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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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,                                       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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