State Of Washington, V. Jose Barajas-gomez

Opinion

Filed Washington State Court of Appeals Division Two

May 18, 2021

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 54766-0-II

Respondent,

v.

JOSE GUADALUPE BARAJAS-GOMEZ, UNPUBLISHED OPINION

Appellant.

CRUSER, J. — Jose Barajas-Gomez appeals his sentence for attempted rape of a child in the

second degree and communication with a minor for immoral purposes. Barajas-Gomez argues that

the trial court lacked the authority to impose a community custody condition that requires him to

submit to plethysmograph testing at the request of his Community Corrections Officer (CCO) for

the purpose of monitoring his compliance with community custody. The State concedes that a trial

court may order plethysmograph testing only for crime-related treatment purposes, not to monitor

an offender’s compliance with community custody. We accept the State’s concession.

Accordingly, we reverse the portion of the challenged community custody condition that requires

Barajas-Gomez to submit to plethysmograph testing at the direction of his CCO for the purpose of

monitoring his compliance with supervision. Furthermore, we remand for the trial court to modify

this community custody condition to limit the use of plethysmograph testing for crime-related

treatment purposes only. No. 54766-0-II

FACTS

Barajas-Gomez was convicted of one count of attempted rape of a child in the second

degree and two counts of communication with a minor for immoral purposes. Barajas-Gomez

was sentenced to 109.5 months to life. Additionally, the trial court imposed community custody

for life. As a part of the community custody, the court ordered Barajas-Gomez to “undergo an

evaluation for treatment for . . . sexual deviancy[,] . . . and fully comply with all recommended

treatment.” Clerk’s Papers (CP) at 85. The trial court also ordered the defendant to “submit to

polygraph and/or pleth[y]smograph testing at the direction of the Community Corrections Officer

and/or the Sexual Deviancy Treatment Provider to monitor compliance with conditions of

supervision and/or treatment.” Id. at 95 (emphasis added).

Barajas-Gomez appeals.

ANALYSIS

Barajas-Gomez argues that the trial court erred when it imposed a condition permitting his

CCO to require him to submit to plethysmograph testing to monitor Barajas-Gomez’s compliance

with his community custody supervision. Barajas-Gomez acknowledges that the trial court may

impose a condition requiring plethysmograph testing, but the condition must limit the testing to

crime-related treatment purposes by a qualified treatment provider. See State v. Land, 172 Wn.

App. 593, 605, 295 P.3d 782 (2013). Barajas-Gomez correctly observes, however, that a

community custody condition may not permit plethysmograph testing “‘as a routine monitoring

tool subject only to the discretion of a community corrections officer.’” Br. of Appellant at 5

(quoting Land, 172 Wn. App. at 605).

2 No. 54766-0-II

Barajas-Gomez asks this court to remand his case and order the trial court to either strike

this condition or amend the condition to specify the proper scope of the CCO’s authority to order

plethysmograph testing. The State concedes that plethysmograph testing is permitted only for

crime-related treatment and does not oppose remand. We accept the State’s concession.

A trial court may require plethysmograph testing as a condition of community custody if it

is part of crime-related treatment. State v. Johnson, 184 Wn. App. 777, 780, 340 P.3d 230 (2014).

However, plethysmograph testing cannot be used as a monitoring tool. Id. at 780-81. A CCO’s

authority for ordering plethysmograph testing is limited to treatment. Id. at 781. Here Barajas-

Gomez’s community condition is improper because it allows plethysmograph testing “at the

direction of the Community Corrections Officer . . . to monitor compliance with conditions of

supervision . . . .” CP at 95 (emphasis added). Accordingly, we accept the State’s concession and

remand this case to trial court to modify this community custody condition. The trial court is

instructed to clarify that Barajas-Gomez may be ordered to submit to plethysmograph testing only

for crime-related treatment.

CONCLUSION

We reverse the portion of the challenged community custody condition that requires

Barajas-Gomez to submit to plethysmograph testing at the direction of his CCO for the purpose of

monitoring his compliance with supervision. We remand this matter to the trial court modify this

community custody condition consistent with this opinion.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

3 No. 54766-0-II

CRUSER, J We concur:

SUTTON, P.J.

VELJACIC, J.