P. v. Herrera

1
Filed 3/2/16 P. v. Herrera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTIAN DANIEL HERRERA,
Defendant and Appellant.
E062184
(Super.Ct.No. SWF1303051)
OPINION
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed in part; reversed in part.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Respondent.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Kristine A.
Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 34 --

2
I
INTRODUCTION
Defendant Christian Daniel Herrera appeals from judgment entered after he pled
guilty and was convicted of two counts of unlawful contact and communication with a
minor with intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a)1). The trial
court denied defendant’s Hofsheier2 motion challenging sex offender registration under
section 290. The court also denied defendant’s motion to withdraw his guilty plea based
on ineffective representation. Defendant was granted 36 months probation and was
committed to 180 days in custody, to be served in a work release program.
Defendant contends he was deprived of effective assistance of counsel because his
attorney misled him on the possibility of success of the Hofsheier motion. Defendant
further argues the trial court abused its discretion in denying his Hofsheier motion on the
ground he did not establish ineffective assistance of counsel (IAC). In addition,
defendant asserts that his probation condition requiring him to waive the privilege against
self-incrimination and submit to polygraph testing (probation condition No. 16) violates
his Fifth Amendment privilege against self-incrimination. Defendant also argues that his
probation condition requiring him to waive the psychotherapist/doctor-patient privilege
(probation condition No. 15) violates his state and federal constitutional rights to privacy.
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier).

-- 2 of 34 --

3
We conclude defendant has not established prejudicial IAC, and his probation
conditions requiring him to submit to polygraph testing and waive self-incrimination and
psychotherapist/doctor-patient privileges do not violate defendant’s constitutional
privilege against self-incrimination and right to privacy. However, we further conclude
probation condition No. 16, requiring waiver of defendant’s privilege against self-
incrimination, violates defendant’s Fifth Amendment privilege against self-incrimination.
We therefore reverse the judgment solely as to the probation condition requiring waiver
of defendant’s privilege against self-incrimination. The judgment is affirmed in all other
regards.
II
FACTS3 AND PROCEDURAL BACKGROUND
On August 31, 2013, the mother of 17-year-old Jane Doe reported to the police a
message she saw on Jane Doe’s Facebook webpage. Mother told the police that
defendant had begun contacting Jane Doe on August 4, 2013. Defendant convinced Jane
Doe to agree to pay him $50 in rent to live at his home after she turned 18 years old.
Defendant then said $50 was not enough but she could earn $100 to be in adult movies.
Defendant claimed he had been filming adult movies on and off for years. Defendant
requested Jane Doe provide him with a nude photograph of herself and asked if she knew
of any other 17- or 18-year old girls who would be interested.
3 The summary of facts is derived from the facts stated in the presentence
probation report.

-- 3 of 34 --

4
One of Jane Doe’s teachers notified the police that Jane Doe was moving out of
her home. The teacher was concerned about Jane Doe’s ability to care for herself. An
officer spoke to Jane Doe at school. Jane Doe told the officer she planned on moving in
with a friend. Jane Doe also told the officer defendant had asked her for nude
photographs of herself but she had not communicated with defendant after their Facebook
conversation on August 24, 2013.
The officer sent defendant a Facebook message from Jane Doe’s account, stating
that Jane Doe was having family problems and that she knew of another girl, Heather,
who was almost 17 years old, who was having family problems and needed money.
Defendant responded by sending his telephone number and stating that Heather could
contact him by text message. Defendant asked if Jane Doe and Heather were virgins or
sexually experienced. Defendant offered to pay them $40 for oral sex, which he would
record on his iPhone camera and would be part of the hiring process. He said that if Jane
Doe did well, the video producers would want more videos and Jane Doe would get paid
more. Defendant added he would pay $80 for two females having sex with him, $20 to
$40 for oral sex, $30 for mutual oral copulation, and an unspecified amount for anal sex.
And if she did well, Jane Doe would be invited to perform in the movie room and could
make $500 to $1,000 per hour. Defendant asked Jane Doe and Heather to send nude
photos of themselves to his cellular phone.
Another officer contacted defendant through Facebook on September 20, 2013.
Defendant agreed to meet Heather that day and also asked to meet Jane Doe at the home
where she was babysitting that evening. Officers determined from defendant’s Facebook

-- 4 of 34 --

5
account that he was at a Barnes and Noble store in Temecula. Officers went there,
arrested defendant, and took him into custody. After waiving his Miranda rights,
defendant told the police that he knew Jane Doe was 17 years old when they first met but
she was turning 18 that month. He said he knew Jane Doe needed money and he was
merely telling her how she could earn it. Defendant conceded watching pornography but
denied producing it. Defendant also admitted he had made up some “bullshit lies” to
“hook up” with Jane Doe. Defendant and his wife were having marital problems.
Defendant said he was “just trying to get laid.”
Court Proceedings
The Riverside County District Attorney filed a felony complaint against defendant
alleging two counts of unlawful contact and communication with a minor with intent to
commit sexual offenses on August 24, 2013, and September 19, 2013 (§ 288.3, subd. (a);
counts 1 and 2). The sexual offenses included use of Jane Doe, a minor, to perform
prohibited sexual acts in violation of section 311.4, subdivision (c).
On March 28, 2014, defendant pled guilty to the two charged counts of violating
section 288.3, subdivision (a). Defendant initialed and signed a felony plea form, in
which he acknowledged: “I understand that because I am pleading guilty to a qualifying
offense, I will be ordered to register with law enforcement as a(n) PC 290 and that if I fail
to register or to keep my registration current for any reason, new criminal charges may be
filed against me. I understand that registration as a sex offender is a lifelong requirement.
Will be argued at time of sentencing.”

-- 5 of 34 --

6
During the plea hearing, the prosecutor informed the court that it had been agreed
that the sentencing judge, Judge Clark, would hear defendant’s Hofsheier motion to
determine whether defendant would be required to register as a sex offender. Defendant
acknowledged that Judge Clark made clear that he would not be permitted to withdraw
his plea if she denied his motion and required sex offender registration. The prosecutor
told the court that Judge Clark “wanted the defendant to be very clear that in the event
that she does require him to register as a sex offender, as the People believe would be
required, and as Judge Clark tentatively believed would be required, that he would not
have the opportunity to withdraw his plea at that time. . . . [S]he totally advised he may,
in fact, likely will, in fact, have to register as a sex offender.” Both defendant and his
attorney agreed that this was accurate. The trial court then took defendant’s guilty plea to
counts 1 and 2.
On June 2, 2014, defendant filed a Hofsheier motion, and the trial court denied it
that same day. On June 2, 2014, defendant also filed a motion to withdraw his guilty
plea, arguing he was unaware that when he entered his guilty plea, sex offender
registration was mandatory under section 290. The trial court continued the motion to
withdraw his plea to allow defendant to be represented by another attorney for purposes
of the motion. The court concluded that, because the motion was based on IAC,
defendant’s attorney had a conflict of interest in representing defendant on the motion.
After other counsel was appointed for defendant, the trial court heard and denied
defendant’s motion to withdraw his plea.

-- 6 of 34 --

7
III
MOTION TO WITHDRAW PLEA
Defendant contends the trial court abused its discretion when it denied his motion
to withdraw his plea based on IAC. Defendant argues his attorney provided ineffective
representation when advising defendant on section 290 sexual registration requirements
and bringing a Hofsheier motion to avoid sex offender registration.
A. Procedural Background
(1) Hofsheier Motion
Defendant requested in his Hofsheier motion an order relieving him of the
mandatory sexual offender registration requirement. Defendant argued that under
Hofsheier, the section 290 mandatory registration requirement, as applied to defendant,
violated the equal protection clause. Section 290 requires a defendant convicted of
nonforcible oral copulation of a minor to register as a sex offender but registration is not
compulsory for committing unlawful nonforcible sexual intercourse with a minor. The
Hofsheier court concluded that the remedy for such an equal protection violation was to
“hold a hearing to determine whether the defendant should be subject to discretionary
registration as a sex offender under subdivision (a)(2)(E) of section 290.” (People v.
Garcia (2008) 161 Cal.App.4th 475, 478-479, citing Hofsheier, supra, 37 Cal.4th at pp.
1208-1209.)4
4 In 2015, after the trial court denied defendant’s Hofsheier motion and motion to
withdraw his guilty plea, the California Supreme Court overruled Hofsheier in Johnson v.
Department of Justice (2015) 60 Cal.4th 871 (Johnson).

-- 7 of 34 --

8
Defendant argued in his Hofsheier motion that he was entitled to a hearing on
discretionary registration under Hofsheier and should not be required to register because
his charged offenses did not involve actual physical contact between Jane Doe and
defendant. There was only electronic communication via Facebook. Defendant asserted
that the trial court should exercise its discretion to assess whether he should be required
to register as a sex offender under section 290.006, and order that imposition of the
registration requirement as to defendant is unconstitutional.
The People filed opposition, arguing sex offender registration was not
discretionary as applied to defendant because section 290.006 is inapplicable.
Defendant’s charged crimes of violating section 288.3 are listed in section 290,
subdivision (c), as offenses that require mandatory sex offender registration. The People
further argued that Hofsheier did not extend to violations of section 288.3 under equal
protection principles because defendant was not similarly situated to the defendant in
Hofsheier and the mandatory sex offender registration requirement for a section 288.3
violation was rationally related to a legitimate governmental interest.
During the hearing on defendant’s Hofsheier motion, the trial court concluded
section 290.006 did not apply because the charged section 288.3 crime is listed in section
290, subdivision (c), as subject to mandatory registration. The court stated that the only
exception would be if requiring mandatory registration under section 290 violated
defendant’s constitutional right to equal protection under Hofsheier. The trial court
concluded Hofsheier was inapplicable because defendant was not similarly situated to the
Hofsheier defendant.

-- 8 of 34 --

9
(2) Motion to Withdraw Guilty Plea
After ruling on defendant’s Hofsheier motion, the court continued defendant’s
motion to withdraw his plea on the ground defendant was entitled to have independent
counsel argue the motion because his current attorney, Adrian Yeung, had a conflict of
interest when arguing the motion based on his own IAC. Defendant argued in his motion
to withdraw his guilty plea (motion to withdraw plea) that there was good cause to
withdraw his plea under section 1018 because, when he pled guilty, Yeung did not
adequately inform him of the meaning of section 290 and defendant did not fully
understand the extent of section 290, which requires mandatory lifetime sex offender
registration.
Yeung’s supporting declaration stated that he fully explained the effects of section
290 to defendant and believed defendant understood. Yeung also explained to defendant
that a Hofsheier motion could be filed and, if granted, might remove the mandatory
registration requirement. Yeung further stated he believed defendant was not fully aware
that the Hofsheier might not be granted, even though defendant had not had any physical
contact with Jane Doe. Yeung believed defendant was ignorant as to the requirements of
section 290 and misunderstood the law. Yeung concluded that, had defendant been fully
aware of the requirements, he would not have pled guilty. Therefore defendant did not
act with free will when pleading guilty.
Defendant’s supporting declaration stated that before he entered his guilty plea, his
attorney explained the effects of section 290 to him. Defendant believed when he entered
his plea that he could file a motion that would eliminate the mandatory registration

-- 9 of 34 --

10
requirement. Defendant further stated that he was ignorant of the exact requirements of
section 290, including annual registration for life. Defendant asserted that, had he been
fully aware of the section 290 requirements, he would not have pled guilty. Defendant
believed he was ignorant because he misunderstood what the law required him to do and,
had he not been ignorant, he would have proceeded with the preliminary hearing. The
People opposed defendant’s motion to withdraw plea, arguing there was not good cause
to withdraw defendant’s plea.
At the continued hearing on defendant’s motion to withdraw plea of guilty,
defendant was represented by independent counsel, Cheryl Thompson. Yeung testified at
the hearing that when defendant pled guilty, Yeung was aware defendant would have to
register under section 290, based on defendant’s charges. Yeung was “fully educated as
to what 290 registration was going to require.” Yeung told defendant before he entered
his plea that under section 290, registration was mandatory and that defendant would
have to register. Yeung discussed with defendant the charges and section 290
registration. Defendant told Yeung he did not want to register for the rest of his life.
Yeung acknowledged that at the previous hearing on June 2, 2014, he stated that
he was “‘uneducated fully as to what a 290 was going to entail.’” Yeung explained that
he was not referring to section 290 and what it entailed, but as to how it related to the
Hofsheier motion. He meant he had not fully researched and filed a Hofsheier motion
before defendant’s plea. He had researched bringing a Hofsheier motion but not fully at
that time. Yeung therefore meant when he said he was ignorant of “the exact
requirements of 290,” that he was ignorant as to whether, under Hofsheier, section 290

-- 10 of 34 --

11
registration was discretionary as to defendant. Yeung believed there was the possibility
the court might grant defendant’s Hofsheier motion.
Yeung testified that he told defendant that, during an in chambers discussion
between Yeung, the prosecutor and the judge, it was determined that it was inconclusive
as to whether or not Hofsheier applied to defendant. Therefore it was uncertain as to
whether defendant would have to register. Yeung explained to defendant the facts of
Hofsheier and advised him that there was a chance, if he filed a Hofsheier motion, that
the court would conclude Hofsheier applied to him and find registration was
discretionary.
Yeung acknowledged defendant stated in the motion to withdraw plea that
defendant was not fully aware or informed, and did not understand fully the extent of
section 290. Yeung explained that he came to this conclusion after defendant entered his
guilty plea. Yeung fully informed defendant of the section 290 requirements at the time
of his plea but after defendant entered his plea, Yeung realized defendant had not
understood everything he was told. Yeung testified he told defendant that going to trial
was an option. Yeung did not discuss filing a motion to withdraw plea until later, after
defendant entered his plea, when Yeung concluded defendant had not understood
everything Yeung had told him about mandatory registration and filing a Hofsheier
motion.
Defendant testified at the hearing on his motion to withdraw plea that he never
understood until recently that he would be required to register for life if he pled guilty.
When Yeung discussed filing a Hofsheier motion, Yeung said that, if it was granted,

-- 11 of 34 --

12
defendant would not have to register. Defendant had no idea if the court was going to
grant it. “[E]verything was always a maybe.” After defendant pled guilty and did some
research, he learned for the first time that he would have to register for life. Defendant
then called Yeung, who suggested filing a Hofsheier motion. Yeung said that if it was
denied, defendant could file a motion to withdraw plea. Defendant did not want to have
to register in part because he lived near a school and feared he would have to move.
Defendant testified that Yeung gave defendant hope he would not have to register.
Defendant said he would not have pled guilty had he known the court would deny his
Hofsheier motion or had he known he would have to register for life. Yeung always told
defendant he was uncertain what would happen. Defendant recalled the court stating
when he entered his plea that, if the Hofsheier motion was not granted, he could not
withdraw his plea. Defendant also recalled that when he pled guilty, he initialed a waiver
of rights form which stated he understood that because he was pleading guilty, he would
be ordered to register for the rest of his life as a sex offender under section 290, and the
registration requirement would be argued at sentencing.
After hearing testimony and argument, the trial court concluded defendant had not
met his burden of establishing by clear and convincing evidence good cause to grant
defendant’s motion to withdraw plea. The court noted that, before defendant entered his
plea, defendant and Yeung had indicated that they had reviewed the waiver form, and
defendant understood and agreed to the waiver provisions and consequences. The court
also noted that the prosecutor had stated with specificity the possibilities regarding
registration and the judge’s intentions regarding registration if the Hofsheier motion was

-- 12 of 34 --

13
denied. Defendant confirmed at that time that he had listened to what the attorneys had
said. The court further stated that when it took defendant’s plea, the court was satisfied
that defendant knew what he was doing and what the possibilities were. The court
therefore denied defendant’s motion to withdraw plea on the ground defendant
knowingly, intelligently, and voluntarily entered his plea.
B. Applicable Law
Section 1018 provides that, upon a defendant filing a motion before judgment, the
court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of
not guilty substituted. (§ 1018.) “This section shall be liberally construed to effect these
objects and to promote justice.” (§ 1018.) “‘A plea may not be withdrawn simply
because the defendant has changed his [or her] mind.’ [Citation.] The decision to grant
or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court.
[Citations.] ‘A denial of the motion will not be disturbed on appeal absent a showing the
court has abused its discretion.’ [Citations.] ‘Moreover, a reviewing court must adopt
the trial court’s factual findings if substantial evidence supports them.’ [Citation.]
“To establish good cause to withdraw a guilty plea, the defendant must show by
clear and convincing evidence that he or she was operating under mistake, ignorance, or
any other factor overcoming the exercise of his or her free judgment, including
inadvertence, fraud, or duress. [Citation.] The defendant must also show prejudice in
that he or she would not have accepted the plea bargain had it not been for the mistake.
[Citation.]” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.)

-- 13 of 34 --

14
Where the defendant argues good cause to withdraw a guilty plea is based on IAC,
the defendant must demonstrate (1) his counsel’s performance was deficient when
measured against the standard of a reasonably competent attorney under prevailing
professional norms, and (2) counsel’s deficient performance so undermined the proper
functioning of the adversarial process that the trial (or plea) cannot be relied on as having
produced a just result. The appellate court must presume counsel’s conduct fell within
the wide range of reasonable professional assistance and accord great deference to
counsel’s tactical decisions. (Hill v. Lockhart (1985) 474 U.S. 52, 59; People v. Lewis
(2001) 25 Cal.4th 610, 674.)
C. Analysis
Defendant contends he established good cause for withdrawing his plea by
demonstrating IAC. He argues that his plea was entered involuntarily because his prior
counsel, Yeung, rendered ineffective representation by failing to advise defendant fully
and properly on section 290 and regarding filing a Hofsheier motion. Defendant asserts
that this led to defendant entering a guilty plea based on the belief sex offender
registration was discretionary in his case and he might not have to register if he filed and
was granted a Hofsheier motion. We conclude defendant has not demonstrated IAC. He
has not shown that Yeung’s representation was both deficient under prevailing
professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).)
The Sex Offender Registration Act (§ 290 et seq.) allows discretionary sex
offender registration for defendants convicted of unlawful sexual intercourse with a

-- 14 of 34 --

15
minor under sections 261.5 and 290.006, but imposes mandatory sex offender registration
for defendants convicted of crimes involving other types of sexual activity with a minor
under section 290, subdivisions (b) and (c). (Johnson, supra, 60 Cal.4th at p. 874.)
Defendant’s sex offense, of contacting a minor with intent to commit a sexual offense
(§ 288.3, subd. (a)), is listed in section 290, subdivision (c), as one of the offenses for
which lifetime sex offender registration is mandatory.
Yeung and defendant’s testimony and declarations established that defendant was
fully and adequately advised regarding mandatory registration under section 290 and the
option of filing a Hofsheier motion. Defendant was told that if he pled guilty, he would
have to register unless the court granted a Hofsheier motion. Even though Yeung told
defendant he would file a Hofsheier motion, there is nothing in the record establishing
that Yeung told defendant the motion would be granted or that there was a high
probability of prevailing on the motion. Defendant testified Yeung told him the outcome
was uncertain.
Yeung did not commit IAC by telling defendant he could file a Hofsheier motion,
which might lead to defendant not being required to register, because at that time
Hofsheier had not been reversed by Johnson, supra, 60 Cal.4th 871. As the court in
Johnson noted, “[a]lthough Hofsheier attempted to limit its holding to the factual
circumstances before it, the Courts of Appeal have extended its application to additional
nonforcible sex offenses covered by section 290.” (Johnson, supra, 60 Cal.4th at p. 878.)
It was therefore uncertain as to how the trial court would rule on defendant’s Hofsheier

-- 15 of 34 --

16
motion. Although the trial court and prosecutor warned defendant it was unlikely the
motion would be granted, there was the possibility the motion would be granted.
In addition, the trial court entered defendant’s plea, conditional upon defendant
being permitted to bring a Hofsheier motion challenging mandatory registration. This
indicated the trial court recognized there might be a viable argument under Hofsheier. It
was not unreasonable to file the motion based on the state of the law at that time. The
outcome was not certain since there was no case law addressing whether the Hofsheier
equal protection argument applied to a section 288.3 crime. As to the probability of
prevailing, the trial court made it clear before defendant entered his plea that it was not
likely the motion would be granted. The prosecutor also stated this. The court further
warned defendant that he could not withdraw his plea if the Hofsheier motion was
denied. Defendant nevertheless knowingly and voluntarily chose to enter his guilty plea.
Defendant argues he would not have pled guilty had he been properly and fully
advised regarding section 290 and Hofsheier, and had he known his motion would be
denied. Although defendant may not have fully understood what he was told or that it
was not likely his Hofsheier motion would be granted, the court and prosecutor warned
defendant it was unlikely the motion would be granted. Defendant and Yeung also both
testified Yeung did not tell defendant the motion would be or was likely to be granted.
Defendant further acknowledged Yeung told defendant that how the court would rule on
the motion was uncertain.
Defendant argues he received IAC because Yeung was unknowledgeable
regarding section 290 and Hofsheier, and Yeung admitted this. Yeung acknowledged

-- 16 of 34 --

17
that at the time of the plea hearing, he had not fully researched bringing a Hofsheier
motion in defendant’s case and therefore may not have been fully aware of what
defendant’s chances of prevailing were. But there is no evidence in the record Yeung
improperly assured defendant that the motion would be granted or that there was a high
probability of prevailing. Yeung’s representation was therefore neither deficient under
prevailing professional norms nor prejudicial. (Strickland, supra, 466 U.S. at p. 687.)
Since defendant failed to demonstrate IAC, defendant failed to meet his burden of
showing by clear and convincing evidence that there was good cause for withdrawal of
his guilty plea. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415.)
IV
SELF-INCRIMINATION WAIVER AND POLYGRAPH PROVISION
Defendant contends imposition of the probation condition requiring him to waive
his privilege against self-incrimination and participate in periodic polygraph
examinations (probation condition No. 16) violates his Fifth Amendment right against
self-incrimination.
The probation department recommended probation condition No. 16, requiring
defendant to “[w]aive [the] privilege against self-incrimination and participate in periodic
polygraph examinations, at offender’s expense, as directed by the Probation Officer or
treatment provider. Polygraph examiner to provide results to the Probation Officer upon
request.”
During the sentencing hearing, defense counsel objected to probation condition
No. 16 on the ground it was unnecessary because defendant had inappropriate

-- 17 of 34 --

18
communications with only one minor, who was an older child. Also, defendant’s
attorney did not discuss with him that such a condition would be imposed if he pled
guilty. The trial court responded that the probation condition was standard in a case
where the defendant is required to register as a sex offender. Defense counsel disagreed
and added that the condition was not statutorily mandated. Defense counsel requested the
condition not be imposed based upon defendant’s history and the nature of the crime.
The trial court noted that probation condition No. 16 is required under section 1203.067,
subdivision (b). Because the condition is required by law, the trial court denied defense
counsel’s request not to impose it.
Section 1203.067, subdivision (b)(2) and (3), provides that “the terms of probation
for persons placed on formal probation for an offense that requires registration pursuant
to Sections 290 to 290.023, inclusive, shall include all of the following: [¶] . . . [¶] (2)
Persons placed on formal probation . . . 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. . . . [¶] (3) Waiver of any privilege against self-incrimination and
participation in polygraph examinations, which shall be part of the sex offender
management program.”
Defendant relies on People v. Rebulloza (2015) 234 Cal.App.4th 1065, 1073, for
the proposition probation condition No. 16, mandated by section 1203.067, subdivision

-- 18 of 34 --

19
(b)(3)5 is unconstitutional because it violates his Fifth Amendment privilege against self-
incrimination. After defendant filed his appellant’s opening brief citing Rebulloza, the
California Supreme Court granted review of Rebulloza and ordered it superseded by
People v. Rebulloza (2015) 349 P.3d 1066 (review granted June 10, 2015), which states
that “Further action in this matter is deferred pending consideration and disposition of a
related issue in People v. Friday [(2014) 328 P.3d 1034], People v. Garcia [(2014) 224
Cal.App.4th 1283], and People v. Klatt [(2014) 225 Cal.App.4th 906], or pending further
order of the court.” Rebulloza is therefore no longer binding precedent. Since all the
decisions directly addressing the issue raised in the instant case regarding the
constitutionality of the section 1203.067(b)(3) probation condition are either up on
review before the California Supreme court or are unpublished, there is no binding case
law dispositive of the issue.
The People, noting Rebulloza does not provide binding authority, cite Minnesota
v. Murphy (1984) 465 U.S. 420, 435 (Murphy), Maldonado v. Superior Court (2012) 53
Cal.4th 1112, 1127 (Maldonado), Spielbauer v. County of Santa Clara (2009) 45 Cal.4th
704, 725 (Spielbauer), and People v. Miller (1989) 208 Cal.App.3d 1311, 1315 (Miller),
for the proposition the section 1203.067(b)(3) probation condition is constitutional.
Because there currently is no binding case law directly addressing the constitutionality of
the section 1203.067(b)(3) probation condition, we look to such binding federal and state
5 For ease of reference, section 1203.067, subdivision (b)(3), is referred to
throughout this opinion as section 1203.067(b)(3).

-- 19 of 34 --

20
case law, which discusses the Fifth Amendment privilege against self-incrimination
generally.
In Murphy, the United States Supreme Court discusses the admissibility in a
criminal trial of statements the defendant (Murphy) made during questioning by his
probation officer. The terms of Murphy’s probation required, among other things, that he
participate in a treatment program for sexual offenders, report to his probation officer as
directed, and be truthful with the probation officer “in all matters.” Murphy was told
failure to comply with these conditions could result in probation revocation. When
Murphy’s probation officer learned from Murphy’s counselor that he had abandoned his
treatment program and had admitted to previously committing rape and murder seven
years before, the probation officer called Murphy into the office, with the intent of
reporting to the police any incriminating statements. (Murphy, supra, 465 U.S. at p.
422.)
The court in Murphy held that the Fifth and Fourteenth Amendments did not
prohibit the introduction into evidence of Murphy’s admissions made to the probation
officer. The court stated: “We conclude, in summary, that since Murphy revealed
incriminating information instead of timely asserting his Fifth Amendment privilege, his
disclosures were not compelled incriminations. Because he had not been compelled to
incriminate himself, Murphy could not successfully invoke the privilege to prevent the
information he volunteered to his probation officer from being used against him in a
criminal prosecution.” (Murphy, supra, 465 U.S. at p. 440.)

-- 20 of 34 --

21
The court in Murphy explained: “The Fifth Amendment, in relevant part,
provides that no person ‘shall be compelled in any criminal case to be a witness against
himself.’ It has long been held that this prohibition not only permits a person to refuse to
testify against himself at a criminal trial in which he is a defendant, but also ‘privileges
him not to answer official questions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in future criminal
proceedings.’ [Citation.] In all such proceedings, [¶] ‘a witness protected by the
privilege may rightfully refuse to answer unless and until he is protected at least against
the use of his compelled answers and evidence derived therefrom in any subsequent
criminal case in which he is a defendant. . . . Absent such protection, if he is nevertheless
compelled to answer, his answers are inadmissible against him in a later criminal
prosecution.’ [Citation.]” (Murphy, supra, 465 U.S. at p. 426.)
The Murphy court further noted that “A defendant does not lose this 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. [Citation.]” (Murphy, supra, 465 U.S. at p. 426.) The issue in
instant case is not the admissibility of compelled statements made in compliance with
probation condition No. 16. Under Murphy, such statements, compelled under the
section 1203.067(b)(3) probation condition, would be inadmissible in a subsequent
criminal trial. Unlike in Murphy, here, the issue is whether compelling waiver of
defendant’s self-incrimination privilege is constitutional. Murphy supports the

-- 21 of 34 --

22
proposition that a defendant on probation retains the privilege against self-incrimination
and cannot be compelled to waive it.
In Maldonado, supra, 53 Cal.4th 1112, the California Supreme Court addressed
the issue of what general limits under the defendant’s Fifth and Sixth Amendment rights
may properly be imposed on prosecutorial access to court-ordered mental examinations
and their results, both before and after the defendant introduces mental-state evidence in a
criminal trial. (Id. at p. 1117.) In Maldonado, the defendant (Maldonado) faced charges
of first degree murder with a special circumstance. Maldonado notified the prosecution
of his intent to introduce evidence, through designated expert witnesses, that he suffered
from neurocognitive deficits. The prosecution obtained an order for examination of
Maldonado by a psychiatrist, a psychologist, and a neurologist. In response, Maldonado
invoked his Fifth Amendment privilege against self-incrimination and sought various
protective orders as conditions of his submission to court-ordered pretrial mental
examinations.
The court in Maldonado held the Fifth and Sixth Amendments do not require trial
courts to impose protective measures when a defendant is ordered examined by the
prosecution’s proposed expert to rebut the defendant’s mental health defense.
(Maldonado, supra, 53 Cal.4th at p. 1142.) In reaching its holding, the Maldonado court
reasoned that the Fifth Amendment bars not mere disclosure, but actual use of a
declarant’s compelled utterances to convict or criminally punish that person. Thus, a
defendant’s Fifth Amendment rights are adequately safeguarded by the immunity against
use, either direct or derivative, of defendant’s statements against him. (Id. at pp. 1118,

-- 22 of 34 --

23
1133, fn. 13, 1134, 1137.) The Maldonado court stated: “As we have seen, the 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. Accordingly,
nothing in section 1054.6 exempts the results of the prosecution examinations from
pretrial discovery.” (Id. at pp. 1122, 1129, 1134, 1137.)
Here, it is undisputed defendant’s statements made in compliance with probation
condition No. 16 are compelled and therefore are inadmissible in a criminal trial under
the Fifth Amendment privilege against self-incrimination. The issue here is whether a
probation condition can compel defendant to waive his privilege against self-
incrimination. We think not because “[t]he constitutional guarantee against compelled
self-incrimination protects an individual from being forced to testify against himself or
herself in a pending criminal proceeding, but it does more than that. It also privileges a
person not to answer official questions in any other proceeding, ‘civil or criminal, formal
or informal,’ where he or she reasonably believes the answers might incriminate him or
her in a criminal case. [Citations.] One cannot be forced to choose between forfeiting the
privilege, on the one hand, or asserting it and suffering a penalty for doing so on the
other. [Citation.]” (Spielbauer, supra, 45 Cal.4th at p. 714, italics added; see Murphy,
supra, 465 U.S. at p. 426.)
We recognize “it is necessary or highly desirable to procure citizens’ answers to
official questions, including their formal testimony under oath. In such circumstances, an
individual’s invocation of the privilege against self-incrimination would frustrate

-- 23 of 34 --

24
legitimate governmental objectives. In light of the competing interests, it is well
established that incriminating answers may be officially compelled, without violating the
privilege, when the person to be examined receives immunity ‘coextensive with the scope
of the privilege’ — i.e., immunity against both direct and ‘derivative’ criminal use of the
statements. [Citations.] In such cases, refusals to answer are unjustified, ‘for the grant of
immunity has removed the dangers against which the privilege protects. [Citation.]’
[Citation.]” (Spielbauer, supra, 45 Cal.4th at pp. 714-715.) In the instant case, however,
defendant is required under the section 1203.067(b)(3) probation condition, not only to
respond to questions during polygraph testing, but also to waive his privilege against self-
incrimination. By requiring such waiver, defendant loses the Fifth Amendment
safeguards of use immunity in a criminal trial.
In Spielbauer, supra, 45 Cal.4th 704, the plaintiff, who was a deputy public
defender, refused to answer questions by a supervising attorney who was investigating
allegations the plaintiff had made deceptive statements to the court while representing a
defendant. The plaintiff was told refusal to answer the questions would be deemed
insubordination warranting discipline up to and including dismissal. The plaintiff was
also told his responses could not be used in a criminal proceeding. The plaintiff declined
to answer the questions, invoking his privilege against self-incrimination. The plaintiff
was terminated on the grounds of deceptive court conduct and refusal to answer his
employer’s questions. (Id. at p. 709.)
The California Supreme Court in Spielbauer concluded that “a public employee
may be compelled, by threat of job discipline, to answer questions about the employee’s

-- 24 of 34 --

25
job performance, so long as the employee is not required, on pain of dismissal, to waive
the constitutional protection against criminal use of those answers.” (Spielbauer, supra,
45 Cal.4th at p. 710.) The Spielbauer court added that “the constitutional privilege
against compelled self-incrimination in a criminal case or cause (U.S. Const., 5th
Amend.; Cal. Const., art. I, § 15) does not protect against the nonpenal adverse use of
officially compelled answers. [Citations.]” (Spielbauer, at p. 715.) This would include
probation revocation proceedings. “Although a revocation proceeding must comport
with the requirements of due process, it is not a criminal proceeding. [Citations.]”
(Murphy, supra, 465 U.S. at p. 435, fn. 7.)
Therefore, under Spielbauer, probation may be revoked for refusing to answer
officially compelled questions in probation proceedings, so long as the defendant is not
required to surrender his or her right against criminal use of the statements thus obtained.
(Spielbauer, supra, 45 Cal.4th at p. 725.) In addition, under Spielbauer, a formal
guarantee of immunity is not required before defendant is required to submit to polygraph
testing in compliance with probation condition No. 16, assuming questioning is tailored
specifically, directly, and narrowly to compliance with probation conditions and
participation in a sex offender management program. (Id. at pp. 718, 725.)
Although Spielbauer is distinguishable in that the plaintiff was not required to
waive the privilege against self-incrimination, as was defendant in the instant case,
Spielbauer supports the proposition that a probation condition can compel a defendant to
answer questions by threat of revocation of probation but cannot require waiver of the
privilege against self-incrimination. A defendant cannot be forced to forego the

-- 25 of 34 --

26
constitutional protection against criminal use of officially compelled statements in a
criminal trial. (Spielbauer, supra, 45 Cal.4th at p. 710.) Thus, in the instant case,
defendant can be compelled under section 1203.067(b)(3) to submit to polygraph testing,
but cannot be forced to waive his constitutional privilege against self-incrimination.
In Miller, supra, 208 Cal.App.3d 1311, the court held that “[t]he trial court did not
abuse its discretion by including the polygraph requirement as a condition of probation
for the limited use as an investigative tool.” (Id. at p. 1316.) The defendant in Miller,
who pled guilty to committing a lewd and lascivious act upon a child (§ 288, subd. (a)),
was placed on probation, conditional upon the defendant submitting to polygraph testing
at the direction of his probation officer. In reaching its holding, the Miller court
concluded the polygraph probation condition was reasonable and valid because it assisted
in monitoring probation compliance.
The Miller court noted that “[t]he polygraph condition is designed to help evaluate
the truthfulness of defendant’s reports and ‘[t]he purpose and objectives of probation
would be frustrated if a convicted defendant could maintain . . . a right of silence at the
time of his ... report to the probation officer . . . .’” (Miller, supra, 208 Cal.App.3d at p.
1316.) The Miller court further stated the polygraph condition was “aimed at deterring
and discovering criminal conduct most likely to occur during unsupervised contact with
young females,” and therefore was reasonably related to future criminality. (Id. at p.
1314.)
The court in Miller concluded the polygraph condition was not overbroad because
it was limited to questions relating to compliance with probation conditions. Even

-- 26 of 34 --

27
though there were no specific limitations on the questions to be asked during polygraph
testing, the Miller court construed the condition as imposed to monitor the defendant’s
compliance with the probation condition prohibiting unsupervised contact with young
females and therefore any polygraph test administered to the defendant at the direction of
his probation officer “necessarily will be limited to questions relevant to compliance with
that condition.” (Miller, supra, 208 Cal.App.3d at p. 1315.) The Miller court held the
polygraph probation condition did not violate the defendant’s privilege against self-
incrimination unless the defendant showed a realistic threat of self-incrimination. (Ibid.)
The court in Miller explained: “Although defendant has a duty to answer the polygraph
examiner’s questions truthfully, unless he invokes the privilege, shows a realistic threat
of self-incrimination and nevertheless is required to answer, no violation of his right
against self-incrimination is suffered. [Citation.] The mere requirement of taking the test
in itself is insufficient to constitute an infringement of the privilege.” (Ibid.)
Miller, decided in 1989, does not address the constitutionality of the section
1203.067(3)(b) probation condition requiring waiver of the self-incrimination privilege
because the statute was not enacted until after Miller was decided. We nevertheless
conclude, based on Murphy, Maldonado, Spielbauer, and Miller, that probation condition
No. 16, premised on section 1203.067(b)(3), is unconstitutional to the extent it mandates
defendant waive his privilege against self-incrimination. Such mandated waiver violates
defendant’s Fifth Amendment privilege against self-incrimination. On the other hand,
the probation condition compelling defendant to submit to polygraph testing at the
direction of his probation officer, which is narrowly tailored to monitoring compliance

-- 27 of 34 --

28
with defendant’s probation conditions and participation in his sex offender management
program, is constitutional and valid.
V
PSYCHOTHERAPIST/DOCTOR-PATIENT PRIVILEGE
As a condition of probation, the trial court ordered defendant under sections
1203.067, subdivision (b)(4),6 and 290.09, to “[w]aive any psychotherapist/doctor-patient
privilege to enable communication between sex offender management professional and
probation officer” (probation condition No. 15). Defendant challenges this probation
condition on the ground it violates his constitutional right to privacy.
Waiver of the psychotherapist-patient privilege (Evid. Code, § 1014) is a
statutorily mandated probation condition under section 1203.067(b)(4), for anyone placed
on formal probation for any offense requiring sex offender registration under sections 290
through 290.023. Evidence Code section 1014, known as the psychotherapist-patient
privilege, provides in part that “the patient, whether or not a party, has a privilege to
refuse to disclose, and to prevent another from disclosing, a confidential communication
between patient and psychotherapist . . . .” For reasons of policy the psychotherapist-
patient privilege has been broadly construed in favor of the patient. (People v. Stritzinger
(1983) 34 Cal.3d 505, 511 (Stritzinger).)
Confidential communications between psychotherapists and patients are protected
in order to encourage those who may pose a threat to themselves or to others, because of
6 For ease of reference, section 1203.067, subdivision (b)(4), is referred to
throughout this opinion as section 1203.067(b)(4).

-- 28 of 34 --

29
some mental or emotional disturbance, to seek professional assistance. (Stritzinger,
supra, 34 Cal.3d at p. 511.) “The psychotherapist-patient privilege has been recognized
as an aspect of the patient’s constitutional right to privacy. [Citations.] It is also well
established, however, that the right to privacy is not absolute, but may yield in the
furtherance of compelling state interests. [Citations.]” (Ibid.) Therefore, all state
interference with such confidentiality is not prohibited. (In re Lifschutz (1970) 2 Cal.3d
415, 432.) This is because “[t]he state’s interest in facilitating the ascertainment of truth
in connection with legal proceedings is substantial enough to compel disclosure of a great
variety of confidential material, including even communications between a
psychotherapist and his patient.” (Jones v. Superior Court (1981) 119 Cal.App.3d 534,
550 (Jones).) The psychotherapist-patient privilege is applied narrowly. (Stritzinger, at
pp. 511, 513.)
Defendant objected during sentencing to imposition of probation condition No. 15
on the ground it was unwarranted based on the nature of defendant’s crime and his
history. Defendant also argued he was not told the probation condition would be
imposed if he pled guilty. The trial court responded that it was a standard probation
condition, required by law for defendants who are required to register as a sex offender,
and it was too late to withdraw his plea. The constitutionality of the psychotherapist-
patient privilege is currently before the California Supreme Court in the cases of People
v. Friday, supra, 225 Cal.App.4th 8, People v. Garcia, supra, 224 Cal.App.4th 1283,
People v. Klatt, supra, 225 Cal.App.4th 906, and People v. Rebulloza, supra, 349 P.3d
1066.

-- 29 of 34 --

30
The trial court has “broad discretion in the sentencing process, including the
determination as to whether probation is appropriate and, if so, the conditions thereof.
(Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it
‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . .’ [Citation.] Conversely, a condition of
probation which requires or forbids conduct which is not itself criminal is valid if that
conduct is reasonably related to the crime of which the defendant was convicted or to
future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486.)
“The state’s interest in facilitating the ascertainment of truth in connection with
legal proceedings is substantial enough to compel disclosure of a great variety of
confidential material, including even communications between a psychotherapist and his
patient. [Citation.] But intrusion upon constitutionally protected areas of privacy
requires a ‘balancing of the juxtaposed rights, and the finding of a compelling state
interest.’ [Citations.]” (Jones, supra, 119 Cal.App.3d at p. 550.) Defendant’s privacy
interests must be carefully weighed against the legitimate state interests in enhancing
public safety and reducing the risk of recidivism by sex offenders. (Ibid.; § 290.03, subd.
(a).)
Section 1203.067, subpart (b)(2) and (4) mandates that the terms of probation for
persons placed on formal probation for an offense that requires sex offender registration
under sections 290 to 290.023, shall include: “[(2)] . . . successfully complet[ing] a sex
offender management program . . . as a condition of release from probation. The length

-- 30 of 34 --

31
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. . . . [¶]. . . [¶] (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.”
As defendant notes, section 1203.067(b)(4) does not mention waiver of the doctor-
patient privilege (Evid. Code, § 994), which is included in defendant’s probation
condition No. 15, along with waiver of the psychotherapist-patient privilege. We
recognize application of the two privileges may differ because of a greater degree of
confidentiality required as to psychotherapeutic treatment than legally afforded other
medical treatment (In re Lifschutz, supra, 2 Cal.3d at pp. 433-434, fn. 20), including the
doctor-patient privilege. Nevertheless, here, waiver in probation condition No. 15 is
permissible based on the same grounds applicable to the psychotherapist-patient
privilege, which encompasses communications with physicians who practice psychiatry.
(Evid. Code, § 1010 [“As used in this article, ‘psychotherapist’ means a person who is, or
is reasonably believed by the patient to be: [¶] (a) A person authorized to practice
medicine in any state or nation who devotes, or is reasonably believed by the patient to
devote, a substantial portion of his or her time to the practice of psychiatry.”]
As stated in section 1203.067(b)(4), the purpose of the probation condition
requiring waiver of the psychotherapist-patient privilege is to enable communication
between the supervising probation officer and the sex offender management professional,

-- 31 of 34 --

32
which may include a psychiatrist or other doctor. (§ 1203.067(b)(4).) Such
communication is an important part of implementing the sex offender management
program which all sex offenders placed on formal probation are statutorily mandated to
complete. (§§ 1203.067, subd. (b)(2), 290.09, subd. (c) [sex offender management
professional must communicate with the probation officer about the probationer’s
“progress in the program and dynamic risk assessment issues”].) The state’s interest in
furthering such communication is therefore legitimate and substantial, and the
psychotherapist/doctor-patient privilege 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).)
Defendant argues probation condition No. 15, requiring waiver of
psychotherapist/doctor-patient privileges, is overbroad and should not be construed to
permit psychotherapists and doctors to disclose the content of any otherwise protected
communications. Defendant asserts probation condition No. 15 exceeds the privilege
mandated in section 1203.067(b)(4), because probation condition No. 15 includes the
doctor-patient privilege, as well as the psychotherapist-patient privilege, and there is no
limitation on the subject matter of the communication or the level of risk to public safety
absent disclosure. Probation condition No. 15 contains broad language requiring the
waiver of “any psychotherapist/doctor-patient privilege.” But this broad language is
followed by the phrase, “to enable communication between the sex offender management
professional and probation officer.” This additional language sufficiently limits the scope
and use of the probationer’s communications.

-- 32 of 34 --

33
Probation condition No. 15 can be reasonably construed as requiring a sufficiently
narrow waiver of the psychotherapist/doctor-patient privilege, limited “to enable
communication between the sex offender management professional and supervising
probation officer, . . .” (§ 1203.067(b)(4).) This would include permitting defendant’s
treatment team to discuss defendant’s disclosures regarding his sexual offense history,
with the objective of crafting and monitoring a treatment plan that prevents defendant
from reoffending. Under the probation condition, the supervising probation officer may
also communicate defendant’s scores on the state-authorized risk assessment tool for sex
offenders to the Department of Justice, so that the information may be made accessible to
law enforcement as required under section 290.09, subdivision (b)(2). (§§ 290.04,
290.09, subd. (b)(2).)
This narrow interpretation of section 1203.067(b)(4) and probation condition No.
15 allows psychotherapists, including psychiatrists and other physicians involved in sex
offender management of defendant, to communicate with defendant’s probation officer as
necessary, thereby furthering the purposes of section 1203.067(b)(4). Such limited
application of the psychotherapist/doctor-patient privilege waiver in probation condition
No. 15 is constitutional and leaves intact defendant’s privacy rights.
VI
DISPOSITION
The judgment is reversed only insofar as the trial court held constitutional
probation condition No. 16, premised on section 1203.067(b)(3), requiring defendant to
waive his Fifth Amendment privilege against self-incrimination. This probation

-- 33 of 34 --

34
condition, only as to waiver of defendant’s privilege against self-incrimination (not as to
polygraph testing), is ordered stricken. The judgment is affirmed in all other respects,
including the probation condition requiring defendant to submit to polygraph testing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.

-- 34 of 34 --