People v. Garcia

Filed 3/20/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S218197

v. )

) Ct.App. 6 H039603

IGNACIO GARCIA, )

) Santa Clara County

Defendant and Appellant. ) Super. Ct. No. C1243927

____________________________________)

According to the Center for Sex Offender Management (CSOM), one in

every five girls and one in every seven boys is sexually abused by the time they

reach adulthood. Among adults, one in six women and one in 33 men suffer

sexual assault. (CSOM, U.S. Dept. of Justice, Fact Sheet: What You Need to

Know About Sex Offenders (2008) p. 1 <www.csom.org/pubs/

needtoknow_fs.pdf> [as of March 20, 2017].) Yet only about 30 percent of sexual

assaults are reported to law enforcement. (Off. of Sex Offender Sentencing,

Monitoring, Registering, and Tracking, U.S. Dept. of Justice, Facts and Statistics,

<www.nsopw.gov/en/Education/FactsStatistics#sexualabuse> [as of March 20,

2017].)

Despite rising incarceration rates, the majority of known sex offenders at

any given time are not in prison — and most sex offenders who are imprisoned

will eventually be released. (Nat. Governors Assn. Center for Best Practices,

Managing Convicted Sex Offenders in the Community (Apr. 2008) pp. 1-2

<www.nga.org/files/live/sites/NGA/files/pdf/0711SEXOFFENDERBRIEF.PDF>

SEE CONCURRING OPINION.

[as of March 20, 2017].) Like most jurisdictions, California requires convicted

sex offenders to register as a means of enabling law enforcement to manage the

serious risk to the public of recidivism. (In re Alva (2004) 33 Cal.4th 254, 279.)

During the five-year period from 2006 to 2011, the number of registered

sex offenders in the United States increased 23.2 percent. (Nat. Center for

Missing & Exploited Children, Number of Registered Sex Offenders in the U.S.

Nears Three-quarters of a Million (Jan. 2012) <www.missingkids.com/News/

page/4615> [as of March 20, 2017].) Today, over 850,000 sex offenders are

registered throughout the United States. (Nat. Center for Missing & Exploited

Children, Map of Registered Sex Offenders in the United States (Dec. 2016)

<www.missingkids.com/en_US/documents/Sex_Offenders_Map.pdf> [as of

March 20, 2017].) California alone has 75,000 — more than any other state. (Off.

of Atty. Gen., Cal. Megan‘s Law Website <www.meganslaw.ca.gov/

Statistics.aspx> [as of March 20, 2017]; Cal. Sex Offenders Management Bd., An

Assessment of Current Management Practices of Adult Sex Offenders in

California (Jan. 2008) p. 55.) How to manage and supervise these offenders is one

of the most difficult challenges facing government policymakers today.

In response to this challenge, the Legislature in 2006 created the California

Sex Offender Management Board (CASOMB) to analyze current practices and

recommend improvements. (Pen. Code, § 9001.)1 One of CASOMB‘s

foundational principles was that sex offender management strategies should be

based on reliable information and empirical research concerning the efficacy and

cost effectiveness of different approaches. (CASOMB, Recommendations Rep.

(Jan. 2010) p. 12; see § 9001, subd. (i).) Following a series of public hearings and

1 All further unlabeled statutory references are to the Penal Code.

2

meetings (§ 9002, subd. (b)), CASOMB issued a report recommending best

practices in a variety of areas relating to the management of sex offenders,

including their reentry into the community, supervision, housing, and treatment.

(CASOMB, Recommendations Rep., supra, at pp. 5-6, 12.) Some (but not all) of

those recommendations were subsequently adopted by the Legislature in the

Chelsea King Child Predator Prevention Act of 2010 (Chelsea‘s Law). (Stats.

2010, ch. 219, § 1 et seq.)

One of the CASOMB report‘s conclusions was that sex offender treatment

differs in important respects from ordinary psychotherapy. Sex offenders can be

required to participate in treatment, are not free to determine the nature and course

of their own therapy, may be examined with a polygraph to verify the information

they provide to their therapists and probation officers, and may encounter greater

intrusions on the confidentiality of their discussions with treatment providers, so

that probation officers can keep abreast of the offenders‘ progress and compliance

with probation. (CASOMB, Recommendations Rep., supra, at pp. 30-31.)

CASOMB concluded that the increased supervision mandated by Chelsea‘s Law

can pay substantial dividends: sex offender-specific treatment has been shown to

reduce recidivism by up to 40 percent. (CASOMB, Recommendations Rep.,

supra, at p. 35.)

At issue in this appeal are two parts of Chelsea‘s Law, both relating to a sex

offender‘s mandatory treatment. Section 1203.067, subdivision (b)(3) requires a

convicted sex offender, as a condition of probation, to waive ―any privilege

against self-incrimination‖ and to participate ―in polygraph examinations, which

shall be part of the sex offender management program.‖ Section 1203.067,

subdivision (b)(4) requires, again as a condition of probation, a waiver by the

convicted sex offender of the ―psychotherapist-patient privilege to enable

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communication between the sex offender management professional and

supervising probation officer, pursuant to Section 290.09.‖

Defendant Ignacio Garcia contends that conditioning probation on the

waiver of his privilege against self-incrimination, as well as on his participation in

polygraph examinations, violates his Fifth Amendment rights. We conclude that

the condition mandated by section 1203.067, subdivision (b)(3) directs defendant

to answer fully and truthfully all questions posed to him as part of the sex offender

management program. But because we deem his responses compelled within the

meaning of the Fifth Amendment, they cannot lawfully be used against him in a

criminal proceeding. (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7

(Murphy); accord, People v. Racklin (2011) 195 Cal.App.4th 872, 880.) Where, as

here, the responses would therefore pose no risk of incrimination, neither the fact

that he was compelled to respond nor the fact that his responses were being

monitored by a polygraph offends the Fifth Amendment.

We likewise reject defendant‘s claim that conditioning probation on the

waiver of his psychotherapist-patient privilege violates his constitutional right to

privacy and is overbroad under California law. It is neither overbroad nor

violative of defendant‘s right to privacy to require a limited waiver of the

psychotherapist-patient privilege for the purpose of enabling the treatment

professional to consult with the probation officer and the polygraph examiner. We

therefore affirm the judgment of the Court of Appeal.

I. BACKGROUND

Originally charged with six counts of forcible lewd conduct with a child

(§ 288, subd. (b)(1)), defendant pleaded no contest in a negotiated disposition to

two counts of nonforcible lewd conduct. (§ 288, subd. (a).) The trial court

suspended imposition of the sentence and placed defendant on probation for three

years, ordered him to serve one year in jail and register as a sex offender, and

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mandated his participation in an approved sex offender management program.

Over defense objection, the court also imposed the two probation conditions that

are the subject of this appeal: ―The defendant shall waive any privilege against

self-incrimination and participate in polygraph examinations, which shall be part

of the sex offender management program, pursuant to Section 1203.067(b)(3) of

the Penal Code‖ (the subdivision (b)(3) condition); and ―The defendant shall

waive any psychotherapist-patient privilege to enable communication between the

sex offender management professional and the Probation Officer, pursuant to

Section 1203.067(b)(4) and Section 290.09 of the Penal Code‖ (the subdivision

(b)(4) condition).

Defendant appealed. He claimed that the coerced waiver of his privilege

against self-incrimination and the required participation in polygraph examinations

violated the Fifth Amendment and, like the mandated waiver of his

psychotherapist-patient privilege, was unconstitutionally overbroad. The Court of

Appeal affirmed. All three justices upheld the validity of the subdivision (b)(4)

condition. The panel was divided, however, as to the validity of the subdivision

(b)(3) condition. The majority reasoned that the choice defendant faced between

forfeiting his privilege against self-incrimination (on the one hand) or asserting the

privilege and having his probation revoked (on the other) would present ― ‗the

classic penalty situation, [in which] the failure to assert the privilege would be

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

inadmissible in a criminal proceeding.‘ ‖ Because ―the mere extraction of

compelled statements does not violate the Fifth Amendment‖ and no statements so

extracted could be used against defendant in any criminal proceeding, it

necessarily followed (according to the majority) that the subdivision (b)(3)

condition did not violate the Fifth Amendment.

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The majority also rejected the claim that the conditions were

unconstitutionally overbroad. Addressing the required waiver of the privilege

against self-incrimination and participation in polygraph examinations, the

appellate court found these conditions closely tailored to the purpose of allowing

―the state to discover the full extent of the risks created by the sex offender‘s

freedom so that the state can respond with additional treatment, closer monitoring,

and other measures necessary to protect the community.‖ For similar reasons, the

majority found that the waiver of the psychotherapist-patient privilege neither

violated defendant‘s constitutional right to privacy nor was it overbroad.

Justice Grover concurred in part and dissented in part. In her view, ―[t]he

denial of probation for refusal to accept the mandated condition attaches an

impermissible penalty to the exercise of the Fifth Amendment privilege‖ and is

itself unconstitutional.

We granted review to consider the validity of the probation conditions

mandated by section 1203.067, subdivision (b)(3) and (b)(4). Prior to oral

argument, the Attorney General informed us that defendant had completed his

probationary term. Although the question of these probation conditions‘ validity

is now moot with respect to this defendant, we will exercise our inherent power to

retain and decide the case so that we may settle an important issue that has divided

the Court of Appeal. (See People v. Moran (2016) 1 Cal.5th 398, 408, fn. 8.)

II. DISCUSSION

At any given moment, a substantial majority of convicted sex offenders are

under some form of conditional supervision in the community. (CSOM, U.S.

Dept. of Justice, Recidivism of Sex Offenders (2001) p. 1 <www.csom.org/pubs/

recidsexof.html> ] [as of March 20, 2017].) Many jurisdictions have adopted a

comprehensive approach to managing these sex offenders, under which treatment

providers work together with supervising probation and parole agents to devise an

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individualized supervision and treatment plan for each offender. Although the

available data provide only a partial basis for inference, the findings of relevant

studies appear consistent with the conclusion that offenders who receive

comprehensive treatment have a significantly lower rate of recidivism and rearrest

than offenders who did not participate in such treatment. (CSOM, U.S. Dept. of

Justice, An Overview of Sex Offender Management (2002) pp. 1-2

<www.csom.org/pubs/csom_bro.pdf> [as of March 20, 2017].)

When Chelsea‘s Law was enacted, California had been relying on a

patchwork of management strategies that was crafted ― ‗piece by piece through

separate and uncoordinated legislative and administrative actions.‘ ‖ (Sen. Com.

on Public Safety, Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) as

amended June 2, 2010, pp. 31-32.) The new provisions adopted a unified strategy

for sex offender management known as the ―Containment Model,‖ which was

characterized by CASOMB as ― ‗the best practice for community supervision of

sex offenders.‘ ‖ (Ibid., quoting CASOMB, Recommendations Rep., supra, at pp.

32-33.)

The Containment Model adopted by the Legislature depends on three

interrelated elements: supervision and monitoring of the sex offender while on

probation; sex offender-specific assessment and treatment; and the use of static,

dynamic, and future assessments of the risk of reoffending, including the State

Authorized Risk Assessment Tool for Sex Offenders (SARATSO). (CASOMB,

Sex Offender Treatment Program Certification Requirements (2014 rev.) pp. 6, 8;

Sen. Appropriations Com., Analysis of Assem. Bill No. 1844 (2009-2010 Reg.

Sess.) as amended Aug. 2, 2010, p. 5.) A major premise of the model is that the

mental health professional, probation officer, and polygraph examiner will work

together closely to assess the offender‘s compliance with, and participation in, the

treatment program as well as the offender‘s risk of reoffending. (Sen. Com. on

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Public Safety, Bill Analysis of Assem. Bill No. 1844, supra, at p. 33.) Indeed, the

law specifies that the treatment professional must communicate with the offender‘s

probation officer on a regular basis (or at least once a month) and share pertinent

information with the certified polygraph examiner ―as required.‖ (§ 290.09,

subd. (c).)

In enacting a statutory framework to implement the Containment Model,

the Legislature directed CASOMB to develop and maintain standards for

certification of sex offender management programs, professionals, and polygraph

examiners. (§ 9003, subds. (a), (b), (d).) The relevant standards require the

containment team to obtain accurate information about the offender‘s prior

victims, the offender‘s access to potential new victims, and the high-risk behavior

unique to that sex offender — especially when that history includes categories of

victims or types of behavior stretching beyond the crimes of conviction.

Postconviction polygraph examinations are used to elicit and verify this

information. (CASOMB, Post-Conviction Sex Offender Polygraph Certification

Standards (June 2011) pp. 10-23; see § 9003, subd. (b) [―programs shall include

polygraph examinations‖].) According to the theory of the model, a polygraph

examination (or the threat of one) encourages the offender to be more complete

and accurate when detailing his or her sexual history, provides a method of

verifying whether the offender is currently engaging in or planning to engage in

unlawful behavior, and helps disrupt the pattern of denial that ― ‗is generally

regarded as a main impediment to successful therapy.‘ ‖ (McKune v. Lile (2002)

536 U.S. 24, 33 (plur. opn. of Kennedy, J.); see English et al., Community

Containment of Sex Offender Risk: A Promising Approach in Protecting Society

From Sexually Dangerous Offenders: Law, Justice, and Therapy (Winick &

LaFond edits., 2003) p. 266.) The supervising probation or parole officer then

uses information obtained through treatment and verified by the polygraph

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examination to assess the risk posed by the offender and take appropriate remedial

action. (Ibid.)

This approach depends on the cooperative efforts and expertise of each part

of the containment team. Accordingly, CASOMB concluded that adoption of the

full model was necessary to reduce the risk associated with managing convicted

sex offenders on probation. (Sen. Com. on Public Safety, Analysis of Assem. Bill

No. 1844, supra, at pp. 30-31, quoting CASOMB letter to Assemblyman

Fletcher.) What CASOMB asserted, in particular, is that the absence of open and

ongoing communication among the professionals and others involved in the

offender‘s supervision ―compromises the purpose of the containment team

approach and may jeopardize the safety of the community.‖ (CASOMB, Sex

Offender Treatment Program Certification Requirements, supra, at p. 12.)

Following this recommendation, the Legislature mandated certain

conditions for any registered sex offender placed on probation. Among these are

participation and successful completion of an approved sex offender management

program (§ 1203.067, subd. (b)(1), (2)); waiver of the privilege against self-

incrimination and participation in polygraph examinations as part of the sex

offender management program (id., subd. (b)(3)); and waiver of the

psychotherapist-patient privilege to enable communication between the sex

offender management professional and the supervising probation officer and

polygraph examiner (id., subd. (b)(4)). At issue in this appeal is the

constitutionality, under both state and federal law, of the subdivision (b)(3) and

(b)(4) conditions.

A. The Validity of the Probation Condition Requiring Waiver of the

Privilege Against Self-Incrimination and Participation in Polygraph Examinations

(the Subdivision (b)(3) Condition)

1. Waiver of the privilege against self-incrimination

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Defendant‘s argument that section 1203.067, subdivision (b)(3) imposes an

invalid condition rests on two contentions: (1) that the probation condition

requires him to waive his Fifth Amendment privilege, and (2) that a coerced

waiver of his Fifth Amendment privilege is unconstitutional. Although we agree

that a coerced waiver of the privilege against self-incrimination would raise

serious constitutional questions, our examination of the subdivision (b)(3)

condition in its proper context, as well as the structure and purpose of Chelsea‘s

Law, demonstrates that the Legislature has not actually required probationers to

waive the protections of the Fifth Amendment. The condition is properly read

instead to require that probationers answer all questions posed by the containment

team fully and truthfully, with the knowledge that these compelled responses

could not be used against them in a subsequent criminal proceeding. Because

there is no Fifth Amendment privilege against compelled disclosure of information

that cannot be used to incriminate the probationer (Fisher v. United States (1976)

425 U.S. 391, 400-401; accord, Maldonado v. Superior Court (2012) 53 Cal.4th

1112, 1134 (Maldonado)), it follows that the condition, properly understood, does

not violate the Fifth Amendment.

We begin with the construction proposed by defendant. The subdivision

(b)(3) condition, he asserts, should be interpreted in the broadest manner as

requiring him to waive all of his Fifth Amendment protections, including the right

to bar use of his compelled statements in a criminal trial. But this construction, he

concludes, is unconstitutional under well-established precedent. In short,

defendant argues that the Legislature enacted a patently unconstitutional statute,

and that we have no choice but to strike it down.

Defendant is correct that it would raise serious constitutional questions to

require defendants to waive their privilege against self-incrimination as a

condition of probation. As the high court has explained, ― ‗a State may not impose

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substantial penalties because a witness elects to exercise [the] Fifth Amendment

right not to give incriminating testimony . . . .‘ ‖ (Murphy, supra, 465 U.S. at p.

434.) For example, the government cannot condition a benefit such as public

employment on a waiver of the privilege against self-incrimination, even if the

waiver is ultimately deemed ineffective. (Sanitation Men v. Sanitation Comm’r

(1968) 392 U.S. 280, 283-285; Gardner v. Broderick (1967) 392 U.S. 273, 279

[―the mandate of the great privilege against self-incrimination does not tolerate the

attempt, regardless of its ultimate effectiveness, to coerce a waiver of the

immunity it confers on penalty of the loss of employment‖]; accord, Spielbauer v.

County of Santa Clara (2009) 45 Cal.4th 704, 720 [―the Fifth Amendment forbids

dismissal from public employment for refusal to surrender the privilege against

self-incrimination‖].) The high court has also found ―a substantial basis in our

cases‖ to support the proposition that conditioning a grant of probation on

surrender of the Fifth Amendment privilege would likewise ―create[] the classic

penalty situation‖ and thus be unconstitutional. (Murphy, at p. 435; see id. at p.

436 [requiring a defendant ―to choose between making incriminating statements

and jeopardizing his conditional liberty by remaining silent‖ is ―the extra,

impermissible step‖].) As in the other ―penalty‖ cases, the statements of a

probationer faced with such a choice would be inadmissible in a criminal

prosecution. (Id. at p. 435.)

The People do not dispute defendant‘s characterization of Murphy or his

contention that it would be unconstitutional to condition a grant of probation on

surrender of his Fifth Amendment privilege. What they claim instead is that we

must reject defendant‘s broad construction of the subdivision (b)(3) condition and

consider whether the condition can reasonably be construed in a manner that is

consistent with the Constitution. They rely on the doctrine of constitutional

avoidance.

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Under the doctrine, a statute should not be construed to violate the

Constitution ― ‗ ―if any other possible construction remains available.‖ ‘ ‖ (People

v. Trujeque (2015) 61 Cal.4th 227, 256; accord, DeBartolo Corp. v. Fla. Gulf

Coast Trades Council (1988) 485 U.S. 568, 575 [―where an otherwise acceptable

construction of a statute would raise serious constitutional problems, the Court

will construe the statute to avoid such problems unless such construction is plainly

contrary to the intent of Congress‖].) The theory underlying the canon rests not

only on a preference for avoiding the unnecessary resolution of constitutional

questions, but also on the presumption that the Legislature (whose members have

sworn to uphold the Constitution) did not ―intend[] to infringe constitutionally

protected liberties or usurp power constitutionally forbidden it.‖ (DeBartolo

Corp., at p. 575; see People v. Superior Court (Romero) (1996) 13 Cal.4th 497,

509.) The basis for that presumption is especially strong in this case. Not only did

the high court‘s Murphy decision predate the enactment of Chelsea‘s Law by over

25 years, but that same decision also set out with some care how a state should go

about establishing a valid way of obtaining the information necessary to monitor

probationers released into the community. As the high court explained, ―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.‖ (Murphy, supra, 465 U.S. at p. 435, fn. 7.)

Defendant nonetheless claims the avoidance canon is inapplicable here.

The subdivision (b)(3) condition, he contends, is unambiguous and must be

accorded its literal meaning: that it requires the waiver of any privilege against

self-incrimination. The People, by contrast, argue that the condition is ambiguous,

and conclude that ―the historical context, the plain language, and the positioning of

the waiver all indicate that the Legislature intended to limit invocation of the

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privilege against self-incrimination only in the narrow context of probation

supervision and treatment,‖ without precluding probationers from objecting ―to the

admission of compelled statements in later criminal proceedings.‖ Under this

interpretation, the word ―any‖ in subdivision (b)(3) would not refer to all aspects

of the self-incrimination privilege, but rather to ―any‖ right to remain silent that

probationers might assert as a basis for refusing to answer questions posed by the

containment team. What we find is that defendant‘s construction places too much

reliance on one particular reading of the provision‘s text, and too little on the

provision‘s purpose and context.

Text may sometimes seem unambiguous in isolation, even as it harbors

greater complexity when considered in the context of surrounding provisions and

the overall statutory structure. (Poole v. Orange County Fire Authority (2015) 61

Cal.4th 1378, 1391-1392 (conc. opn. of Cuéllar, J.), citing Horwich v. Superior

Court (1999) 21 Cal.4th 272, 276, and Hodges v. Superior Court (1999) 21

Cal.4th 109, 114.) Both the Penal Code (see § 7, subd. 16) and our case law

(People v. Leiva (2013) 56 Cal.4th 498, 506) direct us to construe words and

phrases according to their statutory context. We consider the text in conjunction

with the context and purpose of the statute even where, as here, the statutory

language has a ―highly technical‖ meaning. (Zuni Public School Dist. No. 89 v.

Department of Education (2007) 550 U.S. 81, 99.)

Our primary task, after all, is to identify and effectuate the underlying

purpose of the law we are construing. (Goodman v. Lozano (2010) 47 Cal.4th

1327, 1332.) The statutory provision here describes the waiver term of probation

as ―part of the sex offender management program.‖ (§ 1203.067, subd. (b)(3).)

Other parts of the same subdivision provide that participation in a sex offender

management program for at least a year is a requirement of probation, as is

successful completion of the program, and that the program must follow the

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standards developed by CASOMB. (Id., subd. (b)(2), citing § 9003.) Those

standards emphasize the need for complete and accurate information about the

probationer‘s prior victims, the probationer‘s access to potential new victims, and

the high-risk behavior unique to that sex offender. It is precisely such information

that is meant to be elicited by the psychotherapist and probation officer, and

verified by polygraph examinations. (CASOMB, Post-Conviction Sex Offender

Polygraph Certification Standards, supra, pp. 10-23.)

So any reasonable understanding of statutory purpose here must

acknowledge the Containment Model‘s dependence on the information shared by

the probationer. The People contend that the model‘s pillars are (1) measures

designed to ensure the accuracy and completeness of the information provided by

sex offenders to treatment professionals, and (2) collaboration and communication

among the containment team members to enable development of an individualized

treatment plan and to ensure the offender‘s compliance with it. The model

contemplates that the privilege against self-incrimination must not be used to

impede treatment professionals from eliciting a full disclosure of the offender‘s

sex offense history, which is verified for completeness and accuracy by the

polygraph examination. The containment team, in turn, uses the verified

information to formulate an accurate risk profile and monitoring plan with the goal

of preventing recidivism and promoting public safety. Depriving the containment

team of the ability to insist on answers to their questions would, according to the

People, ―undercut[] this core pillar of the model.‖ (See State v. Fuller (Mont.

1996) 915 P.2d 809, 816 [―a defendant who refuses to disclose his offense history

cannot be successfully treated‖].)

The purpose of the subdivision (b)(3) condition can thus be understood as a

means of ensuring that the probationer fully, and accurately, answers questions

pertinent to the sex offender management program. Without that insight into the

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probationer‘s history and current state of mind, the containment team would be

seriously hampered in its vital task of monitoring the probationer in the

community. If the containment team is to fulfill its proper role in the offender

management system, the flow of information to the team must not be subject to

disruption by a probationer‘s assertion of the privilege against self-incrimination.

Because it would frustrate the purpose of the subdivision (b)(3) condition

for a probationer to engage in a valid assertion of the privilege that thwarts a core

premise of the sex offender management program, it would make no sense to

interpret the condition as compelling a waiver that the People concede would be

unconstitutional. The People acknowledge the need to read the text of the

subdivision (b)(3) condition in the context of the statutory scheme and its purpose.

(See generally In re Application of Haines (1925) 195 Cal. 605, 612 [―To arrive at

the legislative intent in the interpretation of statutes the original purpose and object

of the legislation must be considered‖], disapproved on other grounds in In re

Culver (1968) 69 Cal.2d 898, 904-905 & fn. 8.) There is no indication in the

structure of Chelsea‘s Law or in its legislative history that the Legislature expected

(in defiance of the high court‘s Murphy decision) that the fruits of the

probationer‘s statements would be admissible in a subsequent criminal

prosecution. In short, defendant‘s construction of the subdivision (b)(3) condition

is inconsistent with the statutory purpose. So we must reject it. (People v. Leiva,

supra, 56 Cal.4th at p. 506.)

We conclude instead that the subdivision (b)(3) condition may reasonably

be construed in a manner that is both constitutional and consistent with the

purpose of Chelsea‘s Law. (See People v. Chandler (2014) 60 Cal.4th 508, 524.)

The subdivision (b)(3) condition does no more than allow the containment team to

overcome the probationer‘s Fifth Amendment objections when the team poses

potentially incriminating questions. Under this construction, a probationer is

15

required to answer the questions posed by the containment team, on pain of

probation revocation should the probationer refuse. In turn, the probationer‘s

compelled responses may not be used against the probationer in a subsequent

criminal prosecution. (Murphy, supra, 465 U.S. at p. 435 & fn. 7.)

This construction adequately safeguards a probationer‘s Fifth Amendment

rights. The Fifth Amendment prohibits the government from using statements

compelled under the subdivision (b)(3) condition against the probationer in a

criminal trial, whether as direct evidence of guilt or as impeachment. (New Jersey

v. Portash (1979) 440 U.S. 450, 458-459.) It also prevents the government from

exploiting the information gleaned from those statements to discover other

evidence of guilt. (Wong Sun v. United States (1963) 371 U.S. 471, 487-488.)

Once a defendant demonstrates that he or she was compelled to disclose evidence

of criminal conduct as part of the sex offender management program — which

could ordinarily be established by the defendant‘s uncontradicted declaration to

that effect — the burden shifts to the prosecution in a criminal proceeding to

demonstrate that its evidence was untainted by the defendant‘s prior statements.

(See Kastigar v. United States (1972) 406 U.S. 441, 460.) That is, the government

remains free to undertake a prosecution for those crimes, but it bears a ―heavy

burden‖ to show that its evidence was derived from a legitimate source wholly

independent of the compelled testimony. (Id. at p. 461; accord, Maldonado,

supra, 53 Cal.4th at pp. 1138-1139, fn. 17.)

We therefore interpret the subdivision (b)(3) condition as directing the

probationer, in the context of questioning by the containment team, to exchange

the privilege against self-incrimination for an immunity against prosecutorial use

of the compelled responses. (See United States v. Balsys (1998) 524 U.S. 666,

682.) As this court has previously explained, the Fifth Amendment does not

establish a privilege against the compelled disclosure of information; rather, it

16

―precludes the use of such evidence in a criminal prosecution against the person

from whom it was compelled.‖ (Maldonado, supra, 53 Cal.4th at p. 1134.)

At the People‘s invitation — and to remove any doubt on this score — we

explicitly declare that probationers have immunity against the direct and derivative

use of any compelled statements elicited under the subdivision (b)(3) condition.

(See United States v. Balsys, supra, 524 U.S. at p. 683, fn. 8 [―the prediction that a

court in a future criminal prosecution would be obligated to protect against the

evidentiary use of compelled testimony is not enough to satisfy the privilege

against compelled self-incrimination‖]; cf. Maldonado, supra, 53 Cal.4th at p.

1129, fn. 10 [declaring judicial immunity against use in prosecution‘s case-in-

chief of an accused‘s compelled statement to a prosecution mental health expert];

accord, State v. Evans (Wis. 1977) 252 N.W.2d 664, 668 [declaring judicial

immunity against use of incriminating information disclosed under compulsion by

a probationer or parolee to a probation or parole agent ―[i]n order to guarantee the

fifth amendment rights of a probationer or a parolee and at the same time to

preserve the integrity of the probation system‖].) We further agree with the

People that the probationer must be made aware of the protection afforded

statements compelled in the course of the sex offender management program. In

particular, a probationer must be advised, before treatment begins, that no

compelled statement elicited under questioning in the course of the mandatory sex

offender management program (or the fruits thereof) may be used against him or

her in a subsequent criminal prosecution. (Cf. Evans, supra, at pp. 668-669

[declaring that a probationer or parolee should be made aware that potentially

17

incriminating answers compelled under questioning by a probation or parole

officer cannot be used in a subsequent criminal proceeding].)2

2. Participation in polygraph examinations

The trial court also conditioned defendant‘s probation on his participation

in polygraph examinations connected to the sex offender management program.

Defendant argues that mandating the use of polygraph examinations to ―elicit

incriminating information‖ about ―uncharged offenses‖ violates the Fifth

Amendment. But as explained earlier, the information elicited under compulsion

by the containment team in interviews and by polygraph examinations may not be

used against the probationer in a criminal prosecution and therefore does not

offend the Fifth Amendment. (Brown v. Superior Court (2002) 101 Cal.App.4th

313, 320 [―if the questions put to the probationer [during the polygraph

examination] are relevant to his probationary status and pose no realistic threat of

incrimination in a separate criminal proceeding, the Fifth Amendment privilege

would not be available and the probationer would be required to answer those

questions truthfully‖]; accord, United States v. Locke (5th Cir. 2007) 482 F.3d

764, 767 [―The fact that the questions were asked to Locke in the context of a

polygraph test does not convert the question-and-answer session into a Fifth

Amendment violation‖].)

2 If defendant had been successful in invalidating the subdivision (b)(3)

condition, it might have had paradoxical consequences for him and for other sex

offenders who are granted probation. Without the assurance that the containment

team would be able to uncover the extent of a probationer‘s vulnerabilities and

monitor the probationer‘s progress, a trial court might well conclude that the sex

offender was not a good candidate for probation and must instead be sentenced to

prison. (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1844, supra, at

pp. 30-31.)

18

Defendant complains next that the scope of the mandated examinations

under the subdivision (b)(3) condition is not limited to prior or potential sex

offenses but would permit a polygraph examiner to ask ―anything at all, without

limitation,‖ including questions about ―his medical history or personal financial

matters having nothing to do with any criminal conduct.‖ He contends that

requiring him to participate in polygraph examinations of unlimited scope would

be overbroad and that the condition should be narrowed.

We reject the claim of overbreadth here. The scope of the polygraph

examination is not unbounded, as defendant suggests. Rather, it is limited to that

which is reasonably necessary to promote the goals of probation. As the Court of

Appeal pointed out, the polygraph testing condition is expressly linked to the

purposes and needs of the sex offender management program. (See § 1203.067,

subd. (b)(3) [requiring ―participation in polygraph examinations, which shall be

part of the sex offender management program‖].) That program requires

disclosure of each prior sex offense so as to enable identification of the

psychological and physiological factors associated with the probationer‘s crimes

and development of a plan to reform and rehabilitate the probationer. The

polygraph is a reasonable means of verifying the accuracy and completeness of

those disclosures and of ensuring the probationer‘s compliance with treatment and

supervision, both of which allow the containment team to discover and monitor

the risks posed by the probationer‘s release to the community. (In re Jordan R.

(2012) 205 Cal.App.4th 111, 129, fn. 17.) Because the scope of the polygraph

examination is already focused by its terms on criminal conduct related to the sex

offender management program, it is a valid condition of probation and does not

require further limitation. (See People v. Lent (1975) 13 Cal.3d 481, 486.)

The polygraph examination, of course, may also include questions unrelated to the

probationer‘s treatment and supervision but that are reasonably necessary to

19

establish a baseline physiological response. Such questions do not render the

condition overbroad.

B. The Constitutionality of the Probation Condition Requiring Waiver

of the Psychotherapist-patient Privilege (the Subdivision (b)(4) Condition)

Defendant contends that the condition requiring him to waive his

psychotherapist-patient privilege violates his right to privacy and is

unconstitutionally overbroad. As we recently did in People v. Gonzales (2013) 56

Cal.4th 353, 385 (Gonzales), we will assume (without deciding) that the federal

Constitution can in some circumstances protect convicted sex offenders from

governmentally compelled disclosure of privileged communications with their

psychotherapists. We nonetheless conclude that the subdivision (b)(4) condition is

not unconstitutional.3

To determine whether the sharing of confidential communications between

defendant and his psychotherapist (see Evid. Code, § 1012) with certain members

of the containment team would violate defendant‘s asserted federal constitutional

right to privacy, we balance the particular intrusion on defendant‘s privacy against

the justification for the probation condition. (Gonzales, supra, 56 Cal.4th at

p. 386.) Defendant, as a probationer, has a diminished expectation of liberty and

privacy as compared to an ordinary citizen. (United States v. Knights (2001) 534

U.S. 112, 119.) In addition, the waiver required by the probation condition is

quite narrow. By its express terms, the waiver is limited to that which is necessary

―to enable communication between the sex offender management professional and

3 Defendant purports to assert claims under both the federal and state rights

to privacy, but provides no separate analysis of the protection afforded by the state

Constitution. We therefore restrict our discussion to the federal claim. (See

People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)

20

supervising probation officer, pursuant to Section 290.09.‖ (§ 1203.067,

subd. (b)(4).) Consequently, a probationer‘s confidential communications may be

shared only with the probation officer and the certified polygraph examiner, who

is likewise explicitly authorized to receive ―pertinent information . . . as required‖

from the sex offender management professional under subdivision (c) of section

290.09. (See § 9003, subd. (b) [sex offender management programs provided by

sex offender management professionals ―shall include polygraph examinations by

a certified polygraph examiner‖].)4 The waiver does not relieve the

psychotherapist, probation officer, or polygraph examiner of their duty to

otherwise maintain the confidentiality of this information (although the mandatory

reporting laws may themselves require a probation officer, psychotherapist, or

other classified individual to inform the appropriate agencies about suspected child

abuse or neglect (see §§ 11165.7, subd. (a)(15), (18), (21), (34), 11165.9), nor

does it divest defendant of the ability to assert the privilege to prevent further

disclosure of the shared communications. (CASOMB, Post-Conviction Sex

Offender Polygraph Certification Standards, supra, at p. 5.) We expect that the

members of the containment team will act in accordance with their professional

obligations and ensure the integrity of the process. Section 11167.5, moreover,

criminalizes unauthorized disclosure of confidential information elicited under the

mandatory reporting law.

Against that limited intrusion, we must weigh the state‘s strong and

legitimate interest. The core of that interest is allowing the psychotherapist,

4 The sex offender management professional must also provide the

offender‘s SARATSO score to the probation officer, who in turn must provide the

score to the Department of Justice. The score is then made available on the

California Sex and Arson Registry website. (§ 290.09, subd. (b)(2).)

21

probation officer, and polygraph examiner to exchange relevant information about

a probationer‘s reformation and rehabilitation, including information disclosed

during the probationer‘s therapy. (§ 290.03, subds. (a), (b).) The Legislature has

recognized that the effectiveness of the Containment Model depends on ― ‗open

and ongoing communication‘ ‖ among the professionals involved in

― ‗supervising, assessing, evaluating, treating, supporting, and monitoring sex

offenders.‘ ‖ (Gonzales, supra, 56 Cal.4th at p. 377.) Unless these professionals

can communicate freely about the probationer‘s situation, the purpose of the

Containment Model may be compromised and the safety of the community may be

placed in jeopardy. (Ibid.)

In Gonzales, we did not have occasion to consider the validity and effect of

an analogous waiver condition for parolees. Those provisions had not yet gone

into effect at the time the defendant there was placed on parole and participated in

parole-mandated therapy. (Gonzales, supra, 56 Cal.4th at p. 378, fn. 9.)

Moreover, the intrusion on the psychotherapist-patient privilege in Gonzales was

more substantial than in this case. The confidential communications were shared,

over the parolee‘s objection, with the government, and were introduced at trial on

the petition to commit the parolee as a sexually violent predator. (Id. at p. 357.)

But applying a weighing process similar to what we apply here, Gonzales held that

the involuntary disclosure and use of a parolee‘s confidential communications

with his psychotherapist, while state law error, was not a violation of the parolee‘s

federal constitutional right to privacy. (Id. at p. 388.) It follows that the more

limited intrusion on the privilege in this case did not violate defendant‘s federal

right to privacy, either. (See In re Christopher M. (2005) 127 Cal.App.4th 684,

695 [probation condition requiring disclosure to the probation officer and the court

of all records concerning the juvenile‘s court-ordered medical and psychological

22

treatment did not violate the federal right to privacy], disapproved on other

grounds in Gonzales, at p. 375, fn. 6.)

Even without any waiver of the psychotherapist-patient privilege, the

psychotherapist has a statutory duty to report suspected child abuse or neglect.

(§ 11165.7, subd. (a)(21); see generally People v. Stritzinger (1983) 34 Cal.3d

505, 512.) The possibility that a probation officer or polygraph examiner might

also qualify as a mandatory reporter does not materially alter the intrusion on a

defendant‘s privacy.

We likewise reject defendant‘s claim that the subdivision (b)(4) condition is

unconstitutionally overbroad. The required waiver extends only so far as is

reasonably necessary to enable the probation officer and polygraph examiner to

understand the challenges defendant presents and to measure the effectiveness of

the treatment and monitoring program. (Cf. Gonzales, supra, 56 Cal.4th at p. 377

[noting that the analogous waiver of the privilege in § 3008, subd. (d) extends only

to what ―is considered necessary to the effective functioning of the parole process

with regard to the parolee in question‖].) Defendant‘s assertion that these goals

can be achieved without disclosure of any privileged information — i.e., by

limiting disclosures to a record of his attendance at therapy sessions and a general

opinion as to whether he was cooperating and progressing — is flatly inconsistent

with the Containment Model the Legislature adopted, and is supported by no

evidence or even an explanation.

Defendant contends that his overbreadth argument finds support in In re

Corona (2008) 160 Cal.App.4th 315. His reliance is misplaced. Corona, a sex

offender, was required as a condition of parole to execute a waiver of his patient-

therapist privilege to permit his parole officer to stay informed about information

Corona disclosed during his state-reimbursed group therapy program. (Id. at p.

319.) But Corona did not challenge that waiver. Instead, he challenged the

23

validity of a waiver the state sought as to therapy he had voluntarily arranged with

a private psychotherapist. In striking down only the latter waiver, the Court of

Appeal concluded that the private therapy was something for which Corona should

be credited, not penalized, and that the compelled waiver of the privilege

concerning the private therapist would discourage Corona from obtaining needed

treatment. (Id. at p. 321.) Because the waiver would therefore have a ―reverse

effect‖ on his reformation and rehabilitation, the Court of Appeal deemed it to be

―unreasonable and unnecessary.‖ (Ibid.) Here, by contrast, the therapy is itself a

condition of probation and is provided by a state-paid therapist. (Gonzales, supra,

56 Cal.4th at p. 386.) And as the People indicate, the ongoing communication

among members of the team remains essential to the Containment Model‘s

success in reducing recidivism for convicted sex offenders. So the Legislature

was entitled to conclude that the Containment Model, and the limited sharing of

information it requires, would be more effective in rehabilitating and reforming a

convicted sex offender than a model that maintained the privilege to its fullest

extent. (Cf. People v. Juarez (2004) 114 Cal.App.4th 1095, 1104 [―A sentencing

determination predicated on the judicial repudiation of legislative policy

constitutes an abuse of discretion‖].)

Finally, we find that the limited scope of the subdivision (b)(4) condition is

consistent with Regents of University of California v. Superior Court (2008) 165

Cal.App.4th 672 (Regents) –– a case on which defendant relies. In the underlying

action there, the Regents had brought an antitrust suit against a group of energy

suppliers. As part of discovery in the antitrust suit, the Regents requested

materials protected by the attorney-client and work product privileges, which the

defendants had previously disclosed to a federal corporate fraud task force. (Id. at

p. 676.) The defendants had willingly disclosed these materials to demonstrate

their ―cooperation with the government‖ consistent with federal enforcement

24

guidelines and on the condition that ―disclosure of information to the government

was not a waiver of the attorney-client and work product privileges.‖ (Id. at pp.

676-677.) The Regents contended that the disclosure constituted a waiver of the

privilege for all purposes. (Id. at p. 677.)

In rejecting the claim that prior disclosure had effected a blanket waiver of

privilege, the Court of Appeal accepted the uncontradicted allegations that each

defendant believed it would have suffered severe regulatory or criminal

consequences had it failed to share the requested information with the federal

investigators. (Regents, supra, 165 Cal.App.4th at pp. 677-678.) The Court of

Appeal then concluded that disclosure under such circumstances was a product of

―coercion‖ within the meaning of Evidence Code section 912, subdivision (a) and

thus did not constitute a waiver of the privilege for all purposes. (Regents, at pp.

683-684.)

In this case, defendant faced the choice between waiving his

psychotherapist-patient privilege or going to prison. Defendant is correct that the

condition involves an element of coercion, but he is mistaken in concluding that

the condition thereby is invalid. Here, as in Regents, the disclosure does not cause

the privilege to evaporate, because, as noted ante on page 16, the privileged

information is disclosed under compulsion. (See Evid. Code, § 912, subd. (a).)

The subdivision (b)(4) condition thus should be read to intrude on the privilege

only to a limited extent: the extent specified in the condition itself, which

describes what is reasonably necessary to enable communications among the

psychotherapist, probation officer, and polygraph examiner; facilitate their

understanding of the challenges defendant presents; and allow those containment

team members to measure the effectiveness of the sex offender treatment and

monitoring program. (Pen. Code, § 1203.067, subd. (b)(4).) In all other respects,

the privilege remains intact. So construed, the condition is not overbroad.

25

III. DISPOSITION

When the Legislature adopted the Containment Model for the management

of sex offenders who are granted probation, it balanced the constitutional interests

of those sex offenders released into the community under supervision with the

compelling need to protect public safety. The success of that carefully wrought

model depends on an accurate and complete understanding of the sex offender‘s

criminal proclivities and vulnerabilities. Read in light of the relevant

constitutional provisions and the purpose of Chelsea‘s Law, the probation

conditions challenged here enable those charged with monitoring the probationer

to obtain the information they need, while otherwise safeguarding the

probationer‘s privacy and protecting the probationer from compelled self-

incrimination. The judgment of the Court of Appeal is affirmed.

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

KRUGER, J.

26

CONCURRING OPINION BY KRUGER, J.

Penal Code section 1203.067 requires criminal defendants who must

register as sex offenders to participate in an approved sex offender management

program as a condition of probation. For purposes of the program, the defendant

must, among other things, waive ―any privilege against self-incrimination‖ (Pen.

Code, § 1203.067, subd. (b)(3)), participate in polygraph examinations, and waive

―any psychotherapist-patient privilege to enable communication between the sex

offender management professional and supervising probation officer‖ (id., subd.

(b)(4)). I join the majority in concluding that, properly construed, these conditions

are not overbroad, do not violate the defendant‘s right to privacy, and do not

violate the defendant‘s Fifth Amendment rights. I write separately to elaborate on

my views on the proper construction of the condition requiring a waiver of ―any

privilege against self-incrimination.‖ (Id., subd. (b)(3).)

Defendant contends this self-incrimination waiver provision ―preclude[s]

any 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.‖ So construed, defendant contends, the condition violates

the self-incrimination clause of the federal Constitution‘s Fifth Amendment by

requiring probationers not only to respond to potentially incriminating official

questions, but also to anticipatorily waive any right to object if the state later uses

their answers against them in criminal proceedings. The Attorney General

disavows this interpretation. He contends that the provision merely requires

probationers to provide truthful answers to questions posed as part of the sex

offender management program, and does not preclude probationers from objecting

to the admission of compelled statements against them in later criminal

proceedings. On this narrower understanding of the required waiver, Penal Code

section 1203.067, subdivision (b)(3) does no more than what the law clearly

permits: It has long been established 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

proceeding . . . .‖ (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7

(Murphy).)

The Attorney General‘s argument relies on the canon of constitutional

avoidance — that is, the principle that we will construe statutes to avoid serious

constitutional problems if such a reading is fairly possible. (See People v.

Gutierrez (2014) 58 Cal.4th 1354, 1373.) Defendant contends that the Attorney

General‘s narrow reading is not fairly possible, because the statutory requirement

that probationers waive ―any privilege against self-incrimination‖ admits of only

one interpretation. If that were so, the canon would have no application here. The

canon of constitutional avoidance is a tool of statutory interpretation that permits

us to select between competing plausible interpretations of statutory text. It does

not permit us to ― ‗ ―do[] violence to the reasonable meaning of the language

used‖ ‘ ‖ (ibid.), nor does it provide ―a method of adjudicating constitutional

questions by other means‖ (Clark v. Martinez (2005) 543 U.S. 371, 381

(Martinez)).

The primary question before us, then, is whether the language of Penal

Code section 1203.067 is susceptible of the reading the Attorney General urges. It

is.

2

To be sure, the requirement that probationers waive ―any privilege against

self-incrimination‖ is also susceptible to defendant‘s broader reading. Both this

court and a majority of the members of the United States Supreme Court have said

that the core constitutional right protected by the Fifth Amendment‘s self-

incrimination clause is a privilege against the use of compelled statements in a

criminal trial, not against the compulsion of those statements in the first instance.

(See Chavez v. Martinez (2003) 538 U.S. 760, 767 (Chavez) (plur. opn. of

Thomas, J.) [―Statements compelled by police interrogations of course may not be

used against a defendant at trial, [citation], but it is not until their use in a criminal

case that a violation of the Self-Incrimination Clause occurs.‖]; see also id. at

p. 772 [―the core constitutional right defined by the Self-Incrimination Clause [is]

the right not to be compelled in any criminal case to be a witness against oneself‖

(fn. omitted)]; id. at p. 777 (conc. opn. of Souter, J., joined by Breyer, J.);

Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1128 (Maldonado)

[adopting Chavez‘s conclusion 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‖].) Understood

against the backdrop of these decisions, the statutory requirement to waive the

self-incrimination privilege is plausibly understood, as defendant argues, to mean

waiving the right to object to the use of compelled statements in a criminal trial,

not waiving any purported right to remain silent when asked incriminating

questions as part of sex offender treatment.

But defendant‘s interpretation is not the only plausible interpretation of

Penal Code section 1203.067, subdivision (b)(3) — nor is it the most reasonable

one. While cases like Chavez and Maldonado have taken the view that the Fifth

Amendment right is violated by the prosecution‘s use of compelled statements in

3

criminal proceedings, not the compulsion itself, the cases have also recognized a

longstanding body of ― ‗prophylactic rules designed to safeguard the core

constitutional right protected by the Self-Incrimination Clause.‘ ‖ (Maldonado,

supra, 53 Cal.4th at p. 1128, quoting Chavez, supra, 538 U.S. at pp. 770-771 (plur.

opn. of Thomas, J.).) These rules permit an individual to assert the Fifth

Amendment privilege if ― ‗ ―compelled to produce evidence which later may be

used against him as an accused in a criminal action.‖ ‘ ‖ (Ibid.)

Common usage does not always respect this distinction between core

constitutional right and prophylactic safeguard. It is certainly not unusual to hear

the phrase ―privilege against self-incrimination‖ to refer to the assertion of the

―right to remain silent‖ in the face of official questioning, as opposed to the

assertion of the right to prevent the use of compelled statements in a later criminal

proceeding. Perhaps the most well-known example appears in Miranda v. Arizona

(1966) 384 U.S. 436: ―Once warnings have been given, the subsequent procedure

is clear. If the individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must cease. At this

point he has shown that he intends to exercise his Fifth Amendment privilege; any

statement taken after the person invokes his privilege cannot be other than the

product of compulsion, subtle or otherwise. Without the right to cut off

questioning, the setting of in-custody interrogation operates on the individual to

overcome free choice in producing a statement after the privilege has been once

invoked.‖ (Id. at pp. 473-474, italics added, fn. omitted.) Given that the United

States Supreme Court itself has used the phrase ―Fifth Amendment privilege‖ to

mean ―the right to remain silent,‖ it is not too much of a stretch to imagine that the

Legislature might have used the phrase ―privilege against self-incrimination‖ to

mean much the same thing.

4

Defendant‘s counterargument relies heavily on the Legislature‘s use of the

word ―any‖ to modify the term ―privilege,‖ contending that it unambiguously

demonstrates the Legislature‘s desire to prohibit probationers from asserting any

version of the ―self-incrimination privilege‖ at any time and in any proceeding. It

is, however, at least as likely that the Legislature used the word ―any‖ because

nothing about sex offender treatment necessarily implicates the privilege against

self-incrimination; it is only if ―any‖ incriminating questions are asked that ―any

privilege against self-incrimination‖ (Pen. Code, § 1203.067, subd. (b)(3)) might

be invoked. Moreover, the Fifth Amendment privilege is not the only potentially

applicable self-incrimination privilege: A criminal defendant might equally

invoke article I, section 15 of the California Constitution (―Persons may not . . . be

compelled in a criminal cause to be a witness against themselves‖), or Evidence

Code section 940 (―To the extent that such privilege exists under the Constitution

of the United States or the State of California, a person has a privilege to refuse to

disclose any matter that may tend to incriminate him‖). The Legislature may have

used the word ―any‖ as a shorthand reference to all three of these provisions,

rather than, as defendant argues, as a reservation of the state‘s prerogative to use

probationers‘ incriminating statements against them in later criminal proceedings.

Nor does the remainder of Penal Code section 1203.067 suggest that the

Legislature intended to require probationers to surrender any privilege against the

use of their statements to prosecute them for criminal offenses. The evident focus

of the provision is the proper functioning of the sex offender management program

as a mechanism for treatment of participating sex offenders. (Pen. Code,

§ 1203.067, subd. (a)(3).) The provision makes no mention of the use of

information gathered in the course of treatment, except ―to enable communication

between the sex offender management professional and supervising probation

officer‖ (id., subd. (b)(4)), who are, collectively, responsible for determining how

5

long the probationer must remain in the program. It contains no indication that the

Legislature intended to require probationers to provide truthful answers not only

for purposes of successful treatment, but also for purposes of facilitating criminal

prosecution.

The statutory language is, in short, entirely susceptible of the narrow

construction the Attorney General urges. That construction is consistent with the

evident purpose of the sex offender management program — that is, to promote

successful treatment of the participants. It is also consistent with established law.

(See Murphy, supra, 465 U.S. at p. 435, fn. 7.) As between this construction and

defendant‘s proffered construction, we presume the Legislature ―did not intend the

alternative which raises serious constitutional doubts.‖ (Martinez, supra, 543 U.S.

at p. 381.)

For all these reasons, in my view, the court is clearly correct to conclude

that Penal Code section 1203.067, subdivision (b)(3)‘s ambiguous language must

be construed not as requiring probationers to waive the right to assert any self-

incrimination privilege in criminal proceedings, but merely as barring probationers

from attempting to use any such privilege as a basis for refusing to candidly

discuss matters pertinent to the sex offender management program. So construed,

the condition does not violate defendant‘s Fifth Amendment rights.

KRUGER, J.

I CONCUR:

LIU, J.

6

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Garcia

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 224 Cal.App.4th 1283

Rehearing Granted

__________________________________________________________________________________

Opinion No. S218197

Date Filed: March 20, 2017

__________________________________________________________________________________

Court: Superior

County: Santa Clara

Judge: Hector E. Ramon

__________________________________________________________________________________

Counsel:

David D. Martin, under appointment by the Supreme Court, for Defendant and Appellant.

Law Offices of Daniel H. Willick and Daniel H. Willick for California Psychiatric Association, National

Association of Social Workers and California Chapter of National Association of Social Workers as Amici

Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Dane R. Gillette and

Gerald A. Engler, Chief Assistant Attorneys General, Seth K. Shalit, Lisa Ashley Ott, Laurence K.

Sullivan, René A. Chacón and Leif M. Dautch, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

David D. Martin

10 Sanderling Court

Sacramento, CA 95833

(916) 999-0200

Leif M. Dautch

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5089