Filed 8/29/17 P. v. Guzman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. HUGO CORTES GUZMAN, Defendant and Appellant.

H041571 (Santa Clara County Super. Ct. No. C1366459)

STATEMENT OF THE CASE

A complaint, filed on October 29, 2013, charged defendant Hugo Cortes Guzman with four counts of unlawful sexual intercourse with a minor more than three years younger than defendant (Pen. Code, § 261.5, subd. (c); counts 1-4),[1] two counts of oral copulation with a minor (§ 288a, subd. (b)(1); counts 5-6), and one count of sexual penetration of a person under the age of 18 (§ 289, subd. (h); count 7). On May 12, 2014, defendant pleaded guilty to all seven counts.

At the sentencing hearing on October 17, 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. 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: “You may not date, socialize with, or form [a] romantic relationship with anyone that you know has physical custody of a minor unless approved by probation.”

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, subdivision (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, subdivision (b)(4) condition) violates his privacy rights and is 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.)

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 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.)

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 that the condition intruded on the psychotherapist-patient privilege “only to a limited extent,” 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

Defendant contends that the probation condition regarding dating and socializing must be modified because it is unconstitutionally vague and overbroad. That condition states: “You may not date, socialize with, or form [a] romantic relationship with anyone that you know has physical custody of a minor unless approved by probation.”

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. As explained below, we accept the Attorney General’s concession and proposed remedy.

“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, 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, 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.)

Here, 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 the condition. We will modify the condition to read as follows: “You may not date or form a romantic relationship with anyone that you know has physical custody of a minor unless approved by the probation officer.”

DISPOSITION

The probation condition regarding dating and socializing is modified to read as follows: “You may not date or form a romantic relationship with anyone that you know has physical custody of a minor unless approved by the probation officer.”

As so modified, probation order is affirmed.

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