No. 49835-5-I.The Court of Appeals of Washington, Division One.
Filed: February 18, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 97-1-09380-1, Hon. Jeffrey M. Ramsdell, December 17, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason B. Saunders, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Kelly S. Grace, Room 554, 516 3rd Ave, Seattle, WA 98104.
KENNEDY, J.
Adolfo Pedraza appeals from the sentencing court’s order imposing sexual deviancy evaluation and treatment as a condition of sentence on a gross misdemeanor conviction for harassment predicated on threats made to victims of child sexual abuse. Pedraza argues that the trial court lacked the statutory authority to require a sexual deviancy evaluation for a misdemeanor that does not constitute a `sex offense’ under the Sentencing Reform Act (SRA), that there is no nexus between the crime of conviction and the condition of probation, and that the evaluation violates substantive due process. We disagree, and affirm the sentence.
FACTS
On November 20, 1997, Pedraza was charged with rape of a child in the second degree, rape of a child in the third degree, and two counts of rape of a child in the second degree. The certification of probable cause indicates that the charges stemmed from allegations that Pedraza had sexually abused two of his children over an extended period of time. At the age of 15, Pedraza’s daughter disclosed to a school official and her mother that Pedraza had been sexually abusing her since she was 9 years old. She described the sexual abuse as consisting of oral, vaginal, and anal intercourse. The daughter reported that Pedraza had threatened to kill her or her mother if she told anyone about the abuse. At the age 10, one of Pedraza’s sons told his mother and a police detective that Pedraza had been anally raping him and forcing him to perform oral sex since he was 5 years old. Pedraza fled the jurisdiction, and in August 2001, he was arrested in Texas as he was reentering the United States from Mexico.
On June 13, 2001, Pedraza was charged by amended information with five counts of rape of a child in the first degree — domestic violence, three counts of rape of a child in the second degree — domestic violence, one count of rape of a child in the third degree — domestic violence, and one count of rape in the second degree — domestic violence. The additional charges were based on a supplemental certification for probable cause, including new disclosures by Pedraza’s wife and Pedraza’s younger son that they also had been sexually abused by Pedraza. The younger son disclosed that Pedraza had been anally raping him since he was 7 or 8 years old, and that he had not disclosed this abuse during the initial investigation because he was afraid. The amended information also included more charges of sexual abuse of Pedraza’s daughter and older son, to reflect the multiple incidents of abuse that allegedly occurred over a period of years.
The trial court heard extensive testimony from the children during a pretrial hearing on a motion regarding the admissibility of misconduct evidence under ER 404(b). Pedraza’s daughter testified about the history of physical and sexual abuse inflicted by her father, adding that he often threatened to kill her or her family if she told anyone. Pedraza’s older son testified that he was sexually abused and that during the sexual abuse, Pedraza would threaten to kill the boy’s mother, or to take the boy away to Mexico if he told anyone.
Pedraza’s younger son also testified that Pedraza sexually abused him. All three children testified that they sometimes smelled alcohol on Pedraza’s breath during the sexual abuse. After hearing this testimony, the trial court ruled on the admissibility of misconduct evidence under ER 404(b). The trial court found that the State had proven by a preponderance of the evidence that Pedraza made threats to the victims in the course of the alleged sexual abuse and that he had sometimes had alcohol on his breath during the abuse. Following the hearing, Pedraza and the State entered into plea negotiations. On November 16, 2001, pursuant to a plea agreement and amended information, Pedraza entered an Alford[1] plea to one count of assault in the second degree — domestic violence; one count of assault of a child in the third degree — domestic violence, and one count of harassment.
The harassment count was predicated on threats Pedraza made to his daughter during the course of sexual abuse, including putting a knife to her throat and threatening to kill her if she told anyone. All references to `sexual offenses’ were crossed out of the statement of defendant on plea of guilty before Pedraza signed it. Pedraza checked a box on the preprinted plea agreement form specifying that, in accordance with RCW 9.94A.370, `the court, in sentencing, may consider as real and material facts information . . . as set forth in the certification(s) of probable cause and prosecutor’s summary.’ Clerk’s Papers at 92.
Pedraza also provided a handwritten statement in his statement on plea, stating that `{t}he court for purpose of this plea and sentencing may read the certification for determination for probable cause and page 44 of {Pedraza’s younger son’s} testimony’ (regarding the two assault charges), and that `the court may read the cert. for determination for probable cause as a factual basis for plea and sentencing’ (regarding the harassment charge).[2] Clerk’s Papers at 79; 99.
The trial court accepted the plea, and, based on the certifications of probable cause, found a factual basis for all three pleas. The court found Pedraza to be guilty as charged.
The State requested that the court impose 8 months of incarceration for the second degree assault count and 12 months for the third degree assault of a child count, to run concurrently, as well as standard monetary conditions and community supervision of 12 months. Regarding the misdemeanor harassment count, the State recommended a 12-month sentence, with all but 15 days suspended. Also for the harassment count, in addition to monetary conditions, the State asked that Pedraza be on probation for 24 months, have no criminal law violations, have a no-contact order for a period of 10 years prohibiting contact with his wife and children, obtain an alcohol evaluation, and follow any treatment recommendations.
At sentencing, the court heard from the victims, and from friends and family of the victims, as well as from Pedraza. The trial court sentenced Pedraza on the felony convictions according to the State’s recommendations. However, for the gross misdemeanor harassment conviction, the trial court imposed 12 months of incarceration, suspended on the condition that Pedraza be on probation for 24 months. The court specifically indicated its desire to monitor Pedraza’s compliance with probation conditions, and to have 12 months of jail time available with which to sanction him, if needed.
The trial court further imposed a condition of probation `in the abundance of caution’ requiring Pedraza to submit to a sexual deviancy evaluation and to follow any treatment recommendations. Counsel for Pedraza objected on the ground that there was no nexus between the crime for which Pedraza was being sentenced and the condition of probation. The court noted the objection, but imposed the condition nevertheless. Pedraza appeals the sexual deviancy and treatment condition of probation on the misdemeanor harassment conviction.
DISCUSSION
A trial court’s decision suspending a sentence and imposing conditions of probation is reviewed for abuse of discretion. State v. Williams, 97 Wn. App. 257, 263, 983 P.2d 687 (1999), review denied, 140 Wn.2d 1006
(2000). Pedraza argues that the trial court lacked the statutory authority to order a sexual deviancy evaluation as a probationary condition for harassment, which is a gross misdemeanor that is not among those crimes defined as `sex offenses’ under the Sentencing Reform Act (SRA). Pedraza also contends that because a misdemeanor is a crime of less severity that warrants no greater punishment than a felony conviction, RCW 9.92.060(1) does not authorize the trial court to impose a Special Sex Offender Sentencing Alternative (SSOSA) on an individual who did not commit a `sex offense.’
The crux of his argument is that the trial court essentially ordered a SSOSA. A SSOSA is a special procedure authorized under the SRA, whereby the sentencing judge may suspend a sex offender’s felony sentence, if the offender meets certain eligibility criteria defined in the statute. RCW 9.94A.670(2)[3] . As part of the SSOSA, the trial court may order sexual deviancy evaluation and treatment. RCW 9.94A.670(3). Pedraza’s argument is not persuasive. The trial court in this case did not attempt to impose a SSOSA or any other SRA sentence. Rather, it imposed a condition of misdemeanor probation pursuant to RCW 9.92.060(1). `Probation outside the SRA is not a matter of right but a matter of grace, privilege, or clemency `granted to the deserving, and withheld from the undeserving, as sound official discretion may dictate.” Williams, 97 Wn. App. at 263, quoting State v. Farmer, 39 Wn.2d 675, 679, 237 P.2d 734 (1951).
RCW 9.92.060(1) authorizes the trial court to impose a suspended sentence for a misdemeanor conviction with probationary conditions that are not directly related to the misdemeanant’s crime, so long as the conditions (1) bear a reasonable relation to the defendant’s duty to make restitution or (2) tend to prevent the future commission of crimes. Williams, 97 Wn. App. at 263, citing State v. Summers, 60 Wn.2d 702, 707, 375 P.2d 143 (1962). RCW 9.92.060(1) does not apply to felonies. RCW 9.92.900.
In contrast, the SRA creates a sentencing system for felony offenders. RCW 9.94A.010. Historically, the trial court was granted wide discretion in sentencing matters; however, the SRA limited that discretion by instituting a determinate sentencing scheme while leaving the trial court with sentencing discretion within the established parameters. State v. Hunter, 102 Wn. App. 630, 636, 9 P.3d 872, review denied, 142 Wn.2d 1026
(2001).
The SRA’s primary goal is punitive rather than rehabilitative. State v. J.H., 96 Wn. App. 167, 173, 978 P.2d 1121 (1999). Therefore, the sentencing court’s authority to suspend sentences and impose conditions after confinement is expressly restricted. But the SRA does not limit the trial court’s discretion in imposing sentence on a misdemeanor conviction. State v. Whitney, 78 Wn. App. 506, 517, 897 P.2d 374 (1995). Nor does the SRA control the imposition of probationary conditions upon misdemeanant offenders. Williams, 97 Wn. App. at 263.
There is nothing in RCW 9.94.060 or, for that matter, in the SRA, that expressly limits the trial court’s authority to order a sexual deviancy evaluation as a condition of a suspended misdemeanor sentence, where the misdemeanor arose from real facts relating to sexual misconduct, and the condition will tend to prevent the future commission of similar crimes. `Evaluations of various kinds are a standard probationary tool.’ State v. Wilkerson, 107 Wn. App. 748, 756, 31 P.3d 1194 (2001). Pedraza points out that the Legislature expressly excluded misdemeanors from the SRA’s definition of `sex offense.’ Laws of 1995, ch. 268. sec. 1. This is true. However, it does not follow that the Legislature intended to prohibit a trial court from ordering sexual deviancy evaluation and treatment for misdemeanants, where appropriate. The act was designed to clarify that the sex offender registration requirement was expanded to include gross misdemeanors that constitute attempts, conspiracies, and solicitations to commit Class C felonies.
Here, the trial court was not attempting to impose a SSOSA, or to label Pedraza a `sex offender.’ Rather, the court imposed the condition in an effort to discourage Pedraza from committing more crimes related to sexual abuse. Pedraza also contends that there was no nexus between the conviction — gross misdemeanor harassment — and the condition requiring a sexual deviancy evaluation. We disagree. Pedraza is asking us to focus solely on the title of the crime, while ignoring the underlying facts. Pedraza agreed that the sentencing court could look to the certification of probable cause for the factual basis of the crime. Having done so, Pedraza cannot expect the sentencing court to ignore the real facts found therein. As the certification for probable cause shows, the harassment conviction was predicated on threats made by Pedraza to discourage his victims from reporting sexual abuse.
Although harassment is not a `sex offense’ under the SRA, the crime of harassment in this particular case was clearly related to sexual abuse. Provided that there is a factual nexus between the crime and the condition imposed, the proper question is whether the condition ordered will tend to prevent future crimes. See Williams, 97 Wn. App. at 261-63
(defendant who committed string of non-alcohol related crimes may be ordered to abstain from alcohol and enroll in substance abuse treatment program because those conditions will assist him in abiding by the law). It was reasonable for the sentencing court to believe that a sexual deviancy evaluation and treatment program would assist Pedraza in ceasing to sexually abuse victims, thereby removing any motivation on Pedraza’s part to threaten such victims into remaining silent.
Pedraza next argues that ordering him to undergo a sexual deviancy evaluation, which could include plethysmograph testing[4] , violated his substantive due process rights. Pedraza argues that a sexual deviancy evaluation, and especially the use of a plethysmograph, is extremely intrusive and should be reserved for `sex offenders.’ As a preliminary matter, the State asks this court not to address Pedraza’s substantive due process argument because defense counsel did not raise it at the trial court and because he did not adequately brief the issue on appeal. In re Request of Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (`naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.’) Counsel for Pedraza did object to the condition at the trial court, although not on constitutional grounds. And although Pedraza’s appellate brief does not include certain details of analysis, such as the appropriate level of scrutiny to be applied, it points to illustrative cases and provides sufficient analysis to surpass the `naked castings’ standard.
The Due Process Clause of the United States Constitution protects against deprivations of life, liberty or property without due process of law. U.S. Const., amends. 5, 14. Substantive due process claims are generally analyzed by weighing the individual rights asserted against the government’s interest in intruding upon them. In re Marriage of Parker, 91 Wn. App. 219, 223, 957 P.2d 256 (1998); Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
Pedraza’s argument relies primarily on two recent marital dissolution and child custody cases: Parker and In re Marriage of Ricketts, 111 Wn. App. 168, 43 P.3d 1258 (2002). In Parker, the mother and maternal grandparents told Child Protective Services (CPS) that they suspected the father of child abuse. Parker, 91 Wn. App. at 221. When the father learned of these allegations, he struck his wife, and was convicted of misdemeanor assault. Id. Although no child abuse charges were filed, the child’s new guardian ad litem recommended a sexual deviancy evaluation based on the father’s “history of violence’ and the `largely unexplored possibility of sexual boundary issues.” Id. at 222. The father, who had never been convicted of a sex offense, challenged the use of a plethysmograph in connection with a dispute over a parenting plan. Id.
The father argued that expert testimony interpreting a plethysmograph is not admissible under ER 702 because the procedure is not generally accepted in the mental health community as a reliable indicator of sexual deviancy, and that the plethysmograph requirement violated his substantive due process rights. Id. at 223-24. This court recognized that the substantive due process right `to avoid having the intimate parts of his body restrained and monitored while his mind is exposed to pornographic imagery’ raises a `substantial claim’ because `{f}reedom from bodily restraint is at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’ Parker, 91 Wn. App. at 223-24. The court also recognized that a court-ordered plethysmograph test `implicates the Fourth Amendment right to be free from unwarranted searches or seizures,’ and noted that the order affected the father’s fundamental liberty interest in the care and custody of his children. Id.
The court weighed the father’s right to avoid the intrusion of a plethysmograph test against the court’s obligation to consider risk of harm to the child in connection with the parenting plan. Id. The court also considered an additional factor: “Once it is established that, as here, the State is entitled to the information the bodily intrusion is designed to obtain, the means used will be measured by its reasonableness in light of the need to obtain the evidence in this way.” Id. at 224-25, quoting Harrington v. Almy, 977 F.2d 37, 44 (1st Cir. 1992). The court noted that there had been no showing that the procedure was reliable, or that less intrusive means would not be sufficient. Id. at 225. The court also noted that `{t}he weight of authority from other jurisdictions overwhelmingly holds that the plethysmograph does not produce information on which a court can rely to decide that an individual is or is not sexually deviant.”
And if it “is not a reliable indicator of sexual deviancy, it cannot serve the court’s interest in determining whether unsupervised visits with {the father} would place his son at risk of sexual abuse.’ Id. at 225. The court concluded that the trial court could not order the father to submit to a plethysmograph unless the proponent could, on remand, demonstrate that it is generally accepted in the scientific community as a reliable measure of sexual deviancy. Id. at 226.
In so holding, the court approved of the use of plethysmographs to monitor compliance by convicted sex offenders with the terms of community placement, but distinguished this from a child custody situation:
But using a plethysmograph to monitor compliance with conditions of treatment or community placement is different from using it to determine sexual deviancy. And because convicted sex offenders are a population of individuals whose liberty interests have already been severely limited based on their proven criminal conduct, authority allowing courts to order the procedure in that context does not compel affirmance of an order directed to a person who has no history of committing sexual crimes.
Id. at 225-26.
In Ricketts, a case factually similar to Parker, the trial court commissioner ordered a father to undergo a psychosexual evaluation, possibly including a penile plethysmograph test, as part of a child custody dispute. The order was based on allegations by the mother that the father exposed their daughter to pornography. Ricketts, 111 Wn. App. at 170. The father relied on Parker in arguing that the order requiring that he submit to a penile plethysmograph violated his constitutional liberty interest to be free from personal restraint. Id. The Ricketts court analyzed Parker and vacated the order requiring the father to submit to a penile plethysmograph where there was no finding of a compelling interest that outweighed the father’s liberty interest. Id. at 173.
In so holding, the court observed that `the facts echo those of Parker. Like Parker, {Ricketts} has never been convicted of committing sexual crimes.’ Pedraza argues that Parker and Ricketts demonstrate that sexual deviancy evaluations, and particularly plethysmograph tests, are extremely intrusive and should be reserved for proven sex offenders. Pedraza did not enter an Alford plea to a sex offense or even an offense with sexual motivation. Neither did he inform his probation counselor of other sexual misconduct.
Therefore, according to Pedraza, a sexual deviancy evaluation and plethysmograph are equally inappropriate in his case. Regarding the first prong of the balancing test, the State’s interest in obtaining the sexual deviancy evaluation, the State clearly has a compelling interest in monitoring a probationer during his suspended sentence to ensure that he does not commit more crimes. Regarding the second prong of the test, the individual rights asserted, Pedraza’s case is distinguishable from Parker and Ricketts. Importantly, those cases involved men who were accused of child abuse but had not been adjudged guilty of any sex-related crime. But Pedraza entered an Alford plea to harassment based on threats made to coerce child victims into committing sex acts and remaining silent, and the court found him guilty of harassment based on those real facts.
Second, Pedraza is a convicted criminal probationer, not merely a civil litigant in a child custody proceeding. Upon the entry of Pedraza’s plea, the trial court was specifically authorized by statute to sentence Pedraza and place reasonable conditions on him in exchange for suspending his sentence. Therefore, Pedraza has a diminished expectation of privacy and consequently a diminished right of privacy. See State v. Lampman, 45 Wn. App. 228, 233, 724 P.2d 1092 (1986). For example, parolees and probationers who are still serving their sentences and paroles or probations are excepted from general warrant requirements because `the person remains in the custody of the State until expiration of his sentence, merely serving his time outside the prison walls.’ State v. Keller, 35 Wn. App. 455, 460, 667 P.2d 139 (1983).
Here, the plea agreement and plea statement specifically authorized the sentencing court to consider the facts as presented in the certifications for probable cause. The court did so, and decided that a sexual deviancy evaluation was reasonably needed to prevent Pedraza from committing more crimes. Although Pedraza points to the fact that his crimes do not constitute `sex offenses’ under the SRA, this is inconsequential because the SRA applies to felonies and does not limit the trial court’s discretion to consider conditions of a suspended misdemeanor sentence. Pedraza also points to the Parker court’s observation that many jurisdictions find plethysmographs unreliable as a means of diagnosing sexual deviancy. This observation does not change the analysis, however.
In a case decided soon after Parker, the Washington Supreme Court held that plethysmograph testing incident to treatment is a valid condition which a court is authorized to impose under RCW 9.94A.120(9)(c)(iii). See State v. Riles, 135 Wn.2d 326, 345, 957 P.2d 655 (1998). The Riles court stated that `{p}lethysmograph testing is regarded as an effective method for diagnosing and treating sex offenders. . . . Courts in this and other jurisdictions have authorized plethysmograph tests incident to treatment programs for sex offenders.’ Id. at 343-44.
In Parker and Ricketts, the plethysmograph was proposed as a means of determining whether men who had never been convicted of sex-related crimes were in fact sexually deviant, so that the court could decide whether to allow unsupervised visits as part of a parenting plan. But in Pedraza’s case, Pedraza has already been convicted of crimes that are clearly sex-related, although not sex crimes as such. The purpose of the evaluation in this case was to diagnose and, if necessary, treat Pedraza in an effort to prevent future commission of sex-related crimes, not to decide whether he is sexually deviant in an attempt to restrict his parenting rights.
We hold that under the peculiar facts of this case, the trial court did not abuse its discretion in ordering Pedraza to submit to a sexual deviancy evaluation and treatment as a condition of probation for his harassment conviction predicated on threats made during sexual abuse. Pedraza’s substantive due process rights were not violated by the trial court’s order. The court had a compelling interest in preventing the future commission of similar crimes, and Pedraza, who was convicted of a crime that arose out of sexual abuse, has a diminished expectation of privacy.
We affirm the trial court’s judgment and sentence.
BAKER and BECKER, JJ., cocncur.