Opinion
E066789
12-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JUANITA MONEE ROGERS, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. 16CR026690 & BAF1400512) OPINION APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Juanita Monee Rogers pled guilty to unlawful use of an access card with intent to defraud (Pen. Code, § 484g, subd. (a)) and was placed on supervised probation in Riverside County for three years. The following year, pursuant to defendant's request, supervision of defendant's probation was transferred to San Bernardino County where she lived. Upon transfer, the San Bernardino County Probation Department recommended additional terms and conditions of probation. Defendant objected to the new conditions. The San Bernardino County Superior Court (hereafter SBCSC) struck two of the additional terms, but ordered the remaining additional terms be imposed.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends that (1) the SBCSC erroneously imposed additional terms and conditions of defendant's probation because the transfer of probation from Riverside County to San Bernardino County did not constitute a change of circumstances, and (2) the probation condition requiring her to submit to, and cooperate in, field interrogations violates her Fifth Amendment right. We reject defendant's contentions and affirm the judgment.
II
PROCEDURAL BACKGROUND
Because the factual background of defendant's underlying offense is not relevant to the issues on appeal and those details are not part of the record on appeal, we will not include the factual background pertaining to defendant's offense.
On July 18, 2014, the Riverside County District Attorney's Office filed a complaint charging defendant with commercial burglary (§ 459; count 1) and unlawful use of an access card with intent to defraud (§ 484g, subd. (a); count 2).
On June 24, 2015, defendant pled guilty to count 2. In return, count 1 was dismissed and defendant was placed on supervised probation in Riverside County for a period of three years on various terms and conditions, including serving in the Riverside County jail work release program.
The following year, defendant moved to transfer her probation to San Bernardino County where she lived. On February 11, 2016, the Riverside County Superior Court granted defendant's request and transferred supervision of her probation to San Bernardino County pursuant to section 1203.9. On June 29, 2016, the SBCSC accepted jurisdiction over defendant.
The San Bernardino County Probation Department recommended several additional terms and conditions of probation, and a probation modification hearing was set. Defendant objected to several of the proposed new terms of probation. Specifically, defendant objected to proposed term Nos. 4A and 4B concerning immigration; proposed term No. 30, prohibiting defendant from possessing a credit card; proposed term No. 42, requiring defendant to cooperate in a field interrogation; proposed term No. 43, requiring defendant to carry identification at all times; and proposed term No. 127, prohibiting defendant from possessing the identification of another person. Defendant also objected to proposed term No. 19, prohibiting defendant from having any contact with anyone who has been convicted of a felony, which was broader than the one earlier imposed in Riverside County.
A hearing on defendant's probation modification was held on September 1, 2016. At that time, the SBCSC struck term Nos. 4A and 4B, overruled defense objections to the remaining additional terms, and imposed the additional terms of defendant's probation. Defendant filed a timely notice of appeal.
III
DISCUSSION
A. Imposition of Additional Terms and Conditions of Probation
Defendant contends the SBCSC erroneously imposed additional terms and conditions of defendant's probation because the transfer of probation from Riverside County to San Bernardino County did not constitute a change of circumstances warranting the additional terms.
Section 1203.9, subdivision (a)(1), governs the transfer of probation cases from one county to another and provides in pertinent part: "[W]henever a person is released on probation or mandatory supervision, the court, upon noticed motion, shall transfer the case to the superior court in any other county in which the person resides permanently, meaning with the stated intention to remain for the duration of probation or mandatory supervision, unless the transferring court determines that the transfer would be inappropriate and states its reasons on the record." Pursuant to subdivision (b) of section 1203.9, "The court of the receiving county shall accept the entire jurisdiction over the case effective the date that the transferring court orders the transfer."
The procedure for transferring a case to another county is outlined in California Rules of Court, rule 4.530. (See Penal Code, § 1203.9, subd. (f) [judicial council shall promulgate rules of court procedures for the transfer of probation cases].) Subdivision (h)(1)(B) of rule 4.530 provides: "The receiving court and receiving county probation department may impose additional local fees and costs as authorized." Further, subdivision (g) of rule 4.530 entitled "Transfer" provides in subsection (6), "Upon transfer the probation officer of the transferring county must transmit, at a minimum, any court orders, probation or mandatory supervision reports, and case plans to the probation officer of the receiving county."
Neither Penal Code section 1203.9 nor the California Rules of Court, rule 4.530 specifically address whether probation conditions can be modified upon transfer to another county. Section 1203.3, subdivision (a), states "The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.' " This section "broadly states the court's power to modify." (People v. Cookson (1991) 54 Cal.3d 1091, 1100 (Cookson).) A defendant is subject to notice, a hearing, and reasons for the modification to be placed on the record before the modification. (§ 1203.3, subd. (b).)
Any clarification as to whether a transfer to another county qualifies in itself as a change in circumstances that authorizes a change in probation conditions, like the ability of the receiving county to change the fees and costs, will have to come from the Legislature. --------
A court can modify a term of probation at any time before the expiration of that term and need not wait until a probation violation occurs. (Cookson, supra, 54 Cal.3d at p. 1098; see People v. Leiva (2013) 56 Cal.4th 498, 505.) In Cookson, the defendant was ordered to pay restitution for diverting construction funds at the time that his probation was granted, but the probation department set up an incorrect payment schedule resulting in insufficient funds being paid by defendant on the restitution when his probation term was set to expire. (Cookson, at p. 1094.) The superior court extended the time for probation in order for the defendant to be supervised while completing the payments on restitution. (Id. at pp. 1094-1095.)
The California Supreme Court noted that " 'An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.' " (Cookson, supra, 54 Cal.3d at p.1095, italics omitted.) Although the defendant had complied with all of the probation conditions, and the miscalculation of the monthly payments was solely the fault of the probation officer, the Supreme Court determined "the Court of Appeal correctly determined that a change in circumstance could be found in a fact 'not available at the time of the original order,' namely, 'that setting the pay schedule consistent with [the] defendant's ability to pay had resulted in defendant's inability to pay full restitution as contemplated within the original period of probation." (Id. at p. 1095.)
Here, the change in circumstances was that defendant requested a transfer from Riverside County to San Bernardino County where she planned to reside for the remainder of her probationary period. The prosecutor noted that the additional terms were necessary to aid in defendant's rehabilitation and that the field interrogation and no contact with known felons terms were conditions that were generally imposed on probationers in San Bernardino County. The SBCSC explained at the hearing on the modification that "the Court does have the authority to order additional terms as required for the—that are reasonably related to the offense and are necessary for the rehabilitation of the defendant." The additional terms of probation included that defendant not associate with persons known to be convicted felons (term No. 19A); that defendant not possess or use any credit card without permission of the probation officer (term No. 30); that defendant submit to field interrogation by peace officers (term No. 42); that defendant carry identification at all times (term No. 43); and that defendant not possess the identification of another person (term No. 127). These terms and conditions certainly were reasonably related to defendant's offense and necessary for defendant's rehabilitation. Additionally, these additional terms were aimed at ensuring officer safety in San Bernardino County—a large, spread-out county, and the largest county in the continental United States—and certainly the court could modify the conditions based on this concern. Defendant voluntarily requested to transfer her probation from Riverside County to San Bernardino County and the trial court stated specific reasons as to why it was imposing the additional probation terms.
Further, the requirement that defendant not associate with persons known to be convicted felons (term No. 19A) was no different than the condition imposed in Riverside County that she not associate with any unrelated person known to be on either probation, parole, or mandatory supervision or post release community supervision. Moreover, as noted, the SBCSC gave valid reasons why San Bernardino County imposed the additional conditions.
The SBCSC was entitled to consider defendant's new circumstances when the case was transferred to San Bernardino County, and to apply conditions it had found appropriate in supervising San Bernardino County probationers. In fact, besides objecting to the field interrogation condition as violating her Fifth Amendment right on appeal, defendant does not contend that condition or the other additional conditions are unrelated to the crime for which she was convicted or are not reasonably related to preventing future criminality or not necessary in aiding defendant's rehabilitation. (See People v. Olguin (2008) 45 Cal.4th 375, 379-380 [test for valid probation conditions].) The additional conditions were reasonably related to defendant's crime and rehabilitation and to the goal of maintaining supervision. The record supports a change in circumstances.
B. Field Interrogation Condition
Defendant claims the field interrogation condition implicates her Fifth Amendment privilege against self-incrimination and must be stricken. We find no constitutional violation.
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." (People v. Miller (1989) 208 Cal.App.3d 1311, 1314 (Miller).) 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, "[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, fn. omitted (Lent).) "An appellate court generally will not find that a trial court has abused its broad discretion to impose probation conditions so long as a challenged condition relates either generally to criminal conduct or future criminality or specifically to the probationer's crime." (People v. Barajas (2011) 198 Cal.App.4th 748, 753.)
Like the standard probation search condition, a field interrogation probation condition is a correctional tool that can be used to determine whether defendant is complying with the terms of her probation or disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 (Reyes) [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. (Reyes, at p. 752.)
A field interrogation will be useful to monitor defendant's compliance with her other probation conditions. Also, information obtained from field interrogations will provide a valuable measure of her amenability to rehabilitation, which is related to her 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 her probation, and it deters further criminal activity. Thus, the field interrogation probation 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 probation condition infringes upon her Fifth Amendment right against self-incrimination because she "ha[d] been told she must completely waive her privilege against self-incrimination on pain of revocation of her probation and imprisonment if she refuses to comply." In other words, she is claiming that she cannot refuse to answer a question by a peace officer, even if she believes her answer will be incriminating, without threat of revocation or her probation. First, there is no evidence in the record to suggest that defendant was "told she must completely waive her privilege against self-incrimination" or suffer imprisonment if she refuses to comply. Second, defendant's claim is speculative and unsupported. Contrary to defendant's claim, the condition does not compel her to make incriminating disclosures, and it contains no language threatening to revoke her probation if she asserts the privilege against self-incrimination. The condition merely requires her to "[s]ubmit to, and cooperate in, a field interrogation by any Peace Officer at any time of the day or night." Moreover, while probationers have long been required to "cooperate" with their probation officers, a probationer is not foreclosed from asserting his or her Fifth Amendment privilege, and it would not be inherently uncooperative for him or her to assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 50 (Davis) [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 and not walk away, she retains the right to assert the Fifth Amendment, and her probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 434 (Murphy).) In any case, if a state does attach "[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 probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." (Id. at p. 435, fn. omitted.)
Moreover, defendant is not an ordinary citizen. She is a convicted felon who has been granted the privilege of probation. It has long been settled that certain constitutional rights can be limited where appropriate in the probation process. (See People v. Robles (2000) 23 Cal.4th 789, 795 [warrantless search condition valid and justified]; 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].) Because of her 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.) Although an ordinary citizen "may not be detained even momentarily without reasonable, objective grounds for doing so; and his [or her] refusal to listen [to a peace officer] or answer [any question put to him or her] does not, without more, furnish those grounds[,]" the defendant is not an ordinary citizen. (Florida v. Royer (1983) 460 U.S. 491, 498.) The impingement on her constitutional right to remain silent is warranted due to her status as a felon. The condition is sufficiently narrow to serve the interests of the state and her reform and rehabilitation while merely requiring her to submit to, and cooperate in, a field interrogation. Defendant still retains her Fifth Amendment rights. 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.)
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 she is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128, 132-139.) 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 defendant's home and question her unnecessarily. Also, defendant may, when questioned, give a truthful answer, and her answer may be used at trial without offending the Fifth Amendment. Her 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 defendant, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because defendant has a duty to answer an officer's questions truthfully, unless she asserts the privilege, it does not violate her right not to incriminate herself. The purpose of probation is, of course, defendant's 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 her 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 Miller, supra, 208 Cal.App.3d at p. 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 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 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.)
As noted, under Murphy a probation condition which merely requires a probationer to be truthful does not violate a person's 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., she may not simply " 'ignore his interrogator and walk away' " (United States v. Mendenhall (1980) 446 U.S. 544, 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 defendant's progress toward rehabilitation, it assists them in enforcing other terms of her probation, and it deters further criminal activity. Thus, as previously explained, 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 officer's 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.) 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, italics omitted.) 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.)
By contrast, here, and unlike the out-of-state authorities upon which defendant relies, defendant is not subject to a condition like the one found impermissible in Saechao requiring her to answer all reasonable inquiries with the threat of revocation of her probation for asserting her Fifth Amendment right against self-incrimination. Defendant is subject to a condition like the one found permissible in Murphy and Davis, bearing the implied general obligation to be truthful in her answers. If asked a question, the answer to which is likely to incriminate her, she is free to invoke her Fifth Amendment privilege and refuse to respond. While she cannot ignore a peace officer and walk away, she may still assert her right against self-incrimination. By submitting to and cooperating in a field interrogation, defendant is required only to follow instructions or answer non-incriminating questions. (See Davis, supra, 242 F.3d at pp. 50-52.) 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.
Based on the foregoing, we conclude the field interrogation probation condition does not violate defendant's Fifth Amendment privilege against self-incrimination.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.