Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Charles W. Ervin, Judge. Super. Ct. No. SCE242653
McDONALD, J.
Defendant Marvin Palmer appeals an order imposing probation conditions that require him to submit to random polygraph examinations (the polygraph condition) and prohibit him from associating with minors without a probation-approved adult present (the nonassociation condition). Palmer contends: (1) the polygraph condition is invalid because it does not meet the criteria for a valid probation condition under People v. Lent (1975) 15 Cal.3d 481, and is unconstitutionally overbroad; and (2) the nonassociation condition violates his freedom of association and familial privacy.
FACTUAL AND PROCEDURAL BACKGROUND
Palmer was convicted in 1993 for lewd and lascivious acts with a child under 14 (Pen. Code, § 288, subd. (a)), and was subsequently required to register under section 290. On August 6, 2004, Palmer was arrested for not registering as a sex offender (§ 290, subd. (g)(2)), and a felony information charging him with that offense was filed.
All statutory references are to the Penal Code unless otherwise specified.
Prior to Palmer's 2004 arrest, his registered address was a self-storage facility in Lemon Grove to which the facility owner had recently changed the locks and said she had not yet provided Palmer a key. Palmer insisted he was living in the facility despite its lack of living accommodations.
Palmer's wife told the police that she and Palmer were living together, but would not identify the location, and his brother-in-law told the police Palmer lived at 1628 Seabrook Lane in San Diego. Palmer told the probation officer his family had just moved into the Seabrook Lane home, but because he was having marital troubles he had never really moved into the home. Palmer's vehicle had been registered to the Seabrook address since April 2004.
On December 3, 2004, the court denied Palmer's motion to dismiss the failure to register charge, but stated its willingness to grant probation. Palmer then pleaded guilty to the failure to register charge and admitted three prior strike conviction allegations. At the January 4, 2005 sentencing hearing, the court sentenced Palmer to three years of formal probation with a 90-day custody condition and the opportunity to serve through Work Furlough. Although the court did not impose a polygraph requirement, it imposed a condition forbidding association with minors, except in the presence of an adult approved by the probation officer.
The condition states Palmer must not "associate with minors, nor be in places where minors congregate, unless with an adult approved by the probation officer."
A little over a month later, on February 16, Palmer was rearrested for violating probation by not registering and not reporting to his probation officer within 72 hours after release from custody. He was also terminated from the Work Furlough program. On March 16, Palmer admitted the violations and waived his right to a probation revocation evidentiary hearing. The court then revoked and reinstated probation on the same terms and conditions, specifically requiring Palmer to register as a sex offender.
On May 2, 2006, Palmer was again arrested for violations of probation conditions, including failure to report for a scheduled office visit with the probation officer on May 1 and associating with minors without an approved adult present. On May 30, the probation revocation evidentiary hearing was held. Palmer's probation officer, Kelly Kutzer, testified regarding the alleged violations.
There was also a third alleged violation: that Palmer traveled outside San Diego County without the consent of his probation officer. However, the court found it unsupported by the evidence at the May 30 evidentiary hearing.
Palmer was scheduled to meet with Kutzer on May 1, 2006, at 8:00 a.m. At 11:26 that morning, Kutzer telephoned Palmer at home. Palmer said he had forgotten his appointment and thought it was on May 5, offering to come to the office right away. Kutzer ultimately met with Palmer via teleconference on May 12. During that meeting, Kutzer asked Palmer about missing the May 1 appointment. Palmer replied that on May 1, he was running a few minutes late and was on the way to the meeting, but that Kutzer had called him and told him to come in the next day.
Kutzer conducted two unannounced home visits at Palmer's home. On April 11, Kutzer heard Palmer talking with a "youthful female and youthful male" inside the garage. Kutzer rang the doorbell repeatedly, but Palmer did not answer until another officer knocked on the garage door. When confronted about who else was in the home, Palmer stated that he was alone with his daughter and denied that anyone else was present. Kutzer returned to Palmer's home on April 25. Palmer was in the garage and opened the garage door. Kutzer noticed that the zipper on Palmer's shorts was down, and she told him to close his zipper. Palmer told Kutzer that his daughter was home, and upon inspecting Palmer's bedroom, found his daughter asleep in his bed. Palmer said his daughter was in his bedroom to watch television. Kutzer observed televisions in his daughters' bedrooms.
Palmer's wife and friends testified Palmer is a hardworking family man who devotes much of his time volunteering at his church. The court found Palmer had violated probation but reinstated probation on its original terms, modifying it to include a polygraph examination condition at the People's request. The court imposed "periodic polygraph examinations at the direction of the probation officer. Questions in the examination will be . . . limited to those which are reasonably related to successful completion of any court or probation-ordered counseling, therapy, stalking programs, as well as the crimes which he has been convicted of." The court asked Palmer's attorney if he wished to be heard regarding the imposition of the polygraph condition, but the attorney did not object.
DISCUSSION
I
Preservation of Issues on Appeal
If a defendant does not object at sentencing to a probation condition, any claim of error on appeal in imposing the condition is waived unless the issue involves a pure question of law. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) "[T]he trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case." (In re Sheena K. (2007) 40 Cal.4th 875, 885.) However, a claim on appeal involving constitutional issues, including vagueness and overbreadth, "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (Ibid.) Therefore, a claim raising constitutional issues may be properly raised on appeal for the first time.
Palmer accepted the nonassociation condition when he accepted probation without objection at the January 4, 2005 hearing. Palmer concedes he did not object to the nonassociation condition or the polygraph condition at the May 30, 2006 sentencing hearing. However, he raises Lent and constitutional claims regarding overbreadth as to the polygraph condition, and freedom of association and privacy as to the nonassociation condition.
Under Welch, Palmer's Lent claim as to the polygraph condition would have been waived because he did not object in the trial court. However, the People do not argue waiver or forfeiture as to any of Palmer's appellate claims, including his unreasonableness claim under Lent. Because the People do not argue the claim was waived, we will review it. We need not reach Palmer's ineffectiveness of counsel argument he proffers as an alternative basis to grant review (counsel's failure to object to the probation conditions at sentencing).
II
Standard of Review
Trial courts have broad discretion under section 1203.1 to impose conditions of probation to foster rehabilitation of the defendant, to protect the public and the victim, and to ensure justice is done. (People v. Jungers (2005) 127 Cal.App.4th 698, 702, citing § 203.1, subd. (j) and Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) The trial court's discretion is not limitless and must serve a purpose specified in the statute. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. (Ibid.) Therefore, we review the validity of the challenged probation conditions under an abuse of discretion standard.
III
The Polygraph Condition
Palmer contends the polygraph condition does not meet the criteria for a valid probation condition under Lent. He also argues the condition is unconstitutionally overbroad.
A
Unreasonableness Challenge under People v. Lent
Palmer argues the polygraph condition does not meet the Lent criteria because it relates to conduct not itself criminal, and is not reasonably related to his underlying failure-to-register conviction or to future criminality.
Lent provides that a condition of probation relating to conduct not in itself criminal is valid if the condition is reasonably related to the crime for which the defendant was convicted or to future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.) The polygraph condition relates to conduct not in itself criminal, and the issue is therefore whether it is reasonably related to the failure-to-register conviction or to future criminality. Palmer correctly states the polygraph condition was imposed for a probation violation stemming from a failure-to-register conviction. He argues the polygraph condition is not related to that offense or to future criminality.
We conclude the polygraph condition is related to the underlying failure-to-register conviction and future criminality. Testimony in the record supports an inference that Palmer's storage unit address was a "sham": the statements made by his brother-in-law and wife that he was living at the Seabrook address, the fact that his 1988 Dodge had been registered to the Seabrook address since April 2004 despite his statement that he had just moved to that address, and the question of access to the facility itself.
Palmer was rearrested about a month after his conviction for failing to register and failing to report. A year later, he was arrested again for failure to report as well as violation of the nonassociation condition. In addition, reports of Palmer's original section 288, subdivision (a) arrest reveal that his three victims were family members but Palmer reported only one victim in treatment, and Palmer's treatment provider noted that it was impossible to ascertain the truth of Palmer's statements.
Palmer's patterns of probation violation are similar, and from the record his truthfulness has been a crucial issue in his treatment. The trial court could have reasonably concluded the polygraph condition was necessary as an investigative tool to monitor Palmer and ensure the correct location of his residence required by his registration obligation, and his future compliance with his registration obligation and the terms of probation. The trial court did not abuse its discretion by imposing the polygraph condition.
B
Overbreadth Challenge
Palmer contends the polygraph condition is overbroad and not tailored to his situation because it permits questions about a nonexistent stalking program.
In support of his argument, Palmer attempts to analogize this case with People v. Brown, supra, 101 Cal.App.4th 313. In Brown, the trial court imposed a condition requiring periodic polygraph examinations at the direction of the probation officer after the defendant was convicted of stalking. (Id. at p. 321.) We held the condition to be impermissibly overbroad because there were no restrictions on the questions that could be asked by the examiner, and the court did not otherwise tailor the condition to comport with the court's purpose in imposing the condition. (Ibid.) We limited the defendant's polygraph condition to questions relating to successful completion of a court-mandated stalking program and the crime for which he was convicted. (Id. at p. 323.)
In contrast, when imposing the polygraph condition, the trial court in this case did limit the questions in the examination "to those . . . reasonably related to successful completion of any court or probation-ordered counseling, therapy, stalking programs, as well as the crimes which he has been convicted of."
Questions relating to counseling or therapy would be appropriate because Palmer expressed a wish to stop sex offender treatment, a condition of his probation, and polygraph examinations would ensure he was in compliance. Likewise, questions regarding the crimes for which he has been convicted are directly related to future criminality. Therefore, the trial court's limitation of questions to these subjects was proper.
However, we agree with Palmer that questions regarding stalking programs are not appropriate because they are not reasonably related to the crime for which Palmer was convicted or to possible future criminality. Palmer was never convicted of a stalking offense, and there is no evidence stalking was an element of any of the crimes for which he was convicted. Thus, the court abused its discretion when it included questions related to stalking programs as a part of the polygraph examination.
IV
The Nonassociation Condition
Palmer contends that the nonassociation condition violates his freedom of association and right to familial privacy because it does not contain language allowing him to associate with his daughter.
Probation is a privilege and not a right. (People v. Jungers, supra, 127 Cal.App.4th at p. 703, citing In re York (1995) 9 Cal.4th 1133, 1150.) A probationer is not entitled to the same constitutional protections as other citizens, and a probation condition infringing on a constitutional right is permissible if it serves the purposes of rehabilitation and public safety. (People v. Peck (1996) 52 Cal.App.4th 351, 362.) Nevertheless, probation conditions restricting constitutional rights must be "carefully tailored and 'reasonably related to the compelling state interest' in reforming and rehabilitating the defendant." (Jungers, supra, 127 Cal.App.4th at p. 704.)
The condition prohibiting Palmer from associating with minors infringes on Palmer's freedom to associate and right to privacy. However, the condition imposed by the trial court is both carefully tailored and reasonably related to the compelling state interests of rehabilitation and public safety.
As a preliminary matter, the restriction of the right of association is part of the nature of the criminal process. (People v. Robinson (1988) 199 Cal.App.3d 816, 818.) In addition, probationers do not enjoy the absolute liberty to which other citizens are entitled. (Griffin v. Wisconsin (1987) 483 U.S. 868, 874; see also People v. Mills (1978) 81 Cal.App.3d 171, 181 ["any person who commits a violation of section 288 . . . has waived any right to privacy"].)
Here, the probation condition forbids Palmer from associating with minors or being in places where minors congregate except in the presence of an adult approved by the probation officer. Therefore, the condition is not an absolute bar to associating with minors. Indeed, Palmer seemed to have accepted the condition on July 26, 2005, when he and his wife, Tanya, signed a Chaperone Agreement. The Chaperone Agreement provides that Palmer cannot be alone with a child of either gender, and instructs Tanya, as Palmer's adult chaperone, not to let Palmer out of her eyesight if Palmer is with a child.
Palmer's assertions that the condition requires him to avoid association with his daughter or essentially requires him to reside apart from his family are exaggerated. The condition does not foreclose the possibility of having a relationship with his daughter, but simply requires that if he is at home with his daughter, there must be another probation-approved adult present.
The state's interest in ensuring the safety of children is a compelling one, and the legislative purpose behind the registration requirements of section 290 is to assure that persons convicted of sex crimes against children will be readily available for police surveillance at all times. (People v. Mills, supra, 81 Cal.App.3d at p. 176.) Prohibiting Palmer from associating with minors except in the presence of a probation-approved adult serves to protect children as well as to aid in Palmer's rehabilitation by keeping him out of situations that could possibly lead to a violation. The condition does not impermissibly infringe on Palmer's constitutional rights.
DISPOSITION
The order is modified to remove questions relating to stalking programs from the polygraph condition; the order is otherwise affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.