obtained from field interrogations will provide a valuable measure of her amenability to rehabilitation, which is related to her future criminality. A condition allowing field interrogations may further dual purposes of deterring future offenses by the probationer and ascertaining whether she is complying with the terms of her probation. The purpose of an unexpected, unprovoked field interrogation of defendant is to ascertain whether defendant is complying with the terms of probation ‑‑ to determine not only whether she disobeys the law, but also whether she obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given defendant. (See, e.g., People v. Reyes, supra, 19 Cal.4th at p. 752.)
Although the field interrogation probation condition forbids defendant from doing something that is not in itself criminal, that is, ignore [her] interrogator and walk away (United States v. Mendenhall (1980) 446 U.S. 544, 553 [100 S.Ct. 1870, 64 L.Ed.2d 497]), it is related to the purposes of probation as described in People v. Lent, supra, 15 Cal.3d 481. It provides officers with a means of assessing defendants progress toward rehabilitation, it assists them in enforcing other terms of her probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria. (Id. at p. 486.) In addition, implicit in almost every probation condition, including the field interrogation condition, is reasonableness.
Here, defendant committed three counts of child endangerment when officers found drugs and drug paraphernalia within access and reach of her three young children. Inside the garage, the officers also found a homemade water bong next to a bench marked timeout. We believe the field interrogation condition is necessary to help reform defendant by discouraging her from concealing future criminality and to ensure that defendant remains in compliance with probation (as well as her court-ordered reunification plan as set forth by the San Bernardino County Department of Childrens Services). The field interrogation term is reasonably related to defendants future criminality. This term also serves a rehabilitative purpose in deterring defendants drug use and ensuring that her children are safe and protected.
Additionally, interrogation inherently means questions related to seek solution of a crime. (See Blacks Law Dict. (6th ed. 1990) p. 818, col. 2.) Thus the inherent meaning of the term limits the questions that could be asked of a probationer in a field interrogation to those designed to monitor the probationers compliance with the other terms of his or her probation as well as future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. It may be that this limitation is implicit in the language that the court adopted and could be permitted to stand without modifying the language of the condition. Moreover, as discussed in detail, post, it is unlikely that a probationer would likely be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions unrelated to the conduct of the probationer. This condition would assist defendant in maintaining compliance with the law and the terms of her probation.
Again, even assuming the challenged condition could have been more narrowly tailored, that does not render it invalid; rather, it simply must not exceed the bounds of reason. The challenged condition will provide a means to monitor defendants progress toward rehabilitation, and deter future criminality. This is amply within the bounds of reason.
Defendant claims the field interrogation condition implicates her Fourth, Fifth, and Fourteenth Amendment rights of self-incrimination, personal liberty, and security. We find no constitutional violation.
Defendant is not an ordinary citizen. She is a convicted felon who has been granted the privilege of probation. It has long been 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 the defendant falsely imprisoned a man during a protest rally]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969, overruled on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237 [probation condition prohibiting the defendant from active participation in demonstrations following his conviction of assault at a college demonstration was reasonable]; People v. King (1968) 267 Cal.App.2d 814, 822-823 [condition of probation proscribing participation in demonstrations valid where the defendant battered police officers at an antiwar demonstration].) Because of her status as a felon, defendant may be detained and questioned by a peace officer without the requirement that the officer have at least a reasonable suspicion, based on articulable facts, that defendant is engaged in criminal activity. (See Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889].) Although an ordinary citizen may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen [to a peace officer] or answer [any question put to him] does not, without more, furnish those grounds[,] we repeat that defendant is not an ordinary citizen. (Florida v. Royer (1983) 460 U.S. 491, 498 [103 S.Ct. 1319, 75 L.Ed.2d 229].) The impingement on her constitutional right to remain silent is warranted due to her status as a felon. The condition is sufficiently narrow to serve the interests of the state and her reform and rehabilitation while merely requiring her to submit to and cooperate in a field interrogation. Defendant still retains her Fifth Amendment rights, as discussed below. Furthermore, any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 478-479 [86 S.Ct. 1602, 16 L.Ed.2d 694].
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 in a requirement to cooperate with the probation officer].) Therefore, although defendant must cooperate with the police, she retains the right to assert the Fifth Amendment, and her probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 427, 434 [104 S.Ct. 1136, 79 L.Ed.2d 409].) 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 probationers answers would be deemed compelled and inadmissible in a criminal prosecution. (Id. at p. 435.) However, defendants 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, 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 she is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5.) Similarly, the field interrogation condition does not allow law enforcement officials to awaken defendant at any time or place. Rather, the challenged condition requires defendant to submit to and cooperate in a field interrogation ‑‑ the condition does not allow officers to barge into defendants home and question her unnecessarily. Also, defendant may, when questioned, give a truthful answer, and her answer may be used at trial without offending the Fifth Amendment. Her obligation to answer questions truthfully is the same obligation borne by any witness at a trial or before a grand jury. (Minnesota v. Murphy, supra, 465 U.S. at p. 427.) It is not too onerous to require her, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because she has a duty to answer an officers questions truthfully, unless she asserts the privilege, it does not violate her right not to incriminate herself. The purpose of probation is, of course, defendants 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 her freedom to decline to answer particular questions. (Murphy, 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.
The defendant in People v. Miller (1989) 208 Cal.App.3d 1311, 1315, who was required to submit to polygraph testing at the direction of his probation officer as a condition of probation, also argued that the condition violated his privilege against self-incrimination. The Miller court stated: Defendant misconstrues the nature of the privilege. The privilege against self-incrimination is not self-executing; it must be claimed. [Citation.] Although defendant has a duty to answer the polygraph examiners questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. [Citation.] The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege. (Ibid.)
Moreover, the field interrogation condition is less intrusive than some of the other conditions of defendants probation that defendant does not challenge. For example, condition No. 10 requires defendant to [s]ubmit to a search and seizure of [her] person, residence and/or property under [her] 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. (Italics added.) Additionally, condition No. 22 requires defendant to [c]arry a copy of [her] terms and conditions of probation on [her] person at all times, and offer them to any peace officer upon contact. Condition No. 18 obliges defendant to [s]ubmit a record of income and expenditure to the probation officer quarterly. Condition No. 16 forbids defendant from associating with known convicted felons or anyone actively engaged in criminal activity. Likewise, condition No. 17 prohibits defendant from associating with known illegal users or sellers of controlled substances.
In summary, we note that the limitation on defendants liberty is warranted due to her status as a felon. The condition is sufficiently narrow to serve the interests of the state ‑‑ her reform and rehabilitation ‑‑ while requiring her merely to submit to and cooperate in a field interrogation. And any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona, supra, 384 U.S. 436. In these circumstances, we conclude that the condition is reasonable and constitutional.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
I concur:
HOLLENHORST
Acting P.J.
MILLER, J.
I respectfully dissent from the majoritys conclusion that the court did not abuse its discretion in denying defendants request to strike the word pets from probation condition No. 7.
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 . . . conduct which is not reasonably related to future criminality . . . . [Citation.] (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.)
Probation condition No. 7 states that defendant must keep her probation officer informed of ownership of pets. This probation condition violates all three criteria set forth in Lent. The defendants ownership of a pet has nothing to do with the crime of which she was convicted. Having a pet is not in itself criminal. Pet ownership is not indicative of or related to future criminality.
I clearly understand the majoritys concern about the safety of probation officers. However, the probation condition in its current language is both unreasonable and overbroad. Does the pet condition encompass all pets or only certain pets that may pose a danger to a visiting probation officer? Could a defendants probation be violated by failing to notify his or her probation officer of a new goldfish or hamster? Clearly, it would not, and if that is true, then, why not define the exact terms and limitations that are really being imposed by the probation condition. When violation of a probation term can lead to incarceration in state prison the defendant needs to be provided with proper notice of what conduct would constitute a violation.
Therefore, the trial court should have been ordered to modify probation condition No. 7 to include language that addresses concerns related to ownership of dangerous animals.
/s/ MILLER
J.
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[1] All future statutory references are to the Penal Code unless otherwise stated.
[2] The factual background is taken from the probation report.
[3] Arguably, if keeping the pet was, in itself, a crime, such a requirement might violate the right against self-incrimination. This, however, is not the thrust of defendants argument.
[4] We reject the Peoples contention that defendant waived this issue on appeal for failing to specifically object on the grounds that it was unreasonable and in violation of her Fifth Amendment constitutional right against self-incrimination and rights to privacy, security, and liberty.
