P. v. Gomez

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Filed 7/23/07 P. v. Gomez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
v.
ABRAHAM GOMEZ,
Defendant and Appellant.
E040515
(Super.Ct.No. FSB053761)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising
Deputy Attorney General, and Marissa A. Bejarano, Deputy Attorney General, for
Plaintiff and Respondent.

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Defendant Abraham Gomez pled guilty to possession of a stolen vehicle (Pen.
Code § 496d, subd. (a)) and was later sentenced to three years of probation on the
condition that he serve 180 days in jail. During the sentencing hearing, defendant
objected to two probation terms, namely, that he notify his probation officer in writing 24
hours in advance of any change in pets, and that he submit to, and cooperate in, field
interrogations at any time. The trial court overruled these objections and defendant raises
them on appeal. As the trial court set legitimate probation terms in order to rehabilitate
defendant and promote public safety, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On November 17, 2005, a police officer found defendant sleeping in a stolen
vehicle. Defendant told the officer the car belonged to a friend. Defendant was in
possession of four cellular phones and two shaved keys. He was charged with unlawfully
taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and possessing a stolen
vehicle. He pled guilty to possessing a stolen vehicle, and on May 15, 2006, the trial
court sentenced him to three years probation on the condition that he serve 180 days in
jail. At the sentencing hearing, defense counsel objected to term No. 8, that he keep his
probation officer informed of any pets he owned (“pet condition”), and term No. 19, that
he submit to a field interrogation at any time of the day or night (“field interrogation
condition”), as unconstitutional and overbroad. The trial court overruled both objections,
and defendant appeals.

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II. STANDARD OF REVIEW
“‘[T]he trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review’” without a showing that the sentence was arbitrary or capricious.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).) The trial
court also has broad discretion when determining whether probation is appropriate, and if
so, has the discretion to impose terms necessary to promote justice, or to reform and
rehabilitate a defendant. (Pen. Code, § 1203 et seq.; People v. Lent (1975) 15 Cal.3d 481,
486 (Lent); see People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) The defendant has
the burden of proving that the trial court abused its discretion. (Alvarez, supra, 14
Cal.4th at pp. 977-978.)
III. DISCUSSION
Defendant faults the trial court for failing to strike or modify probation term Nos.
8 and 19 in order to comport with the standards set forth in Lent, which we discuss
below. (Lent, supra, 15 Cal.3d at. p. 486.)1
1 Defendant argues the condition is invalid in light of this court’s ruling in People
v. Quintero (Sept. 27, 2006, E039290 [nonpub. opn.]). However, subsequent to the filing
of defendant’s opening brief, that case was modified to vacate the publication order and
cannot be cited as authority for defendant’s position. (Cal. Rules of Court, rule
8.1115(a).)
We note that this issue is currently pending before the Supreme Court. (People v.
Olguin (Dec. 15, 2006, E039342 [nonpub. opn.]) review granted Mar. 21, 2007,
S149303; People v. Lopez (Nov. 30, 2006, E039251 [nonpub opn.]) review granted
Mar. 21, 2007, S149364.)

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The goals of probation are that (1) justice be done, (2) amends be made to society,
and (3) the probationer be rehabilitated and reformed. (Pen. Code, § 1203.1, subd. (j).)
Any condition of probation “that restrict[s] constitutional rights must be carefully tailored
and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating
the defendant. [Citations.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 704.) If the
defendant believes the conditions of probation are harsher than the potential sentence, he
may refuse probation and choose to undergo the sentence. (People v. Balestra (1999) 76
Cal.App.4th 57, 68-69 (Balestra).)
In addition, a term of probation may be considered invalid if it (1) has no
relationship to the crime, (2) involves conduct that itself is not criminal, and (3) forbids
conduct that is not reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p.
486.) All three conditions must be present to invalidate a probation term. (Balestra,
supra, 76 Cal.App.4th at p. 65, fn. 3.)
A. Probation Term No. 8 – Pet Condition
Defendant challenges the imposition of probation term No. 8 that states that he is
to “[k]eep the probation officer informed of . . . cohabitants and pets, and give written
notice . . . twenty-four (24) hours prior to any changes.”
Although ownership of a pet is not in itself criminal, a probation term that
regulates conduct that is not itself criminal is still valid as long as it is reasonably related
to defendant’s crime or to future criminality. (People v. Carbajal (1995) 10 Cal.4th
1114, 1121.) Probation is geared toward preventing future criminality, which requires
careful supervision by a probation officer. In United States v. Knights (2001) 534 U.S.

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112, 120 [151 L.Ed.2d 497]), the Supreme Court stated that “probationers have even
more of an incentive to conceal their criminal activities and quickly dispose of
incriminating evidence than the ordinary criminal because probationers are aware that
they may be subject to supervision and face revocation of probation . . . .” (Accord,
People v. Reyes (1998) 19 Cal.4th 743, 753) [holding that probation search conditions
prevent future criminal activities by probationers].)
A pet can enable defendant in his commission of future crimes by distracting or
preventing a probation officer from entering or searching defendant’s residence. Also,
without prior knowledge of a pet, a probation officer may endanger his own life or the
life of the pet by visiting defendant’s residence unannounced. While certain pets are not
dangerous and would not inhibit the duties of a probation officer, to require a trial court
to outline the type, nature, temperament, and treatment of a pet that would fall within the
probation term is unreasonable and impractical. Many animals are unpredictable and
may attack a stranger who attempts to enter a defendant’s residence; thus, it is inadequate
to limit the term only to dangerous or vicious animals.2
2 For example, reports by the Center for Disease Control state that, while certain
breeds of dogs are responsible for more fatalities, all breeds of dogs can cause injury. In
addition, the main factor affecting the behavior of a dog is the owner. Therefore, it
would be more effective to target dog owners than specific breeds in order to promote
public safety. (Sacks et. al., Breeds of Dogs Involved in Fatal Human Attacks in the
United States Between 1979 and 1998 (Sept. 2000), 217 J. Amer. Veterinary Medicine
Assn. 817, 839-840; Center for Disease Control and Prevention, U. S. Dept. of Health
and Human Services / Public Health Service, Dog-Bite-Related Fatalities – United
States, 1995-1996 (May 1997) 46 Morbidity and Mortality Weekly Rep. 463-467.)
Following this line of reasoning, probation term No. 8 focuses on the probationer to keep
the probation officer safe.

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Further, a probation term should be given “the meaning that would appear to a
reasonable, objective reader.” (People v. Bravo (1987) 43 Cal.3d 600, 606-607 (Bravo).)
Under probation term No. 8, defendant simply has to notify his probation officer of a pet
24 hours in advance. This does not prevent defendant from owning a pet or authorize a
probation officer to irrationally or capriciously exclude a pet. (See People v. Kwizera
(2000) 78 Cal.App.4th 1238, 1240-1241 [holding that a trial court empowering a
probation department with the authority to supervise probation conditions does not
conflict with the standards set in Lent, supra, 15 Cal.3d at p. 486, and does not authorize
irrational directives by the probation officer].)
If there is any ambiguity about a probation term, “[o]ral advice at the time of
sentencing . . . afford[s] defendants the opportunity to clarify any conditions they may not
understand and intelligently to exercise the right to reject probation granted on conditions
deemed too onerous.” (Bravo, supra, 43 Cal.3d at p. 610, fn. 7.) Here, defendant did not
request clarification of probation term No. 8, even though he did feel free to request a
modification of term No. 20, which requires him to carry a valid Department of Motor
Vehicles driver’s license or identification card.
The interpretation of “pets” is a case of first impression, but should be analyzed
using the same standards as that used to approve notification of “cohabitants,” which is
also included in probation term No. 8. Notification of “cohabitants” is imposed in order
to ascertain whether the probationer is associating with people who would negatively
affect his rehabilitation. (See People v. Lopez (1998) 66 Cal.App.4th 615, 622-625
[holding that a condition forbidding contact with gang members was necessary to

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rehabilitation and future criminality].) The purpose of notification about pets is similar:
(1) assure proper rehabilitation of defendant, and (2) protect the probation officer. We
believe knowledge of pets is a prerequisite to the search condition, which makes sure that
defendant is complying with his sentence and is not reoffending. (See Bravo, supra, 43
Cal.3d at p. 610 [holding that probation search conditions serve to promote rehabilitation
and reduce recidivism while helping to protect the community from potential harm by
probationers].) The implied power of the probation officer regarding both cohabitants
and pets is also the same: notification of pets implies a probation officer’s authorization
to exclude certain pets or direct the care of the pet (i.e. keeping them contained) in order
to allow searches. Again, this does not authorize capricious exclusions, but allows
directives that further the rehabilitation of defendant.
Thus, probation term No. 8 is valid, as it protects the probation officer and allows
him or her to oversee the defendant for future criminality.
B. Probation Term No. 19 - Field Interrogation Condition
Probation term No. 19 requires that defendant “[s]ubmit to and cooperate in a field
interrogation by any peace officer at any time of the day or night.” Defendant contends
that this condition is not related to the crime of possessing a stolen vehicle. He also
contends that it violates his Fifth Amendment right against self-incrimination because it
can be interpreted to mean that he cannot refuse to answer a question posed during a field
interrogation, even when he believes the answer will be incriminating.
While not related to the crime of which defendant was convicted, the field
interrogation condition is related to future criminality. In People v. Adams (1990) 224

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Cal.App.3d 705 (Adams), we observed that “a warrantless search condition is intended
and does enable a probation officer ‘“to ascertain whether [the defendant] is complying
with the terms of probation; to determine not only whether [the defendant] disobeys the
law, but also whether he obeys the law. Information obtained . . . would afford a valuable
measure of the effectiveness of the supervision given the defendant and his amenability
to rehabilitation.”’ [Citations.]” (Id. at p. 712.)
In Balestra, supra, 76 Cal.App.4th 57, the court upheld a search condition of
probation where the defendant was convicted of physically abusing her elderly mother.
The court found that the condition was related to future criminality because, as in Adams,
supra, 224 Cal.App.3d 705, it assisted authorities in determining whether the defendant
was complying with the terms of her probation.
The fact that defendant was convicted of possessing a stolen vehicle does not
reduce the benefit of this search condition in measuring the effectiveness of his
supervision and determining his amenability to rehabilitation. Thus, the condition is
related to defendant’s future criminality and was properly imposed.
We also disagree with defendant’s contention that the condition violates his Fifth
Amendment right to refuse to answer an incriminating question. 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 (Davis) [finding no realistic threat in a requirement to “cooperate” with
the probation officer].) Therefore, although defendant must cooperate with the police, he

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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, 427, 434
[79 L.Ed.2d 409] (Murphy).)
In Murphy, the Supreme Court explained that if a state attaches “[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.” (Murphy, supra, 465 U.S. at p. 435, fn. omitted.) However,
defendant’s probation condition contains no such threat. It would not be inherently
uncooperative for defendant to assert the Fifth Amendment; defendant could still follow
instructions and answer nonincriminating questions. (See Davis, supra, 242 F.3d at p.
52.)
Also, defendant may, when questioned, give a truthful answer, and his answer may
be used at trial without offending the Fifth Amendment. His 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 him, for
purposes of rehabilitation and reform, to speak truthfully to an officer. Because he has a
duty to answer an officer’s questions truthfully, unless he asserts the privilege, it does not
violate his right not to incriminate himself. 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.)

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Nevertheless, defendant is not required to give up his freedom to decline to answer
particular questions. (Murphy, supra, 465 U.S. at p. 429.) The Constitution does not
forbid the asking of incriminating questions (Murphy, supra, 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. Thus, we reject defendant’s
challenge to probation term No. 19, the field interrogation condition of his probation.
IV. CONCLUSION
Defendant’s challenges to probation term Nos. 8 and 19 have no merit, and the
trial court did not abuse its discretion in overruling defendant’s objections to them.
V. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
RICHLI
J.

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