Filed 4/16/15 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, 

Plaintiff and Respondent, 

v. 

MARLON IVAN CHAVEZ GARCIA, 

Defendant and Appellant. 

 H040077 

 (Santa Clara County 

 Super. Ct. No. C1242134) 

ORDER MODIFYING OPINION AND 

DENYING REHEARING 

[NO CHANGE IN JUDGMENT] 

 

THE COURT: 

 The above captioned opinion, filed on March 26, 2015, is hereby modified as 

follows: On page 16 of the opinion, at the end of Section II.A.4., insert the following 

paragraph: 

Defendant further argues that the waiver required by section 

1203.067(b)(4) infringes upon his statutory psychotherapist-patient 

privilege under Evidence Code section 1014. To the extent the statutes 

conflict, it is the later, more specific statute that controls. (Nguyen v. 

Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1550, quoting Young 

v. Haines (1986) 41 Cal.3d 883, 894; Orange Unified School Dist. v. 

Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 

757.) Because the Legislature enacted section 1203.067(b)(4) after it 

enacted Evidence Code section 1014, and because the former is more 

specific than the latter, we conclude the waiver requirement supersedes the 

evidentiary privilege. (Stats. 2010, ch. 219, § 17; Stats. 1994, ch. 1010, 

§ 106.) 
2 

 There is no change in the judgment. 

 The petition for rehearing is denied. 

 _________________________ 

 MÁRQUEZ, J. 

 _________________________ 

 GROVER, J. 

 Bamattre-Manoukian, Acting P.J., would grant the petition for rehearing. 

 _____________________________________ 

 Bamattre-Manoukian, Acting P.J. 
Filed 3/26/15 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, 

Plaintiff and Respondent, 

v. 

MARLON IVAN CHAVEZ GARCIA, 

Defendant and Appellant. 

 H040077 

 (Santa Clara County 

 Super. Ct. No. C1242134) 

 Defendant Marlon Ivan Chavez Garcia pleaded no contest to one count of 

possession of child pornography. (Pen. Code, § 311.11, subd. (a).)1

 The trial court 

granted a three-year term of probation that included six months of electronic monitoring 

as a condition of probation. The court then ordered, among other conditions of probation, 

that defendant complete a sex offender management program as mandated by Penal Code 

section 1203.067 (section 1203.067). The court also imposed seven probation conditions 

requiring defendant: (1) to waive any privilege against self-incrimination and participate 

in polygraph examinations as part of the sex offender management program under section 

1203.067(b)(3); (2) to waive any psychotherapist/patient privilege to enable 

communication between the sex offender management professional and the probation 

officer under section 1203.067(b)(4); (3) not to access the internet without prior approval 

 1

 Subsequent undesignated statutory references are to the Penal Code. 
2

of the probation officer; (4) not to purchase or possess any pornographic or sexually 

explicit material as defined by the probation officer; (5) 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; (6) not to possess or use any data encryption technique 

program; and (7) not to frequent, be employed by, or engage in any business where 

pornographic materials are openly exhibited. 

 On appeal, defendant challenges these probation conditions variously as 

unconstitutional, overbroad, and lacking in scienter requirements. First, we hold that the 

condition requiring a waiver of the privilege against self-incrimination is prohibited by 

the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy) and 

must be stricken. Second, we construe the waiver of the psychotherapist-patient privilege 

as requiring waiver only insofar as necessary to enable communication between the 

probation officer and the psychotherapist. We hold that the waiver as construed in this 

fashion is not overbroad in violation of defendant’s constitutional right to privacy. Third, 

we hold the condition ordering defendant not to date, socialize or form any romantic 

relationship with any person who has physical custody of a minor is unconstitutionally 

vague and overbroad. We will remand to the trial court to consider whether to impose an 

alternative condition consistent with our reasoning below. Finally, we will order the trial 

court to insert scienter requirements into the remaining conditions. 

I. FACTUAL AND PROCEDURAL BACKGROUND2

 On July 19, 2012, San José police executed a search warrant at defendant’s home. 

Police found child pornography downloaded onto computers and hard drives taken from 

defendant’s bedroom. There was no evidence defendant was involved in the production 

 2

 Our statement of the facts of the offense is based on defendant’s motion to 

reduce a felony to a misdemeanor, filed in the trial court. The record contains no other 

statement of the facts. 
3

or distribution of child pornography, and no file-sharing software was found on 

defendant’s computers. 

 The prosecution charged defendant by complaint with a single count of possessing 

matter depicting a person under 18 engaging in or simulating sexual conduct. (§ 311.11, 

subd. (a).) Defendant pleaded no contest. At sentencing on July 31, 2013, the trial court 

granted a three-year term of probation that included six months of electronic monitoring 

as a condition of probation. 

 The trial court then imposed the probation conditions at issue here, as follows: 

“You shall waive any privilege against self-incrimination and participate in polygraph 

examinations, which shall be part of the program pursuant to 1203.067(b)(3) of the Penal 

Code. The Court wants to make sure that its intention is known, and that is that this 

waiver is limited to facilitate the successful completion of the program. This also applies 

to the next condition. [¶] You shall waive any psychotherapist/patient privilege to 

enable communication between the sex offender management professional and probation 

officer pursuant to Section 1203.067(b) (4) and Section 290.09 of the Penal Code.” The 

court then ordered: “You may 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. [¶] You shall not purchase or possess any pornographic or sexually explicit 

material as defined by the probation officer. You shall not frequent, be employed by, or 

engage in any business where pornographic materials are openly exhibited. You shall not 

access the internet or any other online service, through the use of a computer or other 

electronic device, including a phone, at any location, including place of employment, 

without prior approval of the probation officer. [¶] You shall not possess or use any data 

encryption technique program.” Defendant objected to all these conditions, among 

others, but the trial court implicitly overruled defendant’s objections by imposing the 

conditions. 
4

II. DISCUSSION

A. Section 1203.067 Waivers 

 Defendant challenges the constitutionality of two waivers required under section 

1203.067. He contends the condition requiring waiver of any privilege against selfincrimination under section 1203.067(b)(3) violates the Fifth Amendment and is 

overbroad. Second, he contends the condition requiring waiver of any psychotherapistpatient privilege under section 1203.067(b)(4) violates his constitutional right to privacy. 

The Attorney General argues that both waiver conditions are constitutional as worded. 

1. Statutory Scheme 

 Under section 1203.067(b)(2), any person placed on formal probation on or after 

July 1, 2012, for any offense requiring registration under Penal Code sections 290 

through 290.023, “shall successfully complete a sex offender management program, 

following the standards developed pursuant to Penal Code section 9003, as a condition of 

release from probation.” Section 1203.067(b)(3) requires “[w]aiver of any privilege 

against self-incrimination and participation in polygraph examinations, which shall be 

part of the sex offender management program.” Section 1203.067 (b)(4) requires 

“[w]aiver of any psychotherapist-patient privilege to enable communication between the 

sex offender management professional and supervising probation officer, pursuant to 

Section 290.09.”3

 The Legislature enacted these provisions in 2010 to amend the Sex Offender 

Punishment, Control, and Containment Act of 2006 (hereafter, the “Containment Act”). 

(Stats. 2010, ch. 219, § 17.) The Containment Act created “a standardized, statewide 

system to identify, assess, monitor and contain known sex offenders for the purpose of 

reducing the risk of recidivism posed by these offenders, thereby protecting victims and 

 3

 The same two waiver conditions apply to parolees. (Pen. Code, § 3008, 

subds. (d)(3) & (d)(4).) 
5

potential victims from future harm.” (Pen. Code, § 290.03, subd. (b), Stats. 2006, 

ch. 337, § 12.) The Containment Act now requires participation in an “approved sex 

offender management program” certified by the California Sex Offender Management 

Board (CASOMB). (Pen. Code, § 9003.) 

 Under Penal Code section 9003, CASOMB promulgates standards for certification 

of sex offender management programs and “sex offender management professionals.” 

(Pen. Code, § 9003, subds. (a) & (b).) Such programs “shall include treatment, as 

specified, and dynamic and future violence risk assessments pursuant to Section 290.09.” 

(Pen. Code, § 9003, subd. (b).) Furthermore, sex offender management programs “shall 

include polygraph examinations by a certified polygraph examiner, which shall be 

conducted as needed during the period that the offender is in the sex offender 

management program.” (Ibid.) 

 Penal Code section 290.09 specifies that “[t]he certified sex offender management 

professional shall communicate with the offender’s probation officer or parole agent on a 

regular basis, but at least once a month, about the offender’s progress in the program and 

dynamic risk assessment issues, and shall share pertinent information with the certified 

polygraph examiner as required.” (Pen. Code, § 290.09, subd. (c).) Penal Code section 

290.09 further requires the sex offender management professional to administer a StateAuthorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms—the 

“SARATSO dynamic tool” and the “SARATSO future violence tool”—and to send the 

person’s scores on these tests to the probation officer. (Pen. Code, § 290.09, 

subd. (b)(2).) The probation officer must then transmit the scores to the Department of 

Justice, which makes the scores accessible to law enforcement officials through the 

Department’s website. (Ibid.) 

2. Waiver of Any Privilege Against Self-Incrimination 

 By requiring the waiver of “any privilege against self-incrimination,” the plain 

language of section 1203.067(b)(3) squarely implicates defendant’s rights under the Self-
6

Incrimination Clause of the Fifth Amendment. Furthermore, the “core” right of the SelfIncrimination Clause protects against the use of compelled statements “in a criminal 

proceeding against the person who gave them.” (Maldonado v. Superior Court (2012) 

53 Cal.4th 1112, 1128 (Maldonado) [citing Chavez v. Martinez (2003) 538 U.S. 760, 

766-773 (plur. opn. of Thomas, J.) (Chavez)], original italics.) Because the statute 

requires waiver of any privilege against self-incrimination, the probation condition 

necessarily includes a waiver of the “core” right under the Self-Incrimination Clause. 

The plain language of the waiver, if left intact, would therefore allow the state to use 

defendant’s compelled statements against him in a separate criminal proceeding. The 

United States Supreme Court, however, has held that the Fifth Amendment prohibits the 

state from using a probationer’s compelled statements against the probationer in a 

separate criminal proceeding.4

 (Murphy, supra, 465 U.S. 420; accord United States v. 

Saechao (9th Cir. 2005) 418 F.3d 1073; United States v. Antelope (9th Cir. 2005) 

395 F.3d 1128.) 

 Furthermore, the United States Supreme Court has held that a state may not 

compel a probationer to waive the right to invoke the Fifth Amendment or otherwise 

punish a probationer for invoking its protections: “Our decisions have made clear that 

the State could not constitutionally carry out a threat to revoke probation for the 

legitimate exercise of the Fifth Amendment privilege.” (Murphy, supra, 465 U.S. at 

p. 438.) This holding was based on the United States Supreme Court’s longstanding 

“penalty cases” jurisprudence, under which the Fifth Amendment prohibits a compelled, 

prospective waiver of the Fifth Amendment, even prior to and apart from any criminal 

 4 Murphy referred to “compelled” statements as those compelled over a valid 

claim of the Fifth Amendment. (Murphy, supra, 465 U.S. at p. 427.) However, the Fifth 

Amendment is not “self-executing.” (Id. at p. 425.) If a probationer does not explicitly 

invoke the Fifth Amendment, he or she voluntarily waives the privilege against selfincrimination and the statements are not “compelled” within the meaning of the Fifth 

Amendment. Under these circumstances, the probationer’s statements may be used in a 

criminal prosecution, just as Murphy’s statements were used against him. 
7

proceeding. (Lefkowitz v. Cunningham (1977) 431 U.S. 801; Lefkowitz v. Turley (1973) 

414 U.S. 70; Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation (1968) 392 U.S. 

280, 283; Gardner v. Broderick (1968) 392 U.S. 273, 276.) More recently, the Supreme 

Court reaffirmed these principles, and a plurality of the court observed that “[o]nce an 

immunity waiver is signed, the signatory is unable to assert a Fifth Amendment objection 

to the subsequent use of his statements in a criminal case, even if his statements were in 

fact compelled. A waiver of immunity is therefore a prospective waiver of the core selfincrimination right in any subsequent criminal proceeding . . . .” (Chavez, supra, 

538 U.S. at p. 768, fn. 2 (plur. opn. of Thomas, J.).) These cases make clear that the 

probation condition here, by requiring defendant to waive any privilege against selfincrimination, is prohibited under the Fifth Amendment. 

 Even without the waiver, the state may still compel defendant to participate in 

treatment—even if doing so requires him to make incriminating statements—provided he 

retains immunity from the use of compelled statements in separate criminal proceedings. 

As the court in Murphy observed, “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. Under such circumstances, a probationer’s ‘right 

to immunity as a result of his compelled testimony would not be at stake,’ . . . .” 

(Murphy, supra, 465 U.S. at p. 435, fn. 7.) 

 The California Supreme Court recently reaffirmed this principle as applied to 

public employees in Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704 (public 

defender could be compelled under threat of discharge to answer questions over his claim 

of the privilege provided he retained immunity from prosecution). Our high court held: 

“In many instances, of course, it is necessary or highly desirable to procure citizens’ 

answers to official questions, including their formal testimony under oath. In such 

circumstances, an individual’s invocation of the privilege against self-incrimination 
8

would frustrate legitimate governmental objectives. In light of the competing interests, it 

is well established that incriminating answers may be officially compelled, without 

violating the privilege, when the person to be examined receives immunity ‘coextensive 

with the scope of the privilege’—i.e., immunity against both direct and ‘derivative’ 

criminal use of the statements. [Citations.] In such cases, refusals to answer are 

unjustified, ‘for the grant of immunity has removed the dangers against which the 

privilege protects. [Citation.]’ ” (Id. at pp. 714-715.) (Italics added.) Furthermore, 

where the state’s competing interests require it, the state need not issue a formal 

prospective grant of immunity. (Id. at p. 725.) 

 The state’s interest here is at least as great as those in Spielbauer. This is 

particularly so when that interest is balanced against the rights of a probationer, who 

generally enjoys less constitutional protection than a public employee who is not 

convicted of any crime. (See United States v. Knights (2001) 534 U.S. 112, 119 

[“Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute 

liberty to which every citizen is entitled.” ’ ”].) Accordingly, no formal grant of 

immunity is required for the state to pursue incriminating questions. 

 Under these principles, no waiver of the privilege against self-incrimination is 

necessary for participation in the sex offender management program. The state may still 

compel defendant to participate in the program and in polygraph examinations as part of 

the program, even if doing so requires him to make incriminating statements. (Murphy,

supra, 465 U.S. at p. 435, fn. 7.) However, if defendant claims the privilege against selfincrimination, and if the state compels incriminating statements from him under threat of 

penalty, then he retains immunity from the use and derivative use of his statements in any 

separate criminal proceeding against him. 

3. The Dissent’s Interpretation of the Penalty Exception 

 In Murphy, the court held that “if the state, either expressly or by implication, 

asserts that invocation of the privilege would lead to revocation of probation, it would 
9

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, italics added.) The dissent 

and the Attorney General contend this so-called “penalty exception” means the waiver 

here is constitutional because the probationer’s statements could not be used against him 

in a criminal proceeding. We respectfully disagree. 

First, the dissent ignores the plain language of the waiver under section 

1203.067(b)(3). If the waiver is valid, as the dissent asserts, then defendant has waived 

his ability to assert the Fifth Amendment in a subsequent criminal proceeding, and his 

statements would be admissible against him. 

Second, the dissent’s argument misconstrues Murphy. The Supreme Court held 

that, under the penalty exception, “the failure to assert the privilege would be excused.” 

(Murphy, supra, 465 U.S. at p. 435.) This is simply an exception to the general rule that 

the Fifth Amendment must be affirmatively invoked; it does not render a compelled 

waiver constitutional. Under the penalty exception, Murphy’s statements would have 

been inadmissible precisely because a threat to revoke his probation for asserting the 

privilege against self-incrimination would have violated the Fifth Amendment. The court 

in Murphy stated this explicitly in holding that “the State could not constitutionally carry 

out a threat to revoke probation for the legitimate exercise of the Fifth Amendment 

privilege.” (Id. at p. 438.) The holding that statements made under the penalty exception 

are inadmissible is simply an application of the exclusionary rule as required by the Fifth 

Amendment violation. As pointed out above, the Supreme Court in Murphy based this 

holding on its “penalty cases” jurisprudence. (Lefkowitz v. Cunningham, supra, 431 U.S. 

801; Lefkowitz v. Turley, supra, 414 U.S. 70; Uniformed Sanitation Men Ass’n v. Comm’r 

of Sanitation, supra, 392 U.S. 280, 283; Gardner v. Broderick, supra, 392 U.S. 273, 276.) 

The dissent does not address any of these earlier cases prohibiting compelled waivers. 
10

The dissent’s position would also introduce a serious practical difficulty. If the 

waiver were left intact, then a probationer’s incriminating statements would 

automatically be immunized under the penalty exception, even if the probationer never 

invoked the Fifth Amendment. This automatic grant of immunity could complicate 

future prosecutions, since the prosecution would bear “the heavy burden of proving that 

all of the evidence it proposes to use was derived from legitimate independent sources.” 

(Kastigar v. United States (1972) 406 U.S. 441, 461-462.) By contrast, with the waiver 

condition stricken, a probationer must affirmatively invoke the Fifth Amendment to enjoy 

its protections. If defendant makes incriminating statements after failing to invoke the 

privilege, his statements could be used against him in a criminal prosecution without 

violating the Fifth Amendment. (Murphy, supra, 465 U.S. at p. 440.) If, on the other 

hand, defendant invokes the Fifth Amendment in response to questioning, the questioner 

or the probation officer would have the opportunity to consult with the district attorney 

on the wisdom of compelling further statements and thereby conferring immunity. 

 The dissent and the Attorney General adopt the position that the Fifth Amendment 

does not prohibit the state from requiring the probationer to answer questions as part of 

the treatment program, provided his answers are not used against him in a criminal 

prosecution. We agree with this conclusion. As we point out above, the Supreme Court 

has long made clear that requiring the probationer to answer questions—even if doing so 

is incriminating—does not violate the Fifth Amendment, as long as the probationer 

retains immunity. (Murphy, supra, 465 U.S. at p. 435, fn. 7.) Furthermore, if defendant 

refuses to answer questions posed to him as part of the treatment program, the state can 

use his silence as “ ‘one of a number of factors to be considered by a finder of fact’ in 

deciding whether other conditions of probation have been violated.” (Ibid.) Thus, in our 

view, the waiver is not only unconstitutional but unnecessary as well. 
11

4. Waiver of the Psychotherapist-Patient Privilege 

 The California Supreme Court has recognized that communications between a 

patient and psychotherapist are protected by a psychotherapist-patient privilege based on 

the federal constitutional right to privacy. “The psychotherapist-patient privilege has 

been recognized as an aspect of the patient’s constitutional right to privacy.” (People v. 

Stritzinger (1983) 34 Cal.3d 505, 511 (Stritzinger).) “We believe that a patient’s interest 

in keeping such confidential revelations from public purview, in retaining this substantial 

privacy, has deeper roots than the California statute and draws sustenance from our 

constitutional heritage. In Griswold v. Connecticut [(1965)] 381 U.S. 479, 484, the 

United States Supreme Court declared that ‘Various guarantees [of the Bill of Rights] 

create zones of privacy,’ and we believe that the confidentiality of the psychotherapeutic 

session falls within one such zone.” (In re Lifschutz (1970) 2 Cal.3d 415, 431-432 

(Lifschutz).) 

 More recently, the California Supreme Court has questioned the continuing 

vitality of the constitutional bases for the psychotherapist-patient privilege. “Although 

over 40 years have elapsed since our decision in Lifschutz, the United States Supreme 

Court itself has not yet definitively determined whether the federal Constitution embodies 

even a general right of informational privacy.” (People v. Gonzales (2013) 

56 Cal.4th 353, 384 (Gonzales).) Following the lead of the United States Supreme Court 

in Whalen v. Roe (1977) 429 U.S. 589 and NASA v. Nelson (2011) 562 U.S. 134, our high 

court in Gonzales merely assumed, without deciding, that such a right exists. (Gonzales,

supra, 56 Cal.4th at p. 385.) Regardless of the analytic approach taken by these courts, 

no court has yet overruled the holdings of Lifschutz and Stritzinger. We remain bound by 

them. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 

450, 455.) Accordingly, we will proceed under the assumption that defendant enjoys the 

right to a psychotherapist-patient privilege based on his federal constitutional privacy 

rights. 
12

 “It is also well established, however, that the right to privacy is not absolute, but 

may yield in the furtherance of compelling state interests.” (Stritzinger, supra, 34 Cal.3d 

at p. 511.) In Stritzinger, the court began by considering the state’s “competing interest” 

in creating an exception to the privilege. (Ibid.) The court reaffirmed the holding of 

Lifschutz that any such exception must be narrowly construed, ibid., “concomitant with 

the purposes of the exception.” (Lifschutz, supra, 2 Cal.3d at p. 435.) These principles 

resemble the tailoring analysis in which a court considers whether a probation condition 

imposing limitations on a person’s constitutional rights is closely tailored to the purpose 

of the condition. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) 

 In Gonzales, supra, 56 Cal.4th 353, the California Supreme Court recently 

considered the psychotherapist-patient privilege in the context of a proceeding under the 

Sexually Violent Predator Act (SVPA). The defendant, Ramiro Gonzales, had been 

convicted of multiple sex offenses over a 20-year period. (Id. at p. 358.) Gonzales was 

paroled in 2004 and he underwent psychological evaluation and treatment as a condition 

of parole. (Id. at p. 359.) After violating his parole conditions several times—including 

one incident in which he visited a children’s playground—Gonzales was arrested and 

taken into custody. (Id. at pp. 359-360.) In 2006, the prosecution petitioned to commit 

Gonzales under the SVPA, and the matter was set for a jury trial. 

 Before trial, the prosecution sought to subpoena psychological records arising out 

of Gonzales’ psychological treatment as a parolee. (Gonzales, supra, 56 Cal.4th at 

p. 361.) Gonzales moved to quash the subpoena on the basis the records were protected 

under the psychotherapist-patient privilege, partly relying on Story v. Superior Court

(2003) 109 Cal.App.4th 1007 (Story) [psychotherapy records relating to therapy sessions 

engaged in as a condition of probation were protected by the statutory psychotherapistpatient privilege and could not be obtained by a prosecutor who sought the records for 

use in a subsequent murder prosecution].) The California Supreme Court distinguished 

between Gonzales’ statutory claim under Story and his claim under the federal 
13

constitutional right to privacy: “[W]e believe that in order to properly distinguish the 

federal constitutional issue from the state law issue, it is necessary, in determining 

whether the disclosure of defendant’s therapy records and the admission of his therapist’s 

testimony violated a federal constitutional right of privacy, to look to the specific nature 

and extent of the federal constitutional privacy interests that are actually implicated in 

this particular setting and to the permissible state law interests that would support the 

disclosure and admission of testimony in question in such a setting.” (Gonzales, supra, 

56 Cal.4th at p. 386.) 

 In its analysis, the court first noted that the constitutional privacy right invoked by 

Gonzales arose under the conditions of parole, and under the care of a psychotherapist 

funded by the state. (Gonzales, supra, 56 Cal.4th at p. 386.) The court then observed 

that “the federal Constitution grants states considerable leeway to impose very substantial 

limitations on the right of privacy retained by persons who are released on parole,” citing 

Samson v. California (2006) 547 U.S. 843 (federal Constitution does not preclude a state 

from authorizing a search of a parolee at any time or place even in the absence of 

reasonable suspicion). Balanced against this “limited intrusion” of the privacy right at 

issue, the court held “the state has a particularly strong and legitimate interest in 

authorizing the disclosure and use of a parolee’s prior statements that occur in parolemandated therapy in a subsequent SVPA proceeding, especially when, as here, the 

parole-mandated therapy was occasioned by the parolee’s prior conviction of a sex 

offense.” (Gonzales, supra, 56 Cal.4th at pp. 387-388.) The court held disclosure was 

therefore supported by “a legitimate and substantial state interest,” such that Gonzales’ 

federal constitutional right to the psychotherapist-patient privilege was not violated by 

the release of his psychological records. (Id. at p. 388.) 

 Consistent with the above principles, we have considered the purpose of the 

waiver of the psychotherapist-patient privilege at issue here and the state’s interest in 

compelling disclosure under it. Unlike the language of subdivision (b)(3), which 
14

mandates waiver of any privilege against self-incrimination, the wording of subdivision 

(b)(4) explicitly sets forth the purposes of the waiver of the psychotherapist-patient 

privilege: “to enable communication between the sex offender management professional 

and supervising probation officer, pursuant to Section 290.09.” Section 290.09, in turn, 

requires communication between the sex offender management professional and the 

probation officer for two purposes. First, the sex offender management professional must 

provide the supervising probation officer with the probationer’s scores on the SARATSO 

risk assessment tools. (Pen. Code, § 290.09, subd. (b)(2).) Second, the sex offender 

management professional must communicate with the probation officer about the 

probationer’s “progress in the program and dynamic risk assessment issues.” (Pen. Code, 

§ 290.09, subd. (c).) By these provisions, the purposes of the psychotherapist-patient 

privilege waiver are expressly limited and comparatively well defined. 

 We find that the state’s interest in furthering such communication is legitimate and 

substantial. The overriding goal of the Containment Model approach underlying the sex 

offender management program is public safety and the reduction of recidivism. The 

functioning of the model hinges in large part on open communication between the 

probation officer and the psychotherapist. (Cal. Sex Offender Management Bd., Sex 

Offender Treatment Program Certification Requirements, at pp. 6-8.)5

 Furthermore, 

probationers, like the parolee in Gonzales, are inherently subject to a greater degree of 

intrusion on their rights of privacy. (United States v. Knights, supra, 534 U.S. at p. 119.) 

Accordingly, we conclude the state has a sufficiently substantial interest in 

communication between these participants to justify disclosure here. 

 5

 This document is online at: 

<http://www.cce.csus.edu/portal/admin/handouts/CASOMB Program 10-29-13 

complete.pdf> [Mar. 26, 2015]. We take judicial notice of these materials. (Evid. Code, 

§§ 452, 459.) 
15

 We next consider whether the scope of the waiver is properly tailored to this 

interest, or whether the waiver must be more narrowly construed concomitant with the 

purposes of the exception. (Stritzinger, supra, 34 Cal.3d at p. 511; Lifschutz, supra, 

2 Cal.3d at p. 435; In re Sheena K., supra, 40 Cal.4th at p. 890.) Similar to the broad 

language used in the waiver of the privilege against self-incrimination, the language of 

the statute, read literally, requires the waiver of “any psychotherapist-patient privilege,” 

regardless of the subject matter of the communication or the level of risk to public safety 

absent disclosure. The waiver does not distinguish between comparatively more 

dangerous or less dangerous probationers. But unlike the language of the waiver of the 

privilege against self-incrimination, this broad language is followed by the phrase: “to 

enable communication between the sex offender management professional and 

supervising probation officer, pursuant to Section 290.09.” This additional language 

limits what may be done with the probationer’s communications once they are revealed. 

 We will therefore narrowly construe the statute as requiring 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 . . . .” (Pen. Code, § 1203.067, subd. (b)(4).) Specifically, we hold that defendant 

may constitutionally be required to waive the psychotherapist-patient privilege only to 

the extent necessary to allow the sex offender management professional to communicate 

with the supervising probation officer. Furthermore, the supervising probation officer 

may communicate defendant’s scores on the SARATSO risk assessment tools to the 

Department of Justice to be made accessible to law enforcement as required under section 

290.09, subdivision (b)(2). This narrow interpretation of the statute allows the 

psychotherapist to communicate with the probation officer as necessary, furthering the 

purposes of the exception as set forth in the statute. Apart from these exceptions, neither 

the psychotherapist nor the probation officer may relay protected communications to 
16

some other third party under the waiver, and defendant’s privacy rights based on the 

psychotherapist-patient privilege otherwise remain intact. 

B. Prohibition on Access to the Internet 

 Defendant challenges the probation condition prohibiting him from “access[ing] 

the internet or any other online service, through the use of a computer or other electronic 

device, including a phone, at any location, including place of employment, without prior 

approval of the probation officer.” The Attorney General contends the condition is valid 

so long as it includes an express scienter requirement, as held by a panel of this court in 

People v. Pirali (2013) 217 Cal.App.4th 1341,1351 (Pirali). Defendant acknowledges 

Pirali but asks us to reconsider. We decline defendant’s request and conclude the 

probation condition is constitutional provided it includes a scienter requirement. 

 In Pirali, supra, 217 Cal.App.4th 1341, a different panel of this court considered a 

nearly identical probation condition requiring Pirali “ ‘not to have access to the Internet 

or any other on-line service through use of [his] computer or other electronic device at 

any location without prior approval of the probation officer.’ ” (Id. at p. 1344.) Pirali 

challenged the condition as vague and overbroad. The panel in Pirali rejected the 

overbreadth argument, noting that Pirali could still access the Internet by obtaining 

approval from his probation officer. (Id. at p. 1350.) Second, the panel acknowledged 

that the condition would be unconstitutionally vague in the absence of a scienter 

requirement, and the court modified the condition accordingly. (Id. at pp. 1350-1351.) 

The panel upheld the condition as modified. 

 The condition imposed on defendant here differs from the condition upheld in 

Pirali in only two respects. It explicitly restricts Internet access through the use of a 

phone, and it includes defendant’s place of employment as a location from which access 

is forbidden. Defendant contends the restriction as to his place of employment must be 

stricken because his job requires him to access the Internet and the condition 

unnecessarily interferes with his ability to be employed. For this argument, he relies on 
17

United States v. Mark (8th Cir. 2005) 425 F.3d 505 (remanding for examination of 

whether probation condition completely barring Internet access was least restrictive 

measure) and United States v. Holm (7th Cir. 2003) 326 F.3d 872 (invalidating total ban 

on Internet access). But neither case considered a probation condition allowing the 

defendant to access the Internet with the prior approval of a probation officer, as the 

condition here does. We think this allowance sufficiently alleviates the burden on 

defendant’s ability to remain employed. As to the additional restriction on the use of a 

phone to access the Internet, we conclude the added language is immaterial. The 

language of the condition considered in Pirali—which prohibited access to the Internet 

through a “computer or other electronic device”––already prohibited the use of a phone 

to access the Internet. (Pirali, supra, 217 Cal.App.4th at p. 1344.) Based on the 

reasoning of Pirali, we conclude the probation condition at issue here is neither 

overbroad nor vague, provided it is modified to incorporate a knowledge requirement. 

We will order the trial court to modify the condition accordingly. 

C. Prohibition on Purchasing or Possessing Pornography 

 Defendant contends the condition that he “shall not purchase or possess any 

pornographic or sexually explicit material as defined by the probation officer” is 

unconstitutionally vague, and must therefore be modified. The Attorney General 

concedes that the condition as written must be modified in accord with the holding of a 

panel of this court in Pirali, supra, 217 Cal.App.4th at page 1353. We accept the 

concession. 

 In Pirali, a panel of this court considered a probation condition ordering Pirali 

“ ‘not to purchase or possess any pornographic or sexually explicit material as defined by 

the probation officer.’ ” (Pirali, supra, 217 Cal.App.4th at p. 1344.) The court held: 

“Materials deemed explicit or pornographic, as defined by the probation officer, is an 

inherently subjective standard that would not provide defendant with sufficient notice of 

what items are prohibited.” (Id. at p. 1353.) Accordingly, the court modified the 
18

condition to order Pirali “not to purchase or possess any pornographic or sexually explicit 

material, having been informed by the probation officer that such items are pornographic 

or sexually explicit.” (Ibid.) We agree with the reasoning of Pirali, and we will order the 

trial court to modify the condition accordingly. 

D. Prohibition on Dating, Socializing, or Forming a Romantic Relationship With Any 

Person Who Has Physical Custody of a Minor 

 Defendant challenges the condition requiring 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.” Defendant argues that this condition is 

unconstitutionally vague and overbroad in violation of his rights to freedom of 

association and privacy under the Fourteenth Amendment. He also contends the 

requirement that he not “socialize” is unconstitutionally vague. We agree that the 

requirement is both overbroad and vague, and we will order the trial court to strike the 

condition. 

 “A probation condition that imposes limitations on a person’s constitutional rights 

must closely tailor those limitations to the purpose of the condition to avoid being 

invalidated as unconstitutionally overbroad.” (In re Sheena K., supra, 40 Cal.4th at 

p. 890.) In other words, “[W]here an otherwise valid condition of probation impinges on 

constitutional rights, such conditions must be carefully tailored, ‘ “reasonably related to 

the compelling state interest in reformation and rehabilitation . . . .” ’ ” (People v. Bauer

(1989) 211 Cal.App.3d 937, 942.) All other probation conditions are reviewed for abuse 

of discretion. “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.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) No such abuse of 

discretion occurs unless the probation condition “ ‘ “(1) has no relationship to the crime 

of which the offender was convicted, (2) relates to conduct which is not in itself criminal, 
19

and (3) requires or forbids conduct which is not reasonably related to future 

criminality . . . .” [Citation.]’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379.) 

 The United States Supreme Court has long recognized a constitutional right to 

freedom of association. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 617.) 

Included in this right is the “freedom of intimate association,” which is exemplified by 

those personal affiliations that “attend the creation and sustenance of a family—marriage 

[citation]; childbirth [citation]; the raising and education of children [citation]; and 

cohabitation with one’s relatives [citation].” (Id. at p. 619; Warfield v. Peninsula Golf & 

Country Club (1995) 10 Cal.4th 594, 624.) By restricting defendant’s freedom to date 

and form romantic relationships with other persons, the probation condition here 

implicates his freedom of intimate association. We must therefore consider whether the 

condition is “narrowly tailored” to the state’s interest in reformation and rehabilitation. 

(In re Sheena K., supra, 40 Cal.4th at p. 890.) 

 The Ninth Circuit Court of Appeals considered a similar probation condition in 

United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 (Wolf Child). Wolf Child 

pleaded guilty to attempted sexual abuse after attempting to have sex with an intoxicated 

and unconscious 16-year-old girl. (Id. at p. 1088.) The sentencing court ordered Wolf 

Child not to “ ‘date or socialize with anybody who has children under the age of 18’ ” 

without prior approval from his probation officer. (Id. at p. 1089.) The court of appeals 

concluded that this condition was overbroad in violation of the defendant’s right to 

freedom of association. (Id. at p. 1100.) In its reasoning, the court observed: “The 

category of people covered by this condition with whom [the defendant] is prohibited 

from establishing social relationships is enormous. Probably more than half the people in 

the United States would be on the ‘do not associate’ list.” (Id. at pp. 1100-1101.) Offlimit persons included coworkers, bosses, family members, friends, spiritual leaders, and 

neighbors who have children. (Id. at p. 1101.) The court thereby found the scope of this 

prohibition to be too broad. 
20

 We find the court’s reasoning in Wolf Child persuasive. Like the probation 

condition in that case, the restriction here prohibits defendant from socializing with an 

extremely large category of persons unless he first obtains permission from his probation 

officer. People who have custody of minors are ubiquitous, and would likely be present 

among defendant’s coworkers, friends, family members, neighbors, and fellow church 

members. And the condition prohibits defendant from socializing with them regardless 

of whether he has any contact with their children. For example, defendant would be 

prohibited from socializing with coworkers—and possibly prevented from even holding a 

job—even though there may be little or no chance of meeting his coworkers’ children. 

Furthermore, such socialization among coworkers and others is likely to be so frequent 

that it would be impractical for defendant to obtain his probation officer’s approval prior 

to every such incident. The enormous scope of the condition thereby impinges on 

defendant’s freedom far more broadly than necessary to serve the state’s interests and the 

purposes of the condition. 

 We also agree that the term “socialize” is unconstitutionally vague in this context. 

“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair 

warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “The vagueness doctrine 

‘ “bars enforcement of ‘a statute which either forbids or requires the doing of an act in 

terms so vague that men [or women] of common intelligence must necessarily guess at its 

meaning and differ as to its application.’ ” [Citations.]’ ” (Ibid.) “A probation condition 

‘must be sufficiently precise for the probationer to know what is required of him [or her], 

and for the court to determine whether the condition has been violated,’ if it is to 

withstand a challenge on the ground of vagueness.” (Ibid.) 

 We would agree that much incidental contact—such as waving or saying “hello” 

to a stranger—does not constitute socializing. But that does not sufficiently clarify or 

narrow the scope of the condition. As relevant here, the dictionary defines “socialize” as 

“enter into or maintain personal relationships with others.” (Webster’s 3d New Internat. 
21

Dict. (1993) p. 2162.) Under this definition, a reasonable person cannot determine with 

sufficient precision what conduct constitutes “socializing,” i.e., entrance into a personal 

relationship. If defendant briefly meets with a group of coworkers while working on a 

project at his job, is he “socializing” with them? What if he attends the meeting 

passively, without talking? Or if he talks, but only says a few words? Has he formed a 

personal relationship with any of his coworkers under these circumstances? The answers 

to these questions are insufficiently clear for the purposes of enforcing a probation 

condition. We conclude that the term “socialize” is too ambiguous for a reasonable 

probationer to know with sufficient precision what conduct is prohibited. 

 The same is true of the requirement that defendant not “date” or “form a romantic 

relationship” with persons having custody of a minor. It is unclear what conduct 

constitutes a “date.” Furthermore, it is possible for a probationer to engage in these 

activities without coming into contact with the minors the condition seeks to protect. 

Thus, these conditions impinge directly on defendant’s right of association, yet they only 

indirectly serve the stated interest. Much less restrictive and more narrowly targeted 

conditions are available for the same purposes, e.g., a requirement that defendant not be 

present in the same room with a minor absent adult supervision. 

 Because the condition is both overbroad and vague, we will reverse and remand to 

the trial court to consider imposing a probation condition that is more “sufficiently 

precise” and “closely tailor[ed]” to the purpose of protecting minors in defendant’s 

presence. (In re Sheena K., supra, 40 Cal.4th at p. 890.) 

E. Prohibition on Possession or Use of Any Data Encryption Technique Program 

 Defendant challenges the probation condition prohibiting him from “possess[ing] 

or [using] any data encryption technique program.” He contends the condition is 

unconstitutionally vague in the absence of a scienter requirement. The Attorney General 

concedes that the condition must be modified to require that defendant “not knowingly

possess or use any data encryption technique program.” 
22

 We agree the condition is impermissibly vague in the absence of a scienter 

requirement. Accordingly, we will accept the Attorney General’s concession and will 

order the trial court to modify the condition as the Attorney General proposes. 

F. Condition That Defendant Must Not “Frequent” Any Business Where 

Pornography Is Openly Exhibited 

 Defendant challenges the condition requiring him not to “frequent, be employed 

by, or engage in any business where pornographic materials are openly exhibited.” He 

contends the condition is vague in the absence of a scienter requirement, and that the term 

“frequent” must be modified to be “visit or remain.” The Attorney General concedes this 

issue and proposes to modify the condition to state that defendant “shall not knowingly 

visit or remain in, be employed by, or engage in, any business where pornographic 

materials are openly exhibited.” We accept the concession. 

 We agree that the term “frequent” is unconstitutionally vague, as a panel of this 

court has previously held. (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon) 

[term “frequent” is unconstitutionally vague]; In re H.C. (2009) 175 Cal.App.4th 1067, 

1072 [term “frequent” is obscure and susceptible to multiple meanings].) Consistent with 

this court’s modification of the term in Leon, we substitute the phrase “visit or remain in” 

for the term “frequent.” Furthermore, because defendant could visit a business without 

knowing that prohibited materials are openly exhibited, we will order the trial court to 

modify the condition to incorporate a scienter requirement. 

III. DISPOSITION

 The judgment is reversed and the matter is remanded to the trial court with the 

following instructions. First, in light of our holding that the waiver requirement in Penal 

Code section 1203.067, subdivision (b)(3) is unconstitutional, the trial court shall strike 

the language “waive any privilege against self-incrimination and” from the probation 

condition implementing that subdivision. Second, the trial court shall strike the probation 

condition ordering defendant “not to date, socialize or form any romantic relationship 
23

with any person who has physical custody of a minor unless approved by the probation 

officer,” and the court shall consider whether to impose a probation condition consistent 

with our reasoning above. Third, the trial court shall modify the following probation 

conditions: (1) the condition restricting Internet access shall be modified to state that 

defendant shall not knowingly access the Internet or any other online service, through the 

use of a computer or other electronic device, including a phone, at any location, including 

place of employment, without prior approval of the probation officer; (2) the condition 

prohibiting purchase or possession of pornographic or sexually explicit materials shall be 

modified to state that defendant shall not purchase or possess any pornographic or 

sexually explicit material, having been informed by the probation officer that such items 

are pornographic or sexually explicit; (3) the condition prohibiting possession or use of 

data encryption technique programs shall be modified to state that defendant shall not 

knowingly possess or use any data encryption technique program; and (4) the condition 

that defendant not frequent, be employed by, or engage in any business where 

pornographic materials are openly exhibited shall be modified to state that defendant 

shall not knowingly visit or remain in, be employed by, or engage in, any business where 

pornographic materials are openly exhibited. 
 _______________________________ 

 Márquez, J. 

 I CONCUR: 

 ______________________________ 

 Grover, J. 
BAMATTRE-MANOUKIAN, Acting P.J., Concurring and Dissenting 

I. INTRODUCTION 

 Defendant Marlon Ivan Chavez Garcia pleaded no contest to possessing matter 

depicting a minor engaged in sexual conduct. (Pen. Code, § 311.11, subd. (a).)1

 At the 

sentencing hearing, defendant was placed on probation for three years, ordered to serve 

six months in jail or on the electronic monitoring program, and required to register as a 

sex offender. (See § 290, subd. (c).) 

 The trial court imposed a number of probation conditions as required by 

section 1203.067, subdivision (b). Defendant was ordered to “enter, participate in, and 

complete an approved sex offender management program.” (See § 1203.067, 

subd. (b)(2).) 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.” (See id., subd. (b)(3).) Defendant was required to “waive any 

psychotherapist/patient privilege to enable communication between the sex offender 

management professional and probation officer.” (See id., subd. (b)(4).) As to the latter 

two probation conditions, the trial court stated “its intention” that the waivers are “limited 

to facilitate the successful completion of the [sex offender management] program.” 

 Defendant’s probation conditions also included orders that he “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” (condition No. 5); “not purchase or 

possess any pornographic or sexually explicit material as defined by the probation 

officer” (condition No. 15); “not frequent, be employed by, or engage in any business 

where pornographic materials are openly exhibited” (condition No. 16); “not access the 

[I]nternet or any other online service, through the use of a computer or other electronic 

device, including a phone, at any location, including place of employment, without prior 

 1

 Unspecified section references are to the Penal Code. 
2

approval of the probation officer” and “not possess or use any data encryption technique 

program” (condition No. 17). 

Defendant challenges the probation conditions imposed pursuant to 

section 1203.067, subdivisions (b)(3) and (b)(4).2

 As explained herein, I respectfully 

disagree with the majority’s conclusion that the language “waive any privilege against 

self-incrimination” must be stricken from the probation condition required by 

section 1203.067, subdivision (b)(3), because I believe that the probation condition does 

not violate the Fifth Amendment of the United States Constitution and is not overbroad. 

However, I agree with the majority that the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(4), which requires a waiver of the 

psychotherapist/patient privilege, is not overbroad and does not require modification. 

Defendant also challenges probation condition Nos. 5, 15, 16, and 17. I 

respectfully disagree with the majority’s decision to remand this case so the trial court 

can more narrowly tailor condition No. 5, which prohibits defendant from dating, 

socializing, or forming a romantic relationship with any person who has physical custody 

of a minor unless approved by his probation officer. I would modify that condition to 

remove the term “socialize.” I do, however, agree with the majority that condition 

No. 15, which prohibits defendant from possessing pornographic or sexually explicit 

material, should be modified to replace the phrase “as defined by the probation officer.” 

I also agree that condition No. 16, which prohibits defendant from frequenting, being 

employed by, or engaging in any business where pornographic materials are openly 

exhibited, should be modified to replace the word “frequent” with the phrase “visit or 

 2

 The Supreme Court is currently considering the constitutionality of the 

conditions of probation mandated by 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.) 
3

remain in” and to include a knowledge requirement. Finally, I agree that condition 

No. 17, which prohibits defendant from using the Internet without prior approval of the 

probation officer and from possessing or using any data encryption technique, should be 

modified to include knowledge requirements. 

II. DISCUSSION 

A. Section 1203.067, Subdivision (b)(3) Probation Condition 

 As a condition of probation, 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, pursuant to [section] 1203.067[, 

subdivision] (b)(3).” 

 Defendant argues that this probation condition violates the Fifth Amendment and 

is overbroad, and that it must be either stricken or modified to (1) provide for direct and 

derivative use immunity of information obtained during polygraph examinations and 

(2) limit the questions that may be asked during polygraph examinations. 

1. Fifth Amendment Analysis 

 The majority agrees with defendant that the probation condition required by 

section 1203.067, subdivision (b)(3) “is prohibited under the Fifth Amendment” and 

orders the language “waive any privilege against self-incrimination and” stricken from 

the probation condition. (Maj. opn. at pp. 7, 22.) 

 The majority relies primarily on Minnesota v. Murphy (1984) 465 U.S. 420 

(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.’ ” (Id. 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, and criminal 
4

charges were filed as a result. The defendant then sought to suppress his 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 

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 
5

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 

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 [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.].) 

 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 

program under compulsion of the section 1203.067, subdivision (b)(3) probation 

condition, the condition itself does not violate the Fifth Amendment. 
6

2. Scope of Polygraph Testing 

 Defendant also challenges the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(3) insofar as it permits a polygraph examiner to 

question him about uncharged sex offenses. Defendant argues the condition is overbroad 

and requests we limit the condition. Defendant relies on Brown v. Superior Court (2002) 

101 Cal.App.4th 313, in which a probation condition requiring polygraph testing was 

modified so that the questions were limited to “those relating to the successful 

completion of the stalking therapy program and the crime of which [the defendant] was 

convicted.” (Id. at p. 321.) Defendant contends the trial court’s oral statement of its 

“intention . . . that this waiver is limited to facilitate the successful completion of the 

[sex offender management] program” was ineffective because that limitation was not 

stated in the court’s written orders. 

 Although 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, such a limitation is inherent in the 

phrase “which shall be part of the [sex offender management] program pursuant to 

[section] 1203.067[, subdivision] (b)(3).” In other words, the probation condition 

requires polygraph examinations to be used only in furtherance of a probationer’s 

treatment, and thus the condition implicitly requires that the questions asked be relevant 

to that treatment. 

 I conclude that the probation condition need not be modified to expressly state that 

the questions asked during polygraph examinations must be reasonably related to the 

completion of defendant’s treatment program or his conviction, because such a limitation 

is inherent in the condition. 

B. Section 1203.067, Subdivision (b)(4) Probation Condition 

Defendant also challenges the probation condition imposed pursuant to 

section 1203.067, subdivision (b)(4), which requires defendant to “waive any 
7

psychotherapist/patient privilege to enable communication between the sex offender 

management professional and probation officer.” Defendant contends this probation 

condition is overbroad and violates his constitutional right to privacy. He contends the 

condition should be stricken or modified. 

 The majority concludes there is no need to modify the probation condition 

imposed pursuant to section 1203.067, subdivision (b)(4) because it construes the statute 

as requiring 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.’ ” (Maj. opn. at p. 15, quoting § 1203.067, 

subd. (b)(4).) I agree there is no need to modify the probation condition imposed 

pursuant to section 1203.067, subdivision (b)(4). 

C. Relationship Condition 

 Defendant’s probation conditions included an order that he “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.” (Condition No. 5.) 

 Defendant contends this probation condition is “unconstitutionally vague and 

overbroad in violation of [his] rights to freedom of association and privacy,” and he 

contends that the term “ ‘socialize’ ” is unconstitutionally vague. He did not object 

below, and the record contains little information about the facts underlying his offense. 

 The majority agrees with defendant that the probation condition is overbroad and 

vague. The majority concludes that the probation condition’s “enormous scope . . . 

impinges on defendant’s freedom [of association] far more broadly than necessary to 

serve the state’s interests and the purposes of the condition.” (Maj. opn., p. 20.) The 

majority also agrees with defendant that “the term ‘socialize’ is unconstitutionally vague 

in this context.” (Ibid.) The majority further finds that “[t]he same is true of the 

requirement that defendant not ‘date’ or ‘form a romantic relationship’ with persons 

having custody of a minor.” (Id. at p. 21.) The majority suggests that the trial court 
8

could have imposed a “[m]uch less restrictive and more narrowly targeted” condition, 

such as “a requirement that defendant not be present in the same room with a minor 

absent adult supervision.” (Ibid.) The majority concludes it is necessary to remand this 

case so the trial court can “consider imposing a probation condition that is more 

‘sufficiently precise’ and ‘closely tailor[ed]’ to the purpose of protecting minors in 

defendant’s presence.” (Ibid.) 

 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, I 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 I 

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 
9

of forming a romantic relationship.3

 A romantic relationship is commonly understood to 

mean a relationship in which two people have feelings of love or affection for one 

another.4

 Thus, the terms “date” and “romantic relationship” are “ ‘sufficiently precise 

for the probationer to know what is required of him [or her]. . . .’ ” (In re Sheena K. 

(2007) 40 Cal.4th 875, 890.) 

 Rather than strike this condition and remand the matter to the trial court to 

possibly impose a more narrowly tailored condition, I would order condition No. 5 

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 and Data Encryption Condition 

 Defendant’s probation conditions included an order that he “not access the 

[I]nternet or any other online service, through the use of a computer or other electronic 

device, including a phone, at any location, including place of employment, without prior 

approval of the probation officer” and “not possess or use any data encryption technique 

program.” (Condition No. 17.) 

 Defendant contends the Internet portion of the condition should be stricken as 

overbroad insofar as it impacts his First Amendment rights, complaining that it effects a 

“complete ban on Internet access,” which extends to his place of employment. He argues 

that other probation conditions place sufficient restrictions on his computer and Internet 

 3

 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.) 

4

 One meaning of “romantic” is “marked by expressions of love or affection.” 

(Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 1016.)
10

 use.5

 In his reply brief, 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. 

 In the alternative, defendant contends the Internet portion of the condition should 

be modified to include a scienter requirement. In a supplemental brief, defendant makes 

a similar argument with respect to the data encryption portion of the condition. 

 The majority declines defendant’s request to reconsider Pirali and concludes, with 

respect to the Internet use restriction, that “the probation condition is constitutional 

provided it includes a scienter requirement.” (Maj. opn., p. 16; see Pirali, supra, 217 

Cal.App.4th at p. 1350 [“without 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”].) The majority similarly concludes that a scienter 

requirement must be included in the data encryption portion of the condition. (Maj. opn., 

p. 22.) 

 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, I agree that both the Internet and data 

encryption aspects of condition No. 17 should be modified to include knowledge 

requirements. 

 5

 Defendant points to the probation conditions requiring that his computer be 

“subject to Forensic Analysis search” (condition No. 12), that he “not enter any social 

networking sites, nor post any [ads], either electronic or written, unless approved by the 

probation officer” (condition No. 13), that he provide personal email addresses and 

website passwords to the probation officer (condition No. 14), and that he “not clean or 

delete Internet browsing activity” and “keep a minimum of four weeks of history” 

(condition No. 18). 
11

E. Pornography Conditions 

 Defendant’s probation conditions included an order that he “not purchase or 

possess any pornographic or sexually explicit material as defined by the probation 

officer” (condition No. 15) and an order that he “not frequent, be employed by, or engage 

in, any business where pornographic materials are openly exhibited” (condition No. 16). 

 Defendant contends that condition No. 15’s phrase “as defined by the probation 

officer” is unconstitutionally vague and should be replaced with the phrase “ ‘having 

been informed by the probation officer that such items are pornographic or sexually 

explicit.’ ” (See Pirali, supra, 217 Cal.App.4th at p. 1353.) Defendant contends that 

condition No. 16 should be modified to include a scienter requirement and to replace the 

word “frequent” with the phrase “visit or remain.” (See People v. Leon (2010) 181 

Cal.App.4th 943, 952.) 

 The Attorney General agrees that these conditions should be modified as 

defendant suggests, and the majority orders those modifications. (Maj. opn., pp. 17-18, 

23.) I agree that such modifications are appropriate. 

III. CONCLUSION 

I would not strike or modify the probation conditions required by 

section 1203.067, subdivisions (b)(3) and (b)(4), which require defendant to “waive any 

privilege against self-incrimination and participate in polygraph examinations” as part 

of the sex offender management program, and to “waive any psychotherapist/patient 

privilege to enable communication between the sex offender management professional 

and probation officer.” I would modify condition No. 5, which prohibits defendant from 

dating, socializing, or forming a romantic relationship with any person who has physical 

custody of a minor unless approved by his probation officer, to delete the term 

“socialize.” I would modify condition No. 15, which prohibits defendant from 

possessing pornographic or sexually explicit material, to delete the phrase “as defined by 
12

the probation officer” and replace it with a more specific scienter requirement. I would 

modify condition No. 16, which prohibits defendant from frequenting, being employed 

by, or engaging in any business where pornographic materials are openly exhibited, to 

replace the word “frequent” with the phrase “visit or remain in” and to include a 

knowledge requirement. Finally, I would modify condition No. 17, which prohibits 

defendant from using the Internet without prior approval of the probation officer and 

from possessing or using any data encryption technique, to include express knowledge 

requirements. As modified, I would affirm the judgment.
 ___________________________________________ 

 BAMATTRE-MANOUKIAN, ACTING P.J.