Opinion
A103039.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY PINTO, Defendant and Appellant.
Defendant Anthony Pinto appeals from a judgment of conviction following a guilty plea, challenging only the imposition of conditions of probation requiring him to submit to a polygraph examination whenever requested to do so by a probation officer, and to pay the costs of the polygraph examination and any additional costs that would be incurred in connection with other conditions of probation. He contends the polygraph condition should be stricken because it is overbroad, and that payment of the costs may not be made a condition of probation or otherwise ordered without the court first determining his ability to pay. The Attorney General acknowledges that the order to pay probationary costs must be modified, but disputes the over breadth of the polygraph condition. While we conclude that the polygraph condition as intended by the trial court is proper, we believe that the courts intent can be stated more clearly, which we direct since a remand is necessary in all events to correct the imposition of costs.
Background
Arising out of an episode on a Greyhound bus in which the 19-year-old defendant was initially charged with several sexual offenses against a 16-year-old victim who was allegedly intoxicated, defendant pled guilty to sexual penetration with a foreign object of an unconscious victim (Pen. Code, § 289, subd. (d)) on the condition that he receive felony probation. The court accepted the conditional plea and suspended imposition of a six-year prison sentence, on the condition that defendant be placed on probation for four years subject to 30 conditions specified in the probation report as modified in certain respects by the court. The sentence included fines and other financial provisions. Among the pertinent conditions of probation were the following:
"20. Defendant shall attend, actively participate in and follow all rules and directions of a counseling program or programs, at his own expense, as deemed necessary by the probation officer. Duration of such counseling to be determined by the probation officer.
. . . . [¶] . . . .
23. Defendant shall submit to and pay for a polygraph examination whenever requested to do so by a probation officer. Results of said polygraph test will be used by the probation officer as an investigative tool to help monitor defendants conduct and prevent possible future criminality. (People v. Miller (1989) ."
In addition, the conditions of probation required defendant to "pay the current fee for the cost of electronic monitoring," and "pay a reasonable fee" for chemical testing for the use of alcohol or controlled substances as directed by a probation officer or other law enforcement officer. Defense counsel requested the court to eliminate condition No. 23, concerning the polygraph testing, stating he did "not believe that that would be an appropriate order for this case." The court denied this request, observing that the condition "may be a condition to the treatment program, which is recommended in Condition No. 20." Defendant has timely appealed from the judgment.
Discussion
Payment of costs as a condition of probation
The Attorney General acknowledges that the trial court improperly included in the conditions of probation the requirement that defendant pay for electronic monitoring, chemical testing, counseling and polygraph examinations. A defendant who is granted probation may be ordered to pay the reasonable costs of probation. (People v. Hall (2002) 103 Cal.App.4th 889, 892.) However, the payment of such costs cannot be ordered until a determination is made that a defendant is financially able to do so. (Pen. Code, § 1203.1b, subds. (a), (b); People v. Hall, supra, at p. 892.) Moreover, the payment of such costs cannot be made a condition of probation. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) An order that a probationer pay collateral costs of probation is enforceable only as a separate money judgment in a civil action. (Id. at p. 322; People v. Hart (1998) 65 Cal.App.4th 902, 907.)
The Attorney General acknowledges that the present order must be modified, and argues that this court should remand the matter to the superior court with instructions that it (1) delete from probation conditions Nos. 6, 13, 19, 20 and 23 the requirement that defendant pay the specified costs, (2) determine pursuant to Penal Code section 1203.1b defendants ability to pay these costs and the amount of such payments, and (3) direct defendant to make such payments in a separate civil order. Defendant asserts that the cost provisions should simply be stricken because "the various costs will depend on factors not yet known, if any are incurred at all" and because the trial court determined at sentencing that defendant was unable to pay the costs of preparing the probation report and of probation services. The contingent nature of the various costs does not necessarily preclude the court from establishing reasonable amounts that defendant can afford to pay if and to the extent that the expenses are incurred, subject always to revision as defendants financial circumstances may dictate. As to defendants present ability, however, the record is contradictory. The reporters transcript reflects that at sentencing the court found "the Defendant does have the ability to reimburse the County for the costs of the presentence report, as well as a monthly fee for probation services," but the minutes indicate that the court made the opposite determination. Under the circumstances, we think it best to remand the matter to the trial court to modify the conditions of probation by deleting from those provisions the requirement that defendant pay the various costs involved, to enter a new order concerning the payment of such costs in conformity with Penal Code section 1203.1b (see Brown v. Superior Court, supra, 101 Cal.App.4th at p. 322), and to clarify the record as to the imposition of the costs of the presentence report and monthly probation services.
Submission to polygraph examinations
Initially, we reject the Attorney Generals contention that defendant waived his objection that the polygraph condition is too broad because counsels objection to the condition was not sufficiently specific. Counsels objection brought his concern with the propriety of this specific condition to the courts attention. Neither of the cases cited by the Attorney General go so far as to suggest that such an objection is insufficient to preserve the issue for appeal. (People v. Welch (1993) 5 Cal.4th 228, 232 [no objection made that probation condition was unreasonable]; In re Justin S. (2001) 93 Cal.App.4th 811, 815, fn. 2 [failure to object did not waive objection to probation condition on constitutional ground presenting pure question of law but, implicitly, would do so if necessary to refer to particular sentencing record].)
The issue that is presented, however, is an exceptionally narrow one. Defendant does not dispute the general parameters that define permissible probation conditions. As he recognizes, trial courts have broad discretion in determining what conditions of probation will aid the reformation and rehabilitation of the defendant. (Pen. Code, § 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) Appellate courts review the exercise of that discretion under a deferential standard. 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. (People v. Lent (1975) 15 Cal.3d 481, 486, overturned on other grounds in People v. Wheeler (1992) 4 Cal.4th, 284, 290-292.) In its most deferential form, all three problems must appear before the appellate court will find an abuse of discretion. (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) Nor does defendant dispute that submission to polygraph examinations may be required as a condition of probation if the questions are limited to those that facilitate or monitor compliance with other conditions of probation. His only complaint is that as articulated in the recommendation of the probation officer adopted by the trial court, the polygraph condition here is not so limited.
In People v. Miller (1989) 208 Cal.App.3d 1311, the defendant convicted of committing a lewd and lascivious act upon a minor was placed on probation with the conditions that he have no private contact with minor females and that he submit to a polygraph examination at the direction of his probation officer. In rejecting numerous arguments as to why the polygraph condition was unreasonable, the Court of Appeal pointed out that compliance with the condition that the defendant not be alone with young girls is difficult to enforce and "[t]he polygraph condition helps to monitor compliance and is therefore reasonably related to the defendants criminal offense. Because this condition is aimed at deterring and discovering criminal conduct most likely to occur during unsupervised contact with young females, the condition is reasonably related to future criminality." (Id. at p. 1314.) In response to the contention that the polygraph condition was overbroad because no restrictions were placed on the questions the examiner could ask, the appellate court stated: "This is patently incorrect. The polygraph condition was expressly requested by the probation officer and imposed by the court to monitor defendants compliance with the condition prohibiting unsupervised contact with young females. Thus any polygraph examination administered to defendant necessarily will be limited to questions relevant to compliance with that condition." (Id. at p. 1315.)
In Brown v. Superior Court, supra, 101 Cal.App.4th 313, the trial court imposed a similar polygraph provision as a condition of probation for a defendant convicted of stalking his former girlfriend and whose probation was also conditioned on the successful completion of a stalking treatment program. There, the trial court had "declined to place any restrictions on the questions that could be asked by the examiner or otherwise tailor the order to comport with the courts purpose in imposing the polygraph condition." (Id. at p. 321.) "[P]eriodic polygraph examinations in furtherance of [defendant]s stalking therapy program is a valid condition of probation," the appellate court held, "because it is reasonably related to the crime of which [defendant] was convicted and to possible future criminality." (Ibid., italics in original.) However, the Court of Appeal concluded that the order imposing the polygraph condition was overbroad because it did not "place any restrictions on the questions that could be asked by the examiner or otherwise tailor the order to comport with the courts purpose in imposing the polygraph condition." (I d. at p. 321.) The Court of Appeal issued a writ of mandate directing the trial court to enter a new order "imposing periodic polygraph testing as condition of probation that limits the questions allowed to those relating to the successful completion of the court mandated stalking therapy program and the crime of which [defendant] was convicted." (I d. at p. 323.)
Here, we agree with defendant that the wording of condition No. 23 and its citation to People v. Miller, supra, 208 Cal.App.3d 1311, "presumably" was intended to limit the questions that could be asked of defendant in a polygraph examination to those designed to monitor his compliance with the other terms of his probation, including his participation in a counseling program. We disagree with defendant that the failure to make this limitation explicit provides any justification for striking the condition. It may be that, as in People v. Miller, this limitation is implicit in the language that the court adopted and could be permitted to stand without modifying the language of the condition. However, since the trial court must in all events modify the order to correct the provisions for the payment of costs, we see no reason why it should not at the same time make this limitation explicit, as was required in Brown v. Superior Court, supra, 101 Cal.App.4th 313.
Disposition
The judgment is vacated and the matter remanded to the superior court with directions to modify the conditions of probation consistent with this opinion.
We concur: McGuiness, P. J., Parrilli, J.