Filed 8/8/17 P. v. Moore CA5
Opinion on remand from Supreme Court




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS MOORE,

Defendant and Appellant.

F070205

(Super. Ct. No. CRM026364)


OPINION

APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge.
Shannon Chase, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On April 10, 2013, defendant Thomas Moore pled no contest to one felony count of possession or control of child pornography in violation of Penal Code section 311.11, subdivision (a). The trial court suspended imposition of sentence and placed defendant on probation for three years, subject to various terms and conditions, including no contact with children. In August 2014, the probation department sought a modification of defendant’s probation to add new conditions. After holding probation modification hearings on August 22, 2014, and September 16, 2014, the trial court, in relevant part, imposed compliance with section 1203.067, subdivision (b)(3), but stayed enforcement pending an appeal of its constitutionality.
On September 16, 2014, defendant filed a notice of appeal challenging two of his probation conditions as facially unconstitutional. (§ 1237, subd. (a).) Defendant argues section 1203.067, subdivision (b)(3), and the related mandatory polygraph consent form violate the Fifth Amendment’s Self-Incrimination Clause, and the no contact condition is unconstitutionally vague.
In our unpublished opinion in People v. Moore (May 18, 2016, F070205), we found the provisions in section 1203.067, subdivision (b)(3), and the polygraph consent form waiving the privilege against self-incrimination unconstitutional under the Fifth Amendment, and we found defendant’s challenge to the no contact condition untimely.
The California Supreme Court granted review of our opinion and ordered briefing deferred pending decision in People v. Friday, S218288, People v. Garcia, S218197 and People v. Klatt, S218755. On March 20, 2017, the Supreme Court decided People v. Garcia (2017) 2 Cal.5th 792 (Garcia), and transferred this matter back to this court with direction to reconsider our decision in light of Garcia.
The People filed a supplemental brief requesting that in light of Garcia, which rejected a Fifth Amendment challenge to the statutory waiver provision and to the mandatory polygraph examination as conditions of probation, we reinstate defendant’s waivers of the privilege against self-incrimination as a condition of his probation. (Garcia, supra, 2 Cal.5th at pp. 798-799.) Defendant filed a letter informing us that he is no longer on probation.
Although defendant’s challenge to his probation conditions is technically moot, in light of the Supreme Court’s order, we shall reconsider the probation conditions. We now modify the opinion and affirm the probation conditions under Garcia, supra, 2 Cal.5th at pp. 806-808. We also again reject defendant’s challenge to the no contact provision as untimely.
DISCUSSION
I. Fifth Amendment Challenge to Conditions of Probation Foreclosed Under Garcia
Defendant’s conviction for possession or control of child pornography subjects him to mandatory registration under section 290, subdivisions (b) and (c), the Sex Offender Registration Act, and in turn, section 1203.067, subdivision (b), applies to section 290 registrants such as defendant. Section 1203.067, subdivision (b)(3), requires “[w]aiver of any privilege against self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program.” (§ 1203.067, subd. (b)(3).) In addition to the statutory waiver of the privilege against self-incrimination, the polygraph consent form provided to defendant for his signature includes the following statement: “I am consenting to this examination without threats, force, duress, reward, or any promise of immunity.” On appeal, defendant contends the State may not require him to waive his Fifth Amendment right against self-incrimination as a condition of probation and the statutory waiver provision is therefore facially unconstitutional. He challenges the polygraph examination condition on the same ground.
In Garcia, the California Supreme Court recently rejected the challenge defendant advances on appeal. (Garcia, supra, 2 Cal.5th at pp. 802, 808.) The high court agreed “that it would raise serious constitutional questions to require defendants to waive their privilege against self-incrimination as a condition of probation.” (Id. at p. 803.) However, relying on the doctrine of constitutional avoidance, the court rejected the defendant’s broad construction of the statute and concluded “that the subdivision (b)(3) condition may reasonably be construed in a manner that is both constitutional and consistent with the purpose of Chelsea’s Law. [Citation.] The subdivision (b)(3) condition does no more than allow the containment team to overcome the probationer’s Fifth Amendment objections when the team poses potentially incriminating questions. Under this construction, a probationer is required to answer the questions posed by the containment team, on pain of probation revocation should the probationer refuse. In turn, the probationer’s compelled responses may not be used against the probationer in a subsequent criminal prosecution.” (Id. at pp. 806-807.)
In an analysis that applied to both the statutory waiver provision and the polygraph examination requirement (Garcia, supra, 2 Cal.5th at pp. 807-808), the court interpreted the “subdivision (b)(3) condition as directing the probationer, in the context of questioning by the containment team, to exchange the privilege against self-incrimination for an immunity against prosecutorial use of the compelled responses” and it “explicitly declare[d] that probationers have immunity against the direct and derivative use of any compelled statements elicited under the subdivision (b)(3) condition” (id. at p. 807). Further, it held that “the probationer must be made aware of the protection afforded statements compelled in the course of the sex offender management program. In particular, a probationer must be advised, before treatment begins, that no compelled statement elicited under questioning in the course of the mandatory sex offender management program (or the fruits thereof) may be used against him or her in a subsequent criminal prosecution.” (Id. at p. 808.)
Accordingly, we reject defendant’s Fifth Amendment challenge to his conditions of probation as foreclosed by Garcia.
II. Untimely Appeal of No Contact Condition
Defendant also challenges the probation condition prohibiting him from having contact with children on the ground it is unconstitutionally vague as to the element of scienter, or knowledge, and the term “contact.” At our request, the parties filed supplemental letter briefs addressing the timeliness of defendant’s appeal of the no contact condition. (Gov. Code, § 68081.) In his supplemental brief, defendant argues his appeal of this condition is not foreclosed given our decision in People v. Hackler (1993) 13 Cal.App.4th 1049 (Hackler). We find this argument unpersuasive.
“[A] notice of appeal … must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.” (Cal. Rules of Court, rule 8.308(a).) “A timely notice of appeal, as a general matter, is ‘essential to appellate jurisdiction.’ [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] An untimely notice of appeal is ‘wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.’ [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all.” (People v. Mendez (1999) 19 Cal.4th 1084, 1094; accord In re Chavez (2003) 30 Cal.4th 643, 650; People v. Lyons (2009) 178 Cal.App.4th 1355, 1360-1361; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.)
The no contact condition of probation was imposed on April 10, 2013. No appeal of the condition was taken until September 16, 2014. While defendant’s notice of appeal was timely as to the probation modification effected on September 16, 2014, the no contact condition was not addressed during the modification hearing and it was unaffected by the trial court’s modification order.
Defendant’s argument that Hackler is controlling ignores the context in which we considered that probation challenge and subsequent authority. In Hackler, we considered a challenge to a probation condition where the defendant did not appeal the condition when it was imposed or when probation was revoked. (Hackler, supra, 13 Cal.App.4th at pp. 1052-1053.) Instead, he challenged the condition within 60 days of being sentenced to prison, following revocation of probation. (Ibid.) Unlike this case, which involves a facial challenge to a probation condition brought 16 months after it was imposed, the prior condition of probation in Hackler and the subsequent revocation of probation and sentencing were related or intertwined. (Ibid.)
Factual and procedural dissimilarities notwithstanding, in considering the appeal in Hackler, we expressly stated, after a review of authority, that we would follow appellate courts’ then-practice of reaching the merits given “the absence of clear authority to the contrary .…” (Hackler, supra, 13 Cal.App.4th at p. 1057.) In doing so, we noted that the cases we relied on did not involve claims of waiver and therefore did “not stand as direct authority on the waiver issue.” (Ibid.) Since Hackler was decided in 1993, however, clear authority has emerged regarding timely notices of appeal. We therefore decline defendant’s invitation to ignore those subsequent developments in the law, which include authority from the California Supreme Court and this court. (In re Chavez, supra, 30 Cal.4th at p. 650; People v. Mendez, supra, 19 Cal.4th at p. 1094; People v. Lyons, supra, 178 Cal.App.4th at pp. 1360-1363; People v. Ramirez, supra, 159 Cal.App.4th at pp. 1420-1421; People v. Dagostino (2004) 117 Cal.App.4th 974, 997.)
We conclude we lack jurisdiction over the appeal of the no contact condition because it was not filed within 60 days of its imposition.
DISPOSITION
Defendant’s Fifth Amendment challenge to his conditions of probation is rejected in accordance with Garcia, supra, 2 Cal.5th 792, and his challenge to the no contact condition of probation is denied as untimely. The judgment is affirmed.

___________________________
LEVY, Acting P.J.

WE CONCUR:

_____________________
DETJEN, J.

______________________
FRANSON, J.