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People v. Garcia

Supreme Court of California

March 20, 2017

THE PEOPLE, Plaintiff and Respondent,
IGNACIO GARCIA, Defendant and Appellant.

         Superior Court Santa Clara County No. C1243927, Ct.App. 6 H039603 Hector E. Ramon Judge:

          David D. Martin, under appointment by the Supreme Court, for Defendant and Appellant.

          Law Offices of Daniel H. Willick and Daniel H. Willick for California Psychiatric Association, National Association of Social Workers and California Chapter of National Association of Social Workers as Amici Curiae on behalf of Defendant and Appellant.

          Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Seth K. Shalit, Lisa Ashley Ott, Laurence K. Sullivan, René A. Chacón and Leif M. Dautch, Deputy Attorneys General, for Plaintiff and Respondent.

          Cuéllar, J.

         According to the Center for Sex Offender Management (CSOM), one in every five girls and one in every seven boys is sexually abused by the time they reach adulthood. Among adults, one in six women and one in 33 men suffer sexual assault. (CSOM, U.S. Dept. of Justice, Fact Sheet: What You Need to Know About Sex Offenders (2008) p. 1 <> [as of March 20, 2017].) Yet only about 30 percent of sexual assaults are reported to law enforcement. (Off. of Sex Offender Sentencing, Monitoring, Registering, and Tracking, U.S. Dept. of Justice, Facts and Statistics, <> [as of March 20, 2017].)

         Despite rising incarceration rates, the majority of known sex offenders at any given time are not in prison - and most sex offenders who are imprisoned will eventually be released. (Nat. Governors Assn. Center for Best Practices, Managing Convicted Sex Offenders in the Community (Apr. 2008) pp. 1-2 <> [as of March 20, 2017].) Like most jurisdictions, California requires convicted sex offenders to register as a means of enabling law enforcement to manage the serious risk to the public of recidivism. (In re Alva (2004) 33 Cal.4th 254, 279.)

         During the five-year period from 2006 to 2011, the number of registered sex offenders in the United States increased 23.2 percent. (Nat. Center for Missing & Exploited Children, Number of Registered Sex Offenders in the U.S. Nears Three-quarters of a Million (Jan. 2012) <> [as of March 20, 2017].) Today, over 850, 000 sex offenders are registered throughout the United States. (Nat. Center for Missing & Exploited Children, Map of Registered Sex Offenders in the United States (Dec. 2016) <> [as of March 20, 2017].) California alone has 75, 000 - more than any other state. (Off. of Atty. Gen., Cal. Megan's Law Website <> [as of March 20, 2017]; Cal. Sex Offenders Management Bd., An Assessment of Current Management Practices of Adult Sex Offenders in California (Jan. 2008) p. 55.) How to manage and supervise these offenders is one of the most difficult challenges facing government policymakers today.

         In response to this challenge, the Legislature in 2006 created the California Sex Offender Management Board (CASOMB) to analyze current practices and recommend improvements. (Pen. Code, § 9001.)[1] One of CASOMB's foundational principles was that sex offender management strategies should be based on reliable information and empirical research concerning the efficacy and cost effectiveness of different approaches. (CASOMB, Recommendations Rep. (Jan. 2010) p. 12; see § 9001, subd. (i).) Following a series of public hearings and meetings (§ 9002, subd. (b)), CASOMB issued a report recommending best practices in a variety of areas relating to the management of sex offenders, including their reentry into the community, supervision, housing, and treatment. (CASOMB, Recommendations Rep., supra, at pp. 5-6, 12.) Some (but not all) of those recommendations were subsequently adopted by the Legislature in the Chelsea King Child Predator Prevention Act of 2010 (Chelsea's Law). (Stats. 2010, ch. 219, § 1 et seq.)

         One of the CASOMB report's conclusions was that sex offender treatment differs in important respects from ordinary psychotherapy. Sex offenders can be required to participate in treatment, are not free to determine the nature and course of their own therapy, may be examined with a polygraph to verify the information they provide to their therapists and probation officers, and may encounter greater intrusions on the confidentiality of their discussions with treatment providers, so that probation officers can keep abreast of the offenders' progress and compliance with probation. (CASOMB, Recommendations Rep., supra, at pp. 30-31.) CASOMB concluded that the increased supervision mandated by Chelsea's Law can pay substantial dividends: sex offender-specific treatment has been shown to reduce recidivism by up to 40 percent. (CASOMB, Recommendations Rep., supra, at p. 35.)

         At issue in this appeal are two parts of Chelsea's Law, both relating to a sex offender's mandatory treatment. Section 1203.067, subdivision (b)(3) requires a convicted sex offender, as a condition of probation, to waive “any privilege against self-incrimination” and to participate “in polygraph examinations, which shall be part of the sex offender management program.” Section 1203.067, subdivision (b)(4) requires, again as a condition of probation, a waiver by the convicted sex offender of the “psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09.”

         Defendant Ignacio Garcia contends that conditioning probation on the waiver of his privilege against self-incrimination, as well as on his participation in polygraph examinations, violates his Fifth Amendment rights. We conclude that the condition mandated by section 1203.067, subdivision (b)(3) directs defendant to answer fully and truthfully all questions posed to him as part of the sex offender management program. But because we deem his responses compelled within the meaning of the Fifth Amendment, they cannot lawfully be used against him in a criminal proceeding. (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7 (Murphy); accord, People v. Racklin (2011) 195 Cal.App.4th 872, 880.) Where, as here, the responses would therefore pose no risk of incrimination, neither the fact that he was compelled to respond nor the fact that his responses were being monitored by a polygraph offends the Fifth Amendment.

         We likewise reject defendant's claim that conditioning probation on the waiver of his psychotherapist-patient privilege violates his constitutional right to privacy and is overbroad under California law. It is neither overbroad nor violative of defendant's right to privacy to require 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. We therefore affirm the judgment of the Court of Appeal.

         I. Background

         Originally charged with six counts of forcible lewd conduct with a child (§ 288, subd. (b)(1)), defendant pleaded no contest in a negotiated disposition to two counts of nonforcible lewd conduct. (§ 288, subd. (a).) The trial court suspended imposition of the sentence and placed defendant on probation for three years, ordered him to serve one year in jail and register as a sex offender, and mandated his participation in an approved sex offender management program. Over defense objection, the court also imposed the two probation conditions that are the subject of this appeal: “The defendant shall 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(b)(3) of the Penal Code” (the subdivision (b)(3) condition); and “The defendant shall waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer, pursuant to Section 1203.067(b)(4) and Section 290.09 of the Penal Code” (the subdivision (b)(4) condition).

         Defendant appealed. He claimed that the coerced waiver of his privilege against self-incrimination and the required participation in polygraph examinations violated the Fifth Amendment and, like the mandated waiver of his psychotherapist-patient privilege, was unconstitutionally overbroad. The Court of Appeal affirmed. All three justices upheld the validity of the subdivision (b)(4) condition. The panel was divided, however, as to the validity of the subdivision (b)(3) condition. The majority reasoned that the choice defendant faced between forfeiting his privilege against self-incrimination (on the one hand) or asserting the privilege and having his probation revoked (on the other) would present “ ‘the classic penalty situation, [in which] the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal proceeding.' ” Because “the mere extraction of compelled statements does not violate the Fifth Amendment” and no statements so extracted could be used against defendant in any criminal proceeding, it necessarily followed (according to the majority) that the subdivision (b)(3) condition did not violate the Fifth Amendment.

         The majority also rejected the claim that the conditions were unconstitutionally overbroad. Addressing the required waiver of the privilege against self-incrimination and participation in polygraph examinations, the appellate court found these conditions closely tailored to the purpose of allowing “the state to discover the full extent of the risks created by the sex offender's freedom so that the state can respond with additional treatment, closer monitoring, and other measures necessary to protect the community.” For similar reasons, the majority found that the waiver of the psychotherapist-patient privilege neither violated defendant's constitutional right to privacy nor was it overbroad.

         Justice Grover concurred in part and dissented in part. In her view, “[t]he denial of probation for refusal to accept the mandated condition attaches an impermissible penalty to the exercise of the Fifth Amendment privilege” and is itself unconstitutional.

         We granted review to consider the validity of the probation conditions mandated by section 1203.067, subdivision (b)(3) and (b)(4). Prior to oral argument, the Attorney General informed us that defendant had completed his probationary term. Although the question of these probation conditions' validity is now moot with respect to this defendant, we will exercise our inherent power to retain and decide the case so that we may settle an important issue that has divided the Court of Appeal. (See People v. Moran (2016) 1 Cal.5th 398, 408, fn. 8.)

         II. Discussion

         At any given moment, a substantial majority of convicted sex offenders are under some form of conditional supervision in the community. (CSOM, U.S. Dept. of Justice, Recidivism of Sex Offenders (2001) p. 1 <> ] [as of March 20, 2017].) Many jurisdictions have adopted a comprehensive approach to managing these sex offenders, under which treatment providers work together with supervising probation and parole agents to devise an individualized supervision and treatment plan for each offender. Although the available data provide only a partial basis for inference, the findings of relevant studies appear consistent with the conclusion that offenders who receive comprehensive treatment have a significantly lower rate of recidivism and rearrest than offenders who did not participate in such treatment. (CSOM, U.S. Dept. of Justice, An Overview of Sex Offender Management (2002) pp. 1-2 <> [as of March 20, 2017].)

         When Chelsea's Law was enacted, California had been relying on a patchwork of management strategies that was crafted “ ‘piece by piece through separate and uncoordinated legislative and administrative actions.' ” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) as amended June 2, 2010, pp. 31-32.) The new provisions adopted a unified strategy for sex offender management known as the “Containment Model, ” which was characterized by CASOMB as “ ‘the best practice for community supervision of sex offenders.' ” (Ibid., quoting CASOMB, Recommendations Rep., supra, at pp. 32-33.)

         The Containment Model adopted by the Legislature depends on three interrelated elements: supervision and monitoring of the sex offender while on probation; sex offender-specific assessment and treatment; and the use of static, dynamic, and future assessments of the risk of reoffending, including the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO). (CASOMB, Sex Offender Treatment Program Certification Requirements (2014 rev.) pp. 6, 8; Sen. Appropriations Com., Analysis of Assem. Bill No. 1844 (2009-2010 Reg. Sess.) as amended Aug. 2, 2010, p. 5.) A major premise of the model is that the mental health professional, probation officer, and polygraph examiner will work together closely to assess the offender's compliance with, and participation in, the treatment program as well as the offender's risk of reoffending. (Sen. Com. on Public Safety, Bill Analysis of Assem. Bill No. 1844, supra, at p. 33.) Indeed, the law specifies that the treatment professional must communicate with the offender's probation officer on a regular basis (or at least once a month) and share pertinent information with the certified polygraph examiner “as required.” (§ 290.09, subd. (c).)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In enacting a statutory framework to implement the Containment Model, the Legislature directed CASOMB to develop and maintain standards for certification of sex offender management programs, professionals, and polygraph examiners. (&sect; 9003, subds. (a), (b), (d).) The relevant standards require the containment team to obtain accurate information about the offender&#39;s prior victims, the offender&#39;s access to potential new victims, and the high-risk behavior unique to that sex offender - especially when that history includes categories of victims or types of behavior stretching beyond the crimes of conviction. Postconviction polygraph examinations are used to elicit and verify this information. (CASOMB, Post-Conviction Sex Offender Polygraph Certification Standards (June 2011) pp. 10-23; see &sect; 9003, subd. (b) [&ldquo;programs shall include polygraph examinations&rdquo;].) According to the theory of the model, a polygraph examination (or the threat of one) encourages the offender to be more complete and accurate when detailing his or her sexual history, provides a method of verifying whether the offender is currently engaging in or planning to engage in unlawful behavior, and helps disrupt the pattern of denial that &ldquo; &lsquo;is generally regarded as a main impediment to successful therapy.&#39; &rdquo; (McKune v. Lile (2002) 536 U.S. 24, 33 (plur. opn. of Kennedy, J.); see English et al., Community Containment of Sex Offender ...

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