Opinion
F077344
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. PETER ANTHONY ENRIQUEZ, JR., Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Daniel B. Bernstein and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17906635)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. David Andrew Gottlieb, Judge. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Daniel B. Bernstein and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following an altercation with his girlfriend, appellant Peter Anthony Enriquez, Jr. pleaded no contest to a charge of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1). The trial court suspended imposition of judgment and sentence, and placed appellant on formal probation for three years. As a condition of probation, appellant was ordered to submit his "person, property, residence, vehicle and handheld electronic devices to search and seizure at any time of the day or night with or without a warrant by any peace officer or probation officer." (Italics added.) The court did not state the basis for the imposition of this probation condition or how it related to appellant's future criminality. Appellant did not object to this condition.
All future statutory references are to the Penal Code unless otherwise noted.
This search condition appears in an addendum initially prepared by the probation department. Based on lined out words in this addendum, it appears the trial court excluded "financial records" and "computers" from this search condition. According to the addendum, this search condition involved appellant's "handheld electronic and cellular devices[.]" The addendum also asserts a waiver of appellant's right to privacy under the California Electronic Communications Privacy Act (§ 1546 et seq.).
The court imposed the following fees and fines: a $500 domestic violence fund fee (§ 1203.097, subd. (a)(5)); a minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)); a probation revocation restitution fine of $300 (§ 1202.44, which was stayed pending successful completion of probation); a court operations assessment of $40 (§ 1465.8, subd. (a)(1)); and a criminal conviction assessment of $30 (Gov. Code, § 70373, subd. (a)(1)). The court did not ascertain appellant's ability to pay these fees, fines and assessments prior to imposing them.
The probation report also listed a $360 "probation supervision" fee; a $296 "presentence report" fee; and a $102 attorney fee (§ 987.8). At sentencing, however, the court did not impose these amounts.
A restitution fine (§ 1202.4, subd. (b)(1)) represents punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361-363.) In contrast, a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) are not considered punishments. (See People v. Alford (2007) 42 Cal.4th 749, 757 [§ 1465.8]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, § 70373].)
Appellant raises two issues. First, he contends his trial counsel rendered ineffective assistance when he failed to object to the probation condition permitting search of his electronic devices. He argues this condition infringed on his constitutional rights, and he maintains this condition does not survive scrutiny under the three-pronged test in People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded by statute as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6 (Moran). In his second claim, he relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) in arguing that some of the imposed fees, fines and assessments violate his right to due process.
In In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), our Supreme Court recently held that an electronics search condition similar to the one here was invalid under the third prong of Lent. (Ricardo P., supra, at p. 1128.) In light of Ricardo P., we strike the condition of probation that permitted warrantless searches of appellant's handheld electronic devices. However, we remand for the court to consider, consistent with Ricardo P., whether to adopt an electronics search condition.
We reject appellant's second claim. Dueñas is distinguishable from the present matter, and appellant's due process rights were not violated. We strike the disputed condition of probation and remand for further proceedings. We otherwise affirm.
BACKGROUND
Because the issues on appeal relate to sentencing, we provide only a general summary of the factual basis supporting appellant's change of plea.
Appellant and the victim were in a dating relationship. They had a child together, and they were living together. On November 11, 2017, appellant and the victim began to argue inside their residence. Officers were dispatched to that location. At the rear of the residence, officers heard a physical disturbance occurring inside the residence and someone asking for help. A male said, "Shut up," and a female said, "Stop," followed by a gurgling sound. An officer believed the male was choking the female. When officers entered the residence, they found appellant and the victim lying on a bed next to each other. The victim was crying, upset, and attempting to catch her breath. The victim claimed appellant had been choking her with two hands, which had caused her to black out. She complained of neck pain, but no injuries or red marks were observed on her neck.
DISCUSSION
I. In Light Of Ricardo P., We Strike The Electronics Search Condition Permitting A Warrantless Search But Remand For Further Proceedings.
When a sentencing court chooses to grant probation, it has broad discretion to impose conditions to foster rehabilitation and to protect public safety. (§ 1203.1.) A condition of probation must serve a purpose specified in the statute, and conditions regulating noncriminal conduct must be reasonably related either to the crime which resulted in a conviction or to future criminality. (Moran, supra, 1 Cal.5th 398, 403.) Under the three-pronged test from Lent, a probation condition will not be invalidated unless 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.) All three prongs must be satisfied before a reviewing court will invalidate a probation term. (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
An appellate court reviews the imposition of a probation condition for an abuse of discretion. (Moran, supra, 1 Cal.5th at p. 403.) We will not invalidate a probation condition unless the trial court's decision to impose it was arbitrary, capricious, and wholly unreasonable. (Ibid.)
In their respective briefing, the parties note that Ricardo P. was pending review before the California Supreme Court when this appeal was filed. Our high court has subsequently issued that opinion.
In Ricardo P., the juvenile was placed on probation after admitting two counts of felony burglary. As a condition of probation, the juvenile court required him to submit to warrantless searches of his electronic devices. (Ricardo P., supra, 7 Cal.5th at p. 1115.) Although there was no indication the juvenile used an electronic device in connection with his crimes, the court imposed the condition to monitor his compliance with separate conditions prohibiting the use or possession of illegal drugs. (Ibid.) According to the court, this was imposed "solely to enable probation officers to monitor whether [the juvenile] is communicating about drugs or with people associated with drugs." (Ricardo P., supra, 7 Cal.5th at p. 1119.)
The Ricardo P. majority held that the electronics search condition did not satisfy Lent's third prong because, on the record before it, the burden it imposed on the juvenile's privacy was substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society. (Ricardo P., supra, 7 Cal.5th at p. 1119.) Nothing in the record suggested the juvenile had "ever used electronic devices to commit, plan, discuss, or even consider unlawful use or possession of drugs or any other criminal activity. The juvenile court instead imposed drug-related conditions because of statements by [the juvenile] in the probation report that 'he wasn't thinking' when he committed the offense and that 'he stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly.' The court then added the electronics search condition based on its observation that teenagers 'typically' brag about such drug use on social media." (Ibid.) The high court concluded that this probation condition was not reasonably related to future criminality. (Id. at p. 1116.)
Our Supreme Court cited with approval various opinions from the Courts of Appeal which had recognized that "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Ricardo P., supra, 7 Cal.5th at p. 1121.) The Ricardo P. court, however, rejected the idea that a "nexus" was required between the probation condition and a defendant's underlying offense or prior offenses. Requiring such a nexus "would essentially fold Lent's third prong into its first prong." (Ricardo P., at p. 1122.) Instead, " 'conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender's precise crime' [citation] so long as they are 'reasonably directed at curbing [the defendant's] future criminality' [citation]. For example, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.]" (Ibid.)
The Ricardo P. majority stated that even a deferential review must be anchored in the record made by the lower court. (Ricardo P., supra, 7 Cal.5th at p. 1124.) The juvenile court imposed a probation condition with a "very heavy burden on privacy" based on a "very limited justification." (Ibid.) Based on this disproportion, the electronics search condition was not reasonably related to future criminality. As such, it was invalid under Lent. (Ricardo P., at p. 1124.) Although the Supreme Court found the electronics search condition invalid, it noted that its holding did not categorically invalidate electronics search conditions. (Id. at p. 1128.)
In this matter, appellant's electronics search condition cannot be upheld under either of the first two prongs of the Lent test. First, the condition has no relationship to appellant's conviction of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). There is no indication that any electronic device was involved in the commission of this crime. (Ricardo P., supra, 7 Cal.5th at p. 1119.) Second, there is nothing inherently illegal about using handheld electronic devices. (In re P.O. (2016) 246 Cal.App.4th 288, 294.) Thus, the issue turns on Lent's third prong; that is, whether this condition requires or forbids conduct which is not reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p. 486.)
A condition of probation need not be strictly tied to the offender's precise crime so long as it is reasonably directed at curbing future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1122.) This standard "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Ibid.)
An electronics search condition "significantly burdens privacy interests." (Ricardo P., supra, 7 Cal.5th at p. 1123.) Indeed, a cell phone's "immense storage capacity" means it "collects in one place many distinct types of information ... that reveal much more in combination than any isolated record." (Riley v. California (2014) 573 U.S. 373, 393-394.) "The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions[.]" (Id. at p. 394.) Cell phone users "keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate." (Id. at p. 395.)
Here, the trial court did not articulate why appellant had to submit his handheld electronic devices to warrantless searches. The court did not explain how this condition was reasonably related to future criminality. The recommendations from the probation department also do not explain why this condition was warranted. In short, this record is silent regarding how this condition satisfies the third prong of Lent. The Ricardo P. majority stated that even a deferential review must be anchored in the record made by the lower court. (Ricardo P., supra, 7 Cal.5th at p. 1124.) Because nothing in this record justifies a warrantless search of appellant's electronic devices, we strike that probation condition.
However, "the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case." (In re Sheena K. (2007) 40 Cal.4th 875, 885.) Because the court imposed this electronics search condition prior to Ricardo P., we remand this matter so the court may consider whether to adopt an electronics search condition that satisfies the guidelines set forth in Ricardo P. II. Dueñas Is Distinguishable From The Present Matter And The Trial Court Did Not Violate Appellant's Due Process Rights.
In light of our conclusion, we do not reach appellant's separate assertion that the electronics search condition is unconstitutionally overbroad.
Appellant challenges the imposition of the court operations assessment fee (§ 1465.8, subd. (a)(1)), the criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)), and the minimum $300 restitution fine (§ 1202.4, subd. (b)(1)). His claim is based on Dueñas, supra, 30 Cal.App.5th 1157. He asserts that, because the court did not conduct an ability to pay hearing, the imposition of these fees, fines and assessments violated due process. He asks that we strike these obligations until the prosecution can show he has the ability to pay.
The 2018 report from the probation department states that appellant was born in 1986 and he had fathered four children (all minors). He had a diploma from an adult school and he "plans to return to school for welding." Appellant had been unemployed for two and a half years, and he receives $581 a month in food stamps and $620 a month in cash aid. The report lists appellant's current net income as "N/A" and his physical health was described as average. Appellant reported no mental health issues. A court appointed attorney represented appellant in this matter.
In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. She had dropped out of high school because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) As a teenager, the defendant's driver's license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)
After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. The court imposed a $30 court conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150 restitution fine (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) The defendant challenged the fees and fines imposed under sections 1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The trial court rejected her constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.) On appeal, however, the Dueñas court determined that the defendant's due process rights had been infringed. According to Dueñas, an ability to pay hearing was required so the defendant's "present ability to pay" could be determined before assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, at p. 1164.) The Dueñas court also concluded that the minimum restitution fine of $150 (§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion despite section 1202.4 barring consideration of a defendant's ability to pay unless the judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that "execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
The minimum restitution fine for a misdemeanor is $150. The minimum restitution fine for a felony is $300. (§ 1202.4, subd. (b)(1).)
Nothing in these statutes authorizes a trial court to consider a defendant's ability to pay.
We find appellant's reliance on Dueñas unavailing. It is distinguishable from the present matter, and appellant's constitutional rights were not violated.
Respondent contends that appellant has forfeited his due process claims. We decline to find forfeiture in this situation. By statute, a defendant's inability to pay may not be considered when a trial court imposes a minimum restitution fine. (§ 1202.4, subd. (c).) A minimum felony restitution fine was imposed against appellant. Thus, at the time of appellant's sentencing, a due process challenge to this fine would have been effectively foreclosed. (People v. Jones (2019) 36 Cal.App.5th 1028, 1031.) "Similarly, the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments." (Id. at p. 1032.) As such, we will review the merits of appellant's claims, which we find unpersuasive.
A. Dueñas is distinguishable from the present matter.
According to the Dueñas court, the defendant lost her driver's license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.)
In contrast to Dueñas, appellant's conviction for assault by means of force likely to produce great bodily injury, and his resulting probation, were not a product of prior criminal assessments and fines. Appellant was not caught in an unfair cycle of incarceration, and he could have avoided the present conviction regardless of his financial circumstances. Dueñas is distinguishable and it has no application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928-929 [declining to apply Dueñas's "broad holding" beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 ["Dueñas is distinguishable."].)
B. The court did not violate due process.
Even if Dueñas is applicable here, we reject any argument that the trial court violated appellant's constitutional rights. The Dueñas defendant presented compelling evidence that the imposed assessments resulted in ongoing unintended punitive consequences against her. The Dueñas court determined that these unintended consequences were "fundamentally unfair" for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted that the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated that "[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that '[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.' [Citation.]" (Dueñas, supra, at p. 1171, fn. 8.)
Dueñas's conclusion in this regard has been criticized. It has been noted that "Dueñas did not involve the right to access the courts, the defendant's liberty interests, or any other fundamental right." (People v. Santos (2019) 38 Cal.App.5th 923, 938 (dis. opn. of Elia, J.).) It has also been stated that the imposition of fees, fines and assessments does not satisfy "the traditional due process definition of a taking of life, liberty or property." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, Acting P.J.).)
Both People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks) and this court's opinion in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles) have strongly criticized Dueñas's analysis. (Hicks, supra, 40 Cal.App.5th at p. 322, review granted; Aviles, supra, 39 Cal.App.5th at pp. 1059-1060.) We agree with those criticisms. (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [finding Hicks to be "better reasoned" than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at p. 928 ["In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant's ability to pay before imposing court assessments or restitution fines."].)
This court in Aviles held that, in contrast to a due process challenge, the " 'excessive fines' " clause in the Eighth Amendment to the United States Constitution was a more appropriate avenue for an indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts, Aviles found no constitutional violation for the imposition of assessments and fines imposed on a felon who, after fleeing from officers, shot and wounded two of them. (Id. at pp. 1059-1060.) Aviles also concluded that any presumed error was harmless because the felon had the ability to earn money while in prison. (Id. at pp. 1075-1077.)
The Hicks court held that, in contrast to Dueñas's application of due process, a due process violation must be based on a fundamental right, such as denying a defendant access to the courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas's analysis was flawed because it expanded due process in a manner that grants criminal defendants a right not conferred by precedent; that is, an ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325-326, review granted.) Under its facts, Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329-330.)
We reject any claim that the trial court violated due process. The fees, fines and assessment imposed against appellant do not implicate the traditional concerns of fundamental fairness. Appellant was not denied access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18-20 [due process and equal protection require a state to provide criminal defendants with a free transcript for use on appeal]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) Appellant was not incarcerated because he was unable to pay prior fees, fines or assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672-673 [fundamental fairness is violated if a state does not consider alternatives to imprisonment if a probationer in good faith cannot pay a fine or restitution]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.)
The unique concerns addressed in Dueñas are lacking here. Nothing establishes or even reasonably suggests appellant faces ongoing unintended punitive consequences. Appellant does not establish how he suffered a violation of a fundamental liberty interest. Because unintended consequences are not present, it was not fundamentally unfair for the court to impose the fees, fines and assessments in this matter without first determining appellant's ability to pay. As such, the trial court did not violate appellant's due process rights. (See People v. Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329, review granted.)
We note that the court was permitted to impose fines upon appellant following his conviction. (See, e.g., Bearden v. Georgia, supra, 461 U.S. at p. 669 [a state has a fundamental interest in "appropriately punishing persons—rich and poor—who violate its criminal laws" and poverty does not immunize a defendant from punishment].)
Respondent concedes that due process is violated when an indigent defendant is imprisoned for failure to pay a punitive fine "because the fundamental right to liberty is implicated." Respondent urges us to resolve this due process challenge using a rational basis (as opposed to strict scrutiny) analysis. We need not fully respond to respondent's position in this regard or articulate the appropriate standard of review for a due process challenge in this situation. To the contrary, appellant's due process claims are based primarily on Dueñas, which neither articulated what fundamental liberty interest was at stake nor set forth a standard of review.
Based on this record, we reject appellant's assertion that the court imposed an unauthorized sentence. The court's order did not violate appellant's constitutional rights. Accordingly, appellant's arguments are without merit, and this claim fails.
Because appellant's claim only raises due process, we do not address the excessive fines clause of the Eighth Amendment or equal protection.
DISPOSITION
We strike the condition of probation that permitted warrantless searches of appellant's handheld electronic devices. We remand this matter to the trial court for the limited purpose of permitting it to consider whether to adopt an electronics search condition consistent with Ricardo P., supra, 7 Cal.5th 1113. In all other respects, the judgment is affirmed.
/s/_________
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.