State Of Washington, V. Jose Barajas-gomez ( 2021 )

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JOSE GUADALUPE BARAJAS-GOMEZ, UNPUBLISHED OPINION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).
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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.
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No. 54766-0-II
CRUSER, J
We concur:
SUTTON, P.J.
VELJACIC, J.
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