Filed 8/29/17 P. v. Ramos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. TYLER JOSEPH RAMOS, Defendant and Appellant.

H042139 (Santa Clara County Super. Ct. No. C1481390)

STATEMENT OF THE CASE

A felony complaint, filed on April 4, 2014, charged defendant Tyler Joseph Ramos with one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)).[1] On January 7, 2015, defendant pleaded no contest to that charge.

At the sentencing hearing on March 13, 2015, 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. As pertinent here, 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 “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 the following probation condition: “The defendant may not knowingly date, socialize with or form a romantic relationship with any person who has physical custody of a minor unless approved by the Probation Officer.”

Defendant now appeals. On appeal, he challenges the probation condition regarding polygraph examinations, the probation condition regarding the psychotherapist-patient privilege, and the probation condition regarding dating and socializing. As set forth below, we will modify the probation condition regarding dating and socializing, and we will affirm the probation order as modified.

DISCUSSION[2]

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 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 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.) In order to “remove any doubt” on the Fifth Amendment issue, the court explicitly declared that “probationers have immunity against the direct and derivative use of any compelled statements elicited under the [section 1203.067,] subdivision (b)(3) condition.” (Ibid.)

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,” with the scope of the polygraph examinations thus “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.)

II. The Probation Condition Regarding Dating and Socializing

A. The Arguments

Defendant contends that the probation condition regarding dating and socializing must be modified because it is unconstitutionally vague and overbroad. That condition states: “The defendant may not knowingly date, socialize with or form a romantic relationship with any person who has physical custody of a minor unless approved by the Probation Officer.”

Defendant contends that the “condition is vague because it is not clear what kind of behavior is encompassed by the term ‘socialize.’ ” He contends that the condition is overbroad because the restriction on dating and romantic relationships “sweeps too broadly” and improperly infringes his constitutional right to association.

The Attorney General concedes that the word “socialize” is vague and thus “should be struck” from the condition. The Attorney General argues, however, that “the ‘date’ and ‘form a romantic relationship’ terms should not be struck because they are narrowly tailored to the goal of preventing [defendant] from using the guise of a romantic relationship to gain unguarded access to potential underage victims.”

As explained below, we accept the Attorney General’s concession that the word “socialize” should be omitted from the condition. We also conclude that the condition’s restriction on dating and romantic relationships is not overbroad.

B. 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—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.” (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.)

C. We Will Modify the Condition to Omit the Word “Socialize”

The condition’s prohibition on socializing is vague. The word “socialize” does not provide adequate notice of the proscribed conduct. As defendant asserts, it is unclear “what kind of behavior is encompassed by the term.” As defendant further asserts, the word “socialize” presents numerous questions regarding the prohibited conduct: “How much interaction must [defendant] have with a person to be socializing? Can he attend a party for a coworker who has a minor child? Can he talk to a neighbor at all if the neighbor has a minor child?” The inclusion of the word “socialize” thus renders the condition unconstitutionally vague. We accept the Attorney General’s concession and will modify the condition to omit the word “socialize.”

On the other hand, the terms “date” and “form a romantic relationship” do not render the condition overbroad. The condition does not completely prohibit dating and the formation of romantic relationships. Rather, the condition permits defendant to date or form a romantic relationship with any person that does not have physical custody of a child. The condition even permits defendant to date or form a romantic relationship with someone who has physical custody of a child, so long as defendant obtains approval from his probation officer. This narrow restriction on dating and romantic relationships is closely tailored to the purpose of the condition, which is to limit defendant’s contact with children. The condition’s restriction on dating and romantic relationships is not unconstitutionally overbroad.

In sum, we conclude that the word “socialize” must be omitted from the condition to prevent unconstitutional vagueness. We will modify the condition to read as follows: “The defendant may not knowingly date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer.”

DISPOSTION

The probation condition regarding dating and socializing is modified to read as follows: “The defendant may not knowingly date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer.”

As so modified, the probation order is affirmed.

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