The Fifth Amendment waiver provision in Penal Code section 1203.067, subdivision (b)(3) is unconstitutionally overbroad. Appellant was convicted of possession of child pornography (Pen. Code, § 311.11, subd. (a)) and granted probation. As a condition of probation, appellant’s mandatory participation in a sex offender management program was ordered. He was also ordered to waive his privilege against self-incrimination and his psychotherapist-patient privilege to facilitate his treatment. On appeal, he contended that the probation conditions requiring waiver of these privileges were unconstitutionally overbroad. Held: Fifth Amendment waiver condition striken. Section 1203.067, subdivision (b)(2) requires that any person who is granted formal probation for any offense requiring registration under Penal Code sections 290 through 290.023 successfully complete a sex offender management program. Subdivision (b)(3) of section 1203.067 requires the probationer to waive “any privilege against self-incrimination and participat[e] in polygraph examinations, which shall be part of the sex offender management program.” Initially, the court found that a claim that the condition violates the Fifth Amendment right against self-incrimination was ripe for adjudication. Then, following an analysis of the condition compared with the protections provided by the Fifth Amendment, the court found that the condition was overbroad and modified it to strike the language, “waive any privilege against self-incrimination,” disagreeing with People v. Garcia (2014) 224 Cal.App.4th 1283. The court construed the requirement of participation in polygraph examinations as allowing only questions relating to the successful completion of the sex offender management program, the crime of which appellant was convicted, or related criminal behavior.
The psychotherapist-patient privilege waiver provision in Penal Code section 1203.067, subdivision (b)(4) requires waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist. Defendants enjoy the right to a psychotherapist-patient privilege based on their federal due process rights. An exception to this privilege must be narrowly construed. Section 1203.067, subdivision (b)(4) requires “[w]aiver of any psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09.” The court narrowly construed the statute and held that a defendant may constitutionally be required to waive this privilege only to the extent necessary to allow the sex offender management professional to communicate with the supervising probation officer. The supervising probation officer may also communicate a defendant’s scores on the SARATSO risk assessment tool to the Department of Justice as required under section 290.09, subdivision (b)(2). Aside from these exceptions, neither the psychotherapist nor the probation officer may relay protected communications to a third party.
Three of appellant’s probation conditions were unconstitutionally vague without a scienter requirement. As conditions of probation, appellant was also ordered (1) not to purchase or possess pornographic or sexually explicit material as it relates to minors, (2) not to possess or use any data encryption technique program, and (3) not to frequent, or be employed by, or engage in any business where pornographic materials are openly exhibited. On appeal he argued that these conditions were unconstitutionally vague without a scienter requirement. The appellate court agreed and modified the conditions. The court further agreed that the term “frequent” is unconstitutionally vague and replaced the term with “visiting” or “remaining in.”