Filed 5/18/16 P. v Moore CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070205
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM026364)
                   v.

THOMAS MOORE,                                                                            OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Marc A.
Garcia, Judge.
         Shannon Chase, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         On April 10, 2013, defendant Thomas Moore pled no contest to one felony count
of possession or control of child pornography in violation of Penal Code section 311.11,
subdivision (a).1 The trial court suspended imposition of sentence and placed defendant
on probation for three years, subject to various terms and conditions, including no contact
with children.2 In August 2014, the probation department sought a modification of
defendant’s probation to add new conditions. After holding probation modification
hearings on August 22, 2014, and September 16, 2014, the trial court, in relevant part,
imposed compliance with section 1203.067, subdivision (b)(3), but stayed enforcement
pending an appeal of its constitutionality.
       On September 16, 2014, defendant filed a notice of appeal challenging two of his
probation conditions as facially unconstitutional. (§ 1237, subd. (a).) Defendant argues
section 1203.067, subdivision (b)(3), and the related mandatory polygraph consent form
violate the Fifth Amendment’s Self-Incrimination Clause, and the no contact condition is
unconstitutionally vague.
       For the reasons discussed below, we find the provisions in section 1203.067,
subdivision (b)(3), and the polygraph consent form waiving the privilege against self-
incrimination are unconstitutional under the Fifth Amendment, and defendant’s challenge
to the no contact condition is untimely.
                                           DISCUSSION
I.     Constitutionality of Required Waiver of Privilege Against Self-Incrimination
       A.     Background
       Courts have long recognized that “[p]robation is ‘an act of clemency and grace’
[citation], not a matter of right.” (People v. Anderson (2010) 50 Cal.4th 19, 32.) A
primary goal underlying conditions of probation is ensuring public safety (§ 1202.7), and
as a class, sex offenders are recognized as dangerous and at high risk of recidivism.
(People v. Mosley (2015) 60 Cal.4th 1044, 1068; see generally Smith v. Doe (2003) 538


1      All other references are to the Penal Code unless otherwise noted.
2      Referred to hereinafter as no contact condition.


                                              2.
U.S. 84, 103.) Effective September 9, 2010, Assembly Bill No. 1844, the Chelsea King
Child Predator Prevention Act of 2010, was passed. In relevant part, the bill added
probation conditions that were similar to parole restrictions and required participation in a
sex offender management program as part of “a ‘Containment Approach’ or
‘Containment Model’ program for sex offenders,” with a program goal of reducing
recidivism. (Sen. Appropriations Com., Analysis of Assem. Bill 1844 (2009-2010 Reg.
Sess.) Aug. 12, 2010, p. 5.) As part of this program, the bill amended section 1203.067
to add subdivision (b)(3), which requires “[w]aiver of any privilege against self-
incrimination and participation in polygraph examinations, which shall be part of the sex
offender management program.” (§ 1203.067, subd. (b)(3).)
       Defendant’s conviction for possession or control of child pornography subjects
him to mandatory registration under section 290, subdivisions (b) and (c), the Sex
Offender Registration Act, and in turn, section 1203.067, subdivision (b), applies to
section 290 registrants such as defendant.
       In addition to the statutory waiver of the privilege against self-incrimination, the
polygraph consent form provided to defendant for his signature includes the following
statement: “I am consenting to this examination without threats, force, duress, reward, or
any promise of immunity.” On appeal, defendant contends the State may not require him
to waive his Fifth Amendment right against self-incrimination as a condition of probation
and the statutory waiver provision is therefore facially unconstitutional.3 He challenges
the polygraph consent form on the same ground.
       In respondent’s view, we should apply the canon of constitutional avoidance and
adopt a reasonable construction of the statute that avoids the constitutional issue; the


3     This issue is currently pending review by the California Supreme Court. (E.g.,
People v. Klatt (2014) 225 Cal.App.4th 906, review granted July 16, 2014, S218755;
People v. Friday (2014) 225 Cal.App.4th 8, review granted July 16, 2014, S218288;
People v. Garcia (2014) 224 Cal.App.4th 1283, review granted July 16, 2014, S218197.)


                                             3.
probation condition does not and will not violate the Fifth Amendment because merely
compelling incriminating statements does not violate the core right; no prophylactic
remedy is necessary because defendant is already protected under the law from any use or
derivative use of any compelled statements; and we can declare a rule of use and
derivative use immunity protecting any disclosures made by defendant.4
       B.     Privilege Against Self-Incrimination and Penalty Case Exception
       The Fifth Amendment provides, in relevant part, that no person “shall be
compelled in any criminal case to be a witness against himself .…” (U.S. Const., 5th
Amend.) “The object of the Amendment ‘was to insure that a person should not be
compelled, when acting as a witness in any investigation, to give testimony which might
tend to show that he himself had committed a crime.’ [Citations.]” (Lefkowitz v. Turley
(1973) 414 U.S. 70, 77.) The United States Supreme Court has recognized the privilege
against self-incrimination “reflects a complex of our fundamental values and aspirations,
and marks an important advance in the development of our liberty. It can be asserted in
any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory;
and it protects against any disclosures that the witness reasonably believes could be used
in a criminal prosecution or could lead to other evidence that might be so used. [The]


4      We reject respondent’s argument regarding application of the canon of
constitutional avoidance at the outset. (See People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 509 [“‘If a statute is susceptible of two constructions, one of which will
render it constitutional and the other unconstitutional in whole or in part, or raise serious
and doubtful constitutional questions, the court will adopt the construction which,
without doing violence to the reasonable meaning of the language used, will render it
valid in its entirety, or free from doubt as to its constitutionality, even though the other
construction is equally reasonable. [Citations.]”’].) As recognized in Reidy v. City and
County of San Francisco (2004) 123 Cal.App.4th 580, 591, cited by respondent, “[t]he
primary rule of statutory construction is to ascertain the legislative intent in order to
effectuate the statute’s purpose. [Citation.] When the words of the statute are clear, the
court does not alter or amend them to accomplish a purpose that does not appear on the
face of the statute; rather, the court gives effect to the plain meaning of the statute.”
Here, the statutory language is clear and not susceptible to more than one interpretation.

                                             4.
Court has been zealous to safeguard the values that underlie the privilege.” (Kastigar v.
United States (1972) 406 U.S. 441, 444-445.) Thus, “a witness protected by the privilege
may rightfully refuse to answer unless and until he is protected at least against the use of
his compelled answers and evidence derived therefrom in any subsequent criminal case in
which he is a defendant. [Citation.] Absent such protection, if he is nevertheless
compelled to answer, his answers are inadmissible against him in a later criminal
prosecution.” (Lefkowitz v. Turley, supra, 414 U.S. at p. 77.)
       Generally, the privilege against self-incrimination is not self-executing, and
persons seeking to shield themselves must claim or invoke the privilege. (Minnesota v.
Murphy (1984) 465 U.S. 420, 429 (Murphy).) The decision to answer rather than claim
the privilege is considered voluntary. (Ibid.) Conversely, if statements are compelled
despite invocation of the privilege and in the absence of protection, those statements may
not be used in a future criminal proceeding. (Id. at p. 426.)
       A long-recognized exception to the general rule that the privilege is not self-
executing and must be claimed exists “in cases where the assertion of the privilege is
penalized so as to ‘[foreclose] a free choice to remain silent, and … [compel] …
incriminating testimony.’ [Citation.]” (Murphy, supra, 465 U.S. at p. 434.) “In most of
[such] cases, the attempt to override the witnesses’ privilege proved unsuccessful, and the
Court ruled that the State could not constitutionally make good on its prior threat.
[Citations.] These cases make clear that ‘a State may not impose substantial penalties
because a witness elects to exercise his Fifth Amendment right not to give incriminating
testimony against himself.’ [Citation.]” (Ibid.) “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.” (Id. at p. 435.) Probationers retain
their Fifth Amendment right against self-incrimination, and in Murphy, the United States
Supreme Court noted “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

                                             5.
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
pp. 426, 435.)
       C.     Statutory Waiver Provision
       Respondent concedes that the statutory waiver of any privilege against self-
incrimination creates a classic penalty situation and we accept that concession as well
founded under the law. (Murphy, supra, 465 U.S. at pp. 426, 435.) However, we find
respondent’s argument that the waiver provision nonetheless withstands constitutional
scrutiny because any incriminating statements compelled cannot be used against
defendant in subsequent criminal proceedings less supportable.
       In 1984, the United States Supreme Court decided Murphy in which a probationer
made self-incriminating statements to his probation officer and then challenged use of the
statements on Fifth Amendment grounds when he was indicted for first degree murder.
(Murphy, supra, 465 U.S. at pp. 423-425.) The court rejected the challenge, holding that
the statements he made were voluntary and not compelled, as he neither claimed the
privilege against self-incrimination nor “was deterred from claiming the privilege by a
reasonably perceived threat of revocation.” (Id. at pp. 439-440.)
       Since the decision in Murphy, the United States Supreme Court and the California
Supreme Court have discussed the Fifth Amendment right against self-incrimination, and
recognized a distinction between the core right against self-incrimination in a criminal
trial and the prophylactic and exclusionary rules designed to protect that core right.
(Chavez v. Martinez (2003) 538 U.S. 760 (Chavez); Maldonado v. Superior Court (2012)
53 Cal.4th 1112 (Maldonado); Spielbauer v. County of Santa Clara (2009) 45 Cal.4th
704 (Spielbauer).) It is the narrow core right view discussed in those cases that underpins
respondent’s argument.



                                             6.
       However, those cases did not involve a challenge by a probationer to a statutory
waiver of the privilege as condition of probation as here or a challenge to the subsequent
use of statements made to a probation officer as in Murphy, and we do not find their
discussion of the core right view controlling here. While it may be that incriminating
statements successfully compelled in circumstances such as this will be found subject to
exclusion in any subsequent criminal trial, sole reliance on an exclusionary rule as
sufficiently protective of the core Fifth Amendment right against self-incrimination
overlooks collective jurisprudence to the contrary.5 (E.g., Murphy, supra, 465 U.S. at
pp. 434-435; Lefkowitz v. Turley, supra, 414 U.S. at pp. 77-85; Spielbauer, supra, 45
Cal.4th at pp. 725-727.) That collective jurisprudence prohibits the government from
coercing a waiver of the privilege over threat of punishment in the first instance.
       Citing Spielbauer and Pennsylvania v. Muniz (1990) 496 U.S. 582, 589, we have
recognized that “[t]he constitutional guarantee against compelled self-incrimination does
more than protect an individual from being forced to testify against him- or herself in a
pending criminal proceeding; ‘[i]t also privileges a person not to answer official
questions in any other proceeding, “civil or criminal, formal or informal,” where he or
she reasonably believes the answers might incriminate him or her in a criminal case.’
[Citation.] Thus, the privilege protects a person both from being compelled to testify
against him- or herself and from being required to provide the state with evidence of a
testimonial or communicative nature.” (Kassey S. v. City of Turlock (2013) 212
Cal.App.4th 1276, 1280-1281.) These principles are well-established and Chavez,

5       In dicta, the California Supreme Court signaled disapproval with similar reasoning
in Spielbauer but as discussed post, Spielbauer is distinguishable and the decision did not
speak to a penalty case exception such as presented here. (Spielbauer, supra, 45 Cal.4th
at p. 727; see People v. Jennings (2010) 50 Cal.4th 616, 684 [“‘It is axiomatic that cases
are not authority for propositions not considered.’ [Citation.] ‘The holding of a decision
is limited by the facts of the case being decided, notwithstanding the use of overly broad
language by the court in stating the issue before it or its holding or in its reasoning.’
[Citation.]”].)


                                             7.
Maldonado, and Spielbauer presented no departure from them. (Chavez, supra, 538 U.S.
at pp. 767-771; Maldonado, supra, 53 Cal.4th at pp. 1127-1129; Spielbauer, supra, 45
Cal.4th at pp. 714-715.)
       In Chavez, the United States Supreme Court addressed, in relevant part, the issue
of qualified immunity in a civil rights suit brought pursuant to 42 U.S.C. § 1983. The
plaintiff alleged that his Fifth Amendment right against self-incrimination was violated
when a police officer questioned him about a police shooting while he was at the hospital
receiving medical treatment for the serious injuries sustained in the shooting. (Chavez,
supra, 538 U.S. at pp. 764-765.) While the plaintiff was not given a Miranda (Miranda
v. Arizona (1966) 384 U.S. 436) warning, he was also never charged with any crime and
therefore, his answers were not used against him in criminal proceedings. (Chavez, at
p. 764.) Notably, Chavez did not present the occasion to decide a penalty case exception
such as at issue here and it was a fragmented, plurality decision that commanded no
majority.6
       Justice Thomas delivered the plurality opinion, which held that the plaintiff’s Fifth
Amendment right against self-incrimination was not violated by the officer’s allegedly
coercive questioning. (Chavez, supra, 538 U.S. at p. 773 (plur. opn. of Thomas, J.).)
Justice Thomas explained that “a violation of the constitutional right against self-
incrimination occurs only if one has been compelled to be a witness against himself in a
criminal case.” (Id. at pp. 770, 776.) He reasoned that “[r]ules designed to safeguard a
constitutional right … do not extend the scope of the constitutional right itself, just as
violations of judicially crafted prophylactic rules do not violate the constitutional rights
of any person,” and he rejected the “view that mere compulsion violates the Self-


6       “When a fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on the narrowest
grounds.…’ [Citation.]” (Marks v. United States (1977) 430 U.S. 188, 193.)

                                              8.
Incrimination Clause.” (Id. at pp. 772-773.) To the contrary, no “core Fifth Amendment
claim” exists in “the absence of a ‘criminal case’ in which [one is] compelled to be a
‘witness’ against himself.” (Ibid.)
       However, this reasoning was set forth in a case arising from facts very different
from those here. Indeed, Justice Thomas explicitly recognized the penalty case exception
line of cases, describing that principle as “well established.” (Chavez, supra, 538 U.S. at
pp. 767-768.) Further, the opinion acknowledged that a signed immunity waiver
precludes the signatory from objecting on Fifth Amendment grounds to the subsequent
use of the statements in a criminal case, even if the statements were compelled, and “[a]
waiver of immunity is therefore a prospective waiver of the core self-incrimination right
in any subsequent criminal proceeding .…” (Chavez, at p. 768, fn. 2.)
       Chavez recognized the creation of “prophylactic rules designed to safeguard the
core constitutional right protected by the Self-Incrimination Clause” (Chavez, supra, 538
U.S. at p. 770), and “[t]he natural concern which underlies many of these decisions is that
an inability to protect the right at one stage of a proceeding may make its invocation
useless at a later stage.” (Michigan v. Tucker (1974) 417 U.S. 433, 440; United States v.
Patane (2004) 542 U.S. 630, 638; Chavez, supra, 538 U.S. at pp. 770-771.) The case
was concerned with, and rejected, what would have been an expansion of the core Fifth
Amendment right against self-incrimination to allow someone never subjected to criminal
proceedings to assert a completed constitutional violation of the Fifth Amendment by a
mere infringement of a prophylactic rule. (Chavez, supra, 538 U.S. at pp. 770-772.) In
contrast, this case concerns not an expansion of the core right or the prophylactic rule, but
statutory impingement on a constitutional privilege recognized as necessary to safeguard
the core right against self-incrimination. (Ibid.)
       The California Supreme Court subsequently discussed Chavez favorably in
Spielbauer and Maldonado. Those cases, too, were concerned with unnecessary
expansions of prophylactic rules. In Spielbauer, a former county employee challenged

                                              9.
his employment termination via a writ of mandamus. (Spielbauer, supra, 45 Cal.4th at
p. 713.) His employer, the public defender’s office, sought to question him about a
deceptive representation he made in court regarding a witness’s availability. (Id. at
pp. 710-713.) He was expressly informed by his supervisor that any statements he made
would not be used against him in a criminal proceeding. (Id. at p. 712.) He refused to
answer in the absence of a formal immunity agreement and he was terminated in part for
insubordination relating to the refusal to answer questions. (Id. at pp. 712-713.)
       In rejecting the employee’s claim, the court was “persuaded that neither the
federal nor the California constitutional privilege against compelled self-incrimination
requires a public employer to provide its employee with a formal grant of criminal use
immunity before it can require the employee, upon threat of job discipline, to answer
questions relating to the employee’s job performance. On the contrary, the employer
may discipline, and even dismiss, a public employee for refusing, on grounds of the
constitutional privilege, to answer the employer’s job-related questions, so long as the
employee is not required, as a condition of remaining in the job, to surrender his or her
right against criminal use of the statements thus obtained—at least where, as here, the
employee is specifically advised that he or she retains that right.” (Spielbauer, supra, 45
Cal.4th at p. 725.)
       Thus, Spielbauer did not involve a penalty case situation, and the court was
unpersuaded that a formal immunity agreement was constitutionally required to
adequately protect the core Fifth Amendment right against self-incrimination.
(Spielbauer, supra, 45 Cal.4th at p. 729.) Rather, the existing rule prohibiting use and
derivative use of any self-incriminating statements compelled was sufficiently protective
of the right against self-incrimination where, as there, the employee was not required to
waive the privilege and was instead explicitly assured his statements could not be used
against him in a criminal case. (Id. at pp. 714-715, 729.)



                                            10.
       More recently, the California Supreme Court considered what measures, if any,
were necessary to protect a defendant’s Fifth and Sixth Amendment rights in the context
of a mental examination by the prosecution experts where the defendant provided notice
of his intent to place his mental state at issue during trial pursuant to section 1054.3,
subdivision (b)(1).7 (Maldonado, supra, 53 Cal.4th at pp. 1124-1125.) In Maldonado,
there was no dispute that the defendant’s statements were protected from direct or
derivative use by the Fifth Amendment but he sought additional prophylactic measures.
(Maldonado, at pp. 1129-1130.) The court held that “neither the Fifth Amendment right
against self-incrimination, nor prophylactic concerns about the protection of that right,
justify precluding the prosecution from full pretrial access to the results of mental
examinations by prosecution experts conducted, pursuant to section 1054.3(b)(1), for the
purpose of obtaining evidence to rebut a mental-state defense the defendant has indicated
he or she intends to present on the issue of guilt” and the court of appeal “erred in
ordering such restrictions .…” (Id. at p. 1141.)
       In sum, the decisions in Chavez, Spielbauer, and Maldonado do not persuade us
that because the penalty case exception will apply and preclude use of incriminating
statements in criminal proceedings, it is constitutionally permissible for the State to
require probationers to waive their privilege against self-incrimination as a condition of
probation. Those decisions are readily distinguishable and as we have indicated,
resolution of the issue in this case does not call upon us to expand either the core Fifth
Amendment right against self-incrimination or existing prophylactic rules, which were

7       Section 1054.3, subdivision (b)(1), provides, “Unless otherwise specifically
addressed by an existing provision of law, whenever a defendant in a criminal action or a
minor in a juvenile proceeding brought pursuant to a petition alleging the juvenile to be
within Section 602 of the Welfare and Institutions Code places in issue his or her mental
state at any phase of the criminal action or juvenile proceeding through the proposed
testimony of any mental health expert, upon timely request by the prosecution, the court
may order that the defendant or juvenile submit to examination by a prosecution-retained
mental health expert.”


                                             11.
concerns underlying those decisions. Rather, the issue in this case is controlled by
existing penalty case jurisprudence.8 (Murphy, supra, 465 U.S. at pp. 434-435; Lefkowitz
v. Turley, supra, 414 U.S. at pp. 82-85.)
       We recognize the state has a strong and legitimate interest in protecting public
safety (People v. Cruz (2012) 207 Cal.App.4th 664, 679), and as discussed ante, the
waiver provision, coupled with the mandatory polygraph examination, was enacted as
part of a comprehensive program approach aimed at reducing the likelihood that sex
offenders will abuse the privilege of probation and victimize members of the public by
committing new crimes. (Sen. Appropriations Com., Analysis of Assem. Bill 1844
(2009-2010 Reg. Sess.) Aug. 12, 2010, p. 5.) However, both the United States Supreme
Court and the California Supreme Court have long recognized that under the Fifth
Amendment, “[o]ne cannot be forced to choose between forfeiting the privilege, on the
one hand, or asserting it and suffering a penalty for doing so on the other.” (Spielbauer,
supra, 45 Cal.4th at p. 714; accord United States v. Patane, supra, 542 U.S. at p. 638
(plur. opn. of Thomas, J.); Chavez, supra, 538 U.S. at pp. 768-769; Murphy, supra, 465
U.S. at pp. 434-435; Lefkowitz v. Turley, supra, 414 U.S. at pp. 77-85; Maldonado,
supra, 53 Cal.4th at pp. 1128-1129; cf. McKune v. Lile (2002) 536 U.S. 24, 34-48 (plur.
opn. of Kennedy, J.) [in a plurality opinion, the court found the consequences faced by
inmate for failing to participate in the State’s in-prison treatment program for sex
offenders did not amount to an unconstitutional compulsion].) We find the statutory




8      We note that because the probationer in Murphy did not claim the privilege against
self-incrimination and he was neither implicitly nor explicitly threatened with the
revocation of his probation if he invoked the privilege, the case did not directly consider
and resolve the issue presented in this case. We nevertheless believe the decision in
Murphy foreshadows the outcome we reach in this case.

                                            12.
waiver provision contravenes that established principle and by doing so, it impermissibly
impinges on the Fifth Amendment privilege against self-incrimination.9
       D.     Polygraph Consent Form Waiver Provision
       The polygraph consent form, which probationers are required to sign, also
includes a waiver of the privilege against self-incrimination. The constitutionality of
polygraph examination requirements as a condition of probation has been considered in
earlier cases.10
       In People v. Miller, supra, 208 Cal.App.3d 1311, 1313, the appellate court
considered a probationer’s challenge to the condition “he submit to a polygraph
examination at the direction of his probation officer.” With respect to the probationer’s
Fifth Amendment challenge, the court noted the privilege against self-incrimination must
be claimed and merely requiring him to take the polygraph examination did not infringe
on the constitutional privilege against self-incrimination. (People v. Miller, at p. 1315.)

9       Given our determination regarding the facial unconstitutionality of the waiver
provision, we decline respondent’s invitation to judicially declare a rule of use and
derivative use immunity protecting any disclosures made by defendant. The Maldonado
and People v. Arcega decisions cited by respondent involved incriminating, or potentially
incriminating, statements made during court-ordered mental competency examinations.
(Maldonado, supra, 53 Cal.4th at p. 1129, fn. 10; People v. Arcega (1982) 32 Cal.3d 504,
518-523.) As explained by the California Supreme Court in People v. Arcega, “[t]here is
a rule of immunity for all statements and fruits of a mental competency examination
which prevents their use at the guilt trial.” (Id. at p. 518.) “This rule is necessary to
ensure that an accused is not convicted by use of his own statements made at a court-
compelled examination. The rule also fosters honesty and lack of restraint on the
accused’s part at the examination and thus promotes accuracy in the psychiatric
evaluation. Hence, the rule protects both an accused’s privilege against self-
incrimination and the public policy of not trying persons who are mentally incompetent.”
(Id. at p. 522.) It suffices to note we find the context in which that rule was recognized to
be readily distinguishable from the waiver provision at issue in this case.
10     The cases pre-dated the enactment of section 1203.067, subdivision (b)(3), and the
condition was imposed by the trial courts at the request of the probation department.
(Brown v. Superior Court (2002) 101 Cal.App.4th 313, 318-319; People v. Miller (1989)
208 Cal.App.3d 1311, 1315.)


                                             13.
The court explained that “[a]lthough defendant has a duty to answer the polygraph
examiner’s questions truthfully, unless he invokes the privilege, shows a realistic threat
of self-incrimination and nevertheless is required to answer, no violation of his right
against self-incrimination is suffered.” (Ibid.)
       In Brown v. Superior Court, supra, 101 Cal.App.4th 313, 319, a different appellate
court held that polygraph testing as a condition of probation was not “per se invalid and
illegal.” Relying on the reasoning in People v. Miller and citing Murphy for support, the
court rejected the probationer’s Fifth Amendment challenge to the mandatory polygraph.
(Brown v. Superior Court, at p. 320.)
       Both Brown and Miller addressed polygraph examinations that were not
accompanied by express or implied waivers of the privilege against self-incrimination
and in neither case had the probationer invoked the privilege but nonetheless been
compelled to provide incriminating information. (Brown v. Superior Court, supra, 101
Cal.App.4th at p. 320; People v. Miller, supra, 208 Cal.App.3d at p. 1315.) In contrast,
this case involves mandatory polygraph examinations accompanied by an express
statutory waiver of the privilege against self-incrimination and a polygraph consent form
including an express waiver. Under the statute and the consent form, there are no means
available to the defendant to assert his or her Fifth Amendment privilege against self-
incrimination. We found the statutory waiver provision invalid, and the polygraph
consent form waiver provision fails on the same ground.
II.    Untimely Appeal of No Contact Condition
       Defendant also challenges the probation condition prohibiting him from having
contact with children on the ground it is unconstitutionally vague as to the element of
scienter, or knowledge, and the term “contact.” At our request, the parties filed
supplemental letter briefs addressing the timeliness of defendant’s appeal of the no
contact condition. (Gov. Code, § 68081.) In his supplemental brief, defendant argues his



                                             14.
appeal of this condition is not foreclosed given our decision in People v. Hackler (1993)
13 Cal.App.4th 1049 (Hackler). We find this argument unpersuasive.
       “[A] notice of appeal … must be filed within 60 days after the rendition of the
judgment or the making of the order being appealed.” (Cal. Rules of Court, rule
8.308(a).) “A timely notice of appeal, as a general matter, is ‘essential to appellate
jurisdiction.’ [Citation.] It largely divests the superior court of jurisdiction and vests it in
the Court of Appeal. [Citation.] An untimely notice of appeal is ‘wholly ineffectual:
The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate
court has no power to give relief, but must dismiss the appeal on motion or on its own
motion.’ [Citation.] The purpose of the requirement of a timely notice of appeal is, self-
evidently, to further the finality of judgments by causing the defendant to take an appeal
expeditiously or not at all.” (People v. Mendez (1999) 19 Cal.4th 1084, 1094; accord In
re Chavez (2003) 30 Cal.4th 643, 650; People v. Lyons (2009) 178 Cal.App.4th 1355,
1360-1361; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.)
       The no contact condition of probation was imposed on April 10, 2013. No appeal
of the condition was taken until September 16, 2014. While defendant’s notice of appeal
was timely as to the probation modification effected on September 16, 2014, the no
contact condition was not addressed during the modification hearing and it was
unaffected by the trial court’s modification order.
       Defendant’s argument that Hackler is controlling ignores the context in which we
considered that probation challenge and subsequent authority. In Hackler, we considered
a challenge to a probation condition where the defendant did not appeal the condition
when it was imposed or when probation was revoked. (Hackler, supra, 13 Cal.App.4th at
pp. 1052-1053.) Instead, he challenged the condition within 60 days of being sentenced
to prison, following revocation of probation. (Ibid.) Unlike this case, which involves a
facial challenge to a probation condition brought 16 months after it was imposed, the



                                              15.
prior condition of probation in Hackler and the subsequent revocation of probation and
sentencing were related or intertwined.11 (Ibid.)
       Factual and procedural dissimilarities notwithstanding, in considering the appeal
in Hackler, we expressly stated, after a review of authority, that we would follow
appellate courts’ then-practice of reaching the merits given “the absence of clear
authority to the contrary .…” (Hackler, supra, 13 Cal.App.4th at p. 1057.) In doing so,
we noted that the cases we relied on did not involve claims of waiver and therefore did
“not stand as direct authority on the waiver issue.” (Ibid.) Since Hackler was decided in
1993, however, clear authority has emerged regarding timely notices of appeal. We
therefore decline defendant’s invitation to ignore those subsequent developments in the
law, which include authority from the California Supreme Court and this court. (In re
Chavez, supra, 30 Cal.4th at p. 650; People v. Mendez, supra, 19 Cal.4th at p. 1094;
People v. Lyons, supra, 178 Cal.App.4th at pp. 1360-1363; People v. Ramirez, supra, 159
Cal.App.4th at pp. 1420-1421; People v. Dagostino (2004) 117 Cal.App.4th 974, 997.)
       We conclude we lack jurisdiction over the appeal of the no contact condition
because it was not filed within 60 days of its imposition.
                                     DISPOSITION
       The waivers of the privilege against self-incrimination set forth in section
1203.067, subdivision (b)(3), and in the polygraph consent form are stricken as
conditions of defendant’s probation. In all other respects, the judgment is affirmed.




11     We find defendant’s argument that the no contact condition imposed in 2013 is
intertwined with the probation modifications imposed in 2014 without merit. The two
conditions are independent and separate from one another.


                                            16.
      Defendant’s challenge to the no contact condition of probation is denied as
untimely.
                                                              _____________________
                                                                    LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




                                          17.
