P. v. Shelton

Filed 4/23/07 P. v. Shelton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Elva R. Soper, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.). Affirmed.

Cynthia M. Sorman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to false imprisonment (Pen. Code, 236).^[1] In return, the remaining count for assault with a deadly weapon was dismissed, and defendant was granted three years of formal probation on various terms and conditions. On appeal, defendant contends (1) the probation condition requiring him to keep the probation officer informed of whether he owns any pets is unreasonable; and (2) the probation condition requiring him to submit to and cooperate in field interrogations infringes upon his Fifth Amendment constitutional right against self-incrimination and is unconstitutionally overbroad. We reject these contentions and affirm the judgment.

I

FACTUAL BACKGROUND^[2]

On April 20, 2006, an officer was dispatched regarding an alleged assault with a deadly weapon. The victim told the officer that she pulled into a parking lot, and defendant pulled up next to her in his car. Defendant got out of his car, approached the victims car, and made his girlfriend get out of the victims car and return to his vehicle with him. He then got back inside his vehicle and struck the victims vehicle with the car he was driving. The victim believed that defendant had struck her vehicle deliberately because he was angry that she had given his girlfriend a ride home. Defendant left the scene. He was arrested when he returned to the scene and was positively identified by the victim.

II

DISCUSSION

A. Pet Condition

At sentencing, defense counsel objected to the term pets in probation condition No. 7 as unconstitutional. The court denied that request.

Condition No. 7 specifically provides in pertinent part 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. . . .  (Italics added.)

Defendant contends the trial court abused its discretion in denying his request to strike the pet condition because the condition is not reasonably related to his crime or future criminality. We disagree.^[3]

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 hence to his 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.^[4]

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, quoting People v. Welch, supra, 5 Cal.4th at p. 234, quoting People v. Warner, supra, 20 Cal.3d at p. 683, quoting People v. Giminez (1975) 14 Cal.3d 68, 72.)

[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 him 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, it is perfectly reasonable for the trial court not to be more specific as to species, breed, or temperament. Animals can be unpredictable, particularly when confronted by a stranger in what they consider to be their own territory.

It can hardly be questioned that certain pets, especially dogs, can pose a great hazard and/or life-threatening danger to others. In fact, both statutory law and case law routinely address the notable problems presented by dogs, dog bites, and poor dog-owner/handler control. (See, e.g., People v. Henderson (1999) 76 Cal.App.4th 453, 461; Pen. Code, 399 [mischievous animal causing death or serious bodily injury]; Pen. Code, 597.5 [felonious possession of fighting dogs]; Civ. Code, 3342 [dog bites; strict liability of owner].) Dangerous pets can also include venomous reptiles or spiders, pigs, and/or potentially any animal faced with a stranger in its territory.

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 â€‘‑ 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 is 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.

The interpretation of pets is a case of first impression but should be analyzed using the same standards as that used to approve notification of cohabitants, which is also included in condition No. 7. Notification of cohabitants is imposed in order to ascertain whether the probationer is associating with people who would negatively affect his rehabilitation. (See People v. Lopez (1998) 66 Cal.App.4th 615, 622-626 [holding that a condition forbidding contact with gang members was necessary to rehabilitation and future criminality].) For example, a defendant convicted of drug possession should not live with drug users or dealers. The purpose of notification about pets is similar: (1) to assure proper rehabilitation of defendant, and (2) to protect the probation officer. We believe knowledge of pets is a prerequisite to the search condition, which ensures that defendant is complying with his sentence and is not reoffending. (See People v. Bravo (1987) 43 Cal.3d 600, 610 [holding that probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers].) The implied power of the probation officer regarding both cohabitants and pets is also the same: Notification of pets implies a probation officers authorization to exclude certain pets or direct the care of the pets (i.e. keeping them contained) in order to allow searches. Again, this does not authorize capricious exclusions but allows directives that further the rehabilitation of defendant. Significantly, defendant does not challenge the portion of the probation condition that required him to keep the probation officer informed of his cohabitants. This condition serves the salutary, rehabilitative purpose of preventing defendant from associating with those who might lead him 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 his pets as it is to require him to report all of his cohabitants. Condition No. 7 is valid, as it protects the probation officer and allows him or her to oversee defendant for future criminality.

B. Field Interrogation Condition

At sentencing, defense counsel also objected to probation condition No. 17, 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 and overbroad. The court denied the request to strike this condition.

Defendant contends on appeal that probation condition No. 17 is unreasonable, violates his constitutional right against self-incrimination, and is overbroad. We disagree.

As described, ante, 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 1114, 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 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.) 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 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 his probation. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality. A condition allowing field interrogations may further dual purposes of deterring future offenses by the probationer and ascertaining whether he is complying with the terms of his probation. The purpose of an unexpected, unprovoked field interrogation of defendant is to ascertain whether defendant is complying with the terms of probation â€‘‑ to determine not only whether he disobeys the law, but also whether he 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 743, 752.)

Although the field interrogation probation condition forbids defendant from doing something that is not in itself criminal, that is, ignore his 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 his 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 the crime of assault with a deadly weapon, to wit, a motor vehicle, and false imprisonment. He was on five grants of summary probation and a grant of felony probation at the time he committed the instant offense. In addition, he had a proclivity to commit crimes, including burglary, driving without a drivers license or with a suspended license, inflicting corporal injury on a spouse/cohabitant, driving under the influence, committing false imprisonment, and disobeying court orders. We believe the field interrogation condition is necessary to help reform defendant by discouraging him from repeatedly committing crimes or concealing future criminality and to ensure that defendant remains in compliance with probation. The field interrogation term is reasonably related to defendants future criminality.

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 his 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 his Fifth Amendment right of self-incrimination. We find no constitutional violation.

Defendant is not an ordinary citizen. He is a convicted felon who has been granted the privilege of probation. In fact, considering defendants horrendous criminal record, defendant is quite lucky to be on 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 [probation condition prohibiting the defendant from active participation in demonstrations following his conviction of assault at a college demonstration was reasonable], overruled on other grounds in People v. Welch, supra, 5 Cal.4th 228, 237; 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 his 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 his constitutional right to remain silent is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state and his reform and rehabilitation while merely requiring him to submit to and cooperate in a field interrogation. Defendant still retains his 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 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 [104 S.Ct. 1136, 79 L.Ed.2d 409] (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 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.) 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.

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 he 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 him unnecessarily. 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 officers questions truthfully, unless he asserts the privilege, it does not violate his right not to incriminate himself. 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 his 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. 9, requires defendant to [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. (Italics added.) Condition No. 4, requires defendant to [c]ooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer. Condition No. 15 forbids defendant from associating with known convicted felons or anyone actively engaged in criminal activity. Likewise, condition No. 16 prohibits defendant from associating with known illegal users or sellers of controlled substances.

Defendant recognizes that under Murphy a probation condition which merely requires a probationer to be truthful does not violate a persons right against self-incrimination. (Murphy, supra, 465 U.S. at p. 436.) The condition here is similar. The obligation to cooperate entails the general obligation to appear and to answer questions truthfully, just as in Murphy and Davis, supra, 242 F.3d 49. Defendant is constrained by the condition from doing something which is otherwise lawful, i.e., he may not simply ignore his interrogator and walk away (United States v. Mendenhall, supra, 446 U.S. at p. 553), but it is integral to the purposes of probation as described in 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 his probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria.

To the extent defendant relies on United States v. Saechao (9th Cir.2005) 418 F.3d 1073 (Saechao), that reliance is misplaced. In Murphy, supra, 465 U.S. 420, the United States Supreme Court held that the probation condition that a defendant be truthful with his probation officer in all matters was constitutional because it only proscribed false statements. (Id. at p. 436.) There was nothing in the probation condition that compelled the defendant to answer all questions; the defendant was only required to be truthful if he chose to answer his probation officers questions. (Ibid.) In contrast, the probation condition in Saechao explicitly stated that the defendant must promptly and truthfully answer all reasonable inquiries during a field interrogation. (Saechao, at p. 1075, italics added.) The Ninth Circuit held that this probation condition was unconstitutional because, [n]ot only was [the defendant] required to be truthful to his probation officers, but he was expressly required, under penalty of revocation, to promptly . . . answer all reasonable inquiries. (Id. at p. 1078.) The court held that this condition violated the Fifth Amendment because, unlike the condition in Murphy, the probationer was not permitted to invoke the privilege against self-incrimination without jeopardizing his supervised release. (Saechao, at p. 1078.)

Here, defendant is not subject to a condition like the one found impermissible in Saechao requiring him to answer all reasonable inquiries; he is subject to a condition like the one found permissible in Murphy, bearing the implied general obligation to be truthful in his answers. If asked a question the answer to which is likely to incriminate him, he is free to invoke his Fifth Amendment privilege and refuse to respond.

Additionally, as explained above, interrogation inherently means questions related to seek solution of [a] crime. (See Blacks Law Dict., supra, 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 probation, i.e., future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. This limitation is implicit in the language of the probation condition, and may stand without modifying the language of the condition. Moreover, pursuant to this decision, we hold that a probationer may not be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions, where those questions are unrelated to the conduct of the probationer.

In summary, we note that the limitation on defendants liberty is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state â€‘‑ his reform and rehabilitation â€‘‑ while requiring him merely to submit to and cooperate in a field interrogation. 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:

McKINSTER

Acting P.J.

MILLER, J., Concurring and Dissenting:

I respectfully dissent from the majoritys conclusion that the court did not abuse its discretion in denying defendants objection to the term pets contained in 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 his 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 he 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 officers report.

^[3] We note that this issue is currently pending before the Supreme Court. (People v. Olguin (Dec. 15, 2006, E039342) review granted Mar. 21, 2007, S149303; People v. Lopez (Nov. 30, 2006, E039251) review granted Mar. 21, 2007, S149364.)

^[4] 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.