The opinion
Filed 3/27/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039404
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1240683)
v.
JEFFREY DAVID ALLEN FRIDAY,
Defendant and Appellant.
Penal Code section 1203.067 requires any person placed on probation for a
registerable sex offense to waive the privilege against self-incrimination and waive the
psychotherapist-patient privilege. This case concerns the constitutionality of requiring
these waivers as probation conditions.
First, we hold that the condition requiring a waiver of the privilege against self-
incrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984)
465 U.S. 420 (“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.”). (Accord United States v. Saechao (9th Cir. 2005) 418 F.3d 1073; United
States v. Antelope (9th Cir. 2005) 395 F.3d 1128; State v. Eccles (1994) 179 Ariz. 226.)
Second, we construe the waiver of the psychotherapist-patient privilege as
requiring waiver only insofar as necessary to enable communication between the
probation officer and the psychotherapist. We hold that the waiver as construed in this
fashion is not overbroad in violation of defendant’s constitutional right to privacy.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Jeffrey David Allen Friday pleaded no contest to possession of child
pornography, which he had downloaded to his computer. (Pen. Code, § 311.11, subd.
(a).)1 The record contains almost no facts about the offense. It occurred on or about
August 2, 2012. The trial court found “this is a matter which was initiated by a search
warrant on the defendant’s computer looking for child porn. It has been determined that
he had been downloading since he was 14 or 15 . . . .” Defendant was 19 at the time of
the offense. The parties stipulated to a factual basis in the police reports, but the record
contains no reports. Because the offense involved “no identifiable victim,” the probation
officer did not assess defendant’s level of risk as a future offender. Defendant had
suffered no prior convictions.
Defendant entered into a plea agreement by which he pleaded no contest to the
charged offense in exchange for six months in county jail with no early release.2 The
court suspended imposition of the sentence and granted a three-year term of probation,
including six months in county jail and mandatory participation in a sex offender
management program as probation conditions.
The court ordered the following five probation conditions, among others, requiring
defendant: (1) to waive any privilege against self-incrimination and participate in
polygraph examinations, which must be part of the sex offender management program;
(2) to waive any psychotherapist/patient privilege to enable communication between the
sex offender management professional and the probation officer; (3) not to purchase or
possess any pornographic or sexually explicit material as it relates to minors, as defined
by the probation officer; (4) not to possess or use any data encryption technique program;
1
Subsequent undesignated statutory references are to the Penal Code.
2
The plea agreement applied only to the length of time in custody, not to the
imposition of probation or any probation condition.
2
and (5) not to frequent, be employed by, or engage in any business where pornographic
materials are openly exhibited. As to the waivers of the privilege against self-
incrimination and the psychotherapist-patient privilege, the court ordered these conditions
as mandated by section 1203.067.
At sentencing, defendant lodged two objections relevant here. He objected on
Fifth Amendment grounds to the waiver of his privilege against self-incrimination. He
objected on overbreadth grounds to the condition that he not purchase or possess
pornographic material. The trial court overruled defendant’s objections.
II. DISCUSSION
On appeal, defendant contends the probation conditions requiring waiver of the
privilege against self-incrimination and waiver of the psychotherapist-patient privilege
are overbroad in violation of his constitutional rights. He also challenges as overbroad
the condition requiring him to participate in polygraph examinations. Lastly, he
challenges as vague and lacking in scienter requirements the conditions prohibiting
purchase or possession of pornography, possession or use of data encryption, and
frequenting businesses where pornography is exhibited.
A. The Statutory Scheme and Applicable Regulations
Under section 1203.067, subdivision (b)(2), any person placed on formal
probation on or after July 1, 2012, for any offense requiring registration under sections
290 through 290.023, “shall successfully complete a sex offender management program,
following the standards developed pursuant to Section 9003, as a condition of release
from probation.”3 Subdivision (b)(3) requires “Waiver of any privilege against self-
3
Section 1203.067, subdivision (b)(1), also requires persons placed on probation
for registerable sex offenses prior to July 1, 2012 to participate in a sex offender
management program. The waivers at issue in this case do not apply retroactively to
probationers whose crimes occurred before the September 9, 2010 effective date of the
amendment that added the waivers. (People v. Douglas M. (2013) 220 Cal.App.4th 1068,
1077.)
3
incrimination and participation in polygraph examinations, which shall be part of the sex
offender management program.” Subdivision (b)(4) requires “Waiver of any
psychotherapist-patient privilege to enable communication between the sex offender
management professional and supervising probation officer, pursuant to Section
290.09.”4
The Legislature enacted these provisions in 2010 to amend the Sex Offender
Punishment, Control, and Containment Act of 2006 (hereafter, the “Containment Act”).
(Stats. 2010, ch. 219, § 17.) The Containment Act created “a standardized, statewide
system to identify, assess, monitor and contain known sex offenders for the purpose of
reducing the risk of recidivism posed by these offenders, thereby protecting victims and
potential victims from future harm.” (§ 290.03, subd. (b), Stats. 2006, ch. 337, § 12.)
Before the 2010 amendment, persons placed on probation for certain sex crimes were
placed in “an appropriate treatment program designed to deal with child molestation or
sexual offenders . . . .” (§ 1203.067, former subd. (b), Stats. 1994, ch. 918, § 1.) The
2010 amendment removed this provision; the Containment Act now requires participation
in an “approved sex offender management program” certified by the California Sex
Offender Management Board (CASOMB). (§ 9003.)
Under section 9003, CASOMB promulgates standards for certification of sex
offender management programs and “sex offender management professionals.” (§ 9003,
subds. (a) & (b).) Such programs “shall include treatment, as specified, and dynamic and
future violence risk assessments pursuant to Section 290.09.” (§ 9003, subd. (b).)
Furthermore, sex offender management programs “shall include polygraph examinations
by a certified polygraph examiner, which shall be conducted as needed during the period
that the offender is in the sex offender management program.” (Ibid.)
4
The same two waiver conditions apply to parolees. (§ 3008, subds. (d)(3) &
(d)(4).)
4
Section 290.09 specifies that “The 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).) Section 290.09 further requires
the sex offender management professional to administer a State-Authorized Risk
Assessment Tool for Sex Offenders (SARATSO) in two forms—the “SARATSO
dynamic tool” and the “SARATSO future violence tool”—and to send the person’s
scores on these tests to the probation officer. (§ 290.09, subd. (b)(2).) The probation
officer must then transmit the scores to the Department of Justice, which makes the
scores accessible to law enforcement officials through the Department’s website. (Ibid.)
Section 9003 requires CASOMB to publish on its website the certification
requirements for sex offender management programs and professionals.5 To be certified
under these standards, sex offender management programs must implement a
“Containment Model” approach to managing sex offenders. (Cal. Sex Offender
Management Bd., Sex Offender Treatment Program Certification Requirements at p. 6.)6
The central goal of the Containment Model is “community and victim safety, a goal
which is supported by adopting a victim-centered perspective on all aspects of sex
offender management.” (Ibid.) The model is implemented by a “Containment Team,”
whose members include the probation officer, the treatment provider, and the polygraph
examiner. (Id. at p. 2.) “On a regular basis or on an as-needed basis, the containment
5
We take judicial notice of these materials. (Evid. Code, §§ 452, 459.) Pursuant
to Evidence Code section 455, subdivision (a), we requested letter briefs on the propriety
of taking judicial notice of these documents. Neither party objected. Contemporary
copies of the cited documents have been placed on file with the clerk of the court.
6
This document is online at:
<http://www.cce.csus.edu/portal/admin/handouts/CASOMB Program 10-29-13
complete.pdf> [as of Mar.27, 2014].
5
team may also include others who play an important role in the management of any
specific offender. These may include representatives of law enforcement . . . .” (Id. at
p. 6.)
The Containment Model “stresses the importance of open ongoing collaboration
between these key players.” (Cal. Sex Offender Management Bd., Sex Offender
Treatment Program Certification Requirements, supra, at p. 6.) The “core elements” of
the model include “[a]uthoritative criminal justice supervision and monitoring [. . .] to
exert external control over offenders. Probation and parole agencies apply pressure
through clear expectations and through the use or threatened use of sanctions to ensure
that the offender complies with supervision conditions, including participation in
specialized treatment.” (Ibid.) In contradiction to the language of section 1203.067, the
standards state that “Invocation of the Fifth Amendment right to not incriminate oneself
during a sexual history polygraph cannot legally result in revocation.” (Id. at p. 7.)
Additionally, “Polygraph examinations are used to enhance the assessment process and to
help monitor the sex offender’s deviant fantasies and external behaviors, including access
to potential victims.” (Ibid.)
All polygraph examiners working with a certified sex offender management
program must meet CASOMB-promulgated certification standards, published on the
CASOMB website. (Cal. Sex Offender Management Bd., Post-Conviction Sex Offender
Polygraph Standards at p. 1.)7 The standards set forth a model policy, program goals, the
various types of examinations to be administered, and the types of questions that
examinations should include, among other criteria. Examinations should last at least 90
minutes, and examiners may test a probationer up to five times in one day. (Id. at p. 6.)
7
This document is online at:
<http://www.casomb.org/docs/Polygraph_Standards_FINAL.PDF> [as of Mar. 27,
2014].
6
However, examiners should not administer more than four separate examinations to the
same probationer in one year, “except where unavoidable or required by law or local
regulation. This does not include re-testing due to a lack of resolution during an initial or
follow-up examination.” (Ibid.)
Although examiners “should have the final authority and responsibility for the
determination of test questions and question language,” the examiner should
communicate with other team members about what questions to ask. (Cal. Sex Offender
Management Bd., Post-Conviction Sex Offender Polygraph Standards, supra, at pp. 9-
11.) The results of certain exams and the information gained from them should be
provided to other team members. (Id. at p. 12.) Furthermore, “Except as provided by
law, information from the polygraph examination and test results (outcomes) should be
kept confidential and provided only to those involved in the containment approach to the
supervision and treatment of sex offenders.” (Id. at p. 5.) Examiners, however, “should
not interfere with or circumvent the efforts of any open or ongoing investigation of a new
criminal allegation.” (Ibid.)
The several types of polygraph examinations include “instant offense exams,”
“prior-allegation exams,” “sexual history disclosure exams,” and “sex offense monitoring
exams,” as well as subcategories of these exams. (Cal. Sex Offender Management Bd.,
Post-Conviction Sex Offender Polygraph Standards, supra, at p. 10.) These exams have
explicitly investigative components. Instant offense exams may be used “to test the
limits of an examinee’s admitted behavior and to search for other behaviors or offenses
not included in the allegations made by the victim of the instant offense.” (Id. at p. 11.)
“Examiners, along with the other members of the community supervision team, should
select relevant targets from their concerns regarding additional or unreported offense
behaviors in the context of the instant offense.” (Ibid.) Questions about illegal conduct
are not limited to sex offenses; they may include, but are not limited to, questions about
the use or distribution of illegal drugs or controlled substances. (Id. at p. 21.)
7
The prior-allegation exam is used to probe prior alleged offenses, regardless of
whether the probationer was charged with these alleged offenses. “Examiners should use
the Prior Allegation Exam (PAE) to investigate and resolve all prior alleged sex offenses
(i.e., allegations made prior to the current conviction) before attempting to investigate
and resolve an examinee’s history of unknown sexual offenses.” (Cal. Sex Offender
Management Bd., Post-Conviction Sex Offender Polygraph Standards, supra, at p. 12.)
Similarly, the sexual history exams should be used “to investigate the examinee’s history
of involvement in unknown or unreported offenses and other sexual compulsivity, sexual
pre-occupation, or sexual deviancy behaviors.” (Ibid.) To discover “unreported
victims,” examiners should “thoroughly investigate the examinee’s lifetime history of
sexually victimizing others, including behaviors related to victim selection, victim access,
victim impact, and sexual offenses against unreported persons.” (Id. at p. 13.) The sex
offense monitoring exam may be used at the request of other team members “to explore
the possibility the examinee may have been involved in unlawful sexual behaviors
including a sexual re-offense” during the period of supervision. (Cal. Sex Offender
Management Bd., Post-Conviction Sex Offender Polygraph Standards, supra, at p. 22.)
Examiners should make a complete audio-visual or audio recording of all exams.
(Cal. Sex Offender Management Bd., Post-Conviction Sex Offender Polygraph
Standards, supra, at p. 25.) Furthermore, “Examiners should obtain an examinee’s
agreement, in writing and/or on the audio/video recording, to a waiver/release statement.”
The language of this “agreement” should include, among other things, “1) the examinee’s
voluntary consent to take the test, 2) that the examination may be terminated at any time,
[. . .] 4) that all information and results will be released to professional members of the
community supervision team, 5) an advisement that admission of involvement in
unlawful activities will not be concealed from the referring professionals[,] and 6) a
8
statement regarding the requirement for audio/video recording of each examination.”8
(Ibid.) The standards advise, “Examiners should exercise caution to ensure they do not
violate any rights of examinees regarding answering questions about criminal behaviors.”
(Id. at p. 9.) But the document provides no description of those rights and no explanation
for how an examiner should reconcile this advice with any other standards. The
standards do not require examiners to undergo legal training on this or any other issue.
B. Waiver of Any Privilege Against Self-Incrimination
By requiring a “[w]aiver of any privilege against self-incrimination,” section
1203.067, subdivision (b)(3) implicates defendant’s rights under the Fifth Amendment’s
Self-Incrimination Clause.9 To determine the effect of the waiver, we first examine the
general contours of the implicated rights. We then consider the reach of those rights in
the probation context.
1. The Privilege Against Self-Incrimination
The Fifth Amendment to the United States Constitution provides that no person
“shall be compelled in any criminal case to be a witness against himself . . . .” (U.S.
Const., 5th Amend.) The Self-Incrimination Clause thereby protects one from being
forced to testify against oneself in a criminal proceeding. “[B]ut it does more than that.”
(Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 714 (Spielbauer).) As the
United States Supreme Court has recognized, “The privilege reflects a complex of our
8
The standards do not address the waiver requirements of sections 1203.067 or
3008.
9
The Fifth Amendment applies to the states via the Fourteenth Amendment.
(Malloy v. Hogan (1964) 378 U.S. 1.) State law also provides rights against self-
incrimination. (Cal. Const., art. 1, § 15; Evid. Code, § 940; Izazaga v. Superior Court
(1991) 54 Cal.3d 356, 372 [“[T]he California Constitution continues to afford criminal
defendants an independent source of protection from infringement of certain rights,
including the privilege against self-incrimination.”].) Because we strike down the waiver
requirement on federal constitutional grounds, we need not consider the reach of state law
regarding self-incrimination.
9
fundamental values and aspirations, and marks an important advance in the development
of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or
judicial, investigatory or adjudicatory; and it protects against any disclosures which the
witness reasonably believes could be used in a criminal prosecution or could lead to other
evidence that might be so used. This Court has been zealous to safeguard the values
which underlie the privilege.” (Kastigar v. United States (1972) 406 U.S. 441, 444-445,
fns. omitted (Kastigar).)
One may invoke the privilege against self-incrimination absent initiation of a
criminal proceeding. (Chavez v. Martinez (2003) 538 U.S. 760, 770-771 (plur. opn. of
Thomas, J.) (Chavez).) “It has long been held that this prohibition not only permits a
person to refuse to testify against himself at a criminal trial in which he is a defendant,
but also ‘privileges him 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.’ ” (Minnesota v. Murphy, supra, 465 U.S. at p. 426
(Murphy).) Moreover, “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, supra, 45 Cal.4th at p. 714.)
Notwithstanding these protections, the Self-Incrimination Clause does not provide
an absolute right to remain silent. A witness may be compelled to testify—even if doing
so is self-incriminating—provided the state does not use the testimony, or evidence
derived from it, in a criminal prosecution of that witness. (Kastigar, supra, at p. 462.)
This is commonly called “use and derivative use immunity.”10 (Id. at p. 443.) Consistent
with these principles, state and federal statutes empower prosecutors to grant immunity to
10
By contrast, “transactional immunity” guarantees against any prosecution for the
implicated offense, even without use of the witness’s statements. (People v. Campbell
(1982) 137 Cal.App.3d 867, 874.) In this opinion, we use the term “immunity” to refer
only to use and derivative use immunity.
10
a witness prospectively while compelling his or her testimony under threat of contempt.
(§§ 1324, 1324.1; 18 U.S.C. § 6001 et seq.) Immunity under the Fifth Amendment
further extends to statements compelled outside formal testimonial settings, and it may
apply absent a formal grant of immunity. (Garrity v. New Jersey (1967) 385 U.S. 493,
495 [police officers’ compelled statements in response to state investigation could not be
used against them in criminal prosecutions, even without a formal grant of immunity];
Spielbauer, supra, 45 Cal.4th at p. 729 [public defender required to make statements in
response to employer’s investigation enjoys immunity even absent a formal grant of
immunity].)
Because the probation condition at issue here requires waiver of “any privilege
against self-incrimination,” (italics added), the plain language necessarily requires
defendant to forgo any claim of immunity. Without the privilege against self-
incrimination, there is no right to immunity.11 If the statute were somehow construed not
to require a waiver of immunity, it is unclear what else the waiver would accomplish or
what purpose it would serve. As explained in detail below, the state does not need a
waiver to require defendant’s participation in treatment or polygraph examinations. He
can be compelled to answer questions—even if the answers are incriminating—provided
he retains immunity from the use of his statements in a separate criminal prosecution.
2. Ripeness of the Claim Under the Fifth Amendment
The Attorney General contends the claim is not ripe. She argues that the Fifth
Amendment would only be violated if defendant’s incriminating statements were used
against him in a criminal prosecution. Because defendant has not identified any such use
of his statements, the Attorney General contends he has no Fifth Amendment claim. But
11
Indeed, under the plain language of the statute, the loss of immunity is the
primary effect of the waiver. (See Chavez, supra, 538 U.S. at pp. 769-771 (plur. opn. of
Thomas, J.).)
11
the Attorney General does not explain how defendant could protect his Fifth Amendment
rights in a future criminal proceeding after expressly waiving these rights as a condition
of probation. “Once an immunity waiver is signed, the signatory is unable to assert a
Fifth Amendment objection to the subsequent use of his statements in a criminal case,
even if his statements were in fact compelled. A waiver of immunity is therefore a
prospective waiver of the core self-incrimination right in any subsequent criminal
proceeding . . . .” (Chavez, supra, 538 U.S. at p. 768, fn.2 (plur. opn. of Thomas, J.).)
Thus, a state-compelled, prospective waiver of the privilege against self-
incrimination gives rise to a Fifth Amendment claim before a declarant’s incriminating
statements are used in a criminal prosecution, regardless of whether the state ever
initiates such a prosecution. The Supreme Court’s longstanding “penalty cases”
jurisprudence established this rule decades ago. (Sanitation Men v. Sanitation Comm’r
(1968) 392 U.S. 280, 283 [Fifth Amendment violated when state fired public employees
for invoking and refusing to waive the privilege against self-incrimination]; Gardner v.
Broderick (1968) 392 U.S. 273, 276 [Fifth Amendment prohibits state from firing
policeman for refusing to waive the privilege against self-incrimination].)
In Lefkowitz v. Turley (1973) 414 U.S. 70, licensed architects challenged a New
York statute disqualifying contractors for public contracts if they refused to waive their
Fifth Amendment immunity. The architects, when called as witnesses before a grand
jury, refused to sign waivers of immunity. The state had not charged them with any
crimes, nor used their statements against them in any criminal proceeding. Nonetheless,
the Supreme Court held that the statutorily compelled waivers violated the Self-
Incrimination Clause. The Supreme Court again reaffirmed this principle in Lefkowitz v.
Cunningham (1977) 431 U.S. 801. There, a New York statute provided that if a political
party officer was subpoenaed to testify about the conduct of his office but the officer
refused to testify or waive immunity, the officer was barred from office for five years.
Cunningham, when subpoenaed to testify before a grand jury, refused to sign a waiver of
12
immunity, and he was barred from office. The state never threatened or attempted to use
Cunningham’s statements against him in a criminal prosecution, yet the Supreme Court
struck down the statute as a violation of the Self-Incrimination Clause. These cases make
clear that a state-compelled, prospective waiver of immunity violates the Self-
Incrimination Clause apart from the use of the compelled statements in any criminal
proceeding.
The Attorney General relies on language in Maldonado v. Superior Court (2012)
53 Cal.4th 1112 (Maldonado) for the proposition that the Fifth Amendment is not
violated until a defendant’s statements are used against him in a criminal proceeding.
But her reliance on this language ignores the analytical distinction between a violation of
the “core” Fifth Amendment right and a violation of the “prophylactic” protection
prohibiting a compelled waiver of immunity as explained in Maldonado and Chavez.
In Maldonado, the California Supreme Court stated 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.”
(Maldonado, supra, 53 Cal.4th at p. 1128.) (Italics added.) For this principle, the court
relied on Chavez, supra, 538 U.S. at pp. 766-773 (plur. opn. of Thomas, J.).
In Chavez, the United States Supreme Court considered a civil rights lawsuit under
42 U.S.C. section 1983 by a plaintiff alleging a violation of the Fifth Amendment.
Although the plaintiff’s statements were compelled, they were never used against him in
a criminal prosecution. (Chavez, supra, 538 U.S. at pp. 763-764.) Justice Thomas,
writing for a plurality of justices, characterized the “core” Fifth Amendment privilege as
the right not to be a “witness” against oneself in a “criminal case.” (Chavez, at pp. 768-
769 (plur. opn. of Thomas, J.).) But a majority of justices also affirmed longstanding
“prophylactic” or “complementary” protections under the Fifth Amendment that arise
prior to and apart from a criminal proceeding. (Id. at p. 770 (plur. opn. of Thomas, J.); id.
13
at pp. 777-778 (conc. opn. of Souter, J.).) The rule prohibiting a compelled waiver of
immunity is one such protection, and is necessary to protect the “core” right against the
use of compelled statements in a prosecution. “By allowing a witness to insist on an
immunity agreement before being compelled to give incriminating testimony in a
noncriminal case, the privilege preserves the core Fifth Amendment right from invasion
by the use of that compelled testimony in a subsequent criminal case.” (Id. at p. 771
(plur. opn. of Thomas, J.).)
The California Supreme Court in Maldonado did not hold otherwise. There, the
court considered a discovery rule requiring a defendant who proffered a mental
incapacitation defense to submit to examination by the prosecution’s mental health
experts. (§ 1054.3, subd. (b)(1).) The court had no occasion to consider a compelled
waiver. To the contrary, the court explicitly based its analysis on the uncontroversial
premise that the defendant maintained his Fifth Amendment immunity unless and until he
voluntarily waived it by introducing his own statements into evidence at trial: “[T]he
parties agree that the Fifth Amendment protects petitioner against any direct or derivative
use of his statements to the prosecution examiners, except to rebut any mental-state
evidence he presents through his own experts.” (Maldonado, supra, 53 Cal.4th at
p. 1129, fn. omitted.) “If he decides to abandon the defense, any self-incriminating
results of the examinations cannot be introduced or otherwise used against him.” (Id. at
p. 1132.)
Nothing in Maldonado authorizes a compelled waiver of immunity. To the
contrary, the California Supreme Court explicitly recognized the Chavez plurality’s
affirmation of the so-called “prophylactic rules,” (Maldonado, supra, at pp. 1128-1129),
under the Fifth Amendment: “The rule allowing a witness to assert the privilege prior to
testifying, and to refuse to testify unless granted immunity, Justice Thomas indicated,
protects the ‘core’ Fifth Amendment privilege simply by assuring that the witness has not
forfeited the right against self-incriminating use of his or her testimony in later criminal
14
proceedings.” (Ibid.) (Italics added.) The court in Maldonado also acknowledged its
prior holding, set forth at Spielbauer, supra, 45 Cal. 4th at pages 714-730, that a
compelled waiver of immunity could not be required even in the absence of a criminal
proceeding. In this regard, our high court noted, “[W]e held that in the context of a
noncriminal investigation by a public employer, the employee could be compelled to
answer questions about his performance of duty, even without a formal immunity
agreement, so long as he was not required to surrender the immunity conferred by the
Fifth Amendment itself against use and derivative use of his statements to prosecute him
for a criminal offense.” (Maldonado, supra, at p. 1129.) (Italics added.)
Neither Maldonado nor Chavez purported to overturn the longstanding United
States Supreme Court doctrine prohibiting compelled waivers of immunity.12 Regardless
of whether the right against a compelled waiver is characterized as a “core right,” a
“prophylactic rule,” or “complementary protection,” defendant has standing to assert his
Fifth Amendment claim here. The Chavez plurality stated this explicitly: “That the
privilege is a prophylactic one does not alter our penalty cases jurisprudence, which
allows such privilege to be asserted prior to, and outside of, criminal proceedings.”
(Chavez, supra, 538 U.S. at p. 772, fn. 3 (plur. opn. of Thomas, J.).)13
12
The Ninth Circuit Court of Appeals recognized this as well. “[T]he government
contends that Chavez stands for the proposition that Antelope may not assert the Fifth
Amendment right until the moment a compelled statement is used in a criminal
proceeding against him. But Chavez did not, as the government suggests, unseat decades
of Supreme Court law. Instead, the government’s argument reveals a fundamental
misunderstanding of Chavez.” (United States v. Antelope, supra, 395 F.3d at p. 1140.)
13
Defendant also contends the required waiver is unconstitutionally overbroad as a
probation condition apart from any specific Fifth Amendment violation. California law
does not require a probationer to suffer a probation revocation or any other harm before
challenging a probation condition as overbroad. It would be inconsistent to do so here
simply because defendant’s claim implicates the Fifth Amendment. Indeed, defendant
challenges three other probation conditions in this case as unconstitutionally vague
(Cont.)
15
For these reasons, we conclude defendant’s claim under the Fifth Amendment is
ripe for adjudication here.
3. The Privilege Against Self-Incrimination in the Context of Probation
“Inherent in the very nature of probation is that probationers ‘do not enjoy “the
absolute liberty to which every citizen is entitled.” ’ [Citation.] Just as other
punishments for criminal convictions curtail an offender’s freedoms, a court granting
probation may impose reasonable conditions that deprive the offender of some freedoms
enjoyed by law-abiding citizens.” (United States v. Knights (2001) 534 U.S. 112, 119.)
“ ‘Nevertheless, probationers are not divested of all constitutional rights.’ ” (People v.
Pirali (2013) 217 Cal.App.4th 1341, 1350.) “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.)
The United States Supreme Court has held the protection of the Self-Incrimination
Clause, unlike the Fourth Amendment, applies to both prisoners and probationers. “A
defendant does not lose this protection by reason of his conviction of a crime;
notwithstanding that a defendant is imprisoned or on probation at the time he makes
incriminating statements, if those statements are compelled they are inadmissible in a
subsequent trial for a crime other than that for which he has been convicted.” (Murphy,
supra, 465 U.S. at p. 426.) A blanket waiver of any privilege against self-incrimination
would deprive a probationer of the full spectrum of his rights under the Self-
Incrimination Clause—even those protections enjoyed by prisoners in custody. (Baxter
v. Palmigiano (1976) 425 U.S. 308, 316 [prison inmates compelled to testify at
disciplinary proceedings must be offered immunity and may not be required to waive it];
because they lack a scienter requirement. We routinely adjudicate these types of
claims—prior to the revocation of probation—without any concern for ripeness.
16
McKune v. Lile (2002) 536 U.S. 24, 36 (plur. opn. of Kennedy, J.) [“The privilege
against self-incrimination does not terminate at the jailhouse door . . . .”].)
In Murphy, Marshall Murphy was prosecuted for criminal sexual conduct. He
pleaded guilty to false imprisonment and received three years’ probation. (Murphy,
supra, 465 U.S. at p. 422.) The terms of Murphy’s probation required him to participate
in a treatment program for sexual offenders, to report to his probation officer as directed,
and to be truthful with the probation officer “in all matters.” (Ibid.) In the course of his
treatment, Murphy confessed to raping and murdering a teenage girl seven years earlier.
(Id. at p. 423.) His treatment counselor gave this information to the probation officer,
who then confronted Murphy with it. (Id. at pp. 423-424.) Murphy confessed to the
probation officer as well, who in turn told the police. (Id. at p. 424.) At no point did
Murphy invoke the Fifth Amendment. He was later indicted for first degree murder. (Id.
at p. 425.)
The high court found Murphy had voluntarily waived his right against self-
incrimination. (Murphy, 465 U.S. at p. 429.) First, the court began its analysis by
holding that the privilege against self-incrimination applies to probationers. (Id. at
p. 426.) The court then held that the probation condition requiring Murphy to answer
questions truthfully did not, by itself, controvert this right; rather, his obligations were no
different from those of any other witness in a proceeding. “The answers of such a
witness to questions put to him are not compelled within the meaning of the Fifth
Amendment unless the witness is required to answer over his valid claim of the
privilege.” (Id. at p. 427.) (Italics added.) The court then distinguished Murphy’s
circumstances from cases in which “the state not only compelled an individual to appear
and testify, but also sought to induce him to forgo the Fifth Amendment privilege . . . .”
(Id. at p. 434 [citing Lefkowitz v. Turley, supra, 414 U.S., at pp. 79-84 [“a State may not
impose substantial penalties because a witness elects to exercise his Fifth Amendment
right not to give incriminating testimony against himself.”]; Sanitation Men v. Sanitation
17
Comm’r, supra, 392 U.S. at pp. 283-284; Gardner v. Broderick, supra, 392 U.S. at
pp. 278-279].) “The threat of punishment for reliance on the privilege distinguishes cases
of this sort from the ordinary case in which a witness is merely required to appear and
give testimony.” (Murphy, 465 U.S. at p. 435.) Because the state did not punish Murphy
for relying on the privilege or induce him to forgo it, the court found no Fifth
Amendment violation. (Id. at p. 436.)
The court also found Murphy could not have reasonably believed that he could be
punished for invoking the privilege because the law clearly prohibited such punishment.
(Id. 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. It is not surprising, then, that neither the State court nor any State officer has
suggested otherwise.” (Ibid.) Thus, Murphy explicitly protects a probationer’s right to
invoke the Fifth Amendment.
The Attorney General quotes language in a footnote in Murphy stating, “Just as
there is no right to a jury trial before probation may be revoked, neither is the privilege
against compelled self-incrimination available to a probationer.” (Murphy, supra,
465 U.S. at p. 435, fn. 7.) The context of the quote, however, makes clear that the court
was referring solely to the absence of a right to invoke the privilege against self-
incrimination in a revocation proceeding in response to inquiries about one’s
probationary status, such as questions about residence requirements. Such questions
“pose[] no realistic threat of incrimination in a separate criminal proceeding.” (Ibid.)
Moreover, the court continued, “[A] state may validly insist on answers to even
incriminating questions and hence sensibly administer its probation system, as long as it
recognizes that the required answers may not be used in a criminal proceeding and thus
eliminates the threat of incrimination. Under such circumstances, a probationer’s ‘right
to immunity as a result of his compelled testimony would not be at stake,’
[citations] . . . .” (Ibid.)
18
Thus, Murphy has long made clear that the use of a probationer’s compelled
statements in a separate criminal proceeding would violate the Fifth Amendment, and the
state may not punish a probationer for invoking the Fifth Amendment. More recently,
California courts have reaffirmed that Murphy stands for this principle. “[I]f the state
puts questions to a probationer that call for answers that would incriminate him in a
pending or later criminal proceeding, and expressly or by implication asserts that
invocation of the privilege would lead to revocation of probation, the answers would be
deemed compelled under the Fifth Amendment and thus involuntary and inadmissible in
a criminal prosecution.” (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320
(Brown); accord United States v. Saechao, supra, 418 F.3d 1073; United States v.
Antelope, supra, 395 F.3d 1128.)
We will examine the breadth of the waiver under section 1203.067, subdivision
(b)(3), in accordance with these principles.
4. Overbreadth of the Waiver of the Privilege Against Self-Incrimination Under
Section 1203.067, Subdivision (b)(3)
Because the waiver of the privilege against self-incrimination imposes limitation’s
on a probationer’s constitutional rights, it must be “closely tailored” to its purposes. (In
re Sheena K., supra, 40 Cal.4th at p. 890.) Neither the language of the waiver provision
nor the legislative history of the amendment that enacted it specifically states its purpose.
As a general matter, public safety is “a primary goal” of court-ordered probation
conditions. (§ 1202.7; People v. Olguin (2008) 45 Cal.4th 375, 379.) Consistent with
this goal, the overriding purpose of the sex offender treatment program is public safety
through containment and reduction of recidivism by registered sex offenders: “For the
safety and well-being of California’s citizens, especially those most vulnerable to sexual
assault, it is essential to manage known sex offenders living in the state’s communities in
ways that most effectively reduce the likelihood that they will commit another
offense . . . .” (Cal. Sex Offender Management Bd., Sex Offender Treatment Program
19
Certification Requirements, supra, at p. 1.) Treatment and rehabilitation of the offender
are secondary purposes of the sex offender management program; CASOMB publications
emphasize the importance of their role in reducing recidivism. (Ibid.) Public safety is
also the primary goal of polygraph testing as part of the sex offender management
program. (Cal. Sex Offender Management Bd., Post-Conviction Sex Offender Polygraph
Standards, supra, at p. 3.)
The reach of the waiver is extraordinarily broad. Subdivision (b)(3) of section
1203.067 requires waiver of “any privilege against self-incrimination . . . .” (Italics
added.) By use of the word “any” to modify the term “privilege,” the statute precludes all
attempts by a probationer, present and future, to seek protection under the Self-
Incrimination Clause for compelled statements made during the sex offender
management program, regardless of the circumstances in which they may arise. The
statute thereby encompasses a complete waiver of immunity under the Fifth
Amendment.14
As to subject matter, the statute imposes no limits on either the topic or the time
frame of statements that may come under the waiver. The waiver is not limited to
statements about the offense for which the probationer has been convicted. Anything the
probationer says could be used against him in any criminal proceeding, whether in the
instant proceeding or any other. Because the waiver eliminates derivative use immunity,
his statements could even be used against him in a future criminal prosecution for an
14
At oral argument, the Attorney General argued that the waiver condition does
not prevent the probationer from invoking the privilege against self-incrimination, even
after the probationer has been required to waive it. We cannot conceive of—and the
Attorney General did not put forth—any logical way to reconcile this position. The
waiver condition would be meaningless if a probationer could simply nullify it by
invoking the privilege at a later time. For the waiver to have any legal force, it must
mean the probationer cannot meaningfully invoke the privilege in connection with the sex
offender management program.
20
offense he commits after the expiration of the probationary period. (Marchetti v. United
States (1968) 390 U.S. 39, 53; Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326
[abrogated on other grounds] [the privilege forbids compelled disclosures which could
serve as a “link in a chain” of evidence tending to establish guilt of a criminal offense].)
Under this broad waiver, a probationer could be compelled to confess to a crime
committed long ago, having no relevance to his status as a sex offender. Any such
confession could be given to police or prosecutors, who could then use it against the
probationer to initiate an independent prosecution. And law enforcement officials
seeking to further an independent, on-going prosecution for an unrelated crime could be
tempted to contact the probation officer and ask that the probationer be questioned about
it. The probationer could then be questioned aggressively in a custodial environment,
without Miranda warnings, and any claim that his or her statements were coerced or
involuntary under the Self-Incrimination Clause would be waived.15 These are only a
few examples of the potential problems that could ensue from such a broad and
indiscriminate waiver of the privileges against self-incrimination.
And we cannot effectively cabin the scope of the statute through the proper
application of the principles of statutory construction. Arguably, because the statute
requires “Waiver of any privilege against self-incrimination and participation in
polygraph examinations, which shall be part of the sex offender management program”
(italics added), the latter conditions could be construed as limiting the waiver solely to
15
The Self-Incrimination Clause provides for the rights set forth in Miranda v.
Arizona (1966) 384 U.S. 436, as well as a right against the extraction of coerced,
involuntary confessions. “No doubt the constitutional privilege may, on occasion, save a
guilty man from his just deserts. It was aimed at a more far-reaching evil—a recurrence
of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of
the greater evil was deemed of more importance than occurrence of the lesser evil.
Having had much experience with a tendency in human nature to abuse power, the
Founders sought to close the doors against like future abuses by law-enforcing agencies.”
(Ullmann v. United States (1956) 350 U.S. 422, 428.)
21
statements made during a polygraph examination or during the course of the sex offender
management program. But such a construction would still provide almost no meaningful
constraints. First, the statute would still place no limits on the subject matter of a
probationer’s statements subject to the waiver or the questions that could be put to the
probationer. This would allow for questions about all aspects of a probationer’s past and
present conduct, whether criminal or otherwise, regardless of whether it has any
relevance to the instant offense or a probationer’s status as a sex offender. Second, there
would still be no statutory limitation on who may formulate questions, to whom the
answers may be given, or for what use they may be available.
A polygraph examiner, for example, could question the probationer, in the course
of a video-recorded examination, about matters not directly related to his sex offense,
such as involvement with illegal drugs. (Cal. Sex Offender Management Bd., Post-
Conviction Sex Offender Polygraph Standards, supra, at p. 21.) The examiner could then
provide the recording directly to the probation officer or even to law enforcement for use
in a criminal prosecution against the probationer. (Evid. Code, § 351.1, subd. (b)
[“Nothing in this section is intended to exclude from evidence statements made during a
polygraph examination which are otherwise admissible.”].) None of this is forbidden
under a plain interpretation of the statute. To the contrary, various standards set forth in
CASOMB publications encourage such a chain of events. Although CASOMB standards
for polygraph examiners state that information from polygraph exams “should be kept
confidential and provided only to those involved in the containment approach to the
supervision and treatment of sex offenders,” the standards also make clear that law
enforcement officials may be made part of the “Containment Team.” (Cal. Sex Offender
Management Bd., Sex Offender Treatment Program Certification Requirements, supra, at
p. 6.) (Italics added.) More importantly, the statute contains no language reflecting any
restrictions on providing information to law enforcement officials.
22
To the contrary, other statutes explicitly require certain members of the
Containment Team to reveal the probationer’s statements to law enforcement for further
investigation and prosecution. For example, probation officers, psychotherapists, district
attorneys and police officers are all “mandated reporters” under the Child Abuse and
Neglect Reporting Act. (§ 11165.7, subds. (a)(15), (a)(18), (a)(21), & (a)(34).) If any of
these participants acquire knowledge—or even reasonable suspicion—of any child who
has been the victim of child abuse or neglect, the participant is required to report the
information to police or other qualified agencies. Failure to do so is a misdemeanor
punishable by up to six months confinement in a county jail or by a fine of one thousand
dollars, or by both. (§ 11166.)
In conjunction with mandatory reporting requirements and CASOMB standards, a
blanket waiver of any privilege against self-incrimination results in a process whereby
suspected offenses based on compelled statements—including those unrelated to the
underlying offense—are effectively required to be presented for prosecution. First, the
probationer, upon threat of revocation, would be compelled to submit to a polygraph
examination. The examiner would then pose a raft of questions purposely designed to
ferret out both past and current sexual misconduct. The probationer would be forced to
waive his privilege against self-incrimination and answer the questions. The examiner,
consistent with CASOMB standards, would then be required to share the results of the
examination with the probation officer or the prosecutor. These participants, in turn,
would be compelled to report to the police any information constituting reasonable
suspicion that the probationer has committed any one of numerous offenses defined as
23
child abuse and neglect.16 The results of this process could then be used against the
probationer in a subsequent criminal prosecution.
There is no doubt that, in the abstract, a waiver of the privilege against self-
incrimination would further public safety if it allowed for the prosecution of a sex
offender who admits to an ongoing, dangerous offense that would otherwise go
unreported after invocation of the privilege. But the scope of the waiver at issue here
reaches too broadly. It allows, for example, use of a probationer’s statements in the
prosecution of any offense—such as minor drug offenses or prostitution-related
activities.17
If the only purpose of the waiver is to compel the probationer to answer questions
and participate in treatment, no waiver is necessary. As the high court observed in
Murphy, the Fifth Amendment already allows the state to require a probationer to
participate in treatment and answer questions truthfully. (Murphy, supra, 465 U.S. at
p. 427.) Probationers may also be required to undergo polygraph testing, provided the
questioning relates to successful completion of the therapy program and the crime for
which the defendant is convicted. (Brown, supra, 101 Cal.App.4th at p. 321; People v.
Miller (1989) 208 Cal.App.3d 1311, 1315 [“The mere requirement of taking the test in
itself is insufficient to constitute an infringement of the privilege.”].) And, if the
circumstances surrounding the questioning are noncustodial, no Miranda warnings are
16
Presumably, “reasonable suspicion” could even include a probationer’s denials,
if the results of the polygraph exam indicated the probationer was lying. (See, e.g.,
People v. Lara (1974) 12 Cal.3d 903, 909.)
17
CASOMB-promulgated standards specifically advise polygraph examiners to
inquire about past “prostitution activities” and use of drugs, among other illegal conduct.
(Cal. Sex Offender Management Bd., Post-Conviction Sex Offender Polygraph
Standards, supra, at pp. 17, 21.)
24
required.18 (Murphy, supra, at p. 433.) If the probationer does not invoke the privilege
against self-incrimination, the privilege is waived voluntarily. Absent some other
restriction, then, a probationer’s statements may be used against him or her in a separate
criminal prosecution. (Id. at p. 440.)19 Furthermore, if a probationer invokes the
privilege in response to questions that pose no threat of self-incrimination (e.g., questions
concerning his probationary status), the state may revoke probation without violating the
Fifth Amendment. (Id. at p. 435, fn. 7.) In light of these allowances, there is no
overwhelming need for a compelled waiver of defendant’s fundamental right to his
privilege against self-incrimination.
Arguably, a waiver of the privilege against self-incrimination could also serve the
secondary purposes of treatment and rehabilitation by encouraging a probationer to reveal
and discuss mental dysfunctions with the psychotherapist. However, for these purposes,
the state has another option: it can compel a probationer to disclose incriminating
information, even after invocation of the Fifth Amendment, by granting him immunity.
Indeed, doing so would greatly encourage the probationer to engage with the
psychotherapist by ensuring that any facts revealed would not lead to imprisonment.20
By contrast, a waiver explicitly allowing a probationer’s statements to be used against the
18
The First District Court of Appeal has also held that an in-custody, un-
Mirandized probationer’s statements may be used against him in a revocation proceeding.
(People v. Racklin (2011) 195 Cal.App.4th 872, 881.)
19
See also People v. Macias (1997) 16 Cal.4th 739, 757 [trial court properly
allowed impeachment with statements defendant voluntarily made to probation officer in
preparation for fitness hearing]; People v. Goodner (1992) 7 Cal.App.4th 1324, 1332
[statements to probation officer could be used to prove elements of prior conviction for
sentence enhancement purposes].)
20
Under use and derivative use immunity, the state could still prosecute the
probationer for offenses revealed to a psychotherapist, provided the prosecution is based
solely on independently obtained evidence.
25
probationer in a subsequent criminal prosecution may tend to discourage honesty and
openness between the probationer and the psychotherapist.
For the reasons above, we conclude the Fifth Amendment prohibits the section
1203.067, subdivision (b)(3) requirement of a waiver of the privilege against self-
incrimination as a condition of probation. (Accord State v. Eccles, supra, 179 Ariz. 226.)
The Attorney General, anticipating we might find the waiver overbroad, proposes
two modifications to narrow it. One proposed modification would limit the subject
matter of questions that could be posed to those “in furtherance of the defendant’s
successful completion of the sex offender management program, his/her current
probation supervision period, his/her sexual history, and state-mandated assessments of
his/her risk of reoffending.” But the probation condition is mandated by statute. It is not
the proper role of this court to fashion modifications that have no basis in the plain
language of the statute; these are questions better left to the Legislature.
A second proposed modification would provide that “any answer that the
defendant provides after invoking his/her Fifth Amendment privilege will not be used in
any future prosecution or violation of probation as long as it is solely based on a new
criminal offense which occurred prior to the conviction of the current offense.” Thus the
Attorney General invites us to incorporate an automatic immunity provision for past
offenses. Presumably, then, a prosecutor could use the probationer’s statements against
him in a criminal prosecution of any ongoing or future offense.
But an automatic grant of immunity could create unanticipated difficulties in a
prosecution for past offenses, thereby harming efforts to protect public safety. Suppose a
probationer, after being required to waive the privilege against self-incrimination, then
reveals a history of numerous past serious and violent offenses for which he has been
granted immunity automatically under the Attorney General’s proposed rule. Any
prosecution for such offenses—even if the prosecutor never intended for the defendant to
be questioned about them—could be substantially compromised. “[A] defendant against
26
whom incriminating evidence has been obtained through a grant of immunity may be in a
stronger position at trial than a defendant who asserts a Fifth Amendment coerced-
confession claim. One raising a claim under this [immunity] statute need only show that
he testified under a grant of immunity in order to shift to the government the heavy
burden of proving that all of the evidence it proposes to use was derived from legitimate
independent sources.” (Kastigar, supra, 406 U.S. at pp. 461-462.) In many such cases,
public safety may be better served where a prosecutor retains the discretion whether to
grant immunity. It would thus be unwise for this court to construe the statute as allowing
an automatic immunity mechanism for past offenses, as suggested by the Attorney
General.
Mindful of these complications, we do not here opine on the effect, on future or
independent prosecutions, of compelling defendant’s statements as part of the sex
offender management program in the absence of the waiver. “The issue before us [. . .]
does not directly implicate the latter problem.” (Spielbauer, supra, 45 Cal.4th at p. 728.)
We hold only that the state may not require the waiver of “any privilege against self-
incrimination” as a condition of probation as set forth in section 1203.067, subdivision
(b)(3).
5. The Dissent and People v. Garcia
The dissent would adopt a different construction of the waiver and uphold it as
constitutional, as did a majority of a separate panel of this court in People v. Garcia
(March 21, 2014, H039603) [2014 WL 1116998] (Garcia). Under this interpretation, the
condition would allow the state to require the probationer to answer questions as part of
the sex offender management program and polygraph examinations, but the state would
be prohibited from using those statements against the probationer in a separate criminal
prosecution.
We would agree that it is reasonable to construe the waiver as applying only to
statements the probationer makes in the course of the sex offender management program
27
and polygraph examinations.21 But even limited to that context, the statute still requires a
“waiver of any privilege against self-incrimination” as to those statements. (§ 1203.067,
subd. (b)(3).) Basic statutory construction requires us to interpret the phrase “any
privilege against self-incrimination” in accord with the well-established definition of that
privilege as set forth in Fifth Amendment jurisprudence. “[W]hen a word used in a
statute has a well-established legal meaning, it will be given that meaning in construing
the statute. This has long been the law of California: ‘The rule of construction of statutes
is plain. Where they make use of words and phrases of a well-known and definite sense
in the law, they are to be received and expounded in the same sense in the statute.’ ”
(Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19 [quoting Harris v. Reynolds (1859) 13 Cal.
514, 518].) Without a doubt, the privilege against self-incrimination is well-established
and definite under the Fifth Amendment. Thus, the plain language of the statute
unambiguously includes any waiver of the probationer’s rights under the Self-
Incrimination Clause.
Furthermore, as set forth above, the “core” right of the Self-Incrimination Clause
protects against the use of compelled statements in a criminal proceeding against the
speaker. (Chavez, supra, 538 U.S. at pp. 766-773 (plur. opn. of Thomas, J.); Maldonado,
supra, 53 Cal.4th at p. 1128.) Any condition excluding the core of the waived right from
the waiver would require some indication of that exclusion in its language. No such
language is found in the waiver condition here, explicit or implicit. To the contrary, the
statute’s use of the word “any” explicitly defines the waiver to include all aspects of the
privilege; this necessarily includes the core right.
21
The dissent reads our opinion as considering a broader construction of the
waiver that would apply it to any statement by the probationer, whether or not it is made
in the context of the sex offender management program or polygraph exams. We address
the narrower construction—applying the waiver only to statements made during that
context—above at pages 21-23. We conclude the waiver is unconstitutional under either
construction.
28
Both the dissent and the majority in Garcia conclude that the Legislature intended
only to require probationers to participate fully in the sex offender management program,
and not to allow their statements to be used against them in separate criminal
proceedings.22 But the most reliable indicator of legislative intent is the plain language of
the statute. (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.) When “the
statute’s text evinces an unmistakable plain meaning, we need go no further.” (Beal
Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.) The plain language of
the statute does not support the construction advanced by the dissent and by the majority
in Garcia. Moreover, that construction would render the waiver unnecessary. As the
United States Supreme Court made clear, the Fifth Amendment already allows the state
to require probationers to answer questions as a condition of probation, provided those
statements are not used against the probationer in a criminal prosecution. (Murphy,
supra, 465 U.S. at p. 427.) “[I]t is well established that incriminating answers may be
officially compelled, without violating the privilege, when the person to be examined
receives immunity ‘coextensive with the scope of the privilege’—i.e., immunity against
both direct and ‘derivative’ criminal use of the statements.” (Spielbauer, supra,
45 Cal.4th at pp. 714-715.)
The dissent construes the statute as limited to requiring a waiver of the right to
refuse to answer questions during polygraph examinations and any other part of the sex
offender management program. And the Garcia majority views the waiver provision as
“critical” because it prevents a probationer from refusing to answer questions on self-
incrimination grounds. (Garcia, supra, at pp. 5, 17.) But the privilege against self-
incrimination does not prohibit the State from compelling statements, provided the
22
Other language in the statute already requires probationers to “participate in”
and “successfully complete” the sex offender management program, requiring them to
engage in treatment and participate in polygraph exams. (§ 1203.067, subds. (b)(1),
(b)(2) & (b)(3).)
29
probationer retains immunity. Neither the dissent nor the Garcia majority explain the
necessity of requiring a waiver when the probationer can already be compelled to answer
questions, as described in Speilbauer. Such a construction violates the basic rule that no
part of a statute shall be construed to be “ ‘inoperative or superfluous, void or
insignificant.’ ” (AFL-CIO v. Deukmejian (1989) 212 Cal.App.3d 425, 435 [quoting 2A
Sutherland, Statutory Construction (4th ed. 1984) § 46.06, p. 104].) We are mindful of
the rule that courts should construe statutes, “when reasonable, to avoid difficult
constitutional questions.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105.) (Italics
added.) But that principle does not allow us to adopt a construction that controverts the
plain language of the statute.
Finally, the statutory construction advanced by the dissent and by the majority in
Garcia raises two additional concerns. First, no reasonable defendant can be expected to
understand that a “waiver of any privilege against self-incrimination” does not actually
mean what it says, but instead means that after waiving the privilege, he or she could
nonetheless invoke it at a later time with respect to statements made under the waiver.
When “men [or women] of common intelligence must necessarily guess” at a condition’s
meaning and “differ as to its application,” such a condition is vague in violation of due
process. (Connally v. General Const. Co. (1926) 269 U.S. 385, 391.) Upholding the
waiver condition as worded would cause confusion in the law and in the proper
administration of defendant’s probation. And second, as Garcia acknowledges, the effect
of the waiver requirement is to grant the probationer automatic use and derivative use
immunity for any incriminating statements.23 (Garcia, supra, at p. 15.) While the
23
In contrast, by striking the waiver requirement, our holding removes the
probationer’s statements from the “classic penalty situation” recognized by Murphy,
supra, 465 U.S. at page 435. Thus, unless the probationer explicitly invokes the Fifth
Amendment, his statements may be used in a criminal prosecution, as Murphy’s
statements were used against him.
30
Garcia majority downplays the significance of this result, we think it unnecessarily
threatens to hamper future prosecutions. This is not a situation where “the vast majority
of such cases are unlikely to have criminal implications.” (Spielbauer, supra, 45 Cal.4th
at p. 729.) To the contrary, under the CASOMB standards, polygraph examiners are
specifically directed to question probationers—who have already been convicted of at
least one offense—about a wide array of other criminal behaviors. And as mandatory
reporters, both the polygraph examiners and probation officers may have reporting
obligations to law enforcement. There is no disagreement that compelled statements
cannot be used in separate criminal proceedings; therefore, prosecutors wishing to pursue
charges for these offenses will be required to disprove any taint.
C. Overbreadth of the Polygraph Examinations Requirement
Defendant, relying on Brown, supra, 101 Cal.App.4th 313, challenges as
overbroad the condition requiring him to participate in polygraph examinations as part of
the sex offender management program. The defendant in Brown was convicted of
stalking. The trial court imposed a probation condition identical to the condition here,
ordering Brown to complete a stalking therapy program and submit to periodic polygraph
examinations as conditions of his probation. (Id. at pp. 317, 319.) The court of appeal
held that mandatory polygraph testing as a condition of probation was reasonably related
to the defendant’s stalking conviction and to possible future criminality under People v.
Lent (1975) 15 Cal.3d 481. (Brown, supra, 101 Cal.App.4th at p. 319.) But the court
further held that the probation condition must be narrowed under Lent “to limit the
questions allowed to those relating to the successful completion of the stalking therapy
program and the crime of which Brown was convicted.” (Id. at p. 321.)
Application of the Lent factors here leads us to the same conclusion. Under Lent,
“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
31
criminality. . . .’ [Citation.] Conversely, a condition of probation which requires or
forbids conduct which is not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future criminality.” (People v.
Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) Here, the basic requirement that Friday
participate in polygraph examinations does not run afoul of the Lent factors, provided the
questions posed to him are reasonably related to his successful completion of the sex
offender management program, the crime of which he was convicted, or related criminal
behavior, whether past or future. The CASOMB regulations provide examples of many
such questions. For example, questions about the probationer’s sexual pre-occupations or
history of sexual deviancy would be reasonably related to future criminality and the
circumstances of the underlying offense.
However, neither the language of the probation condition nor the CASOMB
regulations place any limits on the types of questions that may be posed to the
probationer. There is no requirement that the questions be related to any criminal
conduct, whether past, present, or future. Nor is there any requirement that the questions
be limited to successful completion of the sex offender management program. Under the
probation condition imposed here, a polygraph examiner could ask Friday anything at all,
without limitation. For example, a polygraph examiner could question Friday about his
medical history or personal financial matters having nothing to do with any criminal
conduct. Such questions would have no reasonable connection to the crime for which he
was convicted, no bearing on his completion of the treatment program, and no relevance
to future criminality. Under the Lent factors, allowing such questions would clearly
violate overbreadth principles.
Because the language of subdivision (b)(3) mandates that participation in
polygraph examinations “shall be part of the sex offender management program,” we will
construe this latter condition as imposing the limitations required under Lent and Brown.
Specifically, we construe the requirement of participation in polygraph examinations as
32
allowing only questions relating to the successful completion of the sex offender
management program, the crime of which defendant was convicted, or related criminal
behavior. So construed, we uphold this probation condition as sufficiently narrow to
satisfy the overbreadth requirements of Lent.
D. Waiver of the Psychotherapist-Patient Privilege
Section 1203.067, subdivision (b)(4) requires any defendant granted probation
under the statute to enter a “Waiver of any psychotherapist-patient privilege to enable
communication between the sex offender management professional and supervising
probation officer, pursuant to Section 290.09.” Defendant contends this condition is
overbroad in violation of his constitutional right to privacy. We hold that the waiver is
constitutional provided it is narrowly construed to require waiver only insofar as
necessary “to enable communication between the sex offender management professional
and supervising probation officer, pursuant to Section 290.09.”
1. Forfeiture of the Claim
We first consider whether defendant has forfeited this claim by failing to object in
the court below. “Ordinarily, a criminal defendant who does not challenge an assertedly
erroneous ruling of the trial court in that court has forfeited his or her right to raise the
claim on appeal.” (In re Sheena K., supra, 40 Cal.4th at p. 880.) “Applying the rule to
appellate claims involving discretionary sentencing choices or unreasonable probation
conditions is appropriate, because characteristically the trial court is in a considerably
better position than the Court of Appeal to review and modify a sentence option or
probation condition that is premised upon the facts and circumstances of the individual
case.” (Id. at p. 885.) However, an appellate claim amounting to a “facial challenge”
that phrasing or language of a probation condition is unconstitutionally overbroad “does
not require scrutiny of individual facts and circumstances but instead requires the review
of abstract and generalized legal concepts—a task that is well suited to the role of an
appellate court.” (Ibid.) A challenge to the condition as unconstitutionally overbroad
33
thereby “presents an asserted error that is a pure question of law, easily remediable on
appeal by modification of the condition.” (Id. at p. 888.) Defendant’s claim here—a
purely facial challenge to the language of the condition as required under the statute—
constitutes such a claim. We conclude defendant has not forfeited his claim.
2. The Psychotherapist-Patient Privilege
The California Supreme Court has recognized that communications between a
patient and psychotherapist are protected by a psychotherapist-patient privilege based on
the federal constitutional right to privacy. “The psychotherapist-patient privilege has
been recognized as an aspect of the patient’s constitutional right to privacy.” (People v.
Stritzinger (1983) 34 Cal.3d 505, 511 (Stritzinger).) “We believe that a patient’s interest
in keeping such confidential revelations from public purview, in retaining this substantial
privacy, has deeper roots than the California statute and draws sustenance from our
constitutional heritage. In Griswold v. Connecticut [(1965)] 381 U.S. 479, 484, the
United States Supreme Court declared that ‘Various guarantees [of the Bill of Rights]
create zones of privacy,’ and we believe that the confidentiality of the psychotherapeutic
session falls within one such zone.” (In re Lifschutz (1970) 2 Cal.3d 415, 431-432
(Lifschutz).)
More recently, the California Supreme Court has questioned the continuing
vitality of the constitutional bases for the psychotherapist-patient privilege. “Although
over 40 years have elapsed since our decision in Lifschutz, the United States Supreme
Court itself has not yet definitively determined whether the federal Constitution embodies
even a general right of informational privacy.” (People v. Gonzales (2013)
56 Cal.4th 353, 384 (Gonzales).) Following the lead of the United States Supreme Court
in Whalen v. Roe (1977) 429 U.S. 589 and NASA v. Nelson (2011) ___ U.S. ___
[131 S.Ct. 746], our high court in Gonzales merely assumed, without deciding, that such
a right exists. (Gonzales, supra, 56 Cal.4th at p. 385.) Regardless of the analytic
approach taken by these courts, no court has yet overruled the holdings of Lifschutz and
34
Stritzinger. We remain bound by them. (Auto Equity Sales, Inc. v. Superior Court of
Santa Clara County (1962) 57 Cal.2d 450, 455.) Accordingly, we will proceed under the
assumption that defendant enjoys the right to a psychotherapist-patient privilege based on
his federal constitutional privacy rights.
“It is also well established, however, that the right to privacy is not absolute, but
may yield in the furtherance of compelling state interests.” (Stritzinger, supra, 34 Cal.3d
at p. 511.) In Stritzinger, the court began by considering the state’s “competing interest”
in creating an exception to the privilege. (Ibid.) The court reaffirmed the holding of
Lifschutz that any such exception must be narrowly construed, ibid., “concomitant with
the purposes of the exception.” (Lifschutz, supra, 2 Cal.3d at p. 435.) These principles
resemble the tailoring analysis in which a court considers whether a probation condition
imposing limitations on a person’s constitutional rights is closely tailored to the purpose
of the condition. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
In Gonzales, supra, 56 Cal.4th 353, the California Supreme Court recently
considered the psychotherapist-patient privilege in the context of a proceeding under the
Sexually Violent Predator Act (SVPA). The defendant, Ramiro Gonzales, had been
convicted of multiple sex offenses over a 20-year period. (Id. at p. 358.) Gonzales was
paroled in 2004 and he underwent psychological evaluation and treatment as a condition
of parole. (Id. at p. 359.) After violating his parole conditions several times—including
one incident in which he visited a children’s playground—Gonzales was arrested and
taken into custody. (Id. at pp. 359-360.) In 2006, the prosecution petitioned to commit
Gonzales under the SVPA, and the matter was set for a jury trial.
Before trial, the prosecution sought to subpoena psychological records arising out
of Gonzales’ psychological treatment as a parolee. (Gonzales, supra, 56 Cal.4th at
p. 361.) Gonzales moved to quash the subpoena on the basis the records were protected
under the psychotherapist-patient privilege, partly relying on Story v. Superior Court
(2003) 109 Cal.App.4th 1007 (Story) [psychotherapy records relating to therapy sessions
35
engaged in as a condition of probation were protected by the statutory psychotherapist-
patient privilege and could not be obtained by a prosecutor who sought the records for
use in a subsequent murder prosecution].) The California Supreme Court distinguished
between Gonzales’ statutory claim under Story and his claim under the federal
constitutional right to privacy. “[W]e believe that in order to properly distinguish the
federal constitutional issue from the state law issue, it is necessary, in determining
whether the disclosure of defendant’s therapy records and the admission of his therapist’s
testimony violated a federal constitutional right of privacy, to look to the specific nature
and extent of the federal constitutional privacy interests that are actually implicated in
this particular setting and to the permissible state law interests that would support the
disclosure and admission of testimony in question in such a setting.” (Gonzales, supra,
56 Cal.4th at p. 386.)
In this analysis, the court first noted that the constitutional privacy right invoked
by Gonzales arose under the conditions of parole, and under the care of a psychotherapist
funded by the state. (Gonzales, supra, 56 Cal.4th at p. 386.) The court then observed
that “the federal Constitution grants states considerable leeway to impose very substantial
limitations on the right of privacy retained by persons who are released on parole,” citing
Samson v. California (2006) 547 U.S. 843 (federal Constitution does not preclude a state
from authorizing a search of a parolee at any time or place even in the absence of
reasonable suspicion). Balanced against this “limited intrusion” of the privacy right at
issue, the court held “the state has a particularly strong and legitimate interest in
authorizing the disclosure and use of a parolee’s prior statements that occur in parole-
mandated therapy in a subsequent SVPA proceeding, especially when, as here, the
parole-mandated therapy was occasioned by the parolee’s prior conviction of a sex
offense.” (Gonzales, supra, 56 Cal.4th at pp. 387-388.) The court held disclosure was
therefore supported by “a legitimate and substantial state interest,” such that Gonzales’
36
federal constitutional right to the psychotherapist-patient privilege was not violated by
the release of his psychological records. (Id. at p. 388.)
3. Application to the Waiver Under Section 1203.067, Subdivision (b)(4)
Consistent with the above principles, we consider the purpose of the waiver of the
psychotherapist-patient privilege at issue here and the state’s interest in compelling
disclosure under it. Unlike the language of subdivision (b)(3), which mandates waiver of
any privilege against self-incrimination, the wording of subdivision (b)(4) explicitly sets
forth the purposes of the waiver of the psychotherapist-patient privilege: “to enable
communication between the sex offender management professional and supervising
probation officer, pursuant to Section 290.09.” Section 290.09, in turn, requires
communication between the sex offender management professional and the probation
officer for two purposes. First, the sex offender management professional must provide
the supervising probation officer with the probationer’s scores on the SARATSO risk
assessment tools. (§ 290.09, subd. (b)(2).) Second, the sex offender management
professional must communicate with the probation officer about the probationer’s
“progress in the program and dynamic risk assessment issues.” (§ 290.09, subd. (c).) By
these provisions, the purposes of the psychotherapist-patient privilege waiver are
expressly limited and comparatively well defined.
We find that the state’s interest in furthering such communication is legitimate and
substantial. The overriding goal of the Containment Model approach underlying the sex
offender management program is public safety and the reduction of recidivism. The
functioning of the model hinges in large part on open communication between the
probation officer and the psychotherapist. (Cal. Sex Offender Management Bd., Sex
Offender Treatment Program Certification Requirements, supra, at pp. 6-8.)
Furthermore, probationers, like the parolee in Gonzales, are inherently subject to a
greater degree of intrusion on their rights of privacy. (United States v. Knights, supra,
37
534 U.S. at p. 119.) Accordingly, we conclude the state has a sufficiently substantial
interest in communication between these participants to justify disclosure here.
We next consider whether the scope of the waiver is properly tailored to this
interest, or whether the waiver must be more narrowly construed concomitant with the
purposes of the exception. (Stritzinger, supra, 34 Cal.3d at p. 511; Lifschutz, supra,
2 Cal.3d at p. 435; In re Sheena K., supra, 40 Cal.4th at p. 890.) Similar to the broad
language used in the waiver of the privilege against self-incrimination, the language of
the statute, read literally, requires the waiver of “any psychotherapist-patient privilege,”
regardless of the subject matter of the communication or the level of risk to public safety
absent disclosure. The waiver does not distinguish between comparatively more
dangerous or less dangerous probationers. But unlike the language of the waiver of the
privilege against self-incrimination, this broad language is followed by the phrase “to
enable communication between the sex offender management professional and
supervising probation officer, pursuant to Section 290.09.” This additional language
limits what may be done with the probationer’s communications once they are revealed.
We will therefore narrowly construe the statute as requiring a waiver of the
psychotherapist-patient privilege only insofar as it is necessary “to enable communication
between the sex offender management professional and supervising probation
officer . . . .” (§ 1203.067, subd. (b)(4).) Specifically, we hold that defendant may
constitutionally be required to waive the psychotherapist-patient privilege only to the
extent necessary to allow the sex offender management professional to communicate with
the supervising probation officer. Furthermore, the supervising probation officer may
communicate defendant’s scores on the SARATSO risk assessment tools to the
Department of Justice to be made accessible to law enforcement as required under section
290.09, subdivision (b)(2). This narrow interpretation of the statute allows the
psychotherapist to communicate with the probation officer as necessary, furthering the
purposes of the exception as set forth in the statute. Apart from these exceptions, neither
38
the psychotherapist nor the probation officer may relay protected communications to
some other third party under the waiver, and defendant’s privacy rights based on the
psychotherapist-patient privilege otherwise remain intact.
The parties invite us to create various limitations on the subject matter of the
communications that should come under the waiver. The Attorney General argues we
should limit the waiver to communications “related to the furtherance of the defendant’s
successful completion of the sex offender management program, his/her current
probation supervision period, his/her sexual history, and state-mandated assessments of
his/her risk of reoffending.” Defendant argues we should limit the waiver to “subjects
necessary for rehabilitation.” We decline to impose such limits because it is unclear
exactly what statements would be waived under such standards, rendering the probation
condition too vague for notice purposes. (Connally v. General Construction Co., supra,
269 U.S. 385, 391 [a statute that either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application, violates due process of law].) Arguably, the type of mandated
communication as set forth in section 290.09—e.g., communication about probationer’s
“progress in the program and dynamic risk assessment issues”—implies such limits on
the subject matter of communications that may come under the waiver. But absent a
specific assertion about a given statement made by the probationer under specific factual
circumstances, it would be premature and speculative for this court to impose further
limits.
Defendant relies on Story, supra, 109 Cal.App.4th 1007, In re Pedro M. (2000)
81 Cal.App.4th 550 (disapproved in Gonzales, supra, 56 Cal.4th 353), and In re Corona
(2008) 160 Cal.App.4th 315. Those cases concerned a defendant’s statutory right to a
psychotherapist-patient privilege under Evidence Code sections 1012 and 1014.
Consistent with the California Supreme Court’s analysis in Gonzales, supra, 56 Cal.4th at
39
page 386, we find defendant’s reliance on these cases unavailing with respect to his
federal constitutional claim.24
E. Scienter Requirements
Defendant contends three of the probation conditions are unconstitutionally vague
absent a scienter requirement. As to the condition that he not purchase or possess any
pornographic or sexually explicit material as it relates to minors, he argues it is
unconstitutionally vague because he could unknowingly be in possession of such
material. Similarly, as to the condition that he not possess or use any data encryption
technique program, he contends it is invalid because he could unknowingly use or be in
possession of such a program. As to the condition that he not frequent, be employed by,
or engage in any business where pornographic materials are openly exhibited, he
contends it requires a knowledge element because he may unwittingly enter an
establishment without knowing pornographic materials are exhibited there. Defendant
also challenges the use of the term “frequent” in this last condition as being
unconstitutionally vague.
Defendant only objected to the first of these three probation conditions in the trial
court. Nonetheless, we will consider the merits of his claims as to all three conditions.
These claims are facial challenges concerning pure issues of law, and as such, they are
not forfeited by the failure to object below. (In re Sheena K., supra, 40 Cal.4th at
p. 889.)
Regarding the first condition, defendant argues that he may unknowingly come
into possession of pornographic or sexually explicit material as it relates to minors. To
be constitutionally adequate, he argues, the probation condition must be modified to
24
We understand defendant’s claim regarding the psychotherapist-patient
privilege as relying solely on federal constitutional grounds. Although he cites to cases
concerning the statutory basis for the privilege, he does not cite to or rely on relevant
statutory authority for the psychotherapist-patient privilege in his briefs.
40
prohibit only knowing possession or purchase of pornography or sexually explicit
material as it relates to minors. We agree.
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “A probation condition ‘must
be sufficiently precise for the probationer to know what is required of him, and for the
court to determine whether the condition has been violated,’ if it is to withstand a
challenge on the ground of vagueness.” (Ibid.) That is, the defendant must know in
advance when he may be in violation of the condition. “[T]he law has no legitimate
interest in punishing an innocent citizen who has no knowledge of the presence of a
[prohibited item].” (People v. Freitas (2009) 179 Cal.App.4th 747, 752 [modifying
probation condition to prohibit knowing possession of a firearm or ammunition].)
Accordingly, courts have consistently ordered modification of probation conditions to
incorporate a scienter requirement where a probationer could unknowingly engage in the
prohibited activity. (In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modifying
probation condition to prohibit knowing presence of weapons or ammunition]; In re
Justin S. (2001) 93 Cal.App.4th 811, 816 [modifying prohibition on association with
gang members to prohibit association with known gang members]; In re Kacy S. (1998)
68 Cal.App.4th 704, 713 [modifying probation condition that defendant not associate
with any persons not approved by his probation officer]; People v. Lopez (1998)
66 Cal.App.4th 615, 629 [modifying probation on displaying gang-related indicia].)
It is possible that defendant could come into possession of prohibited material
without knowing it. For example, another person could leave pornographic or sexually
explicit material relating to minors in defendant’s car or house without his knowledge.
Or he could pick up a book or a magazine without knowing it contains prohibited
material. To enforce a probation violation for unknowing possession of the prohibited
materials would violate the principles above. Therefore, we will modify this probation
41
condition to prohibit knowing possession or purchase of pornographic or sexually explicit
material as it relates to minors.
Similarly, it is possible defendant could unknowingly use or possess a data
encryption technique program. Indeed, given that data encryption is ubiquitous in
modern computer technology, it is likely that he would. Accordingly, we will modify
this probation condition to prohibit knowing use or possession of a data encryption
technique program.
Finally, we consider the condition that defendant not frequent, be employed by, or
engage in any business where pornographic materials are openly exhibited. Defendant
argues the condition should be modified to prohibit “visit[ing] or remain[ing] in any
business where you know or which your probation officer informs you is a place where
pornographic materials are openly exhibited.” We agree with defendant that the term
“frequent” is unconstitutionally vague, as this court has previously held. (People v. Leon
(2010) 181 Cal.App.4th 943, 952 (Leon) [term “frequent” is unconstitutionally vague]; In
re H.C. (2009) 175 Cal.App.4th 1067, 1072 [term “frequent” is obscure and susceptible
to multiple meanings].) Consistent with this court’s modification of the term in Leon, we
substitute the phrase “visit or remain in” for the term “frequent.” Furthermore, because
defendant could unknowingly visit a business where prohibited materials are openly
exhibited, we will incorporate a scienter requirement into the condition.
III. DISPOSITION
In light of our holding that the waiver requirement in Penal Code section
1203.067, subdivision (b)(3) is unconstitutional, we strike the language “waive any
privilege against self-incrimination and” from the probation condition implementing that
subdivision. Defendant’s probation conditions are further modified as follows: (1) the
condition prohibiting possession or purchase of pornographic or sexually explicit material
as it relates to minors is modified to prohibit knowing possession or purchase of
pornographic or sexually explicit material as it relates to minors; (2) the condition
42
prohibiting use or possession of a data encryption technique program is modified to
prohibit knowing use or possession of a data encryption technique program; and (3) the
condition that defendant not frequent, be employed by, or engage in any business where
pornographic materials are openly exhibited is modified to prohibit visiting, remaining in,
being employed by, or engaging in any business where defendant knows that
pornographic materials are openly exhibited. As modified, the judgment is affirmed.
_________________________
MÁRQUEZ, J.
I CONCUR:
_________________________
GROVER, J.
43
BAMATTRE-MANOUKIAN, J., Concurring and Dissenting
I. INTRODUCTION
Defendant Jeffrey David Allen Friday pleaded no contest to possession of matter
depicting a person under 18 years of age personally engaging in or simulating sexual
conduct. (Pen. Code, § 311.11, subd. (a).)1
At the sentencing hearing held on February 25, 2013, defendant was placed on
probation for three years, ordered to serve six months in jail, and required to register as a
sex offender. (See § 290, subd. (c).) The trial court also imposed a number of probation
conditions as required by section 1203.067, subdivision (b). Defendant was ordered to
successfully “complete an approved sex offender management program, following the
standards developed pursuant to Section 9003.” (See § 1203.067, subd. (b)(2).)
Defendant was required to “waive any privilege against self-incrimination and participate
in polygraph examinations, which shall be part of the sex offender management
program.” (See § 1203.067, subd. (b)(3).) Defendant was required to “waive any
psychotherapist-patient privilege to enable communication between the sex offender
management professional and the Probation Officer, pursuant to . . . Section 290.09.”
(See § 1203.067, subd. (b)(4).)
Defendant now challenges the probation conditions imposed pursuant to
section 1203.067, subdivisions (b)(3) and (b)(4). He contends both probation conditions
are overbroad, and he contends the probation condition requiring him to waive the
privilege against self-incrimination conflicts with the Fifth Amendment to the United
States Constitution.2
1
Unspecified section references are to the Penal Code.
2
The Fifth Amendment provides that no person “shall be compelled in any
criminal case to be a witness against himself.” (See also Cal. Const., art. I, § 15
[“Persons may not . . . be compelled in a criminal cause to be a witness against
themselves . . . .”].)
I agree with the majority that the probation condition imposed pursuant to
section 1203.067, subdivision (b)(4), which requires a waiver of the psychotherapist-
patient privilege, is not overbroad and does not require modification.
I also agree with the majority that the section 1203.067, subdivision (b)(3)
probation condition is not overbroad insofar as it requires defendant to “participate in
polygraph examinations” as part of the sex offender management program. However, I
respectfully disagree with the majority’s conclusion that the language “waive any
privilege against self-incrimination” must be stricken from the probation condition
required by section 1203.067, subdivision (b)(3). As explained below, I respectfully
disagree with the majority that the probation condition, as written, violates the Fifth
Amendment and is overbroad.
The trial court also imposed other conditions of probation that defendant
challenges as overbroad. Specifically, defendant challenges the probation conditions
requiring him not to (1) “purchase or possess any pornographic or sexually explicit
material as defined by [the] probation officer as it relates to minors,” (2) “frequent, be
employed by, or engage in any business where pornographic materials are open[ly]
exhibited,” and (3) “possess or use any data encryption technique program.” The
majority opinion holds that these three conditions must be modified to include a
knowledge element, and that the second condition must be modified to replace the word
“frequent” with the phrase “visit or remain in.” I concur in that portion of the majority
opinion.
II. DISCUSSION
A. Statutory Background
In the Sex Offender Punishment, Control, and Containment Act of 2006
(§ 290.03), the “Legislature [found] and declare[d] that a comprehensive system of risk
assessment, supervision, monitoring and containment for registered sex offenders
2
residing in California communities is necessary to enhance public safety and reduce the
risk of recidivism posed by [sex] offenders.” (§ 290.03, subd. (a).)
In 2010, the Legislature amended section 1203.067, subdivision (b) as part of a
bill aimed at expanding the “Containment Model” approach to sex offender risk
management. (Stats. 2010, ch. 219, § 17, eff. Sept. 9, 2010; see Sen. Com. on Public
Safety, Bill Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) June 29, 2010.)
“The Containment Model calls for a collaborative effort of sex offender specific
treatment providers, law enforcement supervising agents such as probation officers or
parole agents, polygraphists providing specialized testing as both a treatment and
monitoring tool and victim advocacy participants whenever possible. The offender is
supervised and overseen within this context.” (Sen. Com. on Public Safety, Bill Analysis
of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) June 29, 2010.)
As amended, section 1203.067, subdivision (b) requires that sex offenders
participate in a sex offender management program as a condition of probation. The
statute requires that such probationers waive “any privilege against self-incrimination and
participat[e] in polygraph examinations, which shall be part of the sex offender
management program.” (§ 1203.067, subd. (b)(3).) Additionally, such probationers must
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).) The new requirements apply to persons
placed on probation for certain sex offenses “[o]n or after July 1, 2012.” (§ 1203.067,
subd. (b).) The legislative history of these “specified conditions of supervised probation”
notes that “[v]arious studies on the effectiveness of containment models in other states
ha[d] shown positive results in recidivism reduction.” (Sen. Appropriations Com., Bill
Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) Aug. 12, 2010.)
3
B. Section 1203.067, Subdivision (b)(3) Probation Condition
As a condition of probation, defendant was required to “waive any privilege
against self-incrimination and participate in polygraph examinations, which shall be part
of the sex offender management program.” (See § 1203.067, subd. (b)(3).)
Defendant argues that this probation condition conflicts with the Fifth Amendment
and is overbroad, because it prohibits him from invoking the privilege against self-
incrimination. In his briefing, defendant contended that the condition should be modified
to specify that he is “required to cooperate with the sex offender management program to
the extent it does not interfere with his Fifth Amendment privilege against self-
incrimination.” At oral argument, defendant argued that the language “waive any
privilege against self-incrimination” should be stricken from the probation condition.
Defendant also argues this condition is overbroad because it “does not limit the
scope of the questions being asked as part of the polygraph examination to those related
to the successful completion of the therapy or compliance with the conditions of
probation . . . .”
The majority agrees with defendant that the probation condition required by
section 1203.067, subdivision (b)(3) “is prohibited by the Fifth Amendment” insofar as it
requires him to waive “any privilege against self-incrimination,” but concludes that the
probation condition is not overbroad with respect to the polygraph testing requirement.
(Maj. opn. at pp. 1, 9.) The majority orders the language “waive any privilege against
self-incrimination” stricken from the probation condition. (Maj. opn. at p. 42.)
For the reasons discussed below, I do not believe that the language “waive any
privilege against self-incrimination” should be stricken from the probation condition
required by section 1203.067, subdivision (b)(3) or that the probation condition should be
modified in any other respect.
4
1. Scope of the Waiver of the Privilege Against Self-Incrimination
Both parties in this case appear to believe the waiver of the privilege against self-
incrimination required by section 1203.067, subdivision (b)(3) applies only during
polygraph examinations administered as part of the sex offender management program.
Defendant construes the condition as requiring him “to answer all questions put to him in
the course of a polygraph examination which he may not refuse.”
The majority believes that the section 1203.067, subdivision (b)(3) probation
condition requires defendant to answer questions about any topic, at any time, not just
questions asked during polygraph examinations or during other aspects of the sex
offender management program. (See maj. opn. at p. 20.) I understand the majority
opinion to find that, even if the condition applies only during the course of the sex
offender management program, defendant still could be asked—and required to answer—
questions that do not relate to the program.
In interpreting the scope of the probation condition mandated by section 1203.067,
subdivision (b)(3), we must apply settled rules of statutory construction. “ ‘ “The goal of
statutory construction is to ascertain and effectuate the intent of the Legislature.
[Citation.] Ordinarily, the words of the statute provide the most reliable indication of
legislative intent. [Citation.] When the statutory language is ambiguous, the court may
examine the context in which the language appears, adopting the construction that best
harmonizes the statute internally and with related statutes. [Citations.]” [Citation.]
“ ‘When the language is susceptible of more than one reasonable interpretation . . . , we
look to a variety of extrinsic aids, including the ostensible objects to be achieved, the
evils to be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a part.’ ”
[Citation.]’ [Citations.]” (People v. Kennedy (2011) 194 Cal.App.4th 1484, 1490-1491
(Kennedy).) Further, we must construe a statute in a manner that ensures its
5
constitutionality, if possible. (See People v. Lowery (2011) 52 Cal.4th 419, 427
(Lowery).)
Here, the plain language of the statute indicates that the waiver of the privilege
against self-incrimination applies only to statements made in response to questions asked
as “part of the sex offender management program.” (§ 1203.067, subdivision (b)(3).)
The compound subject “[w]aiver of any privilege against self-incrimination and
participation in polygraph examinations” is modified by the phrase “which shall be part
of the sex offender management program.” (Ibid.) I believe that a waiver of the privilege
against self-incrimination is thus required only as “part of the sex offender management
program.” (Ibid.)
In light of the overall statutory scheme and the legislative history of
section 1203.067, to the extent there is any ambiguity in the language of the statute, I
would conclude that the Legislature intended to require that probationers waive the
privilege against self-incrimination only in the context of the sex offender management
program. Section 1203.067, subdivision (b) applies to probationers who are also required
to register as sex offenders under section 290, and the Legislature has previously
recognized that those persons are “ ‘ “ ‘likely to commit similar offenses in the future.
[Citation.]’ ” ’ ” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196.) Thus, in enacting
section 1203.067, subdivision (b), the Legislature recognized that it is appropriate to
grant probation to a sex offender only if the risks can be managed, and that participation
in a sex offender management program will help manage those risks. Since the
Legislature’s intent was to manage the risk of recidivism posed by sex offenders by
compelling their participation in a sex offender management program, there is no basis
for construing the statute as mandating a “[w]aiver of any privilege against self-
incrimination and participation in polygraph examinations” (§ 1203.067,
subdivision (b)(3)) as to questions asked for any purpose other than as “part of the sex
offender management program.”
6
I respectfully disagree with the majority’s determination that “[b]y use of the word
‘any’ to modify the term ‘privilege,’ the statute precludes all attempts by a probationer,
present and future, to seek protection under the Self-Incrimination Clause for compelled
statements made during the sex offender management program, regardless of the
circumstances in which they may arise.” (Maj. opn. at p. 20.) I believe that by using the
term “any” to modify the phrase “privilege against self-incrimination” (§ 1203.067, subd.
(b)(3)), the Legislature simply intended to specify that a probationer could not claim the
privilege against self-incrimination under any source, such as the Fifth Amendment or
the state constitution. (See Cal. Const., art. I, § 15; Evid. Code, § 940.) To the extent the
meaning of the term “any” is ambiguous, this construction of the statute effectuates the
Legislature’s intent to require that probationers waive the privilege against self-
incrimination only in the context of the sex offender management program (see Kennedy,
supra, 194 Cal.App.4th at pp. 1490-1491) and ensures the statute’s constitutionality.
(See Lowery, supra, 52 Cal.4th at p. 427.)
In sum, I would interpret the probation condition required by section 1203.067,
subdivision (b)(3) as requiring a probationer to waive the privilege against self-
incrimination only as to questions asked as “part of the sex offender management
program.” That is, a probationer may not assert the privilege against self-incrimination
as grounds for refusing to answer questions during polygraph examinations that are
administered as part of the sex offender management program, nor during any other part
of the sex offender management program, such as treatment and risk assessments. (See
§ 9003, subd. (b).)
7
2. Fifth Amendment Analysis3
The majority relies primarily on Minnesota v. Murphy (1984) 465 U.S. 420
(Murphy) to find that the section 1203.067, subdivision (b)(3) probation condition
violates the Fifth Amendment and is overbroad.
In Murphy, the defendant was subject to a probation condition requiring that he
participate in a treatment program for sexual offenders, report to his probation officer as
directed, and be truthful with the probation officer “ ‘in all matters.’ ” (Murphy, supra,
465 U.S. at p. 422.) In his treatment program, the defendant admitted a prior rape and
murder. (Id. at p. 423.) Those admissions were communicated to the probation officer,
who questioned the defendant. The defendant admitted the crimes to the probation
officer, but the defendant then sought to suppress those admissions on the ground that his
statements had been compelled by the probation condition. (Id. at pp. 424-425.)
The United States Supreme Court emphasized that in general, the Fifth
Amendment is not self-executing: “a witness . . . ordinarily must assert the privilege
rather than answer if he desires not to incriminate himself.” (Murphy, supra, 465 U.S. at
p. 429.) The probation condition in Murphy only required the defendant to be truthful,
and thus the defendant still could have claimed the privilege against self-incrimination.
(Id. at pp. 436-437.) The Murphy court considered whether there were any applicable
exceptions to the general rule that the Fifth Amendment is not self-executing. (Id. at
p. 429.) In particular, the court considered whether to excuse the defendant’s failure to
3
The Attorney General contends that defendant’s Fifth Amendment challenge to
the probation condition is not ripe for review, since “there is no evidence that [defendant]
has been asked any polygraph questions that call for answers that would or could
incriminate him in a pending or future criminal prosecution.” However, defendant is
bringing a facial challenge, which does not require him to show that the condition has yet
been enforced. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [“A facial
challenge to the constitutional validity of a statute or ordinance considers only the text of
the measure itself, not its application to the particular circumstances of an individual.”].)
8
assert the privilege against self-incrimination on the basis of the “so-called ‘penalty’ ”
exception. (Id. at p. 434.)
The penalty exception had been applied in cases where “the State not only
compelled an individual to appear and testify, but also sought to induce him to forego the
Fifth Amendment privilege by threatening to impose economic or other sanctions
‘capable of forcing the self-incrimination which the Amendment forbids.’ [Citation.]”
(Murphy, supra, 465 U.S. at p. 434.) In Murphy, there was no evidence that the
defendant would have been penalized for exercising his Fifth Amendment privilege. (Id.
at pp. 437-438.) The probation condition itself “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.” (Id. at p. 437.)
Further, there was “no direct evidence that Murphy confessed because he feared that his
probation would be revoked if he remained silent.” (Ibid.)
The Murphy court explained how the penalty exception could apply to a
probationer: “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, supra, 465 U.S. at p. 435, fn. omitted.) However, the court
noted, “a State may validly insist on answers to even incriminating questions and hence
sensibly administer its probation system, as long as it recognizes that the required
answers may not be used in a criminal proceeding and thus eliminates the threat of
incrimination.” (Ibid., fn. 7.)
As applied to this case, Murphy establishes that defendant’s Fifth Amendment
rights are not violated by the probation condition requiring him to waive the privilege
against self-incrimination as to questions asked during the sex offender management
9
program. The state has, “by implication, assert[ed] that invocation of the privilege” in
response to such incriminating questions “would lead to revocation” of probation. (See
Murphy, supra, 465 U.S. at p. 435.) Thus, if defendant makes any statements in response
to questions posed to him during the sex offender management program, those statements
will be deemed compelled under the Fifth Amendment and thus involuntary and
inadmissible in a criminal prosecution. (Ibid.) Since such statements will necessarily fall
within the penalty exception, they will not be available for use at a criminal prosecution,
and defendant’s Fifth Amendment rights have not been violated. (See Chavez v.
Martinez (2003) 538 U.S. 760, 769 [plur. opn. of Thomas, J.] [the Fifth Amendment is
not violated “absent use of the compelled statements in a criminal case against the
witness”]; id. at p. 777 [conc. opn. of Souter, J.].)
In sum, because the penalty exception will necessarily apply to statements that
defendant makes in response to questions asked as part of the sex offender management
program under compulsion of the section 1203.067, subdivision (b)(3) probation
condition, the condition itself does not violate the Fifth Amendment.
3. Overbreadth Analysis
“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. [Citation.]” (In re Sheena K. (2007) 40
Cal.4th 875, 890 (Sheena K.).) “ ‘A statute or regulation is overbroad if it “does not aim
specifically at evils within the allowable area of [governmental] control, but . . . sweeps
within its ambit other activities that in the ordinary circumstances constitute an exercise”
of protected expression and conduct.’ [Citations.]” (People v. Leon (2010) 181
Cal.App.4th 943, 951.) “The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the burden it
imposes on the defendant’s constitutional rights—bearing in mind, of course, that
10
perfection in such matters is impossible, and that practical necessity will justify some
infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
As noted above, in enacting section 1203.067, subdivision (b), the Legislature
recognized that it is appropriate to grant probation to a sex offender only if the risks can
be managed, and that participation in a sex offender management program will help
manage those risks. More specifically, by enacting section 1203.067, subdivision (b)(3),
the Legislature recognized that a waiver of the probationer’s privilege against self-
incrimination is important to the success of the sex offender management program. The
Legislature reasonably concluded that allowing sex offenders on probation to refuse to
answer questions would create an unacceptable danger to the community. (See § 290.03,
subd. (a)(1) [“Sex offenders pose a potentially high risk of committing further sex
offenses after release from incarceration or commitment, and the protection of the public
from reoffending by these offenders is a paramount public interest.”].) If a sex offender
could claim the privilege against self-incrimination during a risk exam, and thereby hide
past or new offenses from the treatment team, his or her risk of reoffense could not be
correctly calculated or managed. (See, e.g., People v. Hubbart (2001) 88 Cal.App.4th
1202, 1214 [actuarial instrument calculated risk of sexual reoffense based on factors
including the number of prior sex offenses, convictions for non-sex offenses, and details
about sex offenses].) By requiring every sex offender granted probation to make full
disclosures and to give up any right to refuse to answer questions posed during polygraph
examinations or treatment as part of the sex offender management program, the State
greatly enhances its ability to manage the serious risks posed by sex offenders who
remain free in the community.
In sum, in light of the legislative intent underlying section 1203.067,
subdivision (b)(3), I conclude that any limitations on defendant’s Fifth Amendment rights
are “closely tailor[ed] . . . to the purpose of the condition” and thus are not “invalid[] as
unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) The
11
Legislature reasonably determined that a waiver of the privilege against self-
incrimination is necessary when a defendant is participating in the sex offender
management program as part of his or her probation for a sex offense. The Legislature
enacted section 1203.067, subdivision (b)(3) for the purpose of managing and treating sex
offenders and protecting the community, not for the purpose of compelling statements to
be used in criminal prosecutions. Since the condition only requires waiver of the
privilege against self-incrimination as part of the sex offender management program, it is
not overbroad.
4. Scope of Polygraph Testing
Defendant also challenges the probation condition imposed pursuant to
section 1203.067, subdivision (b)(3) insofar as it requires him to “participate in polygraph
examinations, which shall be part of the sex offender management program.” Defendant
argues the condition is overbroad and requests we modify the condition so he is required
“to answer only questions reasonably related to the completion of his probation or his
criminal conviction.”
Defendant relies on Brown v. Superior Court (2002) 101 Cal.App.4th 313
(Brown), where the defendant was convicted of stalking while a domestic violence
restraining order was in effect. The trial court had imposed probation conditions
requiring the defendant to participate in a stalking therapy program and undergo
“ ‘periodic polygraph examinations at defendant’s expense, at the direction of the
probation officer.’ ” (Id. at p. 321.) The Court of Appeal held that the polygraph
condition was overbroad, ordering it modified so that the questions asked would be
limited to “those relating to the successful completion of the stalking therapy program
and the crime of which Brown was convicted.” (Ibid.)
Here, the probation condition requires defendant to “participate in polygraph
examinations, which shall be part of the sex offender management program.” (See
§ 1203.067, subd. (b)(3).) The probation condition does not expressly limit the questions
12
that may be asked during polygraph examinations to those related to the successful
completion of the program or defendant’s criminal conviction. However, such a
limitation is inherent in the phrase “which shall be part of the sex offender management
program.” (Ibid.) In other words, the probation condition requires polygraph
examinations to be used only in furtherance of a probationer’s treatment, and thus
requires that the questions asked be relevant to that treatment.
The majority “construe[s] the requirement of participation in polygraph
examinations as allowing only questions relating to the successful completion of the sex
offender management program, the crime of which defendant was convicted, or related
criminal behavior.” (Maj. opn. at p. 28.) I similarly conclude that the probation
condition need not be modified to expressly state that the questions asked during
polygraph examinations must be reasonably related to the completion of defendant’s
treatment program or his conviction, because such limitations are inherent in the
condition.
5. Conclusion
In sum, I do not believe the probation condition imposed pursuant to
section 1203.067, subdivision (b)(3) is overbroad or that the probation condition violates
the Fifth Amendment. I would not strike any language from this probation condition or
otherwise modify the condition.
C. Section 1203.067, Subdivision (b)(4) Probation Condition
Defendant also challenges the probation condition imposed pursuant to
section 1203.067, subdivision (b)(4), which requires 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.”
Defendant contends this probation condition is overbroad and violates his constitutional
right to privacy, because it requires him to “entirely waive the psychotherapist-patient
privilege.” He contends the condition should be stricken or modified. He suggests the
13
condition could be modified to “limit the waiver to subjects necessary for rehabilitation”
and to “limit disclosure of otherwise privileged psychotherapist-patient communications
to the probation officer and the court.”
Section 290.09 mandates certain communication between the probation officer and
the certified “sex offender management professionals” who are required to “assess each
registered sex offender on formal probation.” (§ 290.09, subd. (b)(1).) First, the certified
sex offender management professional is required to provide the probation officer with
the probationer’s scores on required risk assessment tools, and the probation officer is
required to send the scores to the Department of Justice. (Id., subd. (b)(2).) Second, the
certified sex offender management professional is required to communicate with the
probation officer “on a regular basis, but at least once a month, about the offender’s
progress in the program and dynamic risk assessment issues.” (Id., subd. (c).)
Section 1203.067, subdivision (b)(4) mandates that defendant waive the
psychotherapist-patient privilege only “to enable communication between the sex
offender management professional and supervising probation officer, pursuant to
Section 290.09.” Since section 290.09 is explicitly incorporated by reference, and since
section 290.09 limits the subject matter of the communication between the sex offender
management professional and the probation officer, I do not believe the condition
requires defendant to waive the psychotherapist-patient privilege as to any other subjects.
My construction comports with the plain language of the statute, and it also harmonizes
the statute with section 290.09. (See Kennedy, supra, 194 Cal.App.4th at p. 1490.)
The majority concludes there is no need to modify the probation condition
imposed pursuant to section 1203.067, subdivision (b)(4) because it construes the statute
“as requiring a waiver of the psychotherapist-patient privilege only insofar as it is
necessary ‘to enable communication between the sex offender management professional
and supervising probation officer . . . .’ ” (Maj. opn. at p. 38.) I agree there is no need to
modify the probation condition imposed pursuant to section 1203.067, subdivision (b)(4).
14
III. CONCLUSION
For the reasons stated above, I conclude that the probation condition imposed
pursuant to section 1203.067, subdivision (b)(3) does not violate the Fifth Amendment
and is not overbroad. I further conclude that the probation condition imposed pursuant to
section 1203.067, subdivision (b)(4) is not overbroad. Therefore, I would affirm the
judgment.
___________________________________________
BAMATTRE-MANOUKIAN, J.
15
Trial Court: Santa Clara County
Superior Court No.: C1240683
Trial Judge: The Honorable Rene Navarro
Attorney for Defendant and Appellant Lori A. Quick
Jeffrey David Allen Friday: under appointment by the Court of
Appeal for Appellant
Attorneys for Plaintiff and Respondent Kamala D. Harris,
The People: Attorney General
Dane R. Gillette,
Chief Assistant Attorney General
Gerald A. Engler,
Senior Assistant Attorney General
Jeffrey M. Laurence,
Supervising Deputy Attorney General
Violet M. Lee,
Deputy Attorney General
People v. Friday
H039404