Filed 8/8/17 P. v. Martineztrejo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN CARLOS MARTINEZTREJO,

Defendant and Appellant.
H043643
(Santa Clara County
Super. Ct. No. C1510174)
Defendant Juan Carlos Martineztrejo pleaded no contest to possession of child pornography. (Pen. Code, § 311.11, subd. (c).) He was placed on probation for three years and required to register as a sex offender. (§ 290.) The trial court also imposed a number of probation conditions as required by section 1203.067, subdivision (b): defendant was ordered to “enter, participate in, and complete an approved sex offender management program,” “participate in polygraph[] examinations for [the] purpose of supervision only,” and “waive any psychotherapist/patient privilege” in order to facilitate “communication between the sex offender management professional and the probation officer.” (See § 1203.067, subd. (b)(1), (3) & (4).)
In the trial court, defendant objected to the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4), and he challenges the same conditions on appeal. Defendant argues that the probation condition requiring him to submit to polygraph tests (the section 1203.067, subdivision (b)(3) condition) is unconstitutional because the condition requires him to waive his Fifth Amendment privilege. Defendant contends that the probation condition requiring him to waive the psychotherapist/patent privilege (the section 1203.067, subdivision (b)(4) condition) is unconstitutional because he was “coerced into waiving his rights to privacy and privilege.” Defendant also asserts that the section 1203.067, subdivision (b)(4) condition “is not narrowly tail[or]ed to [his] situation.”
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 required by section 1203.067, subdivision (b)(3) (requiring probationers to “waive any privilege against self-incrimination” and participate 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 p. 802-803.) The court construed the condition as requiring probationers to “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 a 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 rejected the defendant’s claim that the section 1203.067, subdivision (b)(3) 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 required by section 1203.067, subdivision (b)(4) (requiring probationers to waive “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, 2 Cal.5th at pp. 809-813.) 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.)
Garcia resolves the issues raised by defendant on appeal. In light of that California Supreme Court precedent, we will affirm the order of probation. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The order of probation is affirmed.






___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.