People v. Dominguez CA6

Filed 6/30/14 P. v. Dominguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039879 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1243367)

v.

BRAULIO VEGA DOMINGUEZ,

Defendant and Appellant.

Defendant Braulio Vega Dominguez was granted probation after he pleaded no contest to two counts of lewd conduct with a child aged 14 or 15 (Pen. Code, § 288, subd. (c)(1)).1 The trial court imposed the sex offender probation conditions mandated 2 by section 1203.067, subdivision (b). These probation conditions require defendant to successfully complete a sex offender management program, “waive any privilege against self-incrimination and participate in polygraph examinations,” and “waive any psychotherapist patient privilege to enable communication between the sex offender management professional and the probation officer . . . .” Defendant challenges these two conditions on constitutional grounds. We reject his challenges.

1 Subsequent statutory references are to the Penal Code unless otherwise specified. 2 Defendant objected to these probation conditions on various grounds including vagueness and overbreadth, but the court overruled his objections.

I. Section 1203.067, Subdivision (b)(3) Condition Defendant claims that the section 1203.067, subdivision (b)(3) condition requiring that he waive “any privilege against self-incrimination” violates the Fifth Amendment because there is no “assurance to the probationer that his statements will not be used against him in criminal proceedings.” On this premise, he contends that this condition is unconstitutionally vague and overbroad. Defendant’s contentions fail because his premise is incorrect. This court recently considered the constitutional validity of this statutorily- mandated condition in People v. Garcia (2014) 224 Cal.App.4th 1283 (Garcia). “The subdivision (b)(3) probation condition does not force defendant to choose between forfeiting his Fifth Amendment rights, on the one hand, or asserting them and suffering the revocation of his probation. This condition does prohibit defendant from invoking any right against self-incrimination and thereby sets the price of invocation at the revocation of probation. By doing so, the condition creates the ‘classic’ situation where the penalty exception applies. If the state ‘asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.’ ([Minnesota v.] Murphy, [(1984)] 465 U.S. [420,] 435, italics added.) Because the penalty exception will necessarily apply to any statements that defendant makes under the compulsion of the subdivision (b)(3) probation condition, these statements cannot be used against defendant in a criminal proceeding. Hence, the condition cannot result in any Fifth Amendment violation.” (Garcia, at p. 1294, fn. omitted.) In Garcia, this court rejected Fifth Amendment and overbreadth challenges to the section 1203.067, subdivision (b)(3) condition. (Garcia, supra, 224 Cal.App.4th at pp. 1297-1298.) The defendant in Garcia did not challenge this condition as unconstitutionally vague. However, the analysis in Garcia necessarily requires rejection