Filed 6/30/14 P. v. Dominguez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039879
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1243367)

         v.

BRAULIO VEGA DOMINGUEZ,

         Defendant and Appellant.



         Defendant Braulio Vega Dominguez was granted probation after he pleaded no
contest to two counts of lewd conduct with a child aged 14 or 15 (Pen. Code, § 288,
subd. (c)(1)).1 The trial court imposed the sex offender probation conditions mandated
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by section 1203.067, subdivision (b). These probation conditions require defendant to
successfully complete a sex offender management program, “waive any privilege against
self-incrimination and participate in polygraph examinations,” and “waive any
psychotherapist patient privilege to enable communication between the sex offender
management professional and the probation officer . . . .” Defendant challenges these
two conditions on constitutional grounds. We reject his challenges.


1
         Subsequent statutory references are to the Penal Code unless otherwise specified.
2
      Defendant objected to these probation conditions on various grounds including
vagueness and overbreadth, but the court overruled his objections.
                   I. Section 1203.067, Subdivision (b)(3) Condition
       Defendant claims that the section 1203.067, subdivision (b)(3) condition requiring
that he waive “any privilege against self-incrimination” violates the Fifth Amendment
because there is no “assurance to the probationer that his statements will not be used
against him in criminal proceedings.” On this premise, he contends that this condition is
unconstitutionally vague and overbroad. Defendant’s contentions fail because his
premise is incorrect.
       This court recently considered the constitutional validity of this statutorily-
mandated condition in People v. Garcia (2014) 224 Cal.App.4th 1283 (Garcia). “The
subdivision (b)(3) probation condition does not force defendant to choose between
forfeiting his Fifth Amendment rights, on the one hand, or asserting them and suffering
the revocation of his probation. This condition does prohibit defendant from invoking
any right against self-incrimination and thereby sets the price of invocation at the
revocation of probation. By doing so, the condition creates the ‘classic’ situation where
the penalty exception applies. If the state ‘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.’ ([Minnesota v.] Murphy,
[(1984)] 465 U.S. [420,] 435, italics added.) Because the penalty exception will
necessarily apply to any statements that defendant makes under the compulsion of the
subdivision (b)(3) probation condition, these statements cannot be used against defendant
in a criminal proceeding. Hence, the condition cannot result in any Fifth Amendment
violation.” (Garcia, at p. 1294, fn. omitted.)
       In Garcia, this court rejected Fifth Amendment and overbreadth challenges to the
section 1203.067, subdivision (b)(3) condition. (Garcia, supra, 224 Cal.App.4th at
pp. 1297-1298.) The defendant in Garcia did not challenge this condition as
unconstitutionally vague. However, the analysis in Garcia necessarily requires rejection

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of both defendant’s overbreadth and vagueness challenges to this condition because it
eliminates the premise for them. Under Garcia, this condition can never result in the use
of defendant’s statements against him in a criminal proceeding so it is not
unconstitutionally vague or overbroad. Indeed, defendant concedes that application of
the penalty exception to any statements he makes under the compulsion of this condition
eliminates both his vagueness and his overbreadth challenges.


                   II. Section 1203.067, Subdivision (b)(4) Condition
       Defendant challenges as vague and overbroad the section 1203.067, subdivision
(b)(4) condition requiring him to “waive any psychotherapist patient privilege to enable
communication between the sex offender management professional and the probation
officer . . . .” He claims that this condition violates his constitutional right to privacy. In
Garcia, this court rejected a privacy-based overbreadth challenge to this condition.
“Here, the purpose of the condition is to protect the public and monitor defendant’s
compliance and the success of his treatment. The condition’s waiver requirement is
limited to ‘enabl[ing] communication between the sex offender management professional
and supervising probation officer’ while defendant is participating in the sex offender
management program. (Subd. (b)(4).) As it does not require defendant to waive his
psychotherapist-patient privilege outside of this limited context, it is closely tailored to its
purpose.” (Garcia, supra, 224 Cal.App.4th at pp. 1300-1301.) We agree with the
analysis in Garcia and on that basis reject defendant’s overbreadth challenge to this
condition.
       This court was not faced with a vagueness challenge in Garcia. “[T]he
underpinning of a vagueness challenge is the due process concept of ‘fair warning.’
[Citation.] The rule of fair warning consists of ‘the due process concepts of preventing
arbitrary law enforcement and providing adequate notice to potential offenders’
[citation], protections that are ‘embodied in the due process clauses of the federal and

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California Constitutions.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 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.) “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.]” (Ibid.)
       Defendant claims that this condition is unconstitutionally vague in two respects.
His first claim concerns section 290.09, which mandates that the “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.” (§ 290.09, subd. (c).) Defendant
claims that the terms “dynamic risk assessment issues” and “as required” are
unconstitutionally vague. The focus of a constitutional vagueness contention is on the
probationer’s ability to understand what is required of him. Even if “dynamic risk
assessment issues” and “as required” are vague, neither of these terms describes anything
that is required of the probationer. Hence, this aspect of defendant’s vagueness argument
lacks merit.
       Defendant’s second vagueness claim is that “waiver” is vague because it “does not
inform appellant of the extent of the required waiver.” He claims that it is unclear
whether the probationer is required to waive his privilege only for probation purposes or
must also waive it “for all purposes in all subsequent proceedings” in which his
statements may be at issue. In Garcia, this court interpreted this waiver to be “limited to
‘enabl[ing] communication between the sex offender management professional and
supervising probation officer’ while defendant is participating in the sex offender

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management program.” (Garcia, at pp. 1300-1301.) As so interpreted, the extent of the
waiver is not vague. We reject defendant’s vagueness challenges to this condition.


                                    III. Disposition
      The order is affirmed.




                                         _______________________________
                                         Mihara, J.


WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Elia, J.




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