Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA801087, Stephan G. Saleson, Judge.
Valerie G. Wass, 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, Assistant Attorney General, Barry J.T. Carlton, Scott C. Taylor, and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant, Daniel Angulo, pled guilty to having a concealed firearm on his person (Pen. Code, § 12025, subd. (a)(2). He was granted probation and appeals, claiming certain changes need to be made to some of the conditions of his probation. We variously agree and disagree with his contentions and affirm the judgment, while ordering the trial court to make certain changes in those terms and in the order for a probation revocation restitution fine. The facts concerning defendant’s crime are irrelevant to this appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
Procedural History and Issues
On June 18, 2008, defendant was arraigned on a complaint, which alleged the above-mentioned crime, along with an allegation that it was committed for the benefit of a street gang (§ 186.22, subd. (b)(1)(A)). At his next court appearance, on June 26, 2008, he entered into a plea bargain. In exchange for his guilty plea, the gang allegation was to be dismissed and defendant was to be granted probation. Also, as part of the plea bargain, defendant agreed, inter alia, to “gang terms and conditions” for his probation and to waive his right to appeal from the judgment because he was getting the benefit of his bargain. Defendant told the probation officer who interviewed him for the probation report that he was “willing to comply with the terms and conditions of his probation.” The report lists as two such conditions that defendant “[n]ot display any gang hand signs” and that he “[n]ot wear, display or have in [his] possession any item associated with gang dress or any item prohibited by the probation officer including[,] but not limited to[,] any insignia, emblem, button, badge, cap hat, scarf, bandanna or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang.” At the sentencing hearing, defense counsel acknowledged that she had received a copy of the probation report. The sentencing court noted that it had received the probation report “replete with gang terms[.]” Defense counsel objected to seven of the terms listed in the probation report, but not the two stated above. The sentencing court struck three of the terms, modified one and left the three remaining ones as they were originally stated. Defendant then said that he had reviewed the terms and conditions of his probation with his attorney and he understood them. The court noted that defendant had agreed to the terms and conditions of probation as stated, with modifications, in the probation report and it imposed them. Defendant did not thereafter move to have his guilty plea withdrawn, nor did he obtain a certificate of probable cause.
Although defendant cites the conditions as they appear in the minutes for the sentencing hearing, in granting probation, the sentencing court said, “The terms and conditions of probation as recommended and modified in the probation report, agreed to by [defendant]... will now be ordered effective today’s date....” We note that the terms stated in the minutes of the sentencing hearing differ in at least one respect from those stated in the probation report. (The minutes do not contain the modification of the alcoholic beverage condition imposed by the sentencing court.) We will order the trial court to amend the minutes to either state exactly the terms as they are stated in the probation report or to incorporate the latter by reference in the minutes and attach thereto a copy of the terms as stated in the probation report.
We state these facts only because defendant had notice precisely of the conditions to which he now objects and should have, in the interests of judicial economy, objected to them at the sentencing hearing as he did to other conditions instead of waiting to do so for the first time on appeal.
He now claims that the above-stated terms are unconstitutionally vague and should be modified to include a knowledge requirement, i.e., that he may not knowingly display any gang hand symbols and he may not knowingly wear, display or have in his possession any item associated with gang dress or any item prohibited by the probation officer. The People assert that both conditions imply a knowledge requirement when read in context with another condition which prohibits defendant from “associat[ing] with known gang members or frequent[ing] places of known gang activity.” At the same time, the People acknowledge the holdings in People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez) and Vincent G., supra, 162 Cal.App.4th 238. In Lopez, the condition that defendant not “wear or possess[] any item of identified gang clothing... nor... display any gang insignia, moniker, or other markings of gang significance... as may be identified by [l]aw [e]nforcement or the Probation Officer” (Lopez, at p. 622) was deemed unconstitutionally overbroad “because it prohibits [defendant] from displaying indicia not known to him to be gang related” (id. at p. 629) and violative of the rule that a “condition ‘must be sufficiently précise for the probationer to know what is required of him’ [citations]” (id. at p. 634) because it did not require law enforcement or defendant’s probation officer to apprise defendant of the identified prohibited items. The appellate court modified the condition to read that defendant could not wear or possess any item of gang clothing “known to be such by defendant” nor display any gang insignia, moniker or other markings of gang significance “known to be such by defendant.” (Id. at p. 624, fn. 5.) In Vincent G., the condition at issue was that the minor “not... possess, wear or display any clothing or insignias, emblems, badges, or buttons which are evidence of affiliation with or membership in a gang or display any gang signs or gestures[.]” (Vincent G., at p. 241, fn. 2.) Holding this was unconstitutionally vague, the appellate court inserted the requirement that the prohibited items be ones that the minor knows or that the probation officer has informed him were evidence of affiliation with or membership in a gang. (Id. at p. 247.)
The appellate court favored the defendant’s argument that a similar condition was unconstitutionally vague over the People’s argument that it implied a knowledge requirement in In re Vincent G. (2008) 162 Cal.App.4th 238, 244 (Vincent G.).
The People offer that if this court is persuaded by the holdings in Lopez and Vincent G. that clarification is needed, it would be appropriate for us to insert a knowledge requirement into this condition. The People do not appear to assert that a knowledge requirement is inappropriate, just that it is arguably unnecessary. Rather than expend more judicial resources on this matter, we will provide explicitly what the People argue was provided implicitly.
In their reply brief, defendant calls our attention to the fact that he is prohibited from displaying gang hand signs in both of the contested conditions. However, since defendant cannot possibly be prejudiced by the inclusion of this provision in both, we will not eliminate the provision from either.
The parties agree that the condition that defendant “[s]ubmit a record of income and expenditures to the Probation Officer quarterly” should be modified to omit the reference to expenditures. Therefore, we will direct the trial court to make this modification.
Certain constitutional rights can be limited in probation where appropriate. (People v. Arvanities (1971) 17 Cal.App.3d 1052, 1063; In re Mannino (1971) 14 Cal.App.3d 953, 968, 969 [overruled on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237]; People v. King (1968) 267 Cal.App.2d 814, 822, 823). As a felon, defendant may be detained and questioned by a police officer without reasonable suspicion. (See Terry v. Ohio (1968) 392 U.S. 1.)
Despite the requirement to cooperate, a probationer is not forbidden from asserting his privilege against self incrimination or declining to answer particular questions and it is not considered inherently uncooperative of a probationer to invoke that privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 429; United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52.) Probation may not be revoked on the basis of a valid invocation of the privilege and a probation condition which requires a defendant to be truthful does not violate the right against self incrimination. (Minnesota v. Murphy, supra, 465 U.S. at pp. 427, 436.)
In People v. Miller (1989) 208 Cal.App.3d 1311, 1315, the appellate court rejected the defendant’s contention that the requirement that he submit to a polygraph at the direction of his probation officer violated his privilege against self incrimination, saying, “The privilege against self incrimination is not self-executing; it must be claimed. [Citation.] Although defendant has a duty to answer the polygraph examiner’s 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... is suffered. [Citation.] The mere requirement of taking the test in itself is insufficient to constitute an infringement on the privilege.”
United States v. Saechao (9th Cir. 2005) 418 F.3d 1073, relied upon by defendant, is distinguishable. There, the condition required the defendant to “‘promptly and truthfully answer all reasonable inquiries’” during a field interrogation. (Id. at p. 1075.) The Ninth Circuit held this was unconstitutional because it expressly required defendant to answer all inquiries under penalty of revocation, which did not allow him to invoke his privilege without jeopardizing his probation. (Id. at p. 1078.) Here, there is no such requirement.
Defendant also contends that the provision that he submit to and cooperate in a field interrogation at any time of the day or night is unconstitutionally overbroad because it subjects him to interrogations which may be unacceptably arbitrary, capricious or harassing. Defendant cites in support of his position Bravo, supra, 43 Cal.3d 600. However, in Bravo, the defendant was not contesting the condition that he submit his person and property to search and seizure any time of the day or night on the basis that the search, pursuant to that provision, had been for purposes of harassment. (Id. at pp. 602-603.) In fact, the California Supreme Court specifically noted that the defendant “made no claim... that the search condition was unreasonable.” (Id. at p. 604.) Rather, he argued that, despite the wording of the condition, there was an implied requirement that any search pursuant to it must be conducted only upon reasonable cause to believe contraband would be located. (Ibid.) Rejecting this, the High Court held that the search condition justified the search that was conducted under it, even absent reasonable cause, noting that defendant still retained the right to contest the search on the basis that it was done merely to harass him or was done in an unreasonable manner. (Id. at p. 607.) Bravo does not stand for the proposition that a condition that requires a probationer to participate in interrogations must expressly state that those interrogations not be arbitrary, capricious or harassing in order to be valid facially. Nothing in People v. Mason (1971) 5 Cal.3d 759 (Mason) [disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486] and People v. Pointer (1984) 151 Cal.App.3d 1128 (Pointer), although cited by defendant, support his position.
Defendant actually cites the dissent in Mason. (Mason, at p. 768.) The majority upheld, as reasonable, a probation condition providing the defendant must submit to a search and seizure anytime. (Id. at pp. 762, 764.) There was no provision in the condition that the search and seizure must not be arbitrary, capricious or harassing and there was no discussion in the majority opinion about the appropriateness of the absence of such a provision. The lone dissenter concluded that the condition was unreasonable and overbroad. (Id. at p. 769.) He said nothing about arbitrariness, capriciousness or harassment.
Pointer involved the legitimacy of a probation condition that the defendant not conceive another child. (Pointer, at p. 1131.) The appellate court concluded that while the condition was reasonable, it was overbroad in that its goal could be achieved by means less intrusive on the defendant’s right to procreate. (Id. at pp. 1139-1141.) There was no discussion of the provision’s arbitrariness, capriciousness or its potential for harassment.
The parties agree that the condition that defendant “[n]either possess nor consume any alcoholic beverage nor enter places where such beverages are the chief item of sale and submit to tests at the direction of the probation officer” must include the limitation, “until he turns 21.” However, the probation report version of the probation conditions contains such a limitation, and because we are ordering the trial court to either amend the minutes of the sentencing hearing to include this limitation or incorporate by reference the probation report version and attach a copy, no further action by this court is required.
The probation revocation restitution fine is not included in the probation report version of the conditions of probation, although the sentencing court orally imposed one in the amount of $220, which it stayed pending successful completion of probation. Both the probation report version of the conditions of probation and the sentencing court’s oral pronouncement show that it imposed a restitution fine of $200. The parties agree that the probation revocation restitution fine must be the same in amount as the restitution fine, therefore, we will direct the trial court to correct the minutes of the sentencing hearing to show that a probation revocation restitution fine of $200 was imposed.
Disposition
The trial court is directed to amend the minutes of the sentencing hearing to either replicate exactly the conditions of probation as they are listed in the probation report, as amended by the sentencing court, or to incorporate those conditions by reference, with a copy of them attached to the minutes, either, with the following changes: from condition 20, omit the words “and expenditures”; insert in condition 26 the word “knowingly” after “Not” and before “display”; insert in the first line of condition 28 the word “knowingly” after “Not” and before “wear” and in the second line the words, “that you know is” after “item” and before “prohibited.” The trial court is further directed to amend the minutes of the sentencing hearing to show that it imposed a probation revocation restitution fine of $200, which it stayed pending defendant’s successful completion of probation. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.