Filed 2/27/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H040847
                                                   (Santa Clara County
        Plaintiff and Respondent,                   Super. Ct. No. C1238226)

        v.

JUAN JOSE REBULLOZA,

        Defendant and Appellant.



        Defendant Juan Jose Rebulloza pleaded no contest to one count of indecent
exposure for exposing himself on a street corner in San José. The trial court granted a
three-year term of probation to include one year in county jail as a condition of probation.
Among other conditions, the court ordered defendant to complete a sex offender
management program as mandated by Penal Code section 1203.067. Under subdivisions
(b)(3) and (b)(4) of that statute, the court ordered defendant to “waive any privilege
against self-incrimination and participate in polygraph examinations which shall be part
of the sex offender management program” and “waive any psychotherapist/patient
privilege to enable communication between the sex offender management professional
and the probation officer.”
        Defendant challenges the constitutionality of these two waivers.1 First, we hold
that the condition requiring a waiver of the privilege against self-incrimination is

        1
        This court has previously addressed these claims in three cases currently under
review by the California Supreme Court. (See People v. Garcia (2014)
224 Cal.App.4th 1283, review granted July 16, 2014, S218197; People v. Friday (2014)
prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420
(Murphy). Second, we construe the waiver of the psychotherapist-patient privilege as
requiring waiver only insofar as necessary to enable communication between the
probation officer and the psychotherapist. We hold that the waiver of the
psychotherapist-patient privilege as construed in this fashion is not overbroad in violation
of defendant’s constitutional right to privacy.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense2
       Around 11:30 p.m. on July 21, 2012, Lourdes Valle was driving on 13th Street
through downtown San José. When she stopped for a red light at Santa Clara Street, she
saw defendant on the corner “with his private parts out.” Defendant’s pants were down
and his right hand was below his waist, but Valle did not see whether he was touching
himself. Valle testified defendant was moving toward her car while “spinning” or
“dancing,” and “it looked like he was having a great time.” Valle drove away and called
the police.
       A San José police officer responded to the call and found defendant standing at the
corner of 13th Street and Santa Clara Street. Valle subsequently picked defendant’s
photograph out of a lineup. Defendant’s rap sheet showed he had prior convictions for
indecent exposure.
   B. Procedural Background
       Defendant pleaded no contest to one count of indecent exposure charged as a
felony based on a prior conviction for indecent exposure. (Pen. Code, § 314, subd. (1).)

225 Cal.App.4th 8, review granted July 16, 2014, S218288; People v. Klatt (2014)
225 Cal.App.4th 906, review granted July 16, 2014, S218755.) Because this opinion
discusses additional grounds not raised in those appeals, and because this opinion meets
the standards set forth in California Rules of Court, rule 8.1105, subdivision (c), we
certify this opinion for publication.
       2
           Our statement of the facts is based on the transcript of the preliminary hearing.

                                                2
On March 21, 2014, the trial court granted a three-year term of probation and imposed
one year in county jail as a condition of probation. Among other conditions, the court
ordered defendant to complete a sex offender management program as mandated by
Penal Code section 1203.067, subdivision (b)(2). Furthermore, under subdivisions (b)(3)
and (b)(4) of that statute, the court ordered defendant to “waive any privilege against self-
incrimination and participate in polygraph examinations which shall be part of the sex
offender management program” and “waive any psychotherapist/patient privilege to
enable communication between the sex offender management professional and the
probation officer.” Defendant filed written objections to both compelled waivers, but the
court overruled both objections.
                                       II. DISCUSSION
       Defendant challenges the two waivers mandated as probation conditions under
Penal Code section 1203.067 (section 1203.067). He contends the condition requiring
waiver of any privilege against self-incrimination under subdivision (b)(3) (section
1203.067(b)(3)) violates the Fifth Amendment and is overbroad. And he contends the
condition requiring waiver of any psychotherapist-patient privilege under subdivision
(b)(4) (section 1203.067(b)(4)) must be narrowly construed to enable communication
between the sex offender management professional and the supervising probation officer.
The Attorney General argues that both of these waivers are constitutional as worded.
   A. The Statutory Scheme and Applicable Regulations
       Under section 1203.067, subdivision (b)(2), any person placed on formal
probation on or after July 1, 2012, for any offense requiring registration under Penal
Code sections 290 through 290.023, “shall successfully complete a sex offender
management program, following the standards developed pursuant to Penal Code section
9003, as a condition of release from probation.” Section 1203.067(b)(3) requires
“[w]aiver of any privilege against self-incrimination and participation in polygraph
examinations, which shall be part of the sex offender management program.” Section

                                             3
1203.067 (b)(4) requires “[w]aiver of any psychotherapist-patient privilege to enable
communication between the sex offender management professional and supervising
probation officer, pursuant to Section 290.09.”3
       The Legislature enacted these provisions in 2010 to amend the Sex Offender
Punishment, Control, and Containment Act of 2006 (hereafter, the “Containment Act”).
(Stats. 2010, ch. 219, § 17.) The Containment Act created “a standardized, statewide
system to identify, assess, monitor and contain known sex offenders for the purpose of
reducing the risk of recidivism posed by these offenders, thereby protecting victims and
potential victims from future harm.” (Pen. Code, § 290.03, subd. (b), Stats. 2006,
ch. 337, § 12.) The Containment Act requires participation in an “approved sex offender
management program” certified by the California Sex Offender Management Board
(CASOMB). (Pen. Code, § 9003.)
       Under Penal Code section 9003, CASOMB promulgates standards for certification
of sex offender management programs and “sex offender management professionals.”
(Pen. Code, § 9003, subds. (a) & (b).) Such programs “shall include treatment, as
specified, and dynamic and future violence risk assessments pursuant to Section 290.09.”
(Pen. Code, § 9003, subd. (b).) Furthermore, sex offender management programs “shall
include polygraph examinations by a certified polygraph examiner, which shall be
conducted as needed during the period that the offender is in the sex offender
management program.” (Ibid.)
       Penal Code section 290.09 specifies that “[t]he certified 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.” (Pen. Code, § 290.09, subd. (c).) Penal Code section

       3
        The same two waiver conditions apply to parolees. (Pen. Code, § 3008, subds.
(d)(3) & (d)(4).)

                                            4
290.09 further requires the sex offender management professional to administer a State-
Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms—the
“SARATSO dynamic tool” and the “SARATSO future violence tool”—and to send the
person’s scores on these tests to the probation officer. (Pen. Code, § 290.09, subd.
(b)(2).) The probation officer must then transmit the scores to the Department of Justice,
which makes the scores accessible to law enforcement officials through the Department’s
website. (Ibid.)
       Penal Code section 9003 requires CASOMB to publish on its website the
certification standards for sex offender management programs and professionals.4
All polygraph examiners working with a certified sex offender management program
must meet these certification standards. (Cal. Sex Offender Management Bd., Post-
Conviction Sex Offender Polygraph Standards at p. 1.)5 The standards set forth a model
policy, program goals, the various types of examinations to be administered, and the
types of questions that examinations should include, among other criteria. These exams
may be used “to test the limits of an examinee’s admitted behavior and to search for other
behaviors or offenses not included in the allegations made by the victim of the instant
offense.” (Id. at p. 11.) “Examiners, along with the other members of the community
supervision team, should select relevant targets from their concerns regarding additional
or unreported offense behaviors in the context of the instant offense.” (Ibid.)
“Examiners should use the Prior Allegation Exam (PAE) to investigate and resolve all
prior alleged sex offenses (i.e., allegations made prior to the current conviction) before

       4
         We take judicial notice of the certification standards for sex offender
management programs and professionals. (Evid. Code, §§ 452, 459.) Pursuant to
Evidence Code section 455, subdivision (a), we requested letter briefs on the propriety of
taking judicial notice of these documents. Neither party objected. Contemporary copies
of the cited documents have been placed on file with the clerk of the court.
       5
         This document is online at:
<http://www.casomb.org/docs/Polygraph_Standards_FINAL.PDF> as of February 27,
2015].

                                              5
attempting to investigate and resolve an examinee’s history of unknown sexual offenses.”
(Id. at p. 12.) To discover “unreported victims,” examiners should “thoroughly
investigate the examinee’s lifetime history of sexually victimizing others, including
behaviors related to victim selection, victim access, victim impact, and sexual offenses
against unreported persons.” (Id. at p. 13.) The sex offense monitoring exam may be
used at the request of other team members “to explore the possibility the examinee may
have been involved in unlawful sexual behaviors including a sexual re-offense” during
the period of supervision. (Id. at p. 22.) Questions about illegal conduct are not limited
to sex offenses; they may include, but are not limited to, questions about the use or
distribution of illegal drugs or controlled substances. (Id. at p. 21.)
   B. Waiver of Any Privilege Against Self-Incrimination Under Section 1203.067(b)(3)
       Defendant contends the required waiver of any privilege against self-incrimination
under section 1203.067(b)(3) is unconstitutional under the Fifth Amendment and
Murphy, supra, 465 U.S. 420. The Attorney General concedes that the Fifth Amendment
prohibits the use of a probationer’s compelled statements in a criminal proceeding. But
the Attorney General argues that the waiver does not purport to allow such use. Instead,
she contends the waiver is necessary to compel the probationer to participate in the sex
offender management program.
       Long-standing United States Supreme Court precedent prohibits a compelled
waiver of the Fifth Amendment. (Lefkowitz v. Cunningham (1977) 431 U.S. 801;
Lefkowitz v. Turley (1973) 414 U.S. 70; Uniformed Sanitation Men Ass’n v. Comm’r of
Sanitation (1968) 392 U.S. 280; Gardner v. Broderick (1968) 392 U.S. 273.)
Furthermore, the Attorney General’s interpretation of section 1203.067(b)(3) cannot be
reconciled with the language of the statute or the meaning of the Fifth Amendment.
Nothing in the Fifth Amendment prohibits the state from requiring the probationer to
answer questions as part of the sex offender management program, provided no
compelled statements are used in a criminal proceeding against him. Accordingly, we

                                               6
conclude below that a waiver of all privileges under the Fifth Amendment is neither
necessary nor constitutional as a means to further the purposes of the sex offender
management program.
       1. The Meaning and Effect of the Statute
       We begin with the language of the statute. Both parties contend that the phrase
“any privilege against self-incrimination” unambiguously includes the probationer’s
rights under the Self-Incrimination Clause of the Fifth Amendment. We agree. “[W]hen
a word used in a statute has a well-established legal meaning, it will be given that
meaning in construing the statute. This has long been the law of California: ‘The rule of
construction of statutes is plain. Where they make use of words and phrases of a well-
known and definite sense in the law, they are to be received and expounded in the same
sense in the statute.’ ” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19 [quoting Harris v.
Reynolds (1859) 13 Cal. 514, 518], original italics.) Without a doubt, the privilege
against self-incrimination is well established and definite under the Fifth Amendment.
Thus, the plain language of the statute—which requires a waiver of “any privilege against
self-incrimination”—unambiguously includes a waiver of the probationer’s rights under
the Self-Incrimination Clause.
       To determine the effect of this waiver, we look to the nature of the rights being
waived. The Self-Incrimination Clause provides that no person “shall be compelled in
any criminal case to be a witness against himself.” (U.S. Const., 5th Amend., italics
added.) The “core” right under this clause is a criminal defendant’s right not to have his
officially compelled statements used against him in a criminal proceeding. (Chavez v.
Martinez (2003) 538 U.S. 760, 766-773 (plur. opn. of Thomas, J.); see id. at p. 777 (conc.
opn. of Souter, J., joined by Breyer, J.); Maldonado v. Superior Court (2012)
53 Cal.4th 1112, 1128 (Maldonado).) The California Supreme Court has recognized the
same principle: “As both this court and the United States Supreme Court have made
clear, the Fifth Amendment does not directly prohibit the government from eliciting self-

                                             7
incriminating disclosures despite the declarant’s invocation of the Fifth Amendment
privilege. Absent a valid waiver of Fifth Amendment rights, this constitutional provision
simply bars the direct or derivative use of such officially compelled disclosures to convict
or criminally punish the person from whom they were obtained.” (Maldonado, supra,
53 Cal.4th at p. 1127, italics added.) Thus, by requiring the probationer to waive this
core right, section 1203.067(b)(3) would allow the state to use the probationer’s
compelled statements against him in a criminal proceeding.
       The Attorney General takes the position that the waiver is constitutional because
the state can never use probationers’ compelled statements against them in criminal
proceedings. This argument is fundamentally at odds with the language of the statute.
Because the Fifth Amendment is a right against the use of compelled statements in a
criminal proceeding, it necessarily follows that a waiver of that right would allow for the
use of probationers’ compelled statements in criminal proceedings. The Attorney
General’s position to the contrary would effectively render the statute meaningless, as if
the waiver did not waive “any privilege against self-incrimination.” This begs the
question of what right is waived under the statute.
       The Attorney General’s brief refers to a probationer’s “right to remain silent”
without citing any authority identifying such a right. This position is based on a
misconception of the privilege against self-incrimination: that it grants an absolute right
to remain silent under any circumstance. The United States Supreme Court has long
made clear that the Fifth Amendment does not prohibit the state from requiring a
probationer to answer questions in the course of probation, provided the state does not
use such compelled statements in a criminal proceeding against the probationer. In
Murphy, the court held: “[A] state may validly insist on answers to even incriminating
questions and hence sensibly administer its probation system, as long as it recognizes that
the required answers may not be used in a criminal proceeding and thus eliminates the
threat of incrimination. Under such circumstances, a probationer’s ‘right to immunity as

                                             8
a result of his compelled testimony would not be at stake,’ [citations], and nothing in the
Federal Constitution would prevent a State from revoking probation for a refusal to
answer that violated an express condition of probation or from using the probationer’s
silence as ‘one of a number of factors to be considered by a finder of fact’ in deciding
whether other conditions of probation have been violated.” (Murphy, supra, 465 U.S. at
p. 435, fn. 7.) As to a probationer’s right to remain silent, Murphy holds only that a
probationer may refuse to make “nonimmunized disclosures concerning his own criminal
conduct.” (Murphy, supra, 465 U.S. at p. 439, italics added.) The Attorney General
concedes that defendant must have immunity from prosecution for any incriminating
statements he is compelled to make. With immunity, defendant has no right to remain
silent.
          We are mindful of the canon of statutory construction “that a statute which is
reasonably susceptible of two constructions should be interpreted so as to render it
constitutional.” (San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937,
942.) But this principle does not allow us to ignore the plain language of a statute or
misinterpret the Fifth Amendment. The plain language of the statute is not “reasonably
susceptible” to the interpretation put forth by the Attorney General. The Attorney
General’s interpretation would ignore the required waiver of defendant’s “core” Fifth
Amendment right, and would instead construe the statute as requiring a waiver of a right
that does not exist—the absolute right to remain silent. The Attorney General’s
interpretation effectively renders the statute superfluous, violating the basic rule that no
part of a statute shall be construed to be “ ‘inoperative or superfluous, void or
insignificant.’ ” (AFL-CIO v. Deukmejian (1989) 212 Cal.App.3d 425, 435 [quoting 2A
Sutherland, Statutory Construction (4th ed. 1984) § 46.06, p. 104].)
          We next consider the scope of the waiver under section 1203.067(b)(3) with
respect to the timing and context of statements made by the probationer. The language in
section 1203.067(b)(3) requiring the waiver is followed by: “. . . and participation in

                                               9
polygraph examinations, which shall be part of the sex offender management program.”
Nothing in this language clearly or unambiguously limits the required waiver to
statements the probationer makes while participating in polygraph examinations or the
sex offender management program. However, we will assume for the purposes of this
opinion that the latter portion of the provision limits the application of the waiver to
statements the probationer makes during the course of, and in response to questions posed
as part of, the sex offender management program. Because we conclude below that this
narrowing construction is insufficient to render the provision constitutional, we need not
consider the constitutionality of any broader construction.
       2. Constitutionality of the Waiver Under Section 1203.067(b)(3)
       As explained above, section 1203.067(b)(3)’s plain language would require
defendant to waive the Fifth Amendment’s bar against the use of his officially compelled
statements in a criminal proceeding against him. This bar against the direct or derivative
use of officially compelled statements in a criminal proceeding is commonly referred to
as “use and derivative use immunity” when granted in advance. (Kastigar v. United
States (1972) 406 U.S. 441, 462.) Consistent with the Fifth Amendment, the state may
compel a person to make statements—even incriminating statements—as long as the state
grants immunity to that person. (Ibid.) The California Supreme Court has held that the
right to immunity may apply even without a formal grant of immunity from a prosecutor.
(Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 727 (Spielbauer).)
       As a general matter, the Fifth Amendment bars a compelled waiver of immunity.
The United States Supreme Court established this principle in its “penalty cases”
jurisprudence. (Lefkowitz v. Cunningham, supra, 431 U.S. 801; Lefkowitz v. Turley,
supra, 414 U.S. 70; Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, supra,
392 U.S. 280; Gardner v. Broderick, supra, 392 U.S. 273.) This bar is necessary because
any person executing such a waiver would be unable to assert the core right against self-
incrimination in a subsequent criminal proceeding: “Once an immunity waiver is signed,

                                             10
the signatory is unable to assert a Fifth Amendment objection to the subsequent use of his
statements in a criminal case, even if his statements were in fact compelled. A waiver of
immunity is therefore a prospective waiver of the core self-incrimination right in any
subsequent criminal proceeding . . . .” (Chavez, supra, 538 U.S. at p. 768, fn. 2 (plur.
opn. of Thomas, J.).) The “prophylactic rules” encompassed by the Fifth Amendment
thereby protect against compelled waivers of immunity even in the absence of a criminal
proceeding. (Id. at p. 772, fn. 3 (plur. opn. of Thomas, J.).) As noted in Chavez, “That
the privilege is a prophylactic one does not alter our penalty cases jurisprudence, which
allows such privilege to be asserted prior to, and outside of, criminal proceedings.”
(Ibid.)
          The same principle holds true in the probation context. The United States
Supreme Court first addressed this issue in Murphy, supra, 465 U.S. 420. In that case,
Marshall Murphy was prosecuted for criminal sexual conduct. He pleaded guilty to false
imprisonment and received three years’ probation. (Id. at p. 422.) The terms of
Murphy’s probation required him to participate in a treatment program for sexual
offenders and to be truthful with the probation officer “in all matters.” (Ibid.) His
probation conditions “contained no suggestion that his probation was conditional on his
waiving his Fifth Amendment privilege . . . .” (Id. at p. 437.) In the course of his
treatment, Murphy confessed to raping and murdering a teenage girl seven years earlier.
(Id. at p. 423.) His treatment counselor gave this information to the probation officer,
who confronted Murphy with it. (Id. at pp. 423-424.) Murphy confessed to the probation
officer as well, who in turn told the police. (Id. at p. 424.) At no point did Murphy
invoke the Fifth Amendment. He was later indicted for first degree murder for killing the
teenage girl. (Id. at p. 425.)
          The central issue in Murphy was whether Murphy’s failure to invoke his Fifth
Amendment rights allowed the admission of his incriminating statements against him at
trial. The high court concluded that Murphy had voluntarily chosen not to invoke his

                                              11
Fifth Amendment rights, notwithstanding the probation condition requiring him to
answer questions. (Murphy, supra, 465 U.S. at pp. 433-434.) The court began its
analysis by holding that the privilege against self-incrimination applies to probationers:
“A defendant does not lose this protection [against self-incrimination] by reason of his
conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at
the time he makes incriminating statements, if those statements are compelled they are
inadmissible in a subsequent trial for a crime other than that for which he has been
convicted.” (Id. at p. 426.) The court then held that the probation condition requiring
Murphy to answer questions truthfully did not, by itself, controvert this right; rather, his
obligations were no different from those of any other witness in a proceeding: “The
answers of such a witness to questions put to him are not compelled within the meaning
of the Fifth Amendment unless the witness is required to answer over his valid claim of
the privilege.” (Id. at p. 427, italics added.) Thus, the court held that Murphy was
subject to the general rule that the privilege against self-incrimination is not self-
executing; rather, the privilege must be claimed by affirmatively invoking it. Because
Murphy failed to do so, his statements were not “compelled” under the Fifth Amendment,
and the use of his statements against him at trial did not violate the Fifth Amendment.
(Id. at p. 440.)
       The court distinguished Murphy’s circumstances from cases in which “the state
not only compelled an individual to appear and testify, but also sought to induce him to
forgo the Fifth Amendment privilege . . . .” (Murphy, supra, 465 U.S. at p. 434 [citing
Lefkowitz v. Turley, supra, 414 U.S. at pp. 79-84 [state may not impose substantial
penalties because a witness elects to exercise his privilege against self-incrimination];
Sanitation Men v. Sanitation Comm’r, supra, 392 U.S. at pp. 283-284; Gardner v.
Broderick, supra, 392 U.S. at pp. 278-279].) The court noted: “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.” (Murphy, supra,

                                              12
465 U.S. at p. 435.) The court then held that if the state had threatened to revoke
Murphy’s probation for invoking the Fifth Amendment, this threat would have violated
the Fifth Amendment, and his statements would have been inadmissible at trial. (Ibid.)
       Thus, Murphy has long made clear that the state may not punish a probationer for
invoking the Fifth Amendment. More recently, California courts have reaffirmed that
Murphy stands for this principle. “[I]f the state puts questions to a probationer that call
for answers that would incriminate him in a pending or later criminal proceeding, and
expressly or by implication asserts that invocation of the privilege would lead to
revocation of probation, the answers would be deemed compelled under the Fifth
Amendment and thus involuntary and inadmissible in a criminal prosecution.” (Brown v.
Superior Court (2002) 101 Cal.App.4th 313, 320.) Furthermore, a threat to revoke
probation for failing to waive the privilege against self-incrimination is tantamount to a
threat to revoke probation for a “legitimate exercise of the Fifth Amendment privilege.”
(Murphy, supra, 465 U.S. at p. 438.) Murphy thereby prohibits the compelled waiver
required by section 1203.067(b)(3).
       3. Overbreadth of the Waiver Requirement Under Section 1203.067(b)(3)
       Defendant further challenges the section 1203.067(b)(3) waiver as
unconstitutionally overbroad and unnecessary to achieve the stated purposes of the
statute. The Attorney General contends that the waiver is necessary to establish an
effective treatment program. We conclude the waiver is not sufficiently tailored to the
purposes of the statute.
       “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.)
“Nevertheless, probationers are not divested of all constitutional rights.” (People v.

                                             13
Barajas (2011) 198 Cal.App.4th 748, 753.) “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.)
       As an initial matter, we note that the California Supreme Court has declined to
apply this tailoring requirement with respect to the Fourth Amendment when
probationers are subject to search conditions. (People v. Bravo (1987) 43 Cal.3d 600,
606-608 (Bravo).) The court has observed that “probation is a privilege and not a right,
and that adult probationers, in preference to incarceration, validly may consent to
limitations upon their constitutional rights—as, for example, when they agree to
warrantless search conditions.” (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).)
(Italics added.) This reasoning is consistent with the inherently invasive nature of
incarceration, wherein prisoners have no reasonable expectation of privacy, and Fourth
Amendment rights against searches are severely limited. (Hudson v. Palmer (1984)
468 U.S. 517, 526.) A probationer afforded the privilege of avoiding incarceration
thereby enjoys an immeasurably greater degree of privacy and freedom of movement,
despite probationary search conditions. By accepting probation, he or she gives up no
substantial Fourth Amendment rights not otherwise lost through incarceration.
Recognizing these comparative circumstances, courts have construed an acceptance of
probation as a broad—but not a total—waiver of Fourth Amendment rights. (Bravo,
supra, 43 Cal.3d at p. 610 [probationary waiver of Fourth Amendment rights does not
include searches undertaken for harassment, or searches for arbitrary or capricious
reasons].)
       By contrast, a waiver of “any privilege against self-incrimination,” as required by
section 1203.067(b)(3), would deprive a probationer of the full spectrum of his rights
under the Self-Incrimination Clause—even those protections enjoyed by prisoners in
custody. (See Baxter v. Palmigiano (1976) 425 U.S. 308, 316 [prison inmates compelled

                                             14
to testify at disciplinary proceedings must be offered immunity and may not be required
to waive it]; McKune v. Lile (2002) 536 U.S. 24, 36 (plur. opn. of Kennedy, J.) [“The
privilege against self-incrimination does not terminate at the jailhouse door . . . .”].) The
waiver required under section 1203.067(b)(3) puts probationers in a worse position than
prisoners with respect to Fifth Amendment rights. Thus, presenting a defendant with a
choice between imprisonment and total surrender of his rights against self-incrimination
would belie the justification underlying the Fourth Amendment waiver—that a grant of
probation is a privilege. (Olguin, supra, 45 Cal.4th at p. 384.) Such a “choice” cannot
properly be deemed a voluntary waiver. “ ‘Were it otherwise, as conduct under duress
involves a choice, it always would be possible for a State to impose an unconstitutional
burden by the threat of penalties worse than it in case of a failure to accept it, and then to
declare the acceptance voluntary . . . .’ [Citation.] [¶] Where the choice is ‘between the
rock and the whirlpool,’ duress is inherent in deciding to ‘waive’ one or the other. [¶] ‘It
always is for the interest of a party under duress to choose the lesser of two evils. But the
fact that a choice was made according to interest does not exclude duress. It is the
characteristic of duress properly so called.’ ” (Garrity v. State of New Jersey (1967)
385 U.S. 493, 498 [quoting Union Pacific Railroad Co. v. Public Service Commission of
Missouri (1918) 248 U.S. 67, 70].) Consistent with this distinction, the United States
Supreme Court has held that the protection of the Self-Incrimination Clause, unlike the
Fourth Amendment, applies to both prisoners and probationers. (Murphy, supra,
465 U.S. at p. 426.)
       Moreover, here it is not true that defendant has the option to retain his Fifth
Amendment rights by choosing custody over probation. Under Penal Code section 3008,
subdivision (d)(3), he would be required to enter an identical waiver upon being paroled.
Thus, the justification for requiring probationers to waive their Fourth Amendment rights,
as set forth in Olguin, supra, 45 Cal.4th 375, does not apply in this context.



                                              15
       We next consider whether the waiver is sufficiently tailored to its purposes to pass
constitutional muster. Neither the language of the waiver nor the legislative history of
the amendment that enacted it specifically states its purpose. As a general matter, public
safety is “a primary goal” of court-ordered probation conditions. (Pen. Code, § 1202.7;
Olguin, supra, 45 Cal.4th at p. 379.) Consistent with this goal, the overriding purpose of
the sex offender treatment program is public safety through containment and reduction of
recidivism by registered sex offenders. CASOMB observed that “[f]or the safety and
well-being of California’s citizens, especially those most vulnerable to sexual assault, it is
essential to manage known sex offenders living in the state’s communities in ways that
most effectively reduce the likelihood that they will commit another offense . . . .” (Cal.
Sex Offender Management Bd, Sex Offender Program Certification Requirements at p.
1.)6 Treatment and rehabilitation of the offender are secondary purposes of the sex
offender management program, and CASOMB publications emphasize the importance of
their role in reducing recidivism. (Id.) Public safety is also the primary goal of
polygraph testing as part of the sex offender management program. (Post-Conviction Sex
Offender Polygraph Standards, supra, at p. 3.)
       In this context, the reach of the waiver is extraordinarily broad. Subdivision (b)(3)
of section 1203.067 requires waiver of “any privilege against self-incrimination . . . .”
(Italics added.) The waiver applies equally and indiscriminately to probationers
convicted of a broad swath of sex offenses ranging from indecent exposure to rape. (Pen.
Code, §§ 290, subd. (c), 314.) The statute makes no distinctions based on the severity of
the offense or the offender’s level of future risk or dangerousness. And it takes no
account of a probationer’s intellectual capacity, mental health, or age.



       6
         This document is online at:
<http://www.cce.csus.edu/portal/admin/handouts/CASOMB Program 10-29-13
complete.pdf> [as of Feb. 27, 2015].

                                             16
       The statute imposes no limits of any kind on the subject matter of statements that
may come under the waiver. The waiver is not limited to the offense for which the
probationer has been convicted. Anything the probationer says may be used against him
or her in a subsequent criminal proceeding. Because the waiver eliminates derivative use
immunity, a probationer’s statements could even be used against the probationer in a
future criminal proceeding for an offense committed after the expiration of the
probationary period. (Marchetti v. United States (1968) 390 U.S. 39, 53; Prudhomme v.
Superior Court (1970) 2 Cal.3d 320, 326 [abrogated on other grounds] [the privilege
forbids compelled disclosures which could serve as a “link in a chain” of evidence
tending to establish guilt of a criminal offense].)
       Under this broad waiver, a probationer who poses little or even no risk to the
community could be compelled to confess to a crime committed long ago having no
relevance to his or her current status as a sex offender. Any such confession could be
given to police or prosecutors, who could then use it against the probationer to initiate an
independent prosecution. The past offense could itself be a crime having little or no
impact on public safety, and given the passage of time, prosecution of it may no longer
serve the public safety purposes it may have served in the past.
       A polygraph examiner, for example, could question the probationer, in the course
of a video-recorded examination, about matters unrelated to the probationer’s sex
offense, such as past involvement with illegal drugs. The examiner could then provide
the recording directly to the probation officer or even to law enforcement for use in a
criminal prosecution against the probationer. (Evid. Code, § 351.1, subd. (b) [“Nothing
in this section is intended to exclude from evidence statements made during a polygraph
examination which are otherwise admissible.”].) None of this is forbidden by the statute.
To the contrary, various standards set forth in CASOMB publications encourage such a
chain of events. Although CASOMB standards for polygraph examiners state that
information from polygraph exams “should be kept confidential and provided only to

                                              17
those involved in the containment approach to the supervision and treatment of sex
offenders,” the standards also make clear that law enforcement officials may be made
part of the “containment team.” (Cal. Sex Offender Management Bd, Sex Offender
Program Certification Requirements at p. 6.) More importantly, the statute contains no
language reflecting any restrictions on providing information to law enforcement
officials.
       To the contrary, other statutes explicitly require certain members of the
containment team to reveal the probationer’s statements to law enforcement for further
investigation and prosecution. Probation officers, psychotherapists, district attorneys,
and police officers are all “mandated reporters” under the Child Abuse and Neglect
Reporting Act. (Pen. Code, § 11165.7, subds. (a)(15), (a)(18), (a)(12), (a)(34).) If any of
these participants acquire knowledge—or even reasonable suspicion—of any child who
has been the victim of child abuse or neglect, the participant is required to report the
information to police or other qualified agencies. Failure to do so is a misdemeanor
punishable by up to six months’ confinement in a county jail or by a fine of one thousand
dollars ($1,000), or by both that imprisonment and fine. (Pen. Code, § 11166.)
       In conjunction with mandatory reporting requirements and CASOMB standards, a
waiver of any privilege against self-incrimination results in a process whereby suspected
offenses based on compelled statements—including those unrelated to the underlying
offense—are effectively required to be presented for prosecution. First, the probationer,
upon threat of revocation, would be compelled to submit to a polygraph examination.
The examiner would then pose a raft of questions purposely designed to ferret out both
past and current sexual misconduct. The probationer would be compelled to waive his
privilege against self-incrimination and answer the questions. The examiner, consistent
with CASOMB standards, would then be required to share the results of the examination
with the probation officer or the prosecutor. These participants, in turn, would be
compelled to report to the police any information constituting reasonable suspicion that

                                             18
the probationer has committed any one of numerous offenses defined as child abuse and
neglect. The results of this process could then be used against the probationer in a
subsequent criminal prosecution. This is only one example of the potential problems that
could ensue from the broad and indiscriminate waiver of the privilege against self-
incrimination required by section 1203.067.
       There is no doubt that a waiver of the privilege against self-incrimination would
further public safety if it allowed for the prosecution of a dangerous sex offender who
admits to an ongoing, dangerous offense that would otherwise go unreported after
invocation of the privilege. But the scope of the waiver at issue here reaches too broadly.
First, it gives the state carte blanche to use a probationer’s statements against the
probationer with no regard for the level of the threat he or she may pose to public safety.
The waiver applies with equal force to the most dangerous offenders and the least
dangerous. A rapist posing a high risk of reoffending is required to enter the same waiver
as defendant here, who engaged in the comparatively less risky behavior of exposing
himself on a public street. Second, the waiver allows for use of a probationer’s
statements in the prosecution of any offense—such as minor drug offenses7—with no
consideration for the extent to which public safety is compromised.
       Even in the case of dangerous offenders, is it unclear to what extent such a waiver
is needed. As the high court observed in Murphy, the Fifth Amendment already allows
the state to require a probationer to participate in treatment and answer questions
truthfully. (Murphy, supra, 465 U.S. at p. 427.) Probationers may also be required to
undergo polygraph testing. (People v. Miller (1989) 208 Cal.App.3d 1311, 1315 [“The
mere requirement of taking the test in itself is insufficient to constitute an infringement of


       7
         CASOMB-promulgated standards specifically advise polygraph examiners to
inquire about the use of drugs, among other illegal conduct. (Cal. Sex Offender
Management Bd., Post-Conviction Sex Offender Polygraph Standards, supra, at pp. 17,
21.)

                                              19
the privilege.”].) If the circumstances surrounding the questioning are noncustodial, no
Miranda warnings are required. (Murphy, supra, at p. 433.) If the probationer does not
invoke the privilege against self-incrimination, the privilege is waived voluntarily.
Absent some other restriction, then, a probationer’s statements may be used against him
or her in a separate criminal prosecution. (Id. at p. 440.) Furthermore, if a probationer
invokes the privilege in response to questions that pose no threat of self-incrimination
(e.g., questions concerning probationary status), the state may revoke probation without
violating the Fifth Amendment. (Id. at 435, fn. 7.) In light of these allowances, we see
no overwhelming need for a compelled waiver of defendant’s fundamental right to his
privilege against self-incrimination.
       For all of these reasons, we conclude that the section 1203.067 requirement of a
waiver of “any privilege against self-incrimination” as a condition of probation is
unconstitutionally overbroad with respect to defendant’s rights under the Fifth
Amendment.
       4. The Penalty Exception
       In Murphy, the court held that “if 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, 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 p. 435, italics added.) The
Attorney General contends this so-called “penalty exception” means the waiver here is
constitutional because the probationer’s statements could not be used against him in a
criminal proceeding. We respectfully disagree.
       First, the Attorney General’s argument ignores the plain language of the waiver
under section 1203.067(b)(3). If the waiver is valid, as the Attorney General asserts, then
defendant has waived his ability to assert the Fifth Amendment in a subsequent criminal
proceeding, and his statements would be admissible against him.

                                             20
       Second, the argument misconstrues Murphy. The Supreme Court held that, under
the penalty exception, “the failure to assert the privilege would be excused.” (Murphy,
supra, 465 U.S. at p. 435.) This is simply an exception to the general rule that the Fifth
Amendment must be affirmatively invoked; it does not render a compelled waiver
constitutional. Under the penalty exception, Murphy’s statements would have been
inadmissible precisely because a threat to revoke his probation for asserting the privilege
against self-incrimination would have violated the Fifth Amendment. The court in
Murphy stated this explicitly in holding that “the State could not constitutionally carry
out a threat to revoke probation for the legitimate exercise of the Fifth Amendment
privilege.” (Id. at p. 438, italics added.) The holding that statements made under the
penalty exception are inadmissible is simply an application of the exclusionary rule as
required by the Fifth Amendment violation. As pointed out above, the Supreme Court in
Murphy based this holding on its “penalty cases” jurisprudence. (Lefkowitz v.
Cunningham, supra, 431 U.S. 801; Lefkowitz v. Turley, supra, 414 U.S. 70; Uniformed
Sanitation Men Ass’n v. Comm’r of Sanitation, supra, 392 U.S. 280, 283; Gardner v.
Broderick, supra, 392 U.S. 273, 276.) The Attorney General does not address any of
these earlier cases prohibiting compelled waivers.
       The Attorney General’s position would also introduce a serious practical
difficulty. If the waiver were left intact, then a probationer’s incriminating statements
would automatically be immunized under the penalty exception, even if the probationer
never invoked the Fifth Amendment. This automatic grant of immunity could complicate
future prosecutions, because the prosecution would then bear “the heavy burden of
proving that all of the evidence it proposes to use was derived from legitimate
independent sources.” (Kastigar, supra, 406 U.S. at pp. 461-462.) By contrast, with the
waiver condition stricken, the penalty exception does not apply, and a probationer must
affirmatively invoke the Fifth Amendment to enjoy its protections. If defendant makes
incriminating statements after failing to invoke the privilege, his statements could be used

                                             21
against him in a criminal prosecution without violating the Fifth Amendment. (Murphy,
supra, 465 U.S. at p. 440.) If, on the other hand, defendant invokes the Fifth Amendment
in response to questioning, the questioner or the probation officer would have the
opportunity to consult with the district attorney on the wisdom of compelling further
statements and thereby conferring immunity.
       The Attorney General adopts the position that the Fifth Amendment does not
prohibit the state from requiring defendant to answer questions as part of his treatment
program, provided his answers are not used against him in a criminal prosecution. We
agree with this conclusion. As noted earlier, the Supreme Court has long made clear that
requiring the probationer to answer questions—even if doing so is incriminating—does
not violate the Fifth Amendment, as long as the probationer retains immunity. (Murphy,
supra, 465 U.S. at p. 435, fn. 7.) Furthermore, if defendant refuses to answer questions
posed to him as part of the treatment program, the state can use his silence as “ ‘one of a
number of factors to be considered by a finder of fact’ in deciding whether other
conditions of probation have been violated.” (Ibid.) Nonetheless, the Attorney General
contends the waiver condition is necessary to compel the probationer to participate in the
treatment program. But she does not explain why an express waiver of the Fifth
Amendment is necessary when probationers can already be required to answer questions
without violating the Fifth Amendment.
       For these reasons, we are not persuaded by the Attorney General’s arguments
concerning the penalty exception and the necessity of the waiver. In our view, the waiver
is not only unconstitutional, but unnecessary as well.
   C. Waiver of the Psychotherapist-Patient Privilege
       Section 1203.067, subdivision (b)(4) requires any defendant granted probation
under the statute to enter a “[w]aiver of any psychotherapist-patient privilege to enable
communication between the sex offender management professional and supervising
probation officer, pursuant to Section 290.09.” Defendant contends this condition is

                                             22
overbroad in violation of his constitutional right to privacy. We hold that the waiver is
constitutional provided it is narrowly construed to require waiver only insofar as
necessary “to enable communication between the sex offender management professional
and supervising probation officer, pursuant to Section 290.09.”
       1. The Psychotherapist-Patient Privilege
       The California Supreme Court has recognized that communications between a
patient and psychotherapist are protected by a psychotherapist-patient privilege based on
the federal constitutional right to privacy. “The psychotherapist-patient privilege has
been recognized as an aspect of the patient’s constitutional right to privacy.” (People v.
Stritzinger (1983) 34 Cal.3d 505, 511 (Stritzinger).) In an earlier case, the court said:
“We believe that a patient’s interest in keeping such confidential revelations from public
purview, in retaining this substantial privacy, has deeper roots than the California statute
and draws sustenance from our constitutional heritage. In Griswold v. Connecticut
[(1965)] 381 U.S. 479, 484, the United States Supreme Court declared that ‘Various
guarantees [of the Bill of Rights] create zones of privacy,’ and we believe that the
confidentiality of the psychotherapeutic session falls within one such zone.” (In re
Lifschutz (1970) 2 Cal.3d 415, 431-432 (Lifschutz).)
       More recently, the court has questioned the continuing vitality of the constitutional
bases for the psychotherapist-patient privilege. “Although over 40 years have elapsed
since our decision in Lifschutz, the United States Supreme Court itself has not yet
definitively determined whether the federal Constitution embodies even a general right of
informational privacy.” (People v. Gonzales (2013) 56 Cal.4th 353, 384 (Gonzales).)
Following the lead of the United States Supreme Court in Whalen v. Roe (1977) 429 U.S.
589 and NASA v. Nelson (2011) 562 U.S. 134, the California Supreme Court in Gonzales
merely assumed, without deciding, that such a right exists. (Gonzales, supra, 56 Cal.4th
at p. 385.) No court has yet overruled the holdings of Lifschutz and Stritzinger, and we
remain bound by them. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County

                                             23
(1962) 57 Cal.2d 450, 455.) Accordingly, we will proceed under the assumption that
defendant enjoys the right to a psychotherapist-patient privilege based on his federal
constitutional privacy rights.
       It is well established that “the right to privacy is not absolute, but may yield in the
furtherance of compelling state interests.” (Stritzinger, supra, 34 Cal.3d at p. 511.) In
Stritzinger, the court began by considering the state’s “competing interest” in creating an
exception to the privilege. (Ibid.) The California Supreme Court reaffirmed its holding
in Lifschutz that any such exception must be narrowly construed, ibid., “concomitant with
the purposes of the exception.” (Lifschutz, supra, 2 Cal.3d at p. 435.) These principles
resemble the tailoring analysis in which a court considers whether a probation condition
imposing limitations on a person’s constitutional rights is closely tailored to the purpose
of the condition. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
       In Gonzales, supra, 56 Cal.4th 353, the court recently considered the
psychotherapist-patient privilege in the context of a proceeding under the Sexually
Violent Predator Act (SVPA). The defendant, Ramiro Gonzales, had been convicted of
multiple sex offenses over a 20-year period. (Id. at p. 358.) Gonzales was paroled in
2004 and he underwent psychological evaluation and treatment as a condition of parole.
(Id. at p. 359.) After violating his parole conditions several times—including one
incident in which he visited a children’s playground—Gonzales was arrested and taken
into custody. (Id. at pp. 359-360.) In 2006, the prosecution petitioned to commit
Gonzales under the SVPA, and the matter was set for a jury trial.
       Before trial, the prosecution sought to subpoena psychological records arising out
of Gonzales’ psychological treatment as a parolee. (Gonzales, supra, 56 Cal.4th at
p. 361.) Gonzales moved to quash the subpoena on the basis the records were protected
under the psychotherapist-patient privilege, relying in part on Story v. Superior Court
(2003) 109 Cal.App.4th 1007 (Story) [psychotherapy records relating to therapy sessions
engaged in as a condition of probation were protected by the statutory psychotherapist-

                                              24
patient privilege and could not be obtained by a prosecutor who sought the records for
use in a subsequent murder prosecution].) The court distinguished between Gonzales’
statutory claim under Story and his claim under the federal constitutional right to privacy:
“[W]e believe that in order to properly distinguish the federal constitutional issue from
the state law issue, it is necessary, in determining whether the disclosure of defendant’s
therapy records and the admission of his therapist’s testimony violated a federal
constitutional right of privacy, to look to the specific nature and extent of the federal
constitutional privacy interests that are actually implicated in this particular setting and to
the permissible state law interests that would support the disclosure and admission of
testimony in question in such a setting.” (Gonzales, supra, 56 Cal.4th at p. 386.)
       In its analysis, the court first noted that the constitutional privacy right invoked by
Gonzales arose under the conditions of parole, and under the care of a psychotherapist
funded by the state. (Gonzales, supra, 56 Cal.4th at p. 386.) The court then observed
that “the federal Constitution grants states considerable leeway to impose very substantial
limitations on the right of privacy retained by persons who are released on parole,” citing
Samson v. California (2006) 547 U.S. 843 (federal Constitution does not preclude a state
from authorizing a search of a parolee at any time or place even in the absence of
reasonable suspicion). Balanced against this “limited intrusion” of the privacy right at
issue, the court held “the state has a particularly strong and legitimate interest in
authorizing the disclosure and use of a parolee’s prior statements that occur in parole-
mandated therapy in a subsequent SVPA proceeding, especially when, as here, the
parole-mandated therapy was occasioned by the parolee’s prior conviction of a sex
offense.” (Gonzales, supra, 56 Cal.4th at pp. 387-388.) The court held that disclosure
was therefore supported by “a legitimate and substantial state interest,” such that
Gonzales’ federal constitutional right to the psychotherapist-patient privilege was not
violated by the release of his psychological records. (Id. at p. 388.)



                                              25
       2. Application to the Waiver Under Section 1203.067, Subdivision (b)(4)
       Consistent with the above principles, we consider the purpose of the waiver of the
psychotherapist-patient privilege at issue here and the state’s interest in compelling
disclosure under it. Unlike the language of subdivision (b)(3), which mandates waiver of
any privilege against self-incrimination, the wording of subdivision (b)(4) explicitly sets
forth the purposes of the waiver of the psychotherapist-patient privilege: “to enable
communication between the sex offender management professional and supervising
probation officer, pursuant to Section 290.09.” Section 290.09, in turn, requires
communication between the sex offender management professional and the probation
officer for two purposes. First, the sex offender management professional must provide
the supervising probation officer with the probationer’s scores on the SARATSO risk
assessment tools. (Pen. Code, § 290.09, subd. (b)(2).) Second, the sex offender
management professional must communicate with the probation officer about the
probationer’s “progress in the program and dynamic risk assessment issues.” (Pen. Code,
§ 290.09, subd. (c).) By these provisions, the purposes of the psychotherapist-patient
privilege waiver are expressly limited and comparatively well defined.
       We find that the state’s interest in furthering such communication is legitimate and
substantial. The overriding goal of the Containment Model approach underlying the sex
offender management program is public safety and the reduction of recidivism. The
functioning of the model hinges in large part on open communication between the
probation officer and the psychotherapist. (Cal. Sex Offender Management Bd., Sex
Offender Treatment Program Certification Requirements, supra, at pp. 6-8.)
Furthermore, probationers, like the parolee in Gonzales, are inherently subject to a
greater degree of intrusion on their rights of privacy. (United States v. Knights, supra,
534 U.S. at p. 119.) Accordingly, we conclude that the state has a sufficiently substantial
interest in communication between these participants to justify disclosure here.



                                             26
       We next consider whether the scope of the waiver is properly tailored to this
interest, or whether the waiver must be more narrowly construed concomitant with the
purposes of the exception. (Stritzinger, supra, 34 Cal.3d at p. 511; Lifschutz, supra,
2 Cal.3d at p. 435; In re Sheena K., supra, 40 Cal.4th at p. 890.) Similar to the broad
language used in the waiver of the privilege against self-incrimination, the language of
the statute, read literally, requires the waiver of “any psychotherapist-patient privilege,”
regardless of the subject matter of the communication or the level of risk to public safety
absent disclosure. The waiver does not distinguish between comparatively more
dangerous or less dangerous probationers. But unlike the language of the waiver of the
privilege against self-incrimination, this broad language is followed by the phrase “to
enable communication between the sex offender management professional and
supervising probation officer, pursuant to Section 290.09.” This additional language
limits what may be done with the probationer’s communications once they are revealed.
       We will therefore narrowly construe the statute as requiring a waiver of the
psychotherapist-patient privilege only insofar as it is necessary “to enable communication
between the sex offender management professional and supervising probation
officer . . . .” (Pen. Code, § 1203.067, subd. (b)(4).) Specifically, we hold that defendant
may constitutionally be required to waive the psychotherapist-patient privilege only to
the extent necessary to allow the sex offender management professional to communicate
with the supervising probation officer. Furthermore, the supervising probation officer
may communicate defendant’s scores on the SARATSO risk assessment tools to the
Department of Justice to be made accessible to law enforcement as required under section
290.09, subdivision (b)(2). This narrow interpretation of the statute allows the
psychotherapist to communicate with the probation officer as necessary, furthering the
purposes of the exception as set forth in the statute. Apart from these exceptions, neither
the psychotherapist nor the probation officer may relay protected communications to



                                             27
some other third party under the waiver, and defendant’s privacy rights based on the
psychotherapist-patient privilege otherwise remain intact.8
                                    III.   DISPOSITION
      In light of our holding that the waiver requirement in Penal Code section
1203.067, subdivision (b)(3) is unconstitutional, we strike the language “waive any
privilege against self-incrimination and” from the probation condition implementing that
subdivision. As modified, the judgment is affirmed.




      8
        Presiding Justice Rushing’s separate concurrence notes that the right to privacy
under the California Constitution also protects the confidentiality of a probationer’s
psychotherapist-patient communications. (Cal. Const, art. I, § 1; Pettus v. Cole (1996)
49 Cal.App.4th 402, 440; Scull v. Superior Court (1988) 206 Cal.App.3d 784, 790.) The
waiver as narrowly construed above satisfies this state constitutional requirement.

                                            28
                          _______________________________
                          Márquez, J.




I CONCUR:




_______________________________
 Premo, J.




No. H040847
The People v. Rebulloza
RUSHING, P.J., Concurring
       I agree with the majority opinion that defendant cannot be compelled to waive his
immunity against self-incrimination, although he can be compelled to answer potentially
incriminating questions, on pain of revocation of probation, so long as his answers cannot
be used against him. I diverge somewhat from the majority opinion’s approach, however,
concerning the effect of defendant’s statutorily required waiver of the psychotherapist-
patient privilege. I believe California’s express guarantee of the right of privacy (Cal.
Const., art. I, § 1) compels a rule under which the waiver required by Penal Code section
1203.067, subdivision (b), permits the “sex offender management professional” to report
to the probation officer upon the defendant’s test scores, attendance, and general
cooperativeness in the therapy process, but does not otherwise permit the professional to
disclose, to the probation officer or anyone else, the content of any otherwise protected
psychotherapeutic communications. To the extent Penal Code section 1203.067 may be
understood or intended to require or permit disclosure of such communications, I would
hold it violative of our state constitutional guarantee of privacy.




                                    ______________________________________
                                               RUSHING, P.J.




People v. Rebulloza
H040847
Trial Court:                             Santa Clara County
                                         Superior Court No.: C1238226

Trial Judge:                             The Honorable Michele McKay McCoy



Attorney for Defendant and Appellant     Paul Couenhoven
Juan Jose Rebulloza:                     under appointment by the Court of
                                         Appeal for Appellant




Attorneys for Plaintiff and Respondent   Kamala D. Harris,
The People:                              Attorney General

                                         Gerald A. Engler,
                                         Senior Assistant Attorney General

                                         Laurence K. Sullivan,
                                         Supervising Deputy Attorney General

                                         Rene A. Chacon,
                                         Supervising Deputy Attorney General




People v. Rebulloza
H040847
