[REVIEW GRANTED BY CAL. SUPREME COURT]
Santa Clara County Superior Court No.: C1238226 Honorable Michele McKay McCoy Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Paul Couenhoven, under appointment by the Court of Appeal for Defendant and Appellant
Kamala D. Harris, Attorney General Gerald A. Engler, Assistant Attorney General Laurence K. Sullivan and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Juan Jose Rebulloza pleaded no contest to one count of indecent exposure for exposing himself on a street corner in San José. The trial court granted a three-year term of probation to include one year in county jail as a condition of probation. Among other conditions, the court ordered defendant to complete a sex offender management program as mandated by Penal Code section 1203.067. Under subdivision (b)(3) and (4) of that statute, the court ordered defendant to "waive any privilege against self-incrimination and participate in polygraph examinations which shall be part of the sex offender management program” and “waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer.”
Defendant challenges the constitutionality of these two waivers. First, we hold that the condition requiring a waiver of the privilege against self-incrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420 [79 L.Ed.2d 409, 104 S.Ct. 1136] (Murphy). Second, we construe the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist. We hold that the waiver of the psychotherapist-patient privilege as construed in this fashion is not overbroad in violation of defendant’s constitutional right to privacy.
I. FACTUAL AND PROCEDURAL BACKGROUND
A Facts of the Offense
Around 11:30 p.m. on July 21, 2012, Lourdes Valle was driving on 13th Street through downtown San José. When she stopped for a red light at Santa Clara Street, she saw defendant on the corner “with his private parts out.” Defendant’s pants were down and his right hand was below his waist, but Valle did not see whether he was touching himself. Valle testified defendant was moving toward her car while “spinning” or “dancing, ” and “it looked like he was having a great time.” Valle drove away and called the police.
A San José police officer responded to the call and found defendant standing at the corner of 13th Street and Santa Clara Street. Valle subsequently picked defendant’s photograph out of a lineup. Defendant’s rap sheet showed he had prior convictions for indecent exposure.
B. Procedural Background
Defendant pleaded no contest to one count of indecent exposure charged as a felony based on a prior conviction for indecent exposure. (Pen. Code, § 314, subd. (1).) On March 21, 2014, the trial court granted a three-year term of probation and imposed one year in county jail as a condition of probation. Among other conditions, the court ordered defendant to complete a sex offender management program as mandated by Penal Code section 1203.067, subdivision (b)(2). Furthermore, under subdivision (b)(3) and (4) of that
statute, the court ordered defendant to “waive any privilege against self-incrimination and participate in polygraph examinations which shall be part of the sex offender management program” and “waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer.” Defendant filed written objections to both compelled waivers, but the court overruled both objections.
Defendant challenges the two waivers mandated as probation conditions under Penal Code section 1203.067 (section 1203.067). He contends the condition requiring waiver of any privilege against self-incrimination under subdivision (b)(3) (section 1203.067(b)(3)) violates the Fifth Amendment and is overbroad. And he contends the condition requiring waiver of any psychotherapist-patient privilege under subdivision (b)(4) (section 1203.067(b)(4)) must be narrowly construed to enable communication between the sex offender management professional and the supervising probation officer. The Attorney General argues that both of these waivers are constitutional as worded.
A. The Statutory Scheme and Applicable Regulations
Under section 1203.067, subdivision (b)(2), any person placed on formal probation on or after July 1, 2012, for any offense requiring registration under Penal Code sections 290 through 290.023, “shall successfully complete a sex offender management program, following the standards developed pursuant to Penal Code section 9003, as a condition of release from probation.” Section 1203.067(b)(3) requires “[w]aiver of any privilege against self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program.” Section 1203.067 (b)(4) requires “[w]aiver of any psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09.”
The Legislature enacted these provisions in 2010 to amend the Sex Offender Punishment, Control, and Containment Act of 2006 (hereafter, the “Containment Act”). (Stats. 2010, ch. 219, § 17.) The Containment Act created “a standardized, statewide system to identify, assess, monitor and contain known sex offenders for the purpose of reducing the risk of recidivism posed by these offenders, thereby protecting victims and potential victims from future harm.” (Pen. Code, § 290.03, subd. (b), Stats. 2006. ch. 337. § 12,
p. 2605.) The Containment Act requires participation in an “approved sex offender management program” certified by the California Sex Offender Management Board (CASOMB). (§ 1203.067, subd. (b)(1); see Pen. Code, § 9003.)
Under Penal Code section 9003, CASOMB promulgates standards for certification of sex offender management programs and “sex offender management professionals.” (Pen. Code, § 9003, subds. (a) & (b).) Such programs “shall include treatment, as specified, and dynamic and future violence risk assessments pursuant to Section 290.09.” (Pen. Code, § 9003, subd. (b).) Furthermore, sex offender management programs “shall include polygraph examinations by a certified polygraph examiner, which shall be conducted as needed during the period that the offender is in the sex offender management program.” (Ibid.)
Penal Code section 290.09 specifies that “[t]he certified sex offender management professional shall communicate with the offender’s probation officer or parole agent on a regular basis, but at least once a month, about the offender’s progress in the program and dynamic risk assessment issues, and shall share pertinent information with the certified polygraph examiner as required.” (Pen. Code, § 290.09, subd. (c).) Penal Code section 290.09 further requires the sex offender management professional to administer a State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms-the “SARATSO dynamic tool” and the “SARATSO future violence tool”-and to send the person’s scores on these tests to the probation officer. (Pen. Code, § 290.09, subd. (b)(2).) The probation officer must then transmit the scores to the Department of Justice, which makes the scores accessible to law enforcement officials through the Department’s website. (Ibid.)
Penal Code section 9003 requires CASOMB to publish on its website the certification standards for sex offender management programs and professionals.All polygraph examiners working with a certified sex offender management program must meet these certification standards. (CASOMB, Post-Conviction Sex Offender Polygraph Standards (June 2011) p. 1.) The standards set forth a model policy, program goals, the various types of examinations to be administered, and the types of questions that examinations should include, among other criteria. These exams may be used “to test the
limits of an examinee’s admitted behavior and to search for other behaviors or offenses not included in the allegations made by the victim of the instant offense.” (Id. at p. 11.) “Examiners, along with the other members of the community supervision team, should select relevant targets from their concerns regarding additional or unreported offense behaviors in the context of the instant offense.” (Ibid.) “Examiners should use the Prior Allegation Exam (PAE) to investigate and resolve all prior alleged sex offenses (i.e., allegations made prior to the current conviction) before attempting to investigate and resolve an examinee’s history of unknown sexual offenses.” (Id. at p. 12.) To discover “unreported victims, ” examiners should “thoroughly investigate the examinee’s lifetime history of sexually victimizing others, including behaviors related to victim selection, victim access, victim impact, and sexual offenses against unreported persons.” (Id. at p. 13.) The sex offense monitoring exam may be used at the request of other team members “to explore the possibility the examinee may have been involved in unlawful sexual behaviors including a sexual re-offense” during the period of supervision. (Id. at p. 22.) Questions about illegal conduct are not limited to sex offenses; they may include, but are not limited to, questions about the use or distribution of illegal drugs or controlled substances. (Id. at p. 21.)
B. Waiver of Any Privilege Against Self-Incrimination Under Section 1203.067(b)(3)
Defendant contends the required waiver of any privilege against self-incrimination under section 1203.067(b)(3) is unconstitutional under the Fifth Amendment and Murphy, supra, 465 U.S. 420. The Attorney General concedes that the Fifth Amendment prohibits the use of a probationer’s compelled statements in a criminal proceeding. But the Attorney General argues that the waiver does not purport to allow such use. Instead, she contends the waiver is necessary to compel the probationer to participate in the sex offender management program.
Long-standing United States Supreme Court precedent prohibits a compelled waiver of the Fifth Amendment. (Lefkowitz v. Cunningham (1977) 431 U.S. 801 [53 L.Ed.2d 1, 97 S.Ct. 2132]; Lefkowitz v. Turley (1973) 414 U.S. 70 [38 L.Ed.2d 274, 94 S.Ct. 316]; Sanitation Men v. Sanitation Comm'r (1968) 392 U.S. 280 [20 L.Ed.2d 1089, 88 S.Ct. 1917]; Gardner v. Broderick (1968) 392 U.S. 273 [20 L.Ed.2d 1082, 88 S.Ct. 1913].) Furthermore, the Attorney General’s interpretation of section 1203.067(b)(3) cannot be reconciled with the language of the statute or the meaning of the Fifth Amendment. Nothing in the Fifth Amendment prohibits the state from requiring the probationer to answer ...