People v. Forney

Filed 10/4/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A144450

v.

MICHAEL DAVID FORNEY, (Sonoma County

Super. Ct. No. SCR656511)

Defendant and Appellant.

I.

INTRODUCTION

Defendant Michael Forney appeals from a judgment entered pursuant to a no

contest plea to unlawful oral copulation (Pen. Code, § 288a, subd. (b)(2))1 and unlawful

sexual intercourse (§ 261.5, subd. (d)). In accordance with the terms of a negotiated

disposition, the trial court suspended imposition of sentence and placed defendant on

three years formal probation. Defendant challenges three conditions of his probation:

(1) that he waive his Fifth Amendment right against self-incrimination and submit to

polygraph examinations as part of a sex offender management program; (2) that he not

contact any minor without prior approval of his probation officer; and (3) that he not

reside near or be any place where minors congregate.

The validity of the sex offender management program Fifth Amendment waiver

and polygraph requirement—a probation condition statutorily required under section

1203.067, subdivision (b)(3)—is currently on review by our Supreme Court. (People v.

Rebulloza, review granted June 10, 2015, S225503; People v. Klatt, review granted

1

All further statutory references are to the Penal Code unless otherwise indicated.

1

July 16, 2014, S218755; People v. Friday, review granted July 16, 2014, S218288;

People v. Garcia, review granted July 16, 2014, S218197.)

Binding United States Supreme Court precedent holds that a probationer cannot be

compelled to relinquish his Fifth Amendment right against self-incrimination, and in our

view, this authority also makes clear the choice between agreeing to the mandatory Fifth

Amendment waiver as a condition of probation or facing immediate incarceration is an

impermissibly coercive one. (Minnesota v. Murphy (1984) 465 U.S. 420, 435-437 &

fn. 7 (Murphy); see also McKune v. Lile (2002) 536 U.S. 24, 35 (McKune) [holding

consequences of prison inmate’s refusal to waive Fifth Amendment and participate in

sexual abuse treatment program did not rise to impermissible “compulsion” to

incriminate himself; however, if consequences did “combine to create a compulsion that

encumber[ed] the constitutional right,” the state could not “continue the program in its

present form”].) We therefore order the Fifth Amendment waiver stricken from the first

of the challenged probation conditions. However, under this same high court authority,

as well as California precedent, the polygraph requirement, shorn of the compelled Fifth

Amendment waiver, is valid.

As for the no contact with minors, residency, and location probation conditions,

the Attorney General largely agrees they should be modified. We also agree and order

appropriate modifications of these conditions.

II.

DISCUSSION2

The Fifth Amendment Waiver and Polygraph Testing Requirement

1. The Fifth Amendment Waiver Is Unconstitutionally Coercive

As required by section 1203.067, subdivision (b)(3), defendant was ordered, as a

condition of probation, to “[w]aive[] . . . any privilege against self-incrimination and

participate in polygraph examinations, which shall be part of the sex offender

2

Given the issues on appeal, we need not separately set forth either the facts of

the crimes to which defendant pleaded no contest or the procedural background of the

case.

2

management program.” He contends this condition violates his Fifth Amendment right

against self-incrimination and is overbroad in any event. In our view, the United States

Supreme Court’s decisions in Murphy, supra, 465 U.S. 420 and McKune, supra, 536 U.S.

24 are controlling on the Fifth Amendment issue and compel the conclusion that the

statutorily required waiver cannot stand.

In Murphy, the defendant was subject to a probation condition that he participate

in a sex offender treatment program, 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.) These admissions were communicated to his probation officer, who then asked

defendant to meet with her; she told him she intended to convey any incriminating

information he provided to the police. (Id. at p. 424.) The defendant admitted the crimes

to the probation officer, which resulted in the filing of new criminal charges. In the new

case, he sought to suppress the admissions. (Id. at pp. 424-425.)

The specific issue before the Supreme Court was whether the defendant’s failure

to actually invoke his Fifth Amendment privilege against self-incrimination could be

excused on the ground that his admissions to the probation officer had been “compelled.”

(Murphy, supra, 465 U.S. at p. 434.) Generally, the Fifth Amendment is not “self-

executing” and must be invoked in order to obtain its protection. (Id. at p. 431.) There

are, however, several exceptions, one of which is when the consequences of invoking the

right are so severe the individual is effectively compelled to incriminate himself. (Id. at

pp. 434-435.) This exception, developed in a line of cases referred to as the “penalty

cases,” applies where “the State not only [has] compelled an individual to appear and

testify, but also [has] 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.]” (Id. at p. 434.)

The high court explained “[t]he 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. A State may require a probationer to appear and

3

discuss matters that affect his probationary status; such a requirement, without more, does

not give rise to a self-executing privilege. The result may be different if the questions put

to the probationer, however relevant to his probationary status, call for answers that

would incriminate him in a pending or later criminal prosecution. There is thus a

substantial basis in our cases for concluding that if the State, either expressly or by

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

it would have created the classic penalty situation, the failure to assert the privilege

would be excused, and the probationer’s answers would be deemed compelled and

inadmissible in a criminal prosecution.” (Murphy, supra, 465 U.S. at p. 435.)

“The situation would be different,” observed the court, “if the questions put to a

probationer were relevant to his probationary status and posed no realistic threat of

incrimination in a separate criminal proceeding. If, for example, a residential restriction

were imposed as a condition of probation, it would appear unlikely that a violation of that

condition would be a criminal act. Hence, a claim of the Fifth Amendment privilege in

response to questions relating to a residential condition could not validly rest on the

ground that the answer might be used to incriminate if the probationer was tried for

another crime. Neither, in our view, would the privilege be available on the ground that

answering such questions might reveal a violation of the residential requirement and

result in the termination of probation. Although a revocation proceeding must comport

with the requirements of due process, it is not a criminal proceeding. [Citations.] 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. It follows that whether

or not the answer to a question about a residential requirement is compelled by the threat

of revocation, there can be no valid claim of the privilege on the ground that the

information sought can be used in revocation proceedings.” (Murphy, supra, 465 U.S. at

p. 435, fn. 7.)

And, added the high court, “[o]ur cases indicate . . . that 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

4

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], and nothing in the Federal Constitution would prevent a State from

revoking probation for a refusal to answer that violated an express condition of probation

or from using the probationer’s silence as ‘one of a number of factors to be considered by

a finder of fact’ in deciding whether other conditions of probation have been violated.

[Citations.]” (Murphy, supra, 465 U.S. at pp. 435-436, fn. 7, italics added.)

The court then turned to the question of “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 state had not

taken that “extra, impermissible step.” (Ibid.)

The court explained, “[t]he state court did not attempt to define the precise

contours of Murphy’s obligation to respond to questions. On its face, Murphy’s

probation condition proscribed only false statements; it said nothing about his freedom to

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

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

further criminal prosecution. . . . Without the benefit of an authoritative state-court

construction of the condition, we are hesitant to read into the truthfulness requirement an

additional obligation that Murphy refrain from raising legitimate objections to furnishing

information that might lead to his conviction for another crime.” (Murphy, supra,

465 U.S. at p. 437, italics added.) “Whether we employ a subjective or an objective test,

there is no reasonable basis for concluding that Minnesota attempted to attach an

impermissible penalty to the exercise of the privilege against self-incrimination. There is

no direct evidence that Murphy confessed because he feared that his probation would be

revoked if he remained silent.” (Ibid.)

Further, said the court, even “[i]f Murphy did harbor a belief that his probation

might be revoked for exercising the Fifth Amendment privilege, that belief would not

5

have been reasonable. 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. Indeed, in its brief in this Court, the State submits

that it would not, and legally could not, revoke probation for refusing to answer questions

calling for information that would incriminate in separate criminal proceedings.”

(Murphy, supra, 465 U.S. at p. 438, italics added.)

The high court further explained probation revocation under Minnesota law is not

“automatic.” (Murphy, supra, 465 U.S. at p. 438.) There must be a hearing, and a court

must find that the alleged violation was intentional or inexcusable, and that the need for

confinement outweighs the policies favoring probation. (Ibid.) In short, the court had

“not been advised of any case in which Minnesota ha[d] attempted to revoke probation

merely because a probationer refused to make nonimmunized disclosures concerning his

own criminal conduct.” (Id. at p. 439, italics added.) And given the court’s cases,

“Murphy could not reasonably have feared that the assertion of the privilege would have

led to revocation.” (Ibid.)

The Supreme Court accordingly concluded Murphy’s Fifth Amendment right was

not self-executing, and he therefore had to actually invoke the privilege in order to claim

its protection in the new criminal case. (Murphy, supra, 465 U.S. at pp. 439-440.)

Murphy thus makes clear: (a) probationers retain their Fifth Amendment privilege

against self-incrimination, which embraces the right to remain silent and not answer

questions that would elicit incriminating information; (b) a state may compel a

probationer to answer potentially incriminating questions, but only if he is assured

incriminating answers will not be used in a pending or new criminal proceeding (i.e.,

only if the state guarantees the preservation of his Fifth Amendment right not to be called

as a witness against himself); and (c) probation cannot be revoked solely because a

probationer exercises his Fifth Amendment right to remain silent. (Murphy, supra, 465

U.S. at pp. 439-440.)

6

In McKune, the high court addressed the constitutionality of a prison sexual abuse

treatment program which was mandatory for inmates convicted of sex crimes. The

program required inmates to, among other things, accept responsibility for the crime for

which they had been sentenced, provide a complete sexual history regardless of whether

it included uncharged crimes, and take a polygraph to confirm the accuracy and

completeness of the history. It also required prison authorities to report uncharged sexual

offenses involving minors, and the state reserved the right to initiate criminal

proceedings. (McKune, supra, 536 U.S. at p. 30.) The consequences of refusing to

participate in the program included reduction of visiting rights, earnings, work

opportunities, canteen expenditures, and access to television, as well as transfer to a

maximum-security unit. (Id. at p. 31.) McKune refused to participate on Fifth

Amendment grounds and brought a civil rights action under title 42 United States Code

section 1983 (hereafter section 1983) for injunctive relief. (Ibid.) The court produced a

fractured opinion.

Given that the state reserved the right to use information disclosed during the

program as the basis for new criminal charges, the plurality stated the issue was “whether

the State’s program, and the consequences for nonparticipation in it, combine to create a

compulsion that encumbers the constitutional right. If there is compulsion, the State

cannot continue the program in its present form . . . .” (McKune, supra, 536 U.S. at

p. 35.) The court then undertook a lengthy defense of the merits of the program, stating

“[t]herapists and correctional officers widely agree that clinical rehabilitation programs

can enable sex offenders to manage their impulses and in this way reduce recidivism” and

deeming the elements of the challenged program (that it was mandatory, required

acceptance of responsibility for the crime of conviction, required a complete sexual

history, required truthfulness, and allowed for prosecution of other sex crimes) as

essential to its efficacy. (Id. at pp. 32-34, 47-48.)

The plurality next examined the consequences of McKune’s refusal to participate

in the program and concluded they did not rise to the level of “compulsion” necessary to

implicate the Fifth Amendment. (McKune, supra, 536 U.S. at pp. 35-47.) The plurality

7

commenced its discussion by stating that while an inmate retains his Fifth Amendment

privilege, the “compulsion” inquiry must take into account the fact of confinement and

that rehabilitation “is a legitimate penological interest that must be weighed against the

inmate’s liberty.” (Id. at p. 36.) Notably, the plurality observed McKune’s refusal to

participate did “not extend his term of incarceration,” nor did it adversely “affect his

eligibility for good-time credits or parole.” (Id. at p. 38.) His transfer to the maximum

security unit was also not “intended to punish” him for exercising his Fifth Amendment

right, said the plurality, but was due to the practical necessity of removing him from the

housing unit dedicated to the rehabilitation program. (Id. at pp. 38-39.) As for the other

consequences, McKune could not “cite a single case from this Court holding that the

denial of discrete privileges for refusal to participate in a rehabilitation program amounts

to unconstitutional compulsion.” (Id. at p. 40.)

In the plurality’s view, “what constitutes unconstitutional compulsion involves a

question of judgment: Courts must decide whether the consequences of an inmate’s

choice to remain silent are closer to the physical torture against which the Constitution

clearly protects or the de minimis harms against which it does not.” (McKune, supra,

536 U.S. at p. 41.) The plurality concluded the consequences McKune faced—“denial of

certain perquisites that make his life in prison more tolerable”—did not add up to

compulsion to waive his Fifth Amendment right. (Id. at pp. 42-45.)

Justice O’Conner, while not entirely agreeing with the plurality’s articulation of

the “compulsion” standard, agreed the alterations in McKune’s prison conditions “were

[not] so great as to constitute compulsion for the purposes of the Fifth Amendment.” She

thus concurred in the judgment rejecting McKune’s constitutional challenge to the

program. (McKune, supra, 536 U.S. at pp. 48-49 (conc. opn. of O’Connor, J..) She

observed “[t]he Court today is divided on the question of what standard to apply when

evaluating compulsion for the purposes of the Fifth Amendment privilege against self-

incrimination in a prison setting.” (Id. at p. 48.) She posited, however, similar to the

plurality, that Fifth Amendment analysis in the criminal setting should be different from

that in other contexts. “Forcing defendants to accept such consequences seems to me

8

very different from imposing penalties for the refusal to incriminate oneself that go

beyond the criminal process and appear, starkly, as government attempts to compel

testimony.” (Id. at p. 53.) In any case, in her view, none of the privileges McKune stood

to lose was “compulsive on any reasonable test.” (Id. at p. 54.)

In the dissent’s view, putting McKune to the choice of exercising his Fifth

Amendment rights or being transferred to maximum security amounted to

unconstitutional compulsion—no matter how laudable the goals of the state’s sex abuse

treatment program. (McKune, supra, 536 U.S. at pp. 55, 71 (dis. opn of Stevens, J.).)

In light of Murphy and McKune, we do not see how the Fifth Amendment waiver

required by section 1203.067, subdivision (b)(3) can survive. Both cases make clear a

convicted sex offender retains his Fifth Amendment privilege not to provide

incriminating answers that could be used in a pending or subsequent criminal proceeding,

and the pivotal question is whether the consequences of a defendant’s refusal to waive his

Fifth Amendment right rise to the level of unconstitutional compulsion to waive it. Here,

the consequences of a defendant’s refusal to waive the Fifth Amendment is denial of

probation and immediate incarceration. While neither Murphy nor McKune addressed

this precise question, commentary in both cases inevitably leads, we think, to the

conclusion this amounts to unconstitutional compulsion to forego the Fifth Amendment.

In Murphy, for example, the Supreme Court specifically pointed out the state’s sex

offender program did not require the probationer to waive his Fifth Amendment privilege

and had it done so, on pain of revocation, the state would have attached “an

impermissible penalty to the exercise of the privilege.” (Murphy, supra, 465 U.S. at

p. 437; see also id. at p. 435 [there is “a substantial basis in our cases for concluding that

if the State, either expressly or by implication, asserts that invocation of the privilege

would lead to revocation of probation, it would have created the classic penalty

situation”]; id. at p. 437 [“Murphy’s probation condition proscribed only false statements;

it said nothing about his freedom to decline to answer particular question 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. 438

9

[revocation of probation was not “automatic” on a probationer’s invocation of his Fifth

Amendment rights].) In McKune, the plurality specifically pointed out an inmate’s

refusal to participate in the sex abuse treatment program did not extend his term of

incarceration or affect his eligibility for good-time credits or parole. (McKune, supra,

536 U.S. at p. 38.)

If, as the high court posited in Murphy, a defendant cannot constitutionally be

forced to choose between waiving his Fifth Amendment privilege and suffering

revocation of his probation, we do not see how a defendant can constitutionally be forced

to choose between waiving his privilege and suffering outright denial of probation and

immediate incarceration. We think the same follows from the plurality’s suggestion in

McKune that an inmate cannot be forced constitutionally to choose between waiving his

Fifth Amendment privilege and suffering extended incarceration or loss of parole.

The Attorney General puts great stock in the United States Supreme Court’s

decision in Chavez v. Martinez (2003) 538 U.S. 760, 769-770 (Chavez), decided one year

after McKune, supra, 536 U.S. 24, and the California Supreme Court’s decision in

Maldonado v. Superior Court (2012) 53 Cal.4th 1112, relying on Chavez to allow

prosecution access to compelled mental examinations. Both cases are readily

distinguishable, and neither so much as suggests that the United States Supreme Court

has retreated from its “penalty cases,” and specifically from Murphy and McKune.

The issue in Chavez, supra, 538 U.S. 760 was whether an interrogating officer

could claim qualified immunity in a civil rights case brought by one Oliverio Martinez,

who had been questioned without Miranda3 warnings while being treated in an

emergency room. In an even more fractured opinion than McKune, the high court

reversed the Ninth Circuit Court of Appeals’ opinion denying qualified immunity and

remanded for consideration of whether Martinez could base his section 1983 claim on

3

Miranda v. Arizona 384 U.S. 436.

10

substantive due process grounds.4 A majority of the justices agreed Martinez could not

base his section 1983 claim on the Fifth Amendment, but offered varying reasons.

Justice Thomas, joined by the Chief Justice and Justices O’Conner and Scalia,

expressed the view that Martinez could not anchor his section 1983 claim on the Fifth

Amendment because his incriminating statements were never used against him in a

criminal prosecution. The Fifth Amendment on its face, stated Justice Thomas, provides

only that a person cannot “ ‘be compelled in any criminal case to be a witness against

himself.’ ” (Chavez, supra, 538 U.S. at p. 766, italics omitted.) Thus, while officials

may “impair” the Fifth Amendment right against self-incrimination prior to trial, “ ‘a

constitutional violation occurs only at trial.’ ” (Id. at p. 767, italics omitted, quoting

United States v. Verdugo-Urquidez (1990) 494 U.S. 259, 264.) Therefore, “mere use of

compulsive questioning, without more,” could not support Martinez’s action for

damages. (Id. at p. 767.) Justice Thomas explained this result was fully consistent with

the court’s case law, including Murphy, in which the court made clear individuals can be

compelled to reveal incriminating information, including on pain of contempt, “so long as

those statements (or evidence derived from those statements) cannot be used against the

speaker in any criminal case.” (Id. at pp. 767-768.) Martinez’s situation was not

materially different, since his compelled statements were never used against him. (Id. at

p. 769.) That Martinez could not point to any completed constitutional tort was also not

at odds with the court’s creation of “prophylactic rules designed to safeguard the core

constitutional right protected by the Self-Incrimination Clause,” specifically referencing

4

Justice Souter authored the “opinion” of the court, joined by Justices Breyer,

Stevens, Kennedy, and Ginsburg, which consisted of a single sentence remanding the

case for consideration of whether Martinez could pursue a substantive due process claim

(not a Fifth Amendment claim). (Chavez, supra, 538 U.S. at p. 777.) Justice Thomas

announced the “judgment” of the court, joined by the Chief Justice and Justices

O’Connor and Scalia (id. at p. 763), and concurred in by Justice Souter (id. at p. 777).

Justice Scalia concurred “in part” with the judgment. (Id. at p. 780.) While Justice

Ginsburg stated “[t]o assure a controlling judgment” she was joining “Part II” of Justice

Souter’s opinion, part II is actually designated the “opinion” of the court. (Id. at pp. 777,

802 (conc. & dis. opn. of Ginsburg, J.).)

11

the court’s “penalty cases jurisprudence.” (Id. at pp. 770, 772, fn. 3 [“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”].) In his separate

concurring opinion, Justice Scalia emphasized “[s]ection 1983 does not provide remedies

for violations of judicially created prophylactic rules.” (Chavez, supra, 538 U.S. at

p. 780 (conc. opn. of Scalia, J.).)

Justices Souter and Breyer also agreed Martinez could not ground his section 1983

claim on the Fifth Amendment. “Martinez claims more than evidentiary protection in

asking this Court to hold the questioning alone was a completed violation of the Fifth and

Fourteenth Amendments subject to redress by an action for damages under [section]

1983. [¶] To recognize such a constitutional cause of action for compensation would, of

course, be well outside the core of Fifth Amendment protection . . . .” (Chavez, supra,

538 U.S. at p. 777 (conc. opn. of Souter, J., Breyer, J. joining).) Indeed, if the court did

recognize such a damages claim it “would revolutionize Fifth and Fourteenth

Amendment law,” a result Justices Souter and Breyer believed was unsupported and

unwarranted. (Id. at p. 779.) They also observed that refusing to embrace such an

“extension” of the Fifth Amendment was not incompatible with other Fifth Amendment

holdings, including the “penalty cases” such as McKune.5 (Chavez, at pp. 777-778.)

Chavez thus confronted the high court with a civil rights claim for damages based

on coercive questioning, alone, and a majority of the court could not countenance this

kind of extension of Fifth Amendment law. However, what is significant for our

purposes is that regardless of the multiplicity of reasoning in Chavez, there is no

mistaking that the court preserved its “penalty case” jurisprudence, including Murphy and

McKune.

5

Justices Kennedy, Stevens, and Ginsburg were of the view an actionable Fifth

Amendment violation can occur immediately upon coercive extraction of incriminating

statements. (Chavez, supra, 538 U.S. at pp. 790-795 (conc. & dis. opn. of Kennedy, J.,

joined by Stevens, J. and, in part, by Ginsberg, J.); id. at p. 799 (conc. & dis. opn. of

Ginsberg, J.).)

12

In Maldonado, after defendant’s notification that he intended to present mental-

state evidence, the prosecution sought and the trial court ordered compelled mental

examinations by three court-appointed experts. (Maldonado, supra, 53 Cal.4th at

p. 1119.) The defendant then sought and was granted a protective order barring the

prosecution from attending the examinations, barring access to reports, notes and

recordings of the examinations, and barring contact with the experts until the close of the

defendant’s case and until the trial court had reviewed the material and resolved

admissibility issues. (Id. at p. 1120.) He claimed that unless he actually presented a

mental-state defense at trial, his Fifth Amendment privilege applied to anything he told

the examiners. (Id. at pp. 1120-1121.)

Citing extensively to Chavez, supra, 538 U.S. 760, our Supreme Court explained

the Fifth Amendment is not “a guarantee against officially compelled disclosure,” but

rather is protection against being compelled to testify against oneself in a criminal

proceeding. (Maldonado, supra, 53 Cal.4th at pp. 1127-1128.) Accordingly, the Fifth

Amendment cannot be invoked to bar the prosecution from access to the compelled

mental-state examination materials. However, continued the court, the state can compel

incriminating statements only so long as it recognizes such statements cannot be used

against the individual in a criminal proceeding, absent his or her waiver of the Fifth

Amendment. (Id. at pp. 1129-1130.) In other words, the state may compel incriminating

statements if it preserves the individual’s core Fifth Amendment right not to testify

against oneself in a criminal case. The court went on to insure this protection for

defendants subject to compelled mental examinations by judicially immunizing from use

at trial, as “prophylactic protection of their Fifth Amendment privilege,” any

incriminating statements made during the course of such examinations, unless and until

the defendant waives the privilege by presenting mental-state evidence. (Id. at p. 1129,

fn. 10.) Thus, while the prosecution can have pretrial access to compelled mental

examination materials, it cannot use incriminating information in those materials until the

defendant actually waives his Fifth Amendment privilege by presenting mental-state

evidence at trial. (Id. at p. 1132 [defendant “retains the ‘unfettered choice’ whether to

13

actually present such a defense at trial”; if he decides to forego such defense, “any self-

incriminating results of the examinations cannot be introduced or otherwise used against

him”].)

Thus, contrary to what the Attorney General suggests, Maldonado in no way

departs from what we view as the controlling United States Supreme Court cases,

Murphy and McKune. On the contrary, Maldonado recognizes that state-compelled

disclosure of incriminating information is permissible only if the state preserves the

individual’s right to invoke the Fifth Amendment’s core protection against testifying

against oneself in a criminal proceeding. And that is the essential problem with the

statutorily mandated probation condition—it does not preserve the probationer’s Fifth

Amendment privilege. Rather, it not only compels the probationer to answer any and all

questions, regardless of whether the answers are incriminating, it also compels him to

waive his Fifth Amendment right. While binding United States Supreme Court and

California Supreme Court precedent permits the state’s first act of compulsion, it

precludes the state from also demanding the second. We therefore order the Fifth

Amendment waiver stricken from defendant’s probation condition.

2. The Polygraph Requirement, Absent the Compelled Fifth

Amendment Waiver, Is Valid

Having held that the compelled Fifth Amendment waiver is invalid, we now

consider whether requiring defendant to submit to polygraph examinations, without the

compelled waiver, impermissibly infringes upon his Fifth Amendment privilege against

self-incrimination.

On this issue we agree with the Attorney General that Chavez and Maldonado

clearly permit compelled answers, so long as the probationer retains his core Fifth

Amendment right not to have any incriminating answers used against him in a pending or

future criminal proceeding. That is also the import of Murphy and McKune. As we have

discussed, in both cases, a majority of the court recognized that if the defendant’s

statements were “immunized”—i.e., could not be used against him in a pending or

subsequent criminal proceeding—then compelled truthfulness would not implicate the

14

Fifth Amendment. (McKune, supra, 536 U.S. at p. 35 [if state “offered immunity, the

self-incrimination privilege would not be implicated”]; Murphy, supra, 465 U.S. at

pp. 426 [witness may refuse to answer “ ‘unless and until he is protected at least against

use of his compelled answers and any evidence derived therefrom in any subsequent

criminal case in which he is a defendant’ ”]; p. 437 [probation condition only required

truthfulness, it “said nothing about his freedom to decline to answer particular

questions”].)

Indeed, it has long been settled law in our state that requiring a polygraph

examination does not violate an individual’s Fifth Amendment right. (E.g., Brown v.

Superior Court (2002) 101 Cal.App.4th 313, 320 [“The fact that [the defendant] has a

duty to answer the polygraph examiner’s question truthfully does not mean his answers

are compelled within the meaning of the Fifth Amendment.”]; People v. Miller (1989)

208 Cal.App.3d 1311, 1315 [“[a]lthough defendant [a probationer convicted of a sex

offense] has a duty to answer the polygraph examiner’s questions truthfully, unless he

invokes the privilege, [or] shows a realistic threat of self-incrimination but nevertheless is

required to answer, no violation of his right against self-incrimination is suffered.”].)

Apart from his Fifth Amendment challenge, defendant maintains the polygraph

requirement is impermissibly overbroad, asserting “[i]t contains no limitation whatever

on the types of questions that can be asked.” Defendant contends that to pass muster

under People v. Lent (1975) 15 Cal.3d 481, questions must be limited to those

“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.”

Pursuant to section 9003, subdivisions (a), (b), and (d), the California Sex

Offender Management Board (CASOMB) is required to publish on its website

certification standards for sex offender management programs and professionals.6 All

6

<http:// www.casomb.org/docs/Polygraph_Standards_FINAL.PDF> [as of

October 4, 2016].

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polygraph examiners working with a certified sex offender management program must

meet these standards. (CASOMB, Post-Conviction Sex Offender Polygraph Standards,

Introduction.) 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. These examinations 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 § 8.8.1.2.)

“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.” (CASOMB, Post-Conviction Sex

Offender Polygraph Standards, at § 8.1.2.1.) “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.” (Id., at § 8.8.2.) 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

§ 13.) The sex offense monitoring examination 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. (Id., at

§ 22.) 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 § 4.2.3.) Polygraph examiners should disseminate a written report

regarding all pertinent information, test questions and answers, and results to members of

the community supervision team and “to the court, parole board or other releasing

agency.” (Id., at § 1.1.)

The Attorney General does not disagree with defendant’s view that the scope of

the required polygraph examinations is properly defined by the purposes of the sex

offender management program mandated by section 1203.067, subdivision (b)(2). She

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argues this is self-evident from the statutory language and context, and therefore there is

no need to judicially add limiting language, particularly in light of the CASOMB

standards developed to implement the program..

We agree with the Attorney General that the structure and language of the statute

make it clear the required polygraph examinations are a tool to implement the sex

offender management program and are to be administered in accordance with the

CASOMB standards. Subdivision (b)(3) specifically states the polygraph examinations

are “part of the sex offender management program.” (§ 1203.067, subd. (b)(3).)

Subdivision (b)(2), in turn, provides that the probationer shall successfully complete the

program, “following the standards developed pursuant to Section 9003.” (Id., subd.

(b)(2).) And it is pursuant to section 9003 that CASOMB promulgated the standards for

administering the polygraph examinations that are part of the program. (§ 9003.)

It therefore seems apparent to us that the required polygraph examinations are not

unfettered and cannot probe any area of inquiry with impunity, whether or not questions

are related to the sex offender management program. Rather, it is inherent in the

structure and language of the statute that polygraph examinations be used only in

furtherance of the probationer’s treatment. (See Brown v. Superior Court, supra,

101 Cal.App.4th at p. 321 [modifying undefined polygraph condition imposed after

defendant failed to cooperate in stalking therapy program to limit questions “to those

relating to the successful completion of” the program and the crime of which defendant

was convicted].) Given this construction of the statute, there is no need to include any

limiting language in the probation condition itself.

The No-Contact-With-Minors Condition

Defendant contends the probation condition ordering him not to “initiate,

establish, or maintain contact with any minor, male or female, under the age of 18 years

unless in the presence of a responsible adult and with prior approval of the Probation

Officer” is constitutionally infirm because it lacks a scienter, or knowledge, requirement.

He urges that the condition be modified to state he shall not “initiate, establish, or

maintain contact with any minor, male or female, that he knows is under the age of 18

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years . . . .” The Attorney General agrees the condition should be so modified, citing

People v. Turner (2007) 155 Cal.App.4th 1432. In Turner, the appellate court ordered a

very similar condition modified on the ground the defendant might not know an

individual was under the age of 18. (Id. at pp. 1435-1436.)

We agree with the parties and order the probation condition modified accordingly.

The Not-Near-Minors Condition

Defendant similarly contends the probation condition ordering him not to “reside

near, visit or be in or about parks, schools, day care centers, swimming pools, beaches,

theaters, arcades or other places where children congregate without prior approval of

your Probation Officer” is constitutionally deficient for lack of specificity as to what

“near” means, lack of a knowledge requirement, and because it assertedly prohibits him

from being in places essential to ordinary living, such as a grocery store. He suggests the

specific residential distance set forth in section 3003.5 (2,000 feet) be used in place of

“near” and a specific knowledge requirement be included. He urges the prohibition on

visiting or being in or about “other places” where children congregate be stricken in its

entirety.

The Attorney General agrees the term “near” is vague and can be replaced with the

2,000 foot distance set forth in section 3003.5. She also agrees a knowledge requirement

is appropriate. She does not agree, however, that the condition is otherwise

constitutionally overbroad, citing People v. Delvalle (1994) 26 Cal.App.4th 869, 878.

In Delvalle the court upheld a probation order requiring the defendant to “ ‘stay

away from any places where minor children congregate.’ ” (People v. Delvalle, supra,

26 Cal.App.4th at p. 878.) The trial court then explained, “ ‘[t]he obvious places that

come to mind are elementary schools, day care, parks. [¶] Stay away from places where

young children are around.’ ” (Ibid.) The appellate court concluded the places the trial

court specifically mentioned provided sufficient examples of the kinds of places the

defendant was to avoid. (Id. at p. 897; see also United States v. Bee (9th Cir. 1998)

162 F.3d 1232, 1235 [upholding probation condition that defendant “ ‘not loiter within

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100 feet of school yards, parks, playgrounds, arcades, or other places primarily used by

children under the age of 18’ ”].)

While we agree replacing “near” with 2,000 feet and including a knowledge

requirement are warranted, we conclude the probation condition otherwise passes muster.

If defendant is concerned he is precluded from going to a locale necessary for everyday

living, such as a grocery store, laundromat, or gasoline station (none of which reasonably

qualifies as a place where children congregate), he simply needs to confirm with his

probation officer that his presence is permissible.

III.

DISPOSITION

We order stricken the probation condition that defendant, pursuant to section

1203.067, subdivision (b)(3), waive his Fifth Amendment privilege against incrimination.

Shorn of that Fifth Amendment waiver requirement, we uphold the condition that

defendant, pursuant to that statutory provision, submit to polygraph examinations. We

order the no-contact-with-minors condition modified to read defendant is not to “initiate,

establish, or maintain contact with any minor, male or female, that defendant knows is

under the age of 18 years unless in the presence of a responsible adult and with prior

approval of the Probation Officer.” We order the not-near-minors condition modified to

read defendant is not to “reside within 2,000 feet of, or visit or be in or about, parks,

schools, day care centers, swimming pools, beaches, theaters, arcades, or other places

where defendant knows children congregate without prior approval of defendant’s

Probation Officer.”

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_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Dondero, J.

A144450, People v. Forney

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Trial Court: Sonoma County Superior Court

Trial Judge: Honorable Jamie E. Thistlethwaite

Counsel for Appellant: Rex Williams, under appointment by the First District

Appellate Project

Counsel for Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler,

Chief Assistant Attorney General, Jeffrey M. Laurence,

Senior Assistant Attorney General, Catherine A. Rivlin,

Supervising Deputy Attorney General, Ann Wathen,

Deputy Attorney General

Michael David Forney, in pro per

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