Opinion
H041903
08-02-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK ALEXANDER FLORES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1240119)
STATEMENT OF THE CASE
An information, filed on August 1, 2013, charged defendant Mark Alexander Flores with one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)). On May 28, 2014, defendant pleaded no contest to that charge.
All further statutory references are to the Penal Code.
At the sentencing hearing on November 21, 2014, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years. The trial court imposed various terms and conditions of probation.
The trial court imposed the following probation conditions pursuant to section 1203.067: a condition requiring defendant to "complete an approved sex offender management program" (§ 1203.067, subd. (b)(2)); a condition requiring defendant to "waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program" (§ 1203.067, subd. (b)(3)); and a condition requiring defendant to "waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer" (§ 1203.067, subd. (b)(4)).
The trial court also imposed probation conditions related to socializing and pornography. Probation condition No. 5 states: "The defendant may not date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer." Probation condition No. 21 provides: "The defendant shall not purchase or possess any pornographic or sexually explicit material as defined by the probation officer." Probation condition No. 22 states: "The defendant shall not frequent, be employed by, or engage in any business where pornographic materials are openly exhibited."
Defendant now appeals. On appeal, he challenges the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4), and he also challenges probation condition No. 5, probation condition No. 21, and probation condition No. 22. As set forth below, we will modify probation condition No. 5 and probation condition No. 22, and we will affirm the probation order as modified.
DISCUSSION
The facts underlying defendant's conviction are not relevant to our disposition of the issues presented on appeal. We therefore will not summarize those facts. --------
I. The Probation Conditions Imposed Pursuant to Section 1203.067
Defendant urges us to strike or modify the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). He asserts that the condition requiring him to waive the privilege against self-incrimination and participate in polygraph examinations (the § 1203.067, subd. (b)(3) condition) violates the Fifth Amendment and is unconstitutionally overbroad. He asserts that the condition requiring him to waive the psychotherapist-patient privilege (the § 1203.067, subd. (b)(4) condition) violates his right to privacy, is unconstitutionally overbroad, and constitutes an improperly coerced waiver.
In People v. Garcia (2017) 2 Cal.5th 792 (Garcia), our Supreme Court rejected similar challenges to probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). In Garcia, the section 1203.067, subdivision (b)(3) 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," 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 section 1203.067, subdivision (b)(3) condition (requiring waiver of any privilege against self-incrimination and participation in polygraph examinations), our Supreme Court rejected the claim that the condition violated the Fifth Amendment. (Garcia, supra, 2 Cal.5th at pp. 802-803.) The court explained that the "condition is properly read . . . to require that 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." (Ibid.) Given this proper reading, the court determined that the condition did not violate the defendant's Fifth Amendment rights: "As this court has previously explained, 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.' " (Id. at p. 807.)
Our Supreme Court rejected the claim that the section 1203.067, subdivision (b)(3) condition was overbroad. (Garcia, supra, 2 Cal.5th at p. 809.) Although the defendant asserted that the condition permitted "polygraph examinations of unlimited scope," the court concluded that the scope of the polygraph examinations was "not unbounded." (Ibid.) 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." (Ibid.)
As to the section 1203.067, subdivision (b)(4) condition (requiring waiver of any psychotherapist-patient privilege), our Supreme Court found that the condition did not violate the defendant's right to privacy. (Garcia, supra, 5 Cal.5th at pp. 798-799.) The court explained that the condition required 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." (Id. at p. 799.) Because the defendant's confidential communications could "be shared only with the probation officer and the certified polygraph examiner," the court concluded that the waiver required by the condition was "quite narrow" and did not violate the defendant's right to privacy. (Id. at p. 810.) The court emphasized that the waiver did "not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information." (Ibid.)
In addressing the claim that the section 1203.067, subdivision (b)(4) condition was overbroad, our Supreme Court noted: "The 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." (Garcia, supra, 5 Cal.5th at p. 811.) In light of this "limited sharing of information," the court determined that the condition intruded on the psychotherapist-patient privilege "only to a limited extent" and was not overbroad. (Id. at pp. 812-813.)
Our Supreme Court also rejected the claim that the section 1203.067, subdivision (b)(4) condition involved an improperly coerced waiver of the psychotherapist-patient privilege. (Garcia, supra, 2 Cal.5th at p. 813.) The court acknowledged that the defendant "faced the choice between waiving his psychotherapist-patient privilege or going to prison." (Ibid.) The court explained, however, that the condition was not invalid simply because it involved "an element of coercion." (Ibid.) Given the condition's "limited" intrusion upon the psychotherapist-patient privilege, the court determined that the condition did "not cause the privilege to evaporate" and was not invalidated by coercion. (Ibid.)
Garcia resolves defendant's challenges to the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). In light of the precedent established by Garcia, we refuse defendant's request to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
II. The Probation Conditions Related to Socializing and Pornography
Defendant presents vagueness and overbreadth challenges to probation condition No. 5, probation condition No. 21, and probation condition No. 22. As explained below, we will modify probation condition No. 5 and probation condition No. 22 to prevent unconstitutional vagueness and overbreadth.
A. Legal Principles and the Standard of Review
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "A restriction failing this test does not give adequate notice—'fair warning'—of the conduct proscribed." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).)
"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." (Sheena K., supra, 40 Cal.4th at p. 890.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights. . . ." (E.O., supra, 188 Cal.App.4th at p. 1153.)
We apply the de novo standard of review when evaluating vagueness and overbreadth challenges to probation conditions. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
B. We Will Modify Probation Condition No. 5
Defendant contends that probation condition No. 5 is unconstitutionally vague and overbroad. Probation condition No. 5 states: "The defendant may not date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
Defendant presents the following argument regarding the condition: "Because the term 'socialize' is not clearly defined, the condition is unconstitutionally vague as it does not state with certainty exactly what behavior is prohibited. In addition, it is overbroad as it is unlimited and effectively forbids [defendant's] contact with family and close friends." Defendant emphasizes that the condition "imposes significant restrictions on [his] right to free association."
The Attorney General "concedes that the term 'socialize' as used in the challenged condition is overbroad and vague." The Attorney General further concedes that "this Court should remedy any perceived overbreadth or vagueness concerns by striking the 'socialize' language from the condition." Defendant does not dispute that the Attorney General proposes the proper remedy. We will accept the Attorney General's concession and proposed remedy.
The word "socialize" must be omitted from the condition in order to prevent vagueness and overbreadth. The purpose of the condition is to prevent defendant from having contact with children. The condition, however, prevents defendant from socializing with friends and family even where he may never come into contact with their children. A prohibition on socializing with anyone who has physical custody of children, even where defendant will never come into contact with those children, is not closely tailored to the purpose of the condition. Moreover, the word "socialize" does not provide adequate notice of the proscribed conduct. As defendant asserts, it is unclear "what activities are covered by that term," which could be interpreted to include trivial activities such as "having a conversation with someone in a grocery store," having "a telephone conversation with someone who has a child," and speaking to "someone at work who has children." The inclusion of the word "socialize" thus renders the condition overbroad and vague. It therefore must be omitted from the condition.
In order to prevent unconstitutional vagueness and overbreadth, the word "socialize" must be omitted from probation condition No. 5. We will modify the condition to read as follows: "The defendant may not date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
C. Probation Condition No. 21 is Not Vague
Probation condition No. 21 states: "The defendant shall not purchase or possess any pornographic or sexually explicit material as defined by the probation officer." Defendant contends that this condition is "unconstitutionally vague because it does not require him to know that he possesses" the prohibited material. He emphasizes that probation conditions restricting possession "must include express scienter requirements to prevent the conditions from being unconstitutionally vague."
In People v. Hall (2017) 2 Cal.5th 494 (Hall), our Supreme Court rejected the claim that a probation condition must "state explicitly that knowing possession is required." (Id. at p. 500.) Because there is "an implicit requirement of knowing possession," the court concluded that a probation condition is not rendered unconstitutionally vague by the absence of an express knowledge requirement. (Id. at p. 497.)
In light of Hall, we must conclude that probation condition No. 21 is not unconstitutionally vague. (See Auto Equity Sales, supra, 57 Cal.2d at p. 455.) Defendant's challenge to probation condition No. 21 fails.
D. We Will Modify Probation Condition No. 22
Probation condition No. 22 states: "The defendant shall not frequent, be employed by, or engage in any business where pornographic materials are openly exhibited." Defendant contends that the inclusion of the word "frequent" renders the condition unconstitutionally vague. The Attorney General concedes that "the term 'frequent' is unconstitutionally vague." In order to prevent vagueness, the Attorney General proposes that the condition be modified to replace the word "frequent" with the phrase "visit or remain in." Defendant does not dispute that the Attorney General proposes the proper remedy.
This Court has previously held that the term "frequent" is unconstitutionally vague. (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon); In re H.C. (2009) 175 Cal.App.4th 1067, 1072.) We will modify probation condition No. 22 in the manner proposed by the Attorney General. (See Leon, supra, 181 Cal.App.4th at p. 952 [modifying probation condition to replace the word "frequent" with the words "visit or remain in"].) We will modify the condition to read as follows: "The defendant shall not visit or remain in, be employed by, or engage in any business where pornographic materials are openly exhibited."
DISPOSITION
Probation condition No. 5 is modified to read as follows: "The defendant may not date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
Probation condition No. 22 is modified to read as follows: "The defendant shall not visit or remain in, be employed by, or engage in any business where pornographic materials are openly exhibited."
As so modified, the probation order is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.