The opinion
Filed 3/21/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039603
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1243927)
v.
IGNACIO GARCIA,
Defendant and Appellant.
Defendant Ignacio Garcia pleaded no contest to two counts of lewd conduct on
1
a child under 14 (Pen. Code, § 288, subd. (a)) and was placed on probation. The trial
court imposed the sex offender probation conditions mandated by section 1203.067,
2
subdivision (b). These probation conditions require him to successfully complete a
sex offender management program, waive his “privilege against self-incrimination and
participat[e] in polygraph examinations,” and waive his psychotherapist-patient
privilege “to enable communication between the sex offender management
professional and supervising probation officer, pursuant to Section 290.09.”
(§ 1203.067, subd. (b).) He claims that the probation condition requiring him to waive
his “privilege against self-incrimination” violates the Fifth Amendment, is
1
Subsequent statutory references are to the Penal Code unless otherwise
specified.
2
Subsequent subdivision references are to section 1203.067 unless otherwise
specified.
unconstitutionally overbroad, and is unreasonable. Defendant asserts that the
probation condition requiring him to waive his psychotherapist-patient privilege
violates his constitutional right to privacy, is unconstitutionally overbroad, and is
unreasonable. We reject his contentions and affirm the trial court’s order.
I. Background
Defendant, who was 16 years old at the time, repeatedly forced his nine-year-
old male cousin to orally copulate him. Defendant threatened his cousin, punched him
in the arm, offered him money, and asked him to watch a pornographic film with
defendant. Defendant was charged by complaint with six counts of forcible lewd
conduct (§ 288, subd. (b)(1)). The complaint also alleged that he was ineligible for
probation under section 1203.066, subdivision (a)(1).
Although he initially denied the allegations, defendant later admitted that the
oral copulations had occurred and expressed remorse. The prosecutor amended two of
the counts to charge nonforcible lewd conduct and entered into a plea agreement with
defendant. Under the plea agreement, defendant would plead no contest to those two
counts in exchange for dismissal of the remaining counts, limiting his exposure to a
minimum of one year in jail and a maximum of three years in prison, and a
section 288.1 report, which is a prerequisite to a grant of probation. Defendant entered
the no contest pleas. The section 288.1 report concluded that defendant “does not pose
a substantial risk of future sexual offending.”
The probation report recommended a grant of probation. It also recommended
that the court impose the statutorily mandated probation conditions set forth in section
1203.067. Defendant objected to the imposition of the probation conditions required
by subdivisions (b)(3) and (b)(4). He contended that these conditions violated the
2
Fifth Amendment and his constitutional right to privacy, were unconstitutionally
3
vague and overbroad, and were unreasonable.
At the sentencing hearing, the court noted defendant’s objections, but it
concluded that it lacked any discretion under the statute and therefore was
“compelled” to impose these conditions. The court suspended imposition of sentence
and placed defendant on probation for three years with numerous conditions including
a year in jail, which was deemed served. Three probation conditions were imposed
under section 1203.067: (1) “Pursuant to Section 1203.067(b)(2) of the Penal Code,
as a condition of release from . . . formal probation, the defendant shall enter,
participate [in], [and] complete an approved management program required by that
section, following the standards developed pursuant to Section 9003 of the Penal
Code, for a period of not less than one year, up to the entire term of probation, as
determined by the management professional in consultation with the probation officer
and as approved by the Court”; (2) “[Y]ou are to waive any privilege against self-
incrimination and participate in polygraph examinations, which shall be part of the
offender management program pursuant to Section 1203.067(b)(3) of the Penal Code”;
and (3) “You shall waive any psychotherapist/patient privilege to enable
communication between the offender management professional and the probation
officer pursuant to Section 1203.067(b)(4) and Section 290.09 of the Penal Code.”
Defendant stated that he understood and accepted these conditions of probation. He
timely filed a notice of appeal.
3
Defendant also claimed below that section 1203.067, subdivision (b) was an ex
post facto law as to him because it was enacted after he committed his offenses. These
provisions of section 1203.067 took effect in September 2010 (Stats. 2010, ch. 219);
defendant’s offenses occurred in 2011. Defendant no longer claims that there was an
ex post facto problem in applying this statute to him.
3
II. Discussion
Section 1203.067, subdivision (b) provides: “On or after July 1, 2012, the
terms of probation for persons placed on formal probation for an offense that requires
registration pursuant to Sections 290 to 290.023, inclusive, shall include all of the
following: [¶] . . . [¶] (2) Persons placed on formal probation on or after July 1, 2012,
shall successfully complete a sex offender management program, following the
standards developed pursuant to Section 9003, as a condition of release from
probation. The length of the period in the program shall be not less than one year, up
to the entire period of probation, as determined by the certified sex offender
management professional in consultation with the probation officer and as approved
by the court. [¶] (3) Waiver of any privilege against self-incrimination and
participation in polygraph examinations, which shall be part of the sex offender
management program. [¶] (4) Waiver of any psychotherapist-patient privilege to
enable communication between the sex offender management professional and
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supervising probation officer, pursuant to Section 290.09.” (§ 1203.067, subd. (b).)
A. Subdivision (b)(3) Condition
Defendant puts forth three challenges to the subdivision (b)(3) condition’s
requirement that there be a “[w]aiver of any privilege against self-incrimination.” He
claims that the condition itself violates the Fifth Amendment, that the condition is
unconstitutionally overbroad, and that the condition is unreasonable.
4
These provisions of section 1203.067 were added to the statute in 2010 and
took effect in September 2010. (Stats. 2010, ch. 219.) Section 1203.067 was amended
in 2011 to replace “formal supervised probation” with “formal probation.” (Stats.
2011, ch. 357.) Since the language of the statute is otherwise unchanged, we refer to
the current version of the statute.
4
1. Fifth Amendment Challenge
The Fifth Amendment provides that no person “shall be compelled in any
criminal case to be a witness against himself.” Defendant claims that the subdivision
(b)(3) probation condition violates the Fifth Amendment because, “[i]f the prospective
probationer refuses to waive his privilege against self-incrimination, he will be denied
probation and sentenced to state prison on a felony or to county jail on a misdemeanor,
5
or face a violation of probation.” We reject his contention.
The Fifth Amendment does not prohibit the State from requiring a prospective
probationer to choose between accepting this waiver and going to prison. This is true
because the subdivision (b)(3) probation condition does not itself compel a probationer
to be a witness against himself in a criminal proceeding. This condition requires only
that the probationer provide full disclosures in connection with the sex offender
6
management program. Such disclosures are necessary to the success of the program.
(See post, at pp. 17-19.) The waiver provision is critical because it prevents a
probationer from refusing to provide such disclosures on self-incrimination grounds.
5
He makes this claim independent of his contention that the condition is
unconstitutionally overbroad.
6
The parties view subdivision (b)(3)’s self-incrimination waiver as applying only
in the context of the sex offender management program. We agree that this is the only
logical reading of the statute. This probation condition does not purport to prohibit a
probationer from exercising his or her privilege against self-incrimination outside of
the sex offender management program. “[I]f reasonably possible the courts must
construe a statute to avoid doubts as to its constitutionality.” (People v. Smith (1983)
34 Cal.3d 251, 259.) As there could be doubts about the constitutionality of imposing
a probation condition requiring an unlimited waiver of a probationer’s privilege
against self-incrimination, we construe the statute’s waiver provision, consistent with
the language of the entire statute, to be limited to the probationer’s participation in the
sex offender management program.
5
Defendant puts misplaced reliance on the United States Supreme Court’s
decision in Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy). Murphy had been
placed on probation for a sexual offense. His probation terms required him to
participate in a sex offender treatment program and to be “truthful with the probation
officer ‘in all matters.’ ” (Murphy, at p. 422.) A counselor in the treatment program
told the probation officer that Murphy had admitted an unrelated rape and murder.
(Murphy, at p. 423.) The probation officer confronted Murphy about these admissions.
(Murphy, at pp. 423-424.) Murphy again admitted the rape and murder. (Murphy, at
p. 424.) Murphy was charged with murder, and he sought to suppress his admissions
to the probation officer on Fifth Amendment grounds. (Murphy, at pp. 424-425.) The
Minnesota Supreme Court held that, because Murphy was required to respond
truthfully to the probation officer, she was required to inform him of his Fifth
Amendment rights before questioning him, and her failure to do so merited
suppression of his admissions. (Murphy, at p. 425.)
The United States Supreme Court granted certiorari to decide “whether a
statement made by a probationer to his probation officer without prior warnings is
admissible in a subsequent criminal proceeding.” (Murphy, supra, 465 U.S. at p. 425.)
The “general rule” is that the Fifth Amendment privilege against self-incrimination is
not “self-executing.” (Murphy, at p. 434.) A privilege that is not “self-executing”
applies only where it has been invoked. (Ibid.) Murphy had not invoked the privilege
because he did not “assert the privilege rather than answer” the probation officer’s
questions. (Murphy, at p. 429.) The court rejected Murphy’s claim that his obligation
under the terms of his probation to truthfully answer his probation officer’s questions
alone converted his “otherwise voluntary” responses into compelled statements.
(Murphy, at p. 427.) Analogizing Murphy’s situation to that of a subpoenaed witness
who testifies on pain of contempt, the court observed that “[t]he answers of such a
witness to questions put to him are not compelled within the meaning of the Fifth
6
Amendment unless the witness is required to answer over his valid claim of the
privilege.” (Ibid.) “If he asserts the privilege, he ‘may not be required to answer a
question if there is some rational basis for believing that it will incriminate him, at
least without at that time being assured that neither it nor its fruits may be used against
him’ in a subsequent criminal proceeding. [Citation.] But if he chooses to answer, his
choice is considered to be voluntary since he was free to claim the privilege and would
suffer no penalty as the result of his decision to do so.” (Murphy, at p. 429.)
The United States Supreme Court also considered in Murphy the applicability
of the “penalty exception” to the general rule that the Fifth Amendment is not “self-
executing.” The penalty exception applies where the State not only compelled the
person’s statements but also “sought to induce him to forgo the Fifth Amendment
privilege by threatening to impose economic or other sanctions ‘capable of forcing the
self-incrimination which the Amendment forbids.’ ” (Murphy, supra, 465 U.S. at
p. 434.) “A State may require a probationer to appear and discuss matters that affect
his probationary status; such a requirement, without more, does not give rise to a self-
executing privilege. The result may be different if the questions put to the probationer,
however relevant to his probationary status, call for answers that would incriminate
him in a pending or later criminal prosecution. There is thus a substantial basis in our
cases for concluding that if the State, either expressly or by implication, asserts that
invocation of the privilege would lead to revocation of probation, it would have
created the classic penalty situation, the failure to assert the privilege would be
excused, and the probationer’s answers would be deemed compelled and inadmissible
in a criminal prosecution.” (Murphy, at p. 435.) Yet even in the “classic penalty
situation,” the probationer’s compelled statements would still be admissible in a
probation revocation proceeding, as that is not a criminal proceeding and the Fifth
Amendment is therefore inapplicable. (Murphy, at p. 435 & fn. 7.) Murphy’s
statements did not fall within the penalty exception. “On its face, Murphy’s probation
7
condition proscribed only false statements; it said nothing about his freedom to decline
to answer particular questions and certainly contained no suggestion that his probation
was conditional on his waiving his Fifth Amendment privilege with respect to further
criminal prosecution.” (Murphy, at p. 437.) Hence, his statements to the probation
officer were admissible against him in a criminal prosecution.
Defendant also relies on the Ninth Circuit’s decision in United States v.
Saechao (9th Cir. 2005) 418 F.3d 1073 (Saechao). In Saechao, the probationer was
subject to a condition that he “ ‘promptly and truthfully answer all reasonable
inquiries’ from the [probation] officer or face revocation of his probation.” (Saechao,
at p. 1075.) The probation officer asked the probationer if he had a gun, and the
probationer admitted that he had a hunting rifle. The probationer was charged with
being a felon in possession of a firearm, and he sought to suppress the fruits of his
admission on Fifth Amendment grounds. The district court granted his motion, and
the Ninth Circuit found that this was a “ ‘classic penalty situation’ ” because, unlike in
Murphy, the probationer was required by the probation condition to “ ‘answer
all . . . inquiries.’ ” The court upheld the suppression order. (Saechao, at pp. 1075-
1079.)
Neither Murphy nor Saechao advances defendant’s contention. Those cases
were concerned with the admissibility of a defendant’s statements in a criminal
prosecution. No such contention is at issue here. Defendant has not made any
statements, and no one is seeking to introduce any statements against him in a criminal
prosecution. Defendant relies on the Arizona Supreme Court’s decision in State v.
Eccles (Ariz. 1994) 179 Ariz. 226 (Eccles) to support his claim that Murphy and
Saechao apply here. In Eccles, the trial court had imposed as a condition of probation
that the defendant “waive any and all rights against [self-incrimination].” (Eccles, at
p. 227.) The probationer challenged the probation condition itself as violative of the
Fifth Amendment, and the Arizona Supreme Court agreed. It reasoned: “Not only is
8
the state prohibited from revoking probation for a legitimate invocation of the
privilege against self-incrimination, we perceive the import of the Murphy decision as
being that the state is also prohibited from making waiver of the privilege a term of
probation.” (Eccles, at p. 228.) “The state may not force defendant to choose between
incriminating himself and losing his probationary status by remaining silent. The fact
that defendant has not yet been presented with the dilemma of either incriminating
himself or jeopardizing his probation does not affect our decision.” (Eccles, at p. 228.)
If we accepted Eccles, it would support defendant’s claim. The Attorney
General, on the other hand, relying on Maldonado v. Superior Court (2012) 53 Cal.4th
1112, 1120 (Maldonado), contends that defendant cannot establish that the probation
condition itself violated the Fifth Amendment because a Fifth Amendment violation
occurs only when a person’s compelled statement is used in a criminal proceeding
against that person. Maldonado involved a pretrial court-ordered mental examination
of the defendant by prosecution experts. While the defendant conceded that the
prosecution was entitled to have the examination conducted, he claimed that the
prosecution had no right to disclosure of his statements to the examiners until he
actually presented his mental state defense at trial. The prosecution claimed that it was
entitled to immediate access to the mental examination.
The California Supreme Court rejected the defendant’s claim that the Fifth
Amendment provided “a guarantee against officially compelled disclosure of
potentially self-incriminating information.” (Maldonado, supra, 53 Cal.4th at
p. 1127.) The Maldonado court based its holding on the rule that the Fifth
Amendment applies only to use of a defendant’s incriminating statements; the Fifth
Amendment does not bar the government from compelling those statements. “[T]he
Fifth Amendment does not provide a privilege against the compelled ‘disclosure’ of
self-incriminating materials or information, but only precludes the use of such
evidence in a criminal prosecution against the person from whom it was compelled.”
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(Maldonado, at p. 1134.) “[T]he Fifth Amendment privilege against self-incrimination
does not target the mere compelled disclosure of privileged information, but the
ultimate use of any such disclosure in aid of a criminal prosecution against the person
from whom such information was elicited.” (Maldonado, at p. 1137.)
The California Supreme Court’s decision in Maldonado relied on the United
States Supreme Court’s decision in Chavez v. Martinez (2003) 538 U.S. 760 (Chavez).
Chavez was a civil action involving qualified immunity in which the issue was
whether a police officer who allegedly compelled statements from the plaintiff could
be held liable for violating the plaintiff’s civil rights. The plaintiff claimed that the
police officer had violated the Fifth Amendment. The United States Supreme Court
produced a plurality opinion and multiple separate opinions rejecting the plaintiff’s
theory. Justice Thomas wrote the lead opinion. In a section of his opinion joined by
three other justices, Justice Thomas stated that compelled statements “of course may
not be used against a defendant at trial, [citation], but it is not until their use in a
criminal case that a violation of the Self-Incrimination Clause occurs.” (Chavez, at
p. 767.) “[M]ere coercion does not violate the text of the Self-Incrimination Clause
absent use of the compelled statements in a criminal case against the witness.”
(Chavez, at p. 769.) Writing separately, Justice Souter acknowledged that it would be
“well outside the core of Fifth Amendment protection” to find that “questioning alone”
was a “completed violation” of the Fifth Amendment and declined to extend the Fifth
Amendment to such a claim. (Chavez, at p. 777.) Thus, five justices held in Chavez
that the Fifth Amendment is not violated by the extraction of compelled statements.
We reject the Arizona Supreme Court’s holding in Eccles that a probation
condition authorizing extraction of compelled statements itself violates the Fifth
Amendment. We are bound by Maldonado and Chavez (Auto Equity Sales, Inc. v.
10
Superior Court (1962) 57 Cal.2d 450, 455), and they hold that the mere extraction of
7
compelled statements does not violate the Fifth Amendment. Since the probation
condition did not purport to authorize the use of any statements against defendant in a
8
criminal proceeding, it did not violate the Fifth Amendment.
Defendant claims that the condition “violates the Fifth Amendment” because
the polygraph examiners are authorized to “investigate and resolve” any previously
unreported offenses. But until defendant’s statements are used against him in a
criminal proceeding, the Fifth Amendment is not violated. Nothing in the condition
authorizes the use in a criminal proceeding of defendant’s statements to the polygraph
examiner, so the condition does not violate the Fifth Amendment.
The subdivision (b)(3) probation condition does not force defendant to choose
between forfeiting his Fifth Amendment rights, on the one hand, or asserting them and
suffering the revocation of his probation. This condition does prohibit defendant from
invoking any right against self-incrimination and thereby sets the price of invocation at
the revocation of probation. By doing so, the condition creates the “classic” situation
where the penalty exception applies. If the State “asserts that invocation of the
7
The dissent views our analysis as a rejection of defendant’s contention “as
unripe.” (Dissent, at p. 1.) We do not engage in any ripeness analysis. Our rejection
of defendant’s facial challenge to the subdivision (b)(3) condition is based on
substantive grounds: the condition itself does not violate the Fifth Amendment. This
conclusion follows not from the claim’s being unripe but from the claim’s lack of
merit.
8
In United States v. Mike (10th Cir. 2011) 632 F.3d 686 (Mike), the Tenth
Circuit distinguished Saechao and rejected a Fifth Amendment challenge to a
probation condition prohibiting contact with children and requiring defendant to tell
his probation officer if he had contact with children. The Tenth Circuit held that the
Fifth Amendment “is not implicated” where no incriminating statements have yet been
made. (Mike, at pp. 697-698.) The Tenth Circuit’s holding in Mike is consistent with
the California Supreme Court’s reasoning in Maldonado.
11
privilege would lead to revocation of probation, it would have created the classic
penalty situation, the failure to assert the privilege would be excused, and the
probationer’s answers would be deemed compelled and inadmissible in a criminal
prosecution.” (Murphy, supra, 465 U.S. at p. 435, italics added.) Because the penalty
exception will necessarily apply to any statements that defendant makes under the
compulsion of the subdivision (b)(3) probation condition, these statements cannot be
9
used against defendant in a criminal proceeding. Hence, the condition cannot result
in any Fifth Amendment violation.
None of the other cases defendant relies on supports his Fifth Amendment
challenge to this condition. The issue in Spielbauer v. County of Santa Clara (2009)
45 Cal.4th 704 (Spielbauer) was whether Spielbauer’s refusal to answer his
employer’s questions could be used as a basis for terminating his County employment.
Spielbauer claimed that requiring him to answer these questions would violate his
Fifth Amendment rights, despite the fact that he had been told when the questions
were posed that his answers would not be used against him in any criminal proceeding.
The California Supreme Court rejected his contention. “The constitutional guarantee
against compelled self-incrimination protects an individual from being forced to testify
against himself or herself in a pending criminal proceeding, but it does more than that.
It also privileges a person not to answer official questions in any other proceeding,
‘civil or criminal, formal or informal,’ where he or she reasonably believes the
answers might incriminate him or her in a criminal case. [Citations.] One cannot be
forced to choose between forfeiting the privilege, on the one hand, or asserting it and
suffering a penalty for doing so on the other.” (Spielbauer, at p. 714.) However,
9
Defendant seemed to concede at oral argument that he is not opposed to the
waiver itself but only to the potential use or derivative use of statements procured by
means of the waiver. As the penalty exception will preclude such use, defendant
should be fully satisfied by our resolution of this case.
12
because “the law is clear that incriminating answers coerced from a public employee
under threat of dismissal cannot be used against the employee in a criminal
proceeding,” requiring Spielbauer to answer questions did not force him into such a
choice and therefore did not violate the Fifth Amendment. (Spielbauer, at p. 715.)
Spielbauer is not inconsistent with the California Supreme Court’s subsequent
decision in Maldonado. “The state and federal self-incrimination clauses say one
cannot be made an involuntary witness against himself, or herself, in a criminal
proceeding. Thus, they do not prohibit officially compelled admissions of wrongdoing
as such. They only forbid the criminal use of such statements against the declarant.
Constitutionally based prophylactic rules, such as a prior-immunity requirement in
some cases, have arisen to protect the core privilege, but the right against self-
incrimination is not itself violated until statements obtained by compulsion are used in
10
criminal proceedings against the person from whom the statements were obtained.”
(Spielbauer, supra, 45 Cal.4th at p. 727.) Spielbauer provides no support for
defendant’s claim that the subdivision (b)(3) condition itself violated the Fifth
Amendment.
United States v. Antelope (9th Cir. 2005) 395 F.3d 1128 (Antelope) is also
unhelpful because it too did not uphold a Fifth Amendment challenge to a probation
condition. In Antelope, the defendant objected on Fifth Amendment grounds to
probation conditions requiring him to participate in a sex abuse treatment program and
submit to polygraph examinations. He thereafter refused to comply with the
polygraph condition and with the treatment program’s requirement that he “reveal his
full sexual history . . . .” His probation was revoked, and he was incarcerated.
(Antelope, at pp. 1131-1132.) The Ninth Circuit concluded that the defendant’s claim
10
Defendant does not identify any “[c]onstitutionally based prophylactic rules”
that might apply here. (Spielbauer, supra, 45 Cal.4th at p. 727.)
13
was “ripe” because he had been incarcerated for his refusal to comply with the
condition. (Antelope, at pp. 1132-1133.) It concluded that revoking the defendant’s
probation and incarcerating him for invoking his Fifth Amendment rights violated the
Fifth Amendment. (Antelope, at pp. 1134-1140.) Whether its holding is right or
wrong, Antelope is not relevant here. Defendant is making a facial challenge to the
probation condition; he has not been subjected to any sanction for refusing to comply
with it. We do not have before us in this case the issue of whether defendant may have
his probation revoked for refusing to comply with this condition.
United States v. Bahr (9th Cir. 2013) 730 F.3d 963 (Bahr) is equally unhelpful
as it too did not uphold a facial challenge to a condition. Bahr had made admissions
during a “ ‘full disclosure’ polygraph test” required by a sex offender treatment
program upon which his supervised release was conditioned for an Oregon rape
conviction. (Bahr, at p. 965.) Bahr was subsequently convicted of federal child
pornography charges, and he sought to suppress the use of his admissions at
sentencing in the federal case. (Ibid.) The district court denied his suppression
motion, but the Ninth Circuit held that the use of his compelled statements against him
in the federal case violated the Fifth Amendment. (Bahr, at pp. 965-966.) In Bahr,
unlike here, the challenged statements were used against the defendant in a criminal
proceeding, a classic Fifth Amendment situation. Here, no statements have been
made, and none have been used against defendant.
The dissent offers no convincing reason that might undermine our analysis. It
posits that the subdivision (b)(3) condition violates the Fifth Amendment because the
condition creates the “ ‘classic penalty situation.’ ” (Dissent, at p. 6.) In our view,
exactly the opposite is true. Because statements made under the compulsion of the
subdivision (b)(3) condition will necessarily be subject to the penalty exception, and
therefore will not be admissible against defendant in a criminal proceeding, the
condition will never result in a violation of defendant’s Fifth Amendment rights.
14
The dissent asserts that our analysis “ignores” a person’s privilege “not to
answer questions” in noncriminal proceedings “where the answers might incriminate
him.” (Dissent, at p. 9.) In Spielbauer, the California Supreme Court held that
Spielbauer was not privileged under the Fifth Amendment to choose “not to answer
questions” in a noncriminal proceeding because the penalty exception would preclude
the use of his answers against him in a criminal proceeding. The same is true here.
The dissent further asserts that our analysis “creates blanket immunity for
probationers to disclose crimes during their participation in the sex offender treatment
program . . . .” (Dissent, at p. 10, italics added.) It does not. As the dissent appears to
acknowledge, any compelled disclosures extracted by use of the subdivision (b)(3)
condition would be subject to only use and derivative immunity. Probationers would
gain no “blanket immunity” by disclosing their criminal activities.
We cannot accept the dissent’s suggestion that the Legislature would have
preferred that the waiver provision be stricken rather than have the disclosures
protected by use and derivative use immunity. (Dissent, at p. 10.) The dissent cites no
foundation for its counterintuitive speculation, and we cannot imagine any. The
Legislature has explicitly identified the purpose of probation conditions as reformation
and rehabilitation of the probationer. (§ 1203.1, subd. (j).) Consistent with this
purpose, the Legislature explicitly included the waiver provision in the probation
conditions that the Legislature itself mandated for sex offenders. (§ 1203.067,
subd. (b)(3).) We cannot believe the Legislature would have wished to have stricken
the waiver provision it explicitly devised to enhance the reformation and rehabilitation
of probationers simply because that provision will not also allow probationers’
statements to be used against them in criminal proceedings.
“[T]he Legislature is deemed to be aware of existing laws and judicial decisions
in effect at the time legislation is enacted and to have enacted and amended statutes
‘ “in the light of such decisions as have a direct bearing upon them.” ’ ” (People v.
15
Overstreet (1986) 42 Cal.3d 891, 897.) Since the Legislature is deemed to have been
aware of the United States Supreme Court’s 1984 decision in Murphy when it enacted
subdivision (b)(3)’s waiver provision in 2010, we must presume that the Legislature
intended for the penalty exception to apply with respect to statements obtained by
means of the waiver provision.
We reject defendant’s claim that the subdivision (b)(3) condition itself violates
the Fifth Amendment.
2. Overbreadth Challenge
Defendant claims that the subdivision (b)(3) condition is unconstitutionally
overbroad because it impinges on his Fifth Amendment rights. “[A]dult probationers,
in preference to incarceration, validly may consent to limitations upon their
constitutional rights . . . .” (People v. Olguin (2008) 45 Cal.4th 375, 384.) “A
probation condition that imposes limitations on a person’s constitutional rights must
closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.).) Under this doctrine, “ ‘ “a governmental purpose to control or
prevent activities constitutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.” ’ [Citations.]” (In re Englebrecht (1998) 67 Cal.App.4th 486, 497.) “ ‘A
law’s overbreadth represents the failure of draftsmen to focus narrowly on tangible
harms sought to be avoided, with the result that in some applications the law burdens
activity which does not raise a sufficiently high probability of harm to governmental
interests to justify the interference.’ [Citation.]” ( Ibid.)
Defendant claims that the subdivision (b)(3) condition is unconstitutionally
overbroad because its limitation on his Fifth Amendment rights is not closely tailored
to its purpose. The condition requires defendant to waive his privilege against self-
incrimination and undergo polygraph examinations in connection with the sex offender
16
management program. It bars him from exercising any privilege against self-
incrimination to avoid answering the polygraph examiner’s questions. However, the
Fifth Amendment does not prohibit the State from compelling statements. It prohibits
the State from using a person’s compelled statements against that person in a criminal
proceeding. Any statements that defendant makes under the compulsion of this
condition will be subject to the penalty exception. As a result, these statements will
not be permitted to be used against defendant in a criminal proceeding. Consequently,
this condition will never result in a violation of defendant’s Fifth Amendment rights.
To the extent that this condition results in any restriction on defendant’s Fifth
Amendment rights, it is closely tailored to the purpose of the condition. The
Legislature’s enactment of section 1203.067 recognized that a grant of probation to a
sex offender is a very risky proposition that is appropriate only where those risks can
be managed. One of the risks is that the sex offender’s full history of sex offenses may
not be known when he or she is granted probation. The Legislature could reasonably
conclude that a sex offender who has committed additional unreported sex offenses
generally poses a significantly greater risk to the public if he or she is not incarcerated.
Similarly, the State has a compelling interest in discovering whether the sex offender
is committing additional offenses while on probation. By requiring every sex offender
granted probation to make full disclosures and to give up any privilege to refuse to
answer the polygraph examiner’s questions, the State greatly enhances its ability to
manage the serious risks posed by sex offenders who remain free in the community.
This condition permits the State to discover the full extent of the risks created by the
sex offender’s freedom so that the State can respond with additional treatment, closer
monitoring, and other measures necessary to protect the community. Allowing sex
offenders on probation to refuse to answer questions would create an unacceptable
danger to the community.
17
Defendant’s reliance on Brown v. Superior Court (2002) 101 Cal.App.4th 313
(Brown) is misplaced. The defendant in Brown was ordered as a condition of
probation to undergo polygraph testing as directed by the probation officer without any
further identification of the purpose of the polygraph testing. The Court of Appeal
found that the condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481
(Lent) because it failed to specify the subject matter for the polygraph examinations.
(Brown, at p. 321.) Here, on the other hand, the polygraph testing condition was
expressly linked to defendant’s participation in the sex offender management program.
We reject defendant’s overbreadth challenge.
3. Reasonableness Challenge
Finally, defendant claims that the subdivision (b)(3) condition is unreasonable
because it “essentially requires the probationer to discuss any and all matters during
the course of the sex offender management program, including but not limited to past
or present crimes committed by the probationer.” He maintains that requiring
disclosure of “past criminal acts” does not serve any reformative or rehabilitative goal.
“Trial courts have broad discretion to impose such reasonable probation
conditions ‘as it may determine are fitting and proper to the end that justice may be
done . . . and generally and specifically for the reformation and rehabilitation of the
probationer . . . .’ ” (People v. Chardon (1999) 77 Cal.App.4th 205, 217; § 1203.1,
subd. (j).) “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.]” (Lent, supra, 15 Cal.3d at
p. 486.)
The primary purpose of the sex offender management program, which sex
offenders like defendant are statutorily required to complete as a condition of
probation, is to prevent the probationer from committing sexual offenses in the future.
18
(§ 9000, subd. (d).) The program is “designed to address the multiple psychological
and physiological factors found to be associated with sexual offending.” (§ 9000,
subd. (c).) The trial court could have reasonably concluded that, without the
probationer’s full disclosure of the circumstances of all of his or her prior offenses, the
program would not be able to identify the “psychological and physiological factors”
that were “associated with [his or her] sexual offending.” The program would then
have no hope of providing the treatment necessary to reform and rehabilitate the
probationer in order to prevent him or her from repeating this pattern and committing
future offenses. Since full disclosure is necessary to identify these factors, and
identification of these factors is critical to the success of the treatment program, which
is aimed at preventing future sex offenses, the subdivision (b)(3) condition is
reasonably related to defendant’s future criminality.
B. The Subdivision (b)(4) Condition
Defendant claims that the subdivision (b)(4) condition violates his
constitutional right to privacy, is unconstitutionally overbroad, violates the
psychotherapist-patient privilege, and is unreasonable. This condition required
defendant to “waive[] . . . any psychotherapist-patient privilege to enable
communication between the sex offender management professional and supervising
probation officer, pursuant to Section 290.09.” (§ 1203.067, subd. (b)(4).) Under
section 290.09, “[t]he certified sex offender management professional shall
communicate with the offender’s probation officer or parole agent on a regular basis,
but at least once a month, about the offender’s progress in the program and dynamic
risk assessment issues, and shall share pertinent information with the certified
polygraph examiner as required.” (§ 290.09, subd. (c).)
This condition does not violate defendant’s constitutional right to privacy.
“The psychotherapist-patient privilege has been recognized as an aspect of the
19
patient’s constitutional right to privacy. [Citations.] It is also well established,
however, that the right to privacy is not absolute, but may yield in the furtherance of
compelling state interests.” (People v. Stritzinger (1983) 34 Cal.3d 505, 511.) Even
where there is “(1) a legally protected privacy interest; (2) a reasonable expectation of
privacy under the circumstances; and (3) conduct constituting a serious invasion of the
privacy interest,” the constitutional right to privacy is not violated if “the invasion of
the privacy interest is justified because it substantially furthers one or more legitimate
competing or countervailing privacy or non-privacy interests.” (In re Christopher M.
(2005) 127 Cal.App.4th 684, 695 (Christopher M.), disapproved on a different point in
People v. Gonzales (2013) 56 Cal.4th 353, 373.)
In Christopher M., the trial court imposed probation conditions requiring the
minor to participate in a treatment program and providing that the records of his
psychological treatment would be made available to the probation officer and the court
upon request. (Christopher M., supra, 127 Cal.App.4th at p. 690.) The minor claimed
that these conditions violated his constitutional right to privacy and were
unconstitutionally overbroad. (Id. at p. 691.) The court held that the invasion of the
minor’s privacy was justified by the State’s legitimate interests. “[T]he state has a
legitimate countervailing interest in (1) protecting the public against Christopher’s
violent and antisocial conduct, and (2) determining both whether he is fully complying
with the numerous conditions of his new grant of probation, and whether treatment is
succeeding . . . .” (Id. at p. 695.)
As in Christopher M., the invasion of defendant’s privacy is justified by the
State’s legitimate countervailing interests. The Legislature’s decision to restrict the
statutory psychotherapist-patient privilege for sex offenders solely with respect to
communications necessary to the success of the sex offender management program is
justified by the State’s legitimate interest in protecting the public from defendant’s
20
sexual misconduct, monitoring his compliance with his probation conditions, and
determining whether his treatment is succeeding.
Defendant’s claim that the subdivision (b)(4) condition is unconstitutionally
overbroad fails for the same reason. A probation condition may limit a constitutional
right so long as the condition is closely tailored to its purpose. (Sheena K., supra, 40
Cal.4th at p. 890.) Here, the purpose of the condition is to protect the public and
monitor defendant’s compliance and the success of his treatment. The condition’s
waiver requirement is limited to “enabl[ing] communication between the sex offender
management professional and supervising probation officer” while defendant is
participating in the sex offender management program. (§ 1203.067, subd. (b)(4).) As
it does not require defendant to waive his psychotherapist-patient privilege outside of
this limited context, it is closely tailored to its purpose.
There is no merit to defendant’s assertion that the subdivision (b)(4) condition
is unreasonable. Protecting the public from defendant’s sexual misconduct,
monitoring defendant’s compliance with his probation conditions, and facilitating the
success of his treatment program are all reasonably related to reforming and
rehabilitating defendant so as to prevent his future criminality. (Lent, supra, 15 Cal.3d
at p. 486; § 1203.1, subd. (j).)
Defendant also claims that the waiver of his psychotherapist-patient privilege is
invalid because the waiver is “coerced.” Not so. The Legislature has mandated that
sex offenders like defendant not be granted probation unless this condition is imposed.
Defendant was free to decline the grant of probation, burdened as it was with this
condition, but he chose to accept it. “Probation is not a right, but a privilege. ‘If the
defendant considers the conditions of probation more harsh than the sentence the court
would otherwise impose, he has the right to refuse probation and undergo the sentence.
[Citations.]’ ” (People v. Bravo (1987) 43 Cal.3d 600, 608.) There is no coercion.
21
We decline to consider defendant’s policy arguments against requiring a waiver
of the psychotherapist-patient privilege since the Legislature, which made the policy
decision to mandate this condition, is the appropriate body to entertain such
arguments. “ ‘ “Criticisms of policy, wisdom or technique inherent in any legislative
enactment ‘are matters with which the courts have no concern, such arguments being
proper ones to address to the legislature for its determination.’ ” ’ ” (Strickland v.
Foster (1985) 165 Cal.App.3d 114, 119.)
We reject defendant’s challenges to the subdivision (b)(4) condition.
III. Disposition
The order is affirmed.
22
_______________________________
Mihara, J.
I CONCUR:
_____________________________
Elia, Acting P. J.
People v. Ignacio Garcia
H039603
23
Grover, J. Concurring and Dissenting.
I concur in the majority opinion regarding defendant’s challenge to the probation
condition imposed under Penal Code section 1203.067, subdivision (b)(4) compelling a
waiver of the psychotherapist-patient privilege. I respectfully disagree, however, with the
majority’s analysis and conclusions in Sections II.A.1 and II.A.2 regarding the condition
imposed under subdivision (b)(3) of that section requiring defendant to waive his Fifth
Amendment privilege against self-incrimination. Based on the following reasoning, I
find the Fifth Amendment waiver required by subdivision (b)(3) to be invalid on its face.
I. DEFENDANT’S FIFTH AMENDMENT CHALLENGE IS TIMELY
Penal Code section 1203.067, subdivision (b)(3) requires, as a condition of
1
probation, that defendant waive his privilege against self-incrimination. Defendant
argues that this statutory requirement is facially unconstitutional because it creates an
“impermissible penalty situation” described in Murphy v. Minnesota (1984) 465 U.S. 420
(Murphy). Based on Chavez v. Martinez (2003) 538 U.S. 760 (Chavez) and
Maldonado v. Superior Court (2012) 53 Cal.4th 1112 (Maldonado), the majority
concludes that the Fifth Amendment is violated only when a compelled statement is used
against a defendant in a criminal proceeding; thus, the majority effectively treats
defendant’s Fifth Amendment challenge as unripe because defendant has made no
disclosure sought to be used against him. I disagree.
1
Penal Code section 1203.067, subdivision (b)(3) (hereafter sometimes referred to
as subdivision (b)(3)) requires a “[w]aiver of any privilege of self-incrimination and
participation in polygraph examinations, which shall be part of the sex offender
management program.” I note that subdivision (b)(3) is ambiguous because the phrase
“[w]aiver of any privilege against self-incrimination” can be read as applying only to
“polygraph examinations” or more broadly to “the sex offender management program.”
While it is unnecessary to resolve this statutory ambiguity because the provision is
unconstitutional under either construction, my opinion refers to the waiver as applied in
the broader sense to defendant’s participation in the sex offender management program.
1
Defendant facially challenges the waiver requirement because it prevents him
from asserting his Fifth Amendment privilege in connection with the sex offender
management program mandated as a condition of his probation. The Fifth Amendment
does more than permit a defendant to refuse to testify against himself in a criminal trial.
(Murphy, supra, 465 U.S. at p. 426.) It also “ ‘privileges [a person] not to answer official
questions put to him in any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal proceedings.’ [Citation.].” (Ibid;
Kastigar v. United States (1972) 406 U.S. 441, 444–445 [the privilege “can be asserted in
any proceeding . . . and it protects against any disclosures which the witness reasonably
believes could be” incriminating].) The privilege extends to answering questions posed
by probation officers (Murphy, supra, at p. 426) and polygraph examiners (People v.
Miller (1989) 208 Cal.App.3d 1311, 1315; Brown v. Superior Court (2002)
101 Cal.App.4th 313, 321). Defendant asserts that he cannot be required as a condition
of probation to waive his right to assert the privilege and remain silent.
Orders granting probation are appealable under Penal Code section 1237,
subdivision (b) as post-judgment orders affecting the substantial rights of a defendant.
(In re Bine (1957) 47 Cal.2d 814, 817.) A defendant who accepts the terms of probation
“may seek relief from the restraint of any alleged invalid condition of probation on appeal
from the order granting probation[.]” (In re Bushman (1970) 1 Cal.3d 767, 776.)
Defendant’s challenge is therefore properly before this court as a challenge to an invalid
probation condition. It would be inconsistent with Penal Code section 1237 to force
defendant either to violate his probation terms by disregarding the waiver or to comply
with the waiver and forego asserting a right to remain silent before allowing him to
challenge the waiver as unlawful. It is also inconsistent with the well-established practice
of reviewing probation conditions for constitutional infirmity before any revocation
occurs. (In re Sheena K (2007) 40 Cal.4th 875.)
2
Chavez and Maldonado do not support the view that defendant’s Fifth
Amendment claim is not actionable. In Chavez, a federal civil rights action brought
under Title 42 U.S.C section 1983, the plaintiff was questioned by a parole officer
without Miranda warnings while receiving medical treatment for gunshot wounds
following an altercation with police officers. Plaintiff alleged that the emergency room
questioning violated both his Fifth and Fourteenth Amendment rights. (Chavez, supra,
538 U.S. at p. 765.) The Ninth Circuit upheld the denial of qualified immunity to the
parole officer, concluding that the “ ‘right to be free from coercive interrogation’ ” was
clearly established under both the Fifth and Fourteenth Amendments. (Id. at pp. 765–
766.) The Supreme Court reversed, concluding that the plaintiff could not allege a Fifth
Amendment violation because he “was never prosecuted for the crime, let alone
compelled to be a witness against himself in a criminal case.” (Id. at p. 766.) The Court
reasoned that the text of the Fifth Amendment “cannot support the Ninth Circuit’s view
that the mere use of compulsive questioning, without more, violates the Constitution.”
(Id. at p. 767.)
In Maldonado, the criminal defendant asserted a mental-state defense. Pursuant to
Penal Code section 1054 (providing for reciprocal discovery), the prosecution obtained a
court order requiring the defendant to submit to a mental examination by prosecution-
selected experts, and a disagreement arose regarding the disclosure of the examination
results to the prosecution. (Maldonado, supra, 53 Cal.4th at p. 1118.) Relying in part on
Chavez’s focus that a “ ‘core’ Fifth Amendment violation is completed, not merely by
official extraction of self-incriminatory answers from one who has not waived the
privilege, but only if and when those answers are used in a criminal proceeding against
the person who gave them” (id. at p. 1128, citing Chavez, supra, pp. 766–773), the
California Supreme Court concluded that release of the examination results to the
prosecution before the defendant actually presented his defense at trial was not precluded
by the Fifth Amendment. (Maldonado, supra, at p. 1141.)
3
I do not read Chavez and Maldonado as standing for the proposition that a
probationer may not challenge probation conditions under the Fifth Amendment until a
compelled statement is used against him in a criminal proceeding. While both cases
recognize that merely eliciting an incriminating statement does not violate the Fifth
Amendment, neither case precludes immediate review of the issue presented here:
whether the state can condition probation on waiving the right to remain silent when
confronted with potentially incriminating questions.
II. THE SUBDIVISION (B)(3) WAIVER UNCONSTITUTIONALLY INFRINGES ON THE
PRIVILEGE AGAINST SELF-INCRIMINATION
Penal Code section 1203.067, subdivision (b)(3) requires defendant as a condition
of probation to waive “any privilege against self-incrimination” while participating in the
sex offender management program. As discussed above, the privilege includes more than
a defendant’s right to remain silent at a criminal proceeding. It also embodies the right to
refuse to answer potentially incriminating questions in informal settings, including in the
probation context. Indeed, no one disputes that, absent the subdivision (b)(3) waiver,
defendant could assert his Fifth Amendment privilege and elect not to provide
incriminating information as part of the sex offender management program. Defendant
contends that any impingement on this right as a condition of probation is an unlawful
penalty under Murphy. I agree.
Because the Fifth Amendment speaks of compulsion, as a general rule a person
must invoke the privilege by refusing to answer incriminating questions. The privilege is
not self-executing and must be claimed. Otherwise, the incriminating answers will be
deemed voluntary and not protected by the privilege. (Murphy, supra, 465 U.S. at
p. 427.) But an exception exists “where the assertion of the privilege is penalized so as to
‘foreclos[e] a free choice to remain silent, and . . . compe[l] . . . incriminating testimony.’
[Citation].”) In such a situation, the privilege need not be asserted but instead is
considered self-executing because the disclosure is deemed compelled by the threat of
4
penalty. (Id. at p. 434.) Under this “penalty exception,” if a person incriminates himself
under threat of a penalty for the refusal to answer, the statement is deemed compelled and
cannot be used against the person in a criminal proceeding. (Ibid.) Conversely, if a
penalty is imposed on a person for exercising the right to remain silent, courts have struck
the penalty as violating the Fifth Amendment. For example, in Lefkowitz v. Turley
(1973) 414 U.S. 70, after refusing to testify before a grand jury, two contractors were
disqualified under state law from entering into contracts with public authorities for five
years. The Supreme Court found the law violated the Fifth Amendment because it
attached a penalty to an individual’s assertion of the right to remain silent.
In Murphy, the Supreme Court addressed whether a probationer’s incriminating
statements to his probation officer were made under threat of penalty, thereby requiring
their suppression at a criminal trial. The defendant in Murphy admitted to his probation
officer that he committed a rape and murder occurring several years before the offense
for which he was on probation, and that admission resulted in first degree murder
charges. (Murphy, supra, 465 U.S. at p. 425.) At trial, the defendant challenged the
admission of the incriminating statement made to his probation officer. Invoking the
penalty exception, the defendant argued unsuccessfully that a probation condition
requiring that he be truthful with his probation officer in all matters coerced him to admit
the rape and murder to his probation officer. (Id. at pp. 434–439.) Although the court
concluded that Murphy’s statements were not compelled and were therefore voluntary
and admissible in his criminal trial, I agree with defendant that the application of Murphy
to the probation condition in this case demands a different result.
Murphy formulated a test in determining whether the condition requiring the
probationer to speak truthfully constituted a “threat of punishment for reliance on the
privilege.” (Murphy, supra, 465 U.S. at p. 435.) Murphy recognized that the state “may
require a probationer to appear and discuss matters that affect his probationary status[,]”
and that such a requirement, without more, is no different than the state compelling an
5
individual to appear and testify. In both cases, the witness and the probationer are
required to answer unless the questions call for incriminating answers. (Ibid.) Murphy
then determined that revocation of probation qualifies as a penalty: “[I]f the state, either
expressly or by implication, asserts that invocation of the privilege would lead to
revocation of probation, it would have created the classic penalty situation[.]” (Ibid.) In
such case, the court explained, the state can insist on answers to incriminating questions
“and hence sensibly administer its probation system” provided it eliminates the threat of
incrimination. (Id. at p. 435, fn. 7.)
With these principles in mind, the court framed its inquiry as whether “Murphy’s
probation conditions merely required him to appear and give testimony about matters
relevant to his probationary status or whether they went further and required him to
choose between making incriminating statements and jeopardizing his conditional liberty
by remaining silent.” (Murphy, supra, 465 U.S. at p. 436.) The court concluded that the
condition requiring Murphy to be truthful with his probation officer in all matters did not
rise to a threat of revocation. Indeed, the condition “said nothing about his freedom to
decline to answer particular questions and certainly contained no suggestion that his
probation was conditional on his waiving his Fifth Amendment privilege with respect to
further criminal prosecution.” (Id. at p. 437. Emphasis added.) The probation condition
did not “attach an impermissible penalty to the exercise of the privilege against self-
incrimination” (ibid.) because it did not require Murphy to choose between incriminating
himself and jeopardizing his probation by remaining silent. In contrast, Penal Code
section 1203.067, subdivision (b)(3) requires that the privilege against self-incrimination
be waived in order to be granted probation under that section.
Application of the Murphy test here compels the conclusion that the challenged
waiver is unconstitutional precisely because it does impose an impermissible choice
between self-incrimination and conditional liberty. This conclusion is consistent with
6
other jurisdictions’ treatment of the penalty exception in the context of probation
conditions.
In State v. Eccles (1994) 179 Ariz. 226 (Eccles), the Arizona Supreme Court was
presented with a waiver nearly identical to that required under subdivision (b)(3). The
Arizona probation condition required the defendant, as part of a sex offender treatment
program, to waive his rights against self-incrimination and answer truthfully any
questions posed by treatment program agents including his probation officer and
polygraph examiner. (Eccles, supra, at p. 227.) Applying Murphy, Eccles held that the
condition “plainly took the ‘extra impermissible step’ by attempting to require defendant
to waive his right against self-incrimination under penalty of having his probation
revoked.” (Id. at p. 228, quoting Murphy, supra, at p. 436.) Eccles read Murphy’s
prohibition against a state revoking probation for a legitimate exercise of the Fifth
Amendment privilege as also proscribing a state from imposing a waiver of the privilege
as a condition of probation. (Eccles, supra, at p. 228.)
In State v. Gaither (2004) 196 Or. App. 131, the Oregon Court of Appeal also
determined that a probationer’s statement was involuntary under Murphy. The sex-
offender probationer in Gaither was required to “ ‘promptly and truthfully answer all
reasonable inquiries’ of his probation officer,” fully disclose his sexual history, and
identify all victims of any past sexual misdeeds. (Id. at p. 133.) Facing threat of a
probation violation for invoking his right to remain silent, the probationer told his
probation officer that he had committed a sexual offense against a minor and was charged
with the offense. (Id. at p. 133.) Suppressing the admission, the Oregon court observed:
“That is precisely the situation forbidden by Murphy . . . . If defendant had no choice
other than to disclose or face revocation of his probation, Murphy . . . hold[s] that any
subsequent statement was made involuntary.” (Id. at p. 138.)
The majority notes but dismisses United States v. Saechao (2005) 418 F.3d 1073.
In that case, the Ninth Circuit Court of Appeals concluded that an Oregon condition
7
requiring a probationer to “ ‘promptly and truthfully answer’ all reasonable inquiries” or
face revocation of probation was unconstitutional under Murphy because it took the
“ ‘impermissible step’ ” of requiring the probationer to choose between exercising his
right to remain silent or jeopardize his conditional liberty. (Id. at p. 1075). Like Gaither,
Saechao upheld the trial court’s order suppressing evidence obtained as a result of the
probationer’s incriminating responses.
The Ninth Circuit addressed another probation penalty situation in United States v.
Antelope (2005) 395 F.3d 1128 (Antelope). The majority dismisses Antelope as irrelevant
because it was not a facial challenge to a probation condition, as here. But Antelope
illustrates the type of penalty discussed, although not found to be present, in Murphy and
the impermissibly coercive effect of such a penalty in this context. In Antelope, the
probationer refused to complete a sexual history autobiography and participate in a “full
disclosure polygraph” as part of a sexual abuse recovery program unless he was granted
immunity, even though he desired to continue in treatment. (Id. at pp. 1131–1132.) The
district court revoked probation and imposed a prison sentence. (Id. at p. 1132.)
Antelope analyzed the probationer’s Fifth Amendment claim under McKune v. Lile
(2002) 536 U.S. 24 (McKune), a then recently decided Supreme Court case addressing a
state prison inmate’s privilege against self-incrimination in the context of the prison’s sex
offender treatment program. The treatment program in McKune required participants to
divulge all prior sexual activities regardless of whether they constituted uncharged
criminal offenses. (Id. at p. 30.) Refusal to participate in the program would result in
transfer to a maximum security housing unit and reduced privileges such as visitation,
work opportunities, and television access. Inmate Lile refused and asserted the privilege
against self-incrimination. (Id. at pp. 30–31.)
McKune was a fractured decision, with the plurality and Justice O’Connor
agreeing that the alteration in the inmate’s prison conditions did not amount to
compulsion under the Fifth Amendment. (McKune, supra, 536 U.S. at p. 29 [plurality];
8
id. at pp. 48–49 [O’Connor, J.].) Although “not all pressure necessarily ‘compels’
incriminating statements” (Id. at p. 49), Justice O’Connor recognized that a penalty
involving longer incarceration would not be constitutionally permissible. (Id. at p. 52.)
Based on Justice O’Connor’s view, Antelope concluded that the probationer’s privilege
against self-incrimination was violated because he suffered additional incarceration
which amounted to a penalty for exercising his right to remain silent. (Antelope, supra,
395 F.3d at p. 1138.) Antelope concluded that the case presented the classic penalty
situation contemplated in Murphy. (Id. at p. 1138, fn. 4.)
The application of Murphy’s analysis in Eccles, Gaither, and Saecheo, and
Antelope’s recognition that Murphy continues to set the standard for compulsion in
probation penalty cases, lead me to conclude that the waiver required by Penal Code
section 1203.067, subdivision (b)(3) violates the Fifth Amendment on its face. I am not
persuaded by the majority’s view that those authorities do not apply here to the extent
they involve probationers’ compelled statements which are sought to be used against
them in later prosecutions. The fact that defendant challenges the subdivision (b)(3)
waiver on its face rather than challenging the use of statements resulting from that waiver
does not affect the import of Murphy. The denial of probation for refusal to accept the
mandated condition attaches an impermissible penalty to the exercise of the Fifth
Amendment privilege against self-incrimination.
The majority insists that the required waiver does not violate the Fifth Amendment
because “statements made under the compulsion of the subdivision (b)(3) condition will
necessarily be subject to the penalty exception, and therefore will not be admissible
against defendant in a criminal proceeding.” (Maj. Op., p. 12.) This view ignores that the
Fifth Amendment privileges a person not to answer questions posed in other proceedings
(Murphy, supra, 465 U.S. at p. 426) and that the very purpose of the subdivision (b)(3)
waiver is to deny defendant the privilege of not answering questions, including those
where the answers might incriminate him. By preserving the waiver requirement and
9
compelling those answers, the majority’s reasoning creates blanket immunity for
probationers to disclose crimes during their participation in the sex offender treatment
program knowing that such disclosures, and their derivatives, cannot be used against
them in criminal proceedings. (Kastigar, supra, 406 U.S. at p. 462 [evidence derived
from compelled testimony cannot be used against a person in a criminal proceeding].)
Surely that cannot have been the intent of the Legislature in enacting subdivision (b)(3).
With the waiver properly stricken from subdivision (b)(3), participants in the sex
offender management program may choose whether to assert their right to remain silent,
and issues of whether answers will be compelled, questions reformulated, immunity
granted, or probation revoked can be addressed on a question by question and case by
case basis.
I recognize that probation is a privilege not a right, and a defendant can refuse
probation and accept a sentence if he views the conditions of probation as too harsh.
(People v. Bravo (1987) 43 Cal.3d 600, 608.) But probation was a privilege long before
Murphy was decided. (See Burns v. United States (1932) 287 U.S. 216, 220 [probation is
a matter of favor conferred as a privilege]; Kirsch v. United States (8th Cir 1949)
173 F.2d 652, 654 [probation is a matter of grace].) Murphy’s reasoning removes Fifth
Amendment restrictions from the reach of probation conditions (Murphy, supra, 465 U.S.
at p. 438 [“Our decisions have made clear that the State could not constitutionally carry
out a threat to revoke probation for the legitimate exercise of the Fifth Amendment
privilege.”]).
III. CONCLUSION
Because I find the waiver mandated by Penal Code section 1203.067,
subdivision (b)(3) facially violates the Fifth Amendment, I would strike the words
“Waiver of any privilege against self-incrimination and” from the subdivision. With the
offending language stricken, the subdivision would pose no Fifth Amendment infirmities.
Accordingly, I dissent from Sections II.A.1 and II.A.2 of the majority opinion, and from
10
the disposition to the extent it affirms the “waiver of any privilege against self-
incrimination” as part of defendant’s probation conditions.
______________________________________
Grover, J.
People v Garcia
H039603
11
Trial Court: Santa Clara County Superior Court
Trial Judge: Honorable Hector E. Ramon
Attorney for Defendant and Appellant: David D. Martin
Under Appointment by the Sixth
District Appellate Program
Attorneys for Plaintiff and Respondent: Kamala D. Harris
Attorney General of California
Dane R. Gillette
Chief Assistant Attorney General
Gerald A. Engler
Senior Assistant Attorney General
Seth K. Schalit
Supervising Deputy Attorney General
Lisa Ashley Ott
Deputy Attorney General
People v Garcia
H039603
12