People v. Riding CA6 ( 2014 )

Filed 9/29/14 P. v. Riding CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040633
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1359537)
v.
JONATHAN SCOTT RIDING,
Defendant and Appellant.
I. INTRODUCTION
Defendant Jonathan Scott Riding was placed on probation after pleading no
contest to possessing matter depicting a person under the age of 18 engaging in or
simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).1)
On appeal, defendant challenges probation conditions that require him to:
(1) waive any privilege against self-incrimination and participate in polygraph
examinations, as part of the sex offender management program; (2) waive any
psychotherapist-patient privilege to enable communication between the sex offender
management professional and the probation officer; (3) not date, socialize with, or form a
romantic relationship with any person who has physical custody of a minor, unless
approved by the probation officer; (4) not access the Internet or any other online service
1
All further statutory references are to the Penal Code unless otherwise indicated.
through use of a computer or other electronic device, at any location, without prior
approval of the probation officer; (5) not purchase or possess any pornographic or
sexually explicit material as defined by the probation officer; and (6) not frequent, be
employed by, or engage in any business where pornographic materials are openly
exhibited. We will modify some of the challenged probation conditions and affirm the
judgment as modified.
II. BACKGROUND
Defendant was charged with possessing matter depicting a person under the age of
18 engaging in or simulating sexual conduct (§ 311.11, subd. (a)), and he pleaded no
contest to that offense.2
The trial court placed defendant on formal probation for three years and ordered
him to serve a six-month county jail sentence. The trial court imposed a number of
probation conditions.3
As required by section 1203.067, subdivision (b)(2), defendant was ordered to
“enter, participate in and complete an approved sex offender management program.”
(Condition No. 7.) As required by section 1203.067, subdivision (b)(3), defendant was
required to “waive any privilege against self-incrimination and participate in polygraph
examinations, which shall be part of the sex offender management program.” (Condition
No. 8.) As required by section 1203.067, subdivision (b)(4), defendant was required to
“waive any psychotherapist-patient privilege to enable communication between the sex
offender management professional and the Probation Officer.” (Condition No. 9.)
2
The record contains no information concerning the facts of the underlying
offense. Defendant entered his plea before the preliminary hearing, and the probation
report does not contain a summary of the offense.
3
The probation conditions were stated orally by the trial court and also appear in
the probation report and a separate document entitled “Conditions of Sentence/Probation
(Sex Offender).” Defendant cites to the probation conditions as worded and numbered in
the probation report; we will follow suit.
2
Among other probation conditions, the trial court ordered that defendant’s
“computer and all other electronic devices . . . be subject to Forensic Analysis search”
(condition No. 6), and that defendant “provide passwords [and] email addresses” to the
probation officer (condition No. 6a). Defendant was ordered not to “date, socialize with
or form a romantic relationship with any person who has physical custody of a minor
unless approved by the Probation Officer.” (Condition No. 11.) He was ordered not to
“enter any social networking sites, nor post any ads, either electronic or written, unless
approved by the Probation Officer.” (Condition No. 17.) He was ordered not to
“purchase or possess any pornographic or sexually explicit material as defined by the
Probation Officer.” (Condition No. 19.) He was ordered not to “frequent, be employed
by, or engage in, any business where pornographic materials are openly exhibited.”
(Condition No. 20.) He was ordered not to “access the Internet or any other on-line
service through use of a computer, or other electronic device at any location (including
place of employment) without prior approval of the Probation Officer,” and not to
“possess or use any data encryption technique program.” (Condition No. 21.) Finally, he
was ordered not to “clean or delete Internet browsing activity” and to “keep a minimum
of four weeks of history.” (Condition No. 22.)
Defendant filed written objections to the probation conditions required by
section 1203.067, subdivisions (b)(3) and (b)(4). He claimed that the condition requiring
him to waive the Fifth Amendment privilege was unconstitutional “[a]bsent a grant of
immunity,” that the condition was unreasonable, and that it was unconstitutionally
overbroad. He claimed that the condition requiring him to participate in polygraph
examinations “without limitation” violated the Fifth Amendment, was overbroad, and
was unreasonable. He claimed that the condition requiring him to waive any
psychotherapist-patient privilege was invalid because the waiver was coerced, and that
the condition was unreasonable. At the sentencing hearing, the trial court noted that its
3
intention was “that these conditions be limited to facilitating the successful completion of
the [sex offender management] program.”
Defendant orally objected to condition No. 21, regarding Internet usage, at the
sentencing hearing.
III. DISCUSSION
We begin by setting forth some of the legal principles applicable to defendant’s
challenges to the probation conditions imposed on him.
“In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.] ‘The court may impose and require . . . [such] reasonable conditions[ ] as it
may determine are fitting and proper to the end that justice may be done, that amends
may be made to society for the breach of the law, for any injury done to any person
resulting from that breach, and generally and specifically for the reformation and
rehabilitation of the probationer.’ [Citation.] The trial court’s discretion, although broad,
nevertheless is not without limits: a condition of probation must serve a purpose
specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to
require that probation conditions which regulate conduct ‘not itself criminal’ be
‘reasonably related to the crime of which the defendant was convicted or to future
criminality.’ [Citation.] As with any exercise of discretion, the sentencing court violates
this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds
of reason, all of the circumstances being considered.’ ” [Citations.]’ [Citation.]”
(People v. Carbajal (1995) 10 Cal. 4th 1114, 1120-1121.)
Probation conditions may be challenged on the grounds of unconstitutional
vagueness and overbreadth. (People v. Lopez (1998) 66 Cal. App. 4th 615, 630.)
“[W]here an otherwise valid condition of probation impinges on constitutional rights,
such conditions must be carefully tailored, ‘ “reasonably related to the compelling state
4
interest in reformation and rehabilitation . . . .” ’ [Citations.]” (People v. Bauer (1989)
211 Cal. App. 3d 937, 942.) A claim that a probation condition is unconstitutionally vague
or overbroad may be reviewed on appeal without an objection in the trial court if it is
capable of correction without reference to the particular sentencing record in the trial
court. (In re Sheena K. (2007) 40 Cal. 4th 875, 878-879, 888-889 (Sheena K.).)
“ ‘A statute or regulation is overbroad if it “does not aim specifically at evils
within the allowable area of [governmental] control, but . . . sweeps within its ambit other
activities that in the ordinary circumstances constitute an exercise” of protected
expression and conduct.’ [Citations.]” (People v. Leon (2010) 181 Cal. App. 4th 943, 951
(Leon).) “The essential question in an overbreadth challenge is the closeness of the fit
between the legitimate purpose of the restriction and the burden it imposes on the
defendant’s constitutional rights—bearing in mind, of course, that perfection in such
matters is impossible, and that practical necessity will justify some infringement.”
(In re E.O. (2010) 188 Cal. App. 4th 1149, 1153.)
In examining whether a probation condition is void for vagueness, courts have
considered whether the condition is “ ‘sufficiently precise for the probationer to know
what is required of him [or her]. . . .’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he
underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ”
(Ibid.) That is, the defendant must know in advance when he or she may be in violation
of the condition.
With the above principles in mind, we examine each of the conditions challenged
here.
A. Waiver of Privilege Against Self-Incrimination (Condition No. 8)
As required by section 1203.067, subdivision (b)(3), defendant was ordered, as a
condition of probation, to “waive any privilege against self-incrimination and participate
in polygraph examinations, which shall be part of the sex offender management
program.” (Condition No. 8.)
5
1. Fifth Amendment
Defendant first contends this probation condition violates the Fifth Amendment to
the extent it requires him to waive any privilege against self-incrimination.4 He argues
that because he has been told that probation will be revoked if he refuses to comply with
the waiver, he has been placed in the “classic penalty situation” described in Minnesota v.
Murphy (1984) 465 U.S. 420 at page 435 (Murphy).
In Murphy, the defendant was subject to a probation condition requiring that he
participate in a treatment program for sexual offenders, report to his probation officer as
directed, and be truthful with the probation officer “ ‘in all matters.’ ” (Murphy, supra,
465 U.S. at p. 422.) In his treatment program, the defendant admitted a prior rape and
murder. (Id. at p. 423.) Those admissions were communicated to the probation officer,
who questioned the defendant. The defendant admitted the crimes to the probation
officer, but the defendant then sought to suppress those admissions on the ground that his
statements had been compelled by the probation condition. (Id. at pp. 424-425.)
The United States Supreme Court emphasized that in general, the Fifth
Amendment is not self-executing: “a witness . . . ordinarily must assert the privilege
rather than answer if he [or she] desires not to incriminate himself [or herself].”
(Murphy, supra, 465 U.S. at p. 429.) The probation condition in Murphy required the
defendant only to be truthful, and thus the defendant still could have claimed the
privilege against self-incrimination. (Id. at pp. 436-437.) The Murphy court considered
whether there were any applicable exceptions to the general rule that the Fifth
Amendment is not self-executing. (Id. at p. 429.) In particular, the court considered
4
The Supreme Court is currently considering the constitutionality of the
conditions of probation mandated by Penal Code section 1203.067, subdivision (b), for
persons convicted of specified felony sex offenses. (See People v. Klatt (2014) 225
Cal. App. 4th 906, review granted July 16, 2014, S218755; People v. Friday (2014) 225
Cal. App. 4th 8, review granted July 16, 2014, S218288; People v. Garcia (2014) 224
Cal. App. 4th 1283, review granted July 16, 2014, S218197.)
6
whether to excuse the defendant’s failure to assert the privilege against self-incrimination
on the basis of the “so-called ‘penalty’ ” exception. (Id. at p. 434.)
The penalty exception had been applied in cases where “the State not only
compelled an individual to appear and testify, but also sought to induce him [or her] to
forego the Fifth Amendment privilege by threatening to impose economic or other
sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’
[Citation.]” (Murphy, supra, 465 U.S. at p. 434.) In Murphy, there was no evidence that
the defendant would have been penalized for exercising his Fifth Amendment privilege.
(Id. at pp. 437-438.) The probation condition itself “proscribed only false statements; it
said nothing about his freedom to decline to answer particular questions and certainly
contained no suggestion that his probation was conditional on his waiving his Fifth
Amendment privilege with respect to further criminal prosecution.” (Id. at p. 437.)
Further, there was “no direct evidence that Murphy confessed because he feared that his
probation would be revoked if he remained silent.” (Ibid.)
The Murphy court explained how the penalty exception could apply to a
probationer: “if the State, either expressly or by implication, asserts that invocation of
the privilege would lead to revocation of probation, it would have created the classic
penalty situation, the failure to assert the privilege would be excused, and the
probationer’s answers would be deemed compelled and inadmissible in a criminal
prosecution.” (Murphy, supra, 465 U.S. at p. 435, fn. omitted.) However, the court
noted, “a State may validly insist on answers to even incriminating questions and hence
sensibly administer its probation system, as long as it recognizes that the required
answers may not be used in a criminal proceeding and thus eliminates the threat of
incrimination.” (Ibid., fn. 7.)
As applied to this case, Murphy establishes that defendant’s Fifth Amendment
rights are not violated by the probation condition requiring him to waive the privilege
against self-incrimination as to questions asked during the sex offender management
7
program. The state has, “by implication, assert[ed] that invocation of the privilege” in
response to such incriminating questions “would lead to revocation” of probation. (See
Murphy, supra, 465 U.S. at p. 435.) Thus, if defendant makes any statements in response
to questions posed to him during the sex offender management program, those statements
will be deemed compelled under the Fifth Amendment and thus involuntary and
inadmissible in a criminal prosecution. (Ibid.) Since such statements will necessarily fall
within the penalty exception, they will not be available for use at a criminal prosecution,
and defendant’s Fifth Amendment rights have not been violated. (See Chavez v.
Martinez (2003) 538 U.S. 760, 769 (Chavez) [plur. opn. of Thomas, J.] [the Fifth
Amendment is not violated “absent use of the compelled statements in a criminal case
against the witness”]; id. at p. 777 [conc. opn. of Souter, J.].)
Defendant also relies on a trio of Ninth Circuit opinions.
In United States v. Saechao (9th Cir. 2005) 418 F.3d 1073 (Saechao), the
probationer was subject to a condition that he “ ‘promptly and truthfully answer all
reasonable inquiries’ from the [probation] officer or face revocation of his probation.”
(Id. at p. 1075.) The probation officer asked the probationer if he had a gun, and the
probationer admitted that he had a hunting rifle. The probationer was charged with being
a felon in possession of a firearm, and he sought to suppress the fruits of his admission on
Fifth Amendment grounds. The district court granted his motion, and the Ninth Circuit
upheld the suppression order, finding that this was a “ ‘classic penalty situation’ ” because,
unlike in Murphy, the probationer was required by the probation condition to “ ‘answer
all . . . inquiries.’ ” (Id. at pp. 1075-1079.) Saechao does not advance defendant’s
contention because that case was concerned with the admissibility of a defendant’s
statements in a criminal prosecution. No such contention is at issue here. Defendant has
not made any statements, and no one is seeking to introduce any statements against him
in a criminal prosecution.
8
United States v. Antelope (9th Cir. 2005) 395 F.3d 1128 (Antelope) is also
unhelpful because it too did not uphold a Fifth Amendment challenge to a probation
condition. In Antelope, the defendant objected on Fifth Amendment grounds to probation
conditions requiring him to participate in a sex abuse treatment program and submit to
polygraph examinations. He thereafter refused to comply with the polygraph condition
and with the treatment program’s requirement that he “reveal his full sexual history . . . .”
(Id. at p. 1132.) His probation was revoked, and he was incarcerated. The Ninth Circuit
concluded that the defendant’s claim was “ripe” because he had been incarcerated for his
refusal to comply with the condition. (Id. at pp. 1132-1133.) It concluded that revoking
the defendant’s probation and incarcerating him for invoking his Fifth Amendment rights
violated the Fifth Amendment. (Id. at pp. 1134-1140.) Antelope is not relevant here.
Defendant is making a facial challenge to the probation condition; he has not been
subjected to any sanction for refusing to comply with it. We do not have before us in this
case the issue of whether defendant may have his probation revoked for refusing to
comply with this condition.
United States v. Bahr (9th Cir. 2013) 730 F.3d 963 (Bahr) is equally unhelpful as
it too did not uphold a facial challenge to a condition. Bahr had made admissions during
a “ ‘full disclosure’ polygraph test” required by a sex offender treatment program upon
which his supervised release was conditioned. (Id. at p. 965.) Bahr was subsequently
convicted of federal child pornography charges, and he sought to suppress the use of his
admissions at sentencing in the federal case. (Ibid.) The district court denied his
suppression motion, but the Ninth Circuit held that the use of his compelled statements
against him in the federal case violated the Fifth Amendment. (Id. at pp. 965-966.) In
Bahr, unlike here, the challenged statements were used against the defendant in a
criminal proceeding, a classic Fifth Amendment situation. Here, no statements have been
made, and none have been used against defendant.
9
Defendant also relies on the Arizona Supreme Court’s decision in State v. Eccles
(Ariz. 1994) 179 Ariz. 226 (Eccles) to support his claim. In Eccles, the trial court had
imposed as a condition of probation that the defendant “waive any and all rights against
[self-incrimination].” (Id. at p. 227.) The probationer challenged the probation condition
itself as violative of the Fifth Amendment, and the Arizona Supreme Court agreed. It
reasoned: “Not only is the state prohibited from revoking probation for a legitimate
invocation of the privilege against self-incrimination, we perceive the import of the
Murphy decision as being that the state is also prohibited from making waiver of the
privilege a term of probation.” (Id. at p. 228.) “The state may not force defendant to
choose between incriminating himself and losing his probationary status by remaining
silent. The fact that defendant has not yet been presented with the dilemma of either
incriminating himself or jeopardizing his probation does not affect our decision.” (Ibid.)
We reject the Arizona Supreme Court’s holding in Eccles that a probation
condition authorizing extraction of compelled statements itself violates the Fifth
Amendment, as that holding conflicts with authority from our Supreme Court.
In Maldonado v. Superior Court (2012) 53 Cal. 4th 1112 (Maldonado), the
California Supreme Court rejected the defendant’s claim that the Fifth Amendment
provided “a guarantee against officially compelled disclosure of potentially self-
incriminating information.” (Id. at p. 1127.) The Maldonado court based its holding on
the rule that the Fifth Amendment applies only to use of a defendant’s incriminating
statements; the Fifth Amendment does not bar the government from compelling those
statements. “[T]he Fifth Amendment does not provide a privilege against the compelled
‘disclosure’ of self-incriminating materials or information, but only precludes the use of
such evidence in a criminal prosecution against the person from whom it was compelled.”
(Id. at p. 1134.) “[T]he Fifth Amendment privilege against self-incrimination does not
target the mere compelled disclosure of privileged information, but the ultimate use of
10
any such disclosure in aid of a criminal prosecution against the person from whom such
information was elicited.” (Id. at p. 1137.)
The California Supreme Court’s decision in Maldonado relied on the United
States Supreme Court’s decision in Chavez, supra, 538 U.S. 760. Chavez was a civil
action involving qualified immunity. The issue was whether a police officer who
allegedly compelled statements from the plaintiff could be held liable for violating the
plaintiff’s civil rights. The plaintiff claimed that the police officer had violated the Fifth
Amendment. The United States Supreme Court produced a plurality opinion and
multiple separate opinions rejecting the plaintiff’s theory. Justice Thomas wrote the lead
opinion. In a section of his opinion joined by three other justices, Justice Thomas stated
that compelled statements “of course may not be used against a defendant at trial,
[citation], but it is not until their use in a criminal case that a violation of the Self-
Incrimination Clause occurs.” (Id. at p. 767.) “[M]ere coercion does not violate the text
of the Self-Incrimination Clause absent use of the compelled statements in a criminal
case against the witness.” (Id. at p. 769.) Writing separately, Justice Souter
acknowledged that it would be “well outside the core of Fifth Amendment protection” to
find that “questioning alone” was a “completed violation” of the Fifth Amendment and
declined to extend the Fifth Amendment to such a claim. (Id. at p. 777.) Thus, five
justices held in Chavez that the Fifth Amendment is not violated by the extraction of
compelled statements.
We are bound by Maldonado and Chavez (see Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal. 2d 450, 455), and they hold that the mere extraction of compelled
statements does not violate the Fifth Amendment. Since the challenged probation
condition does not purport to authorize the use of any statements against defendant in a
criminal proceeding, it does not violate the Fifth Amendment.
In sum, because the penalty exception will necessarily apply to statements that
defendant makes in response to questions asked as part of the sex offender management
11
program under compulsion of the section 1203.067, subdivision (b)(3) probation
condition, the condition itself does not violate the Fifth Amendment.
2. Overbreadth/Polygraph Examinations
Defendant also contends that condition No. 8 is overbroad because it requires him
to participate in polygraph examinations with no restrictions on the questions that may be
asked during those examinations. According to defendant, the condition should be either
stricken or limited.
Defendant relies on Brown v. Superior Court (2002) 101 Cal. App. 4th 313, where
the defendant was convicted of stalking while a domestic violence restraining order was
in effect. The trial court had imposed probation conditions requiring the defendant to
participate in a stalking therapy program and undergo “ ‘periodic polygraph examinations
at defendant’s expense, at the direction of the probation officer.’ ” (Id. at p. 321.) The
Court of Appeal held that the polygraph condition was overbroad, ordering it modified so
that the questions asked would be limited to “those relating to the successful completion
of the stalking therapy program and the crime of which Brown was convicted.” (Ibid.)
Here, the probation condition requires defendant to “participate in polygraph
examinations, which shall be part of the sex offender management program.” (See
§ 1203.067, subd. (b)(3).) The probation condition does not expressly limit the questions
that may be asked during polygraph examinations to those related to the successful
completion of the program or defendant’s criminal conviction. However, such a
limitation is inherent in the phrase “which shall be part of the sex offender management
program.” (Ibid.) In other words, the probation condition requires polygraph
examinations to be used only in furtherance of a probationer’s treatment, and thus
requires that the questions asked be relevant to that treatment.
In sum, the probation condition need not be modified to expressly state that the
questions asked during polygraph examinations must be reasonably related to the
12
completion of defendant’s treatment program or his conviction, because such limitations
are inherent in the condition.
B. Waiver of Psychotherapist-Patient Privilege (Condition No. 9)
As required by section 1203.067, subdivision (b)(4), defendant was ordered, as a
condition of probation, to “waive any psychotherapist-patient privilege to enable
communication between the sex offender management professional and the Probation
Officer.” (Condition No. 9.)
Defendant contends this probation condition is overbroad, violates his
constitutional right to privacy, coerces his waiver of a statutory privilege, and is
unreasonable. In his opening brief, defendant contends the condition should be stricken
or modified, although he does not suggest a specific modification. In his reply brief,
defendant requests that if we do not strike the condition, we construe it to require a
waiver of the psychotherapist-patient privilege only insofar as it is necessary to enable
communication between the sex offender management professional and supervising
probation officer.
Our Supreme Court and the United States Supreme Court have both assumed,
“without deciding, that in at least some circumstances the federal Constitution protects an
individual from governmentally compelled disclosure of confidential communications
between the individual and his or her psychotherapist or the use of information obtained
by such compelled disclosure in a court proceeding.” (People v. Gonzales (2013) 56
Cal. 4th 353, 385 (Gonzales); see NASA v. Nelson (2011) 562 U.S. 134 [131 S. Ct. 746,
751, 756]; Whalen v. Roe (1977) 429 U.S. 589, 605.) We will follow suit and assume,
without deciding, that defendant has a constitutional right to privacy with respect to
communications with a psychotherapist.
California’s statutory psychotherapist-patient privilege is found in Evidence Code
section 1014, which provides in pertinent part that “the patient, whether or not a party,
13
has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential
communication between patient and psychotherapist . . . .”
“The psychotherapist-patient privilege has been recognized as an aspect of the
patient’s constitutional right to privacy. [Citations.] It is also well established, however,
that the right to privacy is not absolute, but may yield in the furtherance of compelling
state interests.” (People v. Stritzinger (1983) 34 Cal. 3d 505, 511.) Even where there is
“(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the
circumstances; and (3) conduct constituting a serious invasion of the privacy interest,”
the constitutional right to privacy is not violated if “the invasion of the privacy interest is
justified because it substantially furthers one or more legitimate competing or
countervailing privacy or non-privacy interests.” (In re Christopher M. (2005) 127
Cal. App. 4th 684, 695 (Christopher M.), disapproved on a different point in Gonzales,
supra, 56 Cal.4th at p. 373.)
In Christopher M., the trial court imposed probation conditions requiring the
minor to participate in a treatment program and providing that the records of his
psychological treatment would be made available to the probation officer and the court
upon request. (Christopher M., supra, 127 Cal.App.4th at p. 690.) The minor claimed
that these conditions violated his constitutional right to privacy and were
unconstitutionally overbroad. (Id. at p. 691.) The court held that the invasion of the
minor’s privacy was justified by the State’s legitimate interests. “[T]he state has a
legitimate countervailing interest in (1) protecting the public against Christopher’s violent
and antisocial conduct, and (2) determining both whether he is fully complying with the
numerous conditions of his new grant of probation, and whether treatment is
succeeding . . . .” (Id. at p. 695.)
As in Christopher M., the invasion of defendant’s privacy is justified by the
State’s legitimate countervailing interests. The Legislature’s decision to restrict the
statutory psychotherapist-patient privilege for sex offenders solely with respect to
14
communications necessary to the success of the sex offender management program is
justified by the State’s legitimate interest in protecting the public from defendant’s sexual
misconduct, monitoring his compliance with his probation conditions, and determining
whether his treatment is succeeding.
Defendant’s claim that the section 1203.067, subdivision (b)(4) condition is
unconstitutionally overbroad fails for the same reason. A probation condition may limit a
constitutional right so long as the condition is closely tailored to its purpose. (Sheena K.,
supra, 40 Cal.4th at p. 890.) Here, the purpose of the condition is to protect the public
and monitor defendant’s compliance and the success of his treatment. Section 290.09
mandates certain communications between the probation officer and the certified “sex
offender management professionals” who are required to “assess each registered sex
offender on formal probation.” (§ 290.09, subd. (b)(1).) First, the certified sex offender
management professional is required to provide the probation officer with the
probationer’s scores on required risk assessment tools, and the probation officer is
required to send the scores to the Department of Justice. (Id., subd. (b)(2).) Second, the
certified sex offender management professional is required to communicate with the
probation officer “on a regular basis, but at least once a month, about the offender’s
progress in the program and dynamic risk assessment issues.” (Id., subd. (c).)
Section 1203.067, subdivision (b)(4) mandates that defendant waive the
psychotherapist-patient privilege only “to enable communication between the sex
offender management professional and supervising probation officer, pursuant to
Section 290.09.” Since section 290.09 is explicitly incorporated by reference, and since
section 290.09 limits the subject matter of the communication between the sex offender
management professional and the probation officer, the condition does not require
defendant to waive the psychotherapist-patient privilege as to any other subjects. This
construction comports with the plain language of the statute, and it also harmonizes the
statute with section 290.09. (See People v. Kennedy (2011) 194 Cal. App. 4th 1484, 1490-
15
1491.) As the challenged condition does not require defendant to waive his
psychotherapist-patient privilege outside of a limited context, it is closely tailored to its
purpose and not unconstitutionally overbroad.
There is no merit to defendant’s assertion that the section 1203.067,
subdivision (b)(4) condition is unreasonable. Protecting the public, monitoring
defendant’s compliance with his probation conditions, and facilitating the success of his
treatment program are all reasonably related to reforming and rehabilitating defendant so
as to prevent his future criminality. (People v. Lent (1975) 15 Cal. 3d 481, 486; § 1203.1,
subd. (j).)
Defendant also claims that the waiver of his psychotherapist-patient privilege is
invalid because the waiver is “coerced.” He relies on Regents of University of California
v. Superior Court (2008) 165 Cal. App. 4th 672 (Regents). However, that case did not
involve a probation condition or the psychotherapist-patient privilege. Regents involved
the attorney-client privilege under Evidence Code section 912, which specifies that the
privilege is not waived when a holder has disclosed privileged communications “without
coercion.” The issue in Regents was whether the defendant corporations (the real parties
in interest) had waived the attorney-client privilege when they disclosed privileged
communications while cooperating with the government under threat of regulatory
action. The facts and statute at issue in Regents are not analogous to this case. Here, the
Legislature has mandated that sex offenders like defendant not be granted probation
unless this condition is imposed. Defendant was free to decline the grant of probation,
burdened as it was with this condition, but he chose to accept it. “Probation is not a right,
but a privilege. ‘If the defendant considers the conditions of probation more harsh than
the sentence the court would otherwise impose, he has the right to refuse probation and
undergo the sentence. [Citations.]’ ” (People v. Bravo (1987) 43 Cal. 3d 600, 608.) There
is no coercion.
16
In sum, we conclude there is no need to strike or modify the probation condition
imposed pursuant to section 1203.067, subdivision (b)(4).
C. Romantic Relationship Condition (Condition No. 11)
Defendant challenges the probation condition that requires him not to “date,
socialize with or form a romantic relationship with any person who has physical custody
of a minor unless approved by the Probation Officer.” (Condition No. 11.) He contends
the condition is unconstitutionally vague and overbroad. He requests this court remand
the case to the trial court with directions to impose a condition that is more precise and
closely tailored to the purpose of protecting minors in his presence.
The Attorney General concedes the probation condition is overbroad and vague to
the extent it uses the term “socialize.” The Attorney General suggests the term
“socialize” be stricken “[b]cause this term could even bar trivial interactions with the
majority of people in the country, and a system for prior approval by a probation officer
would be unmanageable.”
We agree with defendant that this particular condition is overbroad because it
imposes significant restrictions on defendant’s constitutional right to free association.
Similar conditions were found overbroad in People v. O’Neil (2008) 165 Cal. App. 4th
1351 (O’Neil) and U.S. v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, 1101 (Wolf Child).
In O’Neil, the trial court imposed the following condition of the defendant’s
probation: “ ‘You shall not associate socially [i.e. socialize], nor be present at any time,
at any place, public or private, with any person, as designated by your probation
officer.’ ” (O’Neil, supra, 165 Cal.App.4th at p. 1354.) The reviewing court observed
that, “[a]s written, there are no limits on those persons whom the probation officer may
prohibit defendant from associating with.” (Id. at p. 1357.) The O’Neil court noted that
the condition failed to “identify the class of persons with whom defendant may not
associate” or “provide any guideline as to those with whom the probation department
may forbid association.” (Id. at pp. 1357-1358.) The O’Neil court explained that while a
17
trial court “may leave to the discretion of the probation officer the specification of the
many details that invariably are necessary to implement the terms of probation,” “the
court’s order cannot be entirely open-ended.” (Id. at pp. 1358-1359.) It concluded that
“[w]ithout a meaningful standard, the order is too broad and it is not saved by permitting
the probation department to provide the necessary specificity.” (Id. at p. 1358, fn.
omitted.)
In Wolf Child, one of the conditions of the defendant’s supervised release was that
he not “ ‘date or socialize with anybody who has children under the age of 18’ without
prior written approval from his probation officer.” (Wolf Child, supra, 699 F.3d at
p. 1100, fn. omitted.) In determining that the condition suffered from constitutional
overbreadth because it infringed on Wolf Child’s right to free association (id. at p. 1100),
the Ninth Circuit Court of Appeals noted, “[t]he prohibited group includes people close to
Wolf Child, such as family members, friends, and neighbors who might have children. It
would also include a boss or coworker, a sponsor in a support group, or a spiritual leader.
The number of people with whom Wolf Child might socialize, knowing them to have
children under the age of 18, is indeed vast. For the 10 years of his supervised release,
Wolf Child would be required to obtain prior written approval from his probation officer
before, for instance, having dinner with [the mother of his oldest child] on a special
occasion, or meeting a close family member or friend for coffee, or going to an AA
meeting or a tribal function with others seeking to improve their own lives or their tribe’s
social conditions generally; he might even find himself prohibited from joining his
coworkers in the lunch-room or at a social activity sponsored by his employer.” (Id. at
p. 1101.) The Wolf Child court went on to say, “It is hard to imagine how Wolf Child
would be able to develop friendships, maintain meaningful relationships with others,
remain employed, or in any way lead a normal life during the 10 years of his supervised
release were he to abide” by the condition that he not date or socialize with anybody who
has children under the age of 18. (Ibid.) The Wolf Child court found the condition
18
“overbroad and thus not sufficiently limited to achieving the goals of deterrence,
protection of the public or rehabilitation.” (Id. at p. 1100.)
The condition imposed here is designed to prevent defendant having contact with
children. However, the condition prohibits defendant from socializing with people such
as family, friends and coworkers, even though he may never come into contact with their
children. A restriction on socializing with anybody who has a child or children under the
age of 18, even though defendant may never come into contact with those children, is not
carefully tailored to the purpose of the condition. Simply put, it burdens activity that
does not raise a sufficiently high probability of harm to governmental interests to justify
the interference. Thus, we agree that the term “socialize” should be stricken from the
condition.
On the other hand, the terms “date” and “form a romantic relationship” do not
suffer from similar overbreadth problems. The number of individuals who defendant
might seek to date or form a romantic relationship with is not nearly as large as the
number of individuals defendant might socialize with. Further, although it is possible for
a probationer to date or form a romantic relationship without coming into contact with the
minors the condition seeks to protect, the condition is sufficiently restrictive in light of its
purpose, which is to reduce defendant’s opportunities for contact with minors.
Nor do we believe the terms “date” and “romantic relationship” are
unconstitutionally vague, as both terms “have a ‘plain commonsense meaning, which is
well settled . . . .’ [Citations.]” (In re R.P. (2009) 176 Cal. App. 4th 562, 566-567.) The
verb “date,” in this context, is commonly understood to mean to engage in activities with
another person with the intent of forming a romantic relationship.5 A romantic
5
One meaning of the noun “date” is “a social engagement between two persons
that often has a romantic character,” and the verb “date” can mean “to make or have a
date with” or “to go out on usu. romantic dates.” (Merriam-Webster’s Collegiate Dict.
(10th ed. 1993) p. 294.)
19
relationship is commonly understood to mean a relationship in which two people have
feelings of love or affection for one another.6 Thus, the terms “date” and “romantic
relationship” are “ ‘sufficiently precise for the probationer to know what is required of
him [or her]. . . .’ ” (Sheena K., supra, 40 Cal.4th at p. 890.)
For the reasons stated above, we will order condition No. 11 modified to provide:
“The defendant may not date or form a romantic relationship with any person who has
physical custody of a minor unless approved by the Probation Officer.”
D. Internet Access Condition (Condition No. 21)
Defendant’s next challenge is to the probation condition ordering him not to
“access the Internet or any other on-line service through use of a computer, or other
electronic device at any location (including place of employment) without prior approval
of the Probation Officer,” and not to “possess or use any data encryption technique
program.” (Condition No. 21.)
Defendant contends this condition is overbroad, both as a general matter and under
the circumstances of this case. With regard to his as-applied challenge, defendant argues
that other probation conditions place sufficient limitations on his use of a computer and
the Internet, making it unnecessary to also require him not to use the Internet without the
approval of his probation officer. He points to the probation conditions requiring his
“computer and all other electronic devices . . . be subject to Forensic Analysis search”
(condition No. 6), requiring him to “provide passwords [and] email addresses” to the
probation officer (condition No. 6a), ordering him not to “enter any social networking
sites, nor post any ads, either electronic or written, unless approved by the Probation
Officer” (condition No. 17), and ordering him not to “clean or delete Internet browsing
activity” and to “keep a minimum of four weeks of history” (condition No. 22).
6
One meaning of “romantic” is “marked by expressions of love or affection.”
(Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 1016.)
20
Defendant acknowledges that this court approved a similar condition in People v.
Pirali (2013) 217 Cal. App. 4th 1341 (Pirali), but he urges us to reconsider that decision.7
In Pirali, this court found “no merit to defendant’s contention that the existence of the
other, less restrictive Internet- and computer-related probation conditions renders the
broader Internet condition superfluous or contradictory.” (Id. at p. 1347.) This court also
concluded that the condition at issue was not a “blanket prohibition” on Internet access
because it “grants defendant the ability to access the Internet on his computer and other
electronic devices so long as he obtains prior permission from his [probation] officer.”
(Id. at pp. 1349-1350.)
We decline defendant’s invitation to part ways with Pirali. However, we do
agree, as defendant alternatively contends and as the Attorney General concedes, that the
probation condition should be modified to include scienter requirements. “[W]ithout an
express knowledge requirement, defendant could unwittingly violate the condition as
there are situations in which he may not know he has access to or has accessed the
Internet.” (Pirali, supra, 217 Cal.App.4th at p. 1350.) Because the addition of explicit
knowledge elements will protect defendant from truly inadvertent acts while still serving
the purpose of ensuring that his probation officer can track his Internet activity as
necessary, we will modify condition No. 21 as follows: “The defendant shall not
7
Defendant also cites two federal opinions finding similar probation conditions
overbroad. (See U.S. v. Freeman (3d Cir. 2003) 316 F.3d 386, 392, fn. omitted [“it is not
reasonably necessary to restrict all of Freeman’s access to the internet when a more
limited restriction will do”]; U.S. v. Sofsky (2d Cir. 2002) 287 F.3d 122, 126 [“the
condition inflicts a greater deprivation on Sofsky’s liberty than is reasonably
necessary”].) Defendant fails to acknowledge that other federal opinions have upheld
such conditions. (See U.S. v. Rearden (9th Cir. 2003) 349 F.3d 608, 621 [“The condition
does not plainly involve a greater deprivation of liberty than is reasonably necessary for
the purpose because it is not absolute; rather, it allows for approval of appropriate online
access by the Probation Office.”]; U.S. v. Ristine (8th Cir. 2003) 335 F.3d 692, 695-696
[declining to follow Freeman and Sofsky]; U.S. v. Zinn (11th Cir. 2003) 321 F.3d 1084,
1093 [same].)
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knowingly access the Internet or any other on-line service through use of a computer, or
other electronic device at any location (including place of employment) without prior
approval of the Probation Officer. The defendant shall not knowingly possess or use any
data encryption technique program.”
E. Conditions Concerning Pornography (Conditions Nos. 19 & 20)
Defendant challenges, as unconstitutionally vague, the probation condition
ordering him not to “purchase or possess any pornographic or sexually explicit material
as defined by the Probation Officer” (condition No. 19) and the probation condition
ordering him not to “frequent, be employed by, or engage in, any business where
pornographic materials are openly exhibited” (condition No. 20).
Defendant contends these two conditions fail to provide him advance notice of
what materials are prohibited. He requests that both of these conditions be modified to
include knowledge elements, and that condition No. 20 be modified to replace the word
“frequent” with the phrase “visit or remain.” The Attorney General also asks this court to
order the conditions modified to include knowledge elements and does not appear to
oppose using the phrase “visit or remain” in lieu of the word “frequent.”
“[T]he law has no legitimate interest in punishing an innocent citizen who has no
knowledge of the presence of a [prohibited item].” (People v. Freitas (2009) 179
Cal. App. 4th 747, 752 [modifying probation condition to prohibit knowing possession of a
firearm or ammunition].) Accordingly, courts have consistently ordered modification of
probation conditions to incorporate a scienter requirement where a probationer could
unknowingly engage in the prohibited activity. (E.g., In re Victor L. (2010) 182
Cal. App. 4th 902, 912-913 [modifying probation condition to prohibit knowing presence
of weapons or ammunition].)
In Pirali, this court modified a probation condition that prohibited the defendant
from purchasing or possessing pornographic or sexually explicit materials as defined by
the probation officer. This court explained, “Materials deemed explicit or pornographic,
22
as defined by the probation officer, is an inherently subjective standard that would not
provide defendant with sufficient notice of what items are prohibited.” (Pirali, supra,
217 Cal.App.4th at p. 1353.) We modified the condition to state that the defendant was
“prohibited from purchasing or possessing pornography or sexually explicit materials,
having been informed by the probation officer that such items are pornographic or
sexually explicit.” (Ibid.) Following the rationale of Pirali, we will modify condition
No. 19 to include an express knowledge requirement and to delete the phrase “as defined
by the probation officer,” so that it provides: “The defendant shall not purchase or
possess any material he knows or reasonably should know to be pornographic or sexually
explicit.”
This court has previously held that the term “frequent” is unconstitutionally vague.
(Leon, supra, 181 Cal.App.4th at p. 952; In re H.C. (2009) 175 Cal. App. 4th 1067, 1072.)
Thus, we will modify the condition that defendant “not frequent, be employed by, or
engage in, any business where pornographic materials are openly exhibited” (condition
No. 20) to provide: “The defendant shall not knowingly visit or remain in, be employed
by, or engage in, any business where pornographic materials are openly exhibited.”
IV. DISPOSITION
Condition No. 11 is modified to read as follows: “The defendant may not date or
form a romantic relationship with any person who has physical custody of a minor unless
approved by the Probation Officer.”
Condition No. 19 is modified to read as follows: “The defendant shall not
purchase or possess any material he knows or reasonably should know to be
pornographic or sexually explicit.”
Condition No. 20 is modified to read as follows: “The defendant shall not
knowingly visit or remain in, be employed by, or engage in, any business where
pornographic materials are openly exhibited.”
23
Condition No. 21 is modified to read as follows: “The defendant shall not
knowingly access the Internet or any other on-line service through use of a computer, or
other electronic device at any location (including place of employment) without prior
approval of the Probation Officer. The defendant shall not knowingly possess or use any
data encryption technique program.”
As modified, the judgment is affirmed.
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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.