People v. Ferrell CA4/2 ( 2016 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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