Filed 9/13/17 P. v. Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL CRUZ, Defendant and Appellant.

H041570 (Santa Clara County Super. Ct. No. C1484052)

I. INTRODUCTION

Defendant Jose Manuel Cruz was convicted by plea of possession of child pornography (Pen. Code, § 311.11, subd. (a)).[1] The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.

On appeal, defendant challenges the probation conditions (a) requiring waiver of any privilege against self-incrimination, participation in polygraph examinations, and waiver of any psychotherapist-patient privilege as part of his participation in a sex offender management program; (b) restricting his Internet access; and (c) prohibiting possession of pornography.

For reasons that we will explain, we will affirm the order of probation.

II. FACTUAL AND PROCEDURAL BACKGROUND

The police executed a search warrant at defendant’s residence after discovering that child pornography was being shared online.[2] A forensic analysis of defendant’s computer revealed that he had more than 20 files of child pornography, including a video of a young girl orally copulating an adult male. After being advised of his Miranda rights,[3] defendant admitted that he downloaded child pornography.

Defendant was charged by information with possession of child pornography (§ 311.11, subd. (a)). He pleaded no contest with the understanding that he would receive six months in county jail.

The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve six months in county jail. Over defendant’s objections, the conditions of probation also included the following.

The trial court ordered defendant to complete an approved sex offender management program pursuant to section 1203.067, subdivision (b)(2). He was also ordered to waive any privilege against self-incrimination and participate in polygraph examinations as part of the sex offender management program pursuant to section 1203.067, subdivision (b)(3). Defendant was further ordered to waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer pursuant to section 1203.067, subdivision (b)(4). The court stated that “[t]hese waivers are strictly limited and should be narrowly tailored to effectuating the sex offender management program. [Defendant] will remain entitled to invoke his Fifth Amendment rights to questions outside the scope of the program, and any disclosures made relating to therapy should be only the minimum necessary such that sufficient information is conveyed for the purpose of the statutorily specified sex offender management program.” The court further stated that “these waivers should be used exclusively to provide for the successful completion of the sex management program by [defendant].”

The trial court also ordered defendant to “not knowingly access the internet or any other online service through use of a computer or other electronic device at any location, including place of employment, without prior approval of the probation officer.” Defendant was further ordered to “not knowingly purchase or possess any pornographic or sexually explicit material as defined by the probation officer.” He was also ordered to “not knowingly frequent, be employed by, or engage in any business where pornographic materials are openly exhibited.”

In addition, the trial court ordered that all of defendant’s electronic devices, including cell phones and laptops, be subject to forensic analysis search. Defendant was also ordered to not knowingly enter any social networking sites or post any ads, either electronic or written, unless approved by the probation officer. He was further ordered to report all personal e-mail addresses and websites with passwords to the probation officer within five days. The court ordered defendant to not knowingly possess or use any data encryption technique program. The court also ordered defendant to keep a minimum of four weeks of Internet browsing history. Further, the court ordered defendant to provide all passwords to any electronic devices within his custody or control and to submit the devices to search at any time, without a warrant, by any peace officer. Additionally, he was ordered to provide all passwords to any social media sites and to submit the sites to search at any time without a warrant by any peace officer.

III. DISCUSSION

A.Sex Offender Management Conditions

In his opening brief on appeal, defendant contends that the probation condition requiring him to waive his privilege against self-incrimination and participate in polygraph examinations (see § 1203.067, subd. (b)(3)) violates the Fifth Amendment and is unconstitutionally overbroad. He also contends that the probation condition requiring waiver of the psychotherapist-patient privilege (see § 1203.067, subd. (b)(4)) violates his right to privacy and improperly coerces waiver of his state statutory privilege.

Our Supreme Court recently rejected similar challenges to the probation conditions required by section 1203.067, subdivisions (b)(3) and (b)(4). (People v. Garcia (2017) 2 Cal.5th 792 (Garcia).) In Garcia, the section 1203.067, subdivision (b)(3) probation condition required the defendant to “ ‘waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program’ ” (Garcia, supra, at p. 799) and the section 1203.067, subdivision (b)(4) condition required the defendant to “waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer” (Garcia, supra, at p. 799).

As to the condition requiring waiver of any privilege against self-incrimination and requiring participation in polygraph examinations, the California Supreme Court rejected the defendant’s claim that the condition required him to waive his Fifth Amendment privilege. (Garcia, supra, 2 Cal.5th at pp. 802-803.) The court construed the condition as requiring probationers “answer all questions posed by the containment team fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding.” (Id. at p. 803.) The court explained that, so construed, the condition did not violate the probationer’s Fifth Amendment rights, since “the Fifth Amendment does not establish a privilege against the compelled disclosure of information; rather, it ‘precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled. [Citation.]” (Garcia, supra, at p. 807.)

The California Supreme Court also rejected the defendant’s claim that the condition was overbroad because the scope of the required polygraph examinations was “not limited to prior or potential sex offenses but would permit a polygraph examiner to ask ‘anything at all, without limitation.’ ” (Garcia, supra, 2 Cal.5th at p. 809.) The court explained that the condition was “expressly linked to the purposes and needs of the sex offender management program” and thus was “limited to that which is reasonably necessary to promote the goals of probation,” i.e., “criminal conduct related to the sex offender management program.” (Ibid.)

As to the condition requiring waiver of any psychotherapist-patient privilege, the California Supreme Court found that the condition did not violate the defendant’s right to privacy and that the condition was not unconstitutionally overbroad. (Garcia, supra, 5 Cal.5th at p. 809.) The court first addressed the privacy issue, finding that the intrusion on the psychotherapist-patient privilege was “quite narrow,” in that “a probationer’s confidential communications may be shared only with the probation officer and the certified polygraph examiner.” (Id. at p. 810.) The court noted that “[t]he waiver does not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information.” (Ibid.) With respect to the overbreadth issue, the court similarly noted that “[t]he required waiver [of the psychotherapist-patient privilege] extends only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program. [Citation.]” (Id. at pp. 811-812.) The court explained that, “n all other respects, the privilege remains intact.” ([i]Id. at p. 813.)

As defendant acknowledges in a supplemental letter brief, Garcia resolves his challenges to the probation conditions requiring waiver of any privilege against self-incrimination, participation in polygraph examinations, and waiver of any psychotherapist-patient privilege as part of the sex offender management program. In light of that California Supreme Court precedent, we decline to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703.)

B.Internet Access Condition

Over defendant’s overbreadth objection, the trial court ordered defendant to “not knowingly access the internet or any other online service through use of a computer or other electronic device at any location, including place of employment, without prior approval of the probation officer.” On appeal, defendant contends that the condition is unconstitutionally overbroad, and that it should be stricken because his other conditions of probation are adequate. In particular, defendant points to the probation conditions restricting his use of social networking sites, requiring him to provide all personal e-mail addresses, subjecting his computer to forensic analysis search, prohibiting data encryption, and requiring that he keep at least four weeks of Internet browsing history.

“A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) This court rejected an overbreadth challenge to a similar Internet access condition in People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali). In Pirali, the defendant was convicted of possession of child pornography. (Id. at p. 1344.) He was placed on probation with various terms and conditions, including that he not access the Internet without prior approval of the probation officer. The conditions also restricted his use of social networking sites and required him to report personal e-mail addresses. (Ibid.) On appeal, this court found “no merit to defendant’s contention that the existence of the other, less restrictive Internet- and computer-related probation conditions renders the broader Internet condition superfluous . . . .” (Id. at p. 1347.) This court also concluded that the condition at issue was not a “blanket prohibition” on Internet access because it “grants defendant the ability to access the Internet on his computer and other electronic devices so long as he obtains prior permission from his [probation] officer.” (Id. at pp. 1349-1350.)

Defendant cites two federal opinions finding similar probation conditions overbroad. (See U.S. v. Freeman (3d Cir. 2003) 316 F.3d 386, 392, fn. omitted (Freeman) [“it is not reasonably necessary to restrict all of Freeman’s access to the internet when a more limited restriction will do”]; U.S. v. Sofsky (2d Cir. 2002) 287 F.3d 122, 126 (Sofsky) [“Although the condition . . . is reasonably related to the purposes of his sentencing, . . . the condition inflicts a greater deprivation on Sofsky’s liberty than is reasonably necessary”].) Defendant fails to acknowledge that other federal opinions have upheld such conditions. (See U.S. v. Rearden (9th Cir. 2003) 349 F.3d 608, 621 [“The condition does not plainly involve a greater deprivation of liberty than is reasonably necessary for the purpose because it is not absolute; rather, it allows for approval of appropriate online access by the Probation Office”]; U.S. v. Ristine (8th Cir. 2003) 335 F.3d 692, 695-696 [declining to follow Freeman and Sofsky]; U.S. v. Zinn (11th Cir. 2003) 321 F.3d 1084, 1093 [same].)

In this case, as in Pirali, the condition permits defendant to access the Internet after having obtained permission from his probation officer. The internet access condition is not a “blanket prohibition” on Internet access (Pirali, supra, 217 Cal.App.4th at p. 1349) and is not unconstitutionally overbroad.

C.Pornography Condition

Defendant challenges, as unconstitutionally vague, the probation condition ordering him to “not knowingly purchase or possess any pornographic or sexually explicit material as defined by the probation officer.”

Defendant did not object to this probation condition below. However, a defendant may raise for the first time on appeal a facial constitutional defect in a probation condition, where the claim involves “ ‘ “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” [Citations.]’ ” (Sheena K., supra, 40 Cal.4th at p. 889; see also id. at p. 887.)

The vagueness doctrine, “which derives from the due process concept of fair warning, bars the government from enforcing a provision that ‘forbids or requires the doing of an act in terms so vague’ that people of ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citation.] . . . [A] probation condition should not be invalidated as unconstitutionally vague ‘ “ ‘if any reasonable and practical construction can be given to its language.’ ” ’ [Citation.]” (People v. Hall (2017) 2 Cal.5th 494, 500-501.)

Defendant notes that in People v. Turner (2007) 155 Cal.App.4th 1432 (Turner) and in this court’s opinion in Pirali, supra, 217 Cal.App.4th 1341, similar probation conditions were modified due to vagueness problems. In Turner, the challenged condition required the defendant “[n]ot possess any sexually stimulating/oriented material deemed inappropriate by the probation officer and/or patronize any places where such material or entertainment is available.” (Turner, supra, at p. 1435.) The court held that the condition did not provide the defendant with advance notice of what was prohibited and modified the condition to read: “ ‘Not possess any sexually stimulating/oriented material having been informed by the probation officer that such material is inappropriate and/or patronize any places where such material or entertainment in the style of said material are known to be available.’ ” (Id. at p. 1436, italics added.) In Pirali, the challenged condition provided, “You’re ordered not to purchase or possess any pornographic or sexually explicit material as defined by the probation officer.” (Pirali, supra, at p. 1344.) This court expressed concern that the probation officer could “deem material sexually explicit or pornographic after defendant already possesses the material,” which “would produce a situation where defendant could violate his probation without adequate notice.” (Id. at p. 1352.) Thus, following Turner, this court modified the condition to read: “You’re ordered not to purchase or possess any pornographic or sexually explicit material, having been informed by the probation officer that such items are pornographic or sexually explicit.” (Pirali, supra, at p. 1353, italics added.)

In this case, defendant contends that the no-pornography condition is similar to the conditions in Turner and Pirali and “is unconstitutionally vague because it fails to notify [him] in advance what is expected of him without a knowledge requirement.” Defendant requests that we “follow” this court’s opinion in Pirali by modifying the probation condition to state that he not purchase or possess any pornographic or sexually explicit material “having been informed by the probation officer that such items are pornographic or sexually explicit.” In other words, defendant wants the condition modified to “include a provision requiring the probation officer to inform [defendant] what the probation officer believes constitutes pornographic material.” However, defendant’s probation condition already includes an advance knowledge requirement. As orally pronounced by the trial court, and as defendant recites in his opening brief on appeal, he was ordered to “not knowingly purchase or possess any pornographic or sexually explicit material as defined by the probation officer.” (Italics added.) Thus, the modification set forth in Pirali is unnecessary in this case.

IV. DISPOSITION

The order of probation is affirmed.

---