P. v. Hernandez-Perez

Filed 3/28/07 P. v. Hernandez-Perez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. William Jefferson Powell IV, Judge. Affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch and Scott C. Taylor, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Telesforo Hernandez-Perez appeals following his guilty plea to a single count of unlawfully driving or taking of a vehicle. Defendants sole contention on appeal is that a condition of his probation requiring him to submit to and cooperate in field interrogations violates his Fifth Amendment right against self-incrimination. He argues the condition should be stricken or modified to include an express exception allowing him to invoke the Fifth Amendment where appropriate.

Factual and procedural history

Defendant was arrested when he was discovered driving a truck which had been reported stolen one year earlier.^[1] Defendant pled guilty to unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a), and was sentenced to 180 days in custody and three years of probation. Although making some objections, defendant indicated a willingness to comply with a number of standard probation conditions, including the field interrogation condition which is challenged in this appeal.

Discussion

Condition No. 18 of defendants probation requires him to [s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night. Defendant argues this condition is unconstitutional because it undermines his Fifth Amendment privilege against self-incrimination by creating a penalty situation which is indistinguishable from the one found unconstitutional by the Ninth Circuit in United States v. Saechao (9th Cir. 2005) 418 F.3d 1073 (Saechao).^[2] According to defendant, condition No. 18 of his probation creates the same penalty effect as the probation condition in Saechao because it reasonably could be interpreted to mean his probation could be revoked if he refuses to answer a question on Fifth Amendment grounds. We disagree.

Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. [Citation.] Just as other punishments for criminal convictions curtail an offenders freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. (United States v. Knights (2001) 534 U.S. 112, 119 (Knights).) In this regard, trial courts are given broad discretion under Penal Code section 1203.1 to impose reasonable conditions of probation 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. (Id., subd. (j).) The California Supreme Court has held: A condition of probation will not be held invalid [as an abuse of discretion] 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.] Conversely, 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. (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.) An abuse of discretion will not be found unless a trial courts decision is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. [Citations.] [Citation.] (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

In our view, the field interrogation condition satisfies the factors set forth in Lent because the terms of the condition relate to future criminality and amenability to rehabilitation. The field interrogation condition is like the standard probation search condition because it can be used to determine whether defendant is complying with the other terms of his probation or is disobeying the law. (SeePeople v. Reyes (1998) 19 Cal.4th 743, 752 [acknowledging unexpected searches can be useful to determine whether parolees are complying with conditions of parole and can provide a valuable measure as to the effectiveness of parole supervision].) Similar to the threat of a warrantless search, the ability of a probation or other 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 any and all probation conditions. (SeePeople 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 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].)

A probation condition can also be invalid based on constitutional considerations. For example, the appellate court in People v. Hackler (1993) 13 Cal.App.4th 1049, 1058, concluded a probation condition was unconstitutionally overbroad because it was not narrowly drawn or reasonably related to a compelling state interest in reformation and rehabilitation. Although defendant uses the term overboard [sic] a number of times in his briefing, he does not argue the field interrogation condition is unconstitutional because it is not reasonably related to a compelling state interest in reformation and rehabilitation. Rather, his argument is that the field interrogation condition could be interpreted broadly enough to foreclose the right to claim the Fifth Amendment privilege against self-incrimination.

The Fifth Amendment permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, and also privileges him not to answer official questions put to him in any other proceeding . . . where the answer might incriminate him in future criminal proceedings. (Minnesota v. Murphy (1984) 465 U.S. 420, 426 (Murphy).) Except in certain well-defined situations, such as custodial interrogations, a witness confronted with incriminating questions must assert the privilege or his answers will be considered voluntary and may be used against him. (Id. at pp. 429-430.) The privilege is not lost when a defendant is on probation. (Id. at p. 426.) As a result, a state cannot constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege. (Id. at p. 438.) According to the Supreme Court in Murphy, a probation condition is not invalid under the Fifth Amendment unless there is a reasonable basis for concluding it attaches an impermissible penalty to the exercise of the privilege. (Id. at pp. 436-437.)

In the seminal case of Murphy, supra, 465 U.S. 420, the defendant argued his Fifth Amendment privilege was violated when incriminating statements he made to his probation officer were used against him at his trial for another crime. (Id. at p. 426.) As a condition of his probation, the defendant was under a legal compulsion to attend meetings with a probation officer. He was informed that he was required to be truthful with his probation officer in all matters and that failure to do so could result in revocation of probation. (Id. at p. 436.) The United States Supreme Court held these conditions were insufficient to excuse [the defendants] failure to exercise the privilege in a timely manner. (Id. at p. 437.) The Supreme Court reasoned the conditions of probation did not on their face say anything even suggesting probation was conditioned on the defendant waiving the Fifth Amendment privilege. (Ibid.) Nor was there any direct evidence the defendant was expressly informed during the crucial meeting . . . that an assertion of the privilege would result in the imposition of a penalty. (Id. at p. 438.) Finally, there was no evidence the defendant gave incriminating statements to the probation officer because he feared his probation would be revoked if he asserted the privilege. (Id. at p. 437.) As a result, the Supreme Court concluded there was no Fifth Amendment violation. (Id. at p. 440.)

In the contrasting case of United States v. Saechao, supra, 418 F.3d 1073, the Ninth Circuit concluded there had been a violation of the Fifth Amendment, and upheld the trial courts suppression of incriminating statements made by a probationer to his probation officer. (Id. at p. 1081.) The Ninth Circuit concluded the probation condition at issue violated the probationers Fifth Amendment privilege by creating a classic penalty situation. (Id. at p. 1074.) The probationer was compelled as a condition of his probation to promptly and truthfully answer all reasonable inquiries. (Id. at p. 1079.) The Ninth Circuit reasoned as follows: The condition did not simply require a prompt statement of some kind ‑‑ such as a statement setting forth a reason for not answering the question. Rather, the condition expressly requires an answer to the question being asked. A verbal invocation of the right to remain silent followed by the act of not responding to incriminating questions is, by definition, not answering a question. A refusal to answer, even if it could somehow be called an answer, constitutes neither a truthful nor an untruthful response. It is non-substantive in nature. For that reason alone, invoking the privilege, asking for clarification, or seeking legal advice, could not satisfy the requirement for a prompt and truthful answer. (Id. at p. 1080.)

Here, we find no reasonable basis for concluding condition No. 18 requiring defendant to submit to and cooperate in a field interrogation by any peace officer places an impermissible penalty or burden on defendants Fifth Amendment privilege against self-incrimination. On its face, this condition is no more burdensome than the general probation conditions found acceptable by the Supreme Court in Murphy, supra, 465 U.S. 420, which required the defendant to meet with his probation officer and be truthful in all matters. Contrary to defendants argument, condition No. 18 is distinguishable from the probation condition at issue in Saechao, which could only be satisfied by a prompt and truthful answer. Unlike the condition at issue in Saechao, condition No. 18 does not expressly require defendant to provide a substantive or truthful answer to any and all questions in the event he is subjected to a field interrogation. Nothing on the face of condition No. 18, either expressly or by implication, suggests defendant would be considered insufficiently submissive or uncooperative to a peace officer in the field if he were to invoke his Fifth Amendment privilege in the event he is questioned about a matter which could incriminate him in another crime.

We are also unconvinced by defendants argument condition No. 18 is ambiguous and should be modified to include an express exception for the invocation of the Fifth Amendment. First, as the Supreme Court reiterated in Murphy, supra, 465 U.S. at p. 430, the extraordinary safeguard of an express warning about the right to be silent is not required outside the context of inherently coercive custodial interrogations. Under Miranda v. Arizona (1966) 384 U.S. 436, 478-479, defendant is protected should any custodial interrogation follow a field interrogation. However, unless the facts of particular circumstances establish a probationer is in custody . . . for purposes of receiving Miranda protection, an express warning about the right to remain silent is unnecessary. (Murphy, supra, 465 U.S. at p. 430.)

Second, a probation condition satisfies the demands of due process if it is sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated. (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) A violation need only be described with a reasonable degree of certainty. . . so that ordinary people can understand what conduct is prohibited.. . .  [Citation.] [Citation.] (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018.) Defendant merely speculates without support that the field interrogation condition as worded is ambiguous and reasonably could be interpreted to foreclose his right to claim the Fifth Amendment privilege. In our view, condition No. 18 is sufficiently precise to advise defendant what is required of him should he be approached and questioned by a peace officer while he is on probation and to allow the court to determine if a violation of the condition has occurred. Based on the common understanding of the terms submit to and cooperate in, it would be unreasonable to interpret condition No. 18 as foreclosing a valid invocation of the Fifth Amendment in response to questions asked by a peace officer in the field.

Third, [o]ral advice at the time of sentencing [affords] 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. (People v. Bravo (1987) 43 Cal.3d 600, 610, fn.7) At the time he accepted the conditions of his probation, defendant did complain in a conclusory manner that condition No. 18 was unconstitutional and overbroad, but he made no objection based on ambiguity and did not seek clarification of the condition. As a result, he waived any such objection. (Ibid.)

We must also reject defendants conclusory and speculative argument that the field interrogation condition is invalid because it could possibly be interpreted to allow a police officer to awaken [defendant] . . . in the middle of the night or to appear at defendants workplace to demand an interrogation on a subject that is not imminently important and for unlimited duration, thereby subjecting him to harassing, arbitrary, or capricious interrogations. Based on these particular possibilities, defendant would have us modify the condition to only require him to participate in a reasonable field interrogation. We find such a modification unnecessary because in our view it would be unreasonable to interpret the condition broadly enough to allow law enforcement officials to barge into defendants home or work to question him arbitrarily or unnecessarily. Probationers are not without some constitutional protections against unreasonable or arbitrary conduct by governmental officials. (See, e.g., Knights, supra, 534 U.S. 112 [finding a warrantless search authorized by a probation condition satisfied the Fourth Amendment because it was supported by reasonable suspicion]; People v. Clower (1993) 16 Cal.App.4th 1737, 1741 [indicating parole and probationary searches may not be conducted arbitrarily to harass a defendant or for purposes unrelated to proper supervision].)

Finally, defendants argument is essentially that the field interrogation condition is invalid as written because it possibly could be enforced by government officials in an arbitrary manner in his particular case. In our view, this argument is premature. As a general rule, reviewing courts do not adjudicate hypothetical claims or render purely

advisory opinions in the absence of an adequate factual record. (People v. Slayton (2001) 26 Cal.4th 1076, 1084.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

RICHLI

J.

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^[1] A detailed discussion of the facts of the underlying offense is not necessary to the determination of the issues on appeal.

^[2] On federal constitutional questions, of course, the decisions of the Supreme Court of the United States control, while the decisions of lower federal courts are persuasive but not controlling. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, quoting People v. Camacho (2000) 23 Cal.4th 824, 837.)