Opinion
H042181
04-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ROY LOMAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1492560)
Defendant Roy Lomas pleaded no contest to possession of child pornography (Pen. Code, § 311.11, subd. (a)) and was placed on three years of probation in March 2015. The trial court imposed the probation condition mandated by section 1203.067, subdivision (b)(4), which requires the probationer to waive the psychotherapist-patient privilege. However, in response to defendant's objections, it declined to impose the probation condition mandated by section 1203.067, subdivision (b)(3), which requires the probationer to waive the privilege against self-incrimination in connection with the sex offender management program. The trial court overruled the prosecution's objection to the court's omission of the section 1203.067, subdivision (b)(3) condition.
Subsequent statutory references are to the Penal Code.
In November 2017, defendant's probation was extended to March 2019 after he admitted violating his probation. Therefore, this case is not moot. --------
On appeal, defendant challenged the section 1203.067, subdivision (b)(4) condition on the grounds that it violated his constitutional right to privacy, coerced his waiver of his statutory psychotherapist-patient privilege, and was unreasonable. The Attorney General argued that the mandatory section 1203.067, subdivision (b)(4) condition was valid and that the trial court had imposed an unauthorized sentence by failing to impose the mandatory section 1203.067, subdivision (b)(3) condition. Defendant responded that the omission of the section 1203.067, subdivision (b)(3) condition was not unauthorized because its validity was then pending before the California Supreme Court.
In 2017, the California Supreme Court upheld the validity of the mandatory probation conditions required by section 1203.067, subdivision (b)(3) and section 1203.067, subdivision (b)(4). (People v. Garcia (2017) 2 Cal.5th 792 (Garcia).) The parties thereafter were asked to submit supplemental briefs addressing Garcia. In their supplemental briefs, defendant asserted that he "has no further argument in light of Garcia, and the Attorney General maintained that Garcia resolved all of the issues in this case.
Garcia has resolved all of the issues in this case. In Garcia, the California Supreme Court upheld the validity of the mandatory section 1203.067, subdivision (b)(3) and section 1203.067, subdivision (b)(4) probation conditions. (Garcia, supra, 2 Cal.5th at pp. 807-814.) Consequently, the trial court properly imposed the section 1203.067, subdivision (b)(4) condition and erroneously omitted the section 1203.067, subdivision (b)(3) condition.
The trial court's order of probation is reversed, and the matter is remanded with directions for the court to modify its order of probation to include the section 1203.067, subdivision (b)(3) condition.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.