P. v. Dodson

1
Filed 11/28/07 P. v. Dodson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
MARK ANTHONY DODSON,
Defendant and Appellant.
E040617
(Super.Ct.No. FSB039894)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. Affirmed with directions.
Lizabeth Weis, 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.

-- 1 of 39 --

2
Defendant Mark Anthony Dodson appeals following his guilty plea to a domestic
violence offense. Defendant was placed on probation for three years subject to a number
of terms and conditions. On appeal, defendant argues that three of the probation
conditions are invalid and unconstitutional as applied to him. We agree with defendant’s
claim that the probation condition requiring him to notify his probation officer of any pets
violates all three of Lent’s1 probation criteria and is unconstitutionally overbroad.
However, we reject defendant’s other contentions, as we find that the field interrogation
term and the search term are valid. Consequently, we direct the trial court to modify the
pet condition and in all other respects affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On May 18, 2003, police responded to an activated panic alarm. When they
arrived at the alarm location, they spoke to defendant and another male witness who was
standing nearby.2 Police were advised defendant had been in an argument with the
woman living there, but she left on foot to cool down. Defendant assured police the
argument was over, and he was leaving. Police searched the area for the woman but were
unable to find her, so defendant and the witness were released. Police then received a
dispatch informing them of an emergency call from a woman reporting she had just been
the victim of an assault by her ex-husband.
1 People v. Lent (1975) 15 Cal.3d 481, 486 (Lent)
2 The facts and circumstances of the offense relevant to our analysis were taken
from the probation report unless otherwise noted.

-- 2 of 39 --

3
When police contacted the victim, she stated she and defendant had been married
but were divorced about ten years. At the time of the incident, defendant was living out
of state but staying at the victim’s home to visit their daughter. During an argument,
defendant blocked the victim’s path to prevent her from leaving, so she shoved him to get
by. In response, he struck her with his fist, knocking her down on a bed. Although she
was able to grab her keys and hit the panic alarm, defendant eventually obtained the keys,
got into the victim’s vehicle, and put it in gear. The struggle continued, and the victim
was dragged down the street in the vehicle. At some point she was able to climb into the
vehicle to talk to defendant. Defendant did park the vehicle to talk, but the victim was
afraid and jumped out. Defendant then drove the vehicle into the house, hitting the
victim on her left hip causing her to spin around. The record does not include
information about any injuries or property damage. The victim was contacted about
restitution but did not respond by the deadline.
A felony complaint was filed on June 19, 2003, charging defendant with two
counts of assault with a deadly weapon in violation of Penal Code3 section 245,
subdivision (a)(1). The alleged deadly weapon was a motor vehicle. Defendant was not
arrested until February 16, 2006. Pursuant to a plea agreement, defendant pled guilty on
April 12, 2006, to one count of corporal injury to a spouse or cohabitant in violation of
section 273.5, subdivision (a). As part of the plea bargain, the People agreed to dismiss
the assault charges and amend the complaint to include only a single count of corporal
3 All further statutory references will be to the Penal Code unless otherwise
indicated.

-- 3 of 39 --

4
injury to his ex-wife. Defendant was released pending sentencing and credited with time
served in jail. The agreed sentence was probation plus completion of a domestic violence
program. The People also agreed not to oppose a reduction of the offense to a
misdemeanor after 18 months if defendant did not violate the terms of his probation.
When defendant was interviewed by a probation officer on May 9, 2006, he
denied committing the offense and claimed he had been in close contact with the victim
and his daughter since the incident but was unaware there was a warrant. According to
defendant, he was living out of state and did not find out charges had been filed against
him until he was told by the Social Security office he could not receive benefits because
of an outstanding warrant. At that time, defendant claims he sold his belongings and
returned to California to face the charges. He told the probation officer he agreed to
plead guilty because he had been in jail about 50 days and was tired of it. He admitted
moving out of state in 1998 without completing domestic violence classes that were
ordered at that time.
DISCUSSION
A. The Probation Terms and Conditions Were Properly Preserved for
Appellate Review.
The People argue defendant has forfeited his right to appeal the reasonableness
and constitutionality of his probation conditions because he failed to make adequate
objections at the time of sentencing. Defendant contends his objections below were
sufficient to preserve the issues for appeal. Alternatively, he claims he received

-- 4 of 39 --

5
ineffective assistance of counsel under the Sixth Amendment if his attorney did not make
an adequate record.
We conclude that the “pet” condition, field interrogation condition, and the search
condition were preserved on appeal and not forfeited, because (1) proper objections were
raised below, and (2) defendant’s claim that the pet condition is constitutionally vague
and overbroad is not subject to the forfeiture rule. As we find that defendant’s
complaints against the probation terms and conditions were properly preserved either by
an appropriate objection or by operation of law, we need not decide whether defense
counsel rendered ineffective assistance of counsel.
At the time of sentencing, the court and the parties reviewed the list of probation
conditions recommended by the probation department. Defense counsel went through the
list of conditions and registered an objection to each term she found unacceptable.
Probation Condition No. 74 stated: “Keep 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. . . .”
Probation Condition No. 95 required defendant to: “Submit 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 . . . .”
4 This is listed as Probation Condition No. 6 in the court’s minute order.
5 This is listed as Probation Condition No. 8 in the court’s minute order.

-- 5 of 39 --

6
Probation Condition No. 206 stated: “Submit to, and cooperate in, a field
interrogation by any peace officer at any time of the day or night.”
During sentencing, the court and counsel engaged in the following colloquy:
“[Defense Counsel]: Your Honor, and on No. 7, we would object to ‘pets.’
“The Court: Once again, that’s a public safety issue. I will overrule your
objection.
“[Defense Counsel]: All right, your Honor. We’d object to No. 9 and ask it be
narrowly construed for this case.
“The Court: I’m going to keep it as is. [¶] . . . [¶]
“[Defense Counsel]: Our standard objection to No. 20.
“The Court: Overruled.”
A defendant’s failure to timely challenge the reasonableness of a probation
condition on grounds set forth in Lent, supra, 15 Cal.3d at p. 486,7 is forfeited on appeal.
(People v. Welch (1993) 5 Cal.4th 228, 237 (Welch).) “A timely objection allows the
court to modify or delete an allegedly unreasonable condition or to explain why it is
necessary in the particular case.” (Id. at p. 235.)
The People assert that defendant’s “fail[ure] to object to the probation conditions
on Lent grounds . . . challeng[ing] only a term in the pet condition” was insufficient to
preserve his claim that the pet condition was unreasonable. We disagree.
6 This is listed as Probation Condition No. 16 in the court’s minute order.
7 Superseded on another ground by Proposition 8 as stated by People v. Wheeler
(1992) 4 Cal.4th 284, 290-295

-- 6 of 39 --

7
Defense counsel stated with particularity that she objected to that portion of the
“notice to probation officer” condition requiring him to inform the officer about pets. It
was unnecessary to object with the specific words “Bushman/Lent” or to the
unreasonableness of the pet condition. The prosecution has failed to cite any authority
requiring that the specific term “Bushman/Lent” be used. Similarly, our research has
failed to find any precedent requiring the objection be “Bushman/Lent.” An objection is
sufficient “if it fairly apprises the trial court of the issue [and is] deemed preserved if,
despite inadequate phrasing, the record shows that the court understood the issue
presented.” (People v. Scott (1978) 21 Cal.3d 284, 290.)
Here, defense counsel lodged a specific enough objection calling the court’s
attention to that portion which defendant claims is objectionable in order for the court to
decide whether the probation condition is unreasonable using the Bushman/Lent test.
This is what the defense counsel properly did here- she objected to the “pet” condition.
Thus, the reasonableness of the pet condition was preserved for appellate review.
The same holds true with the field interrogation condition. The public defender
stated, “Our standard objection to No.20.” We agree with defendant that this is “a
shorthand reference understood by the trial court and trial counsel, to [be] an objection on
the grounds that the condition violates appellant’s constitutional rights against self-
incrimination and his rights to privacy, security, and liberty.”8 This is a reasonable
8 We note it is the local custom in many courts (especially those with large
calendars) to abbreviate matters in order to get through the calendar more quickly and
efficiently.

-- 7 of 39 --

8
inference from the record as the probation condition requires defendant to speak to a
peace officer at any time. This would entail issues regarding defendant’s Fifth
Amendment right to remain silent, his Fourth Amendment rights to be secure in his
person and against unreasonable search and seizure, and his Fourteenth Amendment due-
process right to privacy. We conclude the “standard objection” language was sufficiently
specific to preserve the reasonableness and unconstitutionality objections to the field
interrogation term.
With respect to the search and seizure term, the public defender objected to it and
asked that it be “narrowly construed for this case.” Again, this objection was sufficient to
preserve the claim on appeal. Defense counsel’s objection, coupled with a request to
narrowly construe the search term, maintained defendant’s claim for later review.
Counsel’s reference to “narrowly construe” the search term refers to a request similar to
one made in People v. Bravo (1987) 43 Cal.3d 600, 603-604 (Bravo): that peace officers
be limited to search only if they have reasonable cause to suspect criminal activity.9
Finally, the California Supreme Court in In re Sheena K. (2007) 40 Cal.4th 875
held that probation conditions that are unconstitutionally vague and overbroad need not
be objected to below in order to preserve their review on appeal. (Id. at pp. 888-889.)
Defendant’s claim that the pet condition was unconstitutionally vague (because it was
uncertain whose “pets” the condition refers to) and overbroad (because it encompassed
tame animals as well as vicious animals) falls squarely within the “vague and overbroad”
9 This is a fair comment based upon the record.

-- 8 of 39 --

9
exception to the forfeiture rule. Consequently, defendant need not have objected on
constitutional grounds below in order to raise the constitutional claim for the first time on
appeal as it is preserved by operation of law.
B. The Probation Condition Concerning Pets Must Be Modified.
“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 . . . conduct which is not reasonably related to future
criminality . . . .’ [Citation.]” (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.)
Here, probation condition No. 7 states that defendant must keep his probation
officer informed of ownership of pets. That portion of the probation condition violates
all three criteria set forth in Lent. Defendant’s ownership or contact with a pet of any
kind had nothing to do with the crime of which he was convicted. Having a pet is not in
itself criminal. Pet ownership is not indicative of or related to future criminality.
The People argue that the probation condition is related to the third Lent standard,
future criminality. The concern apparently addressed is whether defendant might have a
dangerous animal, such as a vicious attack dog, at her residence. However, it is already
unlawful to keep vicious or dangerous animals, and defendant’s probation conditions
already require him to violate no law. (See Food & Agr. Code, § 31601 et seq.; § 399.)
As noted, the offense of which defendant was convicted had nothing to do with
any pets. His conviction involved possession of stolen property. The ownership of pets
is a lawful activity; indeed, “the harboring of pets” has been recognized as “an important

-- 9 of 39 --

10
part of our way of life.” (Cf. Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514;
Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163.)
We have conducted a thorough search of hundreds of cases concerning probation
conditions related to pets. Virtually all the cases of pet probation conditions involve
convictions of animal cruelty, harboring a vicious pet, or some other offense in which an
animal was actually involved. (See, e.g., Stephens v. State (2001) 247 Ga.App. 719 [545
S.E. 2d 325] [conviction of cruelty to animals (pit bull dogs used for fighting, kept in
unsafe and unhealthy conditions), probation condition forbade the defendant from
owning any dogs or to live at a residence where dogs were present]; State v. Choate
(Mo.App. 1998) 976 S.W.2d 45 [one count of animal neglect, the defendant was ordered
as conditions of probation to pay for care of the dog while it was in protective custody
and not to return the dog to the county]; State v. Sheets (1996) 112 Ohio App.3d 1 [677
N.E.2d 818] and State v. Barker (1998) 128 Ohio App.3d 233 [714 N.E.2d 447] [animal
owner convicted of animal cruelty may be required as condition of probation to forfeit all
the animals (horses), even those not specifically the subject of the charges]; State v.
Bodoh (1999) 226 Wis.2d 718 [595 N.W.2d 330] [defendant convicted of injury by
negligent handling of dangerous weapons (rottweiler dogs attacking cyclist) and ordered
as a condition of probation not to have any dogs at his residence unless approved by the
probation officer]; Scott v. Jackson County (D.Or. 2005) 403 F.Supp.2d 999 [defendant
guilty of animal neglect (rabbits), ordered as a condition of probation not to possess any
animals]; Mahan v. State (Alaska App. 2002) 51 P.3d 962 [defendant convicted of animal
neglect for multiple kinds of animals, ordered as a condition of probation not to own or

-- 10 of 39 --

11
be the primary caretaker of more than one animal, and not to own or care for any horse];
Hurst v. State (Ind.App. 1999) 717 N.E.2d 883 [probation condition of suspension of
hunting license for violation of fish and game and wild animal laws]; cf. People v. Torres
(1997) 52 Cal.App.4th 771, 778 [commenting in passing that “[p]ersons convicted of
cruelty to animals could be ordered not to own or possess pets”].)
We have found two cases that mention a condition of parole (not probation)
involving pets, where the condition is related to officer safety. United States v. Crew
(D.Utah 2004) 345 F.Supp.2d 1264 refers to a defendant’s release on parole, including as
a parole condition: “4. HOME VISITS: I will permit visits to my place of residence by
agents of Adult Probation and Parole for the purpose of ensuring compliance with the
conditions of my parole. I will not interfere with [this] requirement, i.e. having vicious
dogs, perimeter security doors, refusing to open the door, etc.” United States v. Pyeatt
(D.Utah, June 15, 2006, 2:05-CR-890 TC) 2006 U.S.Dist. Lexis 40337 referred to an
identical parole condition.
The genuine concern to be addressed by the probation condition, as suggested by
the parole conditions in Crew and Pyeatt, is whether a probation officer making a home
visit or conducting a probation search will be able to do so without being at risk from a
dangerous animal, such as a vicious dog. The probation condition here is not tailored to
meet that objective. “A probation condition is constitutionally overbroad when it
substantially limits a person’s rights and those limitations are not closely tailored to the
purpose of the condition.” (People v. Harrisson ( 2005) 134 Cal.App.4th 637, 641, citing
In re White (1979) 97 Cal.App.3d 141, 146 [“‘The Constitution, the statute, all case law,

-- 11 of 39 --

12
demand and authorize only “reasonable” conditions, not just conditions “reasonably
related” to the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and
severe probation condition is appropriate”].) “[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.]” (People v. Delvalle
(1994) 26 Cal.App.4th 869, 879.) To the extent that the generic “pet” condition here is
not tailored to meet that legitimate objective, it is not related to defendant’s offense or to
his future criminality. It therefore fails to meet the test of reasonableness under Lent and
is invalid.
Whether defendant owns a pet is not reasonably related to his future criminality.
No one had any reason to think that defendant owned a pet that could endanger a
probation officer’s life. If facts could have been brought to bear to show that a defendant
is likely to have, or to live on premises that have, a dangerous animal, then there might be
some justification for a probation condition narrowly tailored to avoid the anticipated
danger. But the portion of the condition imposed which related to all pets, without
limitation, is overbroad.10
C. The Field Interrogation Condition is Valid.
During the sentencing hearing, defense counsel stated only: “Our standard
objection” to this condition. The trial court responded: “Overruled.” Probation
10 See concurring and dissenting opinion of King, J., post, supporting the finding
probation condition No. 7 (listed as No. 6 in the court’s minute order) is overbroad.

-- 12 of 39 --

13
condition No. 2011 requires defendant to “[s]ubmit to and cooperate in a field
interrogation by any peace officer at any time of the day or night.” Based on Lent,
defendant argues the field interrogation condition is unreasonable because it is not related
to his spousal abuse offense or to future criminality, and it does not limit conduct which
is itself criminal. In addition, defendant argues this condition is unconstitutional because
it “undermines” his Fifth Amendment privilege against self-incrimination.
The field interrogation condition is like the standard probation search condition
because it is a tool which can be used to determine whether defendant is complying with
the other terms of his probation or is disobeying the law. (See People v. Reyes (1998) 19
Cal.4th 743, 752 [acknowledging unexpected searches can be useful to determine
whether parolees are complying with conditions of parole and can provide a “valuable
measure” as to the effectiveness of parole supervision].) Similar to the threat of a
warrantless search, the ability of a probation or other law enforcement officer to question
a probationer at any time in the field is a deterrent to future criminality and a strong
incentive to comply with any and all probation conditions. (See People v. Adams (1990)
224 Cal.App.3d 705, 712 [“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
11 The challenged field interrogation condition was renumbered to 16 at the time
of sentencing on May 25, 2006.

-- 13 of 39 --

14
rehabilitation.”’”].) Therefore, in our view, the field interrogation condition satisfies Lent
because it relates to future criminality and amenability to probation supervision. As we
noted in the previous discussion, the factual record suggests a need for close supervision
on probation.
The Fifth Amendment “permits a person to refuse to testify against himself at a
criminal trial in which he is a defendant [and] also ‘privileges him not to answer official
questions put to him in any other proceeding . . . where the answer might incriminate him
in future criminal proceedings.’ [Citation.]” (Minnesota v. Murphy (1984) 465 U.S.
420, 426 (Murphy).) Except in “certain well-defined situations,” such as custodial
interrogations, a witness confronted with incriminating questions must assert the
privilege or his answers will be considered voluntary and may be used against him. (Id.
at pp. 429-430.) The privilege is not lost when a defendant is on probation. (Id. at p.
426.) As a result, a state cannot “constitutionally carry out a threat to revoke probation
for the legitimate exercise of the Fifth Amendment privilege.” (Id. at p. 438.) According
to the Supreme Court in Murphy, a probation condition is not invalid under the Fifth
Amendment unless there is a reasonable basis for concluding it attaches an impermissible
penalty to the exercise of the privilege. (Id. at pp. 436-437.)
In the seminal case of Murphy, supra, 465 U.S. 420, the defendant argued his Fifth
Amendment privilege was violated when incriminating statements he made to his
probation officer were used against him at his trial for another crime. (Id. at p. 426.) As
a condition of his probation, the defendant was under a legal compulsion to attend
meetings with a probation officer. He “was informed that he was required to be truthful

-- 14 of 39 --

15
with his probation officer in all matters and that failure to do so could result in revocation
of probation.” (Id. at p. 436.) The United States Supreme Court held these conditions
were “insufficient to excuse [the defendant’s] failure to exercise the privilege in a timely
manner.” (Id. at p. 437.) The Supreme Court reasoned the conditions of probation did
not on their face say anything even suggesting probation was conditioned on the
defendant waiving the Fifth Amendment privilege. (Ibid.) Nor was there any direct
evidence the defendant was “expressly informed during the crucial meeting . . . that an
assertion of the privilege would result in the imposition of a penalty.” (Id. at p. 438.)
Finally, there was no evidence the defendant gave incriminating statements to the
probation officer because he feared his probation would be revoked if he asserted the
privilege. (Id. at p. 437.) As a result, the Supreme Court concluded there was no Fifth
Amendment violation. (Id. at p. 440.)
In the contrasting case of United States v. Saechao (9th Cir. 2005) 418 F.3d 1073
(Saechao), the Ninth Circuit concluded there had been a violation of the Fifth
Amendment, and upheld the trial court’s suppression of incriminating statements made
by a probationer to his probation officer. (Id. at p. 1081.) The Ninth Circuit concluded
the probation condition at issue violated the probationer’s Fifth Amendment privilege by
creating “a classic penalty situation.” (Id. at p. 1078.) The probationer was compelled as
a condition of his probation to “‘promptly and truthfully answer all reasonable
inquiries.’” (Id. at p. 1079.) The Ninth Circuit reasoned as follows: “The condition did
not simply require a prompt statement of some kind—such as a statement setting forth a
reason for not answering the question. Rather, the condition expressly requires an

-- 15 of 39 --

16
answer to the question being asked. A verbal invocation of the right to remain silent
followed by the act of not responding to incriminating questions is, by definition, not
answering a question. . . . A refusal to answer, even if it could somehow be called an
answer, constitutes neither a truthful nor an untruthful response. It is non-substantive in
nature. For that reason alone, invoking the privilege, asking for clarification, or seeking
legal advice, could not satisfy the requirement for a prompt and truthful answer.” (Id. at
p. 1080.)
Here, we conclude there is no reasonable basis for a determination that the field
interrogation condition places an impermissible penalty or burden on defendant’s Fifth
Amendment privilege against self-incrimination. On its face, this condition is no more
burdensome than the general probation conditions found acceptable by the Supreme
Court in Murphy which required the defendant to meet with his probation officer and be
truthful in all matters. The field interrogation condition is distinguishable from the
condition at issue in Saechao, which could only be satisfied by a “prompt and truthful
answer.” Unlike the condition at issue in Saechao, the field interrogation condition does
not expressly require defendant to provide a substantive or “truthful answer” to any and
all questions in the event he is subjected to a field interrogation. Nothing on the face of
condition No. 20 either expressly or by implication suggests defendant would be
considered insufficiently submissive or uncooperative to a peace officer in the field if he
were to invoke his Fifth Amendment privilege, in the event he is questioned about a
matter which could incriminate him in another crime.

-- 16 of 39 --

17
We are also unconvinced by defendant’s argument the field interrogation
condition is written so broadly it could be interpreted to mean defendant faces arrest and
revocation of his probation if he validly claims the Fifth Amendment privilege and
refuses to answer incriminating questions. Defendant essentially contends the condition
is vague and ambiguous. He would have us amend the condition to explicitly state he is
not required to answer potentially incriminating questions during any field interrogation.
First, as the Supreme Court reiterated in Murphy, supra, 465 U.S. at page 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. However, 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, supra, 465 U.S. at p. 430.)
Second, a probation condition satisfies the demands of due process if it is
“sufficiently precise for the probationer to know what is required of him, and for the
court to determine whether the condition has been violated.” (People v. Reinertson
(1986) 178 Cal.App.3d 320, 324-325.) A violation need only be described with a
“‘“‘“‘reasonable degree of certainty’”. . . so that “ordinary people can understand what
conduct is prohibited.”. . . .’ ” [Citation.]’ [Citation.]” (In re Byron B. (2004) 119
Cal.App.4th 1013, 1018.) Defendant merely speculates without support that the field
interrogation condition as worded is ambiguous and reasonably could be interpreted to

-- 17 of 39 --

18
foreclose his right to claim the Fifth Amendment privilege. In our view, the field
interrogation condition is sufficiently precise to advise defendant what is required of him
should he be approached and questioned by a peace officer while he is on probation and
to allow the court to determine if a violation of the condition has occurred. Based on the
common understanding of the terms “submit to” and “cooperate in,” it would be
unreasonable to interpret the field interrogation condition as foreclosing a valid
invocation of the Fifth Amendment in response to questions asked by a peace officer in
the field.
Also, there is nothing to indicate the field interrogation condition is vague or
ambiguous as it applies to defendant’s case. Defense counsel did not object to the field
interrogation condition on grounds of ambiguity or vagueness and did not request any
clarification. Defendant could have presented any facts particular to his case and then
requested clarification or modification. Defendant stated on the record he had reviewed
the probation conditions with his attorney, understood them, and found them acceptable.
“Oral 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.) Therefore, to the extent he is arguing the condition is vague and ambiguous as
it applies to the facts of his case, defendant waived any such objection. (Ibid.)
We must also reject defendant’s conclusory and speculative argument that the
field interrogation condition is unconstitutional under the Fourth Amendment because it
affords him no protection against “unreasonable questioning by the police at an

-- 18 of 39 --

19
unreasonable time,” thereby subjecting him to “arbitrary, capricious, or harassing”
interrogations. Probationers are not without some constitutional protections against
unreasonable or arbitrary conduct by governmental officials. (See, e.g., United States v.
Knights (2001) 534 U.S. 112 [finding a warrantless search authorized by a probation
condition satisfied the Fourth Amendment because it was supported by “reasonable
suspicion”]; People v. Clower (1993) 16 Cal.App.4th 1737, 1741 [indicating parole and
probationary searches may not be conducted arbitrarily to harass a defendant or for
purposes unrelated to proper supervision].) In our view, it would be unreasonable to
interpret the condition broadly enough to allow law enforcement officials to barge into
defendant’s home or work to question him arbitrarily or unnecessarily.
Finally, defendant’s argument is essentially that the field interrogation condition is
invalid as written because it possibly could be enforced by government officials in an
arbitrary manner in his particular case. He contends the condition should be modified to
prevent potential harassment rather than address it after the fact. In our view, this
argument is premature. As a general rule, reviewing courts do not “‘adjudicate
hypothetical claims or render purely advisory opinions’” in the absence of an adequate
factual record. (People v. Slayton (2001) 26 Cal.4th 1076, 1084.) As defendant
acknowledges in his reply brief by citation to People v. Kern (1968) 264 Cal.App.2d 962,

-- 19 of 39 --

20
965, a trial court has authority to amend a condition if defendant is needlessly harassed
by law enforcement.12
D. The Search Term is Reasonably Related to the Present Offense and to
Future Criminality.
Defendant argues the probation search condition is not rationally related to his
spousal abuse conviction as required by Lent because there is no evidence the
circumstances of the offense involved drugs, alcohol, or concealed weapons. He also
claims the probation search condition is not warranted by his personal history, future
criminality, or rehabilitation.
“Inherent in the very nature of probation is that probationers ‘do not enjoy “the
absolute liberty to which every citizen is entitled.”’ [Citation.] Just as other punishments
for criminal convictions curtail an offender’s freedoms, a court granting probation may
impose reasonable conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.” (United States v. Knights, supra, 534 U.S. at p. 119.) In this
regard, trial courts are given broad discretion under section 1203.1 to impose reasonable
conditions of probation “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.” (§ 1203.1, subd. (j).) An abuse of discretion will not be found unless a trial
12 See concurring and dissenting opinion of Ramirez, P.J., post, supporting the
finding that probation condition No. 20 (renumbered to No. 16 at sentencing) is a valid
probation condition.

-- 20 of 39 --

21
court’s decision is “arbitrary or capricious” or “‘“‘exceeds the bounds of reason, all of the
circumstances being considered.’” [Citations.]’ [Citation.]” (People v. Carbajal (1995)
10 Cal.4th 1114, 1121.)
In Lent, supra, the California Supreme Court set forth the following test for
determining the validity and reasonableness of a probation condition: “A condition of
probation will not be held invalid [as an abuse of discretion] 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.] Conversely, a condition of probation which
requires or forbids conduct which is not itself criminal is valid if that conduct is
reasonably related to the crime of which the defendant was convicted or to future
criminality.’” (Lent, supra, 15 Cal.3d at p. 486, fn. omitted, italics added.) Because the
test set forth in Lent is in the conjunctive, a probation condition will not be found invalid
unless all three factors are present. (People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn.
3 (Balestra).)
“[A] warrantless search condition is intended to ensure that the subject thereof is
obeying the fundamental condition of all grants of probation, that is, the usual
requirement (as here) that a probationer ‘obey all laws.’ Thus, warrantless search
conditions serve a valid rehabilitative purpose, and because such a search condition is
necessarily justified by its rehabilitative purpose, it is of no moment whether the
underlying offense is reasonably related to theft, narcotics, or firearms.” (Balestra,
supra, 76 Cal.App.4th at p. 67.) Our Supreme Court has acknowledged probation

-- 21 of 39 --

22
searches are reasonable “whether the purpose of the search is to monitor the probationer
or to serve some other law enforcement purpose.” (People v. Woods (1999) 21 Cal.4th
668, 681 (Woods).) The search condition is a tool which not only serves as a deterrent,
but also helps the probation officer determine whether the defendant is complying with
the law and the other terms of his probation and provides a “‘“valuable measure of the
effectiveness”‘” of probation supervision. (People v. Reyes (1998) 19 Cal.4th 743, 752;
see also Woods, supra.)
Based on the foregoing, we conclude the trial court did not abuse its discretion in
imposing a probation search condition in this case. In his plea agreement, defendant
signed item 6g acknowledging “Federal and state law prohibit a convicted felon from
possessing a firearm and ammunition.” He also agreed to the probation department’s
recommendation that he not possess or control any dangerous or deadly weapons.
The search term allows peace officers to determine whether defendant is
complying with these probation conditions. (Balestra, supra, 76 Cal.App.4th at p. 67.)
Although there was no evidence that firearms were involved in the commission of the
present offense, possession of a firearm by a felon and possession of a firearm within 10
years of a misdemeanor spousal abuse conviction are felonies. (§ 12021, subd. (c)(1).) A
warrantless search condition would deter unlawful possession of deadly weapons,
firearms, and ammunition, thereby potentially preventing further spousal abuse. It also
assists a peace officer to enforce section 12028.5, subdivision (b) by searching for and
removing firearms or other deadly weapons which could be at the scene of any future
domestic violence incidents.

-- 22 of 39 --

23
Clearly, the search term is reasonably related to future criminality. (Lent, supra,
15 Cal.3d at p. 486.) The prevention of future spousal abuse is particularly relevant in
the instant case: defendant has suffered two prior convictions for corporal injury to a
cohabitant/spouse/child’s parent and one prior conviction for battery.
Defendant possesses little, if any, insight regarding his conduct, despite driving his
car into the victim causing her body to spin around when hit her left hip. In the probation
report, defendant denies committing the offense, but only accepted the plea because he
was tired of being in jail.
Finally, the search term is reasonably related to the present offense in which
defendant inflicted corporal injury on his ex-wife. Defendant took the victim’s car keys
and used her car as a deadly weapon by driving the victim’s car into her. The search term
would allow peace officers to remove the victim’s car keys, if defendant again retains
possession of her car keys on or about his person. (Lent, supra, 15 Cal.3d at p. 486.)
DISPOSITION
The trial court is directed to strike the reference to “pets” in probation term No. 7.
The trial court may, however, modify the terms of probation to include a condition
narrowly tailored to address legitimate concerns about dogs and/or animals which pose a
foreseeable risk of injury to probation officers when they conduct home visits. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ MILLER
J.

-- 23 of 39 --

1
RAMIREZ, P.J., Concurring and Dissenting
Forfeiture
I disagree with Justice Miller’s conclusion that defense counsel’s objections to the
challenged probation conditions at the time of sentencing were specific enough to
preserve for appeal all of defendant’s reasonableness arguments based on the criteria set
forth in “Bushman/Lent” (i.e., In re Bushman (1970) 1 Cal.3d 767, 776-777 (Bushman),
and People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on another ground by
Proposition 8 as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295.)
“[A] court granting probation may impose reasonable conditions that deprive the
offender of some freedoms enjoyed by law-abiding citizens.” (United States v. Knights
(2001) 534 U.S. 112, 119 [122 S.Ct. 587].) A trial court’s discretion to impose probation
conditions is broad but limited by Penal Code section 1203.1. Under section 1203.1, a
trial court has discretion to impose reasonable conditions of probation “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.” (Id., subd. (j).) An abuse of
discretion will not be found unless a trial court’s decision is “arbitrary or capricious” or
“‘“‘exceeds the bounds of reason, all of the circumstances being considered.’”
[Citations.]’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
In Bushman and later in Lent, our Supreme Court set forth the following test for
determining the reasonableness of a probation condition: “A condition of probation will

-- 24 of 39 --

2
not be held invalid [as an abuse of discretion] 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.] . . . Conversely, a condition of probation which requires or
forbids conduct which is not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future criminality.’” (Lent, supra,
15 Cal. 3d. at p. 486.) Because the test set forth in Lent is in the conjunctive, a probation
condition will not be found invalid unless all three factors are present. (People v.
Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3.)
In 1993, our Supreme Court in People v. Welch (1993) 5 Cal.4th 228 (Welch),
prospectively extended traditional objection and forfeiture rules to claims challenging the
reasonableness of probation conditions under Bushman/Lent. (Welch, supra, at pp. 231-
232, 237.) The Supreme Court in Welch reasoned it would be fair and appropriate to
prospectively impose an objection and forfeiture rule on this type of claim based on two
well-established justifications. First, objection and forfeiture rules “encourage
development of the record and a proper exercise of discretion in the trial court.” (Id. at p.
236.) Second, appellate courts are not well suited to deciding issues based on the
particular facts of a case when the trial court record is undeveloped. (Id. at pp. 236-237.)
The Supreme Court explained that a challenge to the reasonableness of a probation
condition is essentially an argument that “the court exercised its otherwise lawful
authority in an erroneous manner under the particular facts.” (Id. at p. 236.) Therefore,

-- 25 of 39 --

3
reasonableness challenges to probation conditions under Lent should be fully litigated in
the sentencing court before being raised on appeal. In reaching its conclusion, the
Supreme Court distinguished reasonableness challenges to probation conditions from
those based on other arguments involving “pure questions of law,” which are more
conducive to resolution on appeal whether there was an objection at the time of
sentencing. (Welch, supra, at pp. 235-237.)
More recently, while this case was pending, our Supreme Court issued its decision
in the case entitled In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), and held that
objection and forfeiture rules do not apply when a defendant challenges a probation
condition for the first time on appeal arguing it is unconstitutionally vague or overly
broad on its face. (Id. at pp. 883-889.). In Sheena K, the Supreme Court reaffirmed its
pronouncement in Welch that the objection and forfeiture rules do apply to
reasonableness challenges to probation conditions “when the defendant fails to object on
that ground in the trial court.” (Sheena K, supra, at p. 882, italics added.) As in Welch,
the Supreme Court in Sheena K. stated that the forfeiture rule is appropriate under these
circumstances because “the trial court is in a considerably better position than the Court
of Appeal to review and modify a . . . probation condition that is premised upon the facts
and circumstances of the individual case.” (Sheena K., supra, at p. 885.) Once again, the
court distinguished this type of factually based challenge to probation conditions from
claims “amounting to a ‘facial challenge’” to the language of the probation condition as
unconstitutionally vague or overly broad. (Id. at pp. 884-885.)

-- 26 of 39 --

4
Here, for example, the record indicates defense counsel knew how to make a
specific but concise reasonableness objection based on the particular facts of the case
without even using the words “reasonable,” “unreasonable” or Bushman/Lent. Counsel
objected to the condition requiring defendant to maintain gainful employment or attend
school because he “is on SSI and has a disability [so] is not able to be employed or attend
school at this time.” Under these particular circumstances, imposing a work or school
requirement would probably not satisfy the Lent criteria. By contrast, defense counsel
did not make similarly specific objections on the record at the time of sentencing as to the
three probation conditions now challenged on appeal.
“An objection is sufficient if it fairly apprises the trial court of the issue it is being
called upon to decide.” (People v. Scott (1978) 21 Cal.3d. 284, 290.) “In a criminal case,
the objection will be deemed preserved if, despite inadequate phrasing, the record shows
that the court understood the issue presented.” (Ibid.) However, boilerplate or general
objections made at the time of sentencing do not sufficiently explain why the defendant
believes the trial court’s sentencing choice is incorrect and therefore do not give the trial
court a “meaningful opportunity” to correct errors. (People v. de Soto (1997) 54
Cal.App.4th 1, 8-9.) In this regard, it is up to defense counsel at the time of sentencing to
“formulate specific objections,” and the trial court, which is “charged with efficient
management of a busy trial calendar,” has no obligation “to inquire further into the
specific bases for defendant’s generalized objections.” (Id. at p. 9.)

-- 27 of 39 --

5
With respect to the pet condition, defense counsel merely stated “we would object
to ‘pets.’” Defendant only asked for the probation search condition to be “narrowly
construed for this case.” As to the field interrogation condition, defense counsel stated
only: “Our standard objection.” As a result, it was unclear at the time of sentencing
whether defendant objected to the challenged conditions because they were unreasonable
under the particular facts of his case based on the Lent criteria, because they were
unconstitutionally overbroad as worded or applied, or because they were inappropriate
for some other legal or factual reason.
The factual and legal bases for defendant’s objections are more specifically
articulated on appeal. Defendant argues on appeal that all three of the challenged
conditions are unreasonable in that they do not satisfy the Lent criteria under the
particular facts of his case. However, defendant’s generalized and ambiguous objections
to these conditions at the time of sentencing did not give the trial court a “meaningful
opportunity” to address reasonableness on an individualized factual basis. As a result, I
would consider these arguments forfeited pursuant to Welch. In my view, it would
“disregard and usurp the role of the trial courts” (People v. de Soto, supra, 54
Cal.App.4th at p. 9), if we simply reviewed the newly stated factual bases for defendant’s
reasonableness claims under Lent on appeal.
Anticipating forfeiture, defendant argues alternatively that he received ineffective
assistance of counsel under the Sixth Amendment, because his attorney failed to make
appropriate objections to the challenged probation conditions. In support of his

-- 28 of 39 --

6
ineffective assistance of counsel claims, defendant relies on Strickland v. Washington
(1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L Ed. 2d 674] (Strickland). Because they are
based on the particular facts of his case, I would consider defendant’s appellate
challenges to the reasonableness of all three probation conditions under Lent only in the
context of his claims of ineffective assistance of counsel.
Claims of ineffective assistance of counsel under Strickland require a different and
more difficult showing of deficient performance by counsel considering all of the
circumstances at the time without the benefit of hindsight. Strickland also requires a
showing of prejudice based on a demonstration “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Strickland, supra, 466 U.S. at p. 694.) “Because we accord great deference
to trial counsel’s tactical decisions, counsel’s failure to object rarely provides a basis for
finding incompetence of counsel.” (People v. Lewis (2001) 25 Cal.4th 610, 661.)
Based on our Supreme Court’s recent decision in Sheena K., I would consider the
merits of defendant’s argument that the pet and field interrogation conditions are overly
broad and ambiguous on their face. Pursuant to Sheena K., this type of constitutional
challenge is a pure question of law, which we may consider on appeal even if there was
no specific objection on this ground at the time of sentencing.
Pet Condition
Based on the record before us, I also disagree with Justice Miller’s conclusion that
defendant is entitled to have the pet condition stricken or modified to make it more

-- 29 of 39 --

7
narrowly tailored. Condition No. 6 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 . . . .”1 In objection to this
condition, defense counsel stated only “we would object to ‘pets.’” The trial court
responded as follows: “Once again, that’s a public safety issue. I will overrule your
objection.” Thus, the specific factual or legal basis for this objection was not clearly
stated on the record at the time of sentencing.
Citing the facts as set forth by the probation officer in the probation report,
defendant now argues on appeal that the pet condition is unreasonable under the Lent
criteria. He contends the facts of his case as set forth in the probation report demonstrate
the condition is unrelated to his spousal abuse offense because there is nothing to indicate
a pet was present or involved in the offense. He also argues the condition is unreasonable
under Lent because it regulates conduct which is not criminal, and because the record
does not suggest pet ownership or contact with a pet is related to future criminality. In
addition, defendant disagrees with the trial court’s “public safety” justification for the pet
condition. As noted above, my view is that defendant forfeited any arguments based on
the Lent criteria by failing to present them at the time of sentencing.
Defendant also believes the language of the condition is unconstitutionally
overbroad and not narrowly tailored to meet the objective of public safety, because it is
1 At the sentencing hearing, defendant objected to the term “pets in “No. 7.” This
condition was originally proposed in the probation report at number seven but
renumbered to eight in the minutes of the sentencing hearing held May 25, 2006.

-- 30 of 39 --

8
not limited to pets which could pose a danger to probation officers who may visit his
home. “‘[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.) Defendant cites no authority for
a constitutional right to keep a pet without advance notice to a probation officer during
probation. Because the pet condition does not impinge on an established constitutional
right, it meets constitutional standards if it is reasonable.
“[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].) Accordingly, a probation condition is 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.)

-- 31 of 39 --

9
Here, the trial court imposed the pet condition to address legitimate supervision
and public safety concerns. The condition does not prohibit the probationer from owning
a pet of any kind and does not even require approval of the pet. The pet condition
satisfies Lent because it is related to future criminality and amenability to probation
supervision. For example, defendant’s probation conditions require him to obey all laws
and not to leave California without obtaining the permission of his probation officer. The
probation report suggests defendant attempted to injure his ex-wife with a motor vehicle,
so the trial court reasonably prohibited defendant from possessing dangerous or deadly
weapons as a condition of his probation. Defendant agreed to a probation search term.
Therefore, the conditions of defendant’s probation may require the probation officer to
visit defendant’s home unannounced to ensure compliance. It is a matter of common
knowledge animals can be unpredictable when confronted with a stranger in their
territory. Thus, prior knowledge of pets in the home safeguards the probation officer
against injury and undue surprise by a pet while visiting defendant’s home or conducting
an authorized search. Therefore, I would uphold the condition as constitutionally
reasonable on its face, notwithstanding defendant’s forfeiture under Welch of
reasonableness challenges based on the Lent criteria.
A probation condition also may be challenged as overly broad and “excessively
vague” on its face (In re Byron B., supra, 119 Cal.App.4th at p. 1018). Pursuant to
Sheena K., supra, 40 Cal.4th at pages 881 through 889, these constitutional claims are not
forfeited for failure to object during sentencing. Probation conditions “must be

-- 32 of 39 --

10
sufficiently precise for the probationer to know what is required of him, and for the court
to determine whether the condition has been violated.” (Sheena K., supra, 40 Cal.4th at
p. 890.)
The term “pets” is easy to understand because it has a commonly known and
accepted meaning. Although it is true some pets are harmless, it would be unreasonable
to expect the trial court to delineate at great length what breeds, species or temperaments
do not require advance notice to the probation officer. The same sentence of this
condition further requires defendant to keep the court advised of any cohabitants, and
petitioner made no claim of ambiguity as to this portion of the condition. I would
therefore uphold the condition against defendant’s claims of facial overbreadth and
ambiguity.
I would also reject defendant’s alternative argument that he received ineffective
assistance of counsel under Strickland because his attorney did not make more specific
arguments against the pet condition at the time of sentencing. First, there is nothing to
indicate the pet condition is vague or ambiguous as it applies to defendant’s case. In this
regard, defendant could have presented any facts particular to his own case and then
requested clarification of the pet condition at the time it was imposed. Defendant does
not state what facts his counsel should have presented in this regard at the time of
sentencing. Defendant stated on the record he had reviewed the probation conditions
with his attorney, understood them, and found them acceptable. “Oral advice at the time
of sentencing . . . afford[s] defendants the opportunity to clarify any conditions they may

-- 33 of 39 --

11
not understand and intelligently to exercise the right to reject probation granted on
conditions deemed too onerous.” (People v. Bravo (1987) 43 Cal.3d 600, 610, fn. 7.)
Second, there is nothing to suggest deficient performance by counsel or prejudice
under Strickland. Given the state of the law at the time of sentencing, and the facts in the
record which suggest a need for close supervision during probation, it is highly unlikely
the trial court would have agreed to delete or even modify the pet condition if counsel
had objected more vigorously. Therefore, I would also uphold the condition because
defendant cannot demonstrate on the record before us that he received ineffective
assistance based on his attorney’s failure to state more specific objections to this
condition at the time of sentencing.
Field Interrogation Condition
I agree with Justice Miller’s analysis and conclusion that the field interrogation
condition is constitutionally valid and disagree with Justice King’s dissent on this issue.
However, I would add that pursuant to Welch, defendant forfeited any challenge to the
reasonableness of this condition to the extent it is based on the particular facts of his case.
In addition, because the condition is constitutionally sound and because the factual record
suggests a need for close supervision on probation, defendant cannot establish his claim
of ineffective assistance of counsel under Strickland.
Probation Search Condition
I agree with Justice Miller’s conclusion that the probation search condition should
be upheld. However, I would uphold the condition for different reasons.

-- 34 of 39 --

12
Probation Condition No. 8 requires defendant to: “Submit 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.” During the sentencing hearing, defense counsel only asked that this
condition “be narrowly construed for this case.”2 The court responded: “I’m going to
keep it as is.” This objection does suggest defense counsel was attempting to make a
Lent challenge to the reasonableness of the condition under the particular facts of the
case. However, counsel did not state any specific facts to support deletion or
modification of the condition on this basis.
Defendant now argues on appeal that the probation search condition should be
stricken because it does not satisfy the Lent criteria. He contends the condition is not
related to his spousal abuse conviction as required by Lent, because there is no evidence
the circumstances of the offense involved drugs, alcohol, or concealed weapons. He also
claims the probation search condition is not warranted under Lent by his personal history,
future criminality, or rehabilitation. In my view, these arguments were waived under
Welch, because defendant did not present a specific factual basis for his objection to this
condition at the time of sentencing.
Anticipating forfeiture under Welch, defendant alternatively argues his counsel
was ineffective because it is likely the court would have modified or deleted the
2 At the sentencing hearing, defendant made this objection to “No. 9.” The search
condition was originally proposed in the probation report at “No. 9” but renumbered to
eight in the minutes of the sentencing hearing held May 25, 2006.

-- 35 of 39 --

13
probation search condition if his attorney had clearly articulated the basis of his objection
under Lent. However, established precedents at the time defendant was sentenced
supported the trial court’s decision to impose a probation search condition in this case.
“[A] warrantless search condition is intended to ensure that the subject thereof is obeying
the fundamental condition of all grants of probation, that is, the usual requirement (as
here) that a probationer ‘obey all laws.’ Thus, warrantless search conditions serve a valid
rehabilitative purpose, and because such a search condition is necessarily justified by its
rehabilitative purpose, it is of no moment whether the underlying offense is reasonably
related to theft, narcotics, or firearms.” (Balestra, supra, 76 Cal.App.4th at p. 67.)
Our Supreme Court has acknowledged probation searches are reasonable “whether
the purpose of the search is to monitor the probationer or to serve some other law
enforcement purpose.” (People v. Woods (1999) 21 Cal.4th 668, 681 (Woods).) The
search condition is a tool which not only serves as a deterrent, but also helps the
probation officer determine whether the defendant is complying with the law and the
other terms of his probation and provides a “‘“valuable measure of the effectiveness”’” of
probation supervision. (People v. Reyes (1998) 19 Cal.4th 743, 752; see also Woods.)
In recognition of established precedents justifying the use of probation search
conditions, it is possible counsel made a reasonable tactical decision not to challenge this
condition. Nor is there anything to suggest the trial court would have modified or deleted
the probation search condition if defendant’s counsel objected to the condition more
vigorously. Defendant has not indicated what other facts or arguments counsel should

-- 36 of 39 --

14
have presented in this regard at the time of sentencing. In addition, as noted above, the
probation report demonstrates a need for defendant to be closely monitored while on
probation. Therefore, I would also uphold the condition because defendant is unable on
the record before us to establish either of the elements of deficient performance or
prejudice under Strickland.
/s/ RAMIREZ
P.J.

-- 37 of 39 --

1
KING, J., Concurring and Dissenting.
I concur with the majority in all respects save and except as to the condition
requiring defendant to submit and cooperate in field interrogations. I believe the
condition is overbroad.
Trial courts have broad discretion to set conditions of probation in order to “foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.”
(People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see Pen. Code, § 1203.1, subd. (j).)
“If it serves these dual purposes, a probation condition may impinge upon a constitutional
right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of
constitutional protection as other citizens.’ [Citation.]” (People v. Lopez (1998) 66
Cal.App.4th 615, 624.)
However, the trial court’s discretion in setting the conditions of probation is not
unbounded. “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.]” (People v. Lent (1975) 15 Cal.3d 481,
486.) A condition of probation must satisfy all three requirements before it may be
declared invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365-366.)
Term 16 of the probation conditions should be limited to allow field interrogation
of the probationer only as it relates to the probationer’s criminality and compliance with
the other terms and conditions of probation.

-- 38 of 39 --

2
Term 16 provides: “Submit to and cooperate in a field interrogation by any peace
officer at any time of the day or night.”
I believe the provision 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 16 allows for the probationer to be interrogated as to any
subject matter, whether related or unrelated to the conduct of the probationer.
/s/ KING
J.

-- 39 of 39 --