Majority
Opinion
Defendant pled guilty to committing a lewd and lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) The victim, defendant’s niece, was seven years old at the time of the offense. Defendant was placed on probation for five years on condition that he serve one year in county jail, have no contact with the victim or any other minor female unless in the presence of her parent or with the express approval of his probation officer, and that he submit to a polygraph examination at the direction of his probation officer. On appeal defendant challenges the condition requiring submission to polygraph testing. We shall affirm.
At sentencing, defendant objected unsuccessfully to the polygraph condition. The probation officer asserted the polygraph was necessary to monitor defendant’s compliance with the other conditions of probation, especially
Defendant argues the requirement of submission to polygraph testing is unreasonable. Pursuant to Penal Code section 1203.1, the sentencing court has broad discretion to prescribe reasonable probation conditions to foster rehabilitation and to protect the public so justice may be done. (People v. Lent (1975) 15 Cal.3d 481 , 486 [ 124 Cal.Rptr. 905 , 541 P.2d 545 ]; People v. Richards (1976) 17 Cal.3d 614 , 619 [ 131 Cal.Rptr. 537 , 552 P.2d 97 ]; In re White (1979) 97 Cal.App.3d 141 , 145 [ 158 Cal.Rptr. 562 ].) “A condition of probation will not be held invalid unless 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 . . . .’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (Lent, supra, at p.486.) The validity of a condition may be challenged on appeal despite defendant’s right to refuse probation. (In re White, supra, at p. 146.)
Applying these rules to the instant case, we conclude the polygraph condition is valid. Defendant pled guilty to a sex crime committed upon a seven-year-old female. One condition of probation is that he not be alone with young females. As indicated at sentencing, compliance with that condition is difficult to enforce. The polygraph condition helps to monitor compliance and is therefore reasonably related to the defendant’s criminal offense. Because this condition is aimed at deterring and discovering criminal conduct most likely to occur during unsupervised contact with young females, the condition is reasonably related to future criminality. (People v. Mason (1971) 5 Cal.3d 759 , 764 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ]; Lent, supra, 15 Cal.3d at p.486.)
Defendant argues the condition is insufficient to monitor his compliance with the other conditions of probation because polygraph examinations are unreliable. Polygraph tests are deemed unreliable for evidentiary purposes. (Evid. Code, § 351.1; People v. Jones (1959) 52 Cal.2d 636 , 653 [ 343 P.2d 577 ]; People v. Thornton (1974) 11 Cal.3d 738 , 763-764 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ]; see Arden v. State Bar (1987) 43 Cal.3d 713 , 723-724 [ 239 Cal.Rptr. 68 , 739 P.2d 1236 ]; People v. Reeder (1976) 65 Cal.App.3d 235 , 242 [ 135 Cal.Rptr. 421 ].) However, this is an evidentiary
Defendant complains the polygraph condition is overbroad because there are no restrictions on the questions the examiner may ask. This is patently incorrect. The polygraph condition was expressly requested by the probation officer and imposed by the court to monitor defendant’s compliance with the condition prohibiting unsupervised contact with young females. Thus any polygraph examination administered to defendant necessarily will be limited to questions relevant to compliance with that condition.
Defendant asserts the polygraph requirement violates his privilege against self-incrimination. Defendant misconstrues the nature of the privilege. The privilege against self-incrimination is not self-executing; it must be claimed. (Minnesota v. Murphy (1984) 465 U.S. 420 , 427 [ 79 L.Ed.2d 409 , 419, 104 S.Ct. 1136 ].) Although defendant has a duty to answer the polygraph examiner’s questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. (Ibid.) The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege.
Ancillary to his constitutional argument, defendant claims the polygraph condition poses the problem of whether he is entitled to Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) prior to the test, and if so, whether invoking his right to remain silent would be a proper exercise of that privilege or would cause a
1 We are aware of the prohibition against subjecting private and public employees involuntarily to polygraph examinations, even for investigative purposes, as a condition of employment. (Lab. Code, § 432.2; Gov. Code, § 3307; Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937 , 948, 956 [ 227 Cal.Rptr. 90 , 719 P.2d 660 ].) However, convicted criminals conditionally released to society, such as probationers, are not similarly situated and may be subjected to polygraph testing to help ensure obedience to valid probation conditions. (See Mason, supra, 5 Cal.3d at pp. 764-765.)
When subject to a polygraph examination as an investigative tool alone, a probationer is not placed in any worse position than he would otherwise be were there no polygraph condition. In either case, the probation officer may fully investigate the probationer’s compliance with conditions whether or not the polygraph is used.
The trial court did not abuse its discretion by including the polygraph requirement as a condition of probation for the limited use as an investigative tool.
The judgment is affirmed.
Carr, J., and Smith, J.,[3] concurred.
A petition for a rehearing was denied March 23, 1989, and appellant’s petition for review by the Supreme Court was denied June 8, 1989.
2 Defendant makes passing reference to the condition violating his right to privacy. While probationers are entitled to enjoy a significant degree of privacy (People v. Keller (1978) 76 Cal.App.3d 827 , 832 [ 143 Cal.Rptr. 184 ]), that expectation is reduced because of their conditional release to society. (Mason, supra, 5 Cal.3d at pp. 764-765.) The polygraph examinations here will be limited in their inquiry to the issue of defendant’s compliance with another valid condition. This inquiry will no more intrude upon defendant’s reduced privacy expectations than his periodic reports to his probation officer.
* Assigned by the Chairperson of the Judicial Council.
Cases cited
- People v. Lent 15 Cal.3d 481 at 486 p. 1314
- People v. Richards 17 Cal.3d 614 at 619 p. 1314
- In re White 97 Cal.App.3d 141 at 145 p. 1314
- People v. Mason 5 Cal.3d 759 at 764 p. 1314
- People v. Jones 52 Cal.2d 636 at 653 p. 1314
- People v. Thornton 11 Cal.3d 738 at 763-764 p. 1314
- Arden v. State Bar 43 Cal.3d 713 at 723-724 p. 1314
- People v. Reeder 65 Cal.App.3d 235 at 242 p. 1314
- People v. Lara 12 Cal.3d 903 at 909 p. 1315
- Frazee v. Civil Service Board 170 Cal.App.2d 333 at 335 p. 1315
- People v. Keith 118 Cal.App.3d 973 at 984 p. 1315
- People v. Adams 53 Cal.App.3d 109 at 114 p. 1315
- People v. Aragon 154 Cal.App.2d 646 at 658 p. 1315
- Minnesota v. Murphy 465 U.S. 420 at 427 p. 1315
- Miranda v. Arizona 384 U.S. 436 p. 1315
- People v. Hamilton 260 Cal.App.2d 103 at 105 p. 1316