PEOPLE v. FORNEY

No. A144450.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID FORNEY, Defendant and Appellant.

Court of Appeals of California, First District, Division One.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115.

BANKE, J.

This case returns to us following our Supreme Court's decision in People v. Garcia (2017) 2 Cal.5th 792 (Garcia), concluding the requirement of Penal Code1 section 1203.067, subdivision (b)(3), that convicted sex offenders waive "any privilege against self-incrimination" and participate in polygraph examinations as part of the sex offender management program, does not violate Fifth Amendment rights. The high court construed the statutory language as requiring a defendant to provide truthful answers during polygraph examinations and as also precluding the state from using such compelled answers in any subsequent criminal prosecution. (Garcia, at p. 799.) In our prior opinion, filed October 4, 2016, we also concluded defendant could be required to submit to polygraph examinations but the state could not use compelled answers in any subsequent criminal proceedings, albeit through different reasoning. In accordance with Garcia's reasoning, we again reject defendant's claim that he cannot be compelled to provide answers during polygraph examinations administered as part of the sex offender management program. We also make no change in our prior disposition of his challenges to two other probation conditions, ordering limited modifications to conditions that he not contact any minor without prior approval of his probation officer and that he not reside near or be any place where minors congregate.

Waiver of the Privilege Against Self-Incrimination and the Polygraph Testing Requirement

In Garcia, our high court recognized that "it would raise serious constitutional questions to require defendants to waive their privilege against self-incrimination as a condition of probation." (Garcia, supra, 2 Cal.5th at p. 803.) Accordingly, the court considered whether the statutory language could be read to mean something other than a required waiver of a probationer's Fifth Amendment right—invoking the canon that a statute should not be construed as violating the Constitution if another plausible and constitutional construction is possible. (Garcia, at pp. 804-805.)

The court determined such a reading of section 1203.067, subdivision (b)(3), is possible, namely that it "does no more than allow the containment team to overcome the probationer's Fifth Amendment objections when the team poses potentially incriminating questions. Under this construction, a probationer is required to answer the questions posed by the containment team, on pain of probation revocation should the probationer refuse." (Garcia, supra, 2 Cal.5th at pp. 806-807.) "In turn, the probationer's compelled responses may not be used against the probationer in a subsequent criminal prosecution," either as direct evidence of guilt or as impeachment. (Id. at p. 807.) "It also prevents the government from exploiting the information gleaned from those statements to discover other evidence of guilt." (Ibid.) In short, the court interpreted the section 1203.067 subdivision (b)(3) condition "as directing the probationer, in the context of questioning by the containment team, to exchange the privilege against self-incrimination for an immunity against prosecutorial use of the compelled responses." (Garcia, at p. 807.)

The Supreme Court also rejected the assertion that the required polygraph examinations are unbounded and examiners can inquire about "`anything,'" regardless of whether the topic is related to sex offender rehabilitation. (Garcia, supra, 2 Cal.5th at p. 809.) We rejected this same assertion in our prior opinion. As our high court explained, "[t]he scope of the polygraph examination is not unbounded. . . . Rather, it is limited to that which is reasonably necessary to promote the goals of probation. . . . 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.)

The No-Contact-With-Minors Condition

Defendant contends the probation condition ordering him not to "initiate, establish, or maintain contact with any minor, male or female, under the age of 18 years unless in the presence of a responsible adult and with prior approval of the Probation Officer" is constitutionally infirm because it lacks a scienter, or knowledge, requirement. He urges that the condition be modified to state he shall not "initiate, establish, or maintain contact with any minor, male or female, that he knows is under the age of 18 years. . . ." The Attorney General agrees the condition should be so modified, citing People v. Turner (2007) 155 Cal.App.4th 1432. In Turner, the appellate court ordered a very similar condition modified on the ground the defendant might not know an individual was under the age of 18. (Id. at pp. 1435-1436.)

We agree with the parties and order the probation condition modified accordingly.

The Not-Near-Minors Condition

Defendant similarly contends the probation condition ordering him not to "reside near, visit or be in or about parks, schools, day care centers, swimming pools, beaches, theaters, arcades or other places where children congregate without prior approval of your Probation Officer" is constitutionally deficient for lack of specificity as to what "near" means, lack of a knowledge requirement, and because it assertedly prohibits him from being in places essential to ordinary living, such as a grocery store. He suggests the specific residential distance set forth in section 3003.5 (2,000 feet) be used in place of "near" and a specific knowledge requirement be included. He urges the prohibition on visiting or being in or about "other places" where children congregate be stricken in its entirety.

The Attorney General agrees the term "near" is vague and can be replaced with the 2,000-foot distance set forth in section 3003.5. He also agrees a knowledge requirement is appropriate. He does not agree, however, that the condition is otherwise constitutionally overbroad, citing People v. Delvalle (1994) 26 Cal.App.4th 869, 878.

In Delvalle, the court upheld a probation order requiring the defendant to "`stay away from any places where minor children congregate.'" (People v. Delvalle, supra, 26 Cal.App.4th at p. 878.) The trial court then explained, "`[t]he obvious places that come to mind are elementary schools, day care, parks. [¶] Stay away from places where young children are around.'" (Ibid.) The appellate court concluded the places the trial court specifically mentioned provided sufficient examples of the kinds of places the defendant was to avoid. (Id. at p. 897; see United States v. Bee (9th Cir. 1998) 162 F.3d 1232, 1235 [upholding probation condition that defendant "`not loiter within 100 feet of school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 18'"].)

While we agree replacing "near" with 2,000 feet and including a knowledge requirement are warranted, we conclude the probation condition otherwise passes muster. If defendant is concerned he is precluded from going to a locale necessary for everyday living, such as a grocery store, laundromat, or gasoline station (none of which reasonably qualifies as a place where children congregate), he simply needs to confirm with his probation officer that his presence is permissible.

DISPOSITION

We affirm the probation condition that defendant, pursuant to section 1203.067, subdivision (b)(3), must waive "any privilege against self-incrimination" and participate in polygraph examinations as part of the sex offender management program. We order the no-contact-with-minors condition modified to read defendant is not to "initiate, establish, or maintain contact with any minor, male or female, that defendant knows is under the age of 18 years unless in the presence of a responsible adult and with prior approval of the Probation Officer." We order the not-near-minors condition modified to read defendant is not to "reside within 2,000 feet of, or visit or be in or about, parks, schools, day care centers, swimming pools, beaches, theaters, arcades, or other places where defendant knows children congregate without prior approval of defendant's Probation Officer."

Margulies, Acting P. J. and Dondero, J., concurs.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise indicated.

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