People v. Garcia

2 Cal.5th 792

391 P.3d 1153

216 Cal.Rptr.3d 75

The PEOPLE, Plaintiff and Respondent,

v.Ignacio GARCIA, Defendant and Appellant.

S218197

Supreme Court of California

Filed March 20, 2017

David D. Martin, Alameda, under appointment by the Supreme Court, for Defendant and Appellant.

Law Offices of Daniel H. Willick and Daniel H. Willick, Los Angeles, for California Psychiatric Association, National Association of Social Workers and California Chapter of National Association of Social Workers as Amici Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Seth K. Shalit, Lisa Ashley Ott, Laurence K. Sullivan, René A. Chacón and Leif M. Dautch, Deputy Attorneys General, for Plaintiff and Respondent.

Cuéllar, J.

According to the Center for Sex Offender Management (CSOM), one in every five girls and one in every seven boys is sexually abused by the time they reach adulthood. Among adults, one in six women and one in 33 men suffer sexual assault. (CSOM, U.S. Dept. of Justice, Fact Sheet: What You Need to Know About Sex Offenders (2008) p. 1 < www.csom.org/pubs/needtoknow_fs.pdf> [as of March 20, 2017].) Yet only about 30 percent of sexual assaults are reported to law enforcement. (Off. of Sex Offender Sentencing, Monitoring, Registering, and Tracking, U.S. Dept. of Justice, Facts and Statistics, < www.nsopw.gov/en/Education/FactsStatistics#sexualabuse> [as of March 20, 2017].)

Despite rising incarceration rates, the majority of known sex offenders at any given time are not in prison—and most sex offenders who are imprisoned will eventually be released. (Nat. Governors Assn. Center for Best Practices, Managing Convicted Sex Offenders in the Community (Apr. 2008) pp. 1-2 < www.nga.org/files/live/sites/NGA/files/pdf/0711SEXOFFENDERBRIEF.PDF> [as of March 20, 2017].) Like most jurisdictions, California requires convicted sex offenders to register as a means of enabling law enforcement to manage the serious risk to the public of recidivism. ( In re Alva (2004) 33 Cal.4th 254, 279, 14 Cal.Rptr.3d 811, 92 P.3d 311.)

During the five-year period from 2006 to 2011, the number of registered sex offenders in the United States increased 23.2 percent. (Nat. Center for Missing & Exploited Children, Number of Registered Sex Offenders in the U.S. Nears Three-quarters of a Million (Jan. 2012) < www.missingkids.com/News/page/4615> [as of March 20, 2017].) Today, over 850,000 sex offenders are registered throughout the United States. (Nat. Center for Missing & Exploited Children, Map of Registered Sex Offenders in the United States (Dec. 2016) < www.missingkids.com/en_US/documents/Sex_Offenders_Map.pdf> [as of March 20, 2017].) California alone has 75,000—more than any other state. (Off. of Atty. Gen., Cal. Megan's Law Website < www.meganslaw.ca.gov/Statistics.aspx> [as of March 20, 2017]; Cal. Sex Offenders Management Bd., An Assessment of Current Management Practices of Adult Sex Offenders in California (Jan. 2008) p. 55.) How to manage and supervise these offenders is one of the most difficult challenges facing government policymakers today.

In response to this challenge, the Legislature in 2006 created the California Sex Offender Management Board (CASOMB) to analyze current practices and recommend improvements. ( Pen. Code, § 9001.)¹ One of CASOMB's foundational principles was that sex offender management strategies should be based on reliable information and empirical research concerning the efficacy and cost effectiveness of different approaches. (CASOMB, Recommendations Rep. (Jan. 2010) p. 12; see § 9001, subd. (i).) Following a series of public hearings and meetings (§ 9002, subd. (b)), CASOMB issued a report recommending best practices in a variety of areas relating to the management of sex offenders, including their reentry into the community, supervision, housing, and treatment. (CASOMB, Recommendations Rep., supra , at pp. 5-6, 12.) Some (but not all) of those recommendations were subsequently adopted by the Legislature in the Chelsea King Child Predator Prevention Act of 2010 (Chelsea's Law). (Stats. 2010, ch. 219, § 1 et seq.)

One of the CASOMB report's conclusions was that sex offender treatment differs in important respects from ordinary psychotherapy. Sex offenders can be required to participate in treatment, are not free to determine the nature and course of their own therapy, may be examined with a polygraph to verify the information they provide to their therapists and probation officers, and may encounter greater intrusions on the confidentiality of their discussions with treatment providers, so that probation officers can keep abreast of the offenders' progress and compliance with probation. (CASOMB, Recommendations Rep., supra , at pp. 30-31.) CASOMB concluded that the increased supervision mandated by Chelsea's Law can pay substantial dividends: sex offender-specific treatment has been shown to reduce recidivism by up to 40 percent. (CASOMB, Recommendations Rep., supra , at p. 35.)

At issue in this appeal are two parts of Chelsea's Law, both relating to a sex offender's mandatory treatment. Section 1203.067, subdivision (b)(3) requires a convicted sex offender, as a condition of probation, to waive "any privilege against self-incrimination" and to participate "in polygraph examinations, which shall be part of the sex offender management program."

Section 1203.067, subdivision (b)(4) requires, again as a condition of probation, a waiver by the convicted sex offender of the "psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09."

Defendant Ignacio Garcia contends that conditioning probation on the waiver of his privilege against self-incrimination, as well as on his participation in polygraph examinations, violates his Fifth Amendment rights. We conclude that the condition mandated by section 1203.067, subdivision (b)(3) directs defendant to answer fully and truthfully all questions posed to him as part of the sex offender management program. But because we deem his responses compelled within the meaning of the Fifth Amendment, they cannot lawfully be used against him in a criminal proceeding. ( Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7, 104 S.Ct. 1136, 79 L.Ed.2d 409 ( Murphy ); accord, People v. Racklin (2011) 195 Cal.App.4th 872, 880, 124 Cal.Rptr.3d 735.) Where, as here, the responses would therefore pose no risk of incrimination, neither the fact that he was compelled to respond nor the fact that his responses were being monitored by a polygraph offends the Fifth Amendment.

We likewise reject defendant's claim that conditioning probation on the waiver of his psychotherapist-patient privilege violates his constitutional right to privacy and is overbroad under California law. It is neither overbroad nor violative of defendant's right to privacy to require a limited waiver of the psychotherapist-patient privilege for the purpose of enabling the treatment professional to consult with the probation officer and the polygraph examiner. We therefore affirm the judgment of the Court of Appeal.

I. BACKGROUND

Originally charged with six counts of forcible lewd conduct with a child (§ 288, subd. (b)(1)), defendant pleaded no contest in a negotiated disposition to two counts of nonforcible lewd conduct. (§ 288, subd. (a).) The trial court suspended imposition of the sentence and placed defendant on probation for three years, ordered him to serve one year in jail and register as a sex offender, and mandated his participation in an approved sex offender management program. Over defense objection, the court also imposed the two probation conditions that are the subject of this appeal: "The defendant shall waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program, pursuant to Section 1203.067(b)(3) of the Penal Code" (the subdivision (b)(3) condition); and "The defendant shall waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer, pursuant to Section 1203.067(b)(4) and Section 290.09 of the Penal Code" (the subdivision (b)(4) condition).

Defendant appealed. He claimed that the coerced waiver of his privilege against self-incrimination and the required participation in polygraph examinations violated the Fifth Amendment and, like the mandated waiver of his psychotherapist-patient privilege, was unconstitutionally overbroad. The Court of Appeal affirmed. All three justices upheld the validity of the subdivision (b)(4) condition. The panel was divided, however, as to the validity of the subdivision (b)(3) condition. The majority reasoned that the choice defendant faced between forfeiting his privilege against self-incrimination (on the one hand) or asserting the privilege and having his probation revoked (on the other) would present " 'the classic penalty situation, [in which] the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal proceeding.' " Because "the mere extraction of compelled statements does not violate the Fifth Amendment" and no statements so extracted could be used against defendant in any criminal proceeding, it necessarily followed (according to the majority) that the subdivision (b)(3) condition did not violate the Fifth Amendment.

The majority also rejected the claim that the conditions were unconstitutionally overbroad. Addressing the required waiver of the privilege against self-incrimination and participation in polygraph examinations, the appellate court found these conditions closely tailored to the purpose of allowing "the state to discover the full extent of the risks created by the sex...