P. v. Marko

Filed 8/16/17 P. v. Marko 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
PAUL MARKO,
Defendant and Appellant.
H043118
(Santa Clara County
Super. Ct. No. C1502747)
Defendant Paul Marko pleaded no contest to various drug-related offenses and
was granted probation. He now challenges some of the conditions of his probation,
specifically those which: (1) require him to submit to warrantless searches of his
social media accounts and provide the necessary passwords to access those accounts;
(2) preclude him from entering social networking sites absent approval by a probation
officer; (3) preclude him from knowingly accessing the Internet without first notifying
the probation department; (4) preclude him from knowingly possessing or using any data
encryption programs; and (5) require that he maintain at least the past four weeks of his
Internet browsing history.
Marko raises the following arguments on appeal: (1) two of the probation
conditions imposed are unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent);
(2) all of the challenged conditions are unconstitutionally overbroad as they infringe on
his right to privacy, freedom of expression and freedom of association; (3) four of the

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challenged conditions are unconstitutionally vague; and (4) two of the conditions, when
read in conjunction, violate Marko’s Fifth Amendment right against self-incrimination.
We find no merit in any of Marko’s arguments and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint, plea and sentencing
Marko was charged by complaint filed on January 29, 2015, with felony
transportation of oxycodone (Health & Saf. Code, § 11352, subd. (a), count 1), felony
possession of oxycodone for sale (id., § 11351, count 2), misdemeanor possession of
methamphetamine (id., § 11377, subd. (a), count 3), and misdemeanor possession of drug
paraphernalia (id., § 11364, count 4). He subsequently pleaded no contest to all charges.
Prior to sentencing, defense counsel submitted written objections to several of the
probation conditions set forth in the probation department’s waived referral
memorandum. The People filed an opposition to those objections. On December 14,
2015, the trial court placed Marko on probation and imposed, among other conditions, the
following conditions of probation:1
“[6.] You shall submit your person, place of residence, vehicle, cell phone, [and]
any other electronic communication equipment to search and/or seizure by any peace
officer without a warrant.
“[7, 15, 16.] The defendant shall submit all electronic devices under his control
including but not limited to cell phones, laptop computers, notepads or desktop
computers, to search of any text message, voicemail message, call logs, photographs,
email accounts and social media accounts including but not limited to Facebook,
Instagram, and MocoSpace, with or without a search warrant at any time, both day and
1 Set forth below are the challenged conditions as recited by the trial court, which
vary from those contained in the probation department’s written memorandum. We
retained the original numbering, but note where the trial court combined three conditions
into one as well as where substantive modifications were made.

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night, and provide the probation officer or peace officer with any passwords necessary to
access the information specified.[2]
“[12.] You shall not knowingly enter any social network site nor post any ads,
either electronic or written, unless approved of by the probation officer. . . . [¶] . . . [¶]
“[13.] You shall not knowingly access the [I]nternet or any other online service
through use of [a] computer or other electronic device at any location including your
place of employment without prior notification of the probation department.[3] . . .
[¶] . . . The defendant shall not knowingly possess or use any data encryption technique
or programs.
“[14.] [The defendant] shall not [knowingly] clean or delete [I]nternet browsing
activity and must keep a minimum of at least four weeks of . . . history on all your
electronic devices.[4]”
B. Relevant factual background5
On January 13, 2015, Santa Clara Police Officer Eric Janssen was investigating
narcotics crimes when he came across two postings on Craigslist, one entitled “Roxy
relief no waiting” and the other entitled “Hand full of my Roxy blues (tickets) - $30.”
Janssen knew that Craigslist was often used by narcotics dealers to sell drugs and he also
knew that “Roxy” was a common euphemism for oxycodone or oxycontin. Despite the
different titles, the text of each post was identical: “I have tickets for the Roxy theater.
2 This condition is a combination of conditions Nos. 7, 15, and 16 from the
probation memorandum. We shall refer to it henceforth as “condition No. 7.”
3 The written version of this condition would have required Marko to obtain the
probation department’s prior “approval,” but the trial court modified the condition by
substituting “notification” for “approval.”
4 The trial court added the word “knowingly” to this condition, thereby inserting a
scienter requirement.
5 By order dated February 2, 2016, we granted Marko’s request to augment the
record to include the police report, which details the facts of the underlying offenses.
Because Marko pleaded no contest before a preliminary hearing or trial, we derive the
facts from this report.

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Blues music in the 30/V or the K9 section (show times vary). I ONLY take orders 2+
and I DO NOT deliver or meet outside of my local area. Please email with serious
inquiries and/or orders. $30 per ticket and non-negotiable. My business is legit, safe,
fast, and easy. For faster service you can text only no calls at [phone number] A215,
Mbox, K9 V4812, Roxycodone.” Janssen searched law enforcement databases and
determined the phone number listed in the ads was a voice over Internet phone number
which was associated with a cell phone application, Pinger.com.6
Janssen used the listed phone number, indicating he was interested in “trying to
get some blue 30$.” He eventually arranged to meet with the seller on January 16, 2015,
at a convenience store on Winchester Boulevard to purchase 10 oxycodone pills for $275.
The seller informed Janssen that he would be in a silver Jeep.
When officers arrived, they observed Marko sitting in the driver seat of a silver
Jeep backed into a space in the convenience store’s parking lot. As the officers watched,
a woman parked next to Marko’s vehicle and spoke with him briefly before entering the
store. When officers detained Marko shortly thereafter, he was carrying a baggie with
10 oxycodone pills. Following his arrest, police searched Marko’s vehicle and found
two more oxycodone pills, some methamphetamine, a methamphetamine pipe,
26 unidentified white pills in a prescription pill bottle, along with a mason jar containing
12.6 grams of marijuana. Marko admitted to officers he was a drug dealer and that he
had arranged to sell 10 oxycodone pills to Janssen.
Officers also arrested the woman they had observed interacting with Marko in the
parking lot. She admitted that she purchased two oxycontin pills from Marko two weeks
earlier after seeing his Craigslist ads. On the day of her arrest, she had also arranged to
meet with Marko to purchase two more oxycontin pills from him.
6 Per the police report, Pinger.com supports both text messaging and voice calls.

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II. DISCUSSION
A. The challenged conditions are not unreasonable
Marko argues that two of the probation conditions imposed, specifically
conditions Nos. 7 and 13, are unreasonable under Lent, supra, 15 Cal.3d 481. As to
condition No. 7, he claims that there is no evidence that photographs were involved in the
underlying offense and therefore allowing probation officers or peace officers access to
photographs on his electronic devices is unreasonable. Condition No. 13 is unreasonable,
Marko contends, because there is no evidence he knowingly used data encryption when
posting on Craigslist or using Pinger.com to exchange text messages or voice calls.
1. Standard of review and applicable legal standards
“In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety . . . .” (People v. Carbajal (1995) 10 Cal.4th
1114, 1120.) This broad discretion, however, “is not without limits.” (Id. at p. 1121.) A
condition of probation is generally “invalid [if] it ‘(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.’ ” (Lent, supra, 15 Cal.3d at p. 486.) “This test is conjunctive—all three
prongs must be satisfied before a reviewing court will invalidate a probation term.”
(People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We review the imposition of
probation conditions for abuse of discretion. (Ibid.)
2. Analysis
Turning to the first prong of the Lent test, i.e., whether the probation condition has
any relationship to the offense, we disagree that allowing a probation officer or a peace
officer to search the library of photographs on Marko’s electronic devices is
unreasonable.
Marko’s argument conflates reasonableness under Lent with the degree to which a
probation condition burdens a constitutional right. As stated in a recent case involving a

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similar probation condition imposed on a juvenile, “It may well be that a probation
condition requiring a minor to forward all electronic communications to the probation
officer or to wear a body camera would be unreasonable under Lent, . . . but it would be
so because of the burden it imposed on the minor—not because it invaded the minor’s
privacy (a constitutional concern better addressed by the overbreadth doctrine), and
certainly not because it lacked a connection to preventing future criminality.” (In re P.O.
(2016) 246 Cal.App.4th 288, 296 (P.O.).)
More recent cases have differed in their treatment of probation conditions like the
electronic search conditions here. Marko cites In re Erica R. (2015) 240 Cal.App.4th 907
(Erica R.) in which the Court of Appeal declined to read Olguin as sanctioning the
imposition of electronic search conditions without evidence the probationer is likely to
use his or her electronic devices or social media for proscribed activities. Because there
was no evidence in the record connecting the minor’s conviction for drug possession with
her use of electronic devices, the court in Erica R., rejected the juvenile court’s
justification that “ ‘many juveniles, many minors, who are involved in drugs tend to post
information about themselves and drug usage.’ ” (Id. at p. 913.) The court explained that
“ ‘[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous
connection to future criminal conduct can be considered reasonable.’ ” (Ibid.)
The California Supreme Court has granted review in a case that followed the
reasoning in Erica R. (In re Mark C. (2016) 244 Cal.App.4th 520, 535, rev. granted
Apr. 13, 2016, S232849.) Several other cases involving electronic search conditions and
juvenile defendants are also under review. At least three of these found that electronic
search conditions, while not unreasonable under Lent, were unconstitutionally overbroad
(In re Alejandro R. (2015) 243 Cal.App.4th 556, rev. granted Mar. 9, 2016, S232240;
In re Patrick F. (2015) 242 Cal.App.4th 104, rev. granted Feb. 17, 2016, S231428; In re
Ricardo P. (2015) 241 Cal.App.4th 676, rev. granted Feb. 17, 2016, S230923), and
another found the electronic search condition was neither unreasonable under Lent nor

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overbroad in light of extensive challenges the minor faced in complying with probation
and avoiding re-offense. (In re A.S. (2016) 245 Cal.App.4th 758, rev. granted May 25,
2016, S233932.) Pending guidance from the California Supreme Court on these issues,
we will address the matter before us.
Since Marko used an electronic device to arrange the sale of drugs he advertised
on a Web site, it was reasonable for the trial court to give the probation officer the ability
to ensure that Marko was not violating his probation by arranging drug sales, by any
means, on his electronic devices—whether a cell phone, computer, or tablet. (Cf. Erica
R., supra, 240 Cal.App.4th at pp. 913-915 [electronics search condition unreasonable
where minor committed misdemeanor possession of Ecstasy; there was no indication that
she was involved in sales of drugs or that she had ever used an electronic device].)
Although there was no evidence Marko had used photographs from his cell phone to
engage in drug deals, he could readily do so in the future. Since Marko used a cell phone
and the Internet to conduct drug deals, it was permissible for the trial court to impose a
more “wide-ranging” (People v. Moran (2016) 1 Cal.5th 398, 404) electronics search
condition, “for conditions of probation aimed at rehabilitating the offender need not be so
strictly tied to the offender’s precise crime.” (Id. at pp. 404-405.)
Reasonableness under the third prong of the Lent test exists when a probation
condition “enables a probation officer to supervise his or her charges effectively . . .”
(Olguin, supra, 45 Cal.4th at pp. 380-381), even if the condition “has no relationship to
the crime of which a defendant was convicted.” (Id. at p. 380.) Probation search
conditions are also intended “ ‘to deter the commission of crimes and to protect the
public, and the effectiveness of the deterrent is enhanced by the potential for random
searches.’ ” (People v. Ramos (2004) 34 Cal.4th 494, 506.)
In P.O., the offense was public intoxication, and the court found that enabling
supervision of the minor’s online activity was reasonably related to monitoring her
sobriety. (P.O., supra, 246 Cal.App.4th at p. 295.) In People v. Ebertowski (2014) 228

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Cal.App.4th 1170, 1177 (Ebertowski), the defendant’s offense was gang related and this
court found that monitoring the defendant’s gang associations and activity was
reasonably related to his future criminality risk.
So too here, the electronic search conditions’ effectiveness as it relates to future
criminality is the potential to monitor Marko’s electronic activity and communications,
including photographs stored on or accessible via his electronic devices, through the use
of those devices and social media. (See also People v. Lopez (1998) 66 Cal.App.4th 615,
626 [gang condition could be imposed on a defendant with a gang affiliation as “an
essential element of any probationary effort at rehabilitation because it would insulate
him from a source of temptation to continue” criminal pursuits]; In re George F. (2016)
248 Cal.App.4th 734, 741 [“wisdom in Olguin, . . . is that effective supervision of a
probationer deters, and is therefore related to, future criminality”].)
Based on Marko’s drug offense—which involved his use of the Internet and a cell
phone application—to arrange drug sales, it was sensible for the court to conclude that
imposing a probation condition requiring him to turn over his electronic devices and
passwords was reasonably related to future criminality. Allowing the probation officer to
access this information will facilitate Marko’s supervision and can deter future
criminality by ensuring that he does not attempt to resume selling drugs via Craigslist or
other Internet sites. Accordingly, the trial court did not abuse its discretion in imposing
the electronic search conditions.
B. The probation conditions are not unconstitutionally overbroad
Marko challenges conditions Nos. 6 and 7 as overbroad as they improperly
infringe on his privacy rights. He further argues that conditions Nos. 7, 12, 13 and 14
infringe on his right to be free from unreasonable searches and seizures.
1. Standard of review and applicable law
“[P]robation is a privilege and not a right, and . . . adult probationers, in preference
to incarceration, validly may consent to limitations upon their constitutional rights—as,

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for example, when they agree to warrantless search conditions.” (Olguin, supra, 45
Cal.4th at p. 384.) “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. (2007) 40
Cal.4th 875, 890 (Sheena K.).) “The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the burden it
imposes on the defendant’s constitutional rights . . . .” (In re E.O. (2010) 188
Cal.App.4th 1149, 1153.) We review de novo the constitutional challenge to the
probation conditions. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
2. Analysis
In Ebertowski, supra, 228 Cal.App.4th 1170, we upheld electronic search
conditions similar to conditions Nos. 6 and 7 against an overbreadth challenge. The
conditions at issue in Ebertowski provided: “ ‘1. The defendant shall provide all
passwords to any electronic devices (including cellular phones, computers or notepads)
within his or her custody or control and shall submit said devices to search at anytime
[sic] without a warrant by any peace officer. [¶] 2. The defendant shall provide all
passwords to any social media sites (including Facebook, Instagram and Mocospace) and
shall submit said sites to search at anytime [sic] without a warrant by any peace
officer.’ ” (Id. at p. 1173.) In upholding these conditions, we noted, “Access to all of
defendant’s devices and social media accounts is the only way to see if defendant is
ridding himself of his gang associations and activities, as required by the terms of his
probation, or is continuing those associations and activities, in violation of his probation.”
(Id. at p. 1175.) Consequently, “[t]he minimal invasion of his privacy that is involved in
the probation officer monitoring defendant’s use of his devices and his social media
accounts while defendant is on probation is outweighed by the state’s interest in
protecting the public from a dangerous criminal who has been granted the privilege of
probation.” (Id. at p. 1176.)

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Marko’s reliance on this court’s decision in People v. Appleton (2016) 245
Cal.App.4th 717 is misplaced. In Appleton, the trial court imposed a broad electronic
devices search condition even though the defendant’s crime of false imprisonment had
only a tenuous connection to the defendant’s use of electronic devices (he met the minor
victim through social media some months before the imprisonment). (Id. at pp. 719-720,
728-729.) Under those circumstances, it was appropriate to require the trial court to craft
a narrower condition, i.e., requiring that the defendant submit his social media accounts
and passwords for monitoring, or require that the defendant obtain approval from his
probation officer before using social media sites and phone applications. (Id. at p. 727.)
In this case, however, Marko used electronic devices, including his cell phone and
the Internet, to advertise and arrange for selling drugs. In the context of this case, broad
access to Marko’s electronic devices is essential to monitor his progress on probation and
to ensure that he is not continuing to engage in the sort of criminal conduct that led to
him being put on probation. Marko’s suggestion that the electronic search condition be
narrowed to only permit the search of specified e-mail accounts, Web sites, and social
media accounts, utterly ignores the ease with which he could create new sub rosa e-mail,
social media or Web site accounts, and resume his drug trade.
We now turn to Marko’s challenge to conditions Nos. 7, 12, 13 and 14 as being
unconstitutionally overbroad.
This court, in People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), rejected a
defendant’s overbreadth challenge to similar probation conditions. The conditions at
issue in that case provided: “ ‘You’re not to enter any social networking sites, nor post
any ads, either electronic or written, unless approved by probation officer [sic]. [¶]
You’re to report all personal e-mail addresses used and shall report Web sites and
passwords to the probation officer within five days. [¶] . . . [¶] You are not to have
access to the Internet or any other on-line service through use of your computer or
other electronic device at any location without prior approval of the probation officer.

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And shall not possess or use any data encryption technique program.’ ” (Id. at p. 1344.)
In determining that these conditions were not unconstitutionally overbroad, we noted that
they did not impose “a blanket prohibition[, but instead] clearly grant[] defendant the
ability to access the Internet on his computer and other electronic devices so long as he
obtains prior permission from his [probation] officer.” (Id. at p. 1350.)
Here too, the probation conditions do not impose a blanket prohibition on Marko
using social media, the Internet, or electronic devices. Marko is only required to obtain
his probation officer’s prior approval if he wants to use social media or post online
advertisements. His other knowing use of the Internet—not involving the use of social
media or online advertising—is subject only to the requirement that he notify his
probation officer of that usage. In that respect, condition No. 13 is less restrictive than
the comparable condition in Pirali, which precluded the defendant from accessing the
Internet at all without prior approval of a probation officer.
We also disagree that the prohibition against the knowing use of data encryption
would substantially infringe on his constitutional rights because e-mail accounts,
electronic banking, cell phones, and many other electronic devices utilize some degree of
encryption. The condition’s scienter requirement serves to restrict its scope to the use of
data encryption programs by Marko to conceal his illegal activities, not to preclude him
from checking his bank balance or medical test results online. The incidental data
encryption employed when sending a text, e-mail, or accessing online portals for
finances, health care and the like, is entirely different from knowingly using data
encryption to forestall law enforcement from effectively searching an electronic device or
digital media. As such, there is no constitutional overbreadth with regards to these
probation conditions.
C. The challenged conditions are not unconstitutionally vague
Marko next argues that condition No. 7, which requires him to submit all
electronic devices under his control to warrantless search, condition No. 12, which

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requires him to not knowingly enter any social networking sites without the approval of
his probation officer, and condition No. 13, which requires him to notify his probation
officer when he knowingly accesses the Internet, are unconstitutionally vague. We
disagree.
1. Standard of review and applicable legal standards
The court reviews a facial constitutional challenge to a probation condition de
novo. (Sheena K., supra, 40 Cal.4th at pp. 880-889; In re Shaun R., supra, 188
Cal.App.4th at p. 1143.) “Whether a term of probation is unconstitutionally vague or
overbroad presents a question of law” which is reviewed de novo. (People v. Martinez
(2014) 226 Cal.App.4th 759, 765.)
“A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] 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.” (Sheena K., supra, 40 Cal.4th at p. 890.) “In deciding
the adequacy of any notice afforded those bound by a legal restriction, we are guided by
the principles that ‘abstract legal commands must be applied in a specific context,’ and
that, although not admitting of ‘mathematical certainty,’ the language used must have
‘ “reasonable specificity.” ’ ” (Ibid.)
2. Analysis
Marko cites People v. Navarro (2016) 244 Cal.App.4th 1294 in support of his
vagueness argument, but the condition at issue in that case is entirely dissimilar from
those imposed here. In Navarro, the parole condition read, as follows: “ ‘You shall not
use an electronic bulletin board system, [I]nternet relay chat channel, instant messaging,
newsgroup, usergroup, peer to peer; i.e., Napster, Gnutella, Freenet, etc. . . . This would
include any site-base; i.e., Hotmail, Gmail, or Yahoo e-mail, etc., which allows the user

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to have the ability to surf the [I]nternet undetected.’ ” (Id. at p. 1301.) The Court of
Appeal held this condition was unconstitutionally vague because it was imprecise. (Id. at
p. 1302.) Under its terms, it could be read to preclude the defendant from using e-mail
entirely, or perhaps it only precluded the defendant from using the Internet “undetected,”
or it could be read to prohibit the defendant from using the Internet to interact with others
anonymously. (Id. at p. 1301.)
In this case, the probation conditions imposed are not imprecise. Furthermore,
Marko’s conduct underlying his conviction provides the necessary context to determine
what is proscribed and what is permitted under the conditions. Marko has, through the
conduct which led to his arrest and conviction, demonstrated a sufficient level of
proficiency with electronic devices and the Internet to understand what conduct is
prohibited. The conditions at issue here preclude Marko from knowingly accessing
social media sites, including Facebook, Twitter, and Mocospace, without approval from
probation and preclude Marko from knowingly using data encryption. These conditions,
when read in conjunction with the electronic search condition, make clear that the intent
is to prevent Marko from using electronic devices and the Internet to sell drugs as well as
making it more difficult for him to hide any such illicit activity from law enforcement.
D. No Fifth Amendment violation
Finally, Marko raises Fifth Amendment claims relating to the requirement that he
provide passwords to his e-mail and social media accounts (condition No. 7), as well as
the requirements regarding Internet browsing data and his browsing history. We disagree
that these conditions violate his Fifth Amendment right against self-incrimination.
“Constitutional issues are reviewed de novo.” (In re J.H. (2007) 158 Cal.App.4th
174, 183.) Thus the court reviews appellant’s Fifth Amendment challenge to his
probation conditions de novo. (Sheena K., supra, 40 Cal.4th at pp. 880-889; In re Shaun
R., supra, 188 Cal.App.4th at p. 1143.)

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“The Fifth Amendment to the United States Constitution states that ‘[n]o
person . . . shall be compelled in any criminal case to be a witness against himself . . . .’
The high court has made clear that the meaning of this language cannot be divorced from
the historical practices at which it was aimed, namely, the brutal inquisitorial methods of
‘ “putting the accused upon his oath and compelling him to answer questions designed to
uncover uncharged offenses, without evidence from another source.” ’ [Citations.] . . .
[T]he amendment prohibits the direct or derivative criminal use against an individual of
‘testimonial’ communications of an incriminatory nature, obtained from the person under
official compulsion.” (People v. Low (2010) 49 Cal.4th 372, 389-390.)
The search of Marko’s electronic devices, utilizing the passwords to e-mail and
social media accounts, along with the requirements imposed relating to his Internet
browsing history, do not implicate his Fifth Amendment rights. It is a “settled
proposition that a person may be required to produce specific documents even though
they contain incriminating assertions of fact or belief because the creation of those
documents was not ‘compelled’ within the meaning of the privilege [against
self-incrimination].” (United States v. Hubbell (2000) 530 U.S. 27, 35-36.)
Moreover, even if requiring Marko to provide his passwords and maintain his
Internet browsing history constitute “compelled testimonial communications” (Fisher v.
United States (1976) 425 U.S. 391, 409), the conditions in and of themselves do not
violate Marko’s Fifth Amendment right against self-incrimination because they do not
authorize the use of any compelled statements in a criminal proceeding. In Maldonado v.
Superior Court (2012) 53 Cal.4th 1112, 1127, the California Supreme Court explained,
“[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.)

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A probationer has no right to be free of self-incrimination in a probation
revocation proceeding and any compelled statements would be admissible in that
instance. (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7 [“Although a revocation
proceeding must comport with the requirements of due process, it is not a criminal
proceeding. [Citations.] Just as there is no right to a jury trial before probation may be
revoked, neither is the privilege against compelled self-incrimination available to a
probationer.”].) Since the probation conditions do not purport to authorize the use of any
compelled testimonial communications against Marko in a criminal proceeding, they do
not violate the Fifth Amendment.
III. DISPOSITION
The order granting probation is affirmed.

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Premo, Acting P.J.
WE CONCUR:
Elia, J.
Grover, J.
People v. Marko
H043118

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