Opinion
H041941
04-18-2017
THE PEOPLE, Plaintiff and Respondent, v. PAULO TABIOS MILLENDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1370657)
Defendant Paulo Tabios Millendez pleaded guilty to one count of committing a lewd or lascivious act on a child and two counts of annoying or molesting a child. (Pen. Code, §§ 288, subd. (a), 647.6, subd. (a)(1).) The trial court suspended imposition of sentence and granted a three-year term of probation with one year in county jail. Among other probation conditions, the trial court ordered Millendez to participate in a sex offender management program as required by subdivision (b) of section 1203.067.
Subsequent undesignated statutory references are to the Penal Code.
Millendez challenges several probation conditions on appeal. First, Millendez contends a probation condition mandated by section 1203.067(b)(3), requiring him to waive any privilege against self-incrimination as part of his participation in the sex offender management program, violates his Fifth Amendment right not to incriminate himself. Second, Millendez contends the probation condition mandated by section 1203.067(b)(3), requiring him to participate in polygraph examinations, is unconstitutionally overbroad. Third, Millendez contends the probation condition mandated by section 1203.067(b)(4), requiring him to waive the psychotherapist-patient privilege, violates his constitutional right to privacy and the statutory psychotherapist-patient privilege. The California Supreme Court recently approved these probation conditions in People v. Garcia (2017) 2 Cal.5th 792 (Garcia). Based on Garcia, we reject Millendez's challenges to these conditions.
Finally, Millendez challenges a condition ordering him not to "date, socialize with, or form any romantic relationship with anyone he knows has physical custody of a minor unless approved by probation." Millendez contends the condition is unconstitutionally vague and overbroad. We conclude the requirement is both overbroad and vague. Accordingly, we will strike this probation condition and remand to the trial court to consider imposing more a more narrowly tailored condition.
I. FACTUAL AND PROCEDURAL BACKGROUND
The statement of facts is based on the probation report and the transcript of the preliminary hearing. --------
Millendez, then 19 years old, babysat six-year-old M.D. and her two-year-old sister on numerous occasions in 2012. At the preliminary hearing, M.D. testified that Millendez "shows me his private." She testified that Millendez had pulled his pants down to his knees and exposed himself to her in the living room or the family bedroom on more than five occasions. When given a drawing of a human body and asked to circle the area Millendez had exposed, M.D. circled the penis area.
San Jose police detective Tam Truong interviewed M.D. at the Children Interview Center. Truong testified that M.D. said Millendez "would force her to look at his penis and she said she doesn't like that." M.D. said she attempted to cover her eyes, but Millendez would remove her hands from her eyes and force her to look at his penis. M.D. said Millendez exposed himself to her about ten times.
Detective Truong interviewed Millendez at the San Jose Police Department. Millendez said he had masturbated in the bathroom while babysitting, but he did not admit to doing so in front of the children.
B. Procedural Background
The prosecution charged Millendez by information with five counts: Count One—Lewd or lascivious act on a child under 14 (§ 288, subd. (a)); Count Two—Forcible lewd or lascivious act on a child under 14 (§ 288, subd. (b)(1)); and Counts Three through Five—Annoying or molesting a child under 18 (§ 647.6, subd. (a)(1)). Millendez pleaded guilty to Counts One, Three, and Four in exchange for dismissal of Counts Two and Five.
The trial court suspended imposition of sentence and granted a three-year term of probation with one year in county jail. Among others, the court imposed the following probation conditions: "Pursuant to 1203.067(b)(2) of the Penal Code, as a condition of release on formal probation, the defendant shall enter, participate in, and complete an approved Sex Offender Management Program, herein after SOMP, following the standards developed pursuant to Section 9003 of the Penal Code, for a period of not less than one year up to the entire term of probation, as determined by the certified SOMP professional in consultation with the probation officer and as approved by the Court. [¶] The defendant shall waive any privilege against self incrimination and participate in polygraph examinations, which shall be a part of the SOMP program, pursuant to Section 1203.067(b)(3) of the Penal Code. [¶] Defendant shall waive any psychotherapist/patient privilege to enable communication between the SOMP professional and the probation officer pursuant to Section 1203.067(b)(4) and Section 290.09 of the Penal Code. [¶ . . . ¶] Defendant may not date, socialize with, or form a romantic relationship with any person who has physical custody of a minor, unless approved by the probation officer."
Millendez filed written objections to the probation conditions mandated by section 1203.067(b)(3) and 1203.067(b)(4), raising claims substantially similar to those raised here. He objected to the condition prohibiting him from dating or socializing with any person who has custody of a minor as vague and overbroad. The court imposed the conditions over these objections.
II. DISCUSSION
A. Probation Conditions Imposed Under Section 1203 .067
As set forth above, the trial court imposed three probation conditions under section 1203.067 requiring Millendez to waive any privilege against self-incrimination, waive the psychotherapist-patient privilege, and participate in polygraph examinations as part of the sex offender management program. Millendez challenges the constitutionality of these conditions on various grounds. The Attorney General contends they are constitutional.
The California Supreme Court recently approved these conditions in Garcia, supra. First, as to the waiver of any privilege against self-incrimination, the court in Garcia applied the doctrine of constitutional avoidance to construe this condition narrowly. "Under this construction, a probationer is 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." (Garcia, supra, 2 Cal.5th at pp. 806-807.) Under Garcia, Millendez will have immunity against the direct and derivative use of any statements compelled under this waiver condition. (Id. at p. 808.) Furthermore, Millendez "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." (Ibid.) Given these conditions, the waiver does not violate the Fifth Amendment.
With respect to the waiver of the psychotherapist-patient privilege, the court held: "By its express terms, the waiver is limited to that which is necessary 'to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09.' [Citation.] 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." (Garcia, supra, 2 Cal.5th at p. 810.) The court added that "[t]he 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." (Id. at p. 812.) The court concluded: "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. [Citation.] In all other respects, the privilege remains intact. So construed, the condition is not overbroad." On this basis, the court upheld the psychotherapist-patient waiver.
Finally, the court upheld the requirement of participation in the polygraph examination. The court emphasized that the scope of the polygraph examination "is limited to that which is reasonably necessary to promote the goals of probation." (Garcia, supra, 2 Cal.5th at p. 809.) The court added that the examination "may also include questions unrelated to the probationer's treatment and supervision but that are reasonably necessary to establish a baseline physiological response." (Id. at p. 809.) On this basis, the court upheld the condition requiring participation in the polygraph examination.
For the reasons set forth in Garcia, supra, we reject Millendez's challenges to the probations conditions imposed under section 1203.067.
B. Condition Prohibiting Dating, Socializing With, or Forming a Romantic Relationship With Any Person Who Has Custody of a Minor
Millendez challenges the probation condition prohibiting him from dating, socializing with, or forming a romantic relationship with any person who has a custody of a minor unless approved by his probation officer. Millendez contends the condition is unconstitutionally vague because the term "socialize" is not clearly defined. He contends the condition is also overbroad in violation of his constitutional right to association. The Attorney General contends the condition is neither vague nor overbroad. We conclude the condition is vague and overbroad.
1. Legal Principles
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "[W]here an otherwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, ' "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." ' " (People v. Bauer (1989) 211 Cal.App.3d 937, 942.)
The United States Supreme Court has long recognized a constitutional right to freedom of association. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 617.) Included in this right is the "freedom of intimate association," which is exemplified by those personal affiliations that "attend the creation and sustenance of a family—marriage [citation]; childbirth [citation]; the raising and education of children [citation]; and cohabitation with one's relatives [citation]." (Id. at p. 619; Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 624.) By restricting Millendez's freedom to socialize, date and form romantic relationships with other persons, the probation condition implicates his freedom of intimate association. We must therefore consider whether the condition is "narrowly tailored" to the state's interest in reformation and rehabilitation. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (In re Sheena K., supra, 40 Cal.4th at p. 890.) "The vagueness doctrine ' "bars enforcement of 'a statute which either forbids or requires the doing of an act in terms so vague that men [or women] of common intelligence must necessarily guess at its meaning and differ as to its application.' " [Citations.]' " (Ibid.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (Ibid.)
2. The Condition is Vague and Overbroad
We agree with Millendez that this condition is vague and overbroad. The term "socialize" is vague and imposes significant restrictions on defendant's constitutional right to free association.
A similar condition was found overbroad in U.S. v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, 1101 (Wolf Child). Wolf Child pleaded guilty to attempted sexual abuse after attempting to have sex with an intoxicated and unconscious 16-year-old girl. (Wolf Child, supra, at p. 1088.) The trial court ordered Wolf Child not to " 'date or socialize with anybody who has children under the age of 18' " without prior approval from his probation officer. (Id. at p. 1089.) The Ninth Circuit Court of Appeals found this condition overbroad in violation of Wolf Child's right to freedom of association: "The category of people covered by this condition with whom [the defendant] is prohibited from establishing social relationships is enormous. Probably more than half the people in the United States would be on the 'do not associate' list." (Id. at pp. 1100-1101.) Off-limit persons included coworkers, bosses, family members, friends, spiritual leaders, and neighbors who have children. (Id. at p. 1101.) The court found the scope of this prohibition to be unconstitutionally overbroad.
We find Wolf Child persuasive. Like the condition in Wolf Child, the probation condition here prohibits Millendez from socializing with a large category of persons. People with custody of minors would likely be present among his coworkers, friends, family members, and neighbors. The condition prohibits him from socializing with them regardless of whether he has any contact with their children. He would be prohibited from socializing with coworkers even if there is little or no chance of meeting his coworkers' children. Furthermore, such socialization is likely to be so frequent that it would be impractical for Millendez to get prior approval from his probation officer. We conclude the broad scope of the condition impinges on Millendez's associational freedom more than necessary to serve the state's interests.
We also conclude that the term "socialize" is unconstitutionally vague. The dictionary defines "socialize" as "enter into or maintain personal relationships with others." (Webster's 3d New Internat. Dict. (1993) p. 2162.) All kinds of daily personal interactions—e.g., meeting a person, shaking hands, waving, or simply exchanging greetings—may or may not constitute "socializing" or entrance into a personal relationship. Under this definition, a reasonable person cannot determine with sufficient precision what conduct constitutes socializing.
The same conclusions apply to the requirement that Millendez not "date" or "form a romantic relationship" with persons having custody of a minor. It is unclear what conduct constitutes a "date." Furthermore, it is possible for a probationer to engage in these activities without coming into contact with the minors the condition seeks to protect. These conditions impinge directly on Millendez's right of association while only indirectly serving the stated interest. Much less restrictive and more narrowly targeted conditions are available for the same purposes—e.g., a requirement that defendant not be present in the same room with a minor absent adult supervision.
Because the condition is both overbroad and vague, we will strike this probation condition and remand to the trial court to consider imposing a condition that is more "sufficiently precise" and "closely tailor[ed]" to the purpose of protecting minors in Millendez's presence. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
III. DISPOSITION
The judgment is reversed. The probation condition ordering that Millendez "may not date, socialize with, or form a romantic relationship with any person who has physical custody of a minor, unless approved by the probation officer" is stricken, and the matter is remanded to the trial court. On remand, the trial court shall consider whether to impose an alternative probation condition consistent with our reasoning above.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.