People v. Delgado CA6

Filed 4/21/15 P. v. Delgado CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041059

(Santa Clara County

Plaintiff and Respondent, Super. Ct. No. C1370392)

v.

SALVADOR TERONES DELGADO,

Defendant and Appellant.

I. INTRODUCTION

Defendant Salvador Terones Delgado was placed on formal probation for three

years after he pleaded no contest to indecent exposure with a prior conviction (Pen. Code,

§ 314, subd. 1; count 1)1 and misdemeanor failure to register as a sex offender (§

290.015, subd. (a); count 2). Count 1 involved defendant masturbating in a laundromat in

the presence of an employee. The trial court imposed numerous probation conditions,

including sex offender treatment conditions mandated by section 1203.067. As required

by subdivision (b)(2), the court ordered defendant to “enter, participate and complete an

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approved sex offender management program” and, as required by subdivision (b)(3) that

1

All statutory references are to the Penal Code. All undesignated subdivision

references are to section 1203.067.

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Subdivision (b)(3) requires a “[w]aiver of any privilege against self-

incrimination and participation in polygraph examinations, which shall be part of the sex

offender management program.” Subdivision (b)(3) is ambiguous in that the phrase

“[w]aiver of any privilege against self-incrimination” can be read narrowly as applying

only to “polygraph examinations” or more broadly to apply to “the sex offender

(Continued)

he “waive any privilege against self-incrimination and participate in polygraph

examinations, which shall be part of the sex offender management program.”3

On appeal, defendant challenges the requirement that he waive any privilege

against self-incrimination as violating the Fifth Amendment of the United States

Constitution.4 As we will explain, we conclude that the Fifth Amendment waiver

required by subdivision (b)(3) is invalid on its face, and we will order it stricken from

defendant’s probation conditions.

II. DISCUSSION

A. THE FIFTH AMENDMENT

The Fifth Amendment privilege against compulsory self-incrimination “can be

asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or

adjudicatory; and it protects against any disclosures that the witness reasonably believes

could be used in a criminal prosecution or could lead to other evidence that might be so

used.” (Kastigar v. United States (1972) 406 U.S. 441, 444-445.) The privilege extends

to answering questions posed by probation officers (Minnesota v. Murphy (1984) 465

U.S. 420, 426 (Murphy)) and polygraph examiners (People v. Miller (1989) 208

Cal.App.3d 1311, 1315; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321). It is

undisputed that, absent the subdivision (b)(3) waiver, defendant could assert his Fifth

management program.” While defendant focuses on the waiver in the context of the

polygraph examination, we find the required waiver unconstitutional under either

construction.

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We grant defendant’s request for judicial notice of the California Sex Offender

Management Board’s Post-Conviction Sex Offender Polygraph Certification Standards,

dated June 2011. (See http://www.casomb.org/docs/certification_standards/

polygraph_standards.pdf.)

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This issue is currently pending before the California Supreme Court. (People v.

Friday (2014) 225 Cal.App.4th 8, review granted July 16, 2014, S218288; People v.

Garcia (2014) 224 Cal.App.4th 1283, review granted July 16, 2014, S218197; People v.

Klatt (2014) 225 Cal.App.4th 906, review granted July 16, 2014, S218755.)

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Amendment privilege and elect not to provide incriminating information as part of the

sex offender management program.

Because the Fifth Amendment speaks of compulsion, the privilege is not self-

executing and as a general rule a person must invoke it by refusing to answer

incriminating questions. If it is not invoked, any incriminating answers will be deemed

voluntary and not protected by the privilege. (Murphy, supra, 465 U.S. at p. 427.) But

an exception exists “where the assertion of the privilege is penalized so as to ‘[foreclose]

a free choice to remain silent, and … [compel] … incriminating testimony.’ [Citation].”

(Id. at p. 434.) In such a situation, the privilege need not be asserted because the

incriminating disclosure is deemed compelled by the threat of penalty. (Ibid.) Under this

penalty exception, an incriminating statement is deemed compelled and cannot be used

against the person in a criminal proceeding. (Ibid.) Conversely, if a penalty is imposed

for exercising the right to remain silent, courts have struck the penalty as violating the

Fifth Amendment. For example, in Lefkowitz v. Turley (1973) 414 U.S. 70, after refusing

to testify before a grand jury, two contractors were disqualified under state law from

entering into contracts with public authorities for five years. The Supreme Court found

the law violated the Fifth Amendment because it attached a penalty to an individual’s

assertion of the right to remain silent. (Id. at p. 83.)

B. THE PROBATION CONDITION AND WAIVER

Section 1203.067, subdivision (b)(3) requires defendant, as a condition of

probation, to waive his privilege against self-incrimination. Defendant argues that this

statutory waiver, incorporated into his probation conditions, is facially unconstitutional

because it creates an “impermissible penalty situation” described in Murphy.

In Murphy, the Supreme Court addressed whether a probationer’s incriminating

statements to his probation officer were made under threat of penalty, thereby requiring

their suppression at a criminal trial. The defendant in Murphy admitted to his probation

officer that he committed a rape and murder several years before the offense for which he

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was on probation, and that admission resulted in first degree murder charges. (Murphy,

supra, 465 U.S. at p. 425.) At trial, Murphy challenged the admissibility of the

incriminating statement made to his probation officer. Invoking the penalty exception,

Murphy argued unsuccessfully that a probation condition requiring that he be truthful

with his probation officer in all matters coerced him to admit the rape and murder. (Id. at

pp. 434-439.) Although the court concluded that Murphy’s statements were not

compelled and were therefore voluntary and admissible in his criminal trial, the

application of Murphy’s reasoning to the probation condition at issue here demands a

different result.

Murphy formulated a test to determine whether the condition requiring the

probationer to be truthful constituted a “threat of punishment for reliance on the

privilege.” (Murphy, supra, 465 U.S. at p. 435.) Murphy recognized that the state “may

require a probationer to appear and discuss matters that affect his probationary status[,]”

and that such a requirement, without more, is no different than the state compelling an

individual to appear and testify. Both witness and probationer are required to answer

unless questions call for incriminating answers. (Ibid.) Murphy went on to determine

that revocation of probation qualifies as a penalty: “[I]f the state, either expressly or by

implication, asserts that invocation of the privilege would lead to revocation of probation,

it would have created the classic penalty situation[.]” (Ibid.) In such case, the court

explained, the state can insist on answers to incriminating questions “and hence sensibly

administer its probation system” provided it eliminates the threat of incrimination. (Id. at

p. 435, fn. 7.)

With these principles in mind, the court framed its inquiry as whether “Murphy’s

probation conditions merely required him to appear and give testimony about matters

relevant to his probationary status or whether they went further and required him to

choose between making incriminating statements and jeopardizing his conditional liberty

by remaining silent.” (Murphy, supra, 465 U.S. at p. 436.) The court concluded that the

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condition requiring Murphy to be truthful with his probation officer in all matters did not

rise to a threat of revocation. Indeed, the condition “said nothing about his freedom to

decline to answer particular questions and certainly contained no suggestion that his

probation was conditional on his waiving his Fifth Amendment privilege with respect to

further criminal prosecution.” (Id. at p. 437, italics added.) The probation condition did

not “attach an impermissible penalty to the exercise of the privilege against self-

incrimination” because it did not require Murphy to choose between incriminating

himself and jeopardizing his probation by remaining silent. (Id. at pp. 437-438.)

Applying Murphy’s test here leads us to conclude that the challenged waiver

imposes an impermissible choice between self-incrimination and conditional liberty.

Subdivision (b)(3) requires that the privilege against self-incrimination be waived in

order to be granted probation at all. The Attorney General argues that the required

waiver does not violate the Fifth Amendment “because the penalty exception described in

Murphy necessarily applies to all statements that a probationer makes under the

compulsion of the subdivision (b)(3) probation condition.” But that interpretation would

result in blanket immunity for probationers to disclose crimes during their participation in

the sex offender treatment program knowing that such disclosures, and their derivatives,

cannot be used against them in criminal proceedings. (Kastigar, supra, 406 U.S. at p.

462 [evidence derived from compelled testimony cannot be used against a person in a

criminal proceeding].) Striking the waiver from subdivision (b)(3) will still allow all

questions to be posed to participants in the sex offender management program, who may

then choose whether to assert their right to remain silent. Whether answers will be

compelled, questions reformulated, immunity granted, or probation revoked can be

addressed on a question-by-question and case-by-case basis.

C. AVAILABILITY OF THE PENALTY EXCEPTION

Our conclusion is consistent with other jurisdictions’ treatment of the penalty

exception in the context of probation conditions. In State v. Eccles (1994) 179 Ariz. 226

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(Eccles), the Arizona Supreme Court was presented with a waiver nearly identical to that

required under subdivision (b)(3). The Arizona probation condition required the

defendant, as part of a sex offender treatment program, to waive his right against self-

incrimination and answer truthfully any questions posed by treatment program agents

including his probation officer and polygraph examiner. (Eccles, at p. 227.) Applying

Murphy, Eccles held that the condition “plainly took the ‘extra, impermissible step’ by

attempting to require defendant to waive his right against self-incrimination under

penalty of having his probation revoked.” (Id. at p. 228, quoting Murphy, supra, at p.

436.) Eccles read Murphy’s prohibition against a state revoking probation for a

legitimate exercise of the Fifth Amendment privilege as also proscribing a state from

imposing a waiver of the privilege as a condition of probation. (Eccles, at p. 228.)

In State v. Gaither (2004) 196 Or.App. 131 (Gaither), the Oregon Court of

Appeals determined that a probationer’s statement was involuntary under Murphy. The

sex-offender probationer in Gaither was required to “ ‘promptly and truthfully answer all

reasonable inquiries’ of his probation officer,” fully disclose his sexual history, and

identify all victims of any past sexual misdeeds. (Id. at p. 133.) Under threat of a

probation violation for invoking his right to remain silent, the probationer told his

probation officer that he had committed a sexual offense against a minor, and he was then

charged with the offense. (Ibid.) Suppressing the admission, the Oregon court observed:

“That is precisely the situation forbidden by Murphy … . If [the] defendant had no

choice other than to disclose or face revocation of his probation, Murphy … hold[s] that

any subsequent statement was made involuntarily.” (Id. at p. 138.)

In United States v. Saechao (2005) 418 F.3d 1073 (Saechao), the Ninth Circuit

addressed an Oregon condition which required a probationer to “ ‘promptly and truthfully

answer all reasonable inquiries’ ” or face revocation of probation. Like Gaither, Saechao

upheld the trial court’s order suppressing evidence obtained as a result of the

probationer’s incriminating responses. The court concluded that use of the incriminating

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information in a criminal proceeding against the probationer would be unconstitutional

under Murphy because the probationer was forced to choose between exercising his right

to remain silent and jeopardizing his conditional liberty. (Id. at p. 1075).

The Ninth Circuit addressed another probation penalty situation in United States v.

Antelope (2005) 395 F.3d 1128 (Antelope). Antelope illustrates the type of penalty

discussed (though not found) in Murphy and its impermissibly coercive effect in this

context. In Antelope, the probationer refused to complete a sexual history autobiography

and participate in a “full disclosure polygraph” as part of a sexual abuse recovery

program unless he was granted immunity, even though he desired to continue in

treatment. (Id. at pp. 1131-1132.) The district court revoked probation and imposed a

prison sentence. (Id. at p. 1132.)

Antelope analyzed the probationer’s Fifth Amendment claim under McKune v. Lile

(2002) 536 U.S. 24 (McKune), a then recently decided Supreme Court case addressing a

state prison inmate’s privilege against self-incrimination in the context of the prison’s sex

offender treatment program. The treatment program in McKune required participants to

divulge all prior sexual activities regardless of whether they constituted uncharged

criminal offenses. (Id. at p. 30.) Refusal to participate in the program would result in

transfer to a maximum security housing unit and reduced privileges such as visitation,

work opportunities, and television access. The inmate refused and asserted the privilege

against self-incrimination. (Id. at pp. 30-31.)

McKune was a fractured decision, with the plurality and Justice O’Connor

concluding that a loss of prison privileges did not amount to compulsion under the Fifth

Amendment. (McKune, supra, 536 U.S. at p. 29 [plurality]; id. at pp. 48-49 [O’Connor,

J.].) However, Justice O’Connor recognized that although “[n]ot all pressure necessarily

‘compels’ incriminating statements” (id. at p. 49), a penalty involving longer

incarceration would not be constitutionally permissible. (Id. at p. 52.) Based on Justice

O’Connor’s view, the Antelope court concluded that the probationer’s privilege against

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self-incrimination was violated because he did suffer additional incarceration for

exercising his right to remain silent. (Antelope, supra, 395 F.3d at p. 1138.) Antelope

thus presented the penalty situation described in Murphy. (Id. at p. 1138, fn. 4.)5

Eccles, Gaither, and Saecheo, together with Antelope’s recognition that Murphy

continues to set the standard for compulsion in probation penalty cases, support our

conclusion that the waiver required by section 1203.067, subdivision (b)(3) violates the

Fifth Amendment on its face. The denial of probation which results from refusal to

accept the mandatory condition attaches an impermissible penalty (a prison sentence) to

the exercise of the Fifth Amendment privilege against self-incrimination.

D. CHAVEZ AND MALDONADO DISTINGUISHED

Citing Chavez v. Martinez (2003) 538 U.S. 760 (Chavez) and Maldonado v.

Superior Court (2012) 53 Cal.4th 1112 (Maldonado), the Attorney General argues that

the waiver alone is not unconstitutional because a Fifth Amendment violation cannot

occur until a compelled statement is used against a defendant in a criminal proceeding.

In Chavez, a federal civil rights action brought under Title 42 U.S.C. section 1983, the

plaintiff was questioned by a parole officer without Miranda warnings while receiving

medical treatment for gunshot wounds received in a confrontation with police officers.

The plaintiff alleged that the emergency room questioning violated both his Fifth

Amendment and substantive due process rights. (Chavez, supra, 538 U.S. at p. 765.)

The Ninth Circuit upheld the denial of qualified immunity to the parole officer,

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Relying on Antelope, defendant asserts that submission to a polygraph

examination under subdivision (b)(3) violates the Fifth Amendment because the examiner

is required to investigate past sex offenses, including potentially uncharged offenses.

Antelope did not hold that the sex abuse recovery program at issue in that case, including

its polygraph component, violated the Fifth Amendment. Standing alone, the

requirement that defendant participate in polygraph examinations does not infringe on his

Fifth Amendment right against self-incrimination because it does not preclude him from

exercising that right. (People v. Miller, supra, 208 Cal.App.3d 1311, 1315.)

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concluding that the “ ‘right to be free from coercive interrogation’ ” was clearly

established under the Fifth and Fourteenth Amendments. (Id. at pp. 765-766.) The

United States Supreme Court reversed, concluding that the plaintiff could not allege a

Fifth Amendment violation because he was neither prosecuted for the crime nor

compelled to be a witness against himself in a criminal case. (Id. at p. 766.) The court

reasoned that the text of the Fifth Amendment does not support the conclusion that mere

compulsive questioning, without more, violates the Constitution. (Id. at p. 767.)

In Maldonado, the criminal defendant asserted a mental-state defense. The

prosecution had obtained an order under section 1054 (providing for reciprocal

discovery) requiring the defendant to submit to a mental examination by prosecution-

selected experts, and a disagreement arose regarding disclosure of the examination results

to the prosecution. (Maldonado, supra, 53 Cal.4th at p. 1118.) Relying in part on

Chavez’s focus that a “ ‘core’ Fifth Amendment violation is completed, not merely by

official extraction of self-incriminatory answers from one who has not waived the

privilege, but only if and when those answers are used in a criminal proceeding against

the person who gave them” (id. at p. 1128, citing Chavez, supra, pp. 766-773), the

California Supreme Court concluded that release of the examination results to the

prosecution before the defendant actually presented his defense at trial was not precluded

by the Fifth Amendment. (Maldonado, at p. 1141.)

Chavez and Maldonado establish that merely eliciting an incriminating statement

does not violate the Fifth Amendment. But neither case controls here because neither

addresses whether the state can condition the availability of probation on giving up the

right to remain silent. That question, in our view, is answered by Murphy because denial

of probation is itself a penalty which compels the waiver.

III. DISPOSITION

In light of our conclusion that the waiver mandated by Penal Code section

1203.067, subdivision (b)(3) facially violates the Fifth Amendment, we strike the words

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“waive any privilege against self-incrimination and” from the probation condition

implementing that subdivision. As modified, the judgment is affirmed.

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____________________________________

Grover, J.

WE CONCUR:

____________________________

Rushing, P. J.

____________________________

Márquez, J.