Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Carlos P. Baker, Jr., Judge. (Retired Judge of the Justice Ct. for the former Corcoran Jud. Dist. Assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. FSB047383
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Manuel Ruben Gallegos appeals from his conviction of grand theft by embezzlement. (Pen. Code, § 487, subd. (a).) His sole contention on appeal is that the probation condition that requires him to “[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of day or night” violates his Fifth Amendment privilege against self-incrimination and therefore must be stricken. We find no error, and we affirm.
All further statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant’s appeal concerns solely the validity of a condition of probation, and a detailed recitation of the facts is unnecessary to the resolution of that issue. In brief, after defendant left his employment as the manager of a check cashing business, , the business discovered that three company checks totaling $7,400 had been cashed on separate dates. The checks, which had been taken out of order, were made out to defendant, and the signatures on the checks were defendant’s. Defendant had access to the accounts, but he had not accounted for the three checks that were out of order. Although defendant denied his guilt, the jury found him guilty of grand theft by embezzlement. (§ 487, subd. (a).)
The trial court sentenced him to three years of probation on various conditions, including that he “[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night.” Defendant objected to the condition on the ground that it required him to give up his Fifth Amendment privilege against self-incrimination, but the trial court overruled the objection.
III. DISCUSSION
A. The Interrogation Condition Need Not Be Stricken
“[P]robationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.”’ [Citation.] Just as other punishments for criminal convictions curtail an offender’s 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 [151 L.Ed.2d 497].) Thus, a probationer may be subject to limitations on personal liberty to protect society and to monitor rehabilitation. (See People v. Nelson (1972) 8 Cal.3d 463, 466.) A grant of probation may include “any . . . reasonable conditions, as [the trial court] may determine are fitting and proper to the end that justice may be done. . . . and generally and specifically for the reformation and rehabilitation of the probationer. . . .” (§ 1203.1, subd. (j).)
A condition of probation will be deemed invalid as an abuse of discretion only 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.] 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, fn. omitted (Lent), superseded on another ground by Proposition 8 as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295.) This court will not find an abuse of discretion in the imposition of a probation condition unless the trial court’s decision was “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.)
Here, the field interrogation condition satisfies the factors set forth in Lent, supra, 15 Cal.3d 481, because the terms of the condition relate to future criminality and amenability to rehabilitation. Courts have upheld a similar standard probation or parole condition requiring the parolee or probationer to submit to warrantless searches because the condition can be used to determine whether the defendant is complying with the other terms of his probation or is disobeying the law. (See People 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]; see also People v. Adams (1990) 224 Cal.App.3d 705, 712.)
Similarly, a field interrogation condition that permits a probation officer or other law enforcement officer to question a probationer at any time is a deterrent to future criminality and a strong incentive to comply with any and all probation conditions. Thus, the field interrogation condition furthers the dual purposes of deterring and detecting future offenses by defendant and ensuring that he is complying with the terms of his probation.
Defendant argues, however, that under United States v. Saechao (9th Cir. 2005) 418 F.3d 1073, 1078 (Saechao), the field interrogation condition was invalid because it violates the Fifth Amendment. 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 answers might incriminate him in future criminal proceedings.’ [Citation.]” (Minnesota v. Murphy (1984) 465 U.S. 420, 426 [79 L.Ed.2d 407] (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.) However, 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 Murphy, supra, 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. (Murphy, supra, 465 U.S. at p. 426.) As a condition of his probation, the defendant was under a legal compulsion to attend meetings with a probation officer, and 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 defendant’s] 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. (Murphy, supra, at p. 437.) 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 Saechao, in contrast, the court held that a probation condition that “compelled [the defendant] to answer ‘all reasonable inquiries’” was invalid when “[f]ailure to answer . . . would have justified the revocation of his probation.” (Saechao, supra, 418 F.3d at p. 1078.) We find Saechao distinguishable, however, in that the condition defendant challenges in the instant case requires only that defendant “cooperate in” a field interrogation, not that he “answer all reasonable inquiries” and provide a “prompt and truthful answer.” (Id. at pp. 1078, 1080.) And nothing in the challenged condition suggests that invocation of the Fifth Amendment privilege might lead to revocation of probation.
Rather, on its face, defendant’s field interrogation condition is no more burdensome than the general probation conditions the Supreme Court found acceptable in Murphy, supra, 465 U.S. 420, which required the defendant to meet with his probation officer and be truthful in all matters. Nothing on the face of the current probation condition 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 that could incriminate him in another crime.
B. The Condition Need Not Be Modified
Defendant next contends that if we decline to strike the interrogation condition, we should nonetheless modify it to inform him explicitly that he has the right to remain silent. As discussed above, although defendant must cooperate with the police, he retains his right to assert his Fifth Amendment privilege, and his probation cannot be revoked based on a valid exercise of that right. (Murphy, supra, 465 U.S. at p. 434.) The probation condition does not abrogate the requirement that constitutional advisements be given before a custodial interrogation. Moreover, field interrogations under the probation condition may not be arbitrary, capricious or harassing. (See People v. Woods (1999) 21 Cal.4th 668, 691.) However, the extraordinary safeguard of an express warning about the right to remain silent is not required outside the context of inherently coercive custodial interrogations. (Miranda v. Arizona (1966) 384 U.S. 436, 478-479 [16 L.Ed.2d 694].) In the event of such custodial interrogation, defendant would be informed of his right to remain silent, but the probation condition need not inform defendant of that right in the abstract.
IV. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., RICHLI, J.