P. v. Magat

Filed 5/11/15 P. v. Magat 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
Plaintiff and Respondent,
v.
MARVIN MAGAT,
Defendant and Appellant.
H039935
(Santa Clara County
Super. Ct. No. C1239524)
Defendant Marvin Magat pleaded no contest to two counts of committing a lewd
act on a child (Pen. Code, § 288, subd. (a)).1 On May 29, 2013, the court suspended
defendant’s sentence and placed him on felony probation for three years under various
terms and conditions, including the requirement that he pay a fine of $300 and penalty
assessments of $735, pursuant to section 290.3. Thereafter, on July 19, 2013, the court
imposed additional conditions.
On appeal, defendant challenges two conditions that were imposed under an
amendment to section 1203.067 that became effective September 9, 2010 (the 2010
amendment). First, the court required defendant, pursuant to section 1203.067,
subdivision (b)(3) (§ 1203.067(b)(3)), to “waive any privilege against self-incrimination
and participate in polygraph examinations, which shall be part of the sex offender
1 Further statutory references are to the Penal Code.

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management program.” And second, the court required defendant, pursuant to section
1203.067, subdivision (b)(4) (§ 1203.067(b)(4)), to “waive any psychotherapist/patient
privilege to enable communication between the sex offender management professional
and the Probation Officer.” (Hereafter, these two conditions are sometimes collectively
referred to as the sex offender management program conditions.) Defendant contends
these two probation conditions may not lawfully be imposed in his case because the 2010
amendment to section 1203.067 became effective September 9, 2010, three years after
the commission of his crimes, and the statute cannot be retroactively applied in his case.
He asserts that application of the 2010 amendment to him is unlawful under ex post facto
principles. He asserts further that the probation condition imposed pursuant to section
1203.067(b)(3) is constitutionally infirm insofar as it purports to compel his waiver of the
privilege against self-incrimination guaranteed under the Fifth Amendment of the United
States Constitution. And he contends the probation condition imposed pursuant to
section 1203.067(b)(4), requiring a “blanket waiver” of the psychotherapist-patient
privilege to enable communication between the sex offender management professional
and the probation officer, is unreasonable and thus invalid under People v. Lent (1975)
15 Cal.3d 481 (Lent).2
Defendant also challenges a probation condition prohibiting him from living in a
home in which children under 18 reside, because the condition does not require him to
have knowledge of the presence of children under 18 years old in the home. Lastly, he
challenges a condition requiring him to pay a fine of $300 and penalty assessments of
2 The Supreme Court is currently considering the constitutionality of the
conditions of probation mandated by section 1203.067(b) for persons convicted of
specified felony sex offenses, including the waiver of the privilege against self-
incrimination and waiver of the psychotherapist-patient privilege. (See People v. Klatt,
review granted July 16, 2014, S218755; People v. Friday, review granted July 16, 2014,
S218288; People v. Garcia, review granted July 16, 2014, S218197.)

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$735, claiming there was no substantial evidence he had the ability to pay the fine and
assessments as required under section 290.3.
We reject defendant’s contention that application of the 2010 amendment to
section 1203.067 violates ex post facto principles. We conclude, however, that the 2010
amendment to section 1203.067 must be construed as having prospective application to
probationers whose crimes were committed on or after September 9, 2010, and therefore
the court erred when it imposed upon defendant the sex offender management program
conditions under the 2010 amendment. But in 2014, the Legislature once again amended
the statute, effective September 26, 2014 (the 2014 amendment), making it clear that the
sex offender management program conditions are required under defendant’s
circumstances, even though his crimes were committed before September 9, 2010.
Therefore, rather than strike the conditions and remand the case for the court to perform
its duty to impose them under the 2014 amendment, we will consider them to have been
effectively imposed under the 2014 amendment and will address defendant’s further
challenges.
With respect to those challenges, we conclude the probation 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). (See People v. Rebulloza
(2015) 234 Cal.App.4th 1065 (Rebulloza).) We further construe the waiver of the
psychotherapist-patient privilege imposed under section 1203.067(b)(4) as requiring
waiver only insofar as necessary to enable communications between the sex offender
management professional and the supervising probation officer. (Ibid.) As so construed,
we hold the psychotherapist-patient privilege is not overbroad in violation of defendant’s
constitutional right of privacy. We will also direct that the residency condition be
modified to require that defendant know or reasonably should know that there is a child
(or there are children) living in the home who is/are under 18. Lastly, we will direct that
the fine and assessments imposed under section 290.3 be stricken. We will remand the

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case to the trial court with instructions to modify the orders of probation entered May 29
and July 19, 2013, as provided herein.
FACTS
A cousin of defendant reported to the police in June 2011 that approximately four
years earlier, defendant had sexually abused her daughter and her (defendant’s cousin’s)
niece. Defendant had been 16 years old at the time. Shortly thereafter, on July 6, 2011, a
second person, Desiree Doe, reported to the police that at some time in the past,
defendant was babysitting her and her cousin, Ashley Doe, at their grandmother’s house.
(At the time, Desiree was five or six, and Ashley was six or seven.) Desiree reported that
defendant had instructed “them to kiss him ‘or else’ (implying that he would get them in
trouble if they did not kiss him).” Defendant forced Desiree to kiss him on the lips, and
he told her that something bad would happen to her if she reported it to anyone. It made
her feel “really bad because [she] did not want to do that to him.” He instructed Desiree
to leave the room and she complied. Desiree told the arresting officer that she had not
told anyone about the incident because she had been afraid and thought her mother would
“tell everyone” what had happened.
On July 6, 2011, Ashley reported to the police that when she was six years old,
defendant, who had been babysitting her and Desiree, had forced both of them to kiss him
on the lips and “[s]he felt ‘grossed out’ ” about doing it. He then told Desiree to leave,
and he locked the door. Defendant took off his pants and underwear, lay down on the
bed, and instructed Ashley to get on top of him and to move up and down on him while
remaining clothed. She reported that “she felt ‘grossed out’ when she was on top of
him.” Defendant instructed Ashley not to tell anyone what had happened and that it
would be their “ ‘deepest and darkest secret.’ ”
In an interview with the police on July 18, 2011, defendant admitted that when he
was 14 years old, he had kissed Ashley three or four times. He said he had taken off his
pants and thought he had become aroused. Defendant told the police that he had taken

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off his clothes in Ashley’s presence two or three times. On one occasion, he told her to
take off her clothes and he touched her legs. He also instructed her to touch his penis for
two or three minutes. He then lay on top of her on a couch but did not have sexual
intercourse with her. His penis touched her vagina but he did not ejaculate. On another
occasion, defendant took off his clothes, instructed Ashley to take off her clothes, and got
on top of her. His penis touched her vagina but did not enter it. He told the police he had
“realized what he was doing was wrong, so he did not go through with it.” Ashley’s
brother saw them and told defendant to stop what he was doing.
PROCEDURAL BACKGROUND
In a complaint filed August 22, 2012, defendant was charged with four counts of
lewd or lascivious acts upon a child by force, violence, duress, menace, or fear (§ 288,
subd. (b)(1); count 1). The first two counts contained allegations that the victim was
Ashley Doe and that the offenses occurred between January 1, 2007, and December 31,
2007. Counts 3 and 4 contained allegations that the victim was Desiree Doe and that the
offenses occurred between January 1, 2007, and December 31, 2007.
On January 25, 2013, the District Attorney moved to amend the complaint to
allege counts 1 and 3 as lewd acts on a child (§ 288, subd. (a)). Defendant waived a
preliminary hearing and entered a plea of no contest to counts 1 and 3, as amended,
conditioned upon the dismissal of the remaining counts and with the understanding that
he would receive a maximum three-year prison sentence.
On May 29, 2013, the court suspended imposition of the sentence and placed
defendant on probation for three years on various terms and conditions, including
(1) serving one year in county jail, and (2) paying a fine of $300 and penalty assessments
of $735, pursuant to section 290.3. At that time, the court dismissed counts 2 and 4.
After receiving briefing in which defendant specifically objected to the imposition of the
conditions under subdivisions (b)(3) and (b)(4) of section 1203.067, the court, on July 19,
2013, imposed the two sex offender management program conditions that are the subject

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of this appeal. It also ordered defendant to pay all sex offender management participation
fees as determined by the court, under subdivision (c) of section 1203.067.
DISCUSSION
I. Probation Conditions Under Section 1203.067(b),(c)
A. Defendant’s Contentions
On appeal, defendant asserts four challenges to the imposition of the
aforementioned probation conditions. First, he contends that applying the 2010
amendment to section 1203.067 retroactively to him “violates the ex post facto clause of
the federal Constitution (U.S. Const., art. I § 10, cl. 1) and the California Constitution
(Cal. Const., art. I, § 9).” Second, he argues that application of the conditions prescribed
by section 1203.067(b), which were authorized as a result of the 2010 amendment to the
statute, is an unlawful retroactive application of the law because the crimes of which he
was convicted occurred three years before the effective date of that statutory amendment.
Third, he asserts the probation condition imposed pursuant to section 1203.067(b)(3) is
constitutionally infirm insofar as it purports to compel his waiver of the privilege against
self-incrimination guaranteed under the Fifth Amendment of the United States
Constitution. Lastly, he contends the probation condition imposed pursuant to
section 1203.067(b)(4) requiring a “blanket waiver” of the psychotherapist-patient
privilege to enable communication between the sex offender management professional
and the probation officer “is not related to the crime and is unreasonable, and thus is
invalid under People v. Lent, supra, 15 Cal.3d 481.”
B. The 2010 Amendment to Section 1203.067
Prior to September 9, 2010, section 1203.067 did not require the court to impose
as probation conditions for a sex offender that he or she waive any privilege against self-
incrimination, participate in polygraph examinations, and waive any psychotherapist-
patient privilege to enable communications between a sex offender management
professional and the probation officer. Instead, the former statute provided that in the

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event of a grant of probation, “ ‘(b) . . . the court shall order the defendant to be placed in
an appropriate treatment program designed to deal with child molestation or sexual
offenders, if an appropriate program is available in the county. [¶] (c) Any defendant
ordered to be placed in a treatment program pursuant to subdivision (b) shall be
responsible for paying the expense of his or her participation in the treatment program as
determined by the court. The court shall take into consideration the ability of the
defendant to pay, and no defendant shall be denied probation because of his or her
inability to pay.’ ” (People v. Douglas M. (2013) 220 Cal.App.4th 1068 (Douglas M.).)
Section 1203.067 was amended with an effective date of September 9, 2010, but
the provisions of the 2010 amendment did not become operative until July 1, 2012.
(§ 1203.067, amended by Stats. 2010, ch. 219 (A.B. 1844), § 17, eff. Sept. 9, 2010;
§ 1203.067, subd. (b).)3 The 2010 amendment to section 1203.067 was enacted “as part
of Assembly Bill 1844, 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.)
C. 2010 Amendment Does Not Violate Ex Post Facto Principles
Defendant argues that to the extent the 2010 amendment may be construed as
applying in his case—where his crimes were committed before the amendment’s
effective date—it “violates the ex post facto clause of the federal Constitution (U.S.
Const., art. I, § 10, cl. 1) and the California Constitution (Cal. Const., art. I, § 9).” We
disagree.
3 “ ‘ “The effective date [of a statute] is . . . the date upon which the statute came
into being as an existing law.” [Citation.] “[T]he operative date is the date upon which
the directives of the statute may be actually implemented.” [Citation.] Although the
effective and operative dates of a statute are often the same, the Legislature may
“postpone the operation of certain statutes until a later time.” [Citation.]’ [Citation.]”
(People v. Alford (2007) 42 Cal.4th 749, 753, fn. 2. (Alford).)

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The ex post facto clause of the United States Constitution prohibits retrospective
legislation that increases the punishment for a crime subsequent to its commission.
(People v. McVickers (1992) 4 Cal.4th 81, 84 (McVickers).) But a change in the law that
simply operates to the disadvantage of the defendant or constitutes a burden is not
necessarily unlawful under the ex post facto prohibition. (Collins v. Youngblood (1990)
497 U.S. 37, 50.) We apply federal constitutional analysis in determining whether a law
violates the California Constitution analog. (Tapia v. Superior Court (1991) 53 Cal.3d
282, 295.)
In determining whether a law constitutes punishment under an ex post facto
analysis, we look to “whether the Legislature intended the provision to constitute
punishment and, if not, whether the provision is so punitive in nature or effect that it must
be found to constitute punishment despite the Legislature’s contrary intent.” (People v.
Castellanos (1999) 21 Cal.4th 785, 795, fn. omitted.) In enacting the 2010 amendment, it
does not appear the Legislature’s intent was to enhance punishment for convicted sex
offenders. The 2010 amendment amended the Sex Offender Punishment, Control, and
Containment Act of 2006 (hereafter, the “Containment Act”). (Stats. 2010, ch. 219,
§ 17.) The Containment Act created “a standardized, statewide system to identify, assess,
monitor and contain known sex offenders for the purpose of reducing the risk of
recidivism posed by these offenders, thereby protecting victims and potential victims
from future harm.” (Pen. Code, § 290.03, subd. (b), Stats. 2006, ch. 337, § 12.) The
Containment Act requires participation in an “approved sex offender management
program” certified by the California Sex Offender Management Board (CASOMB).
(Pen. Code, § 9003.) It is readily apparent from a review of the 2010 amendment that it
was intended to reduce recidivism, aid in the treatment of sex offenders subject to the sex
offender management program, and promote public safety. These goals constitute
“legitimate nonpunitive governmental purpose[s],” and “[i]n the absence of any
additional punitive purpose or significant punitive effect, this nonpunitive purpose

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removes the statute from the ambit of the ex post facto clause.” (McVickers, supra,
4 Cal.4th at p. 89.) Legislation of the same or a similar nature has been previously held
to be nonpunitive and therefore not an ex post facto violation. (See Smith v. Doe (2003)
538 U.S. 84, 105-106 [retroactive application of registration for convicted sex offenders
not ex post facto violation]; Kansas v. Hendricks (1997) 521 U.S. 346, 362-363, 369
[retroactive application of civil commitment proceedings after completion of criminal
sentence not ex post facto violation]; McVickers, at p. 89 [retroactive application of AIDS
testing to persons convicted of specified sex offenses was not ex post facto violation].)
Defendant’s reliance on People v. Delgado (2006) 140 Cal.App.4th 1157
(Delgado) is misplaced. The 2010 amendment, unlike the legislation that was found to
violate ex post facto principles in Delgado, did not increase the mandatory length of the
probation term. (See id. at p. 1170.) Further, a probationer under the pre-2010
amendment, like a probationer after the effective date of the amendment, was required to
participate in and pay for sex offender treatment.
We conclude the 2010 amendment did not violate the ex post facto clauses of
either the federal or state constitutions.
D. 2010 Amendment to Section 1203.067 Has Prospective Application
We next address whether, as a matter of statutory interpretation, the 2010
amendment should be construed as applying prospectively or retroactively. In Douglas
M., supra, 220 Cal.App.4th 1068, the First District Court of Appeal considered the
following question: Does the 2010 amendment to section 1203.067 apply retroactively to
impose conditions specified under subdivisions (b)(3) and (b)(4) to a probationer whose
crimes were committed before September 9, 2010? The Douglas M. court answered the

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question in the negative. The Attorney General asserts Douglas M. is distinguishable and
“wrongfully [sic] decided.” 4
The defendant in Douglas M. was convicted of two counts of lewd and lascivious
acts upon a child (§ 288, subd. (a)) occurring between July 2005 and June 2006.
(Douglas M., supra, 220 Cal.App.4th at p. 1071.) In 2009, the defendant was placed on
probation for seven years. (Ibid.) In 2012, over the defendant’s objection, the trial court
modified the terms and conditions of his probation in accordance with the 2010
amendment to include his mandatory (1) participation in an approved sex offender
program; (2) submission to random polygraph examinations with a concomitant waiver
of the privilege against self-incrimination; and (3) waiver of the psychotherapist-patient
privilege to enable communications between a sex offender management professional and
the probation officer. (Id. at pp. 1071, 1073.) The Douglas M. court held that the court
had erred in imposing these additional terms and conditions because the 2010 amendment
could not be construed to apply retroactively to convicted sex offenders receiving grants
of probation for crimes committed before September 9, 2010. (Id. at pp. 1075-1078.)
The court in Douglas M. commenced its analysis by referring to general principles
of statutory construction concerning whether a law has prospective or retroaction
application. (Douglas M., supra, 220 Cal.App.4th at p. 1075.) It analyzed section 3 of
the Penal Code, as follows: “Section 3 provides: ‘No part of [the Penal Code] is
retroactive, unless expressly so declared.’ Our Supreme Court has ‘described section 3,
and its identical counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3),
as codifying “the time-honored principle . . . that in the absence of an express
4 As we discuss, post, the Legislature amended section 1203.067 again in
legislation signed by the Governor on September 26, 2014, more than one year after the
court’s imposition of probation in this case. (See Stats. 2014, ch. 611, p. 4144.) For
reasons we will discuss, it is the 2010 amendment to the statute that controls our analysis
of defendant’s contention that imposition of the probation conditions to him was invalid.

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retroactivity provision, a statute will not be applied retroactively unless it is very clear
from extrinsic sources that the Legislature . . . must have intended a retroactive
application.” [Citations.] In applying this principle, we have been cautious not to infer
retroactive intent from vague phrases and broad, general language in statutes. [Citations.]
Consequently, “ ‘a statute that is ambiguous with respect to retroactive application is
construed . . . to be unambiguously prospective.’ ” [Citations.]’ [Citations.]” (Ibid.,
quoting People v. Brown (2012) 54 Cal.4th 314, 319-320 (Brown).)
The Douglas M. court rejected the People’s claim that the Legislature expressed
an intent that the 2010 amendment be applied retroactively, concluding that the People’s
“interpretation . . . completely ignores both section 3’s presumption of prospectivity and
the context in which the amendment of section 1203.067 came about.” (Douglas M.,
supra, 220 Cal.App.4th at pp. 1075-1076.) The court observed that “[a]lthough the bill
was enacted in September 2010 as urgency legislation, intended to take effect
immediately [citation], the section 1203.067 amendments did not become operative until
July 2012, almost two years later. The apparent reason for this delayed implementation is
reflected in other stated requirements of the bill (see, e.g., § 9003 [requiring development
and updating of standards for certification of sex offender management professionals and
programs]), which were prerequisites to application of the new provisions of section
1203.067.” (Ibid., fn. omitted.)
The court concluded: “[T]here is nothing in either the language of the statute or
its legislative history clearly indicating a legislative intent for revised section 1203.067 to
be applied retroactively to probationers whose crimes occurred before its effective date
[Citation.] . . . Therefore, in keeping with the mandate of section 3, the amended statute
must be viewed as ‘unambiguously prospective,’ applying to probationers who
committed their crimes on or after the statute’s effective date of September 9, 2010.
[Citation.] Because appellant’s offense occurred before September 9, 2010, the

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provisions of revised section 1203.067 were improperly applied to him and must be
stricken.” (Douglas M., supra, 220 Cal.App.4th at pp. 1077-1078.)
The Attorney General argues that Douglas M. is distinguishable because there,
“the defendant had originally been placed on probation in 2006, and after successfully
completing six years of probation, the trial court modified his probation in October 2012,
pursuant to section 1203.067, subdivision (b)(1).” (Original italics.) It is true that—
unlike defendant here, in which the challenged terms and conditions were imposed in the
first instance when he was granted probation—the defendant in Douglas M. had
successfully completed most of his probationary term before the court amended its order
to include the challenged terms and conditions under the 2010 amendment. And it is also
true that the terms and conditions of probation in Douglas M. were amended under
subdivision (b)(1) to require his participation in an approved sex offender management
program, while defendant here was ordered under subdivision (b)(2) of the statute to
successfully complete a sex offender management program. But the reasoning of the
court in Douglas M. is equally applicable here, notwithstanding these factual differences.
We find the reasoning of Douglas M. persuasive, and we conclude that the 2010
amendment to section 1203.067 cannot be given retroactive application to probationers
whose crimes were committed before September 9, 2010. Accordingly, the court erred in
imposing the probation conditions specified in subdivisions (b)(3) and (b)(4) of section
1203.067 under the 2010 amendment.
E. Application of the 2014 Amendment to Section 1203.067
After briefing in this case was completed, the Legislature once again amended
section 1203.067. In legislation effective September 26, 2014, the statute was amended
to include the following sentence at the end of both subdivisions (b)(1) and (b)(2):
“Participation in this program applies to each person without regard to when his or her
crime or crimes were committed.” (See Stats. 2014, ch. 611, p. 4144.) We requested
supplemental briefing from the parties to address the potential effect of the 2014

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amendment upon defendant’s challenges to the probation conditions imposed under
section 1203.067. After considering the parties’ supplemental briefs, we conclude that
although the court erred in imposing the sex offender management program probation
conditions under the 2010 amendment, it was required to impose those conditions under
the 2014 amendment.
Section 1203.067, subdivision (b) now provides that on or after July 1, 2012, for
all persons placed on formal probation for any crime requiring sex offender registration
(§ § 290 to 290.023), the terms of probation shall include: “[(2)] successful[]
complet[ion of] 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. [¶]
(4) Waiver of any psychotherapist-patient privilege to enable communication between the
sex offender management professional and supervising probation officer, pursuant to
Section 290.09.” (Italics added.)
Defendant was placed on probation for registrable sex offenses after July 1, 2012.
Under the current version of the statute, he is subject to the mandatory provisions of
subdivision (b)(2) through (4) of section 1203.067, even though his crimes were
committed before the effective date of the 2010 amendment. Accordingly, it would serve
no purpose to strike the sex offender management program probation conditions imposed
under the 2010 amendment only to remand this matter to the trial court to impose those
same conditions under the 2014 amendment. We will therefore deem the conditions

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imposed under the 2014 amendment and will address defendant’s remaining challenges
to them.5
F. Waiver of Privilege Against Self-Incrimination
Defendant argues that the probation condition imposed pursuant to section
1203.067(b)(3), requiring his waiver of “any privilege against self-incrimination and
participat[ion] in polygraph examinations,” is unconstitutional. He contends that under
Murphy, supra, 465 U.S. 420, it is unlawful for the state to compel a defendant to waive
his Fifth Amendment privilege against self incrimination as a term of probation. The
Attorney General responds that section 1203.067(b)(3) lawfully compels defendant, as a
condition of probation, to waive the privilege against self-incrimination. She contends
the Fifth Amendment privilege simply precludes the use of evidence obtained as a result
of that compulsory waiver in a subsequent prosecution against defendant.
This court recently addressed this question in Rebulloza, supra, 234
Cal.App.4th 1065. There, as here, the defendant, after pleading no contest to one count
of indecent exposure charged as a felony based on a prior conviction for indecent
exposure (§ 314, subd. (1)), was granted probation that included the sex offender
management program conditions. (Rebulloza, at pp. 1069-1070.) Rebulloza challenged
the condition imposed under 1203.067(b)(3) as violating his Fifth Amendment privilege
against self-incrimination and as being overly broad. (Rebulloza, at p. 1070.) There, as
here, the Attorney General asserted that section 1203.067(b)(3) did not violate the
defendant’s Fifth Amendment rights because the compulsory waiver under the statute
was necessary to the probationer’s participation in the sex offender management program
and the Fifth Amendment prohibited only the use of the probationer’s compelled
5 As noted, ante, the 2010 amendment to section 1203.067 did not violate the ex
post facto clauses of either the federal or state constitutions. Although defendant has not
argued that the 2014 amendment of the statute is unconstitutional under the federal and
state ex post facto clauses, such argument would similarly lack merit if made.

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statements in a subsequent prosecution. (Rebulloza, at p. 1072.) We held that “a waiver
of all privileges under the Fifth Amendment is neither necessary nor constitutional as a
means to further the purposes of the sex offender management program.” (Id. at
pp. 1072-1073.)
In construing the statute, we found that section 1203.067(b)(3) compelled a waiver
of the probationer’s rights under the Self-Incrimination Clause of the Fifth Amendment
and, further, that a “ ‘core’ right under this clause is a criminal defendant’s right not to
have his officially compelled statements used against him in a criminal proceeding.
[Citations.]” (Rebulloza, supra, 234 Cal.App.4th at p. 1073.) We also found that “by
requiring the probationer to waive this core right, section 1203.067(b)(3) would allow the
state to use the probationer’s compelled statements against him in a criminal proceeding.”
(Ibid.) In so finding, we disagreed with the Attorney General’s position that the waiver
required by the statute was constitutional because the state could never use a
probationer’s compelled statements against him or her in a criminal proceeding. We
reasoned that “[t]his argument is fundamentally at odds with the language of the statute.
Because the Fifth Amendment is a right against the use of compelled statements in a
criminal proceeding, it necessarily follows that a waiver of that right would allow for the
use of probationers’ compelled statements in criminal proceedings.” (Id. at p. 1074,
original italics.)
In determining whether section 1203.067(b)(3) was constitutional, we discussed at
length the United States Supreme Court’s decision in Murphy, supra, 465 U.S. 420.
First, we noted that the high court “began its analysis by holding that the privilege against
self-incrimination applies to probationers.” (Rebulloza, supra, 234 Cal.App.4th at
p. 1076, citing Murphy, at p. 426.) “The [Murphy] court then held that the probation
condition requiring Murphy to answer questions truthfully did not, by itself, controvert
this right; rather, his obligations were no different from those of any other witness in a
proceeding: ‘The answers of such a witness to questions put to him are not compelled

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within the meaning of the Fifth Amendment unless the witness is required to answer over
his valid claim of the privilege.’ [Citation.]” (Rebulloza, at p. 1077, quoting Murphy, at
p. 427.) In Murphy, the court concluded “that if the state had threatened to revoke
Murphy’s probation for invoking the Fifth Amendment, this threat would have violated
the Fifth Amendment, and his statements would have been inadmissible at trial.
[Citation.]” (Rebulloza, at p. 1077, citing Murphy, at p. 435.)
We summarized: “Thus, Murphy has long made clear that the state may not
punish a probationer for invoking the Fifth Amendment. More recently, California courts
have reaffirmed that Murphy stands for this principle. ‘[I]f the state puts questions to a
probationer that call for answers that would incriminate him in a pending or later criminal
proceeding, and expressly or by implication asserts that invocation of the privilege would
lead to revocation of probation, the answers would be deemed compelled under the Fifth
Amendment and thus involuntary and inadmissible in a criminal prosecution.’ (Brown v.
Superior Court (2002) 101 Cal.App.4th 313, 320.) Furthermore, a threat to revoke
probation for failing to waive the privilege against self-incrimination is tantamount to a
threat to revoke probation for a ‘legitimate exercise of the Fifth Amendment privilege.’
(Murphy, supra, 465 U.S. at p. 438.) Murphy thereby prohibits the compelled waiver
required by section 1203.067(b)(3).” (Rebulloza, supra, 234 Cal.App.4th at p. 1077; see
also State v. Eccles (Ariz. 1994) 877 P.2d 799, 800-801 [probation condition requiring
waiver of any self-incrimination rights by truthfully answering all questions of probation
officers, counselors, or polygraph examiners held unconstitutional].)6
6 We also addressed in Rebulloza the defendant’s contention—one defendant does
not make here—that the waiver required under section 1303.067(b)(3) was
unconstitutionally overbroad, concluding that the condition was in fact overly broad with
respect to the defendant’s Fifth Amendment constitutional rights. (Rebulloza, supra,
234 Cal.App.4th at pp. 1078-1083.)

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Accordingly, following Rebulloza, we hold that the probation condition imposed
here pursuant to section 1203.067(b)(3), under which defendant must “waive any
privilege against self-incrimination and participate in polygraph examinations, which
shall be part of the sex offender management program,” is unconstitutional The
condition is unconstitutional in that it compels defendant to waive his privilege against
self-incrimination under the Fifth Amendment, which includes his “ ‘core’ right . . . not
to have his officially compelled statements used against him in a criminal proceeding.
[Citations.]” (Rebulloza, supra, 234 Cal.App.4th at p. 1073.)
G. Waiver of Psychotherapist-Patient Privilege
The trial court here also required defendant, pursuant to section 1203.067(b)(4), to
“waive any psychotherapist/patient privilege to enable communication between the sex
offender management professional and the Probation Officer.” In defendant’s opening
brief, he argues that “[t]his requirement for a blanket waiver is not related to the crime
and is unreasonable, and thus is invalid under People v. Lent, supra, 15 Cal.3d 481.” He
asserts that the condition abridges the statutory psychotherapist-patient privilege under
Evidence Code section 1014, a privilege which is to be construed broadly in the patient’s
favor. (Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014.) And he contends
that the condition is invalid under the three-prong test in Lent, supra, 15 Cal.3d at page
1121, because it (1) has no relationship to the crime of which he was convicted;
(2) relates to conduct (a psychotherapy session) which is not itself criminal; and (3)
requires conduct (waiver of the psychotherapist-patient privilege) which is not related to
future criminality.
In defendant’s reply brief, he abandons the position that the condition imposed
under section 1203.067(b)(4) is invalid and should be stricken in its entirety. Instead, he
urges that the condition be deemed valid, but only “to the extent necessary to allow
communication between the sex offender management professional and the supervising
probation officer.”

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18
In Rebulloza, supra, 234 Cal.App.4th 1065, we recently addressed the validity of a
probation condition imposed under section 1203.067(b)(4). We noted that “[t]he
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.’ [Citation.]”
(Rebulloza, at p. 1085, quoting People v. Stritzinger (1983) 34 Cal.3d 505, 511
(Stritzinger).) Acknowledging “that ‘the right to privacy is not absolute, but may yield in
the furtherance of compelling state interests’ [citation]” (Rebulloza at p. 1086, citing
Stritzinger, supra, at p. 511), we found the state has a legitimate and substantial interest
in furthering communication between the sex offender management professional and the
supervising probation officer to facilitate the professional’s providing the probation
officer (1) “with the probationer’s scores on the SARATSO risk assessment tools,” and
(2) information concerning “the probationer’s ‘progress in the program and dynamic risk
assessment issues.’ [Citation.]” (Rebulloza, at p. 1088.) We held this interest was
“sufficiently substantial . . . to justify disclosure . . . ” (Ibid.)
In determining whether the scope of the psychotherapist-patient waiver provided
in section 1203.060(b)(4) was properly tailored to address the state’s interest, we
concluded that it was not. “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

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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).” (Rebulloza, supra, 234 Cal.App.4th at pp. 1088-1089.)
We will likewise order the probation condition imposed upon defendant here
pursuant to section 1203.067(b)(4) to be construed as stated in Rebulloza, supra,
234 Cal.App.4th at pages 1088 to 1089.
II. Probation Condition Concerning Living in Home with Children
One of the probation conditions imposed by the court provided: “The defendant
[shall] not reside in a home where children under the age of 18 years reside.” Defendant
contends on appeal that the “probation condition is invalid because it lacks a knowledge
requirement.” He asserts the condition is therefore “unconstitutionally vague.” Although
defendant did not assert this challenge below, such a constitutional challenge to a
probation condition may be raised for the first time on appeal. (See In re Sheena K.
(2007) 40 Cal.4th 875, 885-887.) The Attorney General concedes the issue.
In People v. Moses (2011) 199 Cal.App.4th 374, 378 (Moses), the defendant
challenged a similar probation condition on the basis that it was unconstitutionally vague

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because it did not include a knowledge requirement.7 The appellate court ordered the
probation condition modified (ibid.) to include the language (italicized here) requiring
scienter on the part of defendant, namely, “[d]o not reside with any person you know or
reasonably should know to be under the age of 18 . . .” (Id. at p. 382, italics added; see
also People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [probation condition
prohibiting association with persons under 18 modified to include knowledge
requirement].)
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 [constitutional] challenge on the ground of
vagueness. [Citation.]” (In re Sheena K., supra, 40 Cal.4th at p. 890.) As this court has
observed, “[I]n a variety of contexts . . ., California appellate courts have found probation
conditions to be unconstitutionally vague or overbroad when they do not require the
probationer to have knowledge of the prohibited conduct or circumstances.” (People v.
Kim (2011) 193 Cal.App.4th 836, 843.)
We will therefore order the probation condition modified to include a specific
knowledge requirement. (Sheena K., supra, 40 Cal.4th at p. 892 [“modification to
impose an explicit knowledge requirement is necessary to render [a probation] condition
constitutional”]; see Moses, supra, 199 Cal.App.4th at p. 382.) The challenged probation
condition shall be modified to read (with the modification italicized): “The defendant
shall not reside in a home where he knows or reasonably should know children under the
age of 18 years reside.”
7 The probation condition in Moses read: “ ‘Do not reside with any person under
the age of eighteen, including but not limited to your natural children, stepchildren, or
any child with whom you have a parenting, guardianship or supervisory relationship,
unless approved in advance and in writing by your probation officer.’ ” (Moses, supra,
199 Cal.App.4th at p. 378.)

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III. Imposition of Fine and Penalty Assessments
Before the court entered its probation order on May 29, 2013, defense counsel
urged that the court impose “minimal fines and fees” due to defendant’s lack of financial
resources. After acknowledging counsel’s position, the court ordered, among other
things, that defendant pay a fine of $300 and penalty assessments of $735, pursuant to
section 290.3. It made no express finding and conducted no inquiry concerning whether
defendant had the ability to pay these amounts.
Defendant contends the court erred in imposing the fine and penalty assessments
under section 290.3 without determining, based upon substantial evidence, whether
defendant had the ability to pay them. The Attorney General responds that from “the
current record, this Court should presume that the trial court knew the applicable law and
made an implied finding of ability to pay the section 290.3 fine.”
Under section 290.3, the court is required to impose a statutory fine unless it finds
a defendant is unable to pay it. (People v. McMahan (1992) 3 Cal.App.4th 740, 749
(McMahan).)8 The burden is upon the defendant to timely raise an objection to the
imposition of a fine under section 290.3 on the basis of his or her inability to pay.
(McMahan, at p. 749-750.) The court is not required to make express findings on the
record in deciding to impose, or to not impose, a fine under section 290.3. (People v.
Burnett (2004) 116 Cal.App.4th 257, 261 (Burnett).) “Section 290.3 does not limit the
evidence the trial court may consider in determining a defendant’s ability to pay the sex
offender fine. Consequently, the trial court may consider all evidence relevant to ability
8 “Every person who is convicted of any offense specified in subdivision (c) of
Section 290 shall, in addition to any imprisonment or fine, or both, imposed for
commission of the underlying offense, be punished by a fine of three hundred dollars
($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second
and each subsequent conviction, unless the court determines that the defendant does not
have the ability to pay the fine.” (§ 290.3, subd. (a).)

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22
to pay, including the amount of any fine or restitution ordered and the defendant’s
potential future income. Following a consideration of the facts and after concluding the
defendant does not have the ability to pay, the trial court may properly decline to impose
the sex offender fine.” (Id. at p. 261.)
The court here did not make a finding that defendant had the ability to pay the fine
under section 290.3. We may, of course, imply such a finding. (Burnett, supra,
116 Cal.App.4th at p. 261.) And while “we must draw all reasonable inferences in favor
of the [order] [Citation.]” (People v. Mercer (1999) 70 Cal.App.4th 463, 467), there must
be substantial evidence to support the implied finding.
Defense counsel, in urging the court “in the interest of justice . . . to lower or strike
the fees that [are] within its power to do,” made an offer of proof regarding defendant’s
indigence. She indicated that defendant was living with his sister, who was supporting
him financially because he had lost his job when he was taken into custody. She also
stated that defendant was unemployed, had no means of support, had no savings, and was
financially dependent on his sister. It was also noted in the probation officer’s report that
defendant did not have a high school diploma. The court acknowledged counsel’s
position by stating, “I appreciate that.” It did not cite any evidence rebutting defense
counsel’s offer of proof that defendant was without assets or income, and the prosecution
submitted nothing in response on the issue. Nor does anything in the probation officer’s
report indicate that defendant had any income, assets, employment, or employment
prospects. There was thus no substantial evidence to support the trial court’s implied
finding of defendant’s ability to pay the fees.
The circumstances here are analogous to those in People v. Pacheco (2010)
187 Cal.App.4th 1392 (Pacheco).9 In Pacheco, this court was concerned with an implied
9 Pacheco, supra, 187 Cal.App.4th 1392, was disapproved on other grounds in
People v. McCullough (2013) 56 Cal.4th 589, 599.

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23
finding of the defendant’s ability to pay relating to the payment of attorney fees under
section 987.8. A panel of this court concluded that, while the court’s finding of the
defendant’s ability to pay could be implied, it nonetheless “must be supported by
substantial evidence. [Citations.]” (Pacheco, at p. 1398.) Because there was nothing in
the record concerning the defendant’s “assets, employment status or other means of
income from which the court could have made a determination of his ability to pay
attorney fees as provided by section 987.8,” the attorney fee order was reversed. (Id. at
p. 1399.)
Likewise, here, there is no evidence refuting defense counsel’s offer of proof
regarding her client’s indigence. There was thus no substantial evidence to support the
court’s implied finding of defendant’s ability to pay the fine and assessments levied
under section 290.3.
DISPOSITION
The orders of probation dated May 29 and July 19, 2013, are reversed and the
matter is remanded to the trial court with directions that it (1) strike the fine of $300 and
penalty assessments of $735 imposed pursuant to section 290.3; (2) strike the language of
the condition imposed pursuant to section 1203.067(b)(3) reading “waive any privilege
against self-incrimination and”; and (3) modify the condition restricting where defendant
resides to read “The defendant shall not reside in a home where he knows or reasonably
should know children under the age of 18 years reside.”

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Márquez, J.

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RUSHING, P.J., Concurring
I agree with the majority opinion that defendant cannot be compelled to waive his
immunity against self-incrimination, although he can be compelled to answer potentially
incriminating questions, on pain of revocation of probation, so long as his answers cannot
be used against him. I diverge somewhat from the majority opinion’s approach, however,
concerning the effect of defendant’s statutorily required waiver of the psychotherapist-
patient privilege. I believe California’s express guarantee of the right of privacy (Cal.
Const., art. I, § 1) compels a rule under which the waiver required by Penal Code
section 1203.067, subdivision (b), permits the “sex offender management professional” to
report to the probation officer upon the defendant’s test scores, attendance, and general
cooperativeness in the therapy process, but does not otherwise permit the professional to
disclose, to the probation officer or anyone else, the content of any otherwise protected
psychotherapeutic communications. To the extent Penal Code section 1203.067 may be
understood or intended to require or permit disclosure of such communications, I would
hold it violative of our state constitutional guarantee of privacy.
______________________________________
RUSHING, P.J.

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ELIA, J., Concurring and Dissenting
I agree with Justice Marquez’s conclusion that the 2010 amendment to Penal Code
section 1203.0671 does not violate the ex post facto clauses of either the federal or state
Constitutions. Further, I agree that the 2010 amendment to section 1203.067 has
prospective application only, but that the 2014 amendment to section 1203.067 can be
applied to defendant. Moreover, I agree that the probation condition requiring that
defendant not reside in a house where children under the age of 18 years reside must be
modified to include a knowledge requirement. Finally, I agree that there is no substantial
evidence in the record to support even an implied finding that defendant has the ability to
pay the fine and assessments levied under section 290.3.
Respectfully, however, I disagree with the majority’s conclusion that the probation
condition requiring defendant to waive the privilege against self incrimination
(§ 1203.067, subdivision (b)(3)) is prohibited by the Fifth Amendment to the United
States Constitution under Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy), and that
therefore this court must strike the condition. (Maj. opn. at p. 3.) In addition, I would not
narrowly construe the waiver of the psychotherapist-patient privilege as does the
majority. (Maj. opn. at pp. 3, 19-20)
The Fifth Amendment provides that no person “shall be compelled in any criminal
case to be a witness against himself.” However, the Fifth Amendment does not prohibit a
state from requiring a prospective probationer to choose between accepting this waiver
and going to prison. This is true because the probation condition requiring defendant to
waive the privilege against self incrimination does not itself compel a probationer to be a
witness against himself in a criminal proceeding. This condition requires only that the
probationer provide full disclosures in connection with the sex offender management
1 All unspecified section references are to the Penal Code.

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2
program. Such disclosures are necessary to the success of the program. The waiver
provision is critical because it prevents a probationer from refusing to provide such
disclosures on self-incrimination grounds.
In Murphy, supra, 465 U.S. 420, Murphy had been placed on probation for a
sexual offense. His probation terms required him to participate in a sex offender
treatment program and to be “truthful with the probation officer ‘in all matters.’ ”
(Murphy, at p.422.) A counselor in the treatment program told the probation officer that
Murphy had admitted an unrelated rape and murder. (Murphy, at p. 423.) The probation
officer confronted Murphy about these admissions. (Murphy, at pp. 423-424.) Again,
Murphy admitted the rape and murder. (Murphy, at p. 424.) Thereafter, Murphy was
charged with murder, and he sought to suppress his admissions to the probation officer on
Fifth Amendment grounds. (Murphy, at pp. 424-425.) The Minnesota Supreme Court
held that, because the defendant was required to respond truthfully to the probation
officer, the probation officer was required to inform the defendant of his Fifth
Amendment rights before questioning him, and her failure to do so merited suppression
of his admissions. (Murphy, at p. 425.)
The United States Supreme Court granted certiorari to decide “whether a
statement made by a probationer to his probation officer without prior warnings is
admissible in a subsequent criminal proceeding.” (Murphy, supra, 465 U.S. at p. 425.)
The Supreme Court concluded that the “general rule” is that the Fifth Amendment
privilege against self-incrimination is not “self-executing.” (Murphy, at p. 434.) A
privilege that is not “self-executing” applies only where it has been invoked. (Ibid.)
Murphy had not invoked the privilege because he did not “assert the privilege rather than
answer” the probation officer’s questions. (Murphy, at p. 429.) The court rejected
Murphy’s claim that his obligation under the terms of his probation to truthfully answer
his probation officer’s questions alone converted his “otherwise voluntary” responses into

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3
compelled statements. (Murphy, at p. 427.) Analogizing Murphy’s situation to that of a
subpoenaed witness who testifies on pain of contempt, the court observed that “[t]he
answers of such a witness to questions put to him are not compelled within the meaning
of the Fifth Amendment unless the witness is required to answer over his valid claim of
the privilege.” (Ibid.) “If he asserts the privilege, he ‘may not be required to answer a
question if there is some rational basis for believing that it will incriminate him, at least
without at that time being assured that neither it nor its fruits may be used against him’ in
a subsequent criminal proceeding. [Citation.] But if he chooses to answer, his choice is
considered to be voluntary since he was free to claim the privilege and would suffer no
penalty as the result of his decision to do so.” (Murphy, at p. 429.)
In Murphy, the United States Supreme Court considered the applicability of the
“penalty exception” to the general rule that the Fifth Amendment is not “self-executing.”
The penalty exception applies where the State not only compelled the person’s statements
but also “sought to induce him to forgo the Fifth Amendment privilege by threatening to
impose economic or other sanctions ‘capable of forcing the self-incrimination which the
Amendment forbids.’ ” (Murphy, supra, 465 U.S. at p. 434.) “A State may require a
probationer to appear and discuss matters that affect his probationary status; such a
requirement, without more, does not give rise to a self-executing privilege. The result
may be different if the questions put to the probationer, however relevant to his
probationary status, call for answers that would incriminate him in a pending or later
criminal prosecution. There is thus a substantial basis in our cases for concluding that if
the State, either expressly or by implication, asserts that invocation of the privilege would
lead to revocation of probation, it would have created the classic penalty situation, the
failure to assert the privilege would be excused, and the probationer’s answers would be
deemed compelled and inadmissible in a criminal prosecution.” (Murphy, at p. 435.) Yet
even in the “classic penalty situation,” the probationer’s compelled statements would still

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4
be admissible in a probation revocation hearing, as that is not a criminal proceeding and
the Fifth Amendment is therefore inapplicable. (Murphy, at p. 435 & fn. 7.) Murphy’s
statements did not fall within the penalty exception. “On its face, Murphy’s probation
condition 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.” (Murphy, at p. 437.) Hence, his statements to the probation officer were
admissible against him in a criminal prosecution.
In Maldonado v. Superior Court (2012) 53 Cal.4th 1112 (Maldonado), the
California Supreme Court rejected the defendant’s claim that the Fifth Amendment
provided “a guarantee against officially compelled disclosure of potentially self-
incriminating information.” (Maldonado, at p. 1127.) The Maldonado court based its
holding on the rule that the Fifth Amendment applies only to use of a defendant’s
incriminating statements; the Fifth Amendment does not bar the government from
compelling those statements. “[T]he Fifth Amendment does not provide a privilege
against the compelled ‘disclosure’ of self-incriminating materials or information, but only
precludes the use of such evidence in a criminal prosecution against the person from
whom it was compelled.” (Maldonado, at p. 1134.) “[T]he Fifth Amendment privilege
against self-incrimination does not target the mere compelled disclosure of privileged
information, but the ultimate use of any such disclosure in aid of a criminal prosecution
against the person from whom such information was elicited.” (Maldonado, at p. 1137.)
The California Supreme Court’s decision in Maldonado relied on the United
States Supreme Court’s decision in Chavez v. Martinez (2003) 538 U.S. 760 (Chavez).
Chavez was a civil action involving qualified immunity in which the issue was whether a
police officer who allegedly compelled statements from the plaintiff could be held liable
for violating the plaintiff’s civil rights. The plaintiff claimed that the police officer had

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5
violated the Fifth Amendment. The United States Supreme Court produced a plurality
opinion and multiple separate opinions rejecting the plaintiff’s theory. Justice Thomas
wrote the lead opinion. In a section of his opinion joined by three other justices,
Justice Thomas stated that compelled statements “of course may not be used against a
defendant at trial, [citation], but it is not until their use in a criminal case that a violation
of the Self-Incrimination Clause occurs.” (Chavez, at p. 767 (plur. opn. of Thomas, J.).)
“[M]ere coercion does not violate the text of the Self-Incrimination Clause absent use of
the compelled statements in a criminal case against the witness.” (Chavez at p. 769
(plur. opn. of Thomas, J.).) Writing separately, Justice Souter acknowledged that it
would be “well outside the core of Fifth Amendment protection” to find that “questioning
alone” was a “completed violation” of the Fifth Amendment and declined to extend the
Fifth Amendment to such a claim. (Chavez, at p. 777 (conc. opn. of Souter, J.).) Thus, in
Chavez, five justices held that the Fifth Amendment is not violated by the extraction of
compelled statements.
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 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. (Murphy, at 435.) In short, 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, supra, 538 U.S. at p. 769 (plur. opn. of Thomas, J.) [the Fifth

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6
Amendment is not violated absent use of the compelled statements in a criminal case
against the witness]; Chavez at p. 777 (conc. opn. of Souter, J.).)
In sum, I believe that we are bound by Maldonado and Chavez (see Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and they hold that the mere
extraction of compelled statements does not violate the Fifth Amendment. Since the
challenged probation condition does not purport to authorize the use of any statements
against defendant in a criminal proceeding, it does not violate the Fifth Amendment.
Simply put, 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.
As to the waiver of the psychotherapist-patient privilege, in the Sex Offender
Punishment Control and Containment Act of 2006 (§ 290.03), the “Legislature [found]
and declare[d] that a comprehensive system of risk assessment, supervision, monitoring
and containment for registered sex offenders residing in California communities is
necessary to enhance public safety and reduce the risk of recidivism posed by [sex]
offenders.” (§ 290.03, subd. (a).)
Accordingly, the Legislature amended section 1203.067 to provide a collaborative
approach to sex offender management known as the “Containment Model.” As the
analysis of Assembly Bill 1844 explains, “The Containment Model calls for a
collaborative effort of sex offender specific treatment providers, law enforcement
supervising agents such as probation officers or parole agents, polygraphists providing
specialized testing as both a treatment and monitoring tool and victim advocacy
participants whenever possible. The offender is supervised and overseen within this
context.” (Sen. Com. on Public Safety, Bill Analysis of Assem. Bill No. 1844 (2009-

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7
2010 Reg. Sess.) June 29, 2010, available on line at <http://www.leginfo.ca.gov/pub/09-
10/bill/asm/ab_1801-1850/ab_1844_cfa_20100628_141315_sen_comm.html>)
As of July 1, 2012, the Containment Model is mandatory. (§§ 290.09, 1203.067,
3008 & 9003.)
The Legislature has explained that the purpose of the waiver of the
psychotherapist-patient privilege is to “enable communication between the sex offender
management professional and supervising probation officer.” (§ 1203.067, subd. (b)(4).)
Such a waiver supports the compelling state interest in “enhanc[ing] public safety and
reduc[ing] the risk of recidivism posed by [sex] offenders.” (§ 290.03, subd. (a).)
Since the Containment Model calls for a collaborative effort of sex offender
specific treatment providers, which includes polygraphists providing specialized testing
as both a treatment and monitoring tool, limiting disclosures to the probation officer
would effectively eliminate such a treatment and monitoring tool. The substance of the
psychotherapist-patient communications may require verification or investigation by the
polygraphists.
Simply put, for the Containment Model of sex offender management to be
effective, there must be open and ongoing communication between all professionals
responsible for supervising, assessing, evaluating, treating, supporting, and monitoring
sex offenders. The absence of open and ongoing communication between these
professionals and other involved persons could compromise the purpose and efficacy of
the containment team approach and as a result jeopardize the safety of the community.
Accordingly, I would not construe the waiver of the psychotherapist-patient waiver as
narrowly as does the majority.

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_________________________________
ELIA, J.

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