Filed 10/20/17 P. v. Rangel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. ANDREW ALDEN RANGEL, Defendant and Appellant.

H042601 (Santa Clara County Super. Ct. No. C1511275)

Defendant Andrew Alden Rangel pleaded no contest to two drug offenses and two sex offenses. The trial court suspended imposition of sentence, placed defendant on three years’ probation, and required defendant to register as a sex offender. (Pen. Code, § 290.)[1] Among the probation conditions the trial court imposed were two statutorily required by section 1203.067, subdivision (b). Pursuant to section 1203.067, subdivision (b)(3), defendant was ordered to “waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program.” And pursuant to section 1203.067, subdivision (b)(4), defendant was ordered to “waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer.” Defendant objected to the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4) below and he challenges those conditions on appeal. Because his contentions lack merit, we will affirm the order of probation.

I. Background

In a complaint filed on May 22, 2015, the Santa Clara County District Attorney alleged that defendant brought a controlled substance or paraphernalia into a prison or jail (§ 4573); committed the crime of indecent exposure (§ 314, subd. (1)); was under the influence of a controlled substance, methamphetamine (Health & Saf. Code, § 11550, subd. (a)); and solicited or engaged in lewd conduct in public (§ 647, subd. (a)).

Defendant pleaded no contest to all four counts on May 27, 2015. Defense counsel and the prosecutor stipulated to a factual basis for the plea.

At a sentencing hearing on June 24, 2015, the trial court suspended imposition of sentence and placed defendant on formal probation for three years, subject to various conditions. Over defendant’s objection, the court ordered defendant, as conditions of his probation, to “waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program” and to “waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer.”

Defendant timely appealed. After briefing was completed in this case, the Supreme Court issued its decision in People v. Garcia (2017) 2 Cal.5th 792 (Garcia) affirming the constitutionality of the probation conditions required by section 1203.067, subdivisions (b)(3) and (b)(4). We requested and received additional briefing from the parties as to the impact of that case on this appeal. Defendant acknowledges it “goes squarely against [his] arguments” on appeal. The People agree that Garcia controls.

II. Discussion

A. Governing Legal Principles and Standard of Review

“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ ” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) The test set forth in Lent “is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)

We review conditions of probation for abuse of discretion. (Carbajal, supra, 10 Cal.4th at p. 1121.) With these principles in mind we examine the challenged conditions.

B. The Validity of the Probation Condition Requiring Waiver of the Privilege Against Self-Incrimination and Participation in Polygraph Examinations

Defendant levels three challenges against the probation condition imposed pursuant to section 1203.067, subdivision (b)(3) (the subdivision (b)(3) condition), which requires him to “waive any privilege against self-incrimination and participate in polygraph examinations [as] part of the sex offender management program.” We shall address each in turn.

First, defendant contends the subdivision (b)(3) condition violates the Fifth Amendment by requiring him to waive his privilege against self-incrimination. The Garcia court rejected an identical argument, reasoning that “[t]he 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. Because there is no Fifth Amendment privilege against compelled disclosure of information that cannot be used to incriminate the probationer [citations], it follows that the condition, properly understood, does not violate the Fifth Amendment.” (Garcia, supra, 2 Cal.5th at pp. 802-803.) In light of Garcia, defendant’s Fifth Amendment challenge to the subdivision (b)(3) condition fails.

Second, defendant contends the subdivision (b)(3) condition is unconstitutionally overbroad because polygraph examiners are permitted to ask questions about uncharged and potential new sex offenses. “A restriction is unconstitutionally overbroad . . . if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ ” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Thus, “[t]he 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.” (Ibid.)

Our Supreme Court rejected an overbreadth challenge to the subdivision (b)(3) condition in Garcia, noting that “[t]he scope of the polygraph examination is not unbounded, . . . [but r]ather, . . . is limited to that which is reasonably necessary to promote the goals of probation.” (Garcia, supra, 2 Cal.5th at p. 809.) Specifically, the court explained that “the polygraph testing condition is expressly linked to the purposes and needs of the sex offender management program[,] . . . [which] requires disclosure of each prior sex offense so as to enable identification of the psychological and physiological factors associated with the probationer’s crimes and development of a plan to reform and rehabilitate the probationer. The polygraph is a reasonable means of verifying the accuracy and completeness of those disclosures and of ensuring the probationer’s compliance with treatment and supervision, both of which allow the containment team to discover and monitor the risks posed by the probationer’s release to the community. [Citation.] Because the scope of the polygraph examination is already focused by its terms on criminal conduct related to the sex offender management program, it is a valid condition of probation and does not require further limitation.” (Ibid.)

Finally, defendant argues the subdivision (b)(3) condition is unreasonable under Lent. We disagree. The polygraph testing condition is part of the sex offender management program, the goal of which is to prevent probationers like defendant from committing sexual offenses in the future. (§ 9000, subd. (d).) As such, it requires conduct (polygraph testing) that is reasonably related to preventing future criminality, making it valid. (Olguin, supra, 45 Cal.4th at pp. 379-380.)

C. The Validity of the Probation Condition Requiring Waiver of the Psychotherapist-patient Privilege (the Subdivision (b)(4) Condition)

Defendant also challenges the validity of the probation condition imposed pursuant to section 1203.067, subdivision (b)(4) (the subdivision (b)(4) condition), which requires him to “waive any psychotherapist-patient privilege.” As discussed below, all of his arguments are foreclosed by Garcia.

First, defendant claims the subdivision (b)(4) condition violates his federal constitutional right to informational privacy in violation of the First, Fifth, and Fourteenth Amendments. Garcia compels us to reject that argument. As our Supreme Court explained in that case, the subdivision (b)(4) condition involves a “limited intrusion” on a probationer’s privacy because “the waiver is limited to that which is necessary ‘to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09.’ ” (Garcia, supra, 2 Cal.5th at p. 810, quoting § 1203.067, subd. (b)(4).) “The waiver does not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information (although the mandatory reporting laws may themselves require a probation officer, psychotherapist, or other classified individual to inform the appropriate agencies about suspected child abuse or neglect [citations]), nor does it divest defendant of the ability to assert the privilege to prevent further disclosure of the shared communications.” (Garcia, supra, at p. 810.) “Against that limited intrusion, [the Garcia court] weigh[ed] the state’s strong and legitimate interest” in “the effectiveness of the Containment Model[,which] depends on ‘ “open and ongoing communication” ’ among the professionals involved in ‘ “supervising, assessing, evaluating, treating, supporting, and monitoring sex offenders.” ’ ” (Id. at p. 811.) The court found no violation of the defendant’s federal right to privacy. For the same reasons, we conclude the subdivision (b)(4) condition does not violate defendant’s federal privacy rights.

Second, defendant argues the subdivision (b)(4) condition improperly coerced him to waive his statutory psychotherapist-patient privilege, rendering the condition itself invalid. The Garcia court acknowledged that “the condition involves an element of coercion,” but concluded that did not render it invalid. (Garcia, supra, 2 Cal.5th at p. 813.) 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.)

Finally, defendant urges that the subdivision (b)(4) condition is overbroad. Our Supreme Court rejected that very claim in Garcia, reasoning that, properly construed, the condition “intrude[s] on the privilege only to a limited extent: the extent specified in the condition itself, which describes what is reasonably necessary to enable communications among the psychotherapist, probation officer, and polygraph examiner; facilitate their understanding of the challenges defendant presents; and allow those containment team members to measure the effectiveness of the sex offender treatment and monitoring program. (Pen. Code, § 1203.067, subd. (b)(4).) In all other respects, the privilege remains intact. So construed, the condition is not overbroad.” (Garcia, supra, 2 Cal.5th at p. 813.)

In sum, Garcia resolves defendant’s challenges to the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). In light of that binding precedent, we decline defendant’s request to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III. Disposition

The order of probation is affirmed.

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