P. v. Tekle

Filed 3/23/15 P. v. Tekle 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
HAILU ABERA TEKLE,
Defendant and Appellant.
H040692
(Santa Clara County
Super. Ct. No. C1350964)
Defendant Hailu Abera Tekle pleaded no contest to going to an arranged meeting
place to meet with a minor for purposes of engaging in lewd and lascivious behavior.
(Pen. Code, § 288.4, subd. (b).)1 The trial court granted a three-year term of probation
with the condition that defendant serve four months in jail. Among other conditions of
probation, the court ordered defendant to complete a sex offender management program
as mandated by section 1203.067. The court also imposed three 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); and (3) not to date, socialize with, or form a
1 Subsequent undesignated statutory references are to the Penal Code.

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romantic relationship with any person who has physical custody of a minor unless
approved by the probation officer;
On appeal, defendant challenges the condition requiring waiver of his privilege
against self-incrimination as overbroad and in violation of his rights under the Fifth
Amendment. He challenges the condition requiring waiver of the psychotherapist-patient
privilege as a violation of his statutory right to the privilege and his constitutional right to
privacy. Finally, he challenges the condition prohibiting him from dating, socializing
with, or forming a romantic relationship with any person who has physical custody of a
minor as vague and overbroad.
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). We will order the relevant language of this waiver condition
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.
I. FACTUAL AND PROCEDURAL BACKGROUND2
On February 23, 2013, an undercover San José police officer placed a Craigslist ad
in which he claimed to be a 16-year-old boy named “Steve” looking for a relationship.
Defendant responded and arranged to meet “Steve” for sex, despite a statement by
“Steve” that he was only 16 years old. Defendant went to the agreed upon place at the
2 The facts of the offense are taken from the probation report.

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agreed upon time, where the police arrested him. Defendant initially claimed he was
waiting to meet an 18-year-old boy but later acknowledged that he knew “Steve” was
only 16.
The prosecution charged defendant by felony complaint with going to an arranged
meeting place to meet with a minor for purposes of engaging in lewd and lascivious
behavior. (§ 288.4, subd. (b).) Defendant pleaded no contest. The trial court granted a
three-year term of probation that included a four-month term in county jail as a condition
of probation. Among other conditions of probation, the court ordered defendant to
complete a sex offender management program as mandated by section 1203.067.
The court then imposed the probation conditions at issue here, as follows: “The
defendant shall waive any privilege against self-incrimination, and participate in a
polygraph examination which will be part of a sex-offender management program
pursuant to section 1203.067(b)(3) of the Penal Code. [. . .] [The court] does not believe
it’s a violation of the defendant’s Constitutional rights against self-incrimination or the
due process right under both California and United States Constitution. [¶] [T]he
defendant shall waive any psychotherapist/patient privilege to enable a communication
between the sex-offender management professionals and probation officer.” Defendant
objected to both these conditions in writing prior to the sentencing hearing, but the court
imposed them over defendant’s objections. The court further ordered: “The defendant
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.”
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 self-
incrimination under section 1203.067(b)(3) violates the Fifth Amendment and is
overbroad. Second, he contends the condition requiring waiver of any psychotherapist-

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patient 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
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
3 These same two waiver conditions apply to parolees. (Pen. Code, § 3008, subds.
(d)(3) & (d)(4).)

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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
State-Authorized 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-
Incrimination Clause of the Fifth Amendment. The “core” right of the Self-Incrimination
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 a 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

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waiver, if left intact, would therefore allow the state to use defendant’s compelled
statements against him in a separate criminal proceeding.
The Attorney General contends that the Fifth Amendment only prohibits the use of
defendant’s compelled statements against him in a separate criminal proceeding,
implying the claim is not ripe. She argues that no violation of the Fifth Amendment will
occur because defendant’s compelled statements will never be used against him. But the
Attorney General does not explain how defendant could protect his Fifth Amendment
rights in a future criminal proceeding after expressly waiving these rights as a condition
of probation. As noted by Justice Thomas’ plurality opinion in Chavez: “Once 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 self-
incrimination right in any subsequent criminal proceeding . . . .” (Chavez, supra,
538 U.S. at p. 768, fn. 2 (plur. opn. of Thomas, J.).)
Thus, a state-compelled, prospective waiver of the privilege against self-
incrimination gives rise to a Fifth Amendment claim before a declarant’s incriminating
statements are used in a criminal prosecution, regardless of whether the state ever
initiates such a prosecution. The Supreme Court’s longstanding “penalty cases”
jurisprudence established this rule decades ago. (Uniformed Sanitation Men Ass’n v.
Sanitation Comm’r (1968) 392 U.S. 280, 283 [Fifth Amendment violated when state fired
public employees for invoking and refusing to waive the privilege against self-
incrimination]; Gardner v. Broderick (1968) 392 U.S. 273, 276 [Fifth Amendment
prohibits state from firing policeman for refusing to waive the privilege against self-
incrimination].)
In Lefkowitz v. Turley (1973) 414 U.S. 70, licensed architects challenged a New
York statute disqualifying contractors for public contracts if they refused to waive their
Fifth Amendment immunity. The architects, when called as witnesses before a grand

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jury, refused to sign waivers of immunity. The state had not charged them with any
crimes, nor used their statements against them in any criminal proceeding. Nonetheless,
the Supreme Court held that the statutorily compelled waivers violated the Self-
Incrimination Clause. The Supreme Court reaffirmed this principle in Lefkowitz v.
Cunningham (1977) 431 U.S. 801. There, a New York statute provided that if a political
party officer was subpoenaed to testify about the conduct of his office but the officer
refused to testify or waive immunity, the officer was barred from holding office for five
years. Cunningham, when subpoenaed to testify before a grand jury, refused to sign a
waiver of immunity, and he was barred from holding office. The state never threatened
or attempted to use Cunningham’s statements against him in a criminal prosecution, yet
the Supreme Court struck down the statute as a violation of the Self-Incrimination
Clause. These cases make clear that a state-compelled, prospective waiver of immunity
violates the Self-Incrimination Clause apart from the use of any such compelled
statements in any subsequent criminal proceeding.
The Attorney General relies on Maldonado for the proposition that the Fifth
Amendment is not violated until a defendant’s statements are used against him in a
criminal proceeding. But her reliance on Maldonado ignores the analytical distinction
between a violation of the “core” Fifth Amendment right and a violation of the
“prophylactic” protection prohibiting a compelled waiver of immunity as explained in
Maldonado itself and in Chavez.
In Maldonado, the California Supreme Court stated that “a ‘core’ Fifth
Amendment violation is completed, not merely by official extraction of self-
incriminatory answers from one who has not waived the privilege, but only if and when
those answers are used in a criminal proceeding against the person who gave them.”
(Maldonado, supra, 53 Cal.4th at p. 1128, first italics added.) For this principle, the court
relied on the plurality opinion in Chavez, supra, 538 U.S. at pp. 766-773 (plur. opn. of
Thomas, J.).

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In Chavez, the United States Supreme Court considered a civil rights lawsuit under
42 U.S.C. section 1983 by a plaintiff alleging a violation of the Fifth Amendment.
Although the plaintiff’s statements were compelled, they were never used against him in
a criminal prosecution. (Chavez, supra, 538 U.S. at pp. 763-764.) Justice Thomas,
writing for a plurality of justices, characterized the “core” Fifth Amendment privilege as
the right not to be a “witness” against oneself in a “criminal case.” (Chavez, at pp. 768-
769 (plur. opn. of Thomas, J.).) But a majority of justices also affirmed longstanding
“prophylactic” or “complementary” protections under the Fifth Amendment that arise
prior to and apart from a criminal proceeding. (Id. at p. 770 (plur. opn. of Thomas, J.); id.
at pp. 777-778 (conc. opn. of Souter, J.).) The rule prohibiting a compelled waiver of
immunity is one such protection, and is necessary to protect the “core” right against the
use of compelled statements in a prosecution. “By allowing a witness to insist on an
immunity agreement before being compelled to give incriminating testimony in a
noncriminal case, the privilege preserves the core Fifth Amendment right from invasion
by the use of that compelled testimony in a subsequent criminal case.” (Id. at p. 771
(plur. opn. of Thomas, J.).)
The California Supreme Court in Maldonado did not hold otherwise. There, the
court considered a discovery rule requiring a defendant who proffered a mental
incapacitation defense to submit to examination by the prosecution’s mental health
experts. (§ 1054.3, subd. (b)(1).) The court had no occasion to consider a compelled
waiver. To the contrary, the court explicitly based its analysis on the uncontroversial
premise that the defendant maintained his Fifth Amendment immunity unless and until he
voluntarily waived it by introducing his own statements into evidence at trial: “[T]he
parties agree that the Fifth Amendment protects petitioner against any direct or derivative
use of his statements to the prosecution examiners, except to rebut any mental-state
evidence he presents through his own experts.” (Maldonado, supra, 53 Cal.4th at
p. 1129, fn. omitted.) “If he decides to abandon the defense, any self-incriminating

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results of the examinations cannot be introduced or otherwise used against him.” (Id. at
p. 1132.)
Nothing in Maldonado authorizes a compelled waiver of immunity. To the
contrary, the California Supreme Court explicitly recognized the Chavez plurality’s
affirmation of the so-called “prophylactic rules” under the Fifth Amendment: “The rule
allowing a witness to assert the privilege prior to testifying, and to refuse to testify unless
granted immunity, Justice Thomas indicated, protects the ‘core’ Fifth Amendment
privilege simply by assuring that the witness has not forfeited the right against self-
incriminating use of his or her testimony in later criminal proceedings.” (Maldonado,
supra, at pp. 1128-1129, italics added.) The court in Maldonado also acknowledged its
prior holding, set forth at Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704,
714-730, that a compelled waiver of immunity could not be required even in the absence
of a criminal proceeding. In this regard, the court noted: “[W]e held that in the context
of a noncriminal investigation by a public employer, the employee could be compelled to
answer questions about his performance of duty, even without a formal immunity
agreement, so long as he was not required to surrender the immunity conferred by the
Fifth Amendment itself against use and derivative use of his statements to prosecute him
for a criminal offense.” (Maldonado, supra, at p. 1129, italics added.)
Neither Maldonado nor Chavez purported to overturn longstanding United States
Supreme Court jurisprudence prohibiting compelled waivers of immunity. Regardless of
whether the right against a compelled waiver is characterized as a “core right,” a
“prophylactic rule,” or “complementary protection,” defendant has standing to assert his
Fifth Amendment claim here. The Chavez plurality stated this explicitly: “That the
privilege is a prophylactic one does not alter our penalty cases jurisprudence, which
allows such privilege to be asserted prior to, and outside of, criminal proceedings.”
(Chavez, supra, 538 U.S. at p. 772, fn. 3 (plur. opn. of Thomas, J.).) For these reasons,
we conclude defendant’s claim under the Fifth Amendment is ripe for adjudication.

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On the merits of defendant’s claim, we conclude the waiver is prohibited by the
Fifth Amendment. 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 “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 proceeding.
(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; Gardner
v. Broderick, supra, 392 U.S. 273.)
The same protection applies to probationers. In Murphy, supra, 465 U.S. 420, the
United States Supreme Court addressed the privilege against self-incrimination in the
context of probation. Marshall Murphy was prosecuted for criminal sexual conduct. He
pleaded guilty to false imprisonment and received three years’ probation. (Id. at p. 422.)
The terms of Murphy’s probation required him to participate in a treatment program for
sexual offenders and to be truthful with the probation officer “in all matters.” (Ibid.) In
the course of his treatment, Murphy confessed to raping and murdering a teenage girl
seven years earlier. (Id. at p. 423.) His treatment counselor gave this information to the
probation officer, who then confronted Murphy with it. (Id. at pp. 423-424.) Murphy
confessed to the probation officer as well, who in turn told the police. (Id. at p. 424.) At
no point did Murphy invoke the Fifth Amendment. He was later indicted for first degree
murder for killing the teenage girl. (Id. at p. 425.)
The central issue in Murphy was whether Murphy’s failure to invoke his Fifth
Amendment rights allowed for the admission of his incriminating statements against him
at trial. The high court concluded that Murphy had voluntarily chosen not to invoke his

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Fifth Amendment rights, notwithstanding the probation condition requiring him to
answer questions. (Murphy, supra, 465 U.S. at pp. 433-434.) The court began its
analysis by holding that the privilege against self-incrimination applies to probationers:
“A defendant does not lose this protection [against self-incrimination] by reason of his
conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at
the time he makes incriminating statements, if those statements are compelled they are
inadmissible in a subsequent trial for a crime other than that for which he has been
convicted.” (Id. at p. 426.) The court then held that the probation condition requiring
Murphy to answer questions truthfully did not, by itself, controvert this right; rather, his
obligations were no different from those of any other witness in a proceeding: “The
answers of such a witness to questions put to him are not compelled within the meaning
of the Fifth Amendment unless the witness is required to answer over his valid claim of
the privilege.” (Id. at p. 427, italics added.) Thus, the court held that Murphy was
subject to the general rule that the privilege against self-incrimination is not self-
executing; rather, the privilege must be claimed by affirmatively invoking it.
The court distinguished Murphy’s circumstances from cases in which “the state
not only compelled an individual to appear and testify, but also sought to induce him to
forgo the Fifth Amendment privilege . . . .” (Murphy, supra, 465 U.S. at p. 434 [citing
Lefkowitz v. Cunningham, supra, 431 U.S. at p. 806; Lefkowitz v. Turley, 414 U.S. at pp.
79–84; Uniformed Sanitation Men Assn. v. Comm’r of Sanitation, supra, 392 U.S. at pp.
283-284; Gardner v. Broderick, supra, 392 U.S. at pp. 278-279].) The court noted: “The
threat of punishment for reliance on the privilege distinguishes cases of this sort from the
ordinary case in which a witness is merely required to appear and give testimony.”
(Murphy, supra, 465 U.S. at p. 435.) The court then held that if the state had threatened
to revoke Murphy’s probation for invoking the Fifth Amendment, his statements would
have been inadmissible at trial. (Ibid.)

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Thus, Murphy has long made clear that the state may not punish a probationer for
invoking the Fifth Amendment. More recently, California courts have reaffirmed that
Murphy stands for this principle: “[I]f the state puts questions to a probationer that call
for answers that would incriminate him in a pending or later criminal proceeding, and
expressly or by implication asserts that invocation of the privilege would lead to
revocation of probation, the answers would be deemed compelled under the Fifth
Amendment and thus involuntary and inadmissible in a criminal prosecution.” (Brown v.
Superior Court (2002) 101 Cal.App.4th 313, 320.) A threat to revoke probation for
failing to waive the privilege against self-incrimination is tantamount to a threat to revoke
probation for a “legitimate exercise of the Fifth Amendment privilege.” (Murphy, supra,
465 U.S. at p. 438.) Murphy thereby prohibits the compelled waiver required by section
1203.067(b)(3).
We note that 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, supra, 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

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individual’s invocation of the privilege against self-incrimination 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.) The court held that 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.” ’ ”].) Thus, under Spielbauer, a formal grant of
immunity is not necessary to preserve defendant’s rights under the Fifth Amendment
during his required participation in the sex offender management program.
For these reasons, we will order the relevant language of the waiver condition
stricken. 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 self-incrimination, and if the state continues to
compel incriminating statements from him, then he retains immunity from the use and
derivative use of his statements in any separate criminal proceeding against him. (Id. at
p. 435.)

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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
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
contends 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. (Chavez, supra, 538 U.S. at p. 768, fn. 2
(plur. opn. of Thomas, J.).)
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.

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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.
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 probation 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.) Nonetheless, the

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dissent contends the waiver condition is necessary to compel the probationer to provide
“full disclosures” in connection with the treatment program. (Dissenting opn. at p. 1.)
But the dissent does not explain why an express waiver of the Fifth Amendment is
necessary if requiring the probationer to answer questions does not violate the Fifth
Amendment in the first place. In our view, the waiver is not only unconstitutional but
unnecessary as well.
For these reasons, we are not persuaded by the dissent’s arguments concerning the
penalty exception and the necessity of the waiver condition.
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

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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.
“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.

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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 psychotherapist-
patient 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
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 this 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 that “the state has a particularly strong and legitimate interest in
authorizing the disclosure and use of a parolee’s prior statements that occur in parole-

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mandated 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 consider 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 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

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Offender Treatment Program Certification Requirements at pp. 6-8.) 4 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.
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
4 This document is online at:
<http://www.cce.csus.edu/portal/admin/handouts/CASOMB Program 10-29-13
complete.pdf> [Mar. 23, 2015]. We take judicial notice of these materials. (Evid. Code,
§§ 452, 459.)

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21
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
some other third party under the waiver, and defendant’s privacy rights based on the
psychotherapist-patient privilege otherwise remain intact.5
B. 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. The Attorney General
concedes that the term “socialize” is vague and overbroad, but she urges us to uphold the
remainder of the condition. We agree with defendant that the requirement is both
overbroad and vague, and we will order the trial court to strike the condition.
5 Defendant also argues that section 1203.067(b)(4) violates the general statutory
psychotherapist-patient privilege created by 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.)

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“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,
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

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United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 (Wolf Child). The defendant in
that case 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 the defendant 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.) Off-limit 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.
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.

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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 woman] 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.
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

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25
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.)
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
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.

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_______________________________
Márquez, J.

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RUSHING, P.J., Concurring
I agree with the majority opinion that defendant cannot be compelled to waive his
immunity against self-incrimination, although he can be compelled to answer potentially
incriminating questions, on pain of revocation of probation, so long as his answers cannot
be used against him. I diverge somewhat from the majority opinion’s approach, however,
concerning the effect of defendant’s statutorily required waiver of the psychotherapist-
patient privilege. I believe California’s express guarantee of the right of privacy (Cal.
Const., art. I, § 1) compels a rule under which the waiver required by Penal Code
section 1203.067, subdivision (b), permits the “sex offender management professional” to
report to the probation officer upon the defendant’s test scores, attendance, and general
cooperativeness in the therapy process, but does not otherwise permit the professional to
disclose, to the probation officer or anyone else, the content of any otherwise protected
psychotherapeutic communications. To the extent Penal Code section 1203.067 may be
understood or intended to require or permit disclosure of such communications, I would
hold it violative of our state constitutional guarantee of privacy.
______________________________________
RUSHING, P.J.

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ELIA, J., Dissenting
I respectfully disagree with the majority’s conclusion that the probation condition
requiring defendant to waive the privilege against self-incrimination (Penal Code,
§ 1203.067, subdivision (b)(3))1 is prohibited by the Fifth Amendment under Minnesota
v. Murphy (1984) 465 U.S. 420 (Murphy), and therefore this court must strike the
condition. (Maj. opin. p. 2.) In addition, I would not narrowly construe the waiver of the
psychotherapist-patient privilege.
The Fifth Amendment provides that no person “shall be compelled in any criminal
case to be a witness against himself.” However, the Fifth Amendment does not prohibit
the state from requiring a prospective probationer to choose between accepting this
waiver and going to prison. This is true because the probation condition requiring
defendant to waive the privilege against self-incrimination does not itself compel a
probationer to be a witness against himself in a criminal proceeding. This condition
requires only that the probationer provide full disclosures in connection with the
sex offender management program. Such disclosures are necessary to the success of the
program. The waiver provision is critical because it prevents a probationer from refusing
to provide such disclosures on self-incrimination grounds.
In Murphy, supra, 465 U.S. 420 the defendant, Murphy, had been placed on
probation for a sexual offense. His probation terms required him to participate in a
sex offender treatment program, and to be “truthful with the probation officer ‘in all
matters.’ ” (Id. at p. 422.) A counselor in the treatment program told the probation
officer that Murphy had admitted an unrelated rape and murder. (Id. at p. 423.)
The probation officer confronted Murphy about these admissions. (Id. at pp. 423-424.)
Again, Murphy admitted the rape and murder. (Id. at p. 424.) Thereafter, Murphy was
charged with murder, and he sought to suppress his admissions to the probation officer on
1 All unspecified references are to the Penal Code.

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2
Fifth Amendment grounds. (Id. at pp. 424-425.) The Minnesota Supreme Court held
that, because the defendant was required to respond truthfully to the probation officer, the
probation officer was required to inform the defendant of his Fifth Amendment rights
before questioning him, and her failure to do so merited suppression of his admissions.
(Id. at p. 425.)
The United States Supreme Court granted certiorari to decide “whether a
statement made by a probationer to his probation officer without prior warnings is
admissible in a subsequent criminal proceeding.” (Murphy, supra, 465 U.S. at p. 425.)
The Supreme Court concluded that the “general rule” is that the Fifth Amendment
privilege against self-incrimination is not “self-executing.” (Id. at p. 434.) A privilege
that is not “self-executing” applies only where it has been invoked. (Ibid.) Murphy had
not invoked the privilege because he did not “assert the privilege rather than answer” the
probation officer’s questions. (Id. at p. 429.) The court rejected Murphy’s claim that his
obligation under the terms of his probation to truthfully answer his probation officer’s
questions alone converted his “otherwise voluntary” responses into compelled statements.
(Id. at p. 427.) Analogizing Murphy’s situation to that of a subpoenaed witness who
testifies on pain of contempt, the court observed that “[t]he answers of such a witness to
questions put to him are not compelled within the meaning of the Fifth Amendment
unless the witness is required to answer over his valid claim of the privilege.” (Ibid.) “If
he asserts the privilege, he ‘may not be required to answer a question if there is some
rational basis for believing that it will incriminate him, at least without at that time being
assured that neither it nor its fruits may be used against him’ in a subsequent criminal
proceeding. [Citation.] But if he chooses to answer, his choice is considered to be
voluntary since he was free to claim the privilege and would suffer no penalty as the
result of his decision to do so.” (Id. at p. 429.)
In Murphy, the United States Supreme Court considered the applicability of the
“penalty exception” to the general rule that the Fifth Amendment is not “self-executing.”

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3
The penalty exception applies where the state not only compelled the person’s statements
but also “sought to induce him to forgo the Fifth Amendment privilege by threatening to
impose economic or other sanctions ‘capable of forcing the self-incrimination which the
Amendment forbids.’ ” (Murphy, supra, 465 U.S. at p. 434.) “A State may require a
probationer to appear and discuss matters that affect his probationary status; such a
requirement, without more, does not give rise to a self-executing privilege. The result
may be different if the questions put to the probationer, however relevant to his
probationary status, call for answers that would incriminate him in a pending or later
criminal prosecution. There is thus a substantial basis in our cases for concluding that if
the State, either expressly or by implication, asserts that invocation of the privilege would
lead to revocation of probation, it would have created the classic penalty situation, the
failure to assert the privilege would be excused, and the probationer’s answers would be
deemed compelled and inadmissible in a criminal prosecution.” (Id. at p. 435.) Yet even
in the “classic penalty situation,” the probationer’s compelled statements would still be
admissible in a probation revocation hearing, as that is not a criminal proceeding and the
Fifth Amendment is therefore inapplicable. (Ibid., & fn. 7.) Murphy’s statements did not
fall within the penalty exception. “On its face, Murphy’s probation condition 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.) Hence, his statements to the probation officer were admissible against
him in a criminal prosecution.
In Maldonado v. Superior Court (2012) 53 Cal.4th 1112 (Maldonado),
the California Supreme Court rejected the defendant’s claim that the Fifth Amendment
provided “a guarantee against officially compelled disclosure of potentially
self-incriminating information.” (Id. at p. 1127.) The Maldonado court based its holding
on the rule that the Fifth Amendment applies only to use of a defendant’s incriminating

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4
statements; the Fifth Amendment does not bar the government from compelling those
statements. “[T]he Fifth Amendment does not provide a privilege against the compelled
‘disclosure’ of self-incriminating materials or information, but only precludes the use of
such evidence in a criminal prosecution against the person from whom it was compelled.”
(Id. at p. 1134.) “[T]he Fifth Amendment privilege against self-incrimination does not
target the mere compelled disclosure of privileged information, but the ultimate use of
any such disclosure in aid of a criminal prosecution against the person from whom such
information was elicited.” (Id. at p. 1137.)
The California Supreme Court’s decision in Maldonado relied on the United
States Supreme Court’s decision in Chavez v. Martinez (2003) 538 U.S. 760 (Chavez).
Chavez was a civil action involving qualified immunity in which the issue was whether a
police officer who allegedly compelled statements from the plaintiff could be held liable
for violating the plaintiff’s civil rights. The plaintiff claimed that the police officer had
violated the Fifth Amendment. The United States Supreme Court produced a plurality
opinion and multiple separate opinions rejecting the plaintiff’s theory. Justice Thomas
wrote the lead opinion. In a section of his opinion joined by three other justices,
Justice Thomas stated that compelled statements “of course may not be used against a
defendant at trial, [citation], but it is not until their use in a criminal case that a violation
of the Self-Incrimination Clause occurs.” (Id. at p. 767.) “[M]ere coercion does not
violate the text of the Self-Incrimination Clause absent use of the compelled statements in
a criminal case against the witness.” (Id. at p. 769.) Writing separately, Justice Souter
acknowledged that it would be “well outside the core of Fifth Amendment protection” to
find that “questioning alone” was a “completed violation” of the Fifth Amendment and
declined to extend the Fifth Amendment to such a claim. (Id. at p. 777.) Thus, in
Chavez, five justices held that the Fifth Amendment is not violated by the extraction of
compelled statements.

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5
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.) In short, 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, supra, 538 U.S. at p. 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, I believe that we are bound by Maldonado and Chavez (see Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and they hold that the mere
extraction of compelled statements does not violate the Fifth Amendment. Since the
challenged probation condition does not purport to authorize the use of any statements
against defendant in a criminal proceeding, it does not violate the Fifth Amendment.
Simply put, 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.
As to the waiver of the psychotherapist-patient privilege, in the Sex Offender
Punishment Control and Containment Act of 2006 (§ 290.03), the “Legislature [found]
and declare[d] that a comprehensive system of risk assessment, supervision, monitoring
and containment for registered sex offenders residing in California communities is

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6
necessary to enhance public safety and reduce the risk of recidivism posed by [sex]
offenders.” (§ 290.03, subd. (a).)
Accordingly, the Legislature amended section 1203.067 to provide a collaborative
approach to sex offender management known as the “Containment Model.” As the
analysis of Assembly Bill 1844 explains, “The Containment Model calls for a
collaborative effort of sex offender specific treatment providers, law enforcement
supervising agents such as probation officers or parole agents, polygraphists providing
specialized testing as both a treatment and monitoring tool and victim advocacy
participants whenever possible. The offender is supervised and overseen within this
context.” (Sen. Com. on Public Safety, Bill Analysis of Assem. Bill No. 1844
(2009-2010 Reg. Sess.) June 29, 2010, available on line at
<http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1801-1850/ab_1844_cfa_20100628_1
41315_sen_comm.html>.)
As of July 1, 2012, the Containment Model is mandatory. (§§ 290.09, 1203.067,
3008 & 9003.)
The Legislature has explained that the purpose of the waiver of the
psychotherapist-patient privilege is to “enable communication between the sex offender
management professional and supervising probation officer.” (§ 1203.067, subd. (b)(4).)
Such a waiver supports the compelling state interest in “enhanc[ing] public safety and
reduc[ing] the risk of recidivism posed by [sex] offenders.” (§ 290.03, subd. (a).)
Since the Containment Model calls for a collaborative effort of sex offender
specific treatment providers, which includes polygraphists providing specialized testing
as both a treatment and monitoring tool, limiting disclosures to the probation officer
would effectively eliminate such a treatment and monitoring tool. The substance of the
psychotherapist-patient communications may require verification or investigation by the
polygraphists.

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7
Simply put, for the Containment Model of sex offender management to be
effective, there must be open and ongoing communication between all professionals
responsible for supervising, assessing, evaluating, treating, supporting, and monitoring
sex offenders. The absence of open and ongoing communication between these
professionals and other involved persons, could effectively compromise the purpose of
the containment team approach and as a result jeopardize the safety of the community.
Accordingly, I would not construe the waiver of the psychotherapist-patient waiver as
narrowly as does the majority.

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ELIA, J.

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