Opinion
D074801
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC DURLAND, Defendant and Appellant.
Cherise M. Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN383284) APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Reversed in part, remanded for further proceedings as necessary. Cherise M. Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Eric Durland pled guilty to one count of evading a police officer with reckless driving and admitted having personally inflicted great bodily injury upon the victim. The trial court placed Durland on formal probation for a period of three years and imposed various conditions, as well as fines and fees.
On appeal, Durland challenges four of the probation conditions, as well as the court's imposition of assorted fines and fees without first determining Durland's ability to pay those fines and fees.
With respect to the probation conditions imposed, Durland contends that the condition requiring that he submit his electronic devices to searches by his probation officer is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), pursuant to the authority of In re Ricardo P. (2019) 7 Cal.5th 1113, 1122 (Ricardo P.). Durland further contends that the electronics search condition is unconstitutionally overbroad, both facially and as applied to him. As to the condition directing Durland to report his contacts with law enforcement, Durland argues that this condition, as written, is unconstitutionally vague. Durland also contends that the condition requiring that he obtain approval from his probation officer for his residence is unconstitutionally overbroad. Finally, Durland contends that the condition requiring that he obey a curfew if directed to do so by his probation officer is invalid under Lent.
With respect to the fines and fees imposed, Durland argues that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), this court should vacate the trial court's imposition of the various fines and fees and should remand his case for an ability-to-pay hearing.
We conclude that the electronics search condition as imposed on Durland is unreasonable under Lent. However, we remand to allow the trial court an opportunity to determine whether a more narrowly tailored electronics search condition might be reasonable, given the record in this case. We reject the remainder of Durland's contentions on appeal.
We therefore reverse the judgment of the trial court only insofar as the judgment includes the current electronics search condition, and remand the matter to allow the court the opportunity to fashion a more narrowly tailored electronics search condition, if the court believes that such a condition is appropriate in this case.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because Durland pled guilty, we take the facts underlying the charges against Durland from testimony presented at the preliminary hearing.
On February 21, 2018, Durland drove a rental car from San Diego to Temecula and back to San Diego. Durland weaved in and out of traffic, driving across all the lanes, including the center divider area and right shoulder, and reached top speeds between 100 and 130 miles per hour. Temecula and San Diego Police pursued him by motorcycle and car, as well as by helicopter; Durland disregarded the police and continued driving recklessly.
When Durland was driving near Escondido, he crashed into a vehicle being driven by T.P. The collision crushed the back half of T.P.'s vehicle and caused it to roll across the lanes of the freeway. T.P. was thrown to the top of her vehicle and eventually landed on the passenger side. In the process, she suffered a fracture to her orbital floor, bruising to her eye, lacerations to her eyelids and cuts under her eyes. At the time of the preliminary hearing, T.P. was still suffering from impaired vision and numbness in her face, and continued to have limited use of her hand. B. Procedural background
On September 7, 2018, Durland pled guilty to one count of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), and admitted that he had personally inflicted great bodily injury on T.P. (Pen. Code, § 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
At sentencing, the trial court ordered Durland to serve three years of formal probation. The court also ordered that Durland serve 365 days in local custody.
Durland was given credit for 408 days in custody.
Durland filed a timely notice of appeal.
III.
DISCUSSION
A. Durland's challenges to certain conditions of probation
Durland challenges a number of the conditions of probation that the court imposed, on various, and sometimes multiple, grounds. For example, Durland challenges condition 6.n., the electronics search condition, claiming that the condition is unreasonable under Lent, as well as unconstitutionally overbroad. Durland also argues that condition 6.k., which directs him to report his contacts with law enforcement, is unconstitutionally vague. Durland further contends that condition 10.g., which requires that he obtain approval of his residence from his probation officer, is unconstitutionally overbroad. Finally, Durland contends that condition 6.e., which requires that he obey a curfew if directed to do so by his probation officer, is unreasonable and therefore invalid under Lent.
Condition 6.n. requires that Durland "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media cell phone to search at any time with or without a warrant, and with or without reasonable cause, when required by [probation officer] or law enforcement officer." The phrase "cell phone" is handwritten in a blank space on the form.
Condition 6.k. requires that Durland "[p]rovide true name, address, and date of birth if contacted by law enforcement" and to "[r]eport contact or arrest in writing to the [probation officer] within 7 days," including "the date of contact/arrest, charges, if any, and the name of the law enforcement agency."
Condition 10.g. requires that Durland "[o]btain [probation officer] approval as to" his residence.
Condition 6.e. requires that Durland "[c]omply with a curfew if so directed by the [probation officer]."
1. Condition 6.n., the electronics search condition
Again, condition 6.n. of the order of probation provides in relevant part:
"THE DEFENDANT SHALL: [¶] . . . [¶] Submit person, vehicle, residence, property, personal effects, computers, and recordable media cell phone to search at any time with or without a warrant, and with or without reasonable cause when required by [a probation officer] or law enforcement officer."
Durland contends that this electronics search condition is unreasonable under Lent and that it is also unconstitutional because it is both facially overbroad and overbroad as applied to him.
a. Additional background
At the sentencing hearing, Durland's attorney objected to the imposition of this probation condition, stating: "Mr. Durland objects to the proposed probation condition 6N . . . specifically with respect to computers, media devices, and cell phones. . . . So we are objecting to that condition on the grounds that it is unconstitutional for being overbroad, and there's no nexus to the crime. [¶] All parties will concede that this crime did not involve the use of computers, cell phones, or media devices."
In addressing Durland's objection, the trial court made the following statement:
"With regard to 6N, I am going to adopt 6N as recommended [by the probation department] and for this reason. And[,] by the way, I do not always impose 6N to include electronic devices, but in this case, given all the surrounding circumstances and the history, and in particular, concerns as regards a separate law violation that defendant was involved in, I do think that access to any technology the defendant may, in turn, access is important to ensure that proper supervision is afforded him."
Durland's attorney responded to the court's reference to "a separate law violation," indicating that he believed that the court was "referring to . . . a pending stalking case downtown." Defense counsel stated that the stalking case had not yet been adjudicated, that Durland had entered a not guilty plea, and that in defense counsel's view, there was a strong likelihood of a dismissal or acquittal. Defense counsel further argued that since that case had not yet been litigated, it would not be appropriate to impose condition 6n based on an arrest in a separate, unadjudicated case, and that if Durland were to be convicted of the charge or charges in that separate case, a court could impose condition 6n with respect to that case.
b. Analysis
We review probation conditions for an abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Trial courts have wide latitude to impose conditions consistent with the twin aims of probation: rehabilitation of the defendant with minimal risk to the community. (§ 1202.7; People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).)
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (Carbajal, supra, 10 Cal.4th at p. 1121, quoting Lent, supra, 15 Cal.3d at p. 486.)
In Lent, the Supreme Court adopted a three-part test for determining the reasonableness of a probation condition. A condition of probation will be held invalid if 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 . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) "The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a condition of probation." (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)
The electronics search condition at issue in this case satisfies the first two Lent criteria, in that there is no relationship between electronic devices and evading an officer with reckless driving, the crime for which Durland was convicted, and using electronic devices is not inherently criminal. Given that the electronics search condition satisfies Lent's first two prongs, it can be determined to be reasonable, and its imposition therefore not an abuse of the trial court's discretion, only if it regulates conduct that is reasonably related to future criminality.
Recently in Ricardo P., supra, 7 Cal.5th at page 1122, the California Supreme Court clarified that the reasonableness inquiry of Lent's third prong "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." When significant privacy interests are implicated by a probation condition (such as sweeping electronics searches without a warrant), the burden imposed by the condition on a probationer is a heavy one. A condition that imposes such a heavy burden is unreasonable unless that burden is "proportional to achieving some legitimate end of probation." (Id. at p. 1127.) As a result, reasonableness requires "more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.) Therefore, in order to justify a significantly burdensome condition, there must be a specific relationship between the condition and preventing future criminality that is grounded in the record.
In Ricardo P., a juvenile who admitted having committed a felony burglary challenged a probation condition similar to the one imposed here, i.e., a condition that permitted warrantless searches of the juvenile's electronic devices and accounts. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The trial court justified imposition of the electronics search condition on the ground that the court believed that the juvenile had himself suggested that his use of marijuana was related to the offense for which he was convicted, and also because, in the court's view, minors often brag about marijuana usage on the Internet. The court was of the view that it was important to permit the probation officer to monitor the juvenile's drug usage through searches of his electronic media and accounts. (Id. at p. 1117.)
On appeal, the juvenile challenged the electronics search condition as invalid under Lent, supra, 15 Cal.3d 481 and as unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) The Court of Appeal upheld the condition under Lent, but found that it was unconstitutionally overbroad. (Ibid.) The Supreme Court granted review on the limited question of "whether the electronics search condition imposed by the juvenile court satisfies Lent." (Ricardo P., at p. 1118.)
The Supreme Court ultimately struck the condition under Lent, finding that the condition was not reasonably related to the juvenile's future criminality because it disproportionately burdened his privacy interest without specific and substantial justification in the record. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) The Supreme Court noted that the trial court's reasoning for imposing an electronics search condition was based on a generalization that juveniles use their cell phones to purchase drugs and brag about drug use online. (Id. at p. 1119.) However, nothing in the record pertaining to the facts of the offense or the juvenile's history suggested that the juvenile had ever used an electronic device or social media in connection with illegal activity. (Id. at p. 1122.)
The Ricardo P. court did emphasize that "[i]n certain cases, the probationer's offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129, italics added.) However, in the absence of evidence that the defendant had used or was likely to use electronic devices in connection with any illegal activity, the substantial burdens imposed by an electronics search condition are not justified. (Id. at p. 1122.)
Many of the same issues that were of concern to the Supreme Court in Ricardo P. are also of concern in this case. As in Ricardo P., the electronics search condition at issue here imposes a significant burden on Durland's privacy. Although the electronics search condition in this case is not identical to the one at issue in Ricardo P., it is substantially similar. As described by the Supreme Court, the probation condition at issue in Ricardo P. was "a sweeping probation condition requiring Ricardo to submit all of his electronic devices and passwords to search at any time" (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123) and did not include any "temporal limitations, [thereby] permitting officers to access digital information that long predated the imposition of Ricardo's probation" (id. at p. 1127). The electronics search condition imposed in this case is similarly broad, in that it permits officers unfettered access to Durland's electronic devices, day or night, including access to his e-mails, text messages, search histories, and any photos and videos stored on those devices, with no temporal limitations as to what content may be monitored or searched. We therefore see no material difference between the burden imposed by the condition in this case and the substantial burden caused by the electronics search condition in Ricardo P.
Given the substantial burden imposed by the electronics search condition, the condition must serve a proportional countervailing interest. The record in this case does not demonstrate that such proportionality exists. The People argue that the electronics search condition is necessary because Durland "worked as a LYFT driver [citation], a job that required him to use his smartphone to find riders and as a GPS to navigate to [his riders'] pick up location[s] and destination[s]," and because the trial court imposed other conditions requiring that Durland surrender his driver's license and not drive a motor vehicle unless licensed and insured. According to the People, the electronics search condition would allow probation officers to determine whether Durland had "used [his phone] to drive for LYFT" and to "ensure that [Durland] was not driving and violating conditions 8g and 8i [regarding surrendering his license and driving only while licensed and insured]." The People also note that the record demonstrates that Durland was arrested and charged with stalking, and, despite conceding that the underlying facts of the alleged stalking offense do not appear anywhere in the record in this case, argue that "it is extremely likely that [Durland's] latest brush with the law involved the use of electronic devices." Finally, the People contend that general concerns about Durland's need for "close monitoring" weigh in favor of imposition of this broad electronics search condition, citing Durland's "history of drug and alcohol use" and his lack of a "stable living situation or regular employment" to support this contention.
The concerns raised by the People offer no greater connection between the use of electronic devices and Durland's current conduct or personal history than did the juvenile court's generalization in Ricardo P. that teenagers tend to brag about drug use. As Durland notes, the record of his current offense and his criminal history do not include any evidence that he has ever utilized an electronic device in committing an offense, thus indicating the absence of the necessary proportionality between the burden imposed by the broad probation condition and the legitimate interest in Durland's rehabilitation. (See Ricardo P., supra, 7 Cal.5th at p. 1122 ["Such proportionality is lacking" where "[a]s noted, nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct"].) "In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct." (Id. at p. 1123.) If generalizations about the ability to ensure a defendant's compliance with other probation conditions and all laws were sufficient to justify the substantial burdens of a broad, virtually unlimited electronics search condition such as the one imposed here, "it is hard to see what would be left of Lent's third prong." (Id. at p. 1124.) We thus conclude that the burden imposed by the sweeping, unrestricted electronics search condition in this case is substantially disproportionate to the interests that it was intended to serve. We therefore strike it.
Because we strike the electronics search condition as unreasonable under Lent, we need not consider Durland's alternative challenge to the condition on constitutional overbreadth grounds.
This is not to say, however, that the state has no legitimate rehabilitative interest in Durland's compliance with the other terms of his probation, including the restrictions on Durland's driving, or that the state would not have a substantial and legitimate interest in ensuring that Durland does not utilize his cell phone or another electronic device in committing other criminal offenses, such as the stalking offense for which Durland was arrested, if the record on remand reflects that Durland utilized an electronic device in connection with criminal activity. We therefore remand the case for the trial court to consider whether to impose a more narrowly tailored electronics search condition. (See Alonzo M., supra, 40 Cal.App.5th at p. 168 [remanding case to allow juvenile court to "impose an electronic[s] search condition that is more narrowly tailored to allowing search of any medium of communication reasonably likely to reveal whether Alonzo is associating with prohibited persons"].)
Although the probation report submitted at the time of Durland's sentencing did reveal that he had been arrested on a charge of stalking, the record in this case does not reveal any of the circumstances surrounding that charge. In the absence of any indication that electronic devices were used in the commission of that charged offense, the mere existence of that offense in the record cannot provide sufficient justification for the imposition of a burdensome electronics search condition. On remand, however, it is possible that additional information that could support the imposition of a less burdensome electronics search condition might be available. (See Ricardo P., supra, 7 Cal.5th at p. 1122 ["courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense"]; see also In re Alonzo M. (2019) 40 Cal.App.5th 156, 166 (Alonzo M.) ["there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history"].)
2. Condition 6.k., the law enforcement contacts reporting condition
Durland contends that condition 6.k. is unconstitutionally vague on its face, and therefore violates his due process rights. Condition 6.k. requires that Durland "[p]rovide true name, address, and date of birth if contacted by law enforcement" and to "[r]eport contact or arrest in writing to the [probation officer] within 7 days," including "the date of contact/arrest, charges, if any, and the name of the law enforcement agency."
Durland acknowledges that his trial counsel did not object to the imposition of condition 6.k. at the time it was imposed, but urges this court to consider the issue on the merits because he is raising a facial constitutional challenge to the condition, or, alternatively, because his trial counsel rendered ineffective assistance in failing to object.
The People concede that a claim of unconstitutional vagueness may be raised for the first time on appeal. However, they argue that Durland's contention fails on its merits.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "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." (Ibid.) Probation conditions are given " ' "the meaning that would appear to a reasonable, objective reader." ' " (In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.).)
Durland relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), in support of his argument that condition 6.k. is unconstitutionally vague. The Relkin court considered a probation condition that required the defendant "to 'report to the probation officer, no later than the next working day, any arrests or any contacts with or incidents involving any peace officer.' " (Id. at p. 1196.) The defendant argued that the phrases " 'contacts with' and 'incidents involving' peace officers are uncertain because one cannot determine whether those terms include occasional conversation[s] with a police officer who lives down the street, answering an officer's questions as a witness to a crime, or participation in a demonstration where officers are present." (Id. at pp. 1196-1197.) The defendant also contended that the condition suffered from vagueness "because it is subject to the ' "whim of any police or probation officer," ' and unconstitutionally infringes on [the defendant's] rights under the First Amendment of the United States Constitution." (Id. at p. 1197.)
The Relkin court determined that the condition was unconstitutionally vague, but only in part. Specifically, the Relkin court concluded that "the portion of the condition requiring that defendant report 'any contacts with . . . any peace officer' " was vague because it "does indeed leave one to guess what sorts of events and interactions qualify as reportable." (Relkin, supra, 6 Cal.App.5th at p. 1197.) According to the Relkin court, there could be no certainty that the condition would not be triggered "when defendant says 'hello' to a police officer or attends an event at which police officers are present, but would be triggered if defendant were interviewed as a witness to a crime or if his 'lifestyle were such that he is present when criminal activity occurs,' " as the People had argued on appeal. (Ibid.) "The language does not delineate between such occurrences and thus casts an excessively broad net over what would otherwise be activity not worthy of reporting." (Ibid.)
In contrast to the condition at issue in Relkin, condition 6.k.'s requirement that Durland "[p]rovide true name, address, and date of birth if contacted by law enforcement" would appear to a reasonable, objective reader to refer to contacts initiated by a law enforcement officer in which the officer requests such identifying information from Durland. This would not include mere greetings by law enforcement officers or conversations with officers at events attended by Durland. Further, the requirement that Durland report the "contact or arrest" and include the "name of the law enforcement agency" indicates that the interaction with a law enforcement officer must be of the type and nature that either the law enforcement officer supplied that information to Durland, or Durland was made aware of this information because the nature of the "contact" was sufficiently meaningful. This, too, indicates that a reasonable reading of the condition sufficiently delineates between casual, random interactions between Durland and law enforcement officers, including the exchanging of pleasantries, and situations in which Durland is a witness to a crime or is specifically stopped and questioned by a law enforcement officer. The mere fact that there " ' " 'may be difficulty in determining whether some marginal or hypothetical act is covered by [a condition's] language' " ' " does not render the condition "impermissibly vague." (I.V., supra, 11 Cal.App.5th at p. 261.) We therefore reject Durland's vagueness challenge to condition 6.k.
3. Condition 10.g., requiring that Durland obtain his Probation Officer's approval as to his residence
Condition 10.g. requires that Durland "[o]btain [probation officer] approval as to" his residence. Durland argues that the requirement that he obtain approval from a probation officer as to his residence is constitutionally overbroad and impermissibly infringes on his constitutional rights to travel and to free association.
The condition provides three options, each with a box next to it for the court to mark to indicate that the condition is being imposed: "residence," "employment" and "contact with your children." Only the box next to "residence" is marked on the order granting Durland formal probation.
Durland did not object to the imposition of condition 10.g. We therefore will not consider Durland's challenge to the condition to the extent that he attempts to rely on the record of conviction to assert that condition 10.g. is overbroad—i.e., we will not consider an as-applied challenge. Rather, we will consider his claim only to the extent that it may be understood as asserting that the probation condition is facially overbroad and violates fundamental constitutional rights. (Sheena K., supra, 40 Cal.4th at pp. 888-889; People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127 [forfeiture rule does not apply to defendant's contention that as a matter of law probation condition, on its face, is unconstitutionally vague and overbroad]; People v. Pirali (2013) 217 Cal.App.4th 1341, 1347 (Pirali) ["[a]lthough a probation condition may be overbroad when considered in light of all the facts, only those constitutional challenges presenting a pure question of law may be raised for the first time on appeal"].)
"If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) A constitutionally overbroad condition is one that restricts a defendant's fundamental constitutional rights to a greater degree than necessary to achieve the condition's purpose. (Olguin, supra, 45 Cal.4th at p. 384.) The overbreadth doctrine requires that probation conditions that may impinge on constitutional rights be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) " '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—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.]" (Pirali, supra, 217 Cal.App.4th at p. 1346.)
A restriction requiring that a probation officer approve a defendant's residence clearly imposes a burden on that defendant's constitutional rights to associate and his right to intrastate and interstate travel. (People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer) [probation condition requiring that probation officer approve of residence "impinges on constitutional entitlements—the right to travel and freedom of association"].) Durland relies on Bauer to argue that a probation condition that grants a probation officer unfettered discretion to approve or disapprove of a probationer's residence is facially unconstitutional.
Bauer involved a probationer's challenge to a condition nearly identical to the one at issue here; the condition required that Bauer obtain his probation officer's approval of his place of residence. (Bauer, supra, 211 Cal.App.3d at pp. 943-945.) The Bauer court struck the condition, concluding that any requirement that the defendant obtain his probation officer's approval of his residence was an "extremely broad" restriction, and was not "narrowly tailored to interfere as little as possible" with the constitutional right of travel and to freedom of association. (Id. at p. 944.) Such a condition gave the probation officer the discretionary power to prohibit the defendant from living with or near whomever the probation officer chose—i.e., it gave the probation officer "the power to banish him." (Ibid.)
To the extent that Durland's argument may be considered to be a facial challenge to the residency approval condition on overbreadth grounds, we reject this contention, and we take issue with Durland's reliance on Bauer. The Bauer court did not explain whether it was considering a facial or an as applied challenge to the residency-approval condition at issue, and there is no mention in that case whether the defendant had raised an objection to the condition in the trial court. Although the Bauer court utilized broad language, including language often used in the context of facial overbreadth analysis, to conclude that the residency-approval condition was unconstitutional in that case, it appears from the court's analysis that it made this determination only after a particularized assessment of the application of this condition to the specific circumstances of that defendant. In fact, the Bauer court's conclusory constitutional analysis followed discussion of the fact that there was "nothing in the probation report or otherwise a part of the record in this case suggesting in any way that appellant's home life (which is exemplary compared to that of most convicted felons) contributed to the crime of which he was convicted." (Bauer, supra, 211 Cal.App.3d at p. 944.) Thus, the Bauer court specifically referred to and relied on the unique factors about the defendant and the record of conviction in that case. Because of this, we are unconvinced that the Bauer court was truly considering whether this probation condition was unconstitutional in every potential application, as opposed to determining that it was unconstitutional in its application to the particular defendant in that case. For this reason, we read Bauer to hold, narrowly, that where a defendant objects to the imposition of a residency approval condition, that condition may not be constitutionally applied to a defendant where the record demonstrates that the defendant's rehabilitation would not be served by placing restrictions on his residency, given the specific nature of the offender and the nature of his offense.
Because we conclude that Bauer is not persuasive with respect to determining whether the challenged probation condition is facially overbroad, we next consider whether review of the residency approval condition in the abstract reveals that it is not sufficiently narrowly tailored to the state's legitimate purpose in imposing it. (See Sheena K., supra, 40 Cal.4th at p. 885 [appellate claim that the language of a probation condition is unconstitutionally vague or overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts"].) We conclude that the residency approval condition is not facially overbroad. It is readily apparent that this condition could be constitutionally overbroad in certain circumstances, such as the circumstances at issue in Bauer, but it is equally apparent that the condition might be entirely appropriate, and constitutional, in other circumstances.
There can be no dispute that certain probationers may require more intensive supervision and monitoring, as the specific facts of each case demand. For example, where a defendant's substance abuse contributed to his or her criminal conduct, preventing that defendant from living in a home where drugs are present and used would be a significant step toward ensuring that that defendant successfully complete probation.
Further, despite Durland's contention that the condition "gives carte blanche to the probation officer to interfere with [Durland's] familial or other significant relationships" by allowing the probation officer to disapprove of Durland's living situation "for whatever reason," a probation officer's discretion to approve a probationer's residence must be guided by the goal of reformation and rehabilitation (see People v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton)); the officer "cannot use the residence condition to arbitrarily disapprove a defendant's place of residence." (Id. at p. 996.) Indeed, courts presume that a probation officer will not withhold approval for irrational or capricious reasons, and have observed that a condition requiring probation officer approval of a probationer's residence does not, on its face, "grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order." (Id. at pp. 996-997.)
Durland argues that Stapleton, supra, 9 Cal.App.5th at page 989 "should not be followed." Durland argues that the expectation that a probation officer will "act reasonably when deciding whether to approve a residency location" is insufficient to "save the facially overbroad language of this condition." We disagree. Again, granting a probation officer the ability to reject a probationer's proposed living situation may, in many instances, be necessary to ensure the state's legitimate interest in that probationer's rehabilitation; the probation officer may be in the best position to understand the unique needs and/or particularized risks with respect to a probationer's living situation. The requirement that a probation officer act reasonably in granting or denying residency approval is sufficient to ensure that the residency approval condition is not unconstitutional on its face.
Durland also suggests that Stapleton is "distinguishable" from this case, and presumably should not be relied on (although this position is not made explicit), because Durland is "not 'a person like' " the defendant at issue in Stapleton. Durland argues that he "has no prior criminal history" and "no history of medical or mental health issues," and he cites to a number of other factors that he claims distinguish him from the defendant in Stapleton. However, the question at issue here, given Durland's forfeiture of an as-applied challenge to the residency-approval condition, is whether this condition is facially unconstitutional—i.e., is the condition unconstitutional in every potential application. In deciding this, we do not consider the record of Durland's criminality, the circumstances of his current offense, or factors related to him, uniquely. We therefore reject his attempt to distinguish Stapleton and his suggestion that this court not rely on any portion of the analysis in Stapleton.
4. Condition 6.e., regarding curfew
Durland contends that condition 6.e., which requires that he "[c]omply with a curfew if so directed by the [probation officer]," is unreasonable and therefore invalid under Lent. Like a number of the other conditions that Durland challenges on appeal, Durland did not object to this condition in the trial court. He has therefore forfeited any contention that this condition is unreasonable under Lent. (People v. Welch (1993) 5 Cal.4th 228, 230.) Further, we would also reject Durland's reasonableness challenge on its merits because the record does not demonstrate that Durland is currently subject to any curfew. His challenge to the reasonableness of this condition is, therefore, premature. If, in the future, Durland is directed by his probation officer to comply with a curfew, he may raise objections to the curfew condition at that time. B. Durland's challenge to the imposition of fines and fees without an ability-to-pay hearing
Durland argues that the trial court's imposition of several fines and fees, without first determining his ability to pay those fines and fees, violated his due process rights under the rule announced in Dueñas, supra, 30 Cal.App.5th at page 1168. Specifically, Durland contends that the court violated his due process rights by imposing a court operations assessment fee of $40, a criminal justice administration fee of $154, a $300 restitution fine along with a 10 percent county collection fee of $30, a $4 emergency medical air transportation fee, and an $820 penalty assessment, without first conducting a hearing regarding Durland's ability to pay the fines and fees.
In his opening brief on appeal, Durland also challenged the court's imposition of "a fee of $1,433 for preparation of Mr. Durland's presentence investigation report," a "monthly fee of $176 for probation monitoring," and "an attorney service fee of $570 for appointed counsel." However, in his reply brief, Durland "withdraws his arguments" as to these fees.
Durland acknowledges that his trial counsel did not object to the imposition of any of these fines or fees. He argues that any waiver or forfeiture doctrines should not apply because it would have been futile to raise this contention in the trial court since he was sentenced before the Dueñas opinion was issued. Durland argues in the alternative that this court should exercise its discretion to consider arguably forfeited issues where fundamental constitutional rights are implicated, and/or, that this court should consider the merits of the issue because his trial counsel's failure to raise the issue constituted ineffective assistance of counsel. Durland asks this court to vacate the fines and fees imposed and to remand for the trial court to conduct an ability-to-pay hearing.
1. Durland is not required to obtain a certificate of probable cause to raise his claim challenging the imposition of fines and fees without an ability to pay hearing
The People initially contend that Durland "was required to obtain a certificate of probable cause as to his challenge against the restitution fine, and his failure to do so renders his attack inoperable." According to the People, as part of the plea agreement in this case, Durland waived his right to appeal and was therefore required to obtain a certificate of probable cause in order to pursue his challenge to the imposition of the restitution fine because, at the time he signed his plea agreement, he indicated that he understood that he "must pay a restitution fine ($300 - $10,000), that [he] w[ould] also be subject to a suspended fine in the same amount, and that [he] must pay full restitution to all victims."
a. Applicable law
In People v. Patton (2019) 41 Cal.App.5th 934 (Patton) this court explained that section 1237.5 "generally prohibits appeals following pleas of guilty or no contest unless the defendant first obtains a certificate from the trial court attesting that there are reasonable grounds for the appeal." (Patton, at p. 940.) However, "a certificate is not required if the appeal is based on . . . " '[g]rounds that arose after entry of the plea and do not affect the plea's validity.' " (Ibid., quoting Cal. Rules of Court, rule 8.304(b)(4) (Rule 8.304).)
In Patton, the defendant entered into a plea agreement that provided that he agreed to waive his right to appeal " 'any sentence stipulated herein.' " (Patton, supra, 41 Cal.App.5th at p. 939.) On appeal, the defendant sought to challenge a probation condition that the trial court imposed at sentencing. (Id. at p. 937.) The Patton court rejected the People's argument that the appeal should be dismissed for lack of a certificate of probable cause. (Id. at p. 938.) In reaching this conclusion, the Patton court noted that it was undisputed that the grounds for the defendant's appeal arose " 'after entry of the plea,' " within the meaning of Rule 8.304. (Patton, at p. 938.) In addition, the Patton court rejected the People's argument that the defendant's appeal affected the validity of the plea. (Ibid.) The Patton court explained:
"In waiving his right to appeal 'any sentence stipulated herein,' Patton's plea agreement referred to the terms of the sentence that were included in the agreement itself. . . . We construe that language to apply to the specifics of the stipulated sentence specified in his plea agreement. By its terms, the scope of the waiver is limited; it did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings. ([People v.] Becerra [(2019)] 32 Cal.App.5th [178,] 188 [no certificate required '[i]f the defendant's claim is not within the scope of an appellate waiver'].) Thus, Patton's appeal in no way attacks the plea or affects its validity, and accordingly no certificate of probable cause was required. (Rule 8.304(b)(4).)" (Id. at pp. 942-943, some italics omitted.)
b. Analysis
The appellate waiver in Durland's plea agreement is materially indistinguishable from the appellate waiver at issue in Patton. In the plea agreement, Durland agreed to give up his right to appeal "denial of [his] 1538.5 motion," "issues related to strike priors," and "any sentence stipulated herein." Like the waiver at issue in Patton, Durland's waiver "did not encompass provisions . . . that were yet to be determined in future proceedings," such as the imposition of probation conditions or the imposition of fines and fees. (Patton, supra, 41 Cal.App.5th at p. 943, italics omitted.) The mere fact that Durland knew that the trial court had discretion to set the fines, fees, and assessments does not mean that he was agreeing to accept any amount that the court might set. Durland's challenge to the court's imposition of various fines and fees that were not set at the time of his wavier thus does not affect the validity of Durland's plea, and Durland was therefore not required to obtain a certificate of probable cause in order to challenge the trial court's imposition of fines and fees. (See ibid.)
2. Durland is not entitled to an ability to pay hearing
The People argue that Durland forfeited his contention that the trial court's imposition of the challenged fines and fees, without first determining Durland's ability to pay, violates his right to due process, given his failure to raise the issue in the trial court. However, because Durland has also raised a claim of ineffective assistance of counsel for his attorney's failure to object to the imposition of these fines and fees, we consider his due process contention on its merits without considering the question of forfeiture (see People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its possible forfeiture, because defendant asserted ineffective assistance of counsel]).
In Dueñas, supra, 30 Cal.App.5th at page 1168, the court held that due process precludes a trial court from "impos[ing]" certain assessments and fines when sentencing a criminal defendant, in the absence of a determination that the defendant has the "present ability to pay" those assessments and fines. Specifically, Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) "court facilities and court operations assessments" (under Pen. Code, § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under Pen. Code, § 1202.4). (Dueñas, at pp. 1164, 1167, 1172.)
More recently, however, another Court of Appeal opinion questioned whether "Dueñas's expansion of the boundaries of due process" to provide additional "protection not conferred by either [of Dueñas's] foundational pillars" is a "correct interpretation," and ultimately concluded that it is not. (People v. Hicks (2019) 40 Cal.App.5th 320, 327 (Hicks), review granted Nov. 26, 2019, S258946.) In considering the issue, the Hicks court noted that Dueñas rests on "two strands of due process precedent," (id. at p. 326) the first of which "secures a due process-based right of access to the courts," (italics omitted) and the second of which "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Id. at p. 325.) Hicks explains that neither of these strands "dictate[s]" Dueñas's result. (Id. at p. 326.)
For this reason and because Dueñas "is inconsistent with the purposes and operation of probation," (Hicks, supra, 40 Cal.App.5th at p. 327) the court in Hicks concluded that "due process does not speak to [the] issue [of how best to balance the competing interests of indigent defendants and an operable court and victim restitution system] and . . . Dueñas was wrong to conclude otherwise." (Id. at p. 329.)
We find the Hicks court's analysis of the due process issue to be persuasive, and for this reason, we adopt the holding in Hicks that "[n]either strand [of due process precedent] bars the imposition of [the] assessments and the . . . restitution fine" even as to a defendant who is unable to pay. (Hicks, supra, 40 Cal.App.5th at p. 329.)
Further, because we agree with the Hicks court that due process considerations do not require a trial court to provide a defendant with an ability to pay hearing before imposing any of the fines or fees that Durland challenges, we do not accept the People's apparent concession with respect to the legal issue of whether principles of due process preclude the imposition of certain non-punitive fees on indigent defendants. (See People v. Sanders (2012) 55 Cal.4th 731, 740 ["We decline to accept [the Attorney General's] concession].)
Specifically, in discussing the $40 court operations assessment, $30 criminal conviction assessment, and $154 criminal justice administration fee, the People state that they do not "seek to uphold the imposition of these non-punitive [fees] on those who have no ability to pay." The People, argue, however, that "[a]ny due process violation stemming from the trial court's imposition of $224 worth of non-punitive fee[s] and assessments . . . was harmless" beyond a reasonable doubt because the record "strongly suggests [Durland] has the ability to pay the non-punitive assessments in this case." We express no opinion with respect to the People's contention that the record "strongly suggests" that Durland "has the ability to pay" the nonpunitive fees.
Like the defendant in Hicks, Durland has not, to date, been denied access to the courts nor does he face incarceration as a result of the imposition of these financial obligations. No remand for an ability to pay hearing is therefore necessary.
IV.
DISPOSITION
The judgment is reversed with respect to the electronics search condition, only. We remand the matter to allow the trial court the opportunity to fashion a more narrowly tailored electronics search condition if it believes that such a condition is appropriate in this case.
AARON, J. WE CONCUR: O'ROURKE, Acting P. J. IRION, J.