Filed 9/25/17 P. v. Bruton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. ROBERT KEMPER BRUTON, Defendant and Appellant.

H041960 (Santa Clara County Super. Ct. No. C1481389)

Defendant pleaded no contest to possession of child pornography. (Pen. Code, § 311.11, subd. (a).) He was placed on formal probation for three years and required to register as a sex offender. The trial court imposed probation conditions under Penal Code section 1203.067, which was enacted as part of the Chelsea King Child Predator Prevention Act of 2010 (Stats. 2010, ch. 219, § 1 et seq.) and mandates certain probation conditions in sex offender cases. Defendant was ordered to “enter and participate in and complete an approved sex offender management program,” to “participate in polygraphs exams [as] part of the sex offender management program,” and to “waive any psychotherapist-patient privilege only to the extent necessary to enable communication between the sex offender management professional and the probation officer[.]” Defendant challenges as overbroad the probation conditions ordering him to participate in polygraph examinations and to waive the psychotherapist-patient privilege, challenges recently addressed by our Supreme Court in People v. Garcia (2017) 2 Cal.5th 792 (Garcia).

The Garcia court rejected the argument that the condition requiring participation in polygraph examinations (Pen. Code, § 1203.067, subd. (b)(3)) was overbroad. (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.” (Ibid.) The program required complete disclosure of prior sex offenses to effectuate rehabilitation, and the polygraph examination was a reasonable means of verifying the accuracy and completeness of those disclosures. (Ibid.) By its terms, the scope of the polygraph examination was focused on criminal conduct related to the sex offender management program. The condition was valid and required no further limitation. (Ibid.)

The Garcia court concluded that the condition requiring probationers to waive “any psychotherapist-patient privilege” (Pen. Code, § 1203.067, subd. (b)(4)) did not violate the defendant’s right to privacy and was not unconstitutionally overbroad. (Garcia, supra, 2 Cal.5th at pp. 809–813.) The court reasoned that the intrusion on the psychotherapist-patient privilege was 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 noted that 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.” (Id. at pp. 811–812.)

We will uphold the probation conditions under Garcia (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), which defendant acknowledges is dispositive of the issues he raises.

The trial court also imposed fines and fees, including a $300 fine under Penal Code section 290.3 “plus penalty assessments.” The court did not set forth the amount of the penalty assessments associated with that fine, and neither the fine nor the related assessments are reflected in the court’s written minutes. Defendant and the Attorney General request that the we direct the trial court clerk to prepare amended minutes to include the specific statutory penalty assessments attached to the $300 base fine, citing People v. Hamed (2013) 221 Cal.App.4th 928, 937–940 (requiring abstract of judgment to include amount of and statutory basis for penalty assessments) and People v. Sharret (2011) 191 Cal.App.4th 859, 864 (recognizing clerk’s responsibility to specify the penalties and surcharges in appropriate amounts in the minutes and abstract of judgment). We will do so.

We agree with the parties that the following penalty assessments, totaling $930, attach to the $300 fine under Penal Code section 290.3: (1) a $300 state penalty assessment (Pen. Code, § 1464, subd. (a)(1)); (2) a $60 state surcharge (Pen. Code, § 1465.7); (3) a $150 state court construction penalty (Gov. Code, § 70372); (4) a $210 additional penalty (Gov. Code, § 76000, subd. (a)(1)); (5) a $60 penalty for emergency medical services (Gov. Code, § 76000.5, subd. (a)(1)); (6) a $30 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1); and (7) an additional $120 DNA penalty (Gov. Code, § 76104.7, subd. (a)).

DISPOSITION

The judgment is affirmed.

The superior court clerk is directed to amend the minutes to include the $300 fine imposed under Penal Code section 290.3 and the related penalty assessments, including the amount of and statutory basis for each assessment as set forth in this opinion. The superior court clerk shall transmit a copy of the amended minutes to the Santa Clara County Probation Department.