Opinion
H041916
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JARED MICHAEL BROBST, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1474446)
I. INTRODUCTION
Defendant Jared Michael Brobst was convicted by plea of sexual penetration of an unconscious person (Pen. Code, § 289, subd. (d)) and first degree burglary (§§ 459, 460, subd. (a)). He also admitted that a person not an accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.
All further statutory references are to the Penal Code.
On appeal, defendant challenges the probation conditions requiring waiver of any privilege against self-incrimination, participation in polygraph examinations, and waiver of any psychotherapist-patient privilege as part of his participation in a sex offender management program.
For reasons that we will explain, we will affirm the order of probation.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim's brother had been friends for many years. The victim's brother celebrated his 21st birthday at a family dinner, and afterwards he went drinking with his sister and defendant. The siblings slept at their parents' house that night, and defendant was allowed to sleep on a couch in the garage, which had been converted into a living space, as he had been drinking. Defendant did not have permission to go into the house. About 5:00 a.m., he entered the room where the victim was sleeping inside the house, and he used his fingers to penetrate her vagina though her clothing. Defendant removed his fingers after she awoke. The victim confronted him and he eventually fled. A spare key to the house that was hidden elsewhere was found in the garage after the incident.
As defendant was convicted by plea, the summary of his offenses is taken from the probation report. --------
Defendant was charged by information with sexual penetration of an unconscious person (§ 289, subd. (d)) and first degree burglary (§§ 459, 460, subd. (a)). The information further alleged that a person not an accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)). Defendant pleaded no contest to both counts and admitted the allegation, after the trial court gave an indicated sentence of a grant of probation with various terms and conditions, including that he serve one year in county jail.
At sentencing, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. The conditions included that defendant serve one year in county jail, and that he complete a sex offender management program (§ 1203.067, subdivision (b)(2)). Over defendant's objections, the court also ordered as conditions of probation that defendant waive any privilege against self-incrimination and participate in polygraph examinations as part of the sex offender management program (id., subd. (b)(3)), and that he waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer (id., subd. (b)(4)).
III. DISCUSSION
In his opening brief on appeal, defendant contends that the probation condition requiring him to waive his privilege against self-incrimination and participate in polygraph examinations (see § 1203.067, subd. (b)(3)) violates the Fifth Amendment and is unconstitutionally overbroad. He also contends that the probation condition requiring waiver of the psychotherapist-patient privilege (see § 1203.067, subd. (b)(4)) violates his right to privacy and is unconstitutionally overbroad.
Our Supreme Court recently rejected similar challenges to the probation conditions required by section 1203.067, subdivisions (b)(3) and (b)(4). (People v. Garcia (2017) 2 Cal.5th 792 (Garcia).) In Garcia, the section 1203.067, subdivision (b)(3) probation condition required the defendant to " 'waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program' " (Garcia, supra, at p. 799) and the section 1203.067, subdivision (b)(4) condition required the defendant to " 'waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer' " (Garcia, supra, at p. 799).
As to the probation condition requiring waiver of any privilege against self-incrimination and requiring participation in polygraph examinations, the California Supreme Court rejected the defendant's claim that the condition required him to waive his Fifth Amendment privilege. (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, so construed, the condition did not violate the 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.' [Citation.]" (Garcia, supra, at p. 807.)
The California Supreme Court also rejected the defendant's claim that the probation condition was overbroad because the scope of the required polygraph examinations was "not limited to prior or potential sex offenses but would permit a polygraph examiner to ask 'anything at all, without limitation.' " (Garcia, supra, 2 Cal.5th at p. 809.) The court explained that the condition was "expressly linked to the purposes and needs of the sex offender management program" and thus was "limited to that which is reasonably necessary to promote the goals of probation," i.e., "criminal conduct related to the sex offender management program." (Ibid.)
As to the probation condition requiring waiver of any psychotherapist-patient privilege, the California Supreme Court found that the condition did not violate the defendant's right to privacy and that the condition was not unconstitutionally overbroad. (Garcia, supra, 2 Cal.5th at pp. 809-813.) The court first addressed the privacy issue, finding that the intrusion on the psychotherapist-patient privilege was "quite 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 similarly noted that "[t]he required 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. [Citation.]" (Id. at pp. 811-812.) The court explained that, "[i]n all other respects, the privilege remains intact." (Id. at p. 813.)
As defendant acknowledges in a supplemental letter brief, Garcia resolves his challenges to the probation conditions requiring his waiver of any privilege against self-incrimination, participation in polygraph examinations, and waiver of any psychotherapist-patient privilege as part of the sex offender management program. In light of that California Supreme Court precedent, we decline to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703.)
IV. DISPOSITION
The order of probation is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
GROVER, J.