Opinion
C042605.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP JOSEPH RAY, Defendant and Appellant.
Defendant Phillip Joseph Ray appeals from an order denying his motion for modification of certain terms and conditions of probation. He contends the trial court erred in that the conditions are not rationally related to the crime of failure to register as a sex offender. We will affirm the order.
FACTS AND PROCEDURAL HISTORY
Defendant was convicted in 1967 and 1970 for violation of Penal Code section 288 (undesignated section references are to this code). Defendant molested a 10-year-old boy and a 13-year-old boy. He was committed to Atascadero State Hospital as a mentally disordered sex offender and was later sent to state prison. He was paroled in 1976 and discharged from parole in 1978. Although obligated to register as a sex offender (& sect; 290), in 1996, 1997, 1998, 1999 and 2000, he did not timely register. From March 1994 to August 2001, defendant worked as a carnival concession operator, traveling from town to town. Defendant lived some of the time in Twin Falls, Idaho, having registered there in January 1999.
Defendant moved to Tehama County in early October 2002 but did not register. On October 25, 2002, he admitted he knew he had 10 days to register and had not yet registered, explaining that for a two— or three-week period, he was in the process of moving from Idaho and claimed he was staying at a particular address in Red Bluff only temporarily. The resident at the Red Bluff address claimed that defendant had lived there for three weeks and then moved. Defendant was taken to the police department where he registered.
An information filed November 1, 2001, charged defendant with failure to register as a sex offender (§ 290, subd. (g)(2).) It was further alleged that defendant had two strike priors (& sect;§ 667, subds. (b)-(i), 1170.12), to wit, two convictions for violation of section 288.
On January 14, 2002, defendant entered a guilty plea to failure to register in exchange for dismissal of the strike priors.
In preparation for sentencing, the probation officer recommended formal probation subject to the usual terms as well as special conditions including the following:
"The defendant shall be evaluated by an approved sexual offender treatment program, and successfully complete said program, if directed to do so by the probation officer, at his own expense;
"The defendant shall participate in and complete a psychological or psychiatric counseling/treatment program, including a residential treatment program, if directed to do so by the probation officer, at his own expense;
"The defendant shall submit to polygraph examinations, if required to do so by the probation officer;
"The defendant shall not associate with any person under the age of eighteen years, except under responsible adult supervision."
At sentencing on February 25, 2002, the court imposed a two-year state prison sentence, suspended execution and granted probation on the terms and conditions recommended by the probation officer (including those described above) as well as 90 days in county jail. Defendant had no objection to the probation conditions and signed an acknowledgment that he understood the order of probation, accepted probation and agreed to comply with the terms. When the court asked whether he understood the conditions imposed as stated in the probation report, defendant stated that he had read the report. When the court asked whether defendant accepted the conditions imposed as stated in the probation report, defendant stated, "I guess I am going to have to."
An amended order of probation filed February 26, 2002, contained the typed-in correction of the county jail term from 120 to 90 days. On April 18, 2002, defendant signed a receipt of the February 26, 2002, amended order, stating that he understood and agreed to strictly comply with the conditions.
On August 14 and 26, 2002, Shasta Treatment Associates, licensed marriage and family therapists, wrote defendants probation officer explaining that after oral and written reprimands, defendant had been terminated from the sexual offender treatment program for failure to attend scheduled therapy group meetings and for providing explanations for his absences which were not legitimate excuses.
On October 11 and 14, 2002, defendant was assessed by New Directions to Hope which concluded he would benefit from a sexual offender treatment program since he had never received treatment for his 30-plus-year-old offenses and was to begin group therapy on October 23, 2002.
On October 16, 2002, defendant moved to modify probation pursuant to section 1203.3. He asked that the special conditions related to a sexual offender be stricken since the conditions were not reasonably related to defendants offense of failure to register as a sex offender, noting that defendants sex crimes occurred more than 30 years before and there was no indication of any new sex offenses.
On October 23, 2002, the prosecutor filed opposition to defendants modification motion arguing that defendant had not registered or failed to timely register on numerous occasions and that the conditions were reasonably related. The prosecutor agreed, however, to modification of the polygraph condition, requiring the questioning to relate to sex-related conduct. The prosecutor requested modification of the association order to prohibit the same "except under adult supervision approved by probation." The prosecutor did not argue waiver or otherwise raise the timeliness of defendants challenge to the conditions.
On November 4, 2002, the court noted the untimeliness of the challenge to the conditions which could have been raised at sentencing. On the merits, the court modified the condition related to polygraph testing, requiring that the questions relate to the treatment program. The court noted that the order of probation required first that defendant be evaluated in order for the probation officer to determine whether a sexual offender treatment program was appropriate. The court found that the purposes of section 290 included keeping track of sex offenders and preventing recidivism. The court determined that the treatment programs and limiting defendants contacts with minors related not only to section 290 but also the underlying crime and thus were reasonably related. The court commented, "It should be kept in mind when the Defendant violates [section] 290 . . ., no one other than the Defendant really knows why: whether it was an oversight, whether it was an intentional failure to register because the Defendant just didnt think that it was important anymore. Or in fact, whether or not the Defendant intends to reoffend or perhaps is reoffending, there is no way for the Court to determine that."
DISCUSSION
Defendant contends the conditions requiring sexual offender treatment program and psychological counseling and limiting contact with minors are not rationally related to his crime of failing to register as a sex offender. He notes that section 290 is not listed as an offense that qualifies under section 1203.067 for a sexual offender treatment program or under section 288.1 for a mental evaluation. He argues there is no evidence that he suffers from "mental instability or pedophilia," or that he is or has been a danger to anyone since his offenses, or that there are any complaints about his behavior or any child pornography. He asserts the sex offender related conditions are not rationally related to failure to register for crimes which occurred more than 30 years ago. He notes he retired from the carnival business several years ago "so whatever imaginary threat that job posed is long past."
The Attorney General claims the issue is noncognizable and that in any event, the trial court properly ruled. Citing People v. Welch (1993) 5 Cal.4th 228, 851 P.2d 802 (Welch ), the Attorney General claims defendant waived the issue by failing to challenge the probation conditions at sentencing. Citing People v. Djekich (1991) 229 Cal. App. 3d 1213, 280 Cal. Rptr. 824 (Djekich), the Attorney General argues that defendants motion to modify does not preserve the issue for appeal because "[a] denied motion to modify probation does not preserve an appeal which is otherwise untimely" and any conclusion otherwise would "undercut" the Welch rationale.
Section 1203.3 provides, in relevant part, as follows:
"(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held."
Changed circumstances will justify a modification of probation but where there are no new facts, modification is improper. (See In re Bine (1957) 47 Cal.2d 814, 817, 306 P.2d 445; In re Peeler (1968) 266 Cal. App. 2d 483, 490, 72 Cal. Rptr. 254.)
Defendant was sentenced on February 25, 2002, and on October 16, 2002, filed a motion to modify the probation conditions. He raised no new facts. The trial court noted, but did not find, defendants challenge to the conditions was untimely. Defendant did not challenge the conditions as recommended by the probation officer, nor when the trial court imposed the same, nor for that matter did defendant appeal the order granting probation. Instead, defendant challenged the conditions when he was in violation of the condition requiring him to participate in and complete sexual offender counseling/treatment. His challenge to the conditions now is untimely. (See Djekich, supra, 229 Cal. App. 3d 1213, 1219; see also Welch, supra, 5 Cal.4th 228, 235.)
In any event, defendants claim lacks merit. The court may impose conditions which regulate conduct "not itself criminal" and which are "reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal. Rptr. 905, 541 P.2d 545.) Only when the trial court has exceeded the bounds of reason or the determination is arbitrary or capricious will this court find an abuse of discretion. (Welch, supra, 5 Cal.4th 228, 234.)
Defendants reliance upon sections 1203.067 and 288.1 is misplaced. Section 1203.067 mandates a treatment program for certain sex offenders granted probation. (§ 1203.067, subd. (b).) The fact that section 290 is not listed in section 1203.067 means only that a treatment program is not mandated. The trial court is not precluded from imposing any condition reasonably related to defendants crime or future criminality. Section 288.1 requires a report from a psychiatrist or psychologist as to the mental condition of certain sex offenders before the court may suspend sentence. The fact that section 290 is not included in section 288.1 means only that a psychiatrist/psychologist report is not mandated. Here, the court was not precluded from imposing the condition of probation that defendant participate in and complete a psychological or psychiatric counseling/treatment program.
Defendant is a convicted sex offender. His victims were two young boys, 10 and 13 years of age. Defendant was discharged from parole in 1978 after having been committed to a state hospital as a mentally disordered sex offender and after having served time in state prison. From 1994 through 2001, defendant was a concessions operator for a carnival, frequented by children, and the carnival traveled from town to town, making it difficult for law enforcement to keep track of his whereabouts. The record reflects that this is not the first time defendant has failed to register in a timely manner. While on probation, defendant was terminated from sexual offender treatment for failing to attend and for providing excuses that were not legitimate. The sexual offender conditions of probation are reasonably related to preventing future sex crimes against children. The trial court properly denied defendants motion to modify the conditions he now challenges on appeal.
DISPOSITION
The order appealed from is affirmed.
We concur: HULL, J. and KOLKEY, J.