Probation condition requiring a sex offender to waive his privilege against self-incrimination (Pen. Code, § 1203.067, subd. (b)(3)) violates the Fifth Amendment. Rebulloza pled no contest to felony indecent exposure (Pen. Code, § 314, subd. (1)). He was granted a three-year term of probation. Rebulloza objected to two of the conditions of probation: (1) that he waive any privilege against self-incrimination and participate in polygraph examinations as part of a sex offender management program and (2) that he waive any psychotherapist-patient privilege to enable communication between the psychotherapist and the probation officer. The court overruled both objections and he appealed. Held: Probation condition requiring a waiver of the privilege against self-incrimination is struck. In Minnesota v. Murphy (1984) 465 U.S. 420, the Court held that a probation condition requiring a person to answer questions truthfully did not, by itself, controvert the Fifth Amendment privilege against self-incrimination. However, the Court also held that a state would violate the Fifth Amendment if it threatened to revoke a person’s probation for invoking the Fifth Amendment. A threat to revoke probation for failing to waive the privilege is essentially the same. Murphy thus prohibits the compelled waiver required by section 1203.067, subdivision (b)(3). The condition is also unconstitutionally overbroad. The waiver required by section 1203.067, subdivision (b)(3) would deprive a probationer of Fifth Amendment protections that prisoners in custody enjoy. The waiver is extremely broad and makes no distinction based on the severity of the offense or the offender’s future risk of danger. The statute also does not limit the subject matter of the statements that may come under the waiver.

Probation condition requiring a sex offender to waive the psychotherapist-patient privilege to enable communication between the psychotherapist and his probation officer (Pen. Code, § 1203.067, subd. (b)(4)) is valid if narrowly construed. Although the psychotherapist-patient privilege is protected by the constitutional right to privacy (In re Lifschutz (1970) 2 Cal.3d 415, 431, 432), a sex offender probationer has a reduced expectation of privacy that is outweighed by the state’s significant interest in public safety and reducing recidivism. Accordingly, the probation condition set forth in Penal Code section 1203.067, subdivision (b)(4), requiring a waiver of the psychotherapist-patient privilege to enable communication between the psychotherapist and sex offender’s probation officer pursuant to Penal Code section 290.09, is valid to the extent that it allows the probation officer to obtain information relevant to assessing the sex offender’s risk for re-offending. Although the language in section 1203.067 subdivision (b)(4) could be read as permitting a broader waiver, it must be narrowly construed so that it does not require any greater intrusion into the probationer’s privacy interest than is necessary to achieve the state’s interest in assessing his risk for re-offending. As construed, the waiver condition is valid. [Editor’s Note: The issue of the constitutionality of the probation conditions mandated by Penal Code section 1203.067, subdivision (b), is currently pending in the California Supreme Court. (See People v. Friday (2014) 225 Cal.App.4th 8, review granted 7/16/2014 (S218288/H039404); People v. Garcia (2014) 224 Cal.App.4th 1283, review granted 7/16/2014 (S218197/H039603); People v. Klatt (2014) 225 Cal.App.4th 906, review granted 7/16/2014 (S218755/H038755).)]