Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR209655
Jones, P.J.
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. 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 In an unpublished opinion, this court struck the probation revocation fine but otherwise affirmed the probation order.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 appellant’s 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 appellant’s probation and sentenced him to two years in state prison.
Unless otherwise noted, all further statutory references are to the Penal Code. Section 288, subdivision (c)(1) provides in relevant part that “[a]ny person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense . . . .” Subdivision (a) of that statute provides: “[a]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child. . . .”
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, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate the following facts from our prior opinion:
“On July 24, 2003, Lindsey R., who was 14 years old, was spending the night with her cousin Cory Soto at his apartment in Solano County. Other persons were also at the apartment that evening including appellant, who was Soto’s best friend. Appellant was in his early 30’s at the time.
“The group at the apartment watched television and played video games. By midnight, everyone except Lindsey and appellant had gone to sleep. Lindsey had taken some medication that made her tired. She lay down on a couch and covered herself with a sheet.
“Appellant offered to give Lindsey a massage. She declined. Appellant insisted. He began to rub Lindsey’s arm, and then moved to her chest. He rubbed Lindsey’s breasts and then her vagina. Lindsey told appellant to stop and she tried to push him away. She was unsuccessful.
“After about half an hour, appellant got up to leave. He kissed Lindsey and told her to ‘keep it our little secret.’ When appellant had gone, Lindsey woke the others and told them what he had done.”
A jury convicted appellant of violating section 288, subdivision (c)(1) and the court sentenced him to three years’ probation. The terms of appellant’s probation required him to attend “Sex Offender Counseling” and to “[s]ubmit to any program of psychological assessment . . . including, but not limited to . . . the polygraph to assist in treatment, planning, and case monitoring.” On July 5, 2006, the court modified appellant’s probation to require him to complete Forensic Assessment and Community Treatment (the Program), a sex offender treatment program.
The Court Orders Appellant to Submit to a Polygraph Examination
Appellant failed to participate in the Program and the court summarily revoked his probation. At an October 25, 2006 probation revocation hearing, Dr. David San Giovanni, the Program’s forensic psychologist, testified that he evaluated appellant in August 2006 to determine whether he was a suitable candidate for the Program. Dr. San Giovanni concluded that appellant “was not appropriate to enter into a sex offender group” because “he denied he committed a sex offense. He denied that he needed treatment.” Appellant had also refused to sign the consent to treatment form.
The court requested briefing on whether appellant’s probation should be revoked and continued the hearing. After the hearing, the People moved the court for an order requiring appellant to undergo a polygraph examination. The People argued that appellant could not be rehabilitated if he “continue[d] to deny the offense for which he was convicted” and explained that completing a polygraph examination would “aid both [appellant] and the probation department.” Appellant opposed the request. He argued that the Fifth Amendment precluded the court from requiring him to incriminate himself and that the prosecution’s “request for the polygraph examination is intended to do just that . . . .” Appellant did not explain how the polygraph would incriminate him.
A polygraph test measures a person’s physiological reactions to various questions. These physiological signals include blood pressure, perspiration, and respiration. (U.S. v. Lee (3d Cir. 2003) 315 F.3d 206, 211-212 & fn. 3 (Lee), citing United States v. Scheffer (1998) 523 U.S. 303, 313-314 & fn. 9 (Scheffer).) During a polygraph examination, the examiner typically asks three categories of questions: “‘direct accusatory questions concerning the matter under investigation, irrelevant or neutral questions, and more general “control” questions concerning wrongdoing by the subject in general.’” (Lee, supra, 315 F.3d at pp. 211-212 & fn. 3, quoting Scheffer, supra, at pp. 313-314.) The polygraph examiner then compares the physiological responses to each set of questions to evaluate the person’s truthfulness. (Lee, supra, at pp. 211-212.) Polygraph tests have been widely criticized (see Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 944-946 [describing in great detail how polygraph tests are conducted and noting widespread criticism of such tests]) and evidence of polygraph examinations is generally inadmissible (Evid. Code, § 351.1). Notwithstanding this criticism, polygraphs are frequently used for “investigative purposes.” (People v. Miller (1989) 208 Cal.App.3d 1311, 1315.)
On December 5, 2006, the court granted the People’s request and ordered appellant to submit to a polygraph examination. The court, however, limited the questions asked during the examination “to those relating to the successful completion of [appellant’s] therapy program and the crime for which he was convicted.”
Appellant attended the polygraph examination on December 19, 2006. Before administering the examination, James Adams, the polygraph examiner, interviewed appellant. During the “Pre-test Interview” Adams asked appellant to tell him about the offense of which appellant was convicted. Adams informed appellant that he “had read the official report of what Lindsey said happened and would like to hear his version.” Appellant said only that Lindsey was “‘psychotic.’” Adams then told appellant that he “would still like him to tell me what happened . . . .” In response, appellant said, “‘On the advice of counsel and the tenets of the Fifth Amendment, I refuse to answer any questions that may tend to incriminate me.’”
Adams then connected appellant to the polygraph machine and began the polygraph examination. Adams asked appellant seven questions. Two of these questions concerned the offense of which appellant was convicted: “Did you touch that 14-year-old girl (the one that we talked about) in a sexual way” and “Did your hand touch [the victim’s] panties?” Appellant answered these questions by “invoking the Fifth [Amendment]. He didn’t answer ‘yes’ or ‘no.’” The remaining questions that Adams asked were “irrelevant” or “neutral” questions such as “Do some people call you Rob?” and “comparison questions [ ] about other things, just to take [appellant’s] mind off of the relevant issues.” Adams was unable to complete the examination because appellant invoked the Fifth Amendment to six of the seven questions Adams asked during the examination.
The Court Revokes Appellant’s Probation and Sentences Him
The court held a probation revocation hearing on March 7, 2007 and concluded that appellant had violated his probation. The court explained: “The polygraph exam is part of his probation terms. We had a full discussion about what . . . questions wouldn’t be asked about other incidents, but the one in question, obviously, is something that was appropriate, so he didn’t have a Fifth Amendment right. He had no right to not answer those questions. It wasn’t a, [] ‘full scope examination’ and so I do find him in violation of his probation.” The court then revoked appellant’s probation.
On May 1, 2007, the court denied appellant’s motion for reconsideration. After denying the motion, defense counsel agreed to waive arraignment for judgment and sentence. The court then asked whether there was “[a]ny legal cause to show why judgment and sentence should not now be imposed?” Defense counsel stated, “Yes. The issues with my Motion for Reconsideration, I believe, are sufficient . . . legal grounds why judgment and sentence should not go forward.” The court rejected the grounds offered by defense counsel.
Pursuant to section 1200, “[w]hen the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.”
The court then imposed a sentence of two years — the middle term — and began to discuss the credits appellant would receive. Defense counsel interrupted and asked the court to impose the lower term of one year. The court permitted defense counsel to explain why the court should impose the lower term. Defense counsel then accused the probation department of giving appellant the “Nazi treatment” and “trying to railroad him into prison.” At that point, the court interrupted defense counsel and said, “I’ve heard enough. . . . If you want to say something that is mitigating pursuant to the Rules of Court, I’ll be happy to hear it.” The court then allowed defense counsel an additional opportunity to argue in favor of mitigation.
Eventually, defense counsel submitted. The court stated: “As I said, the Court is denying a further grant of probation. . . . [Defendant is] entitled to credits, as I was imposing before I was interrupted again. Let’s get those now.” As the court began to discuss the credits, the following exchange occurred:
“THE DEFENDANT: Your Honor, please.
“THE COURT: 244 actual custody days, 122 [section] 4019 days, for a total of 366 days credit for time served.
“DEFENSE COUNSEL: He’s not going to listen to you anyway so
“THE COURT: [Defense counsel], don’t talk loud enough when you’re insulting the Court and being contemptuous[ ] so I can hear you. I suggest you be quiet when I’m imposing sentence. . . .
“DEFENSE COUNSEL: And for the record, Judge, Mr. Ormsby did want to exercise his right of allocution, and I indicated to him that the Court was not going to listen to him so — whether that’s contemptuous or not, that’s the facts. He has the right, and the Court did not grant that to him.”
“THE COURT: [Defense counsel], you know that when you submit it, that ends it. Thank you very much.”
DISCUSSION
Appellant raises several arguments on appeal. His principal contention is that he properly invoked his Fifth Amendment privilege against self-incrimination during the administration of the polygraph examination and, as a result, the court’s revocation of his probation was an abuse of discretion. Appellant also argues that the court committed reversible error by preventing him from addressing the court at the sentencing hearing. Finally, appellant contends that the court abused its discretion when it sentenced him to the middle term instead of the lower term.
The Revocation of Appellant’s Probation Was Not an Abuse of Discretion
The parties agree that we review an order revoking probation for abuse of discretion. They are correct. (People v. Bracey (1994) 21 Cal.App.4th 1532, 1548, citing People v. Rodriquez (1990) 51 Cal.3d 437, 441.) But before we analyze whether the revocation of appellant’s probation was arbitrary or capricious, we must first determine whether appellant properly invoked his Fifth Amendment privilege during the polygraph examination. To do so, we apply a de novo standard of review. (People v. Seijas (2005) 36 Cal.4th 291, 304 [applying de novo standard to review trial court’s ruling that a witness may assert the privilege against self-incrimination]; People v. Cromer (2001) 24 Cal.4th 889, 894 [de novo standard of review applies when a case involves a mixed question of law and fact, one in which the “‘historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or . . . whether the rule of law as applied to the established facts is or is not violated’ [Citations.]”].)
Appellant does not challenge the court’s general authority to require him to take a polygraph examination as a condition of probation. California courts have recognized that a polygraph condition is a valid means of both monitoring a defendant’s compliance with probation and furthering his or her rehabilitation. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319 (Brown) [furthering defendant’s therapy program]; Miller, supra, 208 Cal.App.3d at p. 1315 [monitoring defendant’s compliance with probation]; see also § 1203.1, subd. (a) [the court may grant probation “upon those terms and conditions as it shall determine”].) Nor does appellant contend that the condition imposing the polygraph examination was not reasonably related to the crime of which he was convicted. (Brown, supra, at p. 319.) Instead, appellant contends that he had a constitutional right to decline to answer the particular questions posed during the polygraph examination and that the court abused its discretion when it revoked his probation for exercising that right.
The principles surrounding the Fifth Amendment privilege against self-incrimination are well-settled. The Fifth Amendment “permits a person to refuse to testify against himself at a criminal trial in which he is a defendant [and] also ‘privileges him not to answer official questions put to him in any other proceeding . . . where the answer might incriminate him in future criminal proceedings.’ [Citation.]” (Minnesota v. Murphy (1984) 465 U.S. 420, 426 (Murphy); see generally, Simons, Cal. Evidence Manual (2008) Privileges, § 5:13, et. seq.) The privilege against self-incrimination “is properly invoked whenever the witness’s answers ‘would furnish a link in the chain of evidence needed to prosecute’ the witness for a criminal offense.” (People v. Cudjo (1993) 6 Cal.4th 585, 617). “To satisfy this standard, ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’” (Id. at p. 617, quoting Hoffman v. United States (1951) 341 U.S. 479, 486; see also Seijas, supra, 36 Cal.4th at p. 304 [the privilege against self-incrimination “must be accorded liberal construction in favor of the right it was intended to secure”].)
We are not aware of any California cases where a court has revoked a defendant’s probation based on his or her failure to answer questions posed during a polygraph examination. Brown, however, is instructive. There, the defendant pleaded guilty to stalking his former girlfriend while a restraining order was in effect and the trial court sentenced him to probation “with a variety of conditions, including the successful completion of a stalking treatment program. . . .” (Brown, supra, 101 Cal.App.4th at p. 317.) During treatment, the defendant denied that he had stalked his former girlfriend and told the therapist “he did not belong in the program because he was ‘not a stalker.’” (Id. at p. 318.)
The prosecution moved to modify the defendant’s probation to require him to submit to a polygraph examination. (Brown, supra, 101 Cal.App.4th at p. 318.) The People argued that “one of the key components of [the defendant’s] probation was attending and successfully completing the stalking treatment program” and that the defendant would not be able to complete the program if he continued to “‘deny and manipulate.’” (Ibid.) According to the People, “it was likely [the defendant] would engage in similar behavior in the future” if he did not complete the stalking treatment program. (Ibid.) In response, defense counsel contended that imposing the polygraph condition would violate the defendant’s rights under the Fifth Amendment. (Brown, supra, 101 Cal.App.4th at p. 318.) The trial court granted the People’s motion and modified the defendant’s probation to require him to take periodic polygraph examinations, but it “declined . . . to put any restrictions on the administration of the . . . examinations.” (Id. at p. 319.)
The Fourth District Court of Appeal held that the condition requiring the defendant to undergo periodic polygraph examinations was not per se illegal and did not violate the Fifth Amendment. (Brown, supra, 101 Cal.App.4th at p. 320.) As the Brown court explained, “[t]he fact that [the defendant] has a duty to answer the polygraph examiner’s question[s] truthfully does not mean his answers are compelled within the meaning of the Fifth Amendment.” (Ibid.) The court noted the possibility that certain questions posed during a polygraph examination could be incriminating: “if the state puts questions to a probationer that call for answers that would incriminate him in a pending or later criminal proceeding, and expressly or by implication asserts that invocation of the privilege would lead to revocation of probation, the answers would be deemed compelled under the Fifth Amendment and thus involuntary and inadmissible in a criminal prosecution.” (Ibid., citing Murphy, supra, 465 U.S. at p. 436.) The court, however, explained that where questions posed during the polygraph examination are relevant to a defendant’s “probationary status and pose no realistic threat of incrimination in a separate criminal proceeding, the Fifth Amendment privilege [is] not . . . available and the probationer [will] be required to answer those questions truthfully.” (Ibid.)
In Lee, the Third Circuit made a similar observation: “As to questions that do not pose a realistic threat of a future criminal prosecution, the intrusion into the area of self-incrimination when undergoing a polygraph test is no greater than the requirement that the probationer answer truthfully at all other times during the probation inquiry. A probationer may not refuse to answer a question just because his answer would disclose a violation of probation; rather, a probationer may only invoke his privilege against self-incrimination if a truthful answer would expose him to a prosecution for a crime different from the one on which he was already convicted.” (Lee, supra, 315 F.3d at p. 213, italics added, citing Murphy, 465 U.S. at pp. 435-36 & fn. 7.)
Twelve years earlier, in Murphy, the United States Supreme Court recognized this same principle. There, the defendant pleaded guilty to false imprisonment and received probation. (Murphy, supra, 465 U.S. at p. 422.) The terms of his probation required him to attend a treatment program for sexual offenders and to “be truthful with the probation officer ‘in all matters.’” (Ibid.) The defendant was informed that his failure to comply with these conditions “could result in his return to the sentencing court for a probation revocation hearing.” (Ibid.) During an interview with a treatment counselor, the defendant admitted committing an unrelated rape and murder. (Id. at p. 423.) The counselor told the defendant’s probation officer, who then set up a meeting with the defendant. (Id. at pp. 423-424.) The probation officer met with the defendant and — without giving Miranda warnings — questioned him about the rape and murder. The defendant admitted committing the crimes; his confession was later admitted at a subsequent trial for first-degree murder. (Id. at p. 424.)
The defendant argued that he was forced to make incriminating disclosures instead of claiming the privilege against self-incrimination because he was informed that his failure to be truthful with the probation officer “could result in revocation of probation.” (Murphy, supra, 465 U.S. at p. 436.) The United States Supreme Court held that the privilege against self-incrimination is not self-executing; it must be affirmatively invoked except in limited situations, such as where there is a “threat of punishment for reliance on the privilege . . . .” (Id. at p. 435; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 116 [describing Murphy.) But the Murphy court distinguished a situation where the state requires a probationer to “appear and discuss matters that affect his probationary status” — which would not implicate the Fifth Amendment — from a situation where “questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution.” (Murphy, supra, at p. 435.) In the latter situation, “if the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.” (Id. at p. 435, fn. omitted.)
The court ultimately concluded that “there is no reasonable basis for concluding that Minnesota attempted to attach an impermissible penalty to the exercise of the privilege against self-incrimination” because there was no “direct evidence that [defendant] confessed because he feared that his probation would be revoked if he remained silent.” (Murphy, supra, 465 U.S. at p. 437.) The court also observed that defendant was not “expressly informed” during the meeting with his probation officer that asserting the privilege against self-incrimination “would result in the imposition of a penalty.” (Id. at p. 438.)
Considering Brown and Murphy, we are not persuaded by appellant’s contention that the administration of the polygraph examination, although an unchallenged condition of probation, required him to choose between incriminating himself and “jeopardizing his conditional liberty by remaining silent.” (Murphy, supra, 465 U.S. at p. 436.) First, appellant was not asked to incriminate himself. During the polygraph examination, Adams asked appellant two questions that related directly to appellant’s conviction: whether he touched Lindsey “in a sexual way” and whether he touched her underwear. These questions did not have the potential to incriminate appellant because he had already been convicted of violating section 288, subdivision (c)(1) based on the fact that he rubbed Lindsey’s breasts and her vagina. In other words, answering these questions would not subject appellant to prosecution for a different crime. And appellant cannot seriously contend that answering the remaining questions, such as “Do people call you Rob,” would subject him to the risk of incrimination. A “‘witness is not exonerated from answering merely because he declares that in doing so he would incriminate himself -- his say-so does not of itself establish the hazard of incrimination.’” (Seijas, supra, 36 Cal.4th at p. 304, quoting Hoffman v. United States, supra, 341 U.S. at p. 486.) The Fifth Amendment privilege is properly invoked only in the face of “‘real and appreciable danger of self-incrimination.’” (U.S. v. Antelope (9th Cir. 2005) 395 F.3d 1128, 1133, quoting McCoy v. C.I.R. (9th Cir. 1983) 696 F.2d 1234, 1236 (McCoy).)
As the Ninth Circuit explained in McCoy, a “valid Fifth Amendment objection may be raised only to questions which present a ‘real and appreciable danger of self-incrimination.’ [Citations.] If the threat is remote, unlikely, or speculative, the privilege does not apply, and while the claimant need not incriminate himself in order to invoke the privilege, if the circumstances appear to be innocuous, he must make some ‘positive disclosure’ indicating where the danger lies. [Citations.]” (McCoy, supra, 696 F.2d at p. 1236.) Here, there was no “real and appreciable danger of self-incrimination” — the possibility of incrimination was speculative at best. As a result, appellant’s invocation of the privilege against self-incrimination was not valid.
Appellant’s argument fails for the additional reason that he was not forced to choose between incriminating himself or invoking the privilege and jeopardizing his conditional liberty. (Murphy, supra, 465 U.S. at p. 436.) This was not a situation where the state, “either expressly or by implication,” asserted that appellant’s “invocation of the privilege would lead to revocation . . . .” (Id. at p. 435.) Here, there is no evidence that appellant was “expressly informed” during the polygraph that asserting the privilege against self-incrimination “would result in the imposition of a penalty.” (Id. at p. 438; see also People v. Goodner (1992) 7 Cal.App.4th 1324, 1330 [statements made by defendant during presentencing interview with probation officer were not compelled; there was “no indication that he made the admissions in response to coercion or with the express hope of obtaining a favorable report”].) We note that Adams told appellant that “the Court could possibly interpret his refusal to answer questions about the case he is accused of, as not obeying the Court Order.” But Adams never expressly told appellant that invoking the Fifth Amendment would result in the revocation of his probation. And Adams never threatened appellant with probation revocation at any point during the polygraph examination. As a result, there is no violation of the rule that a state may not “carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” (Murphy, supra, 465 U.S. at p. 438.) There was no “threat” and there was no “legitimate exercise of the Fifth Amendment privilege.” Appellant’s probation was revoked not for asserting the privilege against self-incrimination. His probation was revoked because he refused to answer questions that posed no threat of incrimination.
This is not a situation like the one in Antelope, where one of the terms of the defendant’s probation required him to participate in a sexual treatment program, which in turn required him to complete a “history autobiography assignment and ‘full disclosure polygraph’ verifying his ‘full sexual history.’” (Antelope, supra, 395 F.3d at p. 1131.) There, the court revoked the defendant’s probation after he invoked the Fifth Amendment in response to questions asked during treatment. (Id. at pp. 1131, 1139.) The Ninth Circuit held that the probation condition at issue subjected the defendant to a “‘real and appreciable’” risk of incrimination because he was required to reveal his entire sexual history — which included any past sexual crimes — to a counselor, who would then likely report the offenses to the authorities, who could use the admissions to prosecute him. (Id. at p. 1135.) The court also determined that the state could not sanction the defendant for invoking the Fifth Amendment by revoking his probation and sentencing him to prison. (Id. at pp. 1137-1138.)
Under the circumstances presented — and unlike Antelope — there was no “real danger of self-incrimination.” (Antelope, supra, 395 F.3d at p. 1135.) The polygraph examination was a “Full Disclosure Examination regarding the instant offense, [the] sexual molestation of Linds[e]y R., age 14.” (Italics added.) It did not force appellant to reveal his “full sexual history, including all past sexual criminal offenses.” (Antelope, supra, 395 F.3d at p. 1135.) Instead, Adams asked appellant specific questions about the crime of which he was convicted: whether he “touched” the victim in “a sexual way” and whether he touched her underwear. As previously discussed, these questions did not subject appellant to the risk of incrimination because he had already been convicted of violating section 288, subdivision (c)(1) based on the fact that he rubbed the victim’s breasts and vagina. And here, the court did not sanction appellant for invoking his right to remain silent; it revoked appellant’s probation because he had no Fifth Amendment right to decline to answer questions that did not incriminate him.
Appellant relies on several out of state cases, two of which include James v. State (Alaska 2003) 75 P.3d 1065, 1066 (James) and Mace v. Amestoy (D.Vt. 1991) 765 F.Supp. 847, 850 (Mace). In James, the Alaska Court of Appeals held that a trial court could not revoke the defendant’s probation to penalize him for failing to participate in a sex offender treatment program and for invoking the Fifth Amendment during several meetings with a clinical social worker. (James, supra, at pp. 1066, 1072.) In Mace, the federal district court of Vermont reversed an order revoking the defendant’s probation and held that a state could not, as a condition of probation, force the defendant to admit to a greater offense than the one of which he had been convicted. (Mace, supra, 765 F.Supp. at p. 850.)
Neither case has any application here. In James, the defendant’s post-conviction appeal was pending and, as a result, any statements he made admitting responsibility for the offenses could be used against him in a retrial. (James, supra, 75 P.3d at pp. 1067, 1072.) Additionally, the James defendant testified at trial that he did not commit the offenses, creating the risk that he could be prosecuted for perjury if he were forced to admit to the offenses in therapy. (Ibid.) James is distinguishable. In the circumstances of this case, appellant does not have an appeal pending, and there is no indication in the record that he testified at trial. As a result, there is no danger that appellant’s statements could be used against him in a retrial or to prosecute him for perjury. And Mace is distinguishable because none of the questions posed during the polygraph examination required appellant to admit to a greater, or different, offense.
At the March 7, 2007 probation revocation hearing, appellant argued that the 21 questions Adams asked during the Pre-test Interview — and before administering the polygraph — inquired “about matters that would, in fact, incriminate [him].” On appeal, appellant again focuses on the questions posed during the Pre-test Interview and not on the questions Adams asked during the polygraph examination. But we need not address this argument for the simple reason that the questions posed during the polygraph examination were not incriminating. As a result, the court was within its discretion to revoke appellants’ probation for his failure to answer questions posed during the examination.
Finally, appellant claims that the court’s decision to revoke probation was an abuse of discretion for an additional reason: it punished him for following the instructions of his attorney. Appellant reasons that he followed the advice given to him by his attorney when he invoked his right to remain silent; if that advice was erroneous, his violation of probation for refusing to answer questions was not willful. Appellant faults the trial court for failing to determine whether his refusal to answer stemmed from erroneous advice of counsel, and urges that if so, he should have then been given a second chance to submit to a polygraph examination. Appellant, however, concedes that his counsel told him that he was “obliged to provide answers” to “questions focused on his underlying criminal conduct and his performance on probation. . . .” By not answering questions focused on his underlying criminal conduct, appellant chose not to follow his attorney’s instructions and willfully violated his probation.
Appellant’s Allocution Claim Fails
Citing section 1200, appellant’s next contention is that the court’s failure to offer him an opportunity to make a statement at the sentencing hearing violated his right of allocution. This argument is foreclosed by the California Supreme Court’s recent decision in People v. Evans (2008) 44 Cal.4th 590, 597-598. Under circumstances almost identical to those at issue here, the Supreme Court held that “section 1200 does not entitle the defendant, in response to the trial court’s allocution, to offer a personal statement in mitigation of punishment.” (Evans, supra, at p. 597, fn. omitted.) The court further held that a defendant may make a “personal statement in mitigation of punishment” pursuant to section 1204, but the statement “must be made under oath and be subject to cross-examination by the prosecutor.” (Evans, supra, at pp. 597-598.) In so holding, the Supreme Court overruled In re Shannon B. (1994) 22 Cal.App.4th 1235.
Section 1204 is entitled, “Circumstances in aggravation or mitigation of punishment; hearing.” It provides, “The circumstances shall be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section. This section shall not be construed to prohibit the filing of a written report by a defendant or defendant’s counsel on behalf of a defendant if such a report presents a study of his background and personality and suggests a rehabilitation program. If such a report is submitted, the prosecution or probation officer shall be permitted to reply to or to evaluate the program.”
In Evans, the trial court asked the parties whether there was “‘any legal cause why sentence cannot now be pronounced’” and defense counsel responded, “‘No legal cause.’” (Evans, supra, 44 Cal.4th at p. 593.) The court permitted defense counsel to argue in favor of mitigation. The parties discussed the issue of restitution and the trial court asked, “‘With that, the matter’s submitted, correct?’” Defense counsel answered, “‘Submitted.’” (Ibid.) The court then ordered the defendant “‘committed to the Department of Corrections.’” The defendant interjected and requested an opportunity to speak. The court denied his request and imposed a five-year prison sentence. (Ibid.)
The Supreme Court held that the right of allocution set forth in “section 1200 does not entitle the defendant . . . to offer a personal statement in mitigation of punishment” because a mitigating statement is not “‘legal cause to show why judgment should not be pronounced.’” (Evans, supra, 44 Cal.4th at p. 597.) The Evans court explained that section 1204 does provide such a right, but requires that any such statement be made while the defendant is under oath and subject to cross-examination. (Evans, supra, at p. 598.) The Evans court determined that the trial court did not err in refusing to allow the defendant to testify in mitigation of punishment because defense counsel did not call the defendant to testify and defendant did not ask to do so. (Ibid.)
The same is true here. To make a statement in mitigation of punishment, appellant was required to follow the procedure outlined in section 1204. He did not. Even if we were to construe appellant’s comment, “Your Honor, please,” as a request to testify in mitigation, we would — like the Evans court — conclude that his request was untimely. Appellant did not ask to make a statement until after he was sentenced. He was silent during the sentencing hearing until the court began to discuss the issue of credits. And defense counsel did not ask for permission for appellant to make a statement until after the court had imposed sentence. Therefore, any right appellant may have had to make a statement was forfeited. (Evans, supra, 44 Cal.4th at pp. 598-599.)
The Court Did Not Abuse Its Discretion in Sentencing Appellant to the Middle Term
Appellant contends the court abused its discretion by imposing the middle term. At the time of appellant’s offense, former section 1170, subdivision (b) provided that the middle term was presumed to be the appropriate term absent circumstances in aggravation or mitigation (see former § 1170, subd. (b)) and the trial court was not required to state reasons for imposing the middle term. (Cal. Rules of Court, former rule 4.406(b)(4).) Effective March 30, 2007, the Legislature amended section 1170, subdivision (b) to eliminate the statutory presumption regarding the middle term and to require the court to state its reasons for imposing the term selected. (Stats. 2007, ch. 3, § 2.)
The revised statute now provides in pertinent part, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . . The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth the reasons for imposing the term selected. . . .” (§ 1170, subd. (b); see also People v. Sandoval (2007) 41 Cal.4th 825, 845-847.) “In response to the Legislature’s amendment [of section 1170], the Judicial Council amended the sentencing rules effective May 23, 2007.” (Sandoval, supra, at p. 836, fn. 3.) Appellant contends that the revised sentencing scheme set forth in section 1170, subdivision (b) applies to him. (See, e.g., Sandoval, supra, 41 Cal.4th at p. 836, fn. 3.) The People do not contend otherwise. Accordingly, we determine whether the court abused its discretion under the new sentencing scheme.
To establish an abuse of discretion, appellant has the burden to show “that the sentencing decision was irrational or arbitrary.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (Id. at pp. 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) A “‘decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ [Citations.]” (Id. at p. 978.)
At the sentencing hearing, the court stated that it was going to “impose the mid-term of two years.” In response, defense counsel said, “Judge, I think the Court should impose the low-term. . . . If the Court is going to give him prison [time], I think the Court should impose the low-term. . . . [Appellant]’s got absolutely no prior record. The only thing that’s here is he is trying to comply with probation, and he won’t admit something that he has denied all along, and for . . . that, he’s getting a commitment to state prison. . . .” Defense counsel emphasized that appellant had “absolutely no prior record” and “no violations of probation.”
The court invited defense counsel to argue in favor of mitigation, stating, “If you want to say something that is mitigating pursuant to the Rules of Court, I’ll be happy to hear it.” In response, defense counsel argued, “Well, everything about this case and everything about [appellant] is mitigating factors. He’s got no . . . prior record. He’s tested. He’s reported. He’s paid money. He’s done everything that they’ve asked him, with the exception of answering incriminating questions in a polygraph examination. . . . Everything about this case cries out for mitigation . . . particularly the nature of the violation, the time that it’s coming out, how long he’s been on probation. . . . [T]here’s nothing — absolutely nothing that would suggest any aggravating factors that would outweigh those mitigating factors.”
After this colloquy, the court stated the following reasons for imposing the middle term: “The defendant, having been found guilty of a violation of . . . section 288, sub[division (c)(1)], lewd act upon a child, the Court finds that, given the violation of probation, his inability to work with Probation in determining whether or not he would be a danger to other children, the Court is denying probation. [¶] The reason the Court is denying probation, besides his violations, are the facts of the case. The defendant, 32 years of age, slid his hand up the victim’s, age 14, thigh, stopping his hand on her underwear, over her vagina. He rubbed the vaginal area, squeezed her buttocks, and attempted to fondle her breasts. [¶] That is worthy of a state prison sentence, mid-term two years.”
Appellant contends the court abused its discretion by imposing the middle term because it “relied solely on the elements of the offense as the basis for its sentencing determination.” We disagree. Defense counsel put evidence of mitigating factors before the court, including appellant’s lack of a prior record and his performance on probation. (Cal. Rules of Court, rule 4.423(b)(1), (5), (6).) Defense counsel also argued that the nature of the crime weighed in favor of mitigation. (Cal. Rules of Court, rule 4.423(a).) Nothing in the record suggests that the court declined to consider these mitigating factors.
And there was evidence of an aggravating factor before the court, specifically, the 18-year age difference between the victim and appellant. As previously noted, section 288, subdivision (c)(1) makes it a crime to commit a lewd or lascivious act, with a specified intent, upon a victim who “is a child of 14 or 15 years” where the person “is at least 10 years older than the child.” (§ 288, subds. (a), (c)(1).) Here, appellant was 18 years older than the victim, which exceeded the minimum age difference necessary to establish a violation of the statute. Accordingly, we conclude that the court properly weighed mitigating and aggravating factors and exercised its discretion in sentencing appellant to the middle term.
DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Reardon, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.