Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB055492, Robert D. Macomber, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Leonard J. Klaif, 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 Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
Our Supreme Court transferred this case back to this court with directions to vacate our previous decision and reconsider the matter in light of the ruling in People v. Olguin (2008) 45 Cal.4th 375 (Olguin). As directed, we vacate our previous opinion in this case.
Pursuant to a plea agreement, defendant Felicia Marie Wornstaff admitted receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). The trial court granted defendant probation, with the condition that she serve 120 days in the county jail. Defendant contends (1) her pet probation condition does not meet the Lent standard; (2) her pet probation condition is unconstitutionally overbroad; and (3) her probation condition concerning field interrogations unconstitutionally infringes on her constitutional rights. We affirm the judgment.
People v. Lent (1975) 15 Cal.3d 481 (Lent)
FACTUAL AND PROCEDURAL HISTORY
Defendant’s trial counsel stipulated that the reports, records, and documents in the trial court’s file would form a factual basis for defendant’s plea. The following facts are taken from defendant’s probation report, which references the police report, and which we infer was in the trial court’s file.
On April 10, 2006, a San Bernardino County Sheriff’s Deputy conducted a vehicle registration check on a car that the deputy was following. The check revealed that the car had been reported stolen on the previous day. The deputy stopped the vehicle and defendant was identified as the driver. When speaking with the deputy, defendant initially claimed that her boyfriend owned the car. The deputy told defendant that the car had recently been reported stolen. Defendant then told the deputy that she borrowed the car from her friend, Lolo. After defendant and Lolo drove to a residence, Lolo removed the stereo from the car and defendant realized the car was stolen.
DISCUSSION
A. Pet Probation Condition
1. Lent Standard
Defendant contends that probation condition No. 7, which requires defendant to notify her probation officer of any pets, does not meet the Lent standard because the condition does not relate to defendant’s crime. We disagree.
“We review conditions of probation for abuse of discretion. [Citation.] Generally, ‘[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.]’ [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long [as] the condition is reasonably related to preventing future criminality. [Citation.]” (Olguin, supra, 45 Cal.4th at pp. 379-380.)
Our Supreme Court has concluded that a condition of probation, which requires a defendant to notify his probation officer of the presence of any pets in his residence, “is reasonably related to the supervision of defendant and hence to his rehabilitation and potential future criminality.” (Olguin, supra, 45 Cal.4th at p. 380.) Olguin concerned a probation condition that is identical to the condition at issue in the instant case; however, the defendant in Olguin pled guilty to two counts of driving with a blood-alcohol level in excess of 0.08 percent (Veh. Code, § 23152, subd. (b)). (Olguin, supra, 45 Cal.4th at p. 378.) A probation condition that relates to future criminality does not need to be related to a defendant’s crime; therefore, despite the different offenses, the legal analysis in Olguin is on point with the issue presented in the instant case. Accordingly, we are bound to follow our Supreme Court’s determination that the pet probation condition does meet the Lent standard. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).) Consequently, we conclude the trial court did not abuse its discretion by imposing the pet probation condition, because the provision relates to defendant’s future criminality.
2. Overbroad
Defendant essentially contends that the pet probation condition is unconstitutionally overbroad because it is not closely tailored to the purpose of the condition, i.e., defendant’s rehabilitation. We disagree.
“‘A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ [Citations.]” (Olguin, supra, 45 Cal.4th at p. 383.)
A contention similar to defendant’s was raised in Olguin: the defendant asserted that the pet probation condition limited the defendant’s constitutional right to not be deprived of property without due process of law under the Fourteenth Amendment. (Olguin, supra, 45 Cal.4th at p. 384 .) Our Supreme Court rejected the defendant’s argument, finding that the condition did not prevent the defendant from owning a pet—it merely required notifying the probation officer that a pet was in the residence. (Id. at p. 385.) Since the defendant was unable to demonstrate that a constitutional right had been limited, our Supreme Court concluded that the probation condition was “not subject to exacting scrutiny for overbreadth; rather, it is to be accorded deferential review for... abuse of discretion.” (Id. at p. 387.)
Similar to the defendant in Olguin, defendant in the instant case does not explain how the probation condition has limited her constitutional rights. In her Appellant’s Opening Brief, defendant cites her constitutional rights “of privacy and liberty under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution”; however, defendant goes no further than citing the constitution and concluding that the condition is overbroad. Accordingly, we conclude, as the court did in Olguin, that defendant has failed to demonstrate that the probation condition has limited a constitutional right, and therefore the condition is not subject to exacting scrutiny for overbreadth. Further, we have already determined, ante, that the trial court did not abuse its discretion by imposing the pet probation condition.
B. Field Interrogation Condition
Defendant contends that probation condition No. 17, which requires her to “[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night,” should be stricken because it infringes on her constitutional rights. In the alternative, defendant asserts that the field interrogation condition must be modified because it is overbroad. In a separate alternative argument, defendant contends that if the probation condition is not stricken or modified, then law enforcement officers must issue Miranda warnings prior to interrogations that are conducted pursuant to probation condition No. 17. We disagree with all three of defendant’s arguments.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
1. Constitutional Rights
Defendant contends that the field interrogation provision infringes on her Fifth Amendment privilege against self-incrimination. Defendant asserts that the probation condition violates her Fifth Amendment privilege because defendant could be found in violation of her probation if she were to assert her Fifth Amendment privilege during a field interrogation.
A probation condition is valid under the Fifth Amendment unless there is a reasonable basis for concluding an impermissible penalty has been attached to the exercise of the privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 436-437 (Murphy).) Murphy sets forth the rule that the Fifth Amendment privilege is not lost when a person is granted probation: A state cannot “constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” (Murphy, at p. 438.)
In light of this well-settled rule, there is no reasonable basis for concluding probation term No. 17, requiring defendant to “[s]ubmit to and cooperate in a field interrogation by any peace officer,” places an impermissible penalty on defendant’s Fifth Amendment privilege. The probation condition does not reflect that defendant has forfeited her Fifth Amendment privileges, and nothing on the face of the condition, either expressly or by implication, suggests defendant would be subject to having her probation revoked if she were to assert her Fifth Amendment privilege while being questioned about a matter which could incriminate her for another crime. Accordingly, we conclude defendant’s Fifth Amendment privilege has not been infringed by probation condition No. 17.
Defendant argues that a reasonable person could interpret the probation condition as requiring defendant to waive her Fifth Amendment privilege during field interrogations. We find defendant’s argument unpersuasive, because (1) the probation condition does not mention the Fifth Amendment, and (2) the well-settled rule is that the Fifth Amendment privilege is not lost when a person is granted probation. Accordingly, it would not be reasonable to interpret the field interrogation condition as requiring defendant to waive her Fifth Amendment privilege.
2. Overbroad
In the alternative, defendant contends that the field interrogation provision must be modified because it is overbroad.
“‘A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ [Citations.]” (Olguin, supra, 45 Cal.4th at p. 383.)
Defendant asserts that the probation condition imposes limitations on her Fifth Amendment privilege against self-incrimination. We have concluded, ante, that the condition does not infringe on defendant’s constitutional privilege, because she is still free to assert her privilege against self-incrimination. Accordingly, because the field interrogation condition does not infringe on defendant’s Fifth Amendment privilege, it is not subject to exacting scrutiny for overbreadth. (See Olguin, supra, 45 Cal.4th at p. 387.)
Additionally, defendant essentially contends that the probation condition limits her Fourth Amendment right to be free from arbitrary and unreasonable questioning by law enforcement officers because the condition does not restrict the time or place of the possible field interrogations. Although the field interrogation condition does not explicitly contain a reasonableness requirement, decisional law has interpreted probation conditions to include such a requirement, in regard in the Fourth Amendment. (See United States v. Knights (2001) 534 U.S. 112, 121-122 [discussing reasonable suspicion requirement for a warrantless search of a probationer’s house]; see also People v. Clower (1993) 16 Cal.App.4th 1737, 1741 [parole search cannot be undertaken for purposes of harassment].) Accordingly, we conclude it is not reasonable to interpret the field interrogation condition as requiring defendant to submit to arbitrary field interrogations. Therefore, we find defendant’s argument unpersuasive.
3. Miranda Rights
Defendant essentially contends that if this court does not strike or modify the field interrogation condition, then we should direct all law enforcement officers to inform defendant of her Miranda rights prior to a field interrogation. We disagree.
A person who is subjected to a custodial police interrogation must be informed of her right to remain silent and right to counsel. (Miranda v. Arizona, supra, 384 U.S. at p. 444.) An interrogation is custodial when the person being interrogated has been taken into custody or is otherwise deprived of her freedom of movement in a significant way. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) There is no basis for concluding that every future field interrogation of defendant will be custodial. Accordingly, we find defendant’s argument unpersuasive.
DISPOSITION
The judgment is affirmed.
I concur: HOLLENHORST Acting P. J.
KING, J., Concurring and dissenting.
I concur with Justice Miller’s opinion and his disposition relative to probation condition No. 7 (the pet probation condition).
I further concur that probation condition No. 17, relative to the probationer submitting and cooperating in a field interrogation, does not violate the probationer’s Fifth Amendment privilege. I dissent, however, in that I believe the probation condition dealing with field interrogation is overbroad. The general propriety of such a term has been recognized. (See Minnesota v. Murphy (1984) 465 U.S. 420 [104 S.Ct. 1136, 79 L.Ed.2d 409].) It must nonetheless be tailored, so that it is reasonably related to the crime of which defendant was convicted, or to defendant’s future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.)
By its provision, term 17 allows for the probationer to be interrogated as to any subject matter, whether related or unrelated to the conduct of the probationer.