Filed 2/23/15 P. v. Jacaline CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040045
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1231928)

         v.

EDWARD TRABOCO JACALNE,

         Defendant and Appellant.


                                           I.        INTRODUCTION
         Defendant Edward Traboco Jacalne was placed on probation for three years after
he pleaded no contest to possessing matter depicting a person under the age of 18
engaging in sexual conduct. (Pen. Code, § 311.11, subd. (a).)1
         The trial court imposed the probation condition mandated by section 1203.067,
subdivision (b)(3), which requires defendant to “waive any privilege against self-
incrimination and participate in polygraph examinations, which shall be part of the sex
offender management program” (condition No. 2). The trial court also imposed a
probation condition barring defendant from purchasing or possessing “any pornographic
or sexually explicit material as defined by the probation officer” (condition No. 15) and a
probation condition barring defendant from cleaning or deleting “Internet browsing


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
activity” and requiring him to “keep a minimum of four weeks of history” (condition
No. 18).
       On appeal, defendant challenges the three probation conditions referenced above.
He claims the condition required by section 1203.067, subdivision (b)(3) violates his
constitutional rights under the Fifth and Fourteenth Amendments to the United States
Constitution, and that the condition is unreasonable and overbroad. He also claims that
condition No. 15 is unconstitutionally vague and that condition Nos. 15 and 18 both
require a knowledge element. The Attorney General concedes that condition Nos. 15 and
18 should be modified to include a knowledge element. We will modify conditions Nos.
15 and 18 and affirm the judgment as modified.

                                  II.   BACKGROUND
       After being found with child pornography on his computer, defendant was charged
with possessing matter depicting a person under the age of 18 engaging in sexual
conduct. (§ 311.11, subd. (a).) On March 4, 2013, he pleaded no contest to that charge.
       Defendant subsequently filed a motion to reduce his conviction to a misdemeanor
pursuant to section 17, subdivision (b), and he filed written challenges to a number of
probation conditions, including the conditions required by section 1203.067,
subdivisions (b)(3) and (b)(4).
       At the sentencing hearing held on August 7, 2013, the trial court granted
defendant’s section 17, subdivision (b) motion and placed him on probation for three
years. The trial court imposed the probation conditions required by section 1203.067,
subdivisions (b)(3) and (b)(4) over defendant’s objection, stating, “I believe they serve an
appropriate probation and supervision purpose.”2 The trial court also imposed condition



       2
        Defendant’s attorney subsequently filed a written request to be present at all
polygraph examinations and to have copies of all polygraph questions prior to any
polygraph examination.

                                             2
No. 15, barring defendant from purchasing or possessing “any pornographic or sexually
explicit material as defined by the probation officer,” and condition No. 18, barring
defendant from cleaning or deleting “Internet browsing activity” and requiring him to
“keep a minimum of four weeks of history.”
                                   III.   DISCUSSION
       We begin by setting forth some of the legal principles applicable to defendant’s
challenges to the probation conditions imposed on him.
       “In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.] ‘The court may impose and require . . . [such] reasonable conditions[ ] as it
may determine are fitting and proper to the end that justice may be done, that amends
may be made to society for the breach of the law, for any injury done to any person
resulting from that breach, and generally and specifically for the reformation and
rehabilitation of the probationer.’ [Citation.] The trial court’s discretion, although broad,
nevertheless is not without limits: a condition of probation must serve a purpose
specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to
require that probation conditions which regulate conduct ‘not itself criminal’ be
‘reasonably related to the crime of which the defendant was convicted or to future
criminality.’ [Citation.] As with any exercise of discretion, the sentencing court violates
this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds
of reason, all of the circumstances being considered.’ ” [Citations.]’ [Citation.]”
(People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
       Probation conditions may be challenged on the grounds of unconstitutional
vagueness and overbreadth. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)
“[W]here an otherwise valid condition of probation impinges on constitutional rights,
such conditions must be carefully tailored, ‘ “reasonably related to the compelling state



                                              3
interest in reformation and rehabilitation . . . .” ’ [Citations.]” (People v. Bauer (1989)
211 Cal.App.3d 937, 942.)
        “ ‘A statute or regulation is overbroad if it “does not aim specifically at evils
within the allowable area of [governmental] control, but . . . sweeps within its ambit other
activities that in the ordinary circumstances constitute an exercise” of protected
expression and conduct.’ [Citations.]” (People v. Leon (2010) 181 Cal.App.4th 943,
951.) “The essential question in an overbreadth challenge is the closeness of the fit
between the legitimate purpose of the restriction and the burden it imposes on the
defendant’s constitutional rights—bearing in mind, of course, that perfection in such
matters is impossible, and that practical necessity will justify some infringement.”
(In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
        In examining whether a probation condition is void for vagueness, courts have
considered whether the condition is “ ‘sufficiently precise for the probationer to know
what is required of him [or her]. . . .’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (Ibid.) That is, the defendant must know in advance when he or she may be
in violation of the condition.
        With the above principles in mind, we examine each of the conditions challenged
here.
        A.     Waiver of Privilege Against Self-Incrimination (Condition No. 2)
        As required by section 1203.067, subdivision (b)(3), defendant was ordered, as a
condition of probation, to “waive any privilege against self-incrimination and participate
in polygraph examinations, which shall be part of the sex offender management
program.” (Condition No. 2.)
               1.     Constitutional Challenge
        Defendant first contends the probation condition required by section 120.067,
subdivision (b)(3) violates the Fifth Amendment to the extent it requires him to waive

                                               4
any privilege against self-incrimination.3 He relies largely on Minnesota v. Murphy
(1984) 465 U.S. 420 (Murphy).
       In Murphy, the defendant was subject to a probation condition requiring that he
participate in a treatment program for sexual offenders, report to his probation officer as
directed, and be truthful with the probation officer “ ‘in all matters.’ ” (Murphy, supra,
465 U.S. at p. 422.) In his treatment program, the defendant admitted a prior rape and
murder. (Id. at p. 423.) Those admissions were communicated to the probation officer,
who questioned the defendant. The defendant admitted the crimes to the probation
officer, and criminal charges were filed as a result. The defendant then sought to
suppress his admissions on the ground that his statements had been compelled by the
probation condition. (Id. at pp. 424-425.)
       The United States Supreme Court emphasized that in general, the Fifth
Amendment is not self-executing: “a witness . . . ordinarily must assert the privilege
rather than answer if he [or she] desires not to incriminate himself [or herself].”
(Murphy, supra, 465 U.S. at p. 429.) The probation condition in Murphy required the
defendant only to be truthful, and thus the defendant still could have claimed the
privilege against self-incrimination. (Id. at pp. 436-437.) The Murphy court considered
whether there were any applicable exceptions to the general rule that the Fifth
Amendment is not self-executing. (Id. at p. 429.) In particular, the court considered
whether to excuse the defendant’s failure to assert the privilege against self-incrimination
on the basis of the “so-called ‘penalty’ ” exception. (Id. at p. 434.)



       3
        The Supreme Court is currently considering the constitutionality of the
conditions of probation mandated by section 1203.067, subdivision (b), for persons
convicted of specified felony sex offenses. (See People v. Klatt (2014) 225 Cal.App.4th
906, review granted July 16, 2014, S218755; People v. Friday (2014) 225 Cal.App.4th 8,
review granted July 16, 2014, S218288; People v. Garcia (2014) 224 Cal.App.4th 1283,
review granted July 16, 2014, S218197.)

                                              5
       The penalty exception had been applied in cases where “the State not only
compelled an individual to appear and testify, but also sought to induce him [or her] to
forego the Fifth Amendment privilege by threatening to impose economic or other
sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’
[Citation.]” (Murphy, supra, 465 U.S. at p. 434.) In Murphy, there was no evidence that
the defendant would have been penalized for exercising his Fifth Amendment privilege.
(Id. at pp. 437-438.) The probation condition itself “proscribed only false statements; it
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.)
Further, there was “no direct evidence that Murphy confessed because he feared that his
probation would be revoked if he remained silent.” (Ibid.)
       The Murphy court explained how the penalty exception could apply to a
probationer: “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, fn. omitted.) However, the court
noted, “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.” (Ibid., fn. 7.)
       As applied to this case, Murphy establishes that defendant’s Fifth Amendment
rights are not violated by the probation condition requiring him to waive the privilege
against self-incrimination as to questions asked during the sex offender management
program. The state has, “by implication, assert[ed] that invocation of the privilege” in
response to such incriminating questions “would lead to revocation” of probation. (See

                                              6
Murphy, supra, 465 U.S. at p. 435.) Thus, if defendant makes any statements in response
to questions posed to him during the sex offender management program, those statements
will be deemed compelled under the Fifth Amendment and thus involuntary and
inadmissible in a criminal prosecution. (Ibid.) Since such statements will necessarily fall
within the penalty exception, they will not be available for use at a criminal prosecution,
and defendant’s Fifth Amendment rights have not been violated. (See Chavez v.
Martinez (2003) 538 U.S. 760, 769 (Chavez) [plur. opn. of Thomas, J.] [the Fifth
Amendment is not violated “absent use of the compelled statements in a criminal case
against the witness”]; id. at p. 777 [conc. opn. of Souter, J.].)
       Defendant also cites to United States v. Saechao (9th Cir. 2005) 418 F.3d 1073
(Saechao). However, Saechao does not advance defendant’s contention because that
case was concerned with the admissibility of a defendant’s statements in a criminal
prosecution. No such contention is at issue here. Defendant has not made any
statements, and no one is seeking to introduce any statements against him in a criminal
prosecution. For the same reason, defendant’s claim is not supported by either People v.
Quinn (1964) 61 Cal.2d 551 or People v. Goodner (1992) 7 Cal.App.4th 1324, as both
cases addressed the admission of a defendant’s statements at trial.
       Defendant also relies on the Arizona Supreme Court’s decision in State v. Eccles
(Ariz. 1994) 179 Ariz. 226 (Eccles) to support his claim. In Eccles, the trial court had
imposed as a condition of probation that the defendant “waive any and all rights against
[self-incrimination].” (Id. at p. 227.) The probationer challenged the probation condition
itself as violative of the Fifth Amendment, and the Arizona Supreme Court agreed. It
reasoned: “Not only is the state prohibited from revoking probation for a legitimate
invocation of the privilege against self-incrimination, we perceive the import of the
Murphy decision as being that the state is also prohibited from making waiver of the
privilege a term of probation.” (Id. at p. 228.) “The state may not force defendant to
choose between incriminating himself and losing his probationary status by remaining

                                               7
silent. The fact that defendant has not yet been presented with the dilemma of either
incriminating himself or jeopardizing his probation does not affect our decision.” (Ibid.)
       The Arizona Supreme Court’s holding in Eccles—that a probation condition
authorizing extraction of compelled statements itself violates the Fifth Amendment—
conflicts with authority from our Supreme Court.
       In Maldonado v. Superior Court (2012) 53 Cal.4th 1112 (Maldonado), the
California Supreme Court rejected the defendant’s claim that the Fifth Amendment
provided “a guarantee against officially compelled disclosure of potentially self-
incriminating information.” (Id. at p. 1127.) The Maldonado court based its holding on
the rule that the Fifth Amendment applies only to use of a defendant’s incriminating
statements; the Fifth Amendment does not bar the government from compelling those
statements. (Id. at pp. 1134, 1137.)
       The California Supreme Court’s decision in Maldonado relied on the United
States Supreme Court’s decision in Chavez, supra, 538 U.S. 760. Chavez was a civil
action involving qualified immunity. The issue was whether a police officer who
allegedly compelled statements from the plaintiff could be held liable for violating the
plaintiff’s civil rights. The plaintiff claimed that the police officer had violated the Fifth
Amendment. The United States Supreme Court produced a plurality opinion and
multiple separate opinions rejecting the plaintiff’s theory. Justice Thomas wrote the lead
opinion. In a section of his opinion joined by three other justices, Justice Thomas stated
that compelled statements “of course may not be used against a defendant at trial,
[citation], but it is not until their use in a criminal case that a violation of the Self-
Incrimination Clause occurs.” (Id. at p. 767.) “[M]ere coercion does not violate the text
of the Self-Incrimination Clause absent use of the compelled statements in a criminal
case against the witness.” (Id. at p. 769.) Writing separately, Justice Souter
acknowledged that it would be “well outside the core of Fifth Amendment protection” to
find that “questioning alone” was a “completed violation” of the Fifth Amendment and

                                                8
declined to extend the Fifth Amendment to such a claim. (Id. at p. 777.) Thus, five
justices held in Chavez that the Fifth Amendment is not violated by the extraction of
compelled statements.
      We are bound by Maldonado and Chavez (see Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455), and they hold that the mere extraction of compelled
statements does not violate the Fifth Amendment. Since the challenged probation
condition does not purport to authorize the use of any statements against defendant in a
criminal proceeding, it does not violate the Fifth Amendment.
      Finally, defendant contends that the probation condition violates his Fifth
Amendment rights because the Post-Conviction Sex Offender Polygraph Certification
Standards, promulgated by the California Sex Offender Management Board, instruct
polygraph examiners to ask a number of questions related to potentially uncharged
offenses during polygraph tests. (See Cal. Sex Offender Management Bd., Post-
Conviction Sex Offender Polygraph Standards at pp. 10-23.)4
      Defendant relies on United States v. Antelope (9th Cir. 2005) 395 F.3d 1128
(Antelope) for the proposition that “[s]ubmission to a polygraph examination that requires
investigation and disclosure of uncharged offenses violates the Fifth Amendment.” In
Antelope, the defendant objected on Fifth Amendment grounds to probation conditions
requiring him to participate in a sex abuse treatment program and submit to polygraph
examinations. During the polygraph examinations, he refused to “reveal his full sexual
history.” (Id. at p. 1132.) His probation was revoked, and he was incarcerated. The
Ninth Circuit concluded that the defendant’s claim was “ripe” because he had been
incarcerated for his refusal to comply with the condition. (Id. at pp. 1132-1133.) The
court further concluded that revoking the defendant’s probation and incarcerating him for

      4
        The Post-Conviction Sex Offender Polygraph Standards are available at
http://www.casomb.org/docs/certification_standards/polygraph_standards.pdf [as of
February 19, 2015].

                                            9
invoking his Fifth Amendment rights violated the Fifth Amendment. (Id. at pp. 1134-
1140.)
         Antelope is not relevant here. Defendant is making a facial challenge to the
probation condition; he has not been subjected to any sanction for refusing to comply
with it. We do not have before us in this case the issue of whether defendant may have
his probation revoked for refusing to comply with this condition.
         In sum, because the penalty exception will necessarily apply to statements that
defendant makes in response to questions asked as part of the sex offender management
program under compulsion of the section 1203.067, subdivision (b)(3) probation
condition, and because defendant has not been sanctioned for refusing to comply with the
probation condition, defendant’s Fifth Amendment challenge to the condition fails.
                2.     Reasonableness Challenge
         Defendant alternatively contends the probation condition required by
section 1203.067, subdivision (b)(3) should be stricken as unreasonable under People v.
Lent (1975) 15 Cal.3d 481 (Lent).
         Under Lent, a condition of probation will be held invalid if it “ ‘(1) has no
relationship to the crime of which the offender was convicted, (2) relates to conduct
which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably
related to future criminality . . . .’ [Citation.]” (Lent, supra, 15 Cal.3d at p. 486,
fn. omitted.) “This test is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term. [Citations.] As such, even if a
condition of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is valid as long
the condition is reasonably related to preventing future criminality.” (People v. Olguin
(2008) 45 Cal.4th 375, 379-380.)
         The primary purpose of the sex offender management program, which sex
offenders like defendant are statutorily required to complete as a condition of probation,

                                               10
is to prevent the probationer from committing sexual offenses in the future. (§ 9000,
subd. (d).) The program is “designed to address the multiple psychological and
physiological factors found to be associated with sexual offending.” (§ 9000, subd. (c).)
The trial court could have reasonably concluded that, without defendant’s full disclosure
of the circumstances of all of his or her prior offenses, the program would not be able to
identify the “psychological and physiological factors” that were “associated with [his or
her] sexual offending.” The program would then have no hope of providing the treatment
necessary to reform and rehabilitate defendant in order to prevent him or her from
repeating this pattern and committing future offenses. Since full disclosure is necessary
to identify these factors, and identification of these factors is critical to the success of
the treatment program, which is aimed at preventing future sex offenses, the
section 1203.067, subdivision (b)(3) condition is reasonably related to defendant’s
future criminality. (See People v. Miller (1989) 208 Cal.App.3d 1311, 1314-1315,
[upholding polygraph examination requirement as reasonably related to ensuring that
sex offender complied with a condition barring defendant from being alone with young
females]; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319 [polygraph
examinations would aid in ensuring the defendant completed his stalking treatment
program].)
              3.      Overbreadth
       Defendant argues that the section 1203.067, subdivision (b)(3) probation condition
requires him to answer questions about any topic, even questions that do not relate to the
sex offender management program. He contends that this renders the condition not only
unreasonable under Lent, but also unconstitutionally overbroad.
       In interpreting the scope of the probation condition mandated by section 1203.067,
subdivision (b)(3), we must apply settled rules of statutory construction. “ ‘ “The goal of
statutory construction is to ascertain and effectuate the intent of the Legislature.
[Citation.] Ordinarily, the words of the statute provide the most reliable indication of

                                               11
legislative intent. [Citation.] When the statutory language is ambiguous, the court may
examine the context in which the language appears, adopting the construction that best
harmonizes the statute internally and with related statutes. [Citations.]” [Citation.]
“ ‘When the language is susceptible of more than one reasonable interpretation . . . , we
look to a variety of extrinsic aids, including the ostensible objects to be achieved, the
evils to be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a part.’ ”
[Citation.]’ [Citations.]” (People v. Kennedy (2011) 194 Cal.App.4th 1484, 1490-1491.)
Further, we must construe a statute in a manner that ensures its constitutionality, if
possible. (See People v. Lowery (2011) 52 Cal.4th 419, 427.)
       Here, the plain language of the statute indicates that the waiver of the privilege
against self-incrimination applies only to statements made in response to questions asked
as “part of the sex offender management program.” (§ 1203.067, subdivision (b)(3).)
The compound subject “[w]aiver of any privilege against self-incrimination and
participation in polygraph examinations” is modified by the phrase “which shall be part
of the sex offender management program.” (Ibid.) Thus, the plain language of the statute
indicates a waiver of the privilege against self-incrimination is required only as “part of
the sex offender management program.” (Ibid.)
       In light of the overall statutory scheme and the legislative history of
section 1203.067, to the extent there is any ambiguity in the language of the statute, we
conclude the Legislature intended to require that probationers waive the privilege against
self-incrimination only in the context of the sex offender management program.
Section 1203.067, subdivision (b) applies to probationers who are also required to
register as sex offenders under section 290, and the Legislature has previously
recognized that those persons are “ ‘likely to commit similar offenses in the future.
[Citation.]’ [Citations.]” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Thus,
in enacting section 1203.067, subdivision (b), the Legislature recognized that it is

                                             12
appropriate to grant probation to a sex offender only if the risks can be managed, and that
participation in a sex offender management program will help manage those risks. Since
the Legislature’s intent was to manage the risk of recidivism posed by sex offenders by
compelling their participation in a sex offender management program, there is no basis
for construing the statute as mandating a “[w]aiver of any privilege against self-
incrimination and participation in polygraph examinations” as to questions asked for any
purpose other than as “part of the sex offender management program.” (§ 1203.067,
subdivision (b)(3).)
       As the probation condition requires polygraph examinations to be used only in
furtherance of a probationer’s treatment, and thus requires that the questions asked be
relevant to that treatment, defendant’s claim that the condition is overbroad fails.
       B.     Condition No. 15
       Condition No. 15 bars defendant from purchasing or possessing “any
pornographic or sexually explicit material as defined by the probation officer.”
Defendant challenges this condition as unconstitutionally vague, arguing that the
condition fails to provide him advance notice of what materials are prohibited and that
the condition should either be stricken or modified to include a knowledge element. The
Attorney General disputes that the condition is vague but concedes that the condition
should be modified to include a knowledge requirement.
       “[T]he law has no legitimate interest in punishing an innocent citizen who has no
knowledge of the presence of a [prohibited item].” (People v. Freitas (2009) 179
Cal.App.4th 747, 752 [modifying probation condition to prohibit knowing possession of a
firearm or ammunition].) Accordingly, courts have consistently ordered modification of
probation conditions to incorporate a scienter requirement where a probationer could
unknowingly engage in the prohibited activity. (E.g., In re Victor L. (2010) 182
Cal.App.4th 902, 912-913 [modifying probation condition to prohibit knowing presence
of weapons or ammunition].)

                                             13
       In People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), this court modified a
probation condition that prohibited the defendant from purchasing or possessing
pornographic or sexually explicit materials as defined by the probation officer. This
court explained, “Materials deemed explicit or pornographic, as defined by the probation
officer, is an inherently subjective standard that would not provide defendant with
sufficient notice of what items are prohibited.” (Id. at p. 1353.) This court modified the
condition to state that the defendant was “prohibited from purchasing or possessing
pornography or sexually explicit materials, having been informed by the probation officer
that such items are pornographic or sexually explicit.” (Ibid.)
       Following the rationale of Pirali, we will modify condition No. 15 to include an
express knowledge requirement and to delete the phrase “as defined by the probation
officer.” In his opening brief, defendant suggests we modify the condition to provide
“the defendant shall not knowingly purchase or possess any pornographic or sexually
explicit material.” The Attorney General suggests we modify the condition to provide as
follows: “The defendant shall not knowingly purchase or possess any materials which he
knows or reasonably should know contain pornographic or sexually explicit material,
except with the express permission of his probation officer.” In his reply brief, defendant
suggests we modify the condition consistent with the modification in Pirali.
       We believe that the condition will give defendant fair notice of what materials he
may not possess if it is modified to provide as follows: “The defendant shall not
purchase or possess any material he knows or reasonably should know to be
pornographic or sexually explicit.”
       C.     Condition No. 18
       Condition No. 18 bars defendant from cleaning or deleting “Internet browsing
activity” and requires him to “keep a minimum of four weeks of history.” Defendant
contends this condition requires a knowledge element because it is possible to
accidentally erase browsing history from a computer. The Attorney General agrees that

                                            14
adding a knowledge element would avoid defendant’s probation being revoked for such
an accident. We will therefore modify the condition to provide: “The defendant shall not
knowingly clean or delete Internet browsing activity and must keep a minimum of four
weeks of history.”

                                 IV.   DISPOSITION
      Condition No. 15 is modified to read as follows: “The defendant shall not
purchase or possess any material he knows or reasonably should know to be
pornographic or sexually explicit.”
      Condition No. 18 is modified to read as follows: “The defendant shall not
knowingly clean or delete Internet browsing activity and must keep a minimum of four
weeks of history.”
      As modified, the judgment is affirmed.




                                          15
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




I CONCUR:




__________________________
MIHARA, J.
GROVER, J., Concurring and Dissenting.
       I concur in the majority opinion regarding defendant’s challenge to probation
condition No. 15, prohibiting defendant from purchasing or possessing pornographic
material, and condition No. 18, requiring defendant to preserve his internet browsing
activity. I respectfully disagree, however, with the majority’s analysis and conclusions in
Section III.A regarding the requirements imposed under Penal Code section 1203.067,
subdivision (b)(3) that defendant waive his Fifth Amendment privilege against self-
incrimination and participate in polygraph examinations as part of a sex offender
management program. As I explain below, I find the Fifth Amendment waiver required
by that subdivision to be invalid on its face. I would uphold the condition that defendant
participate in polygraph examinations, provided the condition is construed narrowly to
conform with People v. Lent (1975) 15 Cal.3d 481 (Lent).
                          I. FIFTH AMENDMENT WAIVER
A.     Defendant’s Challenge is Timely
       Penal Code section 1203.067, subdivision (b)(3) requires defendant, as a condition
                                                               1
of probation, to waive his privilege against self-incrimination. Defendant argues that
this statutory waiver is facially unconstitutional because it creates an “impermissible
penalty situation” described in Murphy v. Minnesota (1984) 465 U.S. 420 (Murphy).
Based on Chavez v. Martinez (2003) 538 U.S. 760 (Chavez) and Maldonado v. Superior
Court (2012) 53 Cal.4th 1112 (Maldonado), the majority concludes that the Fifth


       1
         Penal Code section 1203.067, subdivision (b)(3) (hereafter sometimes referred
to as subdivision (b)(3)) requires a “[w]aiver of any privilege of self-incrimination and
participation in polygraph examinations, which shall be part of the sex offender
management program.” I note that subdivision (b)(3) is ambiguous because the phrase
“[w]aiver of any privilege against self-incrimination” can be read as applying only to
“polygraph examinations” or more broadly to “the sex offender management program.”
While it is unnecessary to resolve this statutory ambiguity because I find the provision
unconstitutional under either construction, my opinion refers to the waiver as applied in
the broader sense to defendant’s participation in the sex offender management program.


                                             1
Amendment is violated only when a compelled statement is used against a defendant in a
criminal proceeding; thus, the majority effectively treats defendant’s Fifth Amendment
challenge as unripe because defendant has made no disclosure sought to be used against
him.
       Defendant’s facial challenge to the waiver requirement is proper because it
prevents him from asserting his Fifth Amendment privilege in connection with the sex
offender management program mandated as a condition of his probation. The Fifth
Amendment does more than permit a defendant to refuse to testify in a criminal trial.
(Murphy, supra, 465 U.S. at p. 426.) It also “ ‘privileges [a person] not to answer official
questions put to him in any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal proceedings.’ [Citation.].” (Ibid;
Kastigar v. United States (1972) 406 U.S. 441, 444–445 [the privilege “can be asserted in
any proceeding … and it protects against any disclosures which the witness reasonably
believes could be” incriminating].) The privilege extends to answering questions posed
by probation officers (Murphy, at p. 426) and polygraph examiners (People v. Miller
(1989) 208 Cal.App.3d 1311, 1315; Brown v. Superior Court (2002)
101 Cal.App.4th 313, 321). Defendant asserts that he cannot be required as a condition
of probation to waive his right to assert the privilege and remain silent.
       Orders granting probation are appealable under Penal Code section 1237,
subdivision (b) as post-judgment orders affecting the substantial rights of a defendant.
(In re Bine (1957) 47 Cal.2d 814, 817.) A defendant who accepts the terms of probation
“may seek relief from the restraint of any alleged invalid condition of probation on appeal
from the order granting probation[.]” (In re Bushman (1970) 1 Cal.3d 767, 776.)
Defendant’s challenge is therefore properly before this court as a challenge to an invalid
probation condition. It would be inconsistent with Penal Code section 1237 to force
defendant either to violate his probation terms by disregarding the waiver or to comply
with the waiver and forego asserting a right to remain silent before allowing him to

                                              2
challenge the waiver as unlawful. It is also inconsistent with the well-established practice
of reviewing probation conditions for constitutional infirmity before any revocation
occurs. (In re Sheena K. (2007) 40 Cal.4th 875.)
       Chavez and Maldonado do not support the view that defendant’s Fifth
Amendment claim is not actionable. 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
following an altercation with police officers. Plaintiff alleged that the emergency room
questioning violated both his Fifth and Fourteenth Amendment rights. (Chavez, supra,
538 U.S. at p. 765.) The Ninth Circuit upheld the denial of qualified immunity to the
parole officer, concluding that the “ ‘right to be free from coercive interrogation’ ” was
clearly established under both the Fifth and Fourteenth Amendments. (Id. at pp. 765–
766.) The Supreme Court reversed, concluding that the plaintiff could not allege a Fifth
Amendment violation because he “was never prosecuted for the crime, let alone
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 “cannot support the Ninth Circuit’s view
that the mere use of compulsive questioning, without more, violates the Constitution.”
(Id. at p. 767.)
       In Maldonado, the criminal defendant asserted a mental-state defense. Pursuant to
Penal Code section 1054 (providing for reciprocal discovery), the prosecution obtained a
court order requiring the defendant to submit to a mental examination by prosecution-
selected experts, and a disagreement arose regarding the 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

                                             3
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.)
       I do not read Chavez and Maldonado as standing for the proposition that a
probationer may not challenge probation conditions under the Fifth Amendment until a
compelled statement is used against him in a criminal proceeding. While both cases
recognize that merely eliciting an incriminating statement does not violate the Fifth
Amendment, neither case precludes immediate review of the issue presented here:
whether the state can condition probation on waiving the right to remain silent when
confronted with potentially incriminating questions.

B.     The Waiver Unconstitutionally Infringes on the Privilege Against
       Self-Incrimination
       Penal Code section 1203.067, subdivision (b)(3) requires the waiver of “any
privilege against self-incrimination” while participating in the sex offender management
program. As discussed above, the privilege includes more than a defendant’s right to
remain silent at a criminal proceeding. It also embodies the right to refuse to answer
potentially incriminating questions in informal settings, including in the probation
context. Indeed, no one disputes that, absent the subdivision (b)(3) waiver, defendant
could assert his Fifth Amendment privilege and elect not to provide incriminating
information as part of the sex offender management program. Defendant contends that
any impingement on this right as a condition of probation is an unlawful penalty under
Murphy.
       Because the Fifth Amendment speaks of compulsion, as a general rule a person
must invoke the privilege by refusing to answer incriminating questions. The privilege is
not self-executing and must be claimed. Otherwise, the 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


                                             4
‘foreclos[e] a free choice to remain silent, and … compe[l] … incriminating testimony.’
[Citation].” (Id. at p. 434.) In such a situation, the privilege need not be asserted but
instead is considered self-executing because the disclosure is deemed compelled by the
threat of penalty. (Ibid.) Under this “penalty exception,” if a person incriminates himself
under threat of a penalty for the refusal to answer, the statement is deemed compelled and
cannot be used against the person in a criminal proceeding. (Ibid.) Conversely, if a
penalty is imposed on a person 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.
       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 occurring several years before the offense
for which he 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 admission
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
to his probation officer. (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, I agree with defendant that the application of Murphy to the probation
condition in this case demands a different result.
       Murphy formulated a test in determining whether the condition requiring the
probationer to speak truthfully constituted a “threat of punishment for reliance on the

                                              5
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. In both cases, the witness and the probationer are
required to answer unless the questions call for incriminating answers. (Ibid.) Murphy
then determined 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
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” (ibid.) because it did not require Murphy to choose between incriminating
himself and jeopardizing his probation by remaining silent. In contrast, Penal Code
section 1203.067, subdivision (b)(3) requires that the privilege against self-incrimination
be waived in order to be granted probation under that section.



                                              6
       Application of the Murphy test here compels the conclusion that the challenged
waiver is unconstitutional precisely because it does impose an impermissible choice
between self-incrimination and conditional liberty. This 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 (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 rights 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, the Oregon Court of Appeal also
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.) Facing 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 was charged
with the offense. (Ibid.) Suppressing the admission, the Oregon court observed: “That is
precisely the situation forbidden by Murphy … . If defendant had no choice other than to



                                              7
disclose or face revocation of his probation, Murphy … hold[s] that any subsequent
statement was made involuntary.” (Id. at p. 138.)
         In United States v. Saechao (2005) 418 F.3d 1073, the Ninth Circuit concluded
that an Oregon condition requiring a probationer to “ ‘promptly and truthfully answer’ all
reasonable inquiries” or face revocation of probation was unconstitutional under Murphy
because it took the “ ‘impermissible step’ ” of requiring the probationer to choose
between exercising his right to remain silent or jeopardize his conditional liberty. (Id. at
p. 1075). Like Gaither, Saechao upheld the trial court’s order suppressing evidence
obtained as a result of the probationer’s incriminating responses. The majority
distinguishes Saecheo based on that case involving use of a defendant’s statement in a
criminal proceeding. (Maj. Opn., p. 7.) But the posture of the case does not undermine
the Saecheo court’s conclusions that the defendant was compelled by threat of penalty to
respond to his probation officer and that compulsion was unconstitutional. (Id. at p.
1081.)
         The Ninth Circuit addressed another probation penalty situation in United States v.
Antelope (2005) 395 F.3d 1128 (Antelope). The majority dismisses Antelope as irrelevant
because it was not a facial challenge to a probation condition, as here. But Antelope
illustrates the type of penalty discussed, although not found to be present, in Murphy and
the impermissibly coercive effect of such a penalty 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

                                              8
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. Inmate Lile 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
agreeing that the alteration in the inmate’s prison conditions 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.].) Although “not all pressure necessarily ‘compels’
incriminating statements” (id. at p. 49), Justice O’Connor recognized that a penalty
involving longer incarceration would not be constitutionally permissible. (Id. at p. 52.)
Based on Justice O’Connor’s view, Antelope concluded that the probationer’s privilege
against self-incrimination was violated because he suffered additional incarceration
which amounted to a penalty for exercising his right to remain silent. (Antelope, supra,
395 F.3d at p. 1138.) Antelope concluded that the case presented the classic penalty
situation contemplated in Murphy. (Id. at p. 1138, fn. 4.)
       The application of Murphy’s analysis in Eccles, Gaither, and Saecheo, and
Antelope’s recognition that Murphy continues to set the standard for compulsion in
probation penalty cases, lead me to conclude that the waiver required by Penal Code
section 1203.067, subdivision (b)(3) violates the Fifth Amendment on its face. I am not
persuaded by the majority’s view that such authorities do not apply here to the extent
they involve probationers’ compelled statements which are sought to be used against
them in later prosecutions. The fact that defendant challenges the subdivision (b)(3)
waiver on its face rather than challenging the use of statements resulting from that waiver
does not affect the import of Murphy. The denial of probation for refusal to accept the
mandated condition attaches an impermissible penalty to the exercise of the Fifth
Amendment privilege against self-incrimination.

                                             9
       The majority concludes that the required waiver does not violate the Fifth
Amendment “because the penalty exception will necessarily apply to statements that
defendant makes in response to questions asked as part of the sex offender management
program under the compulsion of the section 1203.067, subdivision (b)(3) probation
condition.” (Maj. Opn., p. 10.) This view ignores that the Fifth Amendment privileges a
person not to answer questions posed in other proceedings (Murphy, supra, 465 U.S. at
p. 426) and that the very purpose of the subdivision (b)(3) waiver is to deny defendant the
privilege of not answering questions, including those where the answers might
incriminate him. Requiring the waiver and then compelling answers creates 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].) However with the waiver properly stricken from subdivision (b)(3),
participants in the sex offender management program may choose whether to assert their
right to remain silent, and issues of 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.
       I recognize that probation is a privilege not a right, and a defendant can refuse
probation and accept a sentence if he views the conditions of probation as too harsh.
(People v. Bravo (1987) 43 Cal.3d 600, 608.) But probation was a privilege long before
Murphy was decided. (See Burns v. United States (1932) 287 U.S. 216, 220 [probation is
a matter of favor conferred as a privilege]; Kirsch v. United States (8th Cir. 1949)
173 F.2d 652, 654 [probation is a matter of grace].) Murphy’s reasoning removes Fifth
Amendment restrictions from the reach of probation conditions (Murphy, supra, 465 U.S.
at p. 438 [“Our decisions have made clear that the State could not constitutionally carry
out a threat to revoke probation for the legitimate exercise of the Fifth Amendment

                                             10
privilege.”]). I do not reach whether the waiver is overbroad or otherwise unreasonable
under Lent, supra, 15 Cal.3d 481, because in my view no narrowing of the condition
would cure the Fifth Amendment infirmity.
            II. PARTICIPATION IN POLYGRAPH EXAMINATIONS
A.     The Requirement Does not Infringe on the Privilege Against
       Self-Incrimination

       Relying primarily on Antelope, supra, 395 F.3d 1128, defendant argues that
participation in a polygraph examination violates the Fifth Amendment because the
questions are investigatory in nature. Antelope did not hold that the sex abuse recovery
program at issue in that case, or 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.)
B.     The Requirement is Construed as Imposing Lent’s Reasonableness
       Limitations and is not Overbroad

       Defendant challenges the requirement that he participate in polygraph
examinations as overbroad and unreasonable. Under Lent, supra, 15 Cal.3d 481, “a
condition of probation which requires or forbids conduct which is not itself criminal is
valid if that conduct is reasonably related to the crime of which the defendant was
convicted or to future criminality.” (Id. at p. 486.) In Brown v. Superior Court, supra,
101 Cal.App.4th 313, the court addressed a stalking probationer’s overbreadth challenge
to a similar condition. Brown held that mandatory polygraph testing as a condition of
probation was reasonably related to the stalking conviction and to possible future
criminality. (Id. at p. 319.) Brown also held that the probation condition must be
narrowed under Lent to “limit the questions allowed to those relating to the successful
completion of the stalking therapy program and the crime of which Brown was


                                            11
convicted.” (Id. at p. 321.) As in Brown, the basic requirement that defendant participate
in polygraph examinations comports with Lent, provided the questions posed to him are
reasonably related to his successful completion of the sex offender management program,
the crime of which he was convicted, or related criminal behavior, whether past or future.
Because the language of subdivision (b)(3) mandates that participation in polygraph
examinations be part of the sex offender management program, I would construe this
condition as imposing the limitations required by Lent and Brown. Specifically, I would
construe the polygraph examination participation requirement as allowing only questions
relating to the successful completion of the sex offender management program, to the
crime of which defendant was convicted, and to future criminal behavior. So construed,
the condition is not overbroad and accords with Lent.
                                   III. CONCLUSION
       Because I find the waiver mandated by Penal Code section 1203.067,
subdivision (b)(3) facially violates the Fifth Amendment, I would strike the words
“Waiver of any privilege against self-incrimination and” from the subdivision. With the
offending language stricken, the subdivision would pose no Fifth Amendment infirmities.
I would construe the polygraph examination participation requirement as allowing only
questions relating to successful completion of the sex offender management program, to
the crime of which defendant was convicted, and to future criminal behavior.
Accordingly, I dissent from Section III.A of the majority opinion, and from the
disposition to the extent it affirms imposition of a “waiver of any privilege against self-
incrimination” as part of defendant’s probation conditions.



                                           ______________________________________
                                           Grover, J.




                                             12
