Filed 1/6/16 P. v. Revoredo CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066707

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD249091)

RONNIE REVOREDO,                                                    ORDER MODIFYING OPINION
                                                                    AND DENYING REHEARING
         Defendant and Appellant.
                                                                    NO CHANGE IN JUDGMENT

THE COURT:

         It is ordered that the opinion file December 11, 2015, be modified as follows:

         1. On page 6, in the first sentence of the last paragraph, the words "L.P. and,"

"had" and "at the same time" are deleted, so the sentence reads: "Revoredo attended Mira

Mesa High School."

         2. Also in the last paragraph on page 6, in the second sentence, the word "also" is

deleted, and Footnote 2 following that sentence is deleted, so the sentence reads: "Many

of the numbers L.P. did not recognize were linked to people who had attended Mira Mesa

High School at that time."
      3. On page 10, the second sentence of the last full paragraph, the word

"frequently" is deleted, so the sentence now reads: "Revoredo called phone sex lines

while they were together."

      There is no change in the judgment.

      The petition for rehearing is denied.




                                                                    BENKE, Acting P. J.

Copies to: All parties




                                              2
Filed 12/11/15 P. v. Revoredo CA4/1 (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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066707

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD249091)

RONNIE REVOREDO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kenneth

K. So, Judge. Affirmed as modified.

         Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony

Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
       In May 2014, a jury found Ronnie Revoredo guilty of burglary (Pen. Code,

§ 459)1 of an inhabited building (§ 460) while another person, other than an accomplice,

was present (§ 667.5, subd. (c)(21)) (count 1) and indecent exposure in an inhabited

building (§ 314) (count 2). In July, the court suspended imposition of sentence and

placed Revoredo on four years' probation. Revoredo appeals, contending the evidence is

insufficient to identify him as the perpetrator of the crimes and the probation condition

requiring him to submit to periodic polygraph examinations, with the results released to

the probation department, is overbroad and violates the Fifth Amendment. We agree the

probation condition violates the Fifth Amendment.

                                             I

                                  THE PEOPLE'S CASE

       In August 2012, L.P., a graduate student, and her mother, Madelyn P., lived in a

ground floor, one bedroom apartment at First Avenue and Nutmeg Street in Bankers Hill.

Madelyn slept in the bedroom on a king-sized bed. L.P. usually slept on a hide-a-bed

sofa in the living room. Above the hide-a-bed was a large window facing First Avenue,

flanked by two smaller windows. In hot weather, L.P. and Madelyn left the smaller

windows ajar and pulled back the window blinds to promote air flow into the room.

There was no air conditioning in the apartment.

       In August 2012, the weather was hot and humid. On the night of August 12, L.P.

slept in Madelyn's bedroom, where it was cooler. L.P. went to bed around 11:00 or 11:15



1      Further statutory references are to the Penal Code.
                                             2
p.m. and fell asleep around 12:30 or 1:00 a.m. Madelyn went to bed around midnight.

She slept on the left side of the bed. L.P. slept on the right side of the bed, about one or

one-and-one-half feet from the window. Both women fell into a deep sleep.

       In the early morning hours of August 13, 2012, L.P. awoke to use the restroom.

The clock by her bedside read 3:32 a.m.; it was 10 minutes fast. A streetlight and an

outside security light admitted considerable light into the room, even though the blinds

were closed. It was "pretty bright" in the room.

       L.P. rolled to her right to get out of bed. She saw a man, who she later identified

as Revoredo, standing over her and against the bed. He was a few inches away, facing

her and positioned just below her waist. He was masturbating. L.P. saw the shape of

what she thought was his penis, with his hand around the shaft. She noticed a white t-

shirt, shorts that appeared to be blue plaid, gold-rimmed glasses and short hair that was "a

little bit spiky." She assumed Revoredo's zipper was down because his pants "weren't

down around his ankles." Light was cast around him, "like backlighting." L.P. had never

seen Revoredo before.

       L.P. was half asleep and in shock. She asked, "Who are you?" Revoredo grabbed

her right arm with his left hand and held her arm down. He said, "Don't move." L.P.

yanked her arm away. Revoredo grabbed it again and repeated, "Don't move." L.P. used

her hand to pry one of his fingers back. He released her arm. L.P. said, "Mom, there's a

guy in the room." L.P. grabbed a pillow and hit Revoredo with it, trying to push him

away. There was no room for her to move because the bed was so close to the wall.



                                              3
       Madelyn, who was sleeping on her left side, awoke when she felt movement in the

bed behind her. She had difficulty moving because she had "an artificial hip and another

bad one." As she started to turn over to see what was happening, she heard L.P. say,

"Mother, there's a man in . . . the room." Madelyn started to sit up and saw the man

standing against the bed, by L.P.'s torso. The man was silhouetted by the light coming

through the blinds. Madelyn was focused on getting out of bed and getting the man away

from L.P. Madelyn was not able to get "a good look at [his] facial features," but did

notice he had short hair and was of stocky build. She also noticed he was "[n]ot really

tall," about five feet eight or nine inches tall. The man was wearing a t-shirt or men's

undershirt.

       As Madelyn started to get up, she hear L.P. say, "Oh, God, Mom, he's

masturbating." Madelyn got out of bed as quickly as she could, given her physical

limitations, and screamed, "Get the F out of here. I'm calling the police." The man

moved away from L.P. and started to walk quickly around the bed and out of the room.

By the time Madelyn made it out of bed, the man had reached the foot of the bed, on

Madelyn's side, near the bedroom door. As he left the room, with Madelyn four or five

feet behind him, she caught a glimpse of his profile, the closest she had come to seeing

his face. Although there was not much light in that spot, Madelyn saw the man had a flat,

small nose. She also saw "a glint of glasses, maybe wire-rim glasses . . . ." Madelyn did

not see the man's face well enough to identify him.

       Madelyn followed the man through the hall, toward the living room. He left the

house, "going quite fast." During that time, L.P. had remained in the bedroom, sitting on

                                             4
the bed, concerned Revoredo might have a weapon. After about 30 seconds, L.P.

regained her composure and followed Madelyn. Each paused to make sure the other was

okay. By the time they reached the living room and passed the entertainment center, the

man was gone. The front door was wide open. Madelyn stepped outside but did not see

the man.

       Madelyn and L.P. discovered L.P.'s cell phone had been disconnected from the

charger on the dining room table and was missing. The dining room window, facing

Nutmeg Street, was wide open, although Madelyn and L.P. had left it open only about

three inches. The window screen was missing. The cordless land line telephone had

been unplugged and was missing. The dining room was full of bags of clothing Madelyn

and L.P. planned to donate; they found the cordless telephone in a bag of clothing. They

were shaking and in shock and this process took about 10 minutes. They connected the

telephone and called 911 at about 3:40 a.m. L.P.'s cell phone was never found.

       Police officers received L.P. and Madelyn's 911 call shortly after 3:30 a.m. on

August 13, 2012, and arrived at the apartment soon after. L.P. described the intruder as

White, 30 to 40 years old, five foot seven to five foot nine inches tall, of stocky build,

weighing between 180 and 200 pounds, with short hair that appeared blond in the

backlighting. L.P. said the intruder wore a white t-shirt, plaid shorts and gold wire-

rimmed glasses.

       Police detectives arrived a couple of hours later. L.P. told them the intruder was

five foot six to five foot eight inches tall, with blond to brown hair and wearing shorts. In

all other respects, this description matched the description she had given the officers.

                                              5
The detectives took photographs of the bruising on L.P.'s arm caused by Revoredo's

fingers. Detective Kimberly Collier took L.P. to the police station where L.P. helped

detectives prepare a composite drawing. The drawing was distributed to other law

enforcement agencies. L.P. viewed numerous photographic lineups, one of which

included a photograph of Revoredo, but was unable to identify anyone "with 100 percent

certainty."

       At the detectives' request, L.P. called her cell phone provider to obtain her phone

records. The police received the records a couple of days later. The records showed 71

to 73 calls had been made from L.P.'s cell phone on August 13, 2012, between 3:29 a.m.,

the time the intruder left the apartment, and around 5:00 a.m., when the phone was turned

off. Detective Collier conducted a computer search for names associated with the

telephone numbers called and called each number for which the search was unsuccessful.

Detective Collier asked L.P. if she recognized the numbers and names and made a list

(the list) of the many names and numbers L.P. did not recognize. Twenty-four of the

calls were to 14 numbers on L.P.'s cell phone contacts list.

       L.P. and Revoredo had attended Mira Mesa High School at the same time. Many

of the numbers L.P. did not recognize were linked to people who had also attended Mira

Mesa High School at that time.2 Michelle Navalta was one of those people.

       In the early morning hours of August 13, 2012, after 2:00 or 3:00 a.m., Navalta's

cell phone rang, waking her. She saw the call was from a number in the 619 area code,


2     L.P. recognized the names of two people connected to Mira Mesa High School
who had received calls from her cell phone: Tracy Herr'Marko and Mike San Agustin.
                                             6
the same area code as her husband's work number. Her husband was a Coronado police

officer who worked the night shift. Worried, Navalta answered the phone and said

"hello." A man whispered, "Do you like big dick?" Navalta asked, "Who is this?" There

was no response. Navalta hung up. The phone rang again with a call from the same

telephone number. Navalta answered. The same male voice whispered, "Do you like big

dick?" Navalta again asked, "Who is this?" She then said, "I have your number" and,

"Please don't call again, or I'll call the police."

       Navalta's husband and police detectives showed Navalta the composite drawing.

Navalta said it looked like Revoredo, with whom she had attended junior high and high

school and who was her Facebook friend. Navalta showed Revoredo's Facebook page to

Detective Collier. Detective Collier noticed five to eight of the people on the list were

Revoredo's Facebook friends.

       The police discovered a link between Revoredo and another name L.P. did not

recognize, Linda Willis. Willis was a friend of Revoredo's wife and had prepared tax

returns for the couple. Willis received a telephone call in the early morning hours of

August 13, 2012, after 3:00 a.m. When she answered the phone, the caller said, "Linda,

I'm going to come and get you, and you're next." The caller used language with a sexual

meaning. Willis hung up. Her phone rang again. She turned off her phone.

       L.P.'s employer, Anne Wilson, received a call from L.P.'s phone around 3:00 a.m.

on August 13, 2012. When Wilson answered the phone, a man's voice asked, "Is this

Anne?" Wilson asked, "Who is this?" The man said, "Do you want to suck my cock?"

and, "Do you want me to come in your mouth?" Wilson did not know Revoredo.

                                                 7
       The police executed a search warrant and obtained Revoredo's cell phone records.

The records showed two calls were placed from his phone on August 13, 2012, during the

period in which L.P.'s phone was used. One of the two calls was to a sex line. The other

call was to the work number of Sarah Strong, Revoredo's former coworker. Strong did

not answer the phone. The caller did not leave a voicemail message. Strong sent a text

message to the number, asking who had called. She received a return text stating, "Sorry,

butt dial." The call to Strong began at 4:05:55 a.m., 33 seconds after a call from L.P.'s

phone ended, and occurred in the same sector and utilized the same cell tower as the call

made from L.P.'s phone.

       On January 17, 2013, the police executed a search warrant at Revoredo's Mira

Mesa home. The police found three cell phones, computer equipment, cameras, and

photographs. One of the phones (the working phone) was on and had cellular service but

had a damaged charging port. The second phone (the charging phone) was partially

disassembled and used solely to charge the working phone. The third phone was a

Blackberry (the Blackberry).

       On contacts lists in Revoredo's cell phones the police found information regarding

14 people who had received 24 of the calls made from L.P.'s phone and whose names she

did not recognize. Those 14 people included Navalta, Willis, Herr'Marko, Yvonne San

Agustin, Ganeane Lewis, Paula Kalb, Joanne Leeboldt Ely, Amanda Hernandez, Marci

Allen and Adam Nash. Some of those names had been deleted from the contacts list in

the working phone. Herr'Marko and Yvonne San Agustin answered their phones but the

caller said nothing. Kalb, a lender who had helped Revoredo with the purchase of a

                                             8
house; Ely, who formerly lived near Revoredo on Third Avenue in Hillcrest; Hernandez,

who had met Revoredo through a mutual acquaintance; Allen, who had hired Revoredo to

create a computer program in connection with her Ph.D. dissertation; and Adam Nash,

who had worked with Revoredo at a photography company for more than 10 years and

whose wife also knew Revoredo did not answer their phones.

      Lewis had attended Mira Mesa High School with Revoredo. They were friends on

Facebook. Lewis's telephone number was on Facebook and visible to her Facebook

friends. In the early morning hours of August 13, 2012, after 3:00 a.m., Lewis received a

phone call. She answered the phone. Although her first name was commonly

mispronounced, the caller pronounced it correctly. This led Lewis to believe she knew

the caller. She asked who it was. The caller responded, "It's your new man." Lewis

hung up. The phone rang a second time. Lewis's husband answered the phone and asked

who was there. The caller said nothing.

      Twenty-one or 22 of the calls from L.P.'s phone could not be connected to her or

Revoredo. Of those calls, eight or nine were to sex lines and one was to a number similar

to the number of a sex line. One of the calls was to a number close to Adam Nash's

number. Eight unidentified numbers were Florida numbers, including one sex line.

      In the working phone, the police found a deleted photograph that appeared to be

L.P. lying on her hide-a-bed. The SIM card for one of Revoredo's phones contained a

photograph of him with wire-rimmed glasses. One of his phones contained a photograph

of Herr'Marko "from the backside." She had not given him permission to have the

photograph.

                                            9
       Revoredo was arrested in January 2013 and released the next day. In May or June,

around 5:30 p.m., L.P. was in her car, stopped at a traffic light in downtown San Diego.

A group of men crossed the street and one turned around and smirked at her. She

realized he was the man who had broken into her apartment. She recognized his distinct

nose, which she had discussed with the police during the drawing of the composite

sketch. The probation report lists Revoredo's height as five feet six inches and his weight

as 160 pounds.

                                            II

                                  DEFENSE EVIDENCE

       Revoredo's ex-wife, Serena Ling, testified Revoredo was Peruvian. Revoredo

frequently called phone sex lines while they were together. They separated in 2011.

Ling had not known Revoredo to wear plaid shorts, but it was difficult for her to

remember every single pair of shorts he owned. It was also difficult for her to remember

every single pair of glasses he owned. She did not recall that he own wire-rimmed

glasses; he wore contact lenses or dark-rimmed plastic glasses. When shown a

photograph of Revoredo wearing glasses with wire temples and a wire connecting the

two lenses, Ling remembered those glasses. At the time of trial, in 2014, the photograph

was at least eight or nine years old.

       Revoredo's mother testified he never owned any plaid shorts. He had never had

blond or light brown hair. He had difficulty with his legs, so when he was in a hurry, he

walked fast rather than running. On August 13, 2012, around 10:00 a.m., she found him



                                            10
asleep in his room, wearing his work uniform, a red shirt and black shorts. When he left

for work the day before, he was wearing the uniform and contact lenses.

       Joseph Gomes, who worked with Revoredo in Mission Beach, testified their shift

usually ended around 12:00 or 12:30 a.m. When their shift ended on August 13, 2012,

Revoredo was wearing his uniform, a red shirt and black shorts. He was wearing contact

lenses, not glasses. After leaving work, Revoredo and Gomes went to a bar across the

street and drank. Gomes left about 1:30 or 1:40 a.m. A defense investigator testified

Revoredo was approximately five feet five inches tall with shoes and five feet four inches

without shoes.

       Kimberly Heiser testified the photograph that appeared to be L.P. lying on the

hide-a-bed was actually a photograph of Heiser, taken by Revoredo. Robert Jacobson, a

certified evidence photographer, testified he could not say the photograph depicted L.P.

       Psychologist Mitchell Eisen specialized in memory, including eyewitness memory

and suggestibility. He testified reports close in time to an event tended to be more

accurate than reports given after a long period of time.

                                              III

                               SUBSTANTIAL EVIDENCE

       "In reviewing a sufficiency of evidence claim, the reviewing court's role is a

limited one. ' "The proper test for determining a claim of insufficiency of evidence in a

criminal case is whether, on the entire record, a rational trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the

evidence in the light most favorable to the People and must presume in support of the

                                              11
judgment the existence of every fact the trier could reasonably deduce from the evidence.

[Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable,

credible, and of solid value, nonetheless it is the exclusive province of the trial judge or

jury to determine the credibility of a witness and the truth or falsity of the facts on which

that determination depends. [Citation.] Thus, if the verdict is supported by substantial

evidence, we must accord due deference to the trier of fact and not substitute our

evaluation of a witness's credibility for that of the fact finder. [Citations.]" [Citation.]' "

(People v. Smith (2005) 37 Cal.4th 733, 738-739.)

       " 'The strength or weakness of the identification, the incompatibility of and

discrepancies in the testimony, if there were any, the uncertainty of recollection, and the

qualification of identity and lack of positiveness in testimony are matters which go to the

weight of the evidence and the credibility of the witnesses, and are for the observation

and consideration, and directed solely to the attention of the jury in the first

instance . . . .' " (People v. Mohamed (2011) 201 Cal.App.4th 515, 522, quoting People v.

Lindsay (1964) 227 Cal.App.2d 482, 493-494.) "[U]nless the testimony is physically

impossible or inherently improbable, testimony of a single witness is sufficient to support

a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) " '[T]o entitle a

reviewing court to set aside a jury's finding of guilt the evidence of identity must be so

weak as to constitute practically no evidence at all.' " (People v. Mohamed, supra, at

p. 521.)

       The facts set forth above demonstrate there is substantial evidence to identify

Revoredo as the perpetrator of the crimes. L.P. identified him at the preliminary hearing

                                              12
and again at trial. She was subject to cross examination in both instances. The

description L.P. gave the police resulted in a composite sketch from which Navalta

identified Revoredo.

       We "accept logical inferences that the jury might have drawn from the

circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) There was

sufficient circumstantial evidence from which the jury might have logically inferred that

Revoredo possessed L.P.'s cell phone immediately after the crimes. Between the time the

intruder left the apartment and the time L.P.'s phone was turned off, calls were made to

people known to Revoredo but not to L.P. and to a person on L.P.'s contacts list who did

not know Revoredo. Several of these calls were sexual in nature and at least one was

threatening. Calls were also made to sex lines, a past practice of Revoredo's confirmed

by his ex-wife. During the period calls were made from L.P.'s phone, calls were also

made from Revoredo's phone from the same area.

       The jury could have reasonably concluded that Revoredo had time to change out

of his work clothing, commit the crimes in Bankers' Hill and put his work clothing back

on between the time he left the Mission Beach bar and the time his mother entered his

bedroom in Mira Mesa.

                                              IV

                             THE PROBATION CONDITION

       Probation condition number 10h (the polygraph condition or the condition)

required Revoredo to "[u]ndergo periodic polygraph examinations at the direction of the

[probation officer], with the results of those tests released to the [probation officer].

                                              13
Polygraph questions shall be limited to items which are relevant to the crime(s) for which

the defendant was convicted and shall assist with supervision, treatment, and

rehabilitative efforts. All associated costs to be borne by the defendant." Before the

court imposed probation, Revoredo's counsel objected to the polygraph condition. When

questioned by the court, Revoredo said he had no questions concerning any probation

condition and said he accepted the terms of probation. Revoredo now contends the

polygraph condition violates the Fifth Amendment and is overbroad.

       Section 1203.067, subdivision (b), provides: "On or after July 1, 2012, the terms

of probation for persons placed on formal probation for an offense that requires

registration pursuant to Sections 290 to 290.023,[3] inclusive, shall include all of the

following: [¶] . . . [¶] (2) Persons placed on formal probation on or after July 1, 2012,

shall successfully complete a sex offender management program, following the standards

developed pursuant to Section 9003, as a condition of release from probation. The length

of the period in the program shall be not less than one year, up to the entire period of

probation, as determined by the certified sex offender management professional in

consultation with the probation officer and as approved by the court. Participation in this

program applies to each person without regard to when his or her crime or crimes were

committed. [¶] (3) Waiver of any privilege against self-incrimination and participation

in polygraph examinations, which shall be part of the sex offender management

program." "The effective date of [§ 1203.067, subdivision (b)(2) and (3)] was September


3     Revoredo's conviction of violating section 314 requires him to register as a sex
offender. (§ 290, subd. (c).)
                                             14
9, 2010, but [these] provisions did not become operative until July 1, 2012." (People v.

Douglas M. (2013) 220 Cal.App.4th 1068, 1075.) Section 1203.067, subdivision (b)(2)

and (3) "was enacted as part of Assembly Bill No. 1844 (2009-2010 Reg. Sess.), the

Chelsea King Child Predator Prevention Act of 2010 (Chelsea's Law) (Stats. 2010, ch.

219), which altered numerous statutes governing sex offenses and sex offenders."

(Douglas M., at p. 1076.) Whether waiver of the privilege against self-incrimination

required by 1203.067, subdivision (b)(3), violates the Fifth Amendment of the United

States Constitution is pending review before the California Supreme Court. (E.g., People

v. Friday (2014) 225 Cal.App.4th 8, review granted July 16, 2014, S218288; People v.

Garcia (2014) 224 Cal.App.4th 1283, review granted July 16, 2014, S218197; People v.

Klatt (2014) 225 Cal.App.4th 906, review granted July 16, 2014, S218755; People v.

Rebulloza (2015) 234 Cal.App.4th 1065, review granted June 10, 2015, S225503.)

       Before the enactment of section 1203.067, subdivision (b)(2) and (3), this court

considered whether requiring polygraph examinations as a condition of probation violates

the Fifth Amendment privilege against self-incrimination. In Brown v. Superior Court

(2002) 101 Cal.App.4th 313, this court rejected the defendant's "contention that a

polygraph condition is per se invalid and illegal." (Id. at p. 319.) "In so ruling, [this

court] reject[ed] [the defendant's] contention that imposing polygraph testing as a

condition of probation violates his rights and privileges under the Fifth . . . Amendment[]

to the United States Constitution." (Id. at p. 320.) This court stated: "The fact that

Brown has a duty to answer the polygraph examiner's question truthfully does not mean

his answers are compelled within the meaning of the Fifth Amendment." (Brown, at

                                              15
p. 320, citing People v. Miller (1989) 208 Cal.App.3d 1311, 1315 and Minnesota v.

Murphy (1984) 465 U.S. 420, 427, 429.) "Brown has misconstrued the nature of the

privilege against self-incrimination; it is not self-executing; rather, it must be claimed.

[(Minnesota v. Murphy, at pp. 427-428; People v. Miller, at p. 1315.)] Thus, unless

Brown specially invokes the privilege, shows he faces a realistic threat of self-

incrimination and nevertheless is made to answer the question or questions, no violation

of his privilege against self-incrimination is suffered. [(Miller, at p. 1315; Minnesota v.

Murphy, at p. 427.)] Of course, if the state puts questions to a probationer that call for

answers that would incriminate him or her in a pending or later criminal proceeding, and

expressly or by implication asserts that invocation of the privilege would lead to

revocation of probation, the answers would be deemed compelled under the Fifth

Amendment and thus involuntary and inadmissible in a criminal prosecution.

[(Minnesota v. Murphy, at p. 435; New Jersey v. Portash (1979) 440 U.S. 450, 458-459.)]

On the other hand, if the questions put to the probationer are relevant to his probationary

status and pose no realistic threat of incrimination in a separate criminal proceeding, the

Fifth Amendment privilege would not be available and the probationer would be required

to answer those questions truthfully. [(Minnesota v. Murphy, at p. 435, fn. 7.)]" (Brown,

at p. 320.)

       Here, the polygraph condition is not impermissibly overbroad; it is tailored to

comport with the court's purpose in imposing the condition. The condition limits

"[p]olygraph questions . . . to items which are relevant to the crime(s) for which



                                              16
[Revoredo] was convicted and [which] assist with supervision, treatment, and

rehabilitative efforts."

       However, questions that assist with supervision, treatment, and rehabilitative

efforts may also incriminate Revoredo in a pending or later criminal proceeding. (Brown

v. Superior Court, supra, 101 Cal.App.4th at p. 320.) The polygraph condition here thus

has the potential of contravening Revoredo's Fifth Amendment privilege against self

incrimination. Unlike the situation in Brown, at page 313, the condition here is

accompanied by a statutory "[w]aiver of any privilege against self-incrimination"

(§ 1203.067, subd. (b)(3)). Thus, "if the state puts questions to [Revoredo] that call for

answers that would incriminate him in a pending or later criminal proceeding" (Brown, at

p. 320), he will be unable to invoke the privilege and by refusing to answer will risk

violating the terms of his probation, having his probation revoked and being incarcerated.

Therefore, "the answers would be deemed compelled under the Fifth Amendment."

(Ibid.) "A defendant does not lose [Fifth Amendment] protection by reason of his

conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at

the time he makes incriminating statements, if those statements are compelled they are

inadmissible in a subsequent trial for a crime other than that for which he has been

convicted." (Minnesota v. Murphy, supra, 465 U.S. at p. 426.) We modify the judgment

by striking the probation polygraph condition (condition 10h).

                                      DISPOSITION

       The judgment is modified by striking the probation polygraph condition (condition

10h). As so modified, the judgment is affirmed.

                                             17
                           McDONALD, J.

WE CONCUR:


BENKE, Acting P. J.


IRION, J.




                      18
