Filed 4/16/15 P. v. Garcia 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H040077
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1242134)

         v.                                                    ORDER MODIFYING OPINION AND
                                                               DENYING REHEARING
MARLON IVAN CHAVEZ GARCIA,
                                                               [NO CHANGE IN JUDGMENT]
         Defendant and Appellant.



THE COURT:
         The above captioned opinion, filed on March 26, 2015, is hereby modified as
follows: On page 16 of the opinion, at the end of Section II.A.4., insert the following
paragraph:

                Defendant further argues that the waiver required by section
         1203.067(b)(4) infringes upon his statutory psychotherapist-patient
         privilege under Evidence Code section 1014. To the extent the statutes
         conflict, it is the later, more specific statute that controls. (Nguyen v.
         Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1550, quoting Young
         v. Haines (1986) 41 Cal.3d 883, 894; Orange Unified School Dist. v.
         Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750,
         757.) Because the Legislature enacted section 1203.067(b)(4) after it
         enacted Evidence Code section 1014, and because the former is more
         specific than the latter, we conclude the waiver requirement supersedes the
         evidentiary privilege. (Stats. 2010, ch. 219, § 17; Stats. 1994, ch. 1010,
         § 106.)
There is no change in the judgment.
The petition for rehearing is denied.



                                            _________________________
                                            MÁRQUEZ, J.


                                            _________________________
                                            GROVER, J.




Bamattre-Manoukian, Acting P.J., would grant the petition for rehearing.



                                   _____________________________________
                                   Bamattre-Manoukian, Acting P.J.




                                        2
Filed 3/26/15 (unmodified version)
                      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,                                                          H040077
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1242134)

         v.

MARLON IVAN CHAVEZ GARCIA,

         Defendant and Appellant.



         Defendant Marlon Ivan Chavez Garcia pleaded no contest to one count of
possession of child pornography. (Pen. Code, § 311.11, subd. (a).)1 The trial court
granted a three-year term of probation that included six months of electronic monitoring
as a condition of probation. The court then ordered, among other conditions of probation,
that defendant complete a sex offender management program as mandated by Penal Code
section 1203.067 (section 1203.067). The court also imposed seven probation conditions
requiring defendant: (1) to waive any privilege against self-incrimination and participate
in polygraph examinations as part of the sex offender management program under section
1203.067(b)(3); (2) to waive any psychotherapist/patient privilege to enable
communication between the sex offender management professional and the probation
officer under section 1203.067(b)(4); (3) not to access the internet without prior approval

         1
             Subsequent undesignated statutory references are to the Penal Code.
of the probation officer; (4) not to purchase or possess any pornographic or sexually
explicit material as defined by the probation officer; (5) not to date, socialize with, or
form a romantic relationship with any person who has physical custody of a minor unless
approved by the probation officer; (6) not to possess or use any data encryption technique
program; and (7) not to frequent, be employed by, or engage in any business where
pornographic materials are openly exhibited.
       On appeal, defendant challenges these probation conditions variously as
unconstitutional, overbroad, and lacking in scienter requirements. First, we hold that the
condition requiring a waiver of the privilege against self-incrimination is prohibited by
the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy) and
must be stricken. 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 as construed in this
fashion is not overbroad in violation of defendant’s constitutional right to privacy. Third,
we hold the condition ordering defendant not to date, socialize or form any romantic
relationship with any person who has physical custody of a minor is unconstitutionally
vague and overbroad. We will remand to the trial court to consider whether to impose an
alternative condition consistent with our reasoning below. Finally, we will order the trial
court to insert scienter requirements into the remaining conditions.
                      I. FACTUAL AND PROCEDURAL BACKGROUND2
       On July 19, 2012, San José police executed a search warrant at defendant’s home.
Police found child pornography downloaded onto computers and hard drives taken from
defendant’s bedroom. There was no evidence defendant was involved in the production



       2
        Our statement of the facts of the offense is based on defendant’s motion to
reduce a felony to a misdemeanor, filed in the trial court. The record contains no other
statement of the facts.

                                              2
or distribution of child pornography, and no file-sharing software was found on
defendant’s computers.
       The prosecution charged defendant by complaint with a single count of possessing
matter depicting a person under 18 engaging in or simulating sexual conduct. (§ 311.11,
subd. (a).) Defendant pleaded no contest. At sentencing on July 31, 2013, the trial court
granted a three-year term of probation that included six months of electronic monitoring
as a condition of probation.
       The trial court then imposed the probation conditions at issue here, as follows:
“You shall waive any privilege against self-incrimination and participate in polygraph
examinations, which shall be part of the program pursuant to 1203.067(b)(3) of the Penal
Code. The Court wants to make sure that its intention is known, and that is that this
waiver is limited to facilitate the successful completion of the program. This also applies
to the next condition. [¶] You shall waive any psychotherapist/patient privilege to
enable communication between the sex offender management professional and probation
officer pursuant to Section 1203.067(b) (4) and Section 290.09 of the Penal Code.” The
court then ordered: “You may not date, socialize with, or form a romantic relationship
with any person who has physical custody of a minor unless approved by the probation
officer. [¶] You shall not purchase or possess any pornographic or sexually explicit
material as defined by the probation officer. You shall not frequent, be employed by, or
engage in any business where pornographic materials are openly exhibited. You shall not
access the internet or any other online service, through the use of a computer or other
electronic device, including a phone, at any location, including place of employment,
without prior approval of the probation officer. [¶] You shall not possess or use any data
encryption technique program.” Defendant objected to all these conditions, among
others, but the trial court implicitly overruled defendant’s objections by imposing the
conditions.



                                             3
                                       II. DISCUSSION
   A. Section 1203.067 Waivers
       Defendant challenges the constitutionality of two waivers required under section
1203.067. He contends the condition requiring waiver of any privilege against self-
incrimination under section 1203.067(b)(3) violates the Fifth Amendment and is
overbroad. Second, he contends the condition requiring waiver of any psychotherapist-
patient privilege under section 1203.067(b)(4) violates his constitutional right to privacy.
The Attorney General argues that both waiver conditions are constitutional as worded.
       1. Statutory Scheme
       Under section 1203.067(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 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

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

                                             4
potential victims from future harm.” (Pen. Code, § 290.03, subd. (b), Stats. 2006,
ch. 337, § 12.) The Containment Act now 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
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.)
       2. Waiver of Any Privilege Against Self-Incrimination
       By requiring the waiver of “any privilege against self-incrimination,” the plain
language of section 1203.067(b)(3) squarely implicates defendant’s rights under the Self-

                                             5
Incrimination Clause of the Fifth Amendment. Furthermore, the “core” right of the Self-
Incrimination Clause protects against the use of compelled statements “in a criminal
proceeding against the person who gave them.” (Maldonado v. Superior Court (2012)
53 Cal.4th 1112, 1128 (Maldonado) [citing Chavez v. Martinez (2003) 538 U.S. 760,
766-773 (plur. opn. of Thomas, J.) (Chavez)], original italics.) Because the statute
requires waiver of any privilege against self-incrimination, the probation condition
necessarily includes a waiver of the “core” right under the Self-Incrimination Clause.
The plain language of the waiver, if left intact, would therefore allow the state to use
defendant’s compelled statements against him in a separate criminal proceeding. The
United States Supreme Court, however, has held that the Fifth Amendment prohibits the
state from using a probationer’s compelled statements against the probationer in a
separate criminal proceeding.4 (Murphy, supra, 465 U.S. 420; accord United States v.
Saechao (9th Cir. 2005) 418 F.3d 1073; United States v. Antelope (9th Cir. 2005)
395 F.3d 1128.)
       Furthermore, the United States Supreme Court has held that a state may not
compel a probationer to waive the right to invoke the Fifth Amendment or otherwise
punish a probationer for invoking its protections: “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 privilege.” (Murphy, supra, 465 U.S. at
p. 438.) This holding was based on the United States Supreme Court’s longstanding
“penalty cases” jurisprudence, under which the Fifth Amendment prohibits a compelled,
prospective waiver of the Fifth Amendment, even prior to and apart from any criminal
       4
        Murphy referred to “compelled” statements as those compelled over a valid
claim of the Fifth Amendment. (Murphy, supra, 465 U.S. at p. 427.) However, the Fifth
Amendment is not “self-executing.” (Id. at p. 425.) If a probationer does not explicitly
invoke the Fifth Amendment, he or she voluntarily waives the privilege against self-
incrimination and the statements are not “compelled” within the meaning of the Fifth
Amendment. Under these circumstances, the probationer’s statements may be used in a
criminal prosecution, just as Murphy’s statements were used against him.

                                              6
proceeding. (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, 283; Gardner v. Broderick (1968) 392 U.S. 273, 276.) More recently, the Supreme
Court reaffirmed these principles, and a plurality of the court observed that “[o]nce an
immunity waiver is signed, 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.).) These cases make clear that the
probation condition here, by requiring defendant to waive any privilege against self-
incrimination, is prohibited under the Fifth Amendment.
       Even without the waiver, the state may still compel defendant to participate in
treatment—even if doing so requires him to make incriminating statements—provided he
retains immunity from the use of compelled statements in separate criminal proceedings.
As the court in Murphy observed, “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 a result of his compelled testimony would not be at stake,’ . . . .”
(Murphy, supra, 465 U.S. at p. 435, fn. 7.)
       The California Supreme Court recently reaffirmed this principle as applied to
public employees in Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704 (public
defender could be compelled under threat of discharge to answer questions over his claim
of the privilege provided he retained immunity from prosecution). Our high court held:
“In many instances, of course, it is necessary or highly desirable to procure citizens’
answers to official questions, including their formal testimony under oath. In such
circumstances, an individual’s invocation of the privilege against self-incrimination

                                              7
would frustrate legitimate governmental objectives. In light of the competing interests, it
is well established that incriminating answers may be officially compelled, without
violating the privilege, when the person to be examined receives immunity ‘coextensive
with the scope of the privilege’—i.e., immunity against both direct and ‘derivative’
criminal use of the statements. [Citations.] In such cases, refusals to answer are
unjustified, ‘for the grant of immunity has removed the dangers against which the
privilege protects. [Citation.]’ ” (Id. at pp. 714-715.) (Italics added.) Furthermore,
where the state’s competing interests require it, the state need not issue a formal
prospective grant of immunity. (Id. at p. 725.)
       The state’s interest here is at least as great as those in Spielbauer. This is
particularly so when that interest is balanced against the rights of a probationer, who
generally enjoys less constitutional protection than a public employee who is not
convicted of any crime. (See United States v. Knights (2001) 534 U.S. 112, 119
[“Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute
liberty to which every citizen is entitled.” ’ ”].) Accordingly, no formal grant of
immunity is required for the state to pursue incriminating questions.
       Under these principles, no waiver of the privilege against self-incrimination is
necessary for participation in the sex offender management program. The state may still
compel defendant to participate in the program and in polygraph examinations as part of
the program, even if doing so requires him to make incriminating statements. (Murphy,
supra, 465 U.S. at p. 435, fn. 7.) However, if defendant claims the privilege against self-
incrimination, and if the state compels incriminating statements from him under threat of
penalty, then he retains immunity from the use and derivative use of his statements in any
separate criminal proceeding against him.
       3. The Dissent’s Interpretation of 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

                                              8
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 dissent
and the Attorney General contend 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 dissent ignores the plain language of the waiver under section
1203.067(b)(3). If the waiver is valid, as the dissent 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.
       Second, the dissent’s 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.) 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 dissent does not address any of these earlier cases prohibiting compelled waivers.



                                              9
       The dissent’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, since the prosecution would bear “the heavy burden of proving that
all of the evidence it proposes to use was derived from legitimate independent sources.”
(Kastigar v. United States (1972) 406 U.S. 441, 461-462.) By contrast, with the waiver
condition stricken, 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 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 dissent and the Attorney General adopt the position that the Fifth Amendment
does not prohibit the state from requiring the probationer to answer questions as part of
the treatment program, provided his answers are not used against him in a criminal
prosecution. We agree with this conclusion. As we point out above, 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.) Thus, in our
view, the waiver is not only unconstitutional but unnecessary as well.




                                             10
          4. Waiver of 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).) “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 California Supreme 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, our high
court in Gonzales merely assumed, without deciding, that such a right exists. (Gonzales,
supra, 56 Cal.4th at p. 385.) Regardless of the analytic approach taken by these courts,
no court has yet overruled the holdings of Lifschutz and Stritzinger. We remain bound by
them. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (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.

                                             11
       “It is also well established, however, 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 court reaffirmed the holding of
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. (2007) 40 Cal.4th 875, 890.)
       In Gonzales, supra, 56 Cal.4th 353, the California Supreme 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, partly relying 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-
patient privilege and could not be obtained by a prosecutor who sought the records for
use in a subsequent murder prosecution].) The California Supreme Court distinguished
between Gonzales’ statutory claim under Story and his claim under the federal

                                             12
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 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.)
       Consistent with the above principles, we have considered 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

                                              13
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, at pp. 6-8.)5 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 the state has a sufficiently substantial interest in
communication between these participants to justify disclosure here.




       5
         This document is online at:
<http://www.cce.csus.edu/portal/admin/handouts/CASOMB Program 10-29-13
complete.pdf> [Mar. 26, 2015]. We take judicial notice of these materials. (Evid. Code,
§§ 452, 459.)

                                             14
       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



                                             15
some other third party under the waiver, and defendant’s privacy rights based on the
psychotherapist-patient privilege otherwise remain intact.
   B. Prohibition on Access to the Internet
       Defendant challenges the probation condition prohibiting him from “access[ing]
the internet or any other online service, through the use of a computer or other electronic
device, including a phone, at any location, including place of employment, without prior
approval of the probation officer.” The Attorney General contends the condition is valid
so long as it includes an express scienter requirement, as held by a panel of this court in
People v. Pirali (2013) 217 Cal.App.4th 1341,1351 (Pirali). Defendant acknowledges
Pirali but asks us to reconsider. We decline defendant’s request and conclude the
probation condition is constitutional provided it includes a scienter requirement.
       In Pirali, supra, 217 Cal.App.4th 1341, a different panel of this court considered a
nearly identical probation condition requiring Pirali “ ‘not to have access to the Internet
or any other on-line service through use of [his] computer or other electronic device at
any location without prior approval of the probation officer.’ ” (Id. at p. 1344.) Pirali
challenged the condition as vague and overbroad. The panel in Pirali rejected the
overbreadth argument, noting that Pirali could still access the Internet by obtaining
approval from his probation officer. (Id. at p. 1350.) Second, the panel acknowledged
that the condition would be unconstitutionally vague in the absence of a scienter
requirement, and the court modified the condition accordingly. (Id. at pp. 1350-1351.)
The panel upheld the condition as modified.
       The condition imposed on defendant here differs from the condition upheld in
Pirali in only two respects. It explicitly restricts Internet access through the use of a
phone, and it includes defendant’s place of employment as a location from which access
is forbidden. Defendant contends the restriction as to his place of employment must be
stricken because his job requires him to access the Internet and the condition
unnecessarily interferes with his ability to be employed. For this argument, he relies on

                                              16
United States v. Mark (8th Cir. 2005) 425 F.3d 505 (remanding for examination of
whether probation condition completely barring Internet access was least restrictive
measure) and United States v. Holm (7th Cir. 2003) 326 F.3d 872 (invalidating total ban
on Internet access). But neither case considered a probation condition allowing the
defendant to access the Internet with the prior approval of a probation officer, as the
condition here does. We think this allowance sufficiently alleviates the burden on
defendant’s ability to remain employed. As to the additional restriction on the use of a
phone to access the Internet, we conclude the added language is immaterial. The
language of the condition considered in Pirali—which prohibited access to the Internet
through a “computer or other electronic device”––already prohibited the use of a phone
to access the Internet. (Pirali, supra, 217 Cal.App.4th at p. 1344.) Based on the
reasoning of Pirali, we conclude the probation condition at issue here is neither
overbroad nor vague, provided it is modified to incorporate a knowledge requirement.
We will order the trial court to modify the condition accordingly.
   C. Prohibition on Purchasing or Possessing Pornography
       Defendant contends the condition that he “shall not purchase or possess any
pornographic or sexually explicit material as defined by the probation officer” is
unconstitutionally vague, and must therefore be modified. The Attorney General
concedes that the condition as written must be modified in accord with the holding of a
panel of this court in Pirali, supra, 217 Cal.App.4th at page 1353. We accept the
concession.
       In Pirali, a panel of this court considered a probation condition ordering Pirali
“ ‘not to purchase or possess any pornographic or sexually explicit material as defined by
the probation officer.’ ” (Pirali, supra, 217 Cal.App.4th at p. 1344.) The court held:
“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.) Accordingly, the court modified the

                                             17
condition to order Pirali “not to purchase or possess any pornographic or sexually explicit
material, having been informed by the probation officer that such items are pornographic
or sexually explicit.” (Ibid.) We agree with the reasoning of Pirali, and we will order the
trial court to modify the condition accordingly.

   D. Prohibition on Dating, Socializing, or Forming a Romantic Relationship With Any
      Person Who Has Physical Custody of a Minor
       Defendant challenges the condition requiring him not to “date, socialize with, or
form a romantic relationship with any person who has physical custody of a minor unless
approved by the probation officer.” Defendant argues that this condition is
unconstitutionally vague and overbroad in violation of his rights to freedom of
association and privacy under the Fourteenth Amendment. He also contends the
requirement that he not “socialize” is unconstitutionally vague. We agree that the
requirement is both overbroad and vague, and we will order the trial court to strike the
condition.
       “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., supra, 40 Cal.4th at
p. 890.) In other words, “[W]here an otherwise valid condition of probation impinges on
constitutional rights, such conditions must be carefully tailored, ‘ “reasonably related to
the compelling state interest in reformation and rehabilitation . . . .” ’ ” (People v. Bauer
(1989) 211 Cal.App.3d 937, 942.) All other probation conditions are reviewed for abuse
of discretion. “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.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) No such abuse of
discretion occurs unless the probation condition “ ‘ “(1) has no relationship to the crime
of which the offender was convicted, (2) relates to conduct which is not in itself criminal,




                                             18
and (3) requires or forbids conduct which is not reasonably related to future
criminality . . . .” [Citation.]’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379.)
       The United States Supreme Court has long recognized a constitutional right to
freedom of association. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 617.)
Included in this right is the “freedom of intimate association,” which is exemplified by
those personal affiliations that “attend the creation and sustenance of a family—marriage
[citation]; childbirth [citation]; the raising and education of children [citation]; and
cohabitation with one’s relatives [citation].” (Id. at p. 619; Warfield v. Peninsula Golf &
Country Club (1995) 10 Cal.4th 594, 624.) By restricting defendant’s freedom to date
and form romantic relationships with other persons, the probation condition here
implicates his freedom of intimate association. We must therefore consider whether the
condition is “narrowly tailored” to the state’s interest in reformation and rehabilitation.
(In re Sheena K., supra, 40 Cal.4th at p. 890.)
       The Ninth Circuit Court of Appeals considered a similar probation condition in
United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 (Wolf Child). Wolf Child
pleaded guilty to attempted sexual abuse after attempting to have sex with an intoxicated
and unconscious 16-year-old girl. (Id. at p. 1088.) The sentencing court ordered Wolf
Child not to “ ‘date or socialize with anybody who has children under the age of 18’ ”
without prior approval from his probation officer. (Id. at p. 1089.) The court of appeals
concluded that this condition was overbroad in violation of the defendant’s right to
freedom of association. (Id. at p. 1100.) In its reasoning, the court observed: “The
category of people covered by this condition with whom [the defendant] is prohibited
from establishing social relationships is enormous. Probably more than half the people in
the United States would be on the ‘do not associate’ list.” (Id. at pp. 1100-1101.) Off-
limit persons included coworkers, bosses, family members, friends, spiritual leaders, and
neighbors who have children. (Id. at p. 1101.) The court thereby found the scope of this
prohibition to be too broad.

                                              19
       We find the court’s reasoning in Wolf Child persuasive. Like the probation
condition in that case, the restriction here prohibits defendant from socializing with an
extremely large category of persons unless he first obtains permission from his probation
officer. People who have custody of minors are ubiquitous, and would likely be present
among defendant’s coworkers, friends, family members, neighbors, and fellow church
members. And the condition prohibits defendant from socializing with them regardless
of whether he has any contact with their children. For example, defendant would be
prohibited from socializing with coworkers—and possibly prevented from even holding a
job—even though there may be little or no chance of meeting his coworkers’ children.
Furthermore, such socialization among coworkers and others is likely to be so frequent
that it would be impractical for defendant to obtain his probation officer’s approval prior
to every such incident. The enormous scope of the condition thereby impinges on
defendant’s freedom far more broadly than necessary to serve the state’s interests and the
purposes of the condition.
       We also agree that the term “socialize” is unconstitutionally vague in this context.
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “The vagueness doctrine
‘ “bars enforcement of ‘a statute which either forbids or requires the doing of an act in
terms so vague that men [or women] of common intelligence must necessarily guess at its
meaning and differ as to its application.’ ” [Citations.]’ ” (Ibid.) “A probation condition
‘must be sufficiently precise for the probationer to know what is required of him [or her],
and for the court to determine whether the condition has been violated,’ if it is to
withstand a challenge on the ground of vagueness.” (Ibid.)
       We would agree that much incidental contact—such as waving or saying “hello”
to a stranger—does not constitute socializing. But that does not sufficiently clarify or
narrow the scope of the condition. As relevant here, the dictionary defines “socialize” as
“enter into or maintain personal relationships with others.” (Webster’s 3d New Internat.

                                             20
Dict. (1993) p. 2162.) Under this definition, a reasonable person cannot determine with
sufficient precision what conduct constitutes “socializing,” i.e., entrance into a personal
relationship. If defendant briefly meets with a group of coworkers while working on a
project at his job, is he “socializing” with them? What if he attends the meeting
passively, without talking? Or if he talks, but only says a few words? Has he formed a
personal relationship with any of his coworkers under these circumstances? The answers
to these questions are insufficiently clear for the purposes of enforcing a probation
condition. We conclude that the term “socialize” is too ambiguous for a reasonable
probationer to know with sufficient precision what conduct is prohibited.
       The same is true of the requirement that defendant not “date” or “form a romantic
relationship” with persons having custody of a minor. It is unclear what conduct
constitutes a “date.” Furthermore, it is possible for a probationer to engage in these
activities without coming into contact with the minors the condition seeks to protect.
Thus, these conditions impinge directly on defendant’s right of association, yet they only
indirectly serve the stated interest. Much less restrictive and more narrowly targeted
conditions are available for the same purposes, e.g., a requirement that defendant not be
present in the same room with a minor absent adult supervision.
       Because the condition is both overbroad and vague, we will reverse and remand to
the trial court to consider imposing a probation condition that is more “sufficiently
precise” and “closely tailor[ed]” to the purpose of protecting minors in defendant’s
presence. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
   E. Prohibition on Possession or Use of Any Data Encryption Technique Program
       Defendant challenges the probation condition prohibiting him from “possess[ing]
or [using] any data encryption technique program.” He contends the condition is
unconstitutionally vague in the absence of a scienter requirement. The Attorney General
concedes that the condition must be modified to require that defendant “not knowingly
possess or use any data encryption technique program.”

                                             21
       We agree the condition is impermissibly vague in the absence of a scienter
requirement. Accordingly, we will accept the Attorney General’s concession and will
order the trial court to modify the condition as the Attorney General proposes.

   F. Condition That Defendant Must Not “Frequent” Any Business Where
      Pornography Is Openly Exhibited
       Defendant challenges the condition requiring him not to “frequent, be employed
by, or engage in any business where pornographic materials are openly exhibited.” He
contends the condition is vague in the absence of a scienter requirement, and that the term
“frequent” must be modified to be “visit or remain.” The Attorney General concedes this
issue and proposes to modify the condition to state that defendant “shall not knowingly
visit or remain in, be employed by, or engage in, any business where pornographic
materials are openly exhibited.” We accept the concession.
       We agree that the term “frequent” is unconstitutionally vague, as a panel of this
court has previously held. (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon)
[term “frequent” is unconstitutionally vague]; In re H.C. (2009) 175 Cal.App.4th 1067,
1072 [term “frequent” is obscure and susceptible to multiple meanings].) Consistent with
this court’s modification of the term in Leon, we substitute the phrase “visit or remain in”
for the term “frequent.” Furthermore, because defendant could visit a business without
knowing that prohibited materials are openly exhibited, we will order the trial court to
modify the condition to incorporate a scienter requirement.
                                     III.    DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court with the
following instructions. First, in light of our holding that the waiver requirement in Penal
Code section 1203.067, subdivision (b)(3) is unconstitutional, the trial court shall strike
the language “waive any privilege against self-incrimination and” from the probation
condition implementing that subdivision. Second, the trial court shall strike the probation
condition ordering defendant “not to date, socialize or form any romantic relationship


                                             22
with any person who has physical custody of a minor unless approved by the probation
officer,” and the court shall consider whether to impose a probation condition consistent
with our reasoning above. Third, the trial court shall modify the following probation
conditions: (1) the condition restricting Internet access shall be modified to state that
defendant shall not knowingly access the Internet or any other online service, through the
use of a computer or other electronic device, including a phone, at any location, including
place of employment, without prior approval of the probation officer; (2) the condition
prohibiting purchase or possession of pornographic or sexually explicit materials shall be
modified to state that defendant shall not purchase or possess any pornographic or
sexually explicit material, having been informed by the probation officer that such items
are pornographic or sexually explicit; (3) the condition prohibiting possession or use of
data encryption technique programs shall be modified to state that defendant shall not
knowingly possess or use any data encryption technique program; and (4) the condition
that defendant not frequent, be employed by, or engage in any business where
pornographic materials are openly exhibited shall be modified to state that defendant
shall not knowingly visit or remain in, be employed by, or engage in, any business where
pornographic materials are openly exhibited.




                                             23
                      _______________________________
                      Márquez, J.




I CONCUR:




______________________________
 Grover, J.
BAMATTRE-MANOUKIAN, Acting P.J., Concurring and Dissenting

                                     I.     INTRODUCTION
       Defendant Marlon Ivan Chavez Garcia pleaded no contest to possessing matter
depicting a minor engaged in sexual conduct. (Pen. Code, § 311.11, subd. (a).)1 At the
sentencing hearing, defendant was placed on probation for three years, ordered to serve
six months in jail or on the electronic monitoring program, and required to register as a
sex offender. (See § 290, subd. (c).)
       The trial court imposed a number of probation conditions as required by
section 1203.067, subdivision (b). Defendant was ordered to “enter, participate in, and
complete an approved sex offender management program.” (See § 1203.067,
subd. (b)(2).) Defendant was required to “waive any privilege against self-incrimination
and participate in polygraph examinations, which shall be part of the [sex offender
management] program.” (See id., subd. (b)(3).) Defendant was required to “waive any
psychotherapist/patient privilege to enable communication between the sex offender
management professional and probation officer.” (See id., subd. (b)(4).) As to the latter
two probation conditions, the trial court stated “its intention” that the waivers are “limited
to facilitate the successful completion of the [sex offender management] program.”
       Defendant’s probation conditions also included orders that he “not date, socialize
with, or form a romantic relationship with any person who has physical custody of a
minor unless approved by the probation officer” (condition No. 5); “not purchase or
possess any pornographic or sexually explicit material as defined by the probation
officer” (condition No. 15); “not frequent, be employed by, or engage in any business
where pornographic materials are openly exhibited” (condition No. 16); “not access the
[I]nternet or any other online service, through the use of a computer or other electronic
device, including a phone, at any location, including place of employment, without prior

       1
           Unspecified section references are to the Penal Code.
approval of the probation officer” and “not possess or use any data encryption technique
program” (condition No. 17).
       Defendant challenges the probation conditions imposed pursuant to
section 1203.067, subdivisions (b)(3) and (b)(4).2 As explained herein, I respectfully
disagree with the majority’s conclusion that the language “waive any privilege against
self-incrimination” must be stricken from the probation condition required by
section 1203.067, subdivision (b)(3), because I believe that the probation condition does
not violate the Fifth Amendment of the United States Constitution and is not overbroad.
However, I agree with the majority that the probation condition imposed pursuant to
section 1203.067, subdivision (b)(4), which requires a waiver of the
psychotherapist/patient privilege, is not overbroad and does not require modification.
       Defendant also challenges probation condition Nos. 5, 15, 16, and 17. I
respectfully disagree with the majority’s decision to remand this case so the trial court
can more narrowly tailor condition No. 5, which prohibits defendant from dating,
socializing, or forming a romantic relationship with any person who has physical custody
of a minor unless approved by his probation officer. I would modify that condition to
remove the term “socialize.” I do, however, agree with the majority that condition
No. 15, which prohibits defendant from possessing pornographic or sexually explicit
material, should be modified to replace the phrase “as defined by the probation officer.”
I also agree that condition No. 16, which prohibits defendant from frequenting, being
employed by, or engaging in any business where pornographic materials are openly
exhibited, should be modified to replace the word “frequent” with the phrase “visit or


       2
        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.)

                                             2
remain in” and to include a knowledge requirement. Finally, I agree that condition
No. 17, which prohibits defendant from using the Internet without prior approval of the
probation officer and from possessing or using any data encryption technique, should be
modified to include knowledge requirements.

                                       II.     DISCUSSION
       A.     Section 1203.067, Subdivision (b)(3) Probation Condition
       As a condition of probation, defendant was required to “waive any privilege
against self-incrimination and participate in polygraph examinations, which shall be
part of the [sex offender management] program, pursuant to [section] 1203.067[,
subdivision] (b)(3).”
       Defendant argues that this probation condition violates the Fifth Amendment and
is overbroad, and that it must be either stricken or modified to (1) provide for direct and
derivative use immunity of information obtained during polygraph examinations and
(2) limit the questions that may be asked during polygraph examinations.
              1.        Fifth Amendment Analysis
       The majority agrees with defendant that the probation condition required by
section 1203.067, subdivision (b)(3) “is prohibited under the Fifth Amendment” and
orders the language “waive any privilege against self-incrimination and” stricken from
the probation condition. (Maj. opn. at pp. 7, 22.)
       The majority relies primarily 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.’ ” (Id. 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



                                               3
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.)
       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

                                              4
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
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 [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.].)
       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, the condition itself does not violate the Fifth Amendment.



                                               5
              2.      Scope of Polygraph Testing
       Defendant also challenges the probation condition imposed pursuant to
section 1203.067, subdivision (b)(3) insofar as it permits a polygraph examiner to
question him about uncharged sex offenses. Defendant argues the condition is overbroad
and requests we limit the condition. Defendant relies on Brown v. Superior Court (2002)
101 Cal.App.4th 313, in which a probation condition requiring polygraph testing was
modified so that the questions were limited to “those relating to the successful
completion of the stalking therapy program and the crime of which [the defendant] was
convicted.” (Id. at p. 321.) Defendant contends the trial court’s oral statement of its
“intention . . . that this waiver is limited to facilitate the successful completion of the
[sex offender management] program” was ineffective because that limitation was not
stated in the court’s written orders.
       Although the probation condition does not expressly limit the questions that may
be asked during polygraph examinations to those related to the successful completion
of the program or defendant’s criminal conviction, such a limitation is inherent in the
phrase “which shall be part of the [sex offender management] program pursuant to
[section] 1203.067[, subdivision] (b)(3).” In other words, the probation condition
requires polygraph examinations to be used only in furtherance of a probationer’s
treatment, and thus the condition implicitly requires that the questions asked be relevant
to that treatment.
       I conclude that the probation condition need not be modified to expressly state that
the questions asked during polygraph examinations must be reasonably related to the
completion of defendant’s treatment program or his conviction, because such a limitation
is inherent in the condition.
       B.     Section 1203.067, Subdivision (b)(4) Probation Condition
       Defendant also challenges the probation condition imposed pursuant to
section 1203.067, subdivision (b)(4), which requires defendant to “waive any

                                               6
psychotherapist/patient privilege to enable communication between the sex offender
management professional and probation officer.” Defendant contends this probation
condition is overbroad and violates his constitutional right to privacy. He contends the
condition should be stricken or modified.
       The majority concludes there is no need to modify the probation condition
imposed pursuant to section 1203.067, subdivision (b)(4) because it construes 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.’ ” (Maj. opn. at p. 15, quoting § 1203.067,
subd. (b)(4).) I agree there is no need to modify the probation condition imposed
pursuant to section 1203.067, subdivision (b)(4).
       C.     Relationship Condition
       Defendant’s probation conditions included an order that he “not date, socialize
with, or form a romantic relationship with any person who has physical custody of a
minor unless approved by the probation officer.” (Condition No. 5.)
       Defendant contends this probation condition is “unconstitutionally vague and
overbroad in violation of [his] rights to freedom of association and privacy,” and he
contends that the term “ ‘socialize’ ” is unconstitutionally vague. He did not object
below, and the record contains little information about the facts underlying his offense.
       The majority agrees with defendant that the probation condition is overbroad and
vague. The majority concludes that the probation condition’s “enormous scope . . .
impinges on defendant’s freedom [of association] far more broadly than necessary to
serve the state’s interests and the purposes of the condition.” (Maj. opn., p. 20.) The
majority also agrees with defendant that “the term ‘socialize’ is unconstitutionally vague
in this context.” (Ibid.) The majority further finds that “[t]he same is true of the
requirement that defendant not ‘date’ or ‘form a romantic relationship’ with persons
having custody of a minor.” (Id. at p. 21.) The majority suggests that the trial court

                                              7
could have imposed a “[m]uch less restrictive and more narrowly targeted” condition,
such as “a requirement that defendant not be present in the same room with a minor
absent adult supervision.” (Ibid.) The majority concludes it is necessary to remand this
case so the trial court can “consider imposing a probation condition that is more
‘sufficiently precise’ and ‘closely tailor[ed]’ to the purpose of protecting minors in
defendant’s presence.” (Ibid.)
       The condition imposed here is designed to prevent defendant having contact with
children. However, the condition prohibits defendant from socializing with people such
as family, friends and coworkers, even though he may never come into contact with their
children. A restriction on socializing with anybody who has a child or children under the
age of 18, even though defendant may never come into contact with those children, is not
carefully tailored to the purpose of the condition. Simply put, it burdens activity that
does not raise a sufficiently high probability of harm to governmental interests to justify
the interference. Thus, I agree that the term “socialize” should be stricken from the
condition.
       On the other hand, the terms “date” and “form a romantic relationship” do not
suffer from similar overbreadth problems. The number of individuals who defendant
might seek to date or form a romantic relationship with is not nearly as large as the
number of individuals defendant might socialize with. Further, although it is possible for
a probationer to date or form a romantic relationship without coming into contact with the
minors the condition seeks to protect, the condition is sufficiently restrictive in light of its
purpose, which is to reduce defendant’s opportunities for contact with minors. Nor do I
believe the terms “date” and “romantic relationship” are unconstitutionally vague, as both
terms “have a ‘plain commonsense meaning, which is well settled . . . .’ [Citations.]”
(In re R.P. (2009) 176 Cal.App.4th 562, 566-567.) The verb “date,” in this context, is
commonly understood to mean to engage in activities with another person with the intent



                                               8
of forming a romantic relationship.3 A romantic relationship is commonly understood to
mean a relationship in which two people have feelings of love or affection for one
another.4 Thus, the terms “date” and “romantic relationship” are “ ‘sufficiently precise
for the probationer to know what is required of him [or her]. . . .’ ” (In re Sheena K.
(2007) 40 Cal.4th 875, 890.)
       Rather than strike this condition and remand the matter to the trial court to
possibly impose a more narrowly tailored condition, I would order condition No. 5
modified to provide: “The defendant may not date or form a romantic relationship with
any person who has physical custody of a minor unless approved by the probation
officer.”
       D.     Internet and Data Encryption Condition
       Defendant’s probation conditions included an order that he “not access the
[I]nternet or any other online service, through the use of a computer or other electronic
device, including a phone, at any location, including place of employment, without prior
approval of the probation officer” and “not possess or use any data encryption technique
program.” (Condition No. 17.)
       Defendant contends the Internet portion of the condition should be stricken as
overbroad insofar as it impacts his First Amendment rights, complaining that it effects a
“complete ban on Internet access,” which extends to his place of employment. He argues
that other probation conditions place sufficient restrictions on his computer and Internet




       3
          One meaning of the noun “date” is “a social engagement between two persons
that often has a romantic character,” and the verb “date” can mean “to make or have a
date with” or “to go out on usu. romantic dates.” (Merriam-Webster’s Collegiate Dict.
(10th ed. 1993) p. 294.)
        4
          One meaning of “romantic” is “marked by expressions of love or affection.”
(Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 1016.)

                                             9
use.5 In his reply brief, defendant acknowledges that this court approved a similar
condition in People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), but he urges us to
reconsider that decision.
          In the alternative, defendant contends the Internet portion of the condition should
be modified to include a scienter requirement. In a supplemental brief, defendant makes
a similar argument with respect to the data encryption portion of the condition.
          The majority declines defendant’s request to reconsider Pirali and concludes, with
respect to the Internet use restriction, that “the probation condition is constitutional
provided it includes a scienter requirement.” (Maj. opn., p. 16; see Pirali, supra, 217
Cal.App.4th at p. 1350 [“without an express knowledge requirement, defendant could
unwittingly violate the condition as there are situations in which he may not know he has
access to or has accessed the Internet”].) The majority similarly concludes that a scienter
requirement must be included in the data encryption portion of the condition. (Maj. opn.,
p. 22.)
          Because the addition of explicit knowledge elements will protect defendant from
truly inadvertent acts while still serving the purpose of ensuring that his probation officer
can track his Internet activity as necessary, I agree that both the Internet and data
encryption aspects of condition No. 17 should be modified to include knowledge
requirements.




          5
         Defendant points to the probation conditions requiring that his computer be
“subject to Forensic Analysis search” (condition No. 12), that he “not enter any social
networking sites, nor post any [ads], either electronic or written, unless approved by the
probation officer” (condition No. 13), that he provide personal email addresses and
website passwords to the probation officer (condition No. 14), and that he “not clean or
delete Internet browsing activity” and “keep a minimum of four weeks of history”
(condition No. 18).

                                               10
       E.     Pornography Conditions
       Defendant’s probation conditions included an order that he “not purchase or
possess any pornographic or sexually explicit material as defined by the probation
officer” (condition No. 15) and an order that he “not frequent, be employed by, or engage
in, any business where pornographic materials are openly exhibited” (condition No. 16).
       Defendant contends that condition No. 15’s phrase “as defined by the probation
officer” is unconstitutionally vague and should be replaced with the phrase “ ‘having
been informed by the probation officer that such items are pornographic or sexually
explicit.’ ” (See Pirali, supra, 217 Cal.App.4th at p. 1353.) Defendant contends that
condition No. 16 should be modified to include a scienter requirement and to replace the
word “frequent” with the phrase “visit or remain.” (See People v. Leon (2010) 181
Cal.App.4th 943, 952.)
       The Attorney General agrees that these conditions should be modified as
defendant suggests, and the majority orders those modifications. (Maj. opn., pp. 17-18,
23.) I agree that such modifications are appropriate.

                                    III.   CONCLUSION
       I would not strike or modify the probation conditions required by
section 1203.067, subdivisions (b)(3) and (b)(4), which require defendant to “waive any
privilege against self-incrimination and participate in polygraph examinations” as part
of the sex offender management program, and to “waive any psychotherapist/patient
privilege to enable communication between the sex offender management professional
and probation officer.” I would modify condition No. 5, which prohibits defendant from
dating, socializing, or forming a romantic relationship with any person who has physical
custody of a minor unless approved by his probation officer, to delete the term
“socialize.” I would modify condition No. 15, which prohibits defendant from
possessing pornographic or sexually explicit material, to delete the phrase “as defined by



                                            11
the probation officer” and replace it with a more specific scienter requirement. I would
modify condition No. 16, which prohibits defendant from frequenting, being employed
by, or engaging in any business where pornographic materials are openly exhibited, to
replace the word “frequent” with the phrase “visit or remain in” and to include a
knowledge requirement. Finally, I would modify condition No. 17, which prohibits
defendant from using the Internet without prior approval of the probation officer and
from possessing or using any data encryption technique, to include express knowledge
requirements. As modified, I would affirm the judgment.




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___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
