People v. Garcia , 216 Cal. Rptr. 3d 75 ( 2017 )

Filed 3/20/17
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S218197
v. )
) Ct.App. 6 H039603
IGNACIO GARCIA, )
) Santa Clara County
Defendant and Appellant. ) Super. Ct. No. C1243927
____________________________________)
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

SEE CONCURRING OPINION.
[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
1 All further unlabeled statutory references are to the Penal Code.
2
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
3
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
4
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.
5
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
6
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
7
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).)
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. (§ 9003, subds. (a), (b), (d).) The relevant standards require the
containment team to obtain accurate information about the offender‘s prior
victims, the offender‘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 § 9003, subd. (b) [―programs shall include
polygraph examinations‖].) 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 ― ‗is generally
regarded as a main impediment to successful therapy.‘ ‖ (McKune v. Lile (2002)
536 U.S. 24, 33 (plur. opn. of Kennedy, J.); see English et al., Community
Containment of Sex Offender Risk: A Promising Approach in Protecting Society
From Sexually Dangerous Offenders: Law, Justice, and Therapy (Winick &
LaFond edits., 2003) p. 266.) The supervising probation or parole officer then
uses information obtained through treatment and verified by the polygraph
8
examination to assess the risk posed by the offender and take appropriate remedial
action. (Ibid.)
This approach depends on the cooperative efforts and expertise of each part
of the containment team. Accordingly, CASOMB concluded that adoption of the
full model was necessary to reduce the risk associated with managing convicted
sex offenders on probation. (Sen. Com. on Public Safety, Analysis of Assem. Bill
No. 1844, supra, at pp. 30-31, quoting CASOMB letter to Assemblyman
Fletcher.) What CASOMB asserted, in particular, is that the absence of open and
ongoing communication among the professionals and others involved in the
offender‘s supervision ―compromises the purpose of the containment team
approach and may jeopardize the safety of the community.‖ (CASOMB, Sex
Offender Treatment Program Certification Requirements, supra, at p. 12.)
Following this recommendation, the Legislature mandated certain
conditions for any registered sex offender placed on probation. Among these are
participation and successful completion of an approved sex offender management
program (§ 1203.067, subd. (b)(1), (2)); waiver of the privilege against self-
incrimination and participation in polygraph examinations as part of the sex
offender management program (id., subd. (b)(3)); and waiver of the
psychotherapist-patient privilege to enable communication between the sex
offender management professional and the supervising probation officer and
polygraph examiner (id., subd. (b)(4)). At issue in this appeal is the
constitutionality, under both state and federal law, of the subdivision (b)(3) and
(b)(4) conditions.
A. The Validity of the Probation Condition Requiring Waiver of the
Privilege Against Self-Incrimination and Participation in Polygraph Examinations
(the Subdivision (b)(3) Condition)
1. Waiver of the privilege against self-incrimination
9
Defendant‘s argument that section 1203.067, subdivision (b)(3) imposes an
invalid condition rests on two contentions: (1) that the probation condition
requires him to waive his Fifth Amendment privilege, and (2) that a coerced
waiver of his Fifth Amendment privilege is unconstitutional. Although we agree
that a coerced waiver of the privilege against self-incrimination would raise
serious constitutional questions, our examination of the subdivision (b)(3)
condition in its proper context, as well as the structure and purpose of Chelsea‘s
Law, demonstrates that the Legislature has not actually required probationers to
waive the protections of the Fifth Amendment. The condition is properly read
instead 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. Because
there is no Fifth Amendment privilege against compelled disclosure of information
that cannot be used to incriminate the probationer (Fisher v. United States (1976)
425 U.S. 391, 400-401; accord, Maldonado v. Superior Court (2012) 53 Cal. 4th
1112, 1134 (Maldonado)), it follows that the condition, properly understood, does
not violate the Fifth Amendment.
We begin with the construction proposed by defendant. The subdivision
(b)(3) condition, he asserts, should be interpreted in the broadest manner as
requiring him to waive all of his Fifth Amendment protections, including the right
to bar use of his compelled statements in a criminal trial. But this construction, he
concludes, is unconstitutional under well-established precedent. In short,
defendant argues that the Legislature enacted a patently unconstitutional statute,
and that we have no choice but to strike it down.
Defendant is correct that it would raise serious constitutional questions to
require defendants to waive their privilege against self-incrimination as a
condition of probation. As the high court has explained, ― ‗a State may not impose
10
substantial penalties because a witness elects to exercise [the] Fifth Amendment
right not to give incriminating testimony . . . .‘ ‖ (Murphy, supra, 465 U.S. at p.
434.) For example, the government cannot condition a benefit such as public
employment on a waiver of the privilege against self-incrimination, even if the
waiver is ultimately deemed ineffective. (Sanitation Men v. Sanitation Comm’r
(1968) 392 U.S. 280, 283-285; Gardner v. Broderick (1967) 392 U.S. 273, 279
[―the mandate of the great privilege against self-incrimination does not tolerate the
attempt, regardless of its ultimate effectiveness, to coerce a waiver of the
immunity it confers on penalty of the loss of employment‖]; accord, Spielbauer v.
County of Santa Clara (2009) 45 Cal. 4th 704, 720 [―the Fifth Amendment forbids
dismissal from public employment for refusal to surrender the privilege against
self-incrimination‖].) The high court has also found ―a substantial basis in our
cases‖ to support the proposition that conditioning a grant of probation on
surrender of the Fifth Amendment privilege would likewise ―create[] the classic
penalty situation‖ and thus be unconstitutional. (Murphy, at p. 435; see id. at p.
436 [requiring a defendant ―to choose between making incriminating statements
and jeopardizing his conditional liberty by remaining silent‖ is ―the extra,
impermissible step‖].) As in the other ―penalty‖ cases, the statements of a
probationer faced with such a choice would be inadmissible in a criminal
prosecution. (Id. at p. 435.)
The People do not dispute defendant‘s characterization of Murphy or his
contention that it would be unconstitutional to condition a grant of probation on
surrender of his Fifth Amendment privilege. What they claim instead is that we
must reject defendant‘s broad construction of the subdivision (b)(3) condition and
consider whether the condition can reasonably be construed in a manner that is
consistent with the Constitution. They rely on the doctrine of constitutional
avoidance.
11
Under the doctrine, a statute should not be construed to violate the
Constitution ― ‗ ―if any other possible construction remains available.‖ ‘ ‖ (People
v. Trujeque (2015) 61 Cal. 4th 227, 256; accord, DeBartolo Corp. v. Fla. Gulf
Coast Trades Council (1988) 485 U.S. 568, 575 [―where an otherwise acceptable
construction of a statute would raise serious constitutional problems, the Court
will construe the statute to avoid such problems unless such construction is plainly
contrary to the intent of Congress‖].) The theory underlying the canon rests not
only on a preference for avoiding the unnecessary resolution of constitutional
questions, but also on the presumption that the Legislature (whose members have
sworn to uphold the Constitution) did not ―intend[] to infringe constitutionally
protected liberties or usurp power constitutionally forbidden it.‖ (DeBartolo
Corp., at p. 575; see People v. Superior Court (Romero) (1996) 13 Cal. 4th 497,
509.) The basis for that presumption is especially strong in this case. Not only did
the high court‘s Murphy decision predate the enactment of Chelsea‘s Law by over
25 years, but that same decision also set out with some care how a state should go
about establishing a valid way of obtaining the information necessary to monitor
probationers released into the community. As the high court explained, ―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.‖ (Murphy, supra, 465 U.S. at p. 435, fn. 7.)
Defendant nonetheless claims the avoidance canon is inapplicable here.
The subdivision (b)(3) condition, he contends, is unambiguous and must be
accorded its literal meaning: that it requires the waiver of any privilege against
self-incrimination. The People, by contrast, argue that the condition is ambiguous,
and conclude that ―the historical context, the plain language, and the positioning of
the waiver all indicate that the Legislature intended to limit invocation of the
12
privilege against self-incrimination only in the narrow context of probation
supervision and treatment,‖ without precluding probationers from objecting ―to the
admission of compelled statements in later criminal proceedings.‖ Under this
interpretation, the word ―any‖ in subdivision (b)(3) would not refer to all aspects
of the self-incrimination privilege, but rather to ―any‖ right to remain silent that
probationers might assert as a basis for refusing to answer questions posed by the
containment team. What we find is that defendant‘s construction places too much
reliance on one particular reading of the provision‘s text, and too little on the
provision‘s purpose and context.
Text may sometimes seem unambiguous in isolation, even as it harbors
greater complexity when considered in the context of surrounding provisions and
the overall statutory structure. (Poole v. Orange County Fire Authority (2015) 61
Cal. 4th 1378, 1391-1392 (conc. opn. of Cuéllar, J.), citing Horwich v. Superior
Court (1999) 21 Cal. 4th 272, 276, and Hodges v. Superior Court (1999) 21
Cal. 4th 109, 114.) Both the Penal Code (see § 7, subd. 16) and our case law
(People v. Leiva (2013) 56 Cal. 4th 498, 506) direct us to construe words and
phrases according to their statutory context. We consider the text in conjunction
with the context and purpose of the statute even where, as here, the statutory
language has a ―highly technical‖ meaning. (Zuni Public School Dist. No. 89 v.
Department of Education (2007) 550 U.S. 81, 99.)
Our primary task, after all, is to identify and effectuate the underlying
purpose of the law we are construing. (Goodman v. Lozano (2010) 47 Cal. 4th
1327, 1332.) The statutory provision here describes the waiver term of probation
as ―part of the sex offender management program.‖ (§ 1203.067, subd. (b)(3).)
Other parts of the same subdivision provide that participation in a sex offender
management program for at least a year is a requirement of probation, as is
successful completion of the program, and that the program must follow the
13
standards developed by CASOMB. (Id., subd. (b)(2), citing § 9003.) Those
standards emphasize the need for complete and accurate information about the
probationer‘s prior victims, the probationer‘s access to potential new victims, and
the high-risk behavior unique to that sex offender. It is precisely such information
that is meant to be elicited by the psychotherapist and probation officer, and
verified by polygraph examinations. (CASOMB, Post-Conviction Sex Offender
Polygraph Certification Standards, supra, pp. 10-23.)
So any reasonable understanding of statutory purpose here must
acknowledge the Containment Model‘s dependence on the information shared by
the probationer. The People contend that the model‘s pillars are (1) measures
designed to ensure the accuracy and completeness of the information provided by
sex offenders to treatment professionals, and (2) collaboration and communication
among the containment team members to enable development of an individualized
treatment plan and to ensure the offender‘s compliance with it. The model
contemplates that the privilege against self-incrimination must not be used to
impede treatment professionals from eliciting a full disclosure of the offender‘s
sex offense history, which is verified for completeness and accuracy by the
polygraph examination. The containment team, in turn, uses the verified
information to formulate an accurate risk profile and monitoring plan with the goal
of preventing recidivism and promoting public safety. Depriving the containment
team of the ability to insist on answers to their questions would, according to the
People, ―undercut[] this core pillar of the model.‖ (See State v. Fuller (Mont.
1996) 915 P.2d 809, 816 [―a defendant who refuses to disclose his offense history
cannot be successfully treated‖].)
The purpose of the subdivision (b)(3) condition can thus be understood as a
means of ensuring that the probationer fully, and accurately, answers questions
pertinent to the sex offender management program. Without that insight into the
14
probationer‘s history and current state of mind, the containment team would be
seriously hampered in its vital task of monitoring the probationer in the
community. If the containment team is to fulfill its proper role in the offender
management system, the flow of information to the team must not be subject to
disruption by a probationer‘s assertion of the privilege against self-incrimination.
Because it would frustrate the purpose of the subdivision (b)(3) condition
for a probationer to engage in a valid assertion of the privilege that thwarts a core
premise of the sex offender management program, it would make no sense to
interpret the condition as compelling a waiver that the People concede would be
unconstitutional. The People acknowledge the need to read the text of the
subdivision (b)(3) condition in the context of the statutory scheme and its purpose.
(See generally In re Application of Haines (1925) 195 Cal. 605, 612 [―To arrive at
the legislative intent in the interpretation of statutes the original purpose and object
of the legislation must be considered‖], disapproved on other grounds in In re
Culver (1968) 69 Cal. 2d 898, 904-905 & fn. 8.) There is no indication in the
structure of Chelsea‘s Law or in its legislative history that the Legislature expected
(in defiance of the high court‘s Murphy decision) that the fruits of the
probationer‘s statements would be admissible in a subsequent criminal
prosecution. In short, defendant‘s construction of the subdivision (b)(3) condition
is inconsistent with the statutory purpose. So we must reject it. (People v. Leiva,
supra, 56 Cal.4th at p. 506.)
We conclude instead that the subdivision (b)(3) condition may reasonably
be construed in a manner that is both constitutional and consistent with the
purpose of Chelsea‘s Law. (See People v. Chandler (2014) 60 Cal. 4th 508, 524.)
The subdivision (b)(3) condition does no more than allow the containment team to
overcome the probationer‘s Fifth Amendment objections when the team poses
potentially incriminating questions. Under this construction, a probationer is
15
required to answer the questions posed by the containment team, on pain of
probation revocation should the probationer refuse. In turn, the probationer‘s
compelled responses may not be used against the probationer in a subsequent
criminal prosecution. (Murphy, supra, 465 U.S. at p. 435 & fn. 7.)
This construction adequately safeguards a probationer‘s Fifth Amendment
rights. The Fifth Amendment prohibits the government from using statements
compelled under the subdivision (b)(3) condition against the probationer in a
criminal trial, whether as direct evidence of guilt or as impeachment. (New Jersey
v. Portash (1979) 440 U.S. 450, 458-459.) It also prevents the government from
exploiting the information gleaned from those statements to discover other
evidence of guilt. (Wong Sun v. United States (1963) 371 U.S. 471, 487-488.)
Once a defendant demonstrates that he or she was compelled to disclose evidence
of criminal conduct as part of the sex offender management program — which
could ordinarily be established by the defendant‘s uncontradicted declaration to
that effect — the burden shifts to the prosecution in a criminal proceeding to
demonstrate that its evidence was untainted by the defendant‘s prior statements.
(See Kastigar v. United States (1972) 406 U.S. 441, 460.) That is, the government
remains free to undertake a prosecution for those crimes, but it bears a ―heavy
burden‖ to show that its evidence was derived from a legitimate source wholly
independent of the compelled testimony. (Id. at p. 461; accord, Maldonado,
supra, 53 Cal.4th at pp. 1138-1139, fn. 17.)
We therefore interpret the subdivision (b)(3) condition as directing the
probationer, in the context of questioning by the containment team, to exchange
the privilege against self-incrimination for an immunity against prosecutorial use
of the compelled responses. (See United States v. Balsys (1998) 524 U.S. 666,
682.) As this court has previously explained, the Fifth Amendment does not
establish a privilege against the compelled disclosure of information; rather, it
16
―precludes the use of such evidence in a criminal prosecution against the person
from whom it was compelled.‖ (Maldonado, supra, 53 Cal.4th at p. 1134.)
At the People‘s invitation — and to remove any doubt on this score — we
explicitly declare that probationers have immunity against the direct and derivative
use of any compelled statements elicited under the subdivision (b)(3) condition.
(See United States v. Balsys, supra, 524 U.S. at p. 683, fn. 8 [―the prediction that a
court in a future criminal prosecution would be obligated to protect against the
evidentiary use of compelled testimony is not enough to satisfy the privilege
against compelled self-incrimination‖]; cf. Maldonado, supra, 53 Cal.4th at p.
1129, fn. 10 [declaring judicial immunity against use in prosecution‘s case-in-
chief of an accused‘s compelled statement to a prosecution mental health expert];
accord, State v. Evans (Wis. 1977) 252 N.W.2d 664, 668 [declaring judicial
immunity against use of incriminating information disclosed under compulsion by
a probationer or parolee to a probation or parole agent ―[i]n order to guarantee the
fifth amendment rights of a probationer or a parolee and at the same time to
preserve the integrity of the probation system‖].) We further agree with the
People that the probationer must be made aware of the protection afforded
statements compelled in the course of the sex offender management program. In
particular, a probationer must be advised, before treatment begins, that no
compelled statement elicited under questioning in the course of the mandatory sex
offender management program (or the fruits thereof) may be used against him or
her in a subsequent criminal prosecution. (Cf. Evans, supra, at pp. 668-669
[declaring that a probationer or parolee should be made aware that potentially
17
incriminating answers compelled under questioning by a probation or parole
officer cannot be used in a subsequent criminal proceeding].)2
2. Participation in polygraph examinations
The trial court also conditioned defendant‘s probation on his participation
in polygraph examinations connected to the sex offender management program.
Defendant argues that mandating the use of polygraph examinations to ―elicit
incriminating information‖ about ―uncharged offenses‖ violates the Fifth
Amendment. But as explained earlier, the information elicited under compulsion
by the containment team in interviews and by polygraph examinations may not be
used against the probationer in a criminal prosecution and therefore does not
offend the Fifth Amendment. (Brown v. Superior Court (2002) 101 Cal. App. 4th
313, 320 [―if the questions put to the probationer [during the polygraph
examination] are relevant to his probationary status and pose no realistic threat of
incrimination in a separate criminal proceeding, the Fifth Amendment privilege
would not be available and the probationer would be required to answer those
questions truthfully‖]; accord, United States v. Locke (5th Cir. 2007) 482 F.3d
764, 767 [―The fact that the questions were asked to Locke in the context of a
polygraph test does not convert the question-and-answer session into a Fifth
Amendment violation‖].)
2 If defendant had been successful in invalidating the subdivision (b)(3)
condition, it might have had paradoxical consequences for him and for other sex
offenders who are granted probation. Without the assurance that the containment
team would be able to uncover the extent of a probationer‘s vulnerabilities and
monitor the probationer‘s progress, a trial court might well conclude that the sex
offender was not a good candidate for probation and must instead be sentenced to
prison. (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1844, supra, at
pp. 30-31.)
18
Defendant complains next that the scope of the mandated examinations
under the subdivision (b)(3) condition is not limited to prior or potential sex
offenses but would permit a polygraph examiner to ask ―anything at all, without
limitation,‖ including questions about ―his medical history or personal financial
matters having nothing to do with any criminal conduct.‖ He contends that
requiring him to participate in polygraph examinations of unlimited scope would
be overbroad and that the condition should be narrowed.
We reject the claim of overbreadth here. The scope of the polygraph
examination is not unbounded, as defendant suggests. Rather, it is limited to that
which is reasonably necessary to promote the goals of probation. As the Court of
Appeal pointed out, the polygraph testing condition is expressly linked to the
purposes and needs of the sex offender management program. (See § 1203.067,
subd. (b)(3) [requiring ―participation in polygraph examinations, which shall be
part of the sex offender management program‖].) That program requires
disclosure of each prior sex offense so as to enable identification of the
psychological and physiological factors associated with the probationer‘s crimes
and development of a plan to reform and rehabilitate the probationer. The
polygraph is a reasonable means of verifying the accuracy and completeness of
those disclosures and of ensuring the probationer‘s compliance with treatment and
supervision, both of which allow the containment team to discover and monitor
the risks posed by the probationer‘s release to the community. (In re Jordan R.
(2012) 205 Cal. App. 4th 111, 129, fn. 17.) Because the scope of the polygraph
examination is already focused by its terms on criminal conduct related to the sex
offender management program, it is a valid condition of probation and does not
require further limitation. (See People v. Lent (1975) 13 Cal. 3d 481, 486.)
The polygraph examination, of course, may also include questions unrelated to the
probationer‘s treatment and supervision but that are reasonably necessary to
19
establish a baseline physiological response. Such questions do not render the
condition overbroad.
B. The Constitutionality of the Probation Condition Requiring Waiver
of the Psychotherapist-patient Privilege (the Subdivision (b)(4) Condition)
Defendant contends that the condition requiring him to waive his
psychotherapist-patient privilege violates his right to privacy and is
unconstitutionally overbroad. As we recently did in People v. Gonzales (2013) 56
Cal. 4th 353, 385 (Gonzales), we will assume (without deciding) that the federal
Constitution can in some circumstances protect convicted sex offenders from
governmentally compelled disclosure of privileged communications with their
psychotherapists. We nonetheless conclude that the subdivision (b)(4) condition is
not unconstitutional.3
To determine whether the sharing of confidential communications between
defendant and his psychotherapist (see Evid. Code, § 1012) with certain members
of the containment team would violate defendant‘s asserted federal constitutional
right to privacy, we balance the particular intrusion on defendant‘s privacy against
the justification for the probation condition. (Gonzales, supra, 56 Cal.4th at
p. 386.) Defendant, as a probationer, has a diminished expectation of liberty and
privacy as compared to an ordinary citizen. (United States v. Knights (2001) 534
U.S. 112, 119.) In addition, the waiver required by the probation condition is
quite narrow. By its express terms, the waiver is limited to that which is necessary
―to enable communication between the sex offender management professional and
3 Defendant purports to assert claims under both the federal and state rights
to privacy, but provides no separate analysis of the protection afforded by the state
Constitution. We therefore restrict our discussion to the federal claim. (See
People v. Turner (1994) 8 Cal. 4th 137, 214, fn. 19.)
20
supervising probation officer, pursuant to Section 290.09.‖ (§ 1203.067,
subd. (b)(4).) Consequently, a probationer‘s confidential communications may be
shared only with the probation officer and the certified polygraph examiner, who
is likewise explicitly authorized to receive ―pertinent information . . . as required‖
from the sex offender management professional under subdivision (c) of section
290.09. (See § 9003, subd. (b) [sex offender management programs provided by
sex offender management professionals ―shall include polygraph examinations by
a certified polygraph examiner‖].)4 The waiver does not relieve the
psychotherapist, probation officer, or polygraph examiner of their duty to
otherwise maintain the confidentiality of this information (although the mandatory
reporting laws may themselves require a probation officer, psychotherapist, or
other classified individual to inform the appropriate agencies about suspected child
abuse or neglect (see §§ 11165.7, subd. (a)(15), (18), (21), (34), 11165.9), nor
does it divest defendant of the ability to assert the privilege to prevent further
disclosure of the shared communications. (CASOMB, Post-Conviction Sex
Offender Polygraph Certification Standards, supra, at p. 5.) We expect that the
members of the containment team will act in accordance with their professional
obligations and ensure the integrity of the process. Section 11167.5, moreover,
criminalizes unauthorized disclosure of confidential information elicited under the
mandatory reporting law.
Against that limited intrusion, we must weigh the state‘s strong and
legitimate interest. The core of that interest is allowing the psychotherapist,
4 The sex offender management professional must also provide the
offender‘s SARATSO score to the probation officer, who in turn must provide the
score to the Department of Justice. The score is then made available on the
California Sex and Arson Registry website. (§ 290.09, subd. (b)(2).)
21
probation officer, and polygraph examiner to exchange relevant information about
a probationer‘s reformation and rehabilitation, including information disclosed
during the probationer‘s therapy. (§ 290.03, subds. (a), (b).) The Legislature has
recognized that the effectiveness of the Containment Model depends on ― ‗open
and ongoing communication‘ ‖ among the professionals involved in
― ‗supervising, assessing, evaluating, treating, supporting, and monitoring sex
offenders.‘ ‖ (Gonzales, supra, 56 Cal.4th at p. 377.) Unless these professionals
can communicate freely about the probationer‘s situation, the purpose of the
Containment Model may be compromised and the safety of the community may be
placed in jeopardy. (Ibid.)
In Gonzales, we did not have occasion to consider the validity and effect of
an analogous waiver condition for parolees. Those provisions had not yet gone
into effect at the time the defendant there was placed on parole and participated in
parole-mandated therapy. (Gonzales, supra, 56 Cal.4th at p. 378, fn. 9.)
Moreover, the intrusion on the psychotherapist-patient privilege in Gonzales was
more substantial than in this case. The confidential communications were shared,
over the parolee‘s objection, with the government, and were introduced at trial on
the petition to commit the parolee as a sexually violent predator. (Id. at p. 357.)
But applying a weighing process similar to what we apply here, Gonzales held that
the involuntary disclosure and use of a parolee‘s confidential communications
with his psychotherapist, while state law error, was not a violation of the parolee‘s
federal constitutional right to privacy. (Id. at p. 388.) It follows that the more
limited intrusion on the privilege in this case did not violate defendant‘s federal
right to privacy, either. (See In re Christopher M. (2005) 127 Cal. App. 4th 684,
695 [probation condition requiring disclosure to the probation officer and the court
of all records concerning the juvenile‘s court-ordered medical and psychological
22
treatment did not violate the federal right to privacy], disapproved on other
grounds in Gonzales, at p. 375, fn. 6.)
Even without any waiver of the psychotherapist-patient privilege, the
psychotherapist has a statutory duty to report suspected child abuse or neglect.
(§ 11165.7, subd. (a)(21); see generally People v. Stritzinger (1983) 34 Cal. 3d
505, 512.) The possibility that a probation officer or polygraph examiner might
also qualify as a mandatory reporter does not materially alter the intrusion on a
defendant‘s privacy.
We likewise reject defendant‘s claim that the subdivision (b)(4) condition is
unconstitutionally overbroad. The required waiver 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. (Cf. Gonzales, supra, 56 Cal.4th at p. 377
[noting that the analogous waiver of the privilege in § 3008, subd. (d) extends only
to what ―is considered necessary to the effective functioning of the parole process
with regard to the parolee in question‖].) Defendant‘s assertion that these goals
can be achieved without disclosure of any privileged information — i.e., by
limiting disclosures to a record of his attendance at therapy sessions and a general
opinion as to whether he was cooperating and progressing — is flatly inconsistent
with the Containment Model the Legislature adopted, and is supported by no
evidence or even an explanation.
Defendant contends that his overbreadth argument finds support in In re
Corona (2008) 160 Cal. App. 4th 315. His reliance is misplaced. Corona, a sex
offender, was required as a condition of parole to execute a waiver of his patient-
therapist privilege to permit his parole officer to stay informed about information
Corona disclosed during his state-reimbursed group therapy program. (Id. at p.
319.) But Corona did not challenge that waiver. Instead, he challenged the
23
validity of a waiver the state sought as to therapy he had voluntarily arranged with
a private psychotherapist. In striking down only the latter waiver, the Court of
Appeal concluded that the private therapy was something for which Corona should
be credited, not penalized, and that the compelled waiver of the privilege
concerning the private therapist would discourage Corona from obtaining needed
treatment. (Id. at p. 321.) Because the waiver would therefore have a ―reverse
effect‖ on his reformation and rehabilitation, the Court of Appeal deemed it to be
―unreasonable and unnecessary.‖ (Ibid.) Here, by contrast, the therapy is itself a
condition of probation and is provided by a state-paid therapist. (Gonzales, supra,
56 Cal.4th at p. 386.) And as the People indicate, the ongoing communication
among members of the team remains essential to the Containment Model‘s
success in reducing recidivism for convicted sex offenders. So the Legislature
was entitled to conclude that the Containment Model, and the limited sharing of
information it requires, would be more effective in rehabilitating and reforming a
convicted sex offender than a model that maintained the privilege to its fullest
extent. (Cf. People v. Juarez (2004) 114 Cal. App. 4th 1095, 1104 [―A sentencing
determination predicated on the judicial repudiation of legislative policy
constitutes an abuse of discretion‖].)
Finally, we find that the limited scope of the subdivision (b)(4) condition is
consistent with Regents of University of California v. Superior Court (2008) 165
Cal. App. 4th 672 (Regents) –– a case on which defendant relies. In the underlying
action there, the Regents had brought an antitrust suit against a group of energy
suppliers. As part of discovery in the antitrust suit, the Regents requested
materials protected by the attorney-client and work product privileges, which the
defendants had previously disclosed to a federal corporate fraud task force. (Id. at
p. 676.) The defendants had willingly disclosed these materials to demonstrate
their ―cooperation with the government‖ consistent with federal enforcement
24
guidelines and on the condition that ―disclosure of information to the government
was not a waiver of the attorney-client and work product privileges.‖ (Id. at pp.
676-677.) The Regents contended that the disclosure constituted a waiver of the
privilege for all purposes. (Id. at p. 677.)
In rejecting the claim that prior disclosure had effected a blanket waiver of
privilege, the Court of Appeal accepted the uncontradicted allegations that each
defendant believed it would have suffered severe regulatory or criminal
consequences had it failed to share the requested information with the federal
investigators. (Regents, supra, 165 Cal.App.4th at pp. 677-678.) The Court of
Appeal then concluded that disclosure under such circumstances was a product of
―coercion‖ within the meaning of Evidence Code section 912, subdivision (a) and
thus did not constitute a waiver of the privilege for all purposes. (Regents, at pp.
683-684.)
In this case, defendant faced the choice between waiving his
psychotherapist-patient privilege or going to prison. Defendant is correct that the
condition involves an element of coercion, but he is mistaken in concluding that
the condition thereby is invalid. Here, as in Regents, the disclosure does not cause
the privilege to evaporate, because, as noted ante on page 16, the privileged
information is disclosed under compulsion. (See Evid. Code, § 912, subd. (a).)
The subdivision (b)(4) condition thus should be read to intrude on the privilege
only to a limited extent: the extent specified in the condition itself, which
describes what is reasonably necessary to enable communications among the
psychotherapist, probation officer, and polygraph examiner; facilitate their
understanding of the challenges defendant presents; and allow those containment
team members to measure the effectiveness of the sex offender treatment and
monitoring program. (Pen. Code, § 1203.067, subd. (b)(4).) In all other respects,
the privilege remains intact. So construed, the condition is not overbroad.
25
III. DISPOSITION
When the Legislature adopted the Containment Model for the management
of sex offenders who are granted probation, it balanced the constitutional interests
of those sex offenders released into the community under supervision with the
compelling need to protect public safety. The success of that carefully wrought
model depends on an accurate and complete understanding of the sex offender‘s
criminal proclivities and vulnerabilities. Read in light of the relevant
constitutional provisions and the purpose of Chelsea‘s Law, the probation
conditions challenged here enable those charged with monitoring the probationer
to obtain the information they need, while otherwise safeguarding the
probationer‘s privacy and protecting the probationer from compelled self-
incrimination. The judgment of the Court of Appeal is affirmed.
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KRUGER, J.
26
CONCURRING OPINION BY KRUGER, J.
Penal Code section 1203.067 requires criminal defendants who must
register as sex offenders to participate in an approved sex offender management
program as a condition of probation. For purposes of the program, the defendant
must, among other things, waive ―any privilege against self-incrimination‖ (Pen.
Code, § 1203.067, subd. (b)(3)), participate in polygraph examinations, and waive
―any psychotherapist-patient privilege to enable communication between the sex
offender management professional and supervising probation officer‖ (id., subd.
(b)(4)). I join the majority in concluding that, properly construed, these conditions
are not overbroad, do not violate the defendant‘s right to privacy, and do not
violate the defendant‘s Fifth Amendment rights. I write separately to elaborate on
my views on the proper construction of the condition requiring a waiver of ―any
privilege against self-incrimination.‖ (Id., subd. (b)(3).)
Defendant contends this self-incrimination waiver provision ―preclude[s]
any attempts by a probationer, present and future, to seek protection under the
self-incrimination clause for compelled statements made during the sex offender
management program.‖ So construed, defendant contends, the condition violates
the self-incrimination clause of the federal Constitution‘s Fifth Amendment by
requiring probationers not only to respond to potentially incriminating official
questions, but also to anticipatorily waive any right to object if the state later uses
their answers against them in criminal proceedings. The Attorney General
disavows this interpretation. He contends that the provision merely requires
probationers to provide truthful answers to questions posed as part of the sex
offender management program, and does not preclude probationers from objecting
to the admission of compelled statements against them in later criminal
proceedings. On this narrower understanding of the required waiver, Penal Code
section 1203.067, subdivision (b)(3) does no more than what the law clearly
permits: It has long been established that ―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 . . . .‖ (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7
(Murphy).)
The Attorney General‘s argument relies on the canon of constitutional
avoidance — that is, the principle that we will construe statutes to avoid serious
constitutional problems if such a reading is fairly possible. (See People v.
Gutierrez (2014) 58 Cal. 4th 1354, 1373.) Defendant contends that the Attorney
General‘s narrow reading is not fairly possible, because the statutory requirement
that probationers waive ―any privilege against self-incrimination‖ admits of only
one interpretation. If that were so, the canon would have no application here. The
canon of constitutional avoidance is a tool of statutory interpretation that permits
us to select between competing plausible interpretations of statutory text. It does
not permit us to ― ‗ ―do[] violence to the reasonable meaning of the language
used‖ ‘ ‖ (ibid.), nor does it provide ―a method of adjudicating constitutional
questions by other means‖ (Clark v. Martinez (2005) 543 U.S. 371, 381
(Martinez)).
The primary question before us, then, is whether the language of Penal
Code section 1203.067 is susceptible of the reading the Attorney General urges. It
is.
2
To be sure, the requirement that probationers waive ―any privilege against
self-incrimination‖ is also susceptible to defendant‘s broader reading. Both this
court and a majority of the members of the United States Supreme Court have said
that the core constitutional right protected by the Fifth Amendment‘s self-
incrimination clause is a privilege against the use of compelled statements in a
criminal trial, not against the compulsion of those statements in the first instance.
(See Chavez v. Martinez (2003) 538 U.S. 760, 767 (Chavez) (plur. opn. of
Thomas, J.) [―Statements compelled by police interrogations 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.‖]; see also id. at
p. 772 [―the core constitutional right defined by the Self-Incrimination Clause [is]
the right not to be compelled in any criminal case to be a witness against oneself‖
(fn. omitted)]; id. at p. 777 (conc. opn. of Souter, J., joined by Breyer, J.);
Maldonado v. Superior Court (2012) 53 Cal. 4th 1112, 1128 (Maldonado)
[adopting Chavez‘s conclusion that ―a ‗core‘ Fifth Amendment violation is
completed, not merely by official extraction of self-incriminatory answers from
one who has not waived the privilege, but only if and when those answers are used
in a criminal proceeding against the person who gave them‖].) Understood
against the backdrop of these decisions, the statutory requirement to waive the
self-incrimination privilege is plausibly understood, as defendant argues, to mean
waiving the right to object to the use of compelled statements in a criminal trial,
not waiving any purported right to remain silent when asked incriminating
questions as part of sex offender treatment.
But defendant‘s interpretation is not the only plausible interpretation of
Penal Code section 1203.067, subdivision (b)(3) — nor is it the most reasonable
one. While cases like Chavez and Maldonado have taken the view that the Fifth
Amendment right is violated by the prosecution‘s use of compelled statements in
3
criminal proceedings, not the compulsion itself, the cases have also recognized a
longstanding body of ― ‗prophylactic rules designed to safeguard the core
constitutional right protected by the Self-Incrimination Clause.‘ ‖ (Maldonado,
supra, 53 Cal.4th at p. 1128, quoting Chavez, supra, 538 U.S. at pp. 770-771 (plur.
opn. of Thomas, J.).) These rules permit an individual to assert the Fifth
Amendment privilege if ― ‗ ―compelled to produce evidence which later may be
used against him as an accused in a criminal action.‖ ‘ ‖ (Ibid.)
Common usage does not always respect this distinction between core
constitutional right and prophylactic safeguard. It is certainly not unusual to hear
the phrase ―privilege against self-incrimination‖ to refer to the assertion of the
―right to remain silent‖ in the face of official questioning, as opposed to the
assertion of the right to prevent the use of compelled statements in a later criminal
proceeding. Perhaps the most well-known example appears in Miranda v. Arizona
(1966) 384 U.S. 436: ―Once warnings have been given, the subsequent procedure
is clear. If the individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease. At this
point he has shown that he intends to exercise his Fifth Amendment privilege; any
statement taken after the person invokes his privilege cannot be other than the
product of compulsion, subtle or otherwise. Without the right to cut off
questioning, the setting of in-custody interrogation operates on the individual to
overcome free choice in producing a statement after the privilege has been once
invoked.‖ (Id. at pp. 473-474, italics added, fn. omitted.) Given that the United
States Supreme Court itself has used the phrase ―Fifth Amendment privilege‖ to
mean ―the right to remain silent,‖ it is not too much of a stretch to imagine that the
Legislature might have used the phrase ―privilege against self-incrimination‖ to
mean much the same thing.
4
Defendant‘s counterargument relies heavily on the Legislature‘s use of the
word ―any‖ to modify the term ―privilege,‖ contending that it unambiguously
demonstrates the Legislature‘s desire to prohibit probationers from asserting any
version of the ―self-incrimination privilege‖ at any time and in any proceeding. It
is, however, at least as likely that the Legislature used the word ―any‖ because
nothing about sex offender treatment necessarily implicates the privilege against
self-incrimination; it is only if ―any‖ incriminating questions are asked that ―any
privilege against self-incrimination‖ (Pen. Code, § 1203.067, subd. (b)(3)) might
be invoked. Moreover, the Fifth Amendment privilege is not the only potentially
applicable self-incrimination privilege: A criminal defendant might equally
invoke article I, section 15 of the California Constitution (―Persons may not . . . be
compelled in a criminal cause to be a witness against themselves‖), or Evidence
Code section 940 (―To the extent that such privilege exists under the Constitution
of the United States or the State of California, a person has a privilege to refuse to
disclose any matter that may tend to incriminate him‖). The Legislature may have
used the word ―any‖ as a shorthand reference to all three of these provisions,
rather than, as defendant argues, as a reservation of the state‘s prerogative to use
probationers‘ incriminating statements against them in later criminal proceedings.
Nor does the remainder of Penal Code section 1203.067 suggest that the
Legislature intended to require probationers to surrender any privilege against the
use of their statements to prosecute them for criminal offenses. The evident focus
of the provision is the proper functioning of the sex offender management program
as a mechanism for treatment of participating sex offenders. (Pen. Code,
§ 1203.067, subd. (a)(3).) The provision makes no mention of the use of
information gathered in the course of treatment, except ―to enable communication
between the sex offender management professional and supervising probation
officer‖ (id., subd. (b)(4)), who are, collectively, responsible for determining how
5
long the probationer must remain in the program. It contains no indication that the
Legislature intended to require probationers to provide truthful answers not only
for purposes of successful treatment, but also for purposes of facilitating criminal
prosecution.
The statutory language is, in short, entirely susceptible of the narrow
construction the Attorney General urges. That construction is consistent with the
evident purpose of the sex offender management program — that is, to promote
successful treatment of the participants. It is also consistent with established law.
(See Murphy, supra, 465 U.S. at p. 435, fn. 7.) As between this construction and
defendant‘s proffered construction, we presume the Legislature ―did not intend the
alternative which raises serious constitutional doubts.‖ (Martinez, supra, 543 U.S.
at p. 381.)
For all these reasons, in my view, the court is clearly correct to conclude
that Penal Code section 1203.067, subdivision (b)(3)‘s ambiguous language must
be construed not as requiring probationers to waive the right to assert any self-
incrimination privilege in criminal proceedings, but merely as barring probationers
from attempting to use any such privilege as a basis for refusing to candidly
discuss matters pertinent to the sex offender management program. So construed,
the condition does not violate defendant‘s Fifth Amendment rights.
KRUGER, J.
I CONCUR:
LIU, J.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Garcia
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 224 Cal. App. 4th 1283
Rehearing Granted
__________________________________________________________________________________
Opinion No. S218197
Date Filed: March 20, 2017
__________________________________________________________________________________
Court: Superior
County: Santa Clara
Judge: Hector E. Ramon
__________________________________________________________________________________
Counsel:
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
David D. Martin
10 Sanderling Court
Sacramento, CA 95833
(916) 999-0200
Leif M. Dautch
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5089