Filed 4/21/15 P. v. Delgado 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041059
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1370392)

         v.

SALVADOR TERONES DELGADO,

         Defendant and Appellant.


                                              I. INTRODUCTION
         Defendant Salvador Terones Delgado was placed on formal probation for three
years after he pleaded no contest to indecent exposure with a prior conviction (Pen. Code,
§ 314, subd. 1; count 1)1 and misdemeanor failure to register as a sex offender (§
290.015, subd. (a); count 2). Count 1 involved defendant masturbating in a laundromat in
the presence of an employee. The trial court imposed numerous probation conditions,
including sex offender treatment conditions mandated by section 1203.067. As required
by subdivision (b)(2), the court ordered defendant to “enter, participate and complete an
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approved sex offender management program” and, as required by subdivision (b)(3) that

         1
         All statutory references are to the Penal Code. All undesignated subdivision
references are to section 1203.067.
       2
         Subdivision (b)(3) requires a “[w]aiver of any privilege against self-
incrimination and participation in polygraph examinations, which shall be part of the sex
offender management program.” Subdivision (b)(3) is ambiguous in that the phrase
“[w]aiver of any privilege against self-incrimination” can be read narrowly as applying
only to “polygraph examinations” or more broadly to apply to “the sex offender
                                                                                                               (Continued)
he “waive any privilege against self-incrimination and participate in polygraph
examinations, which shall be part of the sex offender management program.”3
       On appeal, defendant challenges the requirement that he waive any privilege
against self-incrimination as violating the Fifth Amendment of the United States
Constitution.4 As we will explain, we conclude that the Fifth Amendment waiver
required by subdivision (b)(3) is invalid on its face, and we will order it stricken from
defendant’s probation conditions.
                                    II. DISCUSSION

A.     THE FIFTH AMENDMENT
       The Fifth Amendment privilege against compulsory self-incrimination “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.” (Kastigar v. United States (1972) 406 U.S. 441, 444-445.) The privilege extends
to answering questions posed by probation officers (Minnesota v. Murphy (1984) 465
U.S. 420, 426 (Murphy)) and polygraph examiners (People v. Miller (1989) 208
Cal.App.3d 1311, 1315; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321). It is
undisputed that, absent the subdivision (b)(3) waiver, defendant could assert his Fifth


management program.” While defendant focuses on the waiver in the context of the
polygraph examination, we find the required waiver unconstitutional under either
construction.
       3
         We grant defendant’s request for judicial notice of the California Sex Offender
Management Board’s Post-Conviction Sex Offender Polygraph Certification Standards,
dated June 2011. (See http://www.casomb.org/docs/certification_standards/
polygraph_standards.pdf.)
       4
         This issue is currently pending before the California Supreme Court. (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; People v.
Klatt (2014) 225 Cal.App.4th 906, review granted July 16, 2014, S218755.)

                                              2
Amendment privilege and elect not to provide incriminating information as part of the
sex offender management program.
       Because the Fifth Amendment speaks of compulsion, the privilege is not self-
executing and as a general rule a person must invoke it by refusing to answer
incriminating questions. If it is not invoked, any incriminating answers will be deemed
voluntary and not protected by the privilege. (Murphy, supra, 465 U.S. at p. 427.) But
an exception exists “where the assertion of the privilege is penalized so as to ‘[foreclose]
a free choice to remain silent, and … [compel] … incriminating testimony.’ [Citation].”
(Id. at p. 434.) In such a situation, the privilege need not be asserted because the
incriminating disclosure is deemed compelled by the threat of penalty. (Ibid.) Under this
penalty exception, an incriminating statement is deemed compelled and cannot be used
against the person in a criminal proceeding. (Ibid.) Conversely, if a penalty is imposed
for exercising the right to remain silent, courts have struck the penalty as violating the
Fifth Amendment. For example, in Lefkowitz v. Turley (1973) 414 U.S. 70, after refusing
to testify before a grand jury, two contractors were disqualified under state law from
entering into contracts with public authorities for five years. The Supreme Court found
the law violated the Fifth Amendment because it attached a penalty to an individual’s
assertion of the right to remain silent. (Id. at p. 83.)
B.     THE PROBATION CONDITION AND WAIVER
       Section 1203.067, subdivision (b)(3) requires defendant, as a condition of
probation, to waive his privilege against self-incrimination. Defendant argues that this
statutory waiver, incorporated into his probation conditions, is facially unconstitutional
because it creates an “impermissible penalty situation” described in Murphy.
       In Murphy, the Supreme Court addressed whether a probationer’s incriminating
statements to his probation officer were made under threat of penalty, thereby requiring
their suppression at a criminal trial. The defendant in Murphy admitted to his probation
officer that he committed a rape and murder several years before the offense for which he
                                                3
was on probation, and that admission resulted in first degree murder charges. (Murphy,
supra, 465 U.S. at p. 425.) At trial, Murphy challenged the admissibility of the
incriminating statement made to his probation officer. Invoking the penalty exception,
Murphy argued unsuccessfully that a probation condition requiring that he be truthful
with his probation officer in all matters coerced him to admit the rape and murder. (Id. at
pp. 434-439.) Although the court concluded that Murphy’s statements were not
compelled and were therefore voluntary and admissible in his criminal trial, the
application of Murphy’s reasoning to the probation condition at issue here demands a
different result.
       Murphy formulated a test to determine whether the condition requiring the
probationer to be truthful constituted a “threat of punishment for reliance on the
privilege.” (Murphy, supra, 465 U.S. at p. 435.) Murphy recognized that the state “may
require a probationer to appear and discuss matters that affect his probationary status[,]”
and that such a requirement, without more, is no different than the state compelling an
individual to appear and testify. Both witness and probationer are required to answer
unless questions call for incriminating answers. (Ibid.) Murphy went on to determine
that revocation of probation qualifies as a penalty: “[I]f the state, either expressly or by
implication, asserts that invocation of the privilege would lead to revocation of probation,
it would have created the classic penalty situation[.]” (Ibid.) In such case, the court
explained, the state can insist on answers to incriminating questions “and hence sensibly
administer its probation system” provided it eliminates the threat of incrimination. (Id. at
p. 435, fn. 7.)
       With these principles in mind, the court framed its inquiry as whether “Murphy’s
probation conditions merely required him to appear and give testimony about matters
relevant to his probationary status or whether they went further and required him to
choose between making incriminating statements and jeopardizing his conditional liberty
by remaining silent.” (Murphy, supra, 465 U.S. at p. 436.) The court concluded that the
                                              4
condition requiring Murphy to be truthful with his probation officer in all matters did not
rise to a threat of revocation. Indeed, the condition “said nothing about his freedom to
decline to answer particular questions and certainly contained no suggestion that his
probation was conditional on his waiving his Fifth Amendment privilege with respect to
further criminal prosecution.” (Id. at p. 437, italics added.) The probation condition did
not “attach an impermissible penalty to the exercise of the privilege against self-
incrimination” because it did not require Murphy to choose between incriminating
himself and jeopardizing his probation by remaining silent. (Id. at pp. 437-438.)
       Applying Murphy’s test here leads us to conclude that the challenged waiver
imposes an impermissible choice between self-incrimination and conditional liberty.
Subdivision (b)(3) requires that the privilege against self-incrimination be waived in
order to be granted probation at all. The Attorney General argues that the required
waiver does not violate the Fifth Amendment “because the penalty exception described in
Murphy necessarily applies to all statements that a probationer makes under the
compulsion of the subdivision (b)(3) probation condition.” But that interpretation would
result in blanket immunity for probationers to disclose crimes during their participation in
the sex offender treatment program knowing that such disclosures, and their derivatives,
cannot be used against them in criminal proceedings. (Kastigar, supra, 406 U.S. at p.
462 [evidence derived from compelled testimony cannot be used against a person in a
criminal proceeding].) Striking the waiver from subdivision (b)(3) will still allow all
questions to be posed to participants in the sex offender management program, who may
then choose whether to assert their right to remain silent. Whether answers will be
compelled, questions reformulated, immunity granted, or probation revoked can be
addressed on a question-by-question and case-by-case basis.
C.     AVAILABILITY OF THE PENALTY EXCEPTION
       Our conclusion is consistent with other jurisdictions’ treatment of the penalty
exception in the context of probation conditions. In State v. Eccles (1994) 179 Ariz. 226
                                             5
(Eccles), the Arizona Supreme Court was presented with a waiver nearly identical to that
required under subdivision (b)(3). The Arizona probation condition required the
defendant, as part of a sex offender treatment program, to waive his right against self-
incrimination and answer truthfully any questions posed by treatment program agents
including his probation officer and polygraph examiner. (Eccles, at p. 227.) Applying
Murphy, Eccles held that the condition “plainly took the ‘extra, impermissible step’ by
attempting to require defendant to waive his right against self-incrimination under
penalty of having his probation revoked.” (Id. at p. 228, quoting Murphy, supra, at p.
436.) Eccles read Murphy’s prohibition against a state revoking probation for a
legitimate exercise of the Fifth Amendment privilege as also proscribing a state from
imposing a waiver of the privilege as a condition of probation. (Eccles, at p. 228.)
       In State v. Gaither (2004) 196 Or.App. 131 (Gaither), the Oregon Court of
Appeals determined that a probationer’s statement was involuntary under Murphy. The
sex-offender probationer in Gaither was required to “ ‘promptly and truthfully answer all
reasonable inquiries’ of his probation officer,” fully disclose his sexual history, and
identify all victims of any past sexual misdeeds. (Id. at p. 133.) Under threat of a
probation violation for invoking his right to remain silent, the probationer told his
probation officer that he had committed a sexual offense against a minor, and he was then
charged with the offense. (Ibid.) Suppressing the admission, the Oregon court observed:
“That is precisely the situation forbidden by Murphy … . If [the] defendant had no
choice other than to disclose or face revocation of his probation, Murphy … hold[s] that
any subsequent statement was made involuntarily.” (Id. at p. 138.)
       In United States v. Saechao (2005) 418 F.3d 1073 (Saechao), the Ninth Circuit
addressed an Oregon condition which required a probationer to “ ‘promptly and truthfully
answer all reasonable inquiries’ ” or face revocation of probation. Like Gaither, Saechao
upheld the trial court’s order suppressing evidence obtained as a result of the
probationer’s incriminating responses. The court concluded that use of the incriminating
                                              6
information in a criminal proceeding against the probationer would be unconstitutional
under Murphy because the probationer was forced to choose between exercising his right
to remain silent and jeopardizing his conditional liberty. (Id. at p. 1075).
       The Ninth Circuit addressed another probation penalty situation in United States v.
Antelope (2005) 395 F.3d 1128 (Antelope). Antelope illustrates the type of penalty
discussed (though not found) in Murphy and its impermissibly coercive effect in this
context. In Antelope, the probationer refused to complete a sexual history autobiography
and participate in a “full disclosure polygraph” as part of a sexual abuse recovery
program unless he was granted immunity, even though he desired to continue in
treatment. (Id. at pp. 1131-1132.) The district court revoked probation and imposed a
prison sentence. (Id. at p. 1132.)
       Antelope analyzed the probationer’s Fifth Amendment claim under McKune v. Lile
(2002) 536 U.S. 24 (McKune), a then recently decided Supreme Court case addressing a
state prison inmate’s privilege against self-incrimination in the context of the prison’s sex
offender treatment program. The treatment program in McKune required participants to
divulge all prior sexual activities regardless of whether they constituted uncharged
criminal offenses. (Id. at p. 30.) Refusal to participate in the program would result in
transfer to a maximum security housing unit and reduced privileges such as visitation,
work opportunities, and television access. The inmate refused and asserted the privilege
against self-incrimination. (Id. at pp. 30-31.)
       McKune was a fractured decision, with the plurality and Justice O’Connor
concluding that a loss of prison privileges did not amount to compulsion under the Fifth
Amendment. (McKune, supra, 536 U.S. at p. 29 [plurality]; id. at pp. 48-49 [O’Connor,
J.].) However, Justice O’Connor recognized that although “[n]ot all pressure necessarily
‘compels’ incriminating statements” (id. at p. 49), a penalty involving longer
incarceration would not be constitutionally permissible. (Id. at p. 52.) Based on Justice
O’Connor’s view, the Antelope court concluded that the probationer’s privilege against
                                              7
self-incrimination was violated because he did suffer additional incarceration for
exercising his right to remain silent. (Antelope, supra, 395 F.3d at p. 1138.) Antelope
thus presented the penalty situation described in Murphy. (Id. at p. 1138, fn. 4.)5
       Eccles, Gaither, and Saecheo, together with Antelope’s recognition that Murphy
continues to set the standard for compulsion in probation penalty cases, support our
conclusion that the waiver required by section 1203.067, subdivision (b)(3) violates the
Fifth Amendment on its face. The denial of probation which results from refusal to
accept the mandatory condition attaches an impermissible penalty (a prison sentence) to
the exercise of the Fifth Amendment privilege against self-incrimination.
D.     CHAVEZ AND MALDONADO DISTINGUISHED
       Citing Chavez v. Martinez (2003) 538 U.S. 760 (Chavez) and Maldonado v.
Superior Court (2012) 53 Cal.4th 1112 (Maldonado), the Attorney General argues that
the waiver alone is not unconstitutional because a Fifth Amendment violation cannot
occur until a compelled statement is used against a defendant in a criminal proceeding.
In Chavez, a federal civil rights action brought under Title 42 U.S.C. section 1983, the
plaintiff was questioned by a parole officer without Miranda warnings while receiving
medical treatment for gunshot wounds received in a confrontation with police officers.
The plaintiff alleged that the emergency room questioning violated both his Fifth
Amendment and substantive due process rights. (Chavez, supra, 538 U.S. at p. 765.)
The Ninth Circuit upheld the denial of qualified immunity to the parole officer,

       5
          Relying on Antelope, defendant asserts that submission to a polygraph
examination under subdivision (b)(3) violates the Fifth Amendment because the examiner
is required to investigate past sex offenses, including potentially uncharged offenses.
Antelope did not hold that the sex abuse recovery program at issue in that case, including
its polygraph component, violated the Fifth Amendment. Standing alone, the
requirement that defendant participate in polygraph examinations does not infringe on his
Fifth Amendment right against self-incrimination because it does not preclude him from
exercising that right. (People v. Miller, supra, 208 Cal.App.3d 1311, 1315.)


                                             8
concluding that the “ ‘right to be free from coercive interrogation’ ” was clearly
established under the Fifth and Fourteenth Amendments. (Id. at pp. 765-766.) The
United States Supreme Court reversed, concluding that the plaintiff could not allege a
Fifth Amendment violation because he was neither prosecuted for the crime nor
compelled to be a witness against himself in a criminal case. (Id. at p. 766.) The court
reasoned that the text of the Fifth Amendment does not support the conclusion that mere
compulsive questioning, without more, violates the Constitution. (Id. at p. 767.)
       In Maldonado, the criminal defendant asserted a mental-state defense. The
prosecution had obtained an order under section 1054 (providing for reciprocal
discovery) requiring the defendant to submit to a mental examination by prosecution-
selected experts, and a disagreement arose regarding disclosure of the examination results
to the prosecution. (Maldonado, supra, 53 Cal.4th at p. 1118.) Relying in part on
Chavez’s focus that a “ ‘core’ Fifth Amendment violation is completed, not merely by
official extraction of self-incriminatory answers from one who has not waived the
privilege, but only if and when those answers are used in a criminal proceeding against
the person who gave them” (id. at p. 1128, citing Chavez, supra, pp. 766-773), the
California Supreme Court concluded that release of the examination results to the
prosecution before the defendant actually presented his defense at trial was not precluded
by the Fifth Amendment. (Maldonado, at p. 1141.)
       Chavez and Maldonado establish that merely eliciting an incriminating statement
does not violate the Fifth Amendment. But neither case controls here because neither
addresses whether the state can condition the availability of probation on giving up the
right to remain silent. That question, in our view, is answered by Murphy because denial
of probation is itself a penalty which compels the waiver.
                                   III. DISPOSITION
       In light of our conclusion that the waiver mandated by Penal Code section
1203.067, subdivision (b)(3) facially violates the Fifth Amendment, we strike the words
                                             9
“waive any privilege against self-incrimination and” from the probation condition
implementing that subdivision. As modified, the judgment is affirmed.




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                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P. J.




____________________________
Márquez, J.
