Filed 4/16/15 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 th e end of Section II.A.4., insert the following paragraph: Defendant further argues that th e waiver required by section 1203.067(b)(4) infringes upon his st atutory psychotherapist-patient privilege under Evidence Code section 1014. To the extent the statutes conflict, it is the later, more sp ecific statute that controls. ( Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4t h 1522, 1550, quoting Young v. Haines (1986) 41 Cal.3d 883, 894; Orange Unified Sc hool Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 757.) Because the Legislature enac ted 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., w ould grant the petiti on 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__________ _______________ ____________ Bamattre-Manoukian, Acting P.J.Filed 3/26/15 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 probati on. The court then ordered, amo ng other conditions of probation, that defendant complete a sex offender manage ment 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 privile ge against self-incrimination and participate in polygraph examinations as part of the sex offender management program under section 1203.067(b)(3); (2) to waiv e any psychotherapist/patie nt privilege to enable
communication between the sex offender mana gement professional and the probation officer under section 1203.067(b )(4); (3) not to access the in ternet without prior approval

1 Subsequent undesignated statutory references are to the Penal Code.2 of the probation officer; (4) not to purch ase 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 w ith any person who has physi cal 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 thes e probation conditions variously as unconstitutional, overbroad, and lacking in scie nter 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 ps ychotherapist-patient privilege as requiring waiver only insofar as nece ssary to enable comm unication between the probation officer and the psychotherapist. We hold that the waiver as construed in this
fashion is not overbroad in viol ation of defendant’s constitutiona l right to privacy. Third, we hold the condition ordering defendant not to date, socialize or form any romantic relationship with any person w ho has physical custody of a minor is unconstitutionally vague and overbroad. We will re mand to the trial court to consider whether to impose an
alternative condition consistent with our reas oning below. Finally, we will order the trial court to insert scienter requireme nts into the remaining conditions.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND 2 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 o ffense is based on de fendant’s motion to reduce a felony to a misdemeano r, filed in the trial court. The record contains no other statement of the facts.3 or distribution of child pornography, an d no file-sharing so ftware was found on defendant’s computers. The prosecution charged defendant by co mplaint 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 probatio n conditions at issue here, as follows: “You shall waive any privilege against sel f-incrimination and participate in polygraph examinations, which shall be part of the pr ogram pursuant to 1203.067(b)(3) of the Penal
Code. The Court wants to make sure that its intention is known, a nd that is that this
waiver is limited to facilitate the successful comple tion of the program. This also applies to the next condition. [¶] You shall waiv e any psychothera pist/patient privilege to
enable communication between the sex offend er management profe ssional and probation officer pursuant to Section 1 203.067(b) (4) and Section 290. 09 of the Penal Code.” The court then ordered: “You may not date, soci alize 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 po ssess any pornographic or sexually explicit material as defined by the pr obation officer. You shall not frequent, be employed by, or engage in any business where po rnographic materials are openly exhibited. You shall not access the internet or any othe r online service, through the use of a computer or other electronic device, including a phone, at a ny 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 ove rruled defendant’s objections by imposing the
conditions.4 II. D ISCUSSION 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 th e Fifth Amendment and is overbroad. Second, he conten ds the condition requiring waiv er of any ps ychotherapistpatient privilege under section 1203.067(b)(4) vi olates his constitutional right to privacy. The Attorney General argues th at both waiver conditions are constitutional as worded.
1. Statutory Scheme Under section 1203.067(b)( 2), any person placed on fo rmal probation on or after July 1, 2012, for any offense requiring registration under Penal Code sections 290 through 290.023, “shall succe ssfully complete a sex offender management program, following the standards develope d pursuant to Penal Code s ection 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 ex aminations, which shall be part of the sex offender management pr ogram.” Section 1203.067 (b)(4) requires “[w]aiver of any psychotherapist-patient pr ivilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to
Section 290.09.” 3 The Legislature enacted these provision s in 2010 to ame nd the Sex Offender Punishment, Control, and Containment Act of 2006 (hereafter, the “Containment Act”). (Stats. 2010, ch. 219, § 17.) The Containmen t Act created “a standardized, statewide system to identify, assess, monitor and cont ain known sex offenders for the purpose of reducing the risk of recidivism posed by th ese offenders, thereby protecting victims and

3 The same two waiver conditions appl y to parolees. (Pen. Code, § 3008, subds. (d)(3) & (d)(4).)5 potential victims from future ha rm.” (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 “s ex offender management professionals.” (Pen. Code, § 9003, subds. (a) & (b).) Such programs “shall incl ude 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 certif ied polygraph examiner, which shall be
conducted as needed during the period that the offe nder 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, ab out the offender’s progress in the program and dynamic risk assessment issues, and shall sh are 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 manage ment professional to administer a StateAuthorized Risk Assessment Tool for Se x 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 pr obation officer. (Pen. Code, § 290.09, subd. (b)(2).) The probation o fficer must then tran smit 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 privile ge against self-incrimination,” the plain language of section 12 03.067(b)(3) squarely implicates defendant’s rights under the Self-6 Incrimination Clause of the Fi fth Amendment. Furthermore, the “core” right of the SelfIncrimination Clause protects agains t 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-incrimi nation, the probation condition necessarily includes a waiver of the “core” right under the Self-Incrimination Clause. The plain language of the waiv er, if left intact, would ther efore allow the state to use defendant’s compelled statemen ts 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 Suprem e 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 ou t a threat to revoke probation for the legitimate exercise of the Fi fth Amendment privilege.” ( Murphy , supra , 465 U.S. at p. 438.) This holding was based on the Un ited States Supreme Court’s longstanding “penalty cases” jurispruden ce, under which the Fifth Ame ndment prohibits a compelled, prospective waiver of the Fifth Amendment, even prior to and ap art 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 prob ationer does not explicitly invoke the Fifth Amendment, he or she vol untarily waives the privilege against selfincrimination and the statemen ts are not “compelled” within the meaning of the Fifth Amendment. Under these circ umstances, the probationer’s st atements 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 principl es, and a plurality of the c ourt observed that “[o]nce an immunity waiver is signed, th e signatory is unable to asse rt a Fifth Amendment objection to the subsequent use of his statements in a cr iminal case, even if hi s statements were in fact compelled. A waiver of immunity is th erefore a prospective waiver of the core selfincrimination right in any subsequent criminal proceeding . . . .” ( Chavez , supra , 538 U.S. at p. 768, fn. 2 (p lur. opn. of Thomas, J.).) Th ese cases make clear that the probation condition here, by re quiring defendant to waive any privilege against selfincrimination, is prohibited under the Fifth Amendment. Even without the waiver, the state may s till 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 stat ements 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 incr imination. Under such circum stances, 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 r eaffirmed this principle as applied to public employees in Spielbauer v. Count y 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 imm unity 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 thei r formal testimony under oath. In such circumstances, an individual’s invocation of the privilege against self-incrimination8 would frustrate legitimate governmental objectives . In light of the competing interests, it
is well established that incr iminating answers may be offi cially compelled, without violating the privilege, when the person to be examined receives immunity ‘coextensive with the scope of the privile ge’—i.e., immunity against bot h 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.) (Italic s 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 bala nced against the rights of a probationer, who generally enjoys less constitutional protec tion 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 th e privilege against self-incrimination is necessary for participation in the sex offend er management program . The state may still compel defendant to participat e in the program and in polygraph examinations as part of the program, even if doing so requires hi m 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 incrim inating statements from him under threat of penalty, then he retains immun ity from the use and derivative us e of his statements in any separate criminal proceeding against him.
3. The Dissent’s Interpretati on of the Penalty Exception
In Murphy , the court held that “if the state, either expressly or by implication,
asserts that invocation of th e privilege would lead to re vocation of probation, it would9 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-cal led “penalty exceptio n” 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 wa iver is valid, as the dissent asse rts, then defendant has waived his ability to assert the Fifth Amendment in a subsequent criminal proceeding, and his
statements would be ad missible 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 affirmativ ely invoked; it does not render a compelled waiver constitutional. Under the penalty ex ception, Murphy’s st atements would have been inadmissible precisely be cause a threat to revoke hi s 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 c ould 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 statem ents 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 Me n 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 al so introduce a serious practical difficulty. If the waiver were left intact, then a proba tioner’s incriminating statements would automatically be immunized und er the penalty exception, even if the probationer never
invoked the Fifth Amendment. This auto matic grant of immunity could complicate future prosecutions, since the prosecution woul d bear “the heavy bu rden of proving that all of the evidence it proposes to use was de rived 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 affirma tively invoke the Fifth Amendment to enjoy its protections. If defendant makes incrimina ting statements after failing to invoke the privilege, his statements could be used agai nst 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 opport unity to consult with the district attorney on the wisdom of compelling further stat ements and thereby conferring immunity. The dissent and the Attorney General a dopt the position that the Fifth Amendment does not prohibit the state from re quiring the probationer to an swer 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 prob ationer to answer questions—even if doing so is incriminating—does not violate the Fift h 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 po sed 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 uncons titutional but unnecessary as well.11 4. Waiver of the Psychothera pist-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 pa tient’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 re velations from public purview, in retaining this substantial privacy, has deeper roots th an 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 ‘V arious 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 ps ychotherapist-patient privilege. “Although over 40 years have elapse d since our decision in Lifschutz , the United States Supreme Court itself has not yet defin itively 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 overrule d the holdings of Lifschutz and Stritzinger . We remain bound by them. ( Auto Equity Sales, Inc. v. Supe rior Court of Sa nta Clara County (1962) 57 Cal.2d 450, 455.) Accordingly, we will proceed unde r 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 “comp eting interest” in creating an exception to the privilege. ( Ibid. ) The court reaffirmed the holding of Lifschutz that any such exception mu st 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 cl osely 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 privile ge in the context of a proceeding under the Sexually Violent Predator Act (SVPA). The defendant, Ramiro Gonzales, had been convicted of multiple sex offens es over a 20-year period. ( Id. at p. 358.) Gonzales was paroled in 2004 and he underwent psychol ogical evaluation and treatment as a condition of parole. ( Id. at p. 359.) After violating his pa role conditions several times—including
one incident in which he visited a childre n’s playground—Gonzales was arrested and taken into custody. ( Id. at pp. 359-360.) In 2006, th e prosecution petitioned to commit Gonzales under the SVPA, and the matte r was set for a jury trial. Before trial, the prosecution sought to su bpoena psychological records arising out of Gonzales’ psychological treatment as a parolee. ( Gonzales , supra , 56 Cal.4th at p. 361.) Gonzales moved to quash the subpoe na on the basis the re cords 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 th e 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 federal13 constitutional right to privacy: “[W]e believe that in order to properly distinguish the
federal constitutional issue from the state la w issue, it is necessary, in determining whether the disclosure of defendant’s therap y records and the admission of his therapist’s testimony violated a federal cons titutional right of privacy, to look to the specific nature and extent of the federal constitutional privacy interests that are actu ally implicated in this particular setting and to the permissibl e 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 priv acy right invoked by Gonzales arose under the conditions of paro le, 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 co nsiderable 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 C onstitution 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 intrus ion” of the privacy right at issue, the court held “the state has a par ticularly strong and legitimate interest in authorizing the disclosure and use of a parole e’s prior statements that occur in parolemandated therapy in a subseq uent SVPA proceeding, espe cially 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 legitim ate and substantial state inte rest,” such that Gonzales’ federal constitutional right to the psychotherapist-patient pr ivilege 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), which14 mandates waiver of any privilege against sel f-incrimination, the wording of subdivision (b)(4) explicitly sets forth th e purposes of the waiver of the psychotherapist-patient privilege: “to enable communication between the sex offender management professional and supervising probation office r, pursuant to Section 290.09.” Section 290.09, in turn, requires communication between the sex o ffender management professional and the probation officer for two purpose s. 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 dyna mic risk assessment issues.” (Pen. Code, § 290.09, subd. (c).) By these provisions, the purposes of the ps ychotherapist-patient privilege waiver are expressly limit ed and comparatively well defined.
We find that the state’s in terest in furthering such communication is legitimate and substantial. The overriding goal of the Containment Model approach underlying the sex offender management program is public sa fety 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 Certifi cation 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 substa ntial interest in communication between these participan ts to justify disclosure here.

5 This document is online at: <http://www.cce.csus.edu/portal/admin/h andouts/CASOMB Program 10-29-13 complete.pdf> [Mar. 26, 2015]. We take judici al notice of these mate rials. (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 mo re 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 communica tion or the level of risk to public safety
absent disclosure. The waiver does not distinguish between comparatively more dangerous or less dangerous probationers. Bu t unlike the language of the waiver of the privilege against self-incrimination, this br oad language is followed by the phrase: “to
enable communication between the sex o ffender management professional and supervising probation officer, pursuant to Se ction 290.09.” This additional language limits what may be done with the probatione r’s communications once they are revealed. We will therefore narrowly construe th e statute as requiring a waiver of the psychotherapist-patient privilege only insofar as it is necessary “t o 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 allo w the sex offender management professional to communicate with the supervising probation officer. Furt hermore, 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 in terpretation of the statute allows the psychotherapist to communicate with the pr obation officer as necessary, furthering the purposes of the exception as set forth in the statute. Apart from th ese exceptions, neither the psychotherapist nor the probation offi cer may relay protected communications to16 some other third party under the waiver, a nd defendant’s privacy rights based on the psychotherapist-patient privile ge otherwise remain intact.
B. Prohibition on Access to the Internet Defendant challenges the probation co ndition prohibiting him from “access[ing] the internet or any other onlin e 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 office r.” The Attorney General c ontends the condition is valid so long as it includes an express scienter requi rement, as held by a panel of this court in People v. Pirali (2013) 217 Cal.A pp.4th 1341,1351 ( Pirali ). Defendant acknowledges
Pirali but asks us to reconsider. We dec line defendant’s request and conclude the probation condition is constitutional provi ded 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 Pi rali “ ‘not to have access to the Internet or any other on-line service through use of [h is] 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 c ould 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 th e 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 co ndition upheld in
Pirali in only two respects. It explicitly rest ricts 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 restri ction as to his place of employment must be stricken because his job requires him to access the Intern et and the condition unnecessarily interferes with hi s ability to be employed. Fo r this argument, he relies on17 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 cons idered 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 allowa nce sufficiently alleviates the burden on defendant’s ability to remain em ployed. 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 prob ation officer” is unconstitutionally vague, and must therefor e be modified. Th e Attorney General
concedes that the condition as written must be modified in accord w ith 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 no t provide defendant with sufficient notice of what items are prohibited.” ( Id. at p. 1353.) Accordingly, the court modified the18 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, Socializ ing, or Forming a Romant ic 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 w ith any person who has physic al custody of a minor unless approved by the probation officer.” De fendant argues that this condition is unconstitutionally vague and overbroad in violation of his ri ghts to freedom of association and privacy unde r the Fourteenth Amendment. He also contends the requirement that he not “socialize” is unc onstitutionally 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 li mitations on a person’ s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitu tionally overbroad.” ( In re Sheena K. , supra , 40 Cal.4th at p. 890.) In other words, “[W]here an othe rwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, ‘ “reasonably related to the compelling state interest in reform ation 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, cour ts 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, 11 20.) No such abuse of discretion occurs unless the probation conditi on “ ‘ “(1) has no relationship to the crime of which the offender was convicted, (2) relate s to conduct which is not in itself criminal,19 and (3) requires or forbids conduct whic h is not reasonably related to future criminality . . . .” [Citation.]’ ” ( People v. Olguin (2008) 45 Cal.4th 375, 379.) The United States Supreme Court has lo ng recognized a c onstitutional 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,” wh ich is exemplified by those personal affiliations that “attend the cr eation and sustenance of a family—marriage [citation]; childbirth [citation] ; the raising and education of children [citation]; and
cohabitation with one’s re latives [citation].” ( Id. at p. 619; Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 624.) By re stricting defendant’s freedom to date and form romantic relationships with other persons, the pr obation condition here implicates his freedom of intim ate association. We must therefore consider whether the condition is “narrowly tailored” to the state’s interest in re formation and rehabilitation. ( In re Sheena K. , supra , 40 Cal.4th at p. 890.) The Ninth Circuit Court of Appeals cons idered a similar probation condition in United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 ( Wolf Child ). Wolf Child pleaded guilty to attemp ted 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 relations hips is enormous. Probably more than half the people in
the United States would be on th e ‘do not associate’ list.” ( Id. at pp. 1100-1101.) Offlimit persons included coworkers, bosses, fam ily members, friends, sp iritual leaders, and neighbors who have children. ( Id. at p. 1101.) The court ther eby 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 rest riction here prohibits defend ant 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 pr ohibits defendant from socia lizing with them regardless of whether he has any contact with their ch ildren. 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 chan ce of meeting his coworkers’ children. Furthermore, such socialization among coworker s 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 nece ssary to serve the stat e’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 challe nge 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 co mmon intelligence must ne cessarily guess at its meaning and differ as to its a pplication.’ ” [Citations.]’ ” ( Ibid. ) “A probation condition ‘must be sufficiently precise for the probatione r to know what is required of him [or her],
and for the court to determin e whether the condition has b een violated,’ if it is to withstand a challenge on th e ground of vagueness.” ( Ibid. ) We would agree that much incidental c ontact—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 definitio n, a reasonable person ca nnot determine with sufficient precision what conduct constitutes “s ocializing,” i.e., entrance into a personal relationship. If defendant briefly meets w ith a group of coworkers while working on a project at his job, is he “socializing” w ith 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 coworker s under these circumstances? The answers to these questions are insuffi ciently clear for the purpose s of enforcing a probation
condition. We conclude that the term “s ocialize” is too ambi guous for a reasonable probationer to know with sufficient pr ecision what conduct is prohibited. The same is true of the requirement that defendant not “date” or “form a romantic relationship” with persons ha ving custody of a minor. It is unclear what conduct constitutes a “date.” Furthermore, it is possi ble for a probationer to engage in these activities without coming into c ontact with the minors the co ndition seeks to protect. Thus, these conditions impinge di rectly on defendant’s right of association, yet they only indirectly serve the stated interest. Much less restrictive and mo re 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 bot h overbroad and vague, we w ill reverse and remand to the trial court to consider imposing a prob ation condition that is more “sufficiently precise” and “closely tailor[ed]” to the purp ose 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 co ndition 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 modi fied to require that defendant “not knowingly possess or use any data encr yption technique program.”22 We agree the condition is impermissibl y vague in the absence of a scienter requirement. Accordingly, we will accept th e Attorney General’s concession and will order the trial court to modify the cond ition as the Attorney General proposes.

F. Condition That Defendant Must No t “Frequent” Any Business Where Pornography Is Op enly Exhibited Defendant challenges the condition requiri ng him not to “frequent, be employed by, or engage in any business where pornogra phic 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 re main.” The Attorney General concedes this issue and proposes to modify the condition to state that defend ant “shall not knowingly visit or remain in, be employed by, or engage in, any busine ss where pornographic materials are openly exhibited. ” We accept the concession. We agree that the term “frequent” is unc onstitutionally 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, becau se defendant could visit a business without knowing that prohibited materi als are openly exhib ited, we will order the trial court to modify the condition to incorporate a scienter requirement. III. D ISPOSITION The judgment is reversed and the matter is remanded to the trial court with the following instructions. First, in light of our holding that th e 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 subdiv ision. Second, the trial c ourt shall strike the probation condition ordering defenda nt “not to date, socialize or form any romantic relationship23 with any person who has physical custody of a minor unless approved by the probation officer,” and the court shall consider whet her to impose a probation condition consistent with our reasoning above. Third, the trial court shall modify the following probation conditions: (1) the condition restricting Intern et access shall be modified to state that defendant shall not knowingly access the Intern et 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 e xplicit; (3) the condition prohi biting possession or use of data encryption technique programs shall be modified to state that defendant shall not knowingly possess or use any data encryptio n technique program; and (4) the condition that defendant not frequent, be employed by, or engage in any business where pornographic materials are openly exhibited sh all be modified to state that defendant shall not knowingly visit or remain in, be em ployed 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 cond uct. (Pen. Code, § 311.11, subd. (a).) 1 At the sentencing hearing, defendant wa s placed on probation for three years, ordered to serve six months in jail or on the electronic monito ring 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 “w aive 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 enab le 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 offe nder 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 th e probation officer” (condition No. 5); “not purchase or possess any pornographic or sexually explic it material as defined by the probation officer” (condition No. 15); “not frequent, be employed by, or enga ge in any business where pornographic materials are openly exhi bited” (condition No. 16); “not access the [I]nternet or any other online service, throug h the use of a computer or other electronic device, including a phone, at any location, including place of employment, without prior

1 Unspecified section referenc es are to the Penal Code.2 approval of the probation office r” and “not possess or use any data encryption technique program” (condition No. 17). Defendant challenges the probati on conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). 2 As explained herein, I respectfully disagree with the majority’s c onclusion 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 ov erbroad and does not require modification. Defendant also challenges probation c ondition Nos. 5, 15, 16, and 17. I respectfully disagree with the ma jority’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 relations hip with any person w ho has physical custody of a minor unless approved by his probation officer. I would modify that condition to remove the term “socialize.” I do, howeve r, agree with the majo rity that condition No. 15, which prohibits defendant from po ssessing pornographic or sexually explicit material, should be modified to replace the ph rase “as defined by the probation officer.” I also agree that condition No. 16, which prohibits defe ndant from frequenting, being employed by, or engaging in any business where pornographic materials are openly exhibited, should be modified to replace th e word “frequent” with the phrase “visit or

2 The Supreme Court is currently c onsidering the constitutionality of the conditions of probation manda ted by section 1203.067, su bdivision (b), for persons convicted of specified felo ny 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 requ irement. Finally, I agree that condition No. 17, which prohibits defendant from using th e Internet without pr ior approval of the probation officer and from posse ssing or using any data encryp tion technique, should be modified to include knowledge requirements.

II. DISCUSSION A. Section 1203.067, Subdivisi on (b)(3) Probation Condition As a condition of probation, defendan t 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 co ndition 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 obt ained 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 pr ohibited under the Fifth Amendment” and orders the language “waive any privilege against self-inc rimination 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 se xual 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 pr ior rape and murder. ( Id. at p. 423.)
Those admissions were communicated to th e probation officer, who questioned the
defendant. The defendant ad mitted the crimes to the prob ation officer, and criminal4 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 empha sized that in general, the Fifth Amendment is not self-executing: “a witness . . . ordinarily must assert the privilege rather than answer if he [o r she] desires not to incrimin ate himself [or herself].” ( Murphy, supra, 465 U.S. at p. 429.) The probation condition in Murphy required the defendant only to be truthf ul, 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 applic able exceptions to the ge neral 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 applie d 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 th reatening to impose economic or other sanctions ‘capable of forcing the self-inc rimination 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 fo r exercising his Fifth Amendment privilege. ( Id. at pp. 437-438.) The probation condition its elf “proscribed only false statements; it said nothing about his freedom to decline to answer particular questions and certainly contained no suggestion that his probatio n was conditional on hi s waiving his Fifth Amendment privilege with respect to further criminal prosecution.” ( Id. at p. 437.) Further, there was “no direct evidence that Mu rphy 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, asse rts that invocation of5 the privilege would lead to revocation of pr obation, 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 co mpelled 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 recogni zes 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, as sert[ed] that invocati on 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 defe ndant makes any statem ents in response to questions posed to him dur ing the sex offender management program, those statements will be deemed compelled under the Fi fth Amendment and th us involuntary and inadmissible in a criminal prosecution

. ( Ibid. ) Since such statements will necessarily fall within the penalty exception, th ey will not be available for us e at a criminal prosecution,
and defendant’s Fifth Am endment 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 st atements in a crimin al case against the witness”]; id. at p. 777 [conc. opn. of Souter, J.].) In sum, because the penalty exception w ill necessarily apply to statements that defendant makes in response to questions asked as part of the sex offender management program under compulsion of the secti on 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 pr obation condition imposed pursuant to section 1203.067, subdivision (b)(3) insofa r 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 po lygraph testing was modified so that the questions were lim ited 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 succe ssful completion of the [sex offender management] program” was in effective 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 exam inations to those related to the successful completion of the program or defendant’s criminal conv iction, such a limitation is inherent in the phrase “which shall be part of the [sex offender management] program pursuant to [section] 1203.067[, subdivis ion] (b)(3).” In other wo rds, the probation condition requires polygraph examinations to be used only in furtherance of a probationer’s treatment, and thus the conditio n 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 pol ygraph 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, Subdivisi on (b)(4) Probation Condition Defendant also challenges the proba tion condition imposed pursuant to section 1203.067, subdivision (b)(4), wh ich requires defendant to “waive any7 psychotherapist/patient privilege to enab le communication between the sex offender management professional and probation officer.” Defenda nt contends this probation
condition is overbroad and violates his constitu tional right to privacy. He contends the
condition should be st ricken or modified. The majority concludes there is no need to modify the probation condition imposed pursuant to section 1203.067, subdivi sion (b)(4) because it construes the statute as requiring a waiver of the psychotherapis t/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 conditio ns 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 proba tion officer.” (Condition No. 5.)
Defendant contends this probation condition is “unc onstitutionally 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 contai ns little information about the facts underlying his offense. The majority agrees with defendant th at the probation condition is overbroad and vague. The majority concludes that the probation condition’s “enormous scope . . . impinges on defendant’s freedom [of associat ion] 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 de fendant that “the term ‘socia lize’ 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 ‘fo rm a romantic relationship’ with persons having custody of a minor.” ( Id . at p. 21.) The majority su ggests that the trial court8 could have imposed a “[m]uch less restric tive 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 impos ing a probation condition that is more ‘sufficiently precise’ and ‘clo sely 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 conditio n prohibits defendant from so cializing with people such as family, friends and coworker s, 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 defendan t may never come into contact with those children, is not carefully tailored to the purpose of the conditi on. Simply put, it burdens activity that does not raise a sufficiently high probability of harm to govern mental interests to justify the interference. Thus, I agree that the te rm “socialize” should be stricken from the
condition. On the other hand, the terms “date” a nd “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 rela tionship with is not nearly as large as the number of individuals defendant might socializ e with. Further, although it is possible for a probationer to date or form a romantic re lationship 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 de fendant’s opportunities for cont act with minors. Nor do I
believe the terms “date” and “romantic rela tionship” are unconstituti onally vague, as both terms “have a ‘plain commonsense meaning, wh ich is well settled . . . .’ [Citations.]” ( In re R.P. (2009) 176 Cal.App.4th 562, 566-567.) Th e verb “date,” in this context, is commonly understood to mean to engage in activities with another person with the intent9 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” a nd “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 narro wly tailored condition, I w ould 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 a pproved by the probation
officer.”
D. Internet and Data Encryption Condition Defendant’s probation cond itions included an order that he “not access the [I]nternet or any other online service, throug h 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 office r” and “not possess or use any data encryption technique program.” (Condition No. 17.)
Defendant contends the Inte rnet portion of the conditi on 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 engage ment 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 Di ct. (10th ed. 1993) p. 1016.)10 use. 5 In his reply brief, defendant acknowled ges 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 requireme nt. In a supplemental brief, defendant makes a similar argument with resp ect to the data encryptio n portion of the condition. The majority declines defend ant’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 expr ess knowledge requirement, defendant could unwittingly violate the condition as there are s ituations in which he may not know he has
access to or has accessed the Intern et”].) The majority similarl y concludes that a scienter requirement must be included in the data en cryption portion of the co ndition. (Maj. opn., p. 22.) Because the addition of explicit knowledge elements will protect defendant from truly inadvertent acts while still serving the purpose of ensuri ng that his probation officer can track his Internet activity as necessary , I agree that both the Internet and data encryption aspects of conditio n No. 17 should be modifi ed to include knowledge requirements.

5 Defendant points to the probation cond itions requiring that his computer be “subject to Forensic Analysis search” (cond ition 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 (con dition No. 14), and that he “not clean or delete Internet browsing activity” and “kee p a minimum of four weeks of history” (condition No. 18).11 E. Pornography Conditions Defendant’s probation conditio ns included an order that he “not purchase or possess any pornographic or sexually explic it 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 material s 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 ag rees 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 m odifications are appropriate.

III. CONCLUSION I would not strike or modify th e probation conditions required by section 1203.067, subdivisions (b)(3) and (b )(4), which require defendant to “waive any privilege against self-incrimination and par ticipate in polygraph examinations” as part of the sex offender management program, an d to “waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and probation officer.” I would modify co ndition No. 5, which prohibits defendant from dating, socializing, or forming a romantic relationship with any pe rson who has physical custody of a minor unless approved by hi s probation officer, to delete the term “socialize.” I would modify condition No. 15, which prohib its defendant from possessing pornographic or sexually explicit mate rial, to delete the phrase “as defined by12 the probation officer” and replace it with a mo re specific scienter requirement. I would modify condition No. 16, which prohibits defendant from frequen ting, being employed by, or engaging in any business where pornogra phic materials are openly exhibited, to replace the word “frequent” w ith the phrase “visit or re main in” and to include a knowledge requirement. Finally, I would modify condition No. 17, which prohibits defendant from using the Internet without pr ior 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.