Opinion
H040559
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS PENA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1092009)
I. BACKGROUND
Defendant was placed on formal probation for three years after a jury found him guilty of one count of possession of child pornography. (Pen. Code, § 311.11, subd. (a).) The trial court imposed probation conditions under Penal Code section 1203.067, which was enacted as part of the Chelsea King Child Predator Prevention Act of 2010 (Stats. 2010, ch. 219, § 1 et seq.) and mandates certain probation conditions in sex offender cases. Defendant was ordered to enter, participate and complete an approved sex offender management program, to participate in polygraph examinations as part of the program, and to waive any psychotherapist-patient privilege to enable communication between the program professionals and the probation officer. Defendant challenges the polygraph examination requirement as overbroad and as violating the Fifth Amendment privilege against self-incrimination. He argues waiver of the psychotherapist-patient privilege violates the right to privacy and is coercive. He also challenges as vague the pornography restrictions and a condition restricting his relationships with persons having custody of minors. Although defendant failed to object to the probation conditions in the trial court, we will consider them in the first instance here because they are facial constitutional challenges presenting pure questions of law. (In re Sheena K. (2007) 40 Cal. 4th 875, 888-889.)
The challenges to the probation conditions imposed under Penal Code section 1203.067 are foreclosed by the California Supreme Court's recent opinion in People v. Garcia (2017) 2 Cal.5th 792 (Garcia). We will, however, modify the pornography and relationship restrictions to address defendant's vagueness and overbreadth concerns, and affirm the probation order as modified.
II. DISCUSSION
A. SEX OFFENDER MANAGEMENT PROGRAM CONDITIONS
1. Waiver of Privilege Against Self-Incrimination (Penal Code Section 1203.067 , Subdivision (b)(3))
The Supreme Court in Garcia rejected defendant's claim that the condition requiring probationers to waive any privilege against self-incrimination violates the Fifth Amendment. (Garcia, supra, 2 Cal.5th at pp. 802-803.) The court construed the condition as requiring probationers to "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." (Id. at p. 803.) The court explained that as construed the condition does not violate a probationer's Fifth Amendment rights, since "the Fifth Amendment does not establish a privilege against the compelled disclosure of information; rather, it 'precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.' " (Id. at p. 807.)
2. Participation in Polygraph Examinations (Penal Code Section 1203.067 , Subdivision (b)(3))
Rejecting the argument that the condition requiring participation in polygraph examinations is overbroad, the Garcia court explained that the condition is "expressly linked to the purposes and needs of the sex offender management program," and thus is "limited to that which is reasonably necessary to promote the goals of probation." (Garcia, supra, 2 Cal.5th at p. 809.) The Supreme Court stated that the program requires complete disclosure of prior sex offenses to effectuate rehabilitation, and the polygraph examination is a reasonable means of verifying the accuracy and completeness of those disclosures. (Ibid.) By its terms, the scope of the polygraph examination is focused on criminal conduct related to the sex offender management program. Thus, the condition is valid and requires no further limitation. (Ibid.)
3. Waiver of Psychotherapist-Patient Privilege (Penal Code Section 1203.067 , Subdivision (b)(4))
The Garcia court concluded that the condition requiring probationers to waive any "psychotherapist-patient privilege" does not violate the probationer's right to privacy and is not unconstitutionally overbroad. (Garcia, supra, 2 Cal.5th at pp. 809-813.) The Supreme Court reasoned that the intrusion on the psychotherapist-patient privilege is narrow in that "a probationer's confidential communications may be shared only with the probation officer and the certified polygraph examiner." (Id. at p. 810.) The court noted that "[t]he waiver does not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information." (Ibid.) With respect to the overbreadth issue, the court noted that the compelled waiver of the psychotherapist-patient privilege "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 pp. 811-812.) The court further explained that the waiver is not coerced within the meaning of Evidence Code section 912, subdivision (a) (stating that privilege is waived by noncoercive disclosure) as argued by defendant, because any disclosure made in compliance with the sex offender management program is made under compulsion and does not cause the privilege to evaporate. (Garcia, at p. 813.)
B. PORNOGRAPHY RESTRICTIONS
The trial court ordered defendant not to "purchase or possess any pornographic or sexually explicit material as defined by the probation officer," and not to "frequent, be employed by, or engage in any business where pornographic materials are openly exhibited." Defendant argues those conditions are unconstitutionally vague because they lack an express scienter requirement. That argument has been rejected by Hall, supra, 2 Cal.5th 494, where the Supreme Court explained, "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature. [Citation.] The requisite scienter for these probation conditions is thus easily ascertainable by reference to ' "other definable sources" ' that make sufficiently clear the conditions' scope. [Citation.]" (Id. at p. 501.)
We quote from the court's written minutes, which track the probation officer's written recommendations, as the reporter's transcript contains apparent typographical errors.
Defendant argues that the word "frequent" is unconstitutionally vague. As explained by the court in Hall, the void-for-vagueness doctrine, derived from the due process concept of fair warning, bars the government from enforcing a provision that is so vague "people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' " (Hall, supra, 2 Cal.5th at p. 500.) The condition must be "sufficiently definite to inform the probationer what conduct is required or prohibited," and "should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " " (Id. at pp. 500-501.) A probation term's specific context may provide sufficient concreteness to dispel a vagueness challenge. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)
"Frequent" is defined in relation to a place as "to visit or make use of often," and it is defined in relation to a person as "to visit or associate with." (OED Online. Sept. 2017. Oxford University Press. http://www.oed.com/view/Entry/74517.) This court has previously held that when a condition directs a probationer to not frequent certain places, the condition must be modified, reasoning that the word "frequent" is both obscure and has multiple meanings. (People v. Leon (2010) 181 Cal.App.4th 943, 952; In re H.C. (2009) 175 Cal.App.4th 1067, 1072.) In Leon, this court has substituted the phrase "visit or remain in" for the word "frequent." (Leon, at p. 952.) Although absolute clarity is not constitutionally compelled (Hall, supra, 2 Cal.5th at p. 503), we are not convinced on this record to depart from this court's previous treatment of essentially the same wording. We therefore make the same modification here.
C. RELATIONSHIP RESTRICTIONS
Defendant challenges the probation condition that he "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." He argues that the condition is unconstitutionally overbroad because it is unlimited in scope and effectively forbids contact with family and close friends, and asks us to strike the condition in its entirety. The Attorney General concedes that the term "socialize" is unconstitutionally overbroad, but argues that the condition is otherwise constitutionally sound.
"The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights[.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We agree the condition is overbroad to the extent it restricts socializing with any person having physical custody of a minor. The condition is designed to prevent defendant from having contact with children. Restricting socializing, which impinges on the right to associate, is not closely tailored to the condition's purpose because it prohibits defendant from interacting with people even where there is no possibility of coming into contact with children. It therefore " 'burdens activity which does not raise a sufficiently high probability of harm to governmental interests to justify the interference.' " (In re Englebrecht (1998) 67 Cal.App.4th 486, 497.) Accordingly, we will modify the condition to strike the socializing restriction.
The terms "date" and "form a romantic relationship" do not suffer from the same overbreadth concern. The number of individuals whom defendant might seek to date or form a romantic relationship with is far smaller than the number of individuals with whom he might seek to socialize. It is also more likely that forming a romantic relationship with a minor's custodian could lead to contact with that minor. The modified condition, which permits dating and romantic relationships between defendant and a minor's custodian with the probation officer's approval, is not overly restrictive in light of its purpose. United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, cited by defendant, does not persuade us that the condition should be stricken in its entirety. The Ninth Circuit in Wolf Child vacated as overbroad a probation condition restricting the defendant, who had attempted to have sex with an unconscious 16 year-old girl six years his junior, from dating or socializing with anyone who had minor children. (Id. at pp. 1087-1088, 1103.) That court's facial overbreadth analysis addressed only the socializing restriction which we have addressed. (Id. at p. 1101.)
Finally, in our view the terms "date" and "romantic relationship" are not unconstitutionally vague, as they have well-established commonsense meanings (In re R.P. (2009) 176 Cal.App.4th 562, 566), and are sufficiently definite for defendant to know what is required of him. (Hall, supra, 2 Cal.5th at p. 500; see also OED Online. Sept. 2017. Oxford University Press. http://www.oed.com/view/Entry/47418 [date]; http://www.oed.com/view/Entry/167122 [romantic].)
Given our conclusion that the term "socializing" is unconstitutionally overbroad, we need not reach defendant's argument that the term is unconstitutionally vague. --------
III. DISPOSITION
The probation condition regarding pornography restrictions is modified to read as follows: "The defendant shall not visit or remain in, be employed by, or engage in, any business where pornographic materials are openly exhibited." The probation condition regarding relationship restrictions is modified to read as follows: "You may not date or form a romantic relationship with anyone that you know has physical custody of a minor unless approved by the probation officer." As modified, the probation order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Elia, Acting P. J. /s/_________ Premo, J.