Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. FSB055066, Donna G. Garza and John M. Martin, Judges.
Jean Ballantine, 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.
OPINION
HOLLENHORST , Acting P.J.
Appellant and defendant Andrew James Rodriguez pled guilty to one count of receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted that he committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) The court granted probation for a period of three years, subject to certain terms and conditions. On appeal, defendant argues that some of the probation conditions are invalid and unconstitutional as applied to him. We disagree and affirm.
All further statutory references will be to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation officer’s report.
On February 2, 2006, a police officer observed a car drive past his patrol car. The occupants of the car made eye contact with the officer and then immediately ducked down and rolled through an intersection. The officer followed the car and noticed that the car registration had expired. The officer conducted a traffic stop. The driver was Paulette Bazaura, and the passenger was defendant. The officer asked both of them for identification. The officer ran a records check and discovered that defendant was a West Side Verdugo gang member. The officer searched defendant and found a screwdriver in his pant pocket. Bazaura gave the officer permission to search the car. He found a glass methamphetamine pipe, a white piece of plastic with a substance consistent with marijuana on it, a handgun, and a plastic baggie containing a crystalline substance consistent with methamphetamine. The officer checked the serial numbers on the gun and discovered that it had been stolen. The gun had a live round in the chamber. Defendant admitted to being an active gang member and admitted the methamphetamine was his. He denied the gun belonged to him.
Defendant was charged with possession of a controlled substance with a firearm (§ 11370.1, subd. (a)), receiving stolen property (§ 496, subd. (a)), and possession of a loaded firearm by an active gang member (§ 12031, subd. (a)(1)). A gang enhancement allegation was alleged as to each count. (§ 186.22, subd. (b)(1)(A).)
On August 2, 2006, defendant entered a plea bargain; he pled guilty to receiving stolen property and admitted the gang enhancement allegation. The two other charges and related gang enhancement allegations were dismissed. The plea bargain stated that defendant would serve 180 days in custody, that he would be placed on three years probation, and that he would be subject to terms and conditions as determined by the probation department, including gang terms. Furthermore, on the day of the plea, defendant, his counsel, and the prosecutor, signed a form entitled “Additional Gang Probation Terms.” This form stated: “As part of the plea, the Defendant agrees to the following terms and conditions of probation. The Defendant understands that the following list is not exclusive. Other terms and conditions may be recommended by probation and added by the court at the time of sentencing.” The three conditions that defendant complains of on appeal were listed on this form.
At the sentencing hearing on September 6, 2006, defendant asked the court to strike certain conditions, including two of the conditions complained of on appeal. The court denied the requests.
ANALYSIS
I. Defendant Failed to Obtain a Certificate of Probable Cause
Defendant claims that the trial court abused its discretion in imposing probation conditions that he: 1) “[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night,” (the field interrogation condition); 2) “not possess or have under [his] control any aerosol paint containers, permanent markers or etching devices”; and 3) “[n]ot associate with known convicted felons or anyone actively engaged in criminal activity.” The People point out that defendant failed to obtain a certificate of probable cause. Thus, since the conditions defendant complains of were explicitly made part of the plea agreement, the appeal should be dismissed.
Section 1237.5 requires defendants to obtain a certificate of probable cause from the trial court before an appeal from a judgment of conviction upon a plea of guilty or no contest can be made. (People v. Panizzon (1996) 13 Cal.4th 68, 74.) California Rules of Court, rule 8.320(d), provides an exception when an appeal goes to postplea sentencing matters not challenging the validity of the plea. (People v. Panizzon, supra, at p. 74.) The California Supreme Court has held that “a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself.” (Id. at p. 79, italics added.) Therefore, it is incumbent upon a defendant to seek and obtain a probable cause certificate in order to attack such sentence on appeal. (Ibid.) In the instant case, it is undisputed that defendant failed to obtain a certificate of probable cause.
Defendant claims that the specific probation conditions challenged on appeal “were imposed after the plea and were never understood by the parties to be an integral part of the guilty plea.” The record belies this claim. On the day of the plea, defendant, his counsel, and the prosecutor, signed a form entitled “Additional Gang Probation Terms,” which was attached to the plea agreement. This form explicitly stated: “As part of the plea, the Defendant agrees to the following terms and conditions of probation. The Defendant understands that the following list is not exclusive. Other terms and conditions may be recommended by probation and added by the court at the time of sentencing.” (First italics added.) The three conditions that defendant complains of on appeal were listed on this form. Given that the parties signed this form indicating that defendant agreed to the probation conditions at issue, defendant cannot now complain of them. The record reflects that they were part of the plea.
Assuming arguendo that the conditions were not actually accepted as part of the plea agreement, we conclude that defendant’s claims fail.
II. The Field Interrogation Condition Is Valid
Defendant contends 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 the day or night,” is overbroad and not tailored to meet his rehabilitative needs. He complains that the field interrogation condition contains no limitation on the types of questions he is required to answer; thus, he could be required to answer incriminating questions, and thereby have to waive his Fifth Amendment right against self-incrimination. We disagree.
Pursuant to section 1203.1, “the sentencing court has broad discretion to prescribe reasonable probation conditions to foster rehabilitation and to protect the public so justice may be done. [Citations.]” (People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) While a probationer retains rights of privacy and liberty under the federal Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237), probation conditions may nevertheless place limits on constitutional rights if necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941.) Furthermore, as previously stated, “[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 or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)
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 probation or disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [the purpose of an unexpected search is to determine not only whether parolee disobeys the law, but also whether he 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, and with the benefit of probation comes the burden of a search term, which can be used as a correctional tool].) The threat of an unexpected interrogation is fully consistent with the deterrent purposes of the field interrogation condition. (People v. Reyes, supra, 19 Cal.4th at p. 752.)
Here, the field interrogation condition will provide practical, on-the-street supervision of defendant. A field interrogation will be useful to monitor his compliance with his other probation conditions. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality. In other words, the condition provides officers with a means of assessing defendant’s 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. (Lent, supra, 15 Cal.3d at p. 486.)
Defendant claims that the field interrogation condition infringes upon his Fifth Amendment right against self-incrimination since he is required to answer “any and all questions” by a peace officer, even if he believes his answer will be incriminating. This claim is speculative and unsupported. The field interrogation condition does not compel him to make incriminating disclosures, and it contains no language threatening to revoke his probation if he asserts the privilege against self-incrimination. The condition merely requires him to “[s]ubmit to and cooperate in a field interrogation by any peace officer.” Moreover, 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 [finding no realistic threat of having the defendant’s probation revoked in a requirement to “cooperate” with the probation officer].) Thus, 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, 434.)
Furthermore, law enforcement officers may not ask harassing questions that have no relation to the crime for which defendant is under supervision, as defendant claims. 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, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128, 130.) In any event, as discussed above, defendant is not required to forgo his right to decline to answer particular questions. (Minnesota v. Murphy, supra, 465 U.S. at p. 434.)
III. The Condition Prohibiting Defendant from Possessing Aerosol Paint Is Valid
Defendant contends that the probation condition that he not possess aerosol paint, permanent markers, or etching devices is overbroad and not narrowly drawn to him. We disagree. This condition is valid because it is reasonably related to defendant’s future criminality.
“Prohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) Furthermore, “probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders . . . . The path from gang associations to criminal gang activity is open to adults as well as to minors.” (Id. at p. 625.) Moreover, the federal courts “have found curtailments of an adult probationer’s associations with specified groups to be proper where such restrictions serve a rehabilitative purpose, even where the crime in issue was not shown to have been group related. [Citations.]” (Ibid.)
Defendant’s probation report disclosed that he admitted membership in the West Side Verdugo gang. Furthermore, he openly admitted that his offense was committed for the benefit of a gang. In addition, defendant has a long history of juvenile and adult offenses. He has sustained convictions for assault with a deadly weapon (§ 245, subd. (a)(1)), possession of a firearm by a minor (§ 12101, subd. (a)(1)), possession of less than one ounce of marijuana (Health & Saf. Code, § 11357, subd. (b)), receiving stolen property (§ 496, subd. (a)), possession of a controlled substance for sale (Health & Saf. Code, § 11378), and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). Given that the current crime was gang-related, and given defendant’s consistent pattern of criminal behavior, the court was warranted in its conclusion that defendant’s “disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation because it would insulate him from a source of temptation to continue to pursue a criminal lifestyle. [Citations.]” (People v. Lopez, supra, 66 Cal.App.4th at p. 626.) Specifically, condition No. 27 prohibits defendant from possessing aerosol paint, markers, or etching devices—materials used by gang members to mark their territory or vandalize property.
Defendant argues that this condition bears no relationship to his offense, and it impinges on his ability to work at certain jobs that may require him to use a permanent marking pen or stock aerosol paints (i.e., at Home Depot). We note that defendant does not have a constitutional right to obtain a certain job. In any case, we conclude that this condition is valid because it is reasonably related to future criminality since it helps defendant to disassociate himself from gang-related activities. (People v. Bauer, supra, 211 Cal.App.3d at pp. 940-941; Lent, supra, 15 Cal.3d at p. 486.)
IV. The Probation Condition Prohibiting Defendant from Associating with “Anyone Actively Engaged in Criminal Activity” Is Valid
Defendant argues that the probation condition that he “[n]ot associate with known convicted felons or anyone actively engaged in criminal activity” is constitutionally overbroad. He specifically contends that the second portion of this condition prohibiting him from associating with “anyone actively engaged in criminal activity” is not narrowly drawn because it limits his association with persons not known to him to be actively participating in criminal activity. We disagree.
Defendant claims that prohibiting association with persons actively engaged in criminal activity without restricting the prohibition to persons known to be so engaged is a “classic case of vagueness.” Far from being a “classic” instance of constitutional vagueness, however, we think the element of knowledge is implied in the condition, especially when the condition is read as a whole. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.) Furthermore, a probation term should be given “the meaning that would appear to a reasonable, objective reader.” (People v. Bravo (1987) 43 Cal.3d 600, 606.) Thus, to the extent that the element of knowledge might not be implied in the condition, we are confident that the trial court will impose such a limiting construction on the condition by inserting a knowledge requirement, should it be alleged that defendant violated this condition. (Ibid.)
In a supplemental letter brief, defendant contends that we should insert an explicit knowledge requirement, pursuant to the recent case of In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.). Sheena K. has no effect on the conclusion that this appeal should be dismissed since defendant failed to obtain a certificate of probable cause. Furthermore, Sheena K. is distinguishable.
Sheena K. involved a minor who was placed on probation, subject to the condition that she not “associate with anyone ‘disapproved of by probation.’” (Sheena K., supra, 40 Cal.4th at p. 890.) On appeal, the minor asserted that the condition was unconstitutionally vague and overbroad because it failed to specify that she know which persons were disapproved of by her probation officer. (Ibid.) The Supreme Court held that absent a knowledge requirement, the condition was unconstitutionally vague, noting the reasoning that “‘because of the breadth of the probation officer’s power to virtually preclude the minor’s association with anyone,’ defendant must be advised in advance whom she must avoid.” (Id. at p. 890.) Whether or not a person was or was not disapproved of by the probation officer was not discernable, but required knowledge of the probation officer’s opinion.
In the instant case, defendant’s probation condition prohibits him from associating with known convicted felons or “anyone actively engaged in criminal activity.” A reasonable reading of this condition indicates that defendant is required to refrain from associating with people who are known to be engaged in criminal activity. In contrast to the condition in Sheena K., in which the people whom the minor was required to avoid was not discernable, this condition requires defendant to avoid people actively engaged in criminal activity, which is observable or discernable.
We conclude that the probation condition, as written, is valid.
DISPOSITION
The judgment is affirmed.
I concur: MILLER J.
KING, J., Concurring.
I concur with the result and with the majority’s discussion of defendant’s failure to obtain a certificate of probable cause. As argued by the Attorney General, I would dismiss the appeal.
In that defendant did not obtain a certificate of probable cause, I do not feel it necessary to discuss the other issues raised by defendant.