People v. Friday

• Decision Date: 27 March 2014
• Docket Number: H039404
• Citation: 170 Cal.Rptr.3d 38
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey David Allen FRIDAY, Defendant and Appellant.

170 Cal.Rptr.3d 38

The PEOPLE, Plaintiff and Respondent,

v.Jeffrey David Allen FRIDAY, Defendant and Appellant.

H039404

Court of Appeal, Sixth District, California.

Filed March 27, 2014

Review Granted July 16, 2014

Lori A. Quick, under appointment by the Court of Appeal for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Jeffrey M. Laurence, Supervising Deputy Attorney General, Violet M. Lee, Deputy Attorney General, Attorneys for Plaintiff and Respondent The People.

MÁRQUEZ, J.

Penal Code section 1203.067 requires any person placed on probation for a registerable sex offense to waive the privilege against self-incrimination and waive the psychotherapist-patient privilege. This case concerns the constitutionality of requiring these waivers as probation conditions.

First, we hold that the condition requiring a waiver of the privilege against self-incrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 ("Our decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege."). (Accord, United States v. Saechao (9th Cir.2005) 418 F.3d 1073 ; United States v. Antelope (9th Cir.2005) 395 F.3d 1128 ; State v. Eccles (1994) 179 Ariz. 226, 877 P.2d 799.)

Second, we construe the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist. We hold that the waiver as construed in this fashion is not overbroad in violation of defendant's constitutional right to privacy.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Jeffrey David Allen Friday pleaded no contest to possession of child pornography, which he had downloaded to his computer. ( Pen.Code, § 311.11, subd. (a).)¹ The record contains almost no facts about the offense. It occurred on or about August 2, 2012. The trial court found "this is a matter which was initiated by a search warrant on the defendant's computer looking for child porn. It has been determined that he had been downloading since he was 14 or 15...." Defendant was 19 at the time of the offense. The parties stipulated to a factual basis in the police reports, but the record contains no reports. Because the offense involved "no identifiable victim," the probation officer did not assess defendant's level of risk as a future offender. Defendant had suffered no prior convictions.

Defendant entered into a plea agreement by which he pleaded no contest to the charged offense in exchange for six months in county jail with no early release.² The court suspended imposition of the sentence and granted a three-year term of probation, including six months in county jail and mandatory participation in a sex offender management program as probation conditions.

The court ordered the following five probation conditions, among others, requiring defendant (1) to waive any privilege against self-incrimination and participate in polygraph examinations, which must be part of the sex offender management program; (2) to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer; (3) not to purchase or possess any pornographic or sexually explicit material as it relates to minors, as defined by the probation officer; (4) not to possess or use any data encryption technique program; and (5) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited. As to the waivers of the privilege against self-incrimination and the psychotherapist-patient privilege, the court ordered these conditions as mandated by section 1203.067.

At sentencing, defendant lodged two objections relevant here. He objected on Fifth Amendment grounds to the waiver of his privilege against self-incrimination. He objected on overbreadth grounds to the condition that he not purchase or possess pornographic material. The trial court overruled defendant's objections.

II. DISCUSSION

On appeal, defendant contends the probation conditions requiring waiver of the privilege against self-incrimination and waiver of the psychotherapist-patient privilege are overbroad in violation of his constitutional rights. He also challenges as overbroad the condition requiring him to participate in polygraph examinations. Lastly, he challenges as vague and lacking in scienter requirements the conditions prohibiting purchase or possession of pornography, possession or use of data encryption, and frequenting businesses where pornography is exhibited.

A. The Statutory Scheme and Applicable Regulations

Under section 1203.067, subdivision (b)(2), any person placed on formal probation on or after July 1, 2012, for any offense requiring registration under sections 290 through 290.023, "shall successfully complete a sex offender management program, following the standards developed pursuant to Section 9003, as a condition of release from probation."³ Section 1203.067, subdivision (b)(3) requires "Waiver of any privilege against self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program." Subdivision (b)(4) requires "Waiver of any psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09."⁴

The Legislature enacted these provisions in 2010 to amend the Sex Offender Punishment, Control, and Containment Act of 2006 (hereafter, the "Containment Act"). (Stats.2010, ch. 219, § 17.) The Containment Act created "a standardized, statewide system to identify, assess, monitor and contain known sex offenders for the purpose of reducing the risk of recidivism posed by these offenders, thereby protecting victims and potential victims from future harm." (§ 290.03, subd. (b); Stats. 2006, ch. 337, § 12, p. 2605.) Before the 2010 amendment, persons placed on probation for certain sex crimes were placed in "an appropriate treatment program designed to deal with child molestation or sexual offenders...." ( § 1203.067, former subd. (b); Stats. 1994, ch. 918, § 1, p. 4689.) The 2010 amendment removed this provision; the Containment Act now requires participation in an "approved sex offender management program" certified by the California Sex Offender Management Board (CASOMB). (§ 290.09, subds. (a)(1), (d); see § 9003.)

Under section 9003, CASOMB promulgates standards for certification of sex offender management programs and "sex offender management professionals." (§ 9003, subds. (a) & (b).) Such programs "shall include treatment, as specified, and dynamic and future violence risk assessments pursuant to Section 290.09." (§ 9003, subd. (b).) Furthermore, sex offender management programs "shall include polygraph examinations by a certified polygraph examiner, which shall be conducted as needed during the period that the offender is in the sex offender management program." (Ibid .)

Section 290.09 specifies that "The certified sex offender management professional shall communicate with the offender's probation officer or parole agent on a regular basis, but at least once a month, about the offender's progress in the program and dynamic risk assessment issues, and shall share pertinent information with the certified polygraph examiner as required." (§ 290.09, subd. (c).) Section 290.09 further requires the sex offender management professional to administer a State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) in two forms—the "SARATSO dynamic tool" and the SARATSO "future violence tool"—and to send the person's scores on these tests to the probation officer. (§ 290.09, subd. (b)(2).) The probation officer must then transmit the scores to the Department of Justice, which makes the scores accessible to law enforcement officials through the department's Web site. (Ibid. )

Section 9003 requires CASOMB to publish on its Web site the certification requirements for sex offender management programs and professionals.⁵ To be certified under these standards, sex offender management programs must implement a "Containment Model" approach to managing sex offenders. (Cal. Sex Offender Management Bd., Sex Offender Treatment Program Certification Requirements (Jan. 2014) p. 6.)⁶ The central goal of the Containment Model is "community and victim safety, a goal which is supported by adopting a victim-centered perspective on all aspects of sex offender management." (Ibid. ) The model is implemented by a "Containment Team," whose members include the probation officer, the treatment provider, and the polygraph examiner. (Id. at p. 2.) "On a regular basis or on an as-needed basis, the containment team may also include others who play an important role in the management of any specific offender. These may include representatives of law enforcement...." (Id. at p. 6.)

The Containment Model "stresses the importance of open ongoing collaboration between these key players." (Cal. Sex Offender Management Bd., Sex Offender Treatment Program Certification Requirements, supra, at p. 6.) The "core elements" of the model include "[a]uthoritative criminal justice system supervision and monitoring ... to exert external control over offenders. Probation and parole agencies apply pressure through clear expectations and through the use or threatened use of sanctions to ensure that the offender complies with supervision conditions, including participation in specialized treatment." (Ibid. ) In contradiction to the language of section 1203.067, the standards state that "Invocation of the Fifth Amendment right to not incriminate oneself during a sexual history polygraph cannot legally result in revocation." (Sex Offender Treatment Program Certification Requirements...