Filed 3/23/16 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063719
v. (Super.Ct.No. FWV1405172)
GERARDO ALONSO GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown,
Judge. Affirmed as modified.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
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Pursuant to a plea agreement, defendant and appellant Gerardo Alonso Gonzalez
pled guilty to assault with force likely to produce great bodily injury. (Pen. Code, 1 § 245,
subd. (a)(4).) In accordance with the plea agreement, the trial court placed defendant on
probation for a period of three years, under specified probation conditions. On appeal,
defendant contends the court abused its discretion in ordering the condition requiring him
to submit to random polygraph testing. We conclude that the probation condition should
be modified. Otherwise, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Jane Doe was doing some Christmas shopping at the mall with her sister when she
felt a slap on her buttocks. She described it as a “pretty hard” slap. She was shocked and
immediately turned around to see who did it. As soon as she turned, she saw defendant
looking at her. He started walking, so Doe and her sister followed him. Doe observed
him slap or grab another girl’s buttocks. They continued to follow him, and Doe’s sister
called security. Defendant was walking at a fast pace and went into a restaurant.
Security officers detained him in the restaurant until the police arrived.
On December 29, 2014, an information was filed alleging that defendant
committed a lewd act on a child (§ 288, subd. (c)(1), count 1) and sexual battery (§ 243.4,
subd. (e)(1), count 2). On March 5, 2015, the information was orally amended to add a
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2 The factual background is taken from the preliminary hearing transcript.
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third count of assault with force likely to produce great bodily injury. (§ 245,
subd. (a)(4), count 3.) The court reviewed the terms of the plea agreement, which stated
that defendant would receive felony probation, serve 364 days in county jail, be subject to
“sex offender terms” and “alcohol terms,” that he was to stay away from Ontario Mills
shopping mall, and that he would not be required to register as a sex offender under
section 290. The court orally reminded defendant that he would have “standard sex
offender terms,” and that he would not have to register as a sex offender. The parties
stipulated that there was a factual basis for the plea, and, pursuant to the plea agreement,
defendant pled no contest to count 3. The court referred the matter to the probation
department for a presentence report and ordered defendant back on April 1, 2015, for
sentencing.
At the outset of the sentencing hearing on April 1, 2015, defense counsel agreed
that defendant had “stipulate[d] to certain offender terms,” but then objected to the
probation term requiring him to submit to random polygraph testing. Defense counsel
asserted that after defendant entered his plea, she “came across some case law” stating
that “any waiver of self-incrimination based on polygraph testing is unconstitutional.”
The prosecutor said that the polygraph requirement was “part of the sex offender terms,
and that’s what [their] bargain was, that [defendant] doesn’t have to register, but he’s
monitored like a sex offender.” The prosecutor said it was a standard probation condition
in those types of cases, and the court allowed the condition to stand. The court then
dismissed counts 1 and 2, on motion by the People.
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ANALYSIS
The Condition Requiring Defendant to Submit to Polygraph Testing Does Not Violate
His Right Against Self-Incrimination
The trial court imposed condition No. 32 (the polygraph condition), which
required that defendant “submit to random polygraph testing by a Probation department
approved polygraph examiner at the direction of the Probation Officer, as part of the sex
offender surveillance program and be responsible for all costs associated with
examinations.” Defendant contends that the condition is unconstitutional, in that it
violates his Fifth Amendment right against self-incrimination and is overbroad. We
agree that the condition is overbroad and should be modified.
A. Defendant’s Challenge is Not Barred
At the outset, the People argue that defendant’s challenge is barred because he
failed to obtain a certificate of probable cause. Citing People v. Panizzon (1996) 13
Cal.4th 68 (Panizzon), the People contend that, because the record indicates the
polygraph condition was an express element of defendant’s plea agreement, his challenge
to it is an attack on the validity of the plea. We find the record unclear on the matter.
Section 1237.5 provides in relevant part: “No appeal shall be taken by the
defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . .
except where both of the following are met: [¶] (a) The defendant has filed with the trial
court a written statement, executed under oath or penalty of perjury showing reasonable
constitutional, jurisdictional, or other grounds going to the legality of the proceedings.
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[¶] (b) The trial court has executed and filed a certificate of probable cause for such
appeal with the clerk of the court.” “It has long been established that issues going to the
validity of a plea require compliance with section 1237.5.” (Panizzon, supra, 13 Cal.4th
at p. 76.)
In Panizzon, supra, 13 Cal.4th 68, the defendant pled no contest to various felony
counts “pursuant to a plea bargain that specifically provided for the imposition of certain
prison time.” (Id. at p. 72.) After the court sentenced him in accordance with the plea
bargain, defendant sought to appeal the sentence. (Id. at pp. 72-73.) The Supreme Court
concluded that “by contesting the constitutionality of the very sentence he negotiated as
part of the plea bargain, defendant [was], in substance, attacking the validity of the plea.”
(Id. at p. 78.) For that reason, the court held that the certificate requirement of section
1237.5 applied. (Ibid.)
Here, the People claim that defendant agreed to the polygraph condition as an
element of his plea agreement; thus, since the trial court simply imposed the conditions
he had agreed to, his challenge to the polygraph condition is an attack on the validity of
the plea. However, unlike Panizzon, the condition defendant is contesting was apparently
not “an integral part of the plea.” (Panizzon, supra, 13 Cal.4th at p. 73.) The record
indicates that defendant entered the plea agreement and merely agreed to “sex offender
terms.” The plea agreement did not list any specific terms. After taking his plea, the
court then referred the matter to the probation department for a presentence report. Thus,
defendant was not given a list of the specific probation conditions until after he entered
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his plea. We note that once defendant was given the list of probation conditions, defense
counsel objected to the polygraph condition at the sentencing hearing. Because it does
not appear that defendant agreed to the polygraph condition specifically as part of the
plea, we cannot say that his challenge to that condition is a challenge to the validity of the
plea. Therefore, we will reach the merits of defendant’s claim, even though he did not
obtain a certificate of probable cause under section 1237.5.
B. The Polygraph Condition Does Not Violate Defendant’s Fifth Amendment
Right Against Self-Incrimination
Defendant challenges the polygraph condition and initially asserts that the court
abused its discretion by imposing the condition simply “on the basis that it was a
‘standard’ condition for all sex offenders.” He also argues that the polygraph condition is
overbroad. We conclude that the court did not abuse its discretion in imposing the
polygraph condition, but agree that the condition should be modified.
Section 1203.1 provides that in granting probation, the court may impose any and
all conditions that it determines 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, . . .” (§ 1203.1, subd. (j).) The trial
court has “broad discretion to impose conditions to foster rehabilitation and to protect
public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10
Cal.4th 1114, 1120.) “The trial court’s discretion, although broad, nevertheless is not
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without limits: a condition of probation must serve a purpose specified in the statute. In
addition, we have interpreted Penal Code section 1203.1 to require 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.]” (Id. at
p. 1121.) Accordingly, a probation condition “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, fn. omitted.) A probation condition is valid under the Fifth Amendment unless there
is a reasonable basis for concluding an impermissible penalty has been attached to the
exercise of the privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 436-437.)
Minnesota v. Murphy sets forth the rule that the Fifth Amendment privilege is not lost
when a person is granted probation. Specifically, a state cannot “constitutionally carry
out a threat to revoke probation for the legitimate exercise of the Fifth Amendment
privilege.” (Id. at p. 438.)
We reject defendant’s contention that imposing polygraph testing as a condition of
probation violates his rights and privileges under the Fifth Amendment. The fact that
defendant “has a duty to answer the polygraph examiner’s question truthfully does not
mean his answers are compelled within the meaning of the Fifth Amendment.
[Citations.] [He] has misconstrued the nature of the privilege against self-incrimination;
it is not self-executing; rather, it must be claimed. [Citations.] Thus, unless [defendant]
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specially invokes the privilege, shows he faces a realistic threat of self-incrimination and
nevertheless is made to answer the question or questions, no violation of his privilege
against self-incrimination is suffered. [Citations.]” (Brown v. Superior Court (2002) 101
Cal.App.4th 313, 320 (Brown).)
Defendant’s contention that the polygraph condition is overbroad, however, is well
taken. In Brown, supra, 101 Cal.App.4th 313, the court imposed a polygraph condition
to further the defendant’s successful completion of a stalking therapy program. (Id. at
p. 321.) The court found that the condition was broadly worded, in that it required the
defendant to “‘[u]ndergo periodic polygraph examinations at [the] defendant’s expense,
at the direction of the probation officer.’” (Ibid.) The court held that the condition
imposing polygraph testing was required to “limit the questions allowed to those relating
to the successful completion of the stalking therapy program and the crime of which [the
defendant] was convicted.” (Ibid.)
Here, the text of the polygraph condition is similar to the one in Brown, except
that defendant has been ordered to complete a sex offender surveillance program, rather
than a stalking therapy program. Like the condition in Brown, the polygraph condition
does not limit the types of questions that can be asked during the examination and, thus,
is overbroad. It should be rewritten to limit the questions allowed to those relating to the
successful completion of the court-mandated sex offender surveillance program and the
crime of which defendant was convicted. Additionally, the requirement that defendant
pay the costs of polygraph testing cannot be included in the probation condition and
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should therefore be stricken. (Brown, supra, 101 Cal.App.4th at p. 321.) As the Brown
court noted, before requiring a defendant to pay all or a portion of the reasonable costs of
polygraph testing, “the court must make an inquiry and determination regarding his
ability to pay, and issue a separate order for the payment of such costs.” (Id. at p. 322;
see § 1203.1b.) “This order can be enforced through a civil action—not through
contempt proceedings, or the threat, express or implied, of revocation of probation.”
(Brown, at p. 322.)
We take note of the People’s argument that the polygraph condition is not
unconstitutional, as well as their lengthy discussion of the Sex Offender Punishment,
Control, and Containment Act of 2006 (§ 290.03) and the sex offender management
program (§§ 290.09 & 1203.067). The People claim that defendant was ordered to
participate in the sex offender management program pursuant to section 1203.067, which
requires the “[w]aiver of any privilege against self-incrimination and participation in
polygraph examinations, which shall be part of the sex offender management program.”
(§ 1203.067, subd. (b)(3).) However, the record does not reflect that the trial court
ordered defendant’s polygraph testing under section 1203.067. In fact, section 1203.067
does not apply to defendant. Rather, it applies to persons placed on probation “for an
offense that requires registration pursuant to Sections 290 to 290.023.” (§ 1203.067,
subd. (b).) Defendant was convicted of assault, pursuant to section 245,
subdivision (a)(4), which does not require sex offender registration (§ 290, subd. (c)).
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Moreover, the court specifically noted that defendant did not have to register as a sex
offender.
In his reply brief, defendant then responds as if he was subject to the requirements
of section 1203.067. He contends that he “has been put in the position of completely
waiving his privilege against self-incrimination on pain of revocation of his probation and
imprisonment if he refuses to comply.” Again, section 1203.067 does not apply to
defendant.
Finally, the People note that the issue of whether a probation condition requiring a
defendant to submit to polygraph examinations violates his Fifth Amendment rights is
currently pending before the California Supreme Court. However, the three cases cited
by the People—People v. Friday (2014) 225 Cal.App.4th 8, review granted July 16,
2014, S218288, People v. Klatt (2014) 225 Cal.App.4th 906, review granted July 16,
2014, S218755, and People v. Garcia (2014) 224 Cal.App.4th 1283, review granted July
16, 2014, S218197—concern the constitutionality of requiring a registered sex offender
to waive the privilege against self-incrimination under section 1203.067,
subdivision (b)(3). Defendant similarly notes that those cases, along with People v.
Rebulloza (2015) 234 Cal.App.4th 1065, review granted June 10, 2015, S225503, have
been granted review, and he suggests that this court could “postpone any decision in this
appeal” until the Supreme Court decides those cases. Again, none of those cases are
relevant to the instant appeal, since the court here did not impose the polygraph condition
pursuant to section 1203.067.
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Thus, condition No. 32 is modified to read as follows: “You shall submit to
random polygraph testing by a Probation Department approved polygraph examiner at
the direction of the Probation Officer, as part of the sex offender surveillance program.
The questions shall be limited to those relating to the successful completion of the sex
offender surveillance program and the crime of which you were convicted.”
DISPOSITION
The judgment is modified, as follows:
Probation condition No. 32 is modified to read: “You shall submit to random
polygraph testing by a Probation Department approved polygraph examiner at the
direction of the Probation Officer, as part of the sex offender surveillance program. The
questions shall be limited to those relating to the successful completion of the sex
offender surveillance program and the crime of which you were convicted.”
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.
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