Opinion
H042066
12-07-2017
THE PEOPLE, Plaintiff and Respondent, v. BULMARO FELIPE RIVERA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F1453774)
Pursuant to a plea agreement, defendant Bulmaro Felipe Rivera pleaded no contest to one count of assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1)). At his March 2, 2015 sentencing hearing, Rivera was placed on formal probation for three years, subject to multiple probation conditions including conditions relating to his required participation in a sex offender management program.
Unspecified statutory references are to the Penal Code.
On appeal, Rivera argues that two of the probation conditions imposed are unconstitutional, as follows: (1) the requirement that he "waive his privilege against self-incrimination . . . and to submit to polygraph examinations" is unconstitutionally overbroad and violates the Fifth Amendment; and (2) the requirement that he waive his psychotherapist-patient privilege is unconstitutionally overbroad, violates his constitutional right to privacy, and coerces him to waive a statutory privilege.
We find no merit to any of these claims and will affirm. I. FACTUAL AND PROCEDURAL BACKGROUND
Because they are irrelevant to the issues raised on appeal, we will not recount the facts relating to Rivera's underlying offenses.
On December 24, 2014, the Santa Clara County District Attorney filed a felony complaint charging Rivera with one count of sexual penetration by force (§ 289, subd. (a)(1)(A), count 1) and one count of assault with intent to commit rape (§ 220, subd. (a)(1), count 2).
After negotiating a plea agreement, Rivera pleaded no contest to count 2 in exchange for a sentence of one year in county jail and dismissal of count 1. At the March 2, 2015 sentencing hearing, the trial court dismissed count 1, suspended imposition of sentence, and placed Rivera on three years' formal probation, subject to various conditions. The trial court imposed a one year sentence on count 2, to be served in county jail.
Rivera timely appealed.
II. DISCUSSION
Rivera challenges two of the probation conditions imposed by the trial court, specifically the conditions requiring that he: (1) "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[,] [subdivision] (b)(3)[;]" and (2) "waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer pursuant to [section] 1203.067[,] [subdivision] (b)(4) and [s]ection 290.09." Rivera argues that the condition requiring him to waive the privilege against self-incrimination and participate in polygraph examinations (the § 1203.067, subd. (b)(3) condition) violates the Fifth Amendment and is unconstitutionally overbroad. He further asserts that the condition requiring him to waive the psychotherapist-patient privilege (the § 1203.067, subd. (b)(4) condition) violates his right to privacy, is unconstitutionally overbroad, and constitutes an improperly coerced waiver.
Following the California Supreme Court's decision in People v. Garcia (2017) 2 Cal.5th 792 (Garcia), we requested supplemental briefing from the parties regarding whether the issues raised in this appeal were moot. In those briefs, the parties agree that the appeal is not moot because Rivera's probation term will not expire until, at the earliest, March 2, 2018.
We agree that, as Rivera has not yet successfully completed probation, the appeal is not moot. All the claims raised by Rivera have, however, been resolved against him by Garcia.
In Garcia, supra, 2 Cal.5th 792, the Supreme Court rejected similar challenges to probation conditions imposed pursuant to section 1203.067, subdivision (b)(3) and (4). In Garcia, the section 1203.067, subdivision (b)(3) 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 section 1203.067, subdivision (b)(3) condition (requiring waiver of any privilege against self-incrimination and participation in polygraph examinations), the Supreme Court rejected the claim that the condition violated the Fifth Amendment. (Garcia, supra, 2 Cal.5th at pp. 802-803.) The Supreme Court explained that the "condition is properly read . . . 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." (Ibid.) Given this reading, the condition did not violate the defendant's Fifth Amendment rights: "As this court has previously explained, 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.)
The Supreme Court also rejected the claim that the section 1203.067, subdivision (b)(3) condition was overbroad. (Garcia, supra, 2 Cal.5th at p. 809.) Although the defendant in that case asserted that the condition permitted "polygraph examinations of unlimited scope," the Supreme Court disagreed, concluding that the scope of the polygraph examinations was "not unbounded." (Ibid.) As the Supreme Court explained, 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." (Ibid.)
As to the section 1203.067, subdivision (b)(4) condition (requiring waiver of any psychotherapist-patient privilege), the Supreme Court found that the condition did not violate the defendant's right to privacy. (Garcia, supra, 2 Cal.5th at pp. 798-799.) The condition required 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." (Id. at p. 799.) Because the defendant's confidential communications could "be shared only with the probation officer and the certified polygraph examiner," the Supreme Court concluded that the waiver required by the condition was "quite narrow" and did not violate the defendant's right to privacy. (Id. at p. 810.) The Supreme Court emphasized that the waiver did "not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information." (Ibid.)
In addressing the claim that the section 1203.067, subdivision (b)(4) condition was overbroad, our Supreme Court noted: "The 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." (Garcia, supra, 2 Cal.5th at p. 811.) Because of this "limited sharing of information" (id. at p. 812), the Supreme Court determined that the condition intruded on the psychotherapist-patient privilege "only to a limited extent" and was not overbroad. (Id. at p. 813.)
Our Supreme Court also rejected the claim that the section 1203.067, subdivision (b)(4) condition involved an improperly coerced waiver of the psychotherapist-patient privilege. (Garcia, supra, 2 Cal.5th at p. 813.) The Supreme Court acknowledged that the defendant "faced the choice between waiving his psychotherapist-patient privilege or going to prison," but explained that the condition was not invalid simply because it involved "an element of coercion." (Ibid.) Given the condition's "limited" intrusion upon the psychotherapist-patient privilege, the court determined the condition did "not cause the privilege to evaporate" and was not invalidated by coercion. (Ibid.)
Garcia resolves Rivera's challenges to the probation conditions imposed pursuant to section 1203.067, subdivision (b)(3) and (4). Under the precedent established by Garcia, we reject Rivera's request to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III. DISPOSITION
The probation order is affirmed.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.