P. v.
Filed 6/21/12 P. v. Clovis
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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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,
v.
JAROLD ROBERT CLOVIS,
Defendant and Appellant.
E053509
(Super.Ct.No. FSB1100856)
OPINION
APPEAL
from the Superior Court of
Bernardino County.
Michael M. Dest, Judge. Affirmed
as modified.
Jennifer
L. Peabody, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Jarold Robert Clovis was charged by felony complaint with
(Pen. Code, § 243.4, subd. (a), count 1),
2), and child molesting (§ 647.6, subd. (a)(1), count 3). Pursuant to a
1, and the trial court dismissed the other counts. The court placed him on probation for three
years, under certain terms.
On
appeal, defendant contends: 1) the
condition requiring him to submit to polygraph testing is overbroad; 2) the
condition prohibiting him from using or possessing any computer or internet
device, except in the course of employment, is overbroad, unrelated to his
crime, and unrelated to future criminality; and 3) the court erred in requiring
him to pay the cost of probation supervision and other costs associated with
his probation conditions, without first making a finding on his ability to pay;
the court also erred in conditioning his probation on the payment of certain
costs. The People concede, and we agree,
that the probation condition regarding use of the internet should be
modified. The condition regarding the
polygraph testing should also be modified.
Furthermore, we remand the matter for the trial court to eliminate the
requirement that defendant pay the costs associated with specified conditions, as a condition of probation, and to
issue a separate order for the payment of such costs.
FACTUAL BACKGROUND
On February 22, 2011, a 16-year-old girl was walking down the street when
defendant approached her from behind on his bicycle. Defendant pushed her down and forcefully
rubbed her vaginal area outside her clothing.
She kicked him, and he stopped.
Defendant then got on his bicycle and rode away. The victim observed defendant again that same
evening in front of a grocery store and called the police.
When
the police interviewed defendant, he denied his actions. However, he talked about his past issues with
touching females and stated that he “had a thing with breasts,†and that was why
he, his father, and his stepbrother were all section 290 registrants.
ANALYSIS
I. The Polygraph Testing Probation Condition
Should Be Modified
The
probation conditions imposed by the court included a requirement that defendant
submit to random polygraph testing at the direction of the probation officer,
as part of the sex offender surveillance
program.
title="">[3] Defendant contends that this probation
condition is unconstitutionally overbroad, since it does not limit the
questions he must answer to questions relevant to sexual relations with
underage girls or completion of his court-ordered sex offender surveillance
program. We agree that the term should
be modified.
“Trial
courts have broad discretion to set conditions of probation in order to ‘foster
rehabilitation and to protect public safety pursuant to Penal Code section
1203.1.’ [Citations.] . . . [¶]
However, the trial court’s discretion in setting the conditions of
probation is not unbounded.†(
615, 624.) A term of probation is
invalid if 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.)
In
Cal.App.4th 313 (Brown), the
defendant pled guilty to stalking his former girlfriend while a domestic
violence temporary restraining order was in effect. (Id.
at p. 317.) He was placed on
probation, and one of his conditions required him to successfully complete a
stalking treatment program. (
In pleading guilty, the defendant stipulated to the facts contained in
the police report and preliminary hearing transcript but denied he had engaged
in the behavior. He also told the
psychologist in charge of the treatment program that he did not belong in the
program because he was not a stalker. (
defendant’s probation include a polygraph testing condition for purposes of
treatment, noting that the defendant had attempted to falsify a drug test,
denied the major facts of the case, had a psychopathic personality, and had
several “‘stalking recidivism predictors’ . . . .†(Ibid.) The trial court then imposed the condition
that the defendant “‘undergo periodic polygraph examinations at [his] expense,
at the direction of the probation officer’†to further the defendant’s
successful completion of the stalking therapy program. (Id.
at p. 321.) The trial court
declined to place any restrictions on the questions that could be asked during
the testing. (Ibid.) The Court of Appeal
found the polygraph testing to be a valid condition, since it was reasonably
related to the defendant’s crime and to possible future criminality. (Ibid.) However, the court found the condition to be
“broadly worded.†(Ibid.) It held that the
condition “must 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.†(
In
the instant case, condition No. 23, the polygraph testing condition, 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, and be responsible for all costs associated with examinations.†Defendant objected to the condition, but the
court refused to strike it, finding that it was “a very useful tool for
probation to supervise and to determine if there’s compliance.†The text of this condition is similar to the
one in Brown, except that defendant
is ordered to complete a sex offender surveillance program rather than a
stalking therapy program. Like the
condition in Brown, this probation
condition 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.
II. The Probation Condition Restricting
Defendant’s Use and Possession of a Computer or Internet Device Should Be
Modified
The
trial court imposed a probation condition which read as follows: “Neither use nor possess any computer or
internet device except in the course of employment with the employer’s
knowledge of the nature of the offense and with the approval of the Probation
Officer.â€
title="">[4] Defense counsel objected to the condition as
overbroad and unrelated to the current offense.
On appeal, defendant makes the same arguments and points out that his
crime did not involve the use of a computer, but rather arose from his
approaching a female randomly in public and grabbing her inappropriately. The People concede, and we agree, that the
term should be modified.
We
note that “[s]ome child molesters reach their victims through the
Internet.†(In re Stevens (2004) 119 Cal.App.4th 1228, 1236.)
as acknowledged by the People, “restrictions upon access to the Internet
necessarily curtail First Amendment rights.â€
(Id. at p. 1235.) Therefore, a court “must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as unconstitutionally
overbroad. [Citation.]†(In re
Sheena K. (2007) 40 Cal.4th 875, 890.)
Here,
the probation condition at issue prohibits defendant from using or possessing a
computer or internet device, except in the course of his employment and with the
probation officer’s approval. It is not
tailored to defendant’s conviction for sexual battery or the court’s goal of
public safety and rehabilitation. While
defendant owned a computer at the time of his offense, he did not use it or the
internet to perpetrate the crime. Thus,
the broad restriction on defendant’s use of the computer and internet bears no
relation to his conviction.
The
People propose a modified probation condition to read as follows: “Defendant is prohibited from accessing or
subscribing to any computer internet service or local bulletin board service
which provides access to or markets pornographic imaging unless approved in
writing by [his] therapist and/or [his] probation officer. Defendant is also subject to unannounced
inspections of material stored on [his] hard drive and removable disks, [and]
search logs, and probation may install monitoring software on [his] computer or
any other known computer defendant uses.â€
Defendant urges this court to adopt the proposed modification, should we
decline to strike the condition.
We
agree with the modification, with one addition.
Because the purpose of this condition is to limit defendant’s use of the
internet to access sexually explicit material, the condition should expressly
articulate this purpose. Thus, in
addition to the proposed modification by the People, the condition should
read: “You are prohibited from accessing
any sexually explicit material on the internet.â€
III. The Probation Conditions Mandating Payment
of Certain Costs Should Be Modified
Defendant
next contends that the court erred in finding he had the ability to pay for
probation supervision, and in implicitly finding that he had the ability to pay
the costs associated with implementing certain probation conditions, without
inquiring into his ability to pay as required by section 1203.1b. He further argues that the court erred in
conditioning probation on him paying the costs associated with implementing
certain conditions. We conclude that
defendant waived the claim regarding his ability to pay under section
1203.1b. However, we agree that the
court erred in conditioning his probation on the payment of certain costs and
that those specified conditions should be modified.
A. Relevant
Background
In
her report, the probation officer recommended that defendant not be put on
probation because he had demonstrated predatory behavior and was a danger to
society. Defendant said he was homeless,
had never been employed, and had various mental disorders. Since defendant was homeless, the probation
officer concluded that he did “not have th[e] resources and family support to
assist in monitoring him in the community and ensuring that he addresses his
emotional and mental issues.†Thus, the
probation officer recommended that defendant be incarcerated. In light of his homeless status, the
probation officer also recommended that he pay minimal fees and fines. Specifically, she found that defendant did
not have the ability to pay for appointed counsel or the cost of conducting the
presentence investigation and preparation of the probation report. However, she found that he had the ability to
pay $15 per month for probation supervision fees, pursuant to section 1203.1b. The officer further recommended that the
court order him to pay a court security fee of $70 and that the total monthly
payment for all ordered amounts be set at $25 per month.
At
the sentencing hearing, defense counsel
noted that the probation department had exempted some of the fines and then
asked the court to set payment “at the lowest possible rate, $30 a month.†The court informed her that that amount was
more than what the probation department was recommending. Defense counsel asked what the probation department’s
recommendation was, and the court stated it was $25 a month, starting 30 days
from that date. Defense counsel replied,
“That’s great. I’ll take that.†Defense counsel then objected to certain
terms of probation and, after some discussion, submitted. Having considered the probation report and
comments of counsel, the court ordered a court security fee of $70, found that
defendant had the ability to pay probation supervision fees of $15 per month,
and stated that the total monthly payments for all ordered amounts would be $25
per month. Neither defendant nor his
trial counsel objected to the finding of his ability to pay or to any of the
fees.
B. Defendant
Has Forfeited Any Claims Regarding His Ability to Pay
Defendant
specifically complains that the court erred in finding he had the ability to
pay, that the evidence did not support the probation officer’s determination
that he had the ability to pay, and that he does not have the ability to pay
and that there is no indication he waived his right to have the court make the
determination of his ability to pay.
Defendant relies on the statutory requirements in section 1203.1b to
support his arguments.
Section
1203.1b “authorizes the recoupment of certain costs incurred for probation and
the preparation of preplea or presentence investigations and reports on the
defendant’s amenability to probation.†(
Cal.App.4th 1066, 1070 (Valtakis).) The section “requires determinations of
amount and ability to pay, first by the probation officer, and, unless the
defendant makes ‘a knowing and intelligent waiver’ after notice of the right
from the probation officer, a separate evidentiary hearing and determination of
those questions by the court.†(
In
plea. The probation report recommended
that he pay a probation fee under section 1203.1 of $250, as well as other fees
and fines. The report contained no
determination of ability to pay and no advisement of a right to a separate
hearing on that issue. (
probation, and ordered him to pay certain fees, the costs of any drug or
alcohol testing, and a probation service fee of $250. (Id.
at p. 1069.) Neither he nor his
counsel objected to any of the fees. (
On appeal, the defendant “relie[d] solely on the statutory requirementsâ€
in arguing that the probation fee of $250 was imposed without compliance with
section 1203.1b. (Valtakis, at
p. 1071.) The reviewing court held
that the statutory claim was waived on appeal for failure to object anytime
below. (Id. at pp. 1071-1072.)
The court stated, “Did the Legislature intend . . . that a
defendant and his counsel may stand silent as the court imposes a fee—even a
nominal one like the $ 250 here—and then complain for the first time on appeal
that some aspect of the statutory procedure was not followed? We say no.â€
(Id. at p. 1075.)
Here,
as in Valtakis, defendant failed to
object below to the court’s finding of his ability to pay or the imposition of
the probation supervision costs and other costs related to his probation
conditions. Not only did he fail to
object, he actually offered to pay more
than the monthly amount recommended by the probation officer. He then submitted
on the lower amount recommended by probation.
Defendant has forfeited his claims.
Defendant
argues that his claim regarding payment of the fees and costs is not forfeited
by failing to raise it below “because imposition of fees as probation
conditions was unauthorized, since it could not have been lawfully imposed
under any circumstances and it is clear and correctable on review.†He cites to People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402, in support of
his argument. However, his reliance on
imposed a court security fee as a condition of probation. (Id.
at p. 1402.) The reviewing court
held that the defendant had not forfeited his claim since “[t]he imposition of
the court security fee as a probation
condition was unauthorized because . . . this fee [was]
collateral to [his] crimes and punishment and as such, its payment [could] not
be made a condition of probation.†(
We
further note that if defendant’s situation has changed since the probation supervision fee and other costs were imposed,
“his remedy is not through this appeal but through the statute
itself . . . .†(
hearings’†on a defendant’s ability to pay any time during the probationary
period, and for the modification of a judgment upon a showing of a change of circumstances. (Valtakis,
at p. 1076; § 1203.1b, subds. (c), (f).)
C. The
Court Erred in Conditioning Defendant’s Probation on the Payment of Costs
Associated With Certain Probation Conditions
Defendant
argues that certain terms of probation were improperly conditioned upon his
payment of the costs of implementing those terms. Specifically, he objects to term No. 11,
which requires him to participate in counseling and “be responsible for payment
of all program fee(s)â€; term No. 22, which requires him to participate in a sex
offender treatment program and “be responsible for all program feesâ€; term No.
23, which requires him to “be responsible for all costs associated with
[polygraph] examinationsâ€; and term No. 41, which requires him to submit to
continuous global positioning system (GPS) monitoring and “pay [for] all
associated equipment and/or monitoring.â€
He contends that the matter should be remanded to modify these
conditions to make it clear that his payment of the costs associated with these
conditions is not part of the conditions themselves. We agree.
In
condition imposed by the trial court mandating that the testing be at his own
expense. (Id. at p. 321.) The
reviewing court stated the following:
“[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. [Citations.]
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.
[Citation.] Here, however, the
requirement that the defendant pay for periodic polygraph testing is an
integral part of polygraph condition 10(o) which require[s] the defendant to
‘undergo periodic polygraph examinations at defendant’s expense
. . . .’ As such, payment
of the costs of the polygraph testing is not collateral, but a condition of
probation. [Citations.] . . . Pursuant to section 1203.1b, however, before
requiring [the defendant] to pay all or a portion of the reasonable costs
associated with periodic 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. [Citations.] This order can be enforced through a civil
action—not through contempt proceedings, or the threat, express or implied, of
revocation of probation.
[Citations.]†(Brown, supra,
101 Cal.App.4th at pp. 321-322, italics added.)
Similarly, in the case
before us, the requirement that defendant pay for the costs of participating in
counseling, participating in the sex offender treatment program, polygraph
testing, and GPS equipment and/or monitoring is an integral part of the
probation conditions. As such, payment
of those costs is a condition of his probation.
Payment of such collateral costs is not enforceable as a condition of
probation. (Brown, supra, 101
Cal.App.4th at p. 321.) Instead,
the court must issue a separate order for payment of such costs. This order can only be enforced as a separate
money judgment in a civil action. (Id.
at p. 322.) As defendant suggests,
the order granting probation should be modified to clarify that payment of the
costs associated with condition Nos. 11, 22, 23, and 41 is not a condition of
probation, but rather an order of the court entered at judgment. (See People v. Flores (2008) 169
Cal.App.4th 568, 578.)
DISPOSITION
Condition
No. 23 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 court-mandated 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.â€
Condition
No. 24 is modified to read as follows:
“You are prohibited from accessing or subscribing to any computer
internet service or local bulletin board service, which provides access to or
markets pornographic imaging unless approved in writing by your therapist
and/or your probation officer. You are
prohibited from accessing any sexually explicit material on the internet. You are also subject to unannounced inspections
of material stored on your hard drive and removable disks, and search logs, and
probation may install monitoring software on your computer or any other known
computer you use.â€
The
trial court is directed to modify its probation order to eliminate the portions
of condition Nos. 11, 22, 23, and 41 that required that defendant pay the costs
associated with those conditions. The
trial court is directed to issue a separate order for the payment of such costs,
enforceable as a money judgment in a civil action. In all other respects, the judgment is
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
probation report, since defendant pled guilty pursuant to a plea agreement.
