P. v. Ormsby
A jury convicted appellant Robert Jay Ormsby of one count of committing a lewd act upon a 14-year-old child more than 10 years younger than appellant (Pen. Code, 288, subd. (c)(1)) and the court placed him on probation.[1] Appellant appealed from the order granting probation. In an unpublished opinion, this court struck the probation revocation fine but otherwise affirmed the probation order. (People v. Ormsby (July 10, 2006, A110726) [nonpub. opn.].) The court later modified appellants probation to require him to complete a polygraph examination. During the examination, appellant invoked his Fifth Amendment privilege against self-incrimination and refused to answer all but one of the questions. The court revoked appellants probation and sentenced him to two years in state prison.
Appellant contends: (1) the polygraph examiner asked incriminatory questions that he had a constitutional right to refuse to answer; and (2) the trial court abused its discretion by revoking his probation based on his exercise of that right. We disagree. As we explain below, the seven questions posed during the polygraph examination had no potential to incriminate appellant. The questions related to the crime of which appellant had been convicted and, as a result, answering them would not have exposed him to a prosecution for a different crime. A court may not revoke probation as a penalty or sanction where the probationer validly invokes the Fifth Amendment. The key, however, is that the invocation must be valid, i.e., there must be a realistic possibility of incrimination before a probationer can invoke the privilege and decline to answer questions posed during a polygraph examination. And where there is no realistic possibility of incrimination, a probationer may not refuse to answer questions posed during a polygraph examination. Accordingly, Court affirm.
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