P. v. Sepulveda

1
Filed 6/8/07 P. v. Sepulveda 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
RUBEN ABRAM SEPULVEDA,
Defendant and Appellant.
E040932
(Super.Ct.No. FSB045132)
OPINION
APPEAL from the Superior Court of San Bernardino County. Elva R. Soper,
Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Harry Zimmerman, 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, Senior Assistant Attorney General, and Lilia E.
Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.

-- 1 of 15 --

2
Defendant pleaded guilty to grand theft under Penal Code section 487, subdivision
(a).1 The trial court granted defendant three years of formal probation. On appeal,
defendant contends (1) the probation condition requiring him to keep the probation
officer informed of whether he owns any pets is invalid; and (2) the probation condition
requiring him to submit to and cooperate in field interrogations is overly broad and
infringes upon his constitutional rights. We reject these contentions and affirm the
judgment.
I
FACTUAL BACKGROUND2
On June 25, 2004, defendant sold his 1995 Chevrolet pickup truck to Alberto
Calva for $3,700. On that same day, after the sale, defendant reported the truck as stolen
to the police. On July 13, 2004, Calva turned the truck into the San Bernardino Police
Department; he provided the police with a copy of the bill of sale he received from
defendant.
On July 15, 2004, Calva confronted defendant at a Home Depot in San Bernardino
and demanded his money back. Defendant refused, and a fight ensued. Police were
called, and defendant was arrested. Thereafter, defendant admitted selling the truck and
then reporting it as stolen.
1 All future statutory references are to the Penal Code unless otherwise
stated.
2 The factual background is taken from the probation report.

-- 2 of 15 --

3
II
ANALYSIS
A. Pet Condition
Probation condition No. 7 requires defendant to “[k]eep the probation officer
informed of place of residence, cohabitants and pets, and give written notice to the
probation officer twenty-four (24) hours prior to any changes . . . .” Defendant contends
that this pet-notification condition must be stricken as constitutionally overbroad. For the
reasons set forth below, we disagree.3
“The primary goal of probation is to ensure ‘[t]he safety of the public . . . through
the enforcement of court-ordered conditions of probation.’ [Citation.] [C]onditions of
probation ‘are routinely imposed when the sentencing court determines, in an exercise of
its discretion, that a defendant who is statutorily eligible for probation is also suitable to
receive it.’ [Citation.] In the granting of probation, the Legislature has declared the
primary considerations to be: ‘the nature of the offense; the interests of justice, including
punishment, reintegration of the offender into the community, and enforcement of
conditions of probation; the loss to the victim; and the needs of the defendant.’
[Citation.] [¶] In granting probation, courts have broad discretion to impose conditions
to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.] ‘The court may impose and require . . . [such] reasonable conditions[] as it
3 We note that this issue is currently pending before the Supreme Court.
(People v. Olguin (Dec. 15, 2006, E039342) review granted Mar. 21, 2007, S149303;
People v. Lopez (Nov. 30, 2006, E039251) review granted Mar. 21, 2007, S149364.)

-- 3 of 15 --

4
may determine are fitting and proper to the end that justice may be done, that amends
may be made to society for the breach of the law, for any injury done to any person
resulting from that breach, and generally and specifically for the reformation and
rehabilitation of the probationer.’ [Citation.] The trial court’s discretion, although broad,
nevertheless is not without limits: a condition of probation must serve a purpose specified
in the statute. In addition, . . . Penal Code section 1203.1 . . . require[s] that probation
conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime
of which the defendant was convicted or to future criminality.’ [Citation.]” (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120-1121; see also § 1203.1; People v. Welch (1993)
5 Cal.4th 228, 233.)
While pet ownership is not in itself criminal, it is reasonably related to the
supervision of a probationer and hence to defendant’s future criminality.
“‘[C]onditions of probation that impinge on constitutional rights must be tailored
carefully and “reasonably related to the compelling state interest in reformation and
rehabilitation . . . .” [Citation.]’ [Citation.]” (In re Byron B. (2004) 119 Cal.App.4th
1013, 1016 [Fourth Dist., Div. Two], quoting People v. Delvalle (1994) 26 Cal.App.4th
869, 879, quoting People v. Mason (1971) 5 Cal.3d 759, 768 (dis. opn. of Peters, J.).)
However, there is no constitutional right to keep a pet. (See Nahrstedt v. Lakeside
Village Condominium Assn. (1994) 8 Cal.4th 361, 388.) A fortiori, there is no
constitutional right to keep a pet without telling your probation officer.
Absent any such constitutional concerns, “[a]n adult probation condition is
unreasonable if ‘it “(1) has no relationship to the crime of which the offender was

-- 4 of 15 --

5
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.]” (In re Byron B., supra, 119 Cal.App.4th at p. 1016, quoting People v. Lent
(1975) 15 Cal.3d 481, 486, fn. omitted, quoting People v. Dominguez (1967) 256
Cal.App.2d 623, 627.) “As with any exercise of discretion, the sentencing court violates
this standard when its determination is arbitrary or capricious or ‘“‘exceeds the bounds of
reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (People v.
Carbajal, supra, 10 Cal.4th at p. 1121.)
“[Probation conditions] are meant to assure that the probation serves as a period of
genuine rehabilitation and that the community is not harmed by the probationer’s being at
large. [Citation.] These same goals require and justify the exercise of supervision to
assure that the restrictions are in fact observed. Recent research suggests that more
intensive supervision can reduce recidivism, [citation], and the importance of supervision
has grown as probation has become an increasingly common sentence for those convicted
of serious crimes, [citation].” (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [107 S.Ct.
3164, 97 L.Ed.2d 709].) A probation condition therefore may be deemed reasonable if it
“enable[s] the [probation] department to supervise compliance with the specific
conditions of probation.” (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.)
A probation officer may need to visit a probationer’s home unannounced. Here,
for example, defendant’s probation conditions required him to “[s]ubmit to a search . . .
of your . . . residence . . . at any time of the day or night . . . .” Knowing, in advance,

-- 5 of 15 --

6
what animals are in the probationer’s home is reasonably related to the safety of the
probation officer.
While some pets are so innocuous that they could not possibly interfere with a
probation officer’s performance of his or her duties, it is perfectly reasonable for the trial
court not to be more specific as to species, breed, or temperament. Animals can be
unpredictable, particularly when confronted by a stranger in what they consider to be
their own territory. Ask any letter carrier. Or ask any professional animal trainer -- they
have a saying: “[A]nything with a mouth bites.” (Sutherland, Kicked, Bitten and
Scratched (2006) p. 63.)
Moreover, a probation officer is entitled to some protection against undue surprise.
A trial court drafting probation conditions in the abstract might not think to include a
parrot among the pets that must be disclosed; presumably, however, a probation officer
would appreciate being warned that that voice in another room may just be a bird.
Likewise, any probation officer who has to open a closet or reach under a bed during a
search would no doubt like to know ahead of time whether the probationer keeps
snakes -- regardless of whether the snakes are venomous.
Even assuming the challenged condition could have been more narrowly tailored,
that does not render it invalid; rather, it simply must not exceed the bounds of reason. It
not unreasonable to put the burden on the probationer to tell the probation officer what
animals may be present. The probation officer can then decide what precautions to take.
The challenged condition does not prevent the probationer from owning a pet of any

-- 6 of 15 --

7
kind. It does not even require approval of the pet. It simply requires notice to the
probation officer. This is amply within the bounds of reason.
Significantly, defendant does not challenge that portion of the probation condition
that required him to keep the probation officer informed of his cohabitants. This
condition serves the salutary, rehabilitative purpose of preventing defendant from
associating with those who might lead him into criminal behavior. Defendant does not
seem to think this condition had to be more narrowly drawn so as to require defendant to
report only cohabitants who are gang members, drug users, or known felons. It is just as
reasonable to require defendant to report all of his pets as it is to require him to report all
of his cohabitants.
B. Field Interrogation Condition
Probation condition No. 13 requires defendant to “submit to, and cooperate in, a
field interrogation by any peace officer at any time of day or night . . . .” At sentencing,
the field-interrogation condition was imposed over defense counsel’s pro forma
constitutional objection. On appeal, defendant contends that this probation condition
violates his constitutional right against self-incrimination, and therefore must be stricken.
We disagree.
As described above, trial courts have broad discretion in determining what
conditions of probation will aid the reformation and rehabilitation of the defendant.
(§ 1203.1; People v. Carbajal, supra, 10 Cal.4th 1114, 1120-1121.) Again, a condition
will not be held invalid unless it has no relationship to the crime of which the defendant
is convicted, relates to conduct which is not itself criminal, and requires or forbids

-- 7 of 15 --

8
conduct which is not reasonably related to future criminality. (People v. Lent, supra, 15
Cal.3d at p. 486.) All three factors must be present for a condition of probation to be
invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 366.)
Defendant’s concern that the field interrogation condition is overly broad and
serves no legitimate purpose is not well founded. 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 or her probation or
disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an
unexpected search is to determine not only whether parolee disobeys the law, a basic
condition of parole, but also whether he or she 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, carrying with it certain
burdens, such as a search term, which can be used as a correctional tool].)
This court observed in People v. Adams (1990) 224 Cal.App.3d 705 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.”’ [Citation.]”
(Id. at p. 712.) In addition, as our Supreme Court observed, “[w]hen [warrantless search
and seizure] conditions are imposed upon a probationer . . . , it is established that the
individual ‘consents to the waiver of his Fourth Amendment rights in exchange for the

-- 8 of 15 --

9
opportunity to avoid service of a state prison term. Probation is not a right, but a
privilege.’ [Citation.]” (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo
(1987) 43 Cal.3d 600, 608.)
Likewise, here, the field interrogation probation condition will provide practical,
on-the-street supervision to defendant. Field interrogations will be used to monitor
defendant’s compliance with conditions of his probation. Also, information obtained
from field interrogations will provide a valuable measure of his amenability to
rehabilitation, which is related to his future criminality. A condition allowing field
interrogations may further dual purposes of deterring future offenses by the probationer
and ascertaining whether he is complying with the terms of his probation. The purpose
of an unexpected, unprovoked field interrogation of defendant is to ascertain whether
defendant is complying with the terms of probation -- to determine not only whether he
disobeys the law, but also whether he obeys the law. Information obtained under such
circumstances would afford a valuable measure of the effectiveness of the supervision
given defendant. (See, e.g., People v. Reyes, supra, 19 Cal.4th 743, 752.)
Although the field interrogation probation condition forbids defendant from doing
something that is not in itself criminal, that is, “‘ignore his interrogator and walk away’”
(United States v. Mendenhall (1980) 446 U.S. 544, 553 [100 S.Ct. 1870, 64 L.Ed.2d
497]), it is related to the purposes of probation as described in People v. 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 his probation, and it deters
further criminal activity. Thus, the field interrogation condition serves the purposes of

-- 9 of 15 --

10
probation and is valid under the Lent criteria. (Id. at p. 486.) In addition, implicit in
almost every probation condition, including the field interrogation condition, is
reasonableness
Additionally, “interrogation” inherently means questions related to “seek solution
of a crime.” (See Black’s Law Dict. (6th ed. 1990) p. 818, col. 2.) Thus the inherent
meaning of the term limits the questions that could be asked of a probationer in a field
interrogation to those designed to monitor the probationer’s compliance with the other
terms of his or her probation as well as future criminality. We do not find that the failure
to make this limitation explicit provides any justification for striking the condition. It
may be that this limitation is implicit in the language that the court adopted and could be
permitted to stand without modifying the language of the condition. Moreover, as
discussed in detail, post, it is unlikely that a probationer would likely be found to have
violated the field interrogation term in a probation revocation hearing for merely refusing
to answer questions unrelated to the conduct of the probationer. This condition would
assist defendant in maintaining compliance with the law and the terms of his probation.
Again, even assuming the challenged condition could have been more narrowly
tailored, that does not render it invalid; rather, it simply must not exceed the bounds of
reason. The challenged condition will provide a means to monitor defendant’s progress
toward rehabilitation, and deter future criminality. This is amply within the bounds of
reason.

-- 10 of 15 --

11
Defendant claims the field interrogation condition implicates his Fifth and
Fourteenth Amendment rights against self-incrimination. We find no constitutional
violation.
Defendant is not an ordinary citizen. He 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.
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]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969 [probation condition
prohibiting the defendant from active participation in demonstrations following his
conviction of assault at a college demonstration was reasonable], overruled on other
grounds in People v. Welch, supra, 5 Cal.4th 228, 237; People v. King (1968) 267
Cal.App.2d 814, 822-823 [condition of probation proscribing participation in
demonstrations valid where the defendant battered police officers at an antiwar
demonstration].) Because of his 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 [88 S.Ct. 1868, 20 L.Ed.2d 889].)
Although an ordinary citizen “may not be detained even momentarily without reasonable,
objective grounds for doing so; and his refusal to listen [to a peace officer] or answer
[any question put to him] does not, without more, furnish those grounds[,]” we repeat that
defendant is not an ordinary citizen. (Florida v. Royer (1983) 460 U.S. 491, 498 [103

-- 11 of 15 --

12
S.Ct. 1319, 75 L.Ed.2d 229].) The impingement on his constitutional right to remain
silent is warranted due to his status as a felon. The condition is sufficiently narrow to
serve the interests of the state and his reform and rehabilitation while merely requiring
him to submit to and cooperate in a field interrogation. Defendant still retains his Fifth
Amendment rights, as discussed below. 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 [86 S.Ct. 1602, 16 L.Ed.2d 694].
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 in a
requirement to “cooperate” with the probation officer].) Therefore, although defendant
must cooperate with the police, 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, 427, 434 [104 S.Ct. 1136, 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.” (Id. at p. 435.) 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

-- 12 of 15 --

13
nonincriminating questions. (See Davis, at p. 52.) Therefore, although defendant must
generally cooperate with the police, he retains the right to assert the Fifth Amendment,
and his probation cannot be revoked based on a valid exercise of that right.
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.) 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 him unnecessarily. 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.) Nevertheless, defendant is not required to give
up his freedom to decline to answer particular questions. (Murphy, at p. 429.) The

-- 13 of 15 --

14
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 People v. Miller (1989) 208 Cal.App.3d 1311, 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.)
Moreover, the field interrogation condition is less intrusive than some of the other
conditions of defendant’s probation that defendant does not challenge. For example,
condition No. 9 requires defendant to “[s]ubmit to a search and seizure of [his] person,
residence and/or property under [his] control at any time of the day or night by any law-
enforcement officer, with or without a search warrant, and with or without cause.”
(Italics added.) Additionally, condition No. 12 forbids defendant from associating “with
known convicted felons or anyone actively engaged in criminal activity . . . .”
In summary, we note that the limitation on defendant’s liberty is warranted due to
his status as a felon. The condition is sufficiently narrow to serve the interests of the

-- 14 of 15 --

15
state -- his reform and rehabilitation -- while requiring him merely to submit to and
cooperate in a field interrogation. Any custodial interrogation that might follow a field
interrogation would be subject to the requirements of Miranda v. Arizona, supra, 384
U.S. 436. In these circumstances, we conclude that the condition is reasonable and
constitutional.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
McKINSTER
J.

-- 15 of 15 --