Opinion
H041914
10-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JACOB EDWARD SOTELO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1488159)
Defendant Jacob Edward Sotelo appeals following his no contest plea to sexual battery upon an unconscious person. (Pen. Code, § 243.4, subd. (c).)
Defendant argues that the trial court erred when it imposed probation conditions requiring him to participate in polygraph testing, to waive his psychotherapist-patient privilege and to submit to chemical testing. We find that the conditions were properly imposed and affirm the judgment.
STATEMENT OF THE FACTS AND CASE
Defendant drove the victim home from a karaoke bar after drinking. The victim fell asleep in the passenger seat. She woke up to defendant breathing heavily and rubbing her vagina over her clothing. The victim was under the influence of alcohol at the time of the offense.
The facts are taken from the probation report.
On July 17, 2014, defendant was charged with sexual penetration where the victim was unconscious of the nature of the act. (Pen. Code, § 289, subd. (d).) On November 25, 2014, defendant pled no contest to one count of sexual battery upon an unconscious person. (Id., § 243.4, subd. (c).)
On January 30, 2015, the court suspended imposition of sentence and ordered that defendant serve three years of probation. Pursuant to Penal Code section 1203.067, subdivision (b)(3) and (4), defendant was ordered to participate in polygraph examinations and waive any psychotherapist-patient privilege as conditions of probation. Defendant was also ordered to "admit [sic] to chemical testing," and to not "knowingly possess or consume alcohol or illegally controlled substances or normally go to places where alcohol is the primary item of sale." Defendant filed a notice of appeal on February 2, 2015.
DISCUSSION
Defendant argues that the probation conditions requiring him to submit to polygraph examinations and to waive the psychotherapist-patient privilege are unconstitutional. He also argues that the probation condition requiring him to submit to chemical testing is unreasonable, because it is not related to the crime of which defendant was convicted. He maintains that his attorney was ineffective in failing to object to the imposition of the chemical testing condition at the time it was imposed. Probation Conditions Imposed Pursuant to Penal Code Section 1203 .067
In defendant's opening brief in this appeal, he argued that the probation conditions that required him to stay away from places where alcohol is the primary item of sale, and to refrain from the use of alcohol were not related to the crimes in this case. Defendant concedes in his reply brief that the alcohol conditions were reasonably related to the crime, because defendant assaulted the victim after they had just left a bar and while they both were intoxicated. --------
Defendant urges this court to strike or modify the probation conditions imposed pursuant to Penal Code section 1203.067, subdivision (b)(3) and (4). He asserts that the condition requiring him to participate in polygraph examinations (the Penal Code section 1203.067, subdivision (b)(3) condition) violates the Fifth Amendment and is unconstitutionally overbroad. He asserts that the condition requiring him to waive the psychotherapist-patient privilege (the Penal Code section 1203.067, subdivision (b)(4) condition) violates his right to privacy, is unconstitutionally overbroad, and constitutes an improperly coerced waiver.
In People v. Garcia (2017) 2 Cal.5th 792 (Garcia), our Supreme Court rejected similar challenges to probation conditions imposed pursuant to Penal Code section 1203.067, subdivision (b)(3) and (4). In Garcia, the Penal Code section 1203.067, subdivision (b)(3) condition required the defendant to " 'waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program,' " and the Penal Code section 1203.067, subdivision (b)(4) condition required the defendant to " 'waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer.' " (Garcia, supra, at p. 799.)
As to the Penal Code section 1203.067, subdivision (b)(3) condition (requiring participation in polygraph examinations), our Supreme Court rejected the claim that the condition violated the Fifth Amendment. (Garcia, supra, 2 Cal.5th at pp. 802-803.) The court explained that the "condition is properly read . . . to require that probationers answer all questions posed by the containment team fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding." (Ibid.) Given this proper reading, the court determined that the condition did not violate the defendant's Fifth Amendment rights: "As this court has previously explained, the Fifth Amendment does not establish a privilege against the compelled disclosure of information; rather, it 'precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.' " (Id. at p. 807.) In order to "remove any doubt" on the Fifth Amendment issue, the court explicitly declared that "probationers have immunity against the direct and derivative use of any compelled statements elicited under the [Penal Code section 1203.067,] subdivision (b)(3) condition." (Ibid.)
Our Supreme Court rejected the claim that the Penal Code section 1203.067, subdivision (b)(3) condition was overbroad. (Garcia, supra, 2 Cal.5th at p. 809.) Although the defendant asserted that the condition permitted "polygraph examinations of unlimited scope," the court concluded that the scope of the polygraph examinations was "not unbounded." (Ibid.) The court explained that the condition was "expressly linked to the purposes and needs of the sex offender management program," with the scope of the polygraph examinations thus "limited to that which is reasonably necessary to promote the goals of probation." (Ibid.)
As to the Penal Code section 1203.067, subdivision (b)(4) condition (requiring waiver of any psychotherapist-patient privilege), our Supreme Court found that the condition did not violate the defendant's right to privacy. (Garcia, supra, 2 Cal.5th at pp. 798-799.) The court explained that the condition required a "limited waiver of the psychotherapist-patient privilege for the purpose of enabling the treatment professional to consult with the probation officer and the polygraph examiner." (Id. at p. 799.) Because the defendant's confidential communications could " 'be shared only with the probation officer and the certified polygraph examiner,' " the court concluded that the waiver required by the condition was "quite narrow" and did not violate the defendant's right to privacy. (Id. at p. 810.) The court emphasized that the waiver did "not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information." (Ibid.)
In addressing the claim that the Penal Code section 1203.067, subdivision (b)(4) condition was overbroad, our Supreme Court noted: "The required waiver [of the psychotherapist-patient privilege] extends only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program." (Garcia, supra, 2 Cal.5th at p. 811.) In light of this "limited sharing of information" (id. at p. 812), the court determined that the condition intruded on the psychotherapist-patient privilege "only to a limited extent" and was not overbroad. (Id. at p. 813.)
Our Supreme Court also rejected the claim that the Penal Code section 1203.067, subdivision (b)(4) condition involved an improperly coerced waiver of the psychotherapist-patient privilege. (Garcia, supra, 2 Cal.5th at p. 813.) The court acknowledged that the defendant "faced the choice between waiving his psychotherapist-patient privilege or going to prison." (Ibid.) The court explained, however, that the condition was not invalid simply because it involved "an element of coercion." (Ibid.) Given the condition's "limited" intrusion upon the psychotherapist-patient privilege, the court determined that the condition did "not cause the privilege to evaporate" and was not invalidated by coercion. (Ibid.)
Garcia resolves defendant's challenges to the probation conditions imposed pursuant to Penal Code section 1203.067, subdivision (b)(3) and (4). In light of the precedent established by Garcia, we refuse defendant's request to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Probation Conditions Related to Chemical Testing
Defendant argues that the probation condition that requires him to submit to chemical testing is not reasonably related to the crime for which he was placed on probation. He asserts that his counsel was ineffective for failing to object to the court's imposition of the condition.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
Here, the question of whether defendant suffered ineffective assistance of counsel turns on whether he was prejudiced by his counsel's failure to object to the imposition of the chemical testing condition. Defendant must establish that but for his counsel's failure to object "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.)
Penal Code section 1203.1, subdivision (j), vests the trial court with discretion to "impose and require . . . [such] reasonable [probation] conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." Although the court's discretion is broad, a probation condition 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.) Phrased differently, if a condition of probation forbids conduct which itself is not criminal, as is the case here, that condition is valid if it either is reasonably related to the crime defendant committed or to defendant's future criminality.
We review the imposition of probation conditions for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) We look to whether the sentencing court's determination is arbitrary, capricious, or exceeds the bounds of reason, considering all the circumstances. (Id. at p. 1121.)
Here, defendant concedes that the conditions limiting his use of alcohol are reasonable, because the crime involved defendant and the victim's intoxication. However, defendant argues that the chemical testing condition is not reasonably related to his crime because it does not specify the chemicals to be tested, and there is no indication that the crime involved his use of drugs.
In support of his position, defendant cites People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo) [disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 233], where the trial court imposed "no alcohol" probation terms for a methamphetamine possession conviction. The appellate court struck the condition because nothing in the record showed that alcohol was related to Kiddoo's conviction, or was reasonably related to future criminal behavior. (Kiddoo, supra, at pp. 927-928.)
Defendant argues that while this case is the factual reverse of Kiddoo, the same rationale should apply. Specifically, although defendant's crime involved alcohol intoxication, there is nothing in the record to show that the use of drugs was related to the crime. Just as the alcohol condition was stricken in Kiddoo, which was a drug case, so too should the chemical testing provision be stricken in this case, which involves alcohol.
Defendant argues that the facts of his case are distinguishable from People v. Lindsay (1992) 10 Cal.App.4th 1642 (Lindsay) and People v. Beal (1997) 60 Cal.App.4th 84, in which the appellate court upheld "no alcohol" probation conditions for controlled substance convictions. In Beal, the defendant was selling drugs to support a drug habit. (Id. at p. 86, fn. 1.) Rejecting the reasoning in Kiddoo, the court concluded that a sufficient nexus existed between the effects of alcohol use and the probationer's reduced ability to avoid drugs. (Id. at p. 87.) In Lindsay, the defendant acknowledged having an alcohol problem and an addictive personality. (Lindsay, supra, at p. 1645.)
The rationale of Lindsay and Beal is persuasive in this case. Defendant assaulted his victim after the two had been at a karaoke bar, and while his victim was unconscious and under the influence of alcohol. We find there is a sufficient nexus between alcohol consumption and the use of drugs, such that a chemical testing condition is reasonable in this case. In addition, the condition is related to defendant's future criminality because it ensures that defendant remains sober and will minimize his contact with inebriated potential victims.
We find the condition requiring defendant to submit to chemical testing is lawful under Lent, because it is related to defendant's crime and his future criminality. As such, defendant's counsel's performance was not deficient, and he cannot establish that but for his attorney's failure to object to the imposition of the condition, there would have been a different result in this case. A defense attorney " 'is not required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel.' " (People v. Harpool (1984) 155 Cal.App.3d 877, 886.)
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.