People v. Forney
3 Cal. App. 5th 1091
| Cal. Ct. App. | 2016Background
- Michael Forney pleaded no contest to unlawful oral copulation and unlawful sexual intercourse and was placed on three years' formal probation under a negotiated disposition.
- Probation conditions (statutorily required under Penal Code §1203.067(b)(3)) included: waiving the Fifth Amendment privilege, participating in polygraph examinations as part of a sex offender management program, no contact with minors without probation approval, and not residing near or being at places where children congregate.
- Forney appealed, challenging the Fifth Amendment waiver/polygraph requirement and two location/contact conditions as unconstitutional or overbroad.
- The trial court had imposed polygraph testing and a mandatory Fifth Amendment waiver tied to probation; California Sex Offender Management Board (CASOMB) standards govern polygraph scope and administration.
- The Attorney General conceded modifications were appropriate for the minor-contact and residency conditions; the main contested legal question was whether the statutory Fifth Amendment waiver was coercive and whether polygraph testing (absent waiver) was permissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of compelled Fifth Amendment waiver as probation condition | AG: Statute authorizes waiver; public safety and program efficacy justify it | Forney: Waiver is coercive; violates Fifth Amendment; overbroad | Waiver stricken as unconstitutionally coercive; probation cannot require forfeiture of core Fifth Amendment right |
| Polygraph requirement (separate from waiver) | AG: Polygraphs are part of program and lawful if incriminating statements cannot be used in prosecution | Forney: Polygraph overbroad; no limits on questions; implicates Fifth Amendment | Polygraph requirement upheld without compelled waiver; permissible if incriminating answers are protected from use in criminal proceedings and CASOMB standards govern scope |
| No-contact-with-minors condition (knowledge requirement) | AG: Condition should include knowledge element to avoid penalizing unknowingly interacting with minors | Forney: Lacks scienter; may punish innocent contact | Modified to prohibit contact with minors "that defendant knows is under the age of 18" unless approved by PO |
| Residency/places-where-children-congregate condition (vagueness/scope) | AG: Replace vague "near" with 2,000-foot rule and add knowledge element; otherwise valid | Forney: "Near" is vague; lacks scienter; overbroad (bars ordinary activities) | Modified: cannot "reside within 2,000 feet of, or visit or be in or about" listed places "where defendant knows children congregate" without PO approval; otherwise upheld |
Key Cases Cited
- Minnesota v. Murphy, 465 U.S. 420 (probationer retains Fifth Amendment; State may compel answers only if statements cannot be used in criminal proceedings)
- McKune v. Lile, 536 U.S. 24 (plurality: inmate Fifth Amendment claim evaluated under compulsion balancing; certain program consequences may be permissible)
- Chavez v. Martinez, 538 U.S. 760 (majority held coercive questioning alone does not always give rise to a §1983 Fifth Amendment claim; preserves penalty-cases jurisprudence)
- Maldonado v. Superior Court, 53 Cal.4th 1112 (California: compelled mental exams permissible only if incriminating statements are immunized from use at trial unless defendant waives)
- Brown v. Superior Court, 101 Cal.App.4th 313 (polygraph testing as probation condition does not by itself violate Fifth Amendment)
- People v. Delvalle, 26 Cal.App.4th 869 (upheld stay-away orders from places where children congregate; illustrative examples can cure vagueness)