Filed 3/2/16 P. v. Ferrell CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063669

v.                                                                       (Super.Ct.No. FVI1501010)

JOHN SCOTT FERRELL,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Miriam Ivy

Morton, Judge. Affirmed.

         Christine M. Aros, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

         Pursuant to a plea agreement, defendant and appellant John Scott Ferrell pled no

contest to unlawfully taking or driving a vehicle. (Veh. Code, § 10851, subd. (a).) In

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return, defendant was granted three years of formal probation on various terms and

conditions. On appeal, defendant contends the probation condition requiring him to

submit to and cooperate in field interrogations infringes upon his Fifth Amendment right

against self-incrimination and is unconstitutionally overbroad. We reject this contention

and affirm the judgment.

                            PROCEDURAL BACKGROUND

       On April 27, 2015, defendant was charged by felony complaint with unlawfully

driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).)

       On May 7, 2015, defendant entered a plea agreement and pled no contest to the

charge. The parties stipulated that the police report contained a factual basis for the plea.

In accordance with the plea agreement, the court placed defendant on probation for a

period of 36 months, on specified terms and conditions. Over defense counsel’s

objection, the court included a condition that defendant submit to and cooperate in a field

interrogation by any peace officer at any time of the day or night (the field interrogation

condition).

       On May 11, 2015, defendant filed a notice of appeal and requested a certificate of

probable cause on the basis that the judge added an unconstitutional field interrogation

term over defense objection. The court granted the request for a certificate of probable

cause. Defendant subsequently filed an amended notice of appeal, based on the sentence

or other matters occurring after the plea and challenging the validity of the plea, as well

as the field interrogation condition.




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                                        ANALYSIS

                        The Field Interrogation Condition is Valid

       Defendant’s sole contention is that the field interrogation condition violates his

constitutional right against self-incrimination and is vague and overbroad. We disagree.

       At the outset, we note that the court orally stated that it was imposing the

condition that required defendant to: “Submit to and cooperate in a field investigation by

any peace officer . . . .” (Italics added.) However, we understand this condition to read

“field interrogation,” rather than “field investigation.” Defense counsel responded to the

court’s imposition of the condition by stating his objection “under the field interrogation

term.” Thus, it appears that either the court meant to say “interrogation,” or the reporter’s

transcript reflects a simple error in transcription, since defense counsel evidently heard

the court say “interrogation.” Moreover, such understanding is reasonable in the context

of defendant’s claim on appeal that the condition violates his Fifth Amendment privilege

against self-incrimination.

       Pursuant to Penal Code 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.)

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


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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).)

       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 (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.)

       Here, defendant’s field interrogation probation condition will provide practical,

on-the-street supervision of him. A field interrogation will be useful to monitor

defendant’s 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 probation condition serves the purposes of


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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

his Fifth Amendment right against self-incrimination because it “forecloses [him] from

asserting his Fifth Amendment privilege.” In other words, he is claiming that he cannot

refuse to answer a question by a peace officer, even if he believes his answer will be

incriminating. This claim is speculative and unsupported. Contrary to defendant’s claim,

the 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 and not walk away, 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 (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.)


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       Defendant further argues that the field interrogation condition is vague and

overbroad. We disagree. He first asserts that, “absent express clarification that he is free

to invoke his Fifth Amendment privilege and refuse to respond,” the condition is

unconstitutionally vague. However, as the Supreme Court reiterated in Murphy, supra,

465 U.S. at p. 430, the “extraordinary safeguard” of an express warning about the right to

be silent is not required “ ‘outside the context’ ” of “ ‘inherently coercive custodial

interrogations.’ ” Under Miranda v. Arizona (1966) 384 U.S. 436, 478-479, defendant is

protected should any custodial interrogation follow a field interrogation. Thus, unless the

facts of particular circumstances establish a probationer is “ ‘in custody’ for purposes of

receiving Miranda protection,” an express warning about the right to remain silent is

unnecessary. (Murphy, at p. 430.)

       Moreover, contrary to defendant’s claim, the condition is not overbroad. He

claims that the condition “infers [sic] that [he] must answer any questions by law

enforcement, including questions unrelated to his conduct.” Law enforcement officers

may not ask harassing questions that have no relation to the crime for which defendant is

under supervision. 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 in In re Jamie P. (2006) 40

Cal.4th 128, 130.) In any event, we conclude that the field interrogation probation cannot




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be reasonably interpreted to require defendant to waive his right against self-

incrimination or to cooperate in unreasonable interrogations.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                          Acting P. J.


We concur:


MILLER
                          J.


CODRINGTON
                          J.




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