Filed 10/20/15 P. v. Martinez CA4/2



                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E062346

v.                                                                        (Super.Ct.No. FSB1404403)

MARCELINO MARTINEZ,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed.

         Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and

Respondent.




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         Appellant and defendant Marcelino Martinez pled guilty to arranging to meet with

a minor for lewd purposes (Pen. Code, § 288.4, subd. (b), count 1)1 and possession or

control of child pornography (§ 311.11, subd. (a), count 3).2 In accordance with the plea

agreement, the trial court placed defendant on probation for a period of five years, under

specified probation conditions. On appeal, defendant contends that: (1) the conditions

requiring him to submit to a field interrogation by a peace officer and to submit to

polygraph testing infringe on his constitutional right against self-incrimination; (2) four

of his conditions are unconstitutionally vague and must be modified to include an express

knowledge requirement; and (3) the court impermissibly required him to pay certain costs

as a condition of his probation. The People concede, and we agree, that the probation

order should be modified to clarify that the payment of probation costs is not a condition

of probation, but a separate order. We also agree with defendant that certain probation

conditions should be modified. Otherwise, we affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND3

         On or about September 15, 2014, a father discovered that his 14-year-old daughter

(the victim) was exchanging sexually explicit messages on Facebook with defendant,

whom the victim knew as “Jay.” Defendant had about 500 friends on Facebook, who

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2
         Defendant was charged by felony complaint with two other offenses in counts 2
and 4, but those counts were dismissed.

         3
         The factual background is taken from the probation report, since defendant pled
guilty pursuant to a plea agreement.


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were all young females. The victim’s father (father) sent defendant a message on

Facebook and told him not to contact his daughter. Father then contacted the police.

       The police began investigating. The victim said she became friends with

defendant on Facebook and had been exchanging sexually explicit messages with him for

approximately two months. Defendant told the victim he was 20 years old, and she told

him she was 14. The victim said defendant had been trying to get her to meet with him,

and they discussed having sex. Defendant repeatedly told her to lie to her parents and

meet with him. The victim provided the police detective with her Facebook account

name and password so that the police could review defendant’s past messages and

continue to chat with him. Posing as the victim, the detective asked defendant questions

about himself, but he declined to answer. Defendant said she would find out the answers

when they met. Defendant kept trying to get the detective to meet with him immediately.

They discussed meeting at a park, and defendant told her to wear a skirt and a thong.

       Defendant and the detective (still posing as the victim) continued to text each

other the following morning, and the detective said she was getting ready to meet him.

Defendant said they would “be doing it in [his] car,” and told the detective she could call

him “Daddy.” Defendant later texted the detective, said he was at the location, and told

her to walk to the gray car. The female detective, who was acting as a juvenile decoy,

began walking toward the playground where defendant directed her to go. Defendant

pulled out of the parking lot and drove toward her. Officers pulled up in front of his car

and arrested him. Incident to his arrest, the officers searched defendant’s car and found a

box of condoms and his cell phone, which was opened to the Facebook chats between


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him and the detective. After being read his Miranda4 rights, defendant admitted that he

was at the park to meet an underage girl whom he had never met before. He admitted

that he had initiated sexual discussions with her, and that they had talked about lying,

sneaking out, going to the park, and having sex. Defendant admitted that he was addicted

to pornography and that he had received pictures of naked minors on his cell phone. The

police later obtained a warrant and searched defendant’s home. They discovered another

cell phone that had child pornography on it.

       A felony complaint was filed, alleging that defendant committed the following

crimes: arranging to meet with a minor for lewd purposes (§ 288.4, subd. (b), count 1),

attempted lewd act upon a child (§§ 664, 288, subd. (a), count 2), possession of child

pornography (§ 311.11, subd. (a), count 3), and contact with a minor for a sexual offense

(§ 288.3, subd. (a), count 4). Pursuant to a plea bargain, defendant pled guilty to counts 1

and 3. In exchange, the prosecution dismissed the remaining counts. Pursuant to the plea

agreement, the court placed defendant on felony probation for five years, under certain

conditions.




       4   Miranda v. Arizona (1966) 384 U.S. 436.


                                               4
                                         ANALYSIS

                                              I.

        The Conditions Requiring Defendant to Submit to Field Interrogations and

           Polygraph Testing Do Not Infringe on His Fifth Amendment Rights

       Defendant contends that the probation conditions that require him to “[s]ubmit to

and cooperate in a field investigation by any peace officer at any time of the day or night”

(No. 15), and to submit to random polygraph testing (No. 23), are unconstitutional

because they impermissibly infringe on his Fifth Amendment rights.5 He claims that he

could be found in violation of his probation if “during such an investigation or polygraph

testing he invoked his Fifth Amendment right to remain silent.” We disagree.

       At the outset, we note that the minute order lists condition No. 15 as: “Submit to

and cooperate in a field investigation by any peace officer at any time of the day or

night.” (Italics added.) However, the probation report states that the condition requires

defendant to: “Submit to, and cooperate in, a field interrogation by any peace officer

. . . .” (Italics added.) We understand this condition to read “field interrogation,” rather

than “field investigation,” since that is the standard language used in the probation report.

Moreover, such understanding is reasonable in the context of defendant’s claim that

condition No. 15 is “fatally deficient” because it infringes upon his right to invoke his

constitutional right to remain silent.


       5 We note that the probation conditions are numbered differently in the probation
report and the minute order. In this opinion, we will refer to the conditions as numbered
in the minute order.


                                              5
       Pursuant to section 1203.1, “the sentencing court has broad discretion to prescribe

reasonable probation conditions to foster rehabilitation and to protect the public so justice

may be done. [Citations.]” (People v. Miller (1989) 208 Cal.App.3d 1311, 1314.)

Furthermore, “[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 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.)

       In light of this well-settled rule, there is no reasonable basis for concluding that the

field interrogation probation condition places an impermissible penalty on defendant’s

Fifth Amendment privilege. The condition does not compel him to make incriminating

disclosures. The condition merely requires him to “[s]ubmit to and cooperate in a field

interrogation by any peace officer.” 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, 50-52


                                              6
[finding no realistic threat of having the defendant’s probation revoked for exercising his

Fifth Amendment privilege in a requirement to “cooperate with the Probation Officer in

all investigations and interviews”].) Thus, 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, supra, 465 U.S. at

p. 434.)

       Similarly, 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]

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).)

       Accordingly, we conclude that defendant’s Fifth Amendment privilege has not

been infringed upon by the field interrogation probation condition (No. 15) or the

polygraph testing condition (No. 23).




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                                              II.

              The Condition Regarding Possession of Weapons or Explosive

                               Devices Should Be Modified

       Condition No. 9 states that defendant should “[n]either possess nor have under

[his] control any dangerous or deadly weapons or explosive devices or materials to make

explosive devices.” Defendant argues that this condition is unconstitutionally vague,

since he has no way of knowing what components of an explosive device it could be

referring to. We agree that the condition should be modified.

       A. Standard of Review

       Whether a probation condition is unconstitutionally vague is a question of law

reviewed de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

       B. The Condition Should Be Modified

       Defendant asserts that many common tools and items, such as hammers,

screwdrivers, pliers, batteries, timers, and clocks can be used to make an explosive

device. Thus, he contends that condition No. 9 is unconstitutionally vague because there

is no clear definition of what the term “materials” includes. The People argue that a

scienter requirement is implied in every probation condition, and that “[s]ince there is an

implied intent element, it is evident that the definition of ‘materials’ is materials which

[defendant] intends to use to make an explosive device.” However, a scienter

requirement in a probation condition refers to requiring that a probationer knowingly

undertake the actions proscribed in the condition. (See People v. Patel (2011) 196

Cal.App.4th 956, 960 (Patel).) In this case, defendant could knowingly, but innocently,


                                              8
possess common items that could be used to construct explosive devices. Therefore, for

the sake of clarity, the condition should be modified to read: “Neither knowingly

possess, nor knowingly have under your control, any dangerous or deadly weapons or

explosive devices or materials to make explosive devices, the latter with the intent of

making explosive devices.”

                                            III.

                   Condition Nos. 13, 19, and 20 Should Be Modified

                          to Include a Knowledge Requirement

       Defendant contends that three of his probation conditions, as currently worded, are

unconstitutionally vague. He complains that condition Nos. 13, 19, and 20 have no

knowledge requirement and, thus, must be modified. We agree.

       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair

warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of

preventing arbitrary law enforcement and providing adequate notice to potential

offenders.’ [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K).) “A

probation condition ‘must be sufficiently precise for the probationer to know what is

required of him, and for the court to determine whether the condition has been violated,’

if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation

condition that imposes limitations on a person’s constitutional rights must closely tailor

those limitations to the purpose of the condition to avoid being invalidated as

unconstitutionally overbroad. [Citation.]” (Ibid.)




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       Condition No. 13 provides that defendant “[n]ot associate with females under the

age of eighteen (18), unless in the presence of a responsible adult.” Defendant contends

that this condition should be modified to include a knowledge requirement. (People v.

Turner (2007) 155 Cal.App.4th 1432, 1436 (Turner) [“A person may reasonably not

know whether he or she is associating with someone under the age of 18.”])

       Condition No. 19 provides that defendant “[n]ot have any contact with the victim

nor be within 100 yards of the victim’s residence, place of employment or school.”

Defendant similarly argues that a knowledge requirement should be included in this

condition, so that he would not inadvertently find himself within 100 yards of the

victim’s location.

       Condition No. 20 mandates that defendant “[n]ot have or access any social media

or Internet except for legitimate school work.” He contends that this condition should be

modified, since “without an express knowledge requirement, defendant could unwittingly

violate the condition as there are situations in which he may not know he has access to or

has accessed the Internet.” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

(Pirali).)

       The People suggest we adopt the Third Appellate District’s approach in Patel,

supra, 196 Cal.App.4th 956. In that case, the court considered a probation condition

forbidding the defendant from drinking or possessing alcohol, or being in a place where

alcohol is the chief item of sale, invalid because the condition lacked an express

knowledge requirement. (Id. at p. 959.) The Patel court expressed its frustration with the

“dismaying regularity” with which it had to revisit the issue of a lack of an express


                                            10
scienter requirement in orders of probation. (Id. at p. 960.) The court noted that since

there existed a substantial uncontradicted body of case law establishing that a

“probationer cannot be punished for presence, possession, association, or other actions

absent proof of scienter,” it would no longer entertain the issue on appeal. (Ibid.) The

court stated that going forward, it would construe every such probation condition

proscribing restrictions on presence, possession, association, or other actions, to require

that the action be undertaken knowingly. (Ibid.) Thus, it would no longer be necessary

to seek a modification of a probation order that failed to include a scienter requirement.

(Id. at pp. 960-961.)

       We note that a number of the Courts of Appeal have declined to follow the

rationale of Patel, including the Fourth Appellate District, Division Three, in People v.

Moses (2011) 199 Cal.App.4th 374, 381, where the court chose to modify the probation

conditions to include a knowledge requirement. We too decline to follow the Third

Appellate District’s approach in Patel. As noted in Pirali, supra, 217 Cal.App.4th 1341,

“[o]ur Supreme Court faced the issue of the lack of a knowledge requirement in a

probation condition and concluded that ‘modification to impose an explicit knowledge

requirement is necessary to render the condition constitutional.’ [Citation.] Until our

Supreme Court rules differently, we will follow its lead on this point.” (Id. at p. 1351;

see Sheena K., supra, 40 Cal.4th at p. 892.)

       Therefore, condition No. 13 should be modified to read: “Not knowingly

associate with females under the age of eighteen (18), unless in the presence of a

responsible adult.” (See Turner, supra, 155 Cal.App.4th at p. 1436.) Condition No. 19


                                               11
should be modified to read: “Not have any contact with the victim nor knowingly be

within 100 yards of the victim’s residence, place of employment or school.” Condition

No. 20 should be modified to read: “Not have or knowingly access any social media or

Internet except for legitimate school work.” (See Pirali, supra, 217 Cal.App.4th at

pp. 1350-1351.)

                                           IV.

     The Conditions Ordering Defendant to Pay Certain Costs Should Be Modified

       Defendant argues, and the People concede, that a trial court may not make the

payment of costs associated with probation a condition of probation. We agree.

       “[A] trial court may order a defendant to pay for reasonable costs of probation;

however, such costs are collateral and their payment cannot be made a condition of

probation.” (Brown, supra, 101 Cal.App.4th at p. 321.) Instead, the court must “issue a

separate order for the payment of such costs.” (Id. at p. 322.) “Moreover, before

ordering a defendant to pay costs of probation, the court must make an inquiry and

determination of the defendant’s ability to pay and the amount of payment.” (Ibid.; see

§ 1203.1b, subd. (a).)

       Here, condition No. 11 requires defendant to participate in a counseling program,

and “be responsible for payment of all program fee(s).” Condition No. 22 requires him to

complete a sex offender treatment program “and be responsible for all payment fees.”

Condition No. 23 requires defendant to submit to random polygraph testing and “be

responsible for all costs associated with examinations.” The requirement that defendant

pay for the counseling program is an integral part of condition No. 11. Similarly, the


                                            12
requirements that defendant pay the sex offender program fees and the polygraph testing

costs are also integral parts of condition Nos. 22 and 23, respectively. As such, payment

of the costs and fees is not collateral, but a condition of probation. (See Brown, supra,

101 Cal.App.4th at p. 321.) The court must make an inquiry and determination regarding

defendant’s ability to pay, and issue a separate order for the payment of such costs and

fees. (Id. at p. 322.)

        Accordingly, condition Nos. 11, 22, and 23 should be modified to delete the

portion of each condition requiring defendant to be responsible for paying costs and/or

fees.

                                      DISPOSITION

        The probation conditions should be modified as follows:

        Condition No. 9 should read: “Neither knowingly possess, nor knowingly have

under your control, any dangerous or deadly weapons or explosive devices or materials to

make explosive devices, the latter with the intent of making explosive devices.”

        Condition No. 13 should be modified to read: “Not knowingly associate with

females under the age of eighteen (18), unless in the presence of a responsible adult.”

        Condition No. 19 should be modified to read: “Not have any contact with the

victim nor knowingly be within 100 yards of the victim’s residence, place of employment

or school.”

        Condition No. 20 should be modified to read: “Not have or knowingly access any

social media or Internet except for legitimate school work.”




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       Additionally, condition Nos. 11, 22, and 23 should be modified to delete the

portion of each condition requiring defendant to be responsible for the payment of the

costs/fees of any programs or testing. The court is directed to issue a separate order for

the payment of such costs and fees. Before the court may order defendant to pay any or

all costs associated with his probation, it must make an inquiry and determination as to

his ability to pay and determine the amount of payment. (§ 1203.1b, subd. (a).)

       In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                          Acting P. J.


We concur:


McKINSTER
                          J.


KING
                          J.




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