P. v. Henriquez

Filed 9/19/17 P. v. Henriquez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
KEVIN ANDREW HENRIQUEZ,
Defendant and Appellant.
H041840
(Santa Clara County
Super. Ct. No. C1351219)
I. INTRODUCTION
Defendant Kevin Andrew Henriquez was convicted by plea of three counts of
lewd conduct upon a child under 14 (Pen. Code, § 288, subd. (a))1 and one count of
contacting or communicating with a minor with the intent to commit a sex offense
(§ 288.3, subd. (a)). The trial court suspended imposition of sentence and placed
defendant on probation. After defendant indicated his objection to some of the probation
conditions, the court stayed most of the conditions and scheduled the matter for a further
hearing. In a subsequent October 30, 2014 hearing, the court rejected defendant’s
objections and imposed the probation conditions that had previously been stayed.
On appeal, defendant challenges probation conditions that (a) require waiver of the
privilege against self-incrimination, participation in polygraph examinations, and waiver
1 All further statutory references are to the Penal Code.

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of the psychotherapist-patient privilege as part of his participation in a sex offender
management program, and that (b) subject his electronic devices to a search.
For reasons that we will explain, we will affirm the October 30, 2014 order.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant met the victim online through a chat room and they later communicated
through Facebook.2 They met in person in December 2009, when defendant was 20 years
old and the victim was 12 years old, and had sexual intercourse during this first
encounter. They continued to communicate through Facebook. In those
communications, defendant used an alias and on numerous occasions indicated that he
wanted to meet to have sex with the victim. Over the course of more than a year, they
had sex about 15 times.
A. The Complaint and the Pleas
In March 2013, defendant was charged by complaint with three counts of lewd
conduct upon a child under 14 (§ 288, subd. (a); counts 1-3) and one count of contacting
or communicating with a minor with the intent to commit a sex offense (§ 288.3,
subd. (a); count 4). In November 2013, defendant pleaded no contest to all four counts
after the trial court gave an indicated sentence range of probation to three years in prison.
B. The Sentencing
On October 16, 2014, the trial court suspended imposition of sentence and placed
defendant on probation for three years with various terms and conditions, including that
he serve 12 months in county jail. He was ordered to register as a sex offender pursuant
to section 290. Other probation conditions included the following.
The trial court ordered defendant to complete an approved sex offender
management program pursuant to section 1203.067, subdivision (b)(2). He was also
2 As defendant was convicted by plea, the facts of his offenses are taken from the
probation officer’s report.

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ordered to waive any privilege against self-incrimination and participate in polygraph
examinations as part of the sex offender management program pursuant to
section 1203.067, subdivision (b)(3). Defendant was further ordered to waive any
psychotherapist-patient privilege to enable communication between the sex offender
management professional and the probation officer pursuant to section 1203.067,
subdivision (b)(4).
The trial court also ordered that defendant’s “computer and all other electronic
devices, including but not limited to cellular telephones, laptop computers or notepad
shall be subject to forensic analysis search.” Defendant was further ordered not to enter
any social networking sites or post any ads, either electronic or written, unless approved
by the probation officer. He was also ordered to report all personal e-mail addresses and
websites with passwords to the probation officer within five days. The court further
ordered defendant to keep a minimum of four weeks of Internet browsing history.
Defendant indicated that he objected to some of the conditions. The trial court
stayed the conditions of probation other than the county jail sentence and scheduled the
matter for a further hearing.
In late October 2014, defendant filed written objections to the probation
conditions. Relevant here, he objected to the probation conditions regarding the sex
offender management program, which required (a) waiver of the privilege against self-
incrimination, (b) participation in polygraph examinations, and (c) waiver of the
psychotherapist-patient privilege, as unreasonable and unconstitutional. He also objected
to the electronics search condition on the grounds that it violated his right to privacy and
was unconstitutionally overbroad, but he did not provide any argument in support of
these objections. The prosecution filed written opposition.
On October 30, 2014, a hearing was held on defendant’s objections to the
probation conditions. The trial court rejected defendant’s objections and imposed the
probation conditions that had previously been stayed.

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III. DISCUSSION
A. Sex Offender Management Conditions
In his opening brief on appeal, defendant contends that the probation condition
requiring him to waive his privilege against self-incrimination and to participate in
polygraph examinations (see § 1203.067, subd. (b)(3)) is unconstitutionally overbroad
and violates the Fifth Amendment. He also contends that the probation condition
requiring waiver of the psychotherapist-patient privilege (see § 1203.067, subd. (b)(4))
is unconstitutionally overbroad and violates his right to privacy.
Our Supreme Court recently rejected similar challenges to the probation
conditions required by section 1203.067, subdivisions (b)(3) and (b)(4). (People v.
Garcia (2017) 2 Cal.5th 792 (Garcia).) In Garcia, the section 1203.067,
subdivision (b)(3) probation condition required the defendant to “ ‘waive any privilege
against self-incrimination and participate in polygraph examinations, which shall be
part of the sex offender management program’ ” (Garcia, supra, at p. 799) and the
section 1203.067, subdivision (b)(4) condition required the defendant to “ ‘waive any
psychotherapist-patient privilege to enable communication between the sex offender
management professional and the Probation Officer’ ” (Garcia, supra, at p. 799).
As to the probation condition requiring waiver of any privilege against self-
incrimination and requiring participation in polygraph examinations as part of the sex
offender management program, the California Supreme Court rejected the defendant’s
claim that the condition required him to waive his Fifth Amendment privilege. (Garcia,
supra, 2 Cal.5th at pp. 802-803.) The court construed the condition as requiring
probationers to “answer all questions posed by the containment team fully and truthfully,
with the knowledge that these compelled responses could not be used against them in a
subsequent criminal proceeding.” (Id. at p. 803.) The court explained that, so construed,
the condition did not violate the probationer’s Fifth Amendment rights, since “the Fifth
Amendment does not establish a privilege against the compelled disclosure of

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information; rather, it ‘precludes the use of such evidence in a criminal prosecution
against the person from whom it was compelled.’ [Citation.]” (Garcia, supra, at p. 807.)
The California Supreme Court also rejected the defendant’s claim that the
probation condition was overbroad because the scope of the required polygraph
examinations was “not limited to prior or potential sex offenses but would permit a
polygraph examiner to ask ‘anything at all, without limitation.’ ” (Garcia, supra, 2
Cal.5th at p. 809.) The court explained that the condition was “expressly linked to the
purposes and needs of the sex offender management program” and thus was “limited to
that which is reasonably necessary to promote the goals of probation,” i.e., “criminal
conduct related to the sex offender management program.” (Ibid.)
As to the probation condition requiring waiver of any psychotherapist-patient
privilege, the California Supreme Court found that the condition did not violate the
defendant’s right to privacy and that the condition was not unconstitutionally overbroad.
(Garcia, supra, 5 Cal.5th at pp. 809-813.) The court first addressed the privacy issue,
finding that the intrusion on the psychotherapist-patient privilege was “quite narrow,” in
that “a probationer’s confidential communications may be shared only with the probation
officer and the certified polygraph examiner.” (Id. at p. 810.) The court noted that “[t]he
waiver does not relieve the psychotherapist, probation officer, or polygraph examiner of
their duty to otherwise maintain the confidentiality of this information.” (Ibid.) With
respect to the overbreadth issue, the court similarly noted that “[t]he required waiver [of
the psychotherapist-patient privilege] extends only so far as is reasonably necessary to
enable the probation officer and polygraph examiner to understand the challenges
defendant presents and to measure the effectiveness of the treatment and monitoring
program. [Citation.]” (Id. at pp. 811-812.)
As defendant acknowledges in a supplemental letter brief, Garcia resolves his
challenges to the probation conditions requiring waiver of any privilege against self-
incrimination, participation in polygraph examinations, and waiver of any

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psychotherapist-patient privilege as part of the sex offender management program. As
defendant further acknowledges, we are bound by Garcia. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455; People v. Superior Court (Williams) (1992)
8 Cal.App.4th 688, 702-703.) We therefore decline to strike or modify these conditions.
B. Electronics Search Condition
As a condition of probation, the trial court ordered that defendant’s “computer and
all other electronic devices, including but not limited to cellular telephones, laptop
computers or notepad . . . be subject to forensic analysis search.”
On appeal, defendant contends that the electronics search condition violates his
right to privacy and is unconstitutionally overbroad. He argues that the condition is not
necessary because other conditions already “ban [him] from social networking.”
Defendant contends that the electronics search condition “forces him to surrender his
privacy rights in regards to matters that are not reasonably related to deterring criminal
behavior. The condition should be re-written to less restrictive with more relevant and
narrowly limited conditions.” He also contends that an overbreadth challenge may be
raised for the first time on appeal.
The Attorney General contends that the “breadth” of the electronics search
condition “is necessary for a probation officer to ensure that [defendant] is complying
with” the other conditions of probation which restrict his use of social networking sites,
require him to report e-mail addresses and websites with passwords within five days, and
require him to maintain a minimum of four weeks of Internet browsing history. The
Attorney General further contends that a “narrower” condition “would risk becoming
obsolete as technology changes.”
A defendant may raise for the first time on appeal a facial constitutional defect in a
probation condition, where the claim involves “ ‘ “pure questions of law that can be
resolved without reference to the particular sentencing record developed in the trial
court.” [Citation.]’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.); see also

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id. at p. 887.) “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. [Citation.]” (Id. at p. 890.)
“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—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.” (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.)
This court rejected an overbreadth argument in People v. Ebertowski (2014) 228
Cal.App.4th 1170, where the challenged probation conditions required the defendant to
(1) “ ‘provide all passwords to any electronic devices, including cell phones, computers
or notepads, within [the defendant’s] custody or control, and submit such devices to
search at any time without a warrant by any peace officer,’ ” and (2) “ ‘provide all
passwords to any social media sites, including Facebook, Instagram and Mocospace and
to submit those sites to search at any time without a warrant by any peace officer.’ ” (Id.
at p. 1172.) The defendant was a member of a criminal street gang who had promoted his
gang on social media. (Id. at p. 1175.) This court rejected the defendant’s claim that the
probation conditions were “not narrowly tailored to [its] purpose so as to limit [its]
impact on his constitutional rights to privacy, speech, and association.” (Id. at p. 1175.)
This court explained that the state’s interest in preventing the defendant from continuing
to associate with gangs and participate in gang activities, which was served by the
probation conditions, outweighed the minimal invasion of his privacy. (Id. at pp. 1175-
1176.)
In support of his overbreadth argument, defendant relies on Riley v. California
(2014) 573 U.S. __ [134 S.Ct. 2473] (Riley). In Riley, the United States Supreme Court
held that the warrantless search of a suspect’s cell phone implicated and violated the
suspect’s Fourth Amendment rights. (Riley, supra, at p. 2493.) In so holding, the court

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explained that modern cell phones, which may have the capacity to be used as mini-
computers, can potentially contain sensitive information about a number of areas of a
person’s life. (Id. at pp. 2488-2489.) The court emphasized, however, that its holding
was only that cell phone data is subject to Fourth Amendment protection, “not that the
information on a cell phone is immune from search.” (Riley, supra, at p. 2493.)
As Riley did not involve probation conditions, it is inapposite. Unlike the
defendant in Riley, who at the time of the search had not been convicted of a crime and
was still protected by the presumption of innocence, defendant is a probationer.
“Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute
liberty to which every citizen is entitled.” ’ [Citations.] Just as other punishments for
criminal convictions curtail an offender’s freedoms, a court granting probation may
impose reasonable conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens.” (United States v. Knights (2001) 534 U.S. 112, 119.)
Defendant also relies on United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173
(Lifshitz), in which the court considered a probation condition requiring the defendant to
consent to the installation of a monitoring system on his computer. (Id. at p. 177 &
fn. 3.) The appellate court found that the record contained “very little information . . .
about what kind of monitoring the probation condition authorizes” (id. at p. 190) and
indicated the condition might be overbroad depending on whether the monitoring
“focuses attention upon specific types of unauthorized materials,” or on “all activities
engaged in by the computer user” (id. at p. 191, fn. omitted). Since the Lifshitz court
could not determine whether the condition was overbroad, it remanded the case so the
district court could “evaluate the privacy implications of the proposed computer
monitoring techniques as well as their efficacy as compared with computer filtering.”
(Id. at p. 193.)
In this case, defendant was not required to consent to computer monitoring. He
also does not suggest how the probation condition imposed here could be more narrowly

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tailored but still serve the state’s interest in preventing him from contacting or
communicating with a minor with the intent to commit a sex offense. Although other
probation conditions restrict defendant’s usage of electronics devices, the condition
providing for the forensic search of his electronic devices is an important tool to ensure
his compliance with those other conditions and to otherwise ensure that he is not
contacting or attempting to contact minors in any fashion through his electronic devices.
Since defendant used an electronic device to contact or communicate with a minor with
the intent to commit a sex offense, where such contact or communication is itself an
offense, the probation condition requiring defendant’s electronic devices be subject to
forensic analysis search is closely tailored to the purposes of the condition in this case.
(See Sheena K., supra, 40 Cal.4th at p. 890.) The government’s interest in ensuring
defendant complies with the terms of his probation outweighs the intrusion on
defendant’s privacy rights. We therefore conclude that the electronics search condition is
not overbroad.3
IV. DISPOSITION
The October 30, 2014 order is affirmed.
3 The California Supreme Court has granted review in In re Ricardo P. (2015) 241
Cal.App.4th 676, review granted February 17, 2016, S230923, which involves the
propriety of a probation condition requiring a minor to submit to an electronics search
condition. Review has been granted in a number of other cases presenting similar issues,
with briefing deferred. (See, e.g., In re Patrick F. (2015) 242 Cal.App.4th 104, review
granted Feb. 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review
granted Mar. 9, 2016, S232240; In re A.S. (2016) 245 Cal.App.4th 758, review granted
May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12,
2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14,
2016, S238210; In re Q.R. (2017) 7 Cal.App.5th 1231, review granted April 12, 2017,
S240222.)

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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.

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