P. v. Hopkins

Filed 3/27/06 P. v. Hopkins CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Affirmed in part and reversed in part with directions.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

Defendant pleaded guilty to one count of rape of an incompetent person (Pen. Code, § 261, subd. (a)(1))^[1] on the condition that he receive felony probation. The trial court thereafter accepted the conditional plea, suspended imposition of the sentence, and dismissed the personal infliction of great bodily injury enhancement allegation (§ 12022.7, subd. (a)). Defendant was placed on three years' probation on various terms and conditions, including serving 270 days in county jail and submitting to random polygraph examinations.

On appeal, defendant contends (1) the trial court erred in imposing the polygraph testing condition, as it is not limited to questions relevant to the crime to which he pleaded guilty; and (2) the trial court erred in requiring him to pay the costs of the polygraph testing without inquiring into and determining his ability to pay. The People acknowledge that the order to pay probationary costs must be modified but dispute the overbreadth of the polygraph condition. While we conclude that the polygraph condition as intended by the trial court is proper, we believe that the court's intent can be stated more clearly. We direct the trial court to clarify that probation condition and to correct the imposition of costs.

I

FACTUAL BACKGROUND^[2]

On December 18, 2003, a San Bernardino County sheriff's deputy was dispatched to St. Mary Medical Center to investigate a report of rape. The attending nurse reported the victim's mother brought the victim, her 26-year-old developmentally disabled daughter, to the emergency room due to excessive vaginal bleeding. A physical examination of the victim revealed she was pregnant and having a miscarriage. The attending physician noted the victim had had sexual intercourse on more than one occasion.

The victim's mother informed the deputy that to her knowledge the victim had never been sexually active and that she only knew of two men -- the victim's brother and defendant -- with whom her daughter had been in contact. The victim's mother did not remember her daughter ever being alone with the victim's brother; however, defendant, the mother's live-in boyfriend of five years, had been left alone with the victim.

When interviewed by officers, defendant stated he had not engaged in any sexual activity with the victim. Defendant later consented to submission of a blood sample for a DNA comparison with that of a sample taken from the miscarried fetus. At that time, defendant asserted that the results of that blood test might come back positive. He reported that he did not recall ever having sex with the victim but that he might have. DNA testing on the specimen samples could neither exclude defendant nor confirm him as the father of the fetus.

On January 6, 2004, a forensic specialist interviewed the victim at the request of the police. The victim stated defendant got her pregnant. She explained that defendant came into her bedroom while she was trying to sleep when her mother was away and touched her breasts with his hand and her vagina with his penis. This made her feel physically and mentally â€