Opinion
D074777
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMORRIO TRAVIS GARNER, Defendant and Appellant.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS301208) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed. Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jamorrio Travis Garner (Appellant) of petty theft and possession of fentanyl for sale. In part, the trial court imposed a split sentence of four years in county custody—two years in physical custody followed by another two years on mandatory supervision.
On appeal Appellant raises three issues, none arising from the trial proceedings. He first contends that he received ineffective assistance from his trial attorney, because counsel failed to request for Appellant pretrial mental health diversion under Penal Code section 1001.36. Appellant argues next that, during the posttrial sentencing proceedings, the court violated his constitutional right to due process by ordering that he pay various fines, fees, and assessments without first determining whether he had the ability to pay them. Finally, Appellant argues that the terms of the electronics search condition ordered by the court posttrial as part of his mandatory supervision are unconstitutionally overbroad in violation of his due process rights.
Subsequent unidentified statutory references are to the Penal Code.
As we explain, Appellant did not meet his burden of establishing an entitlement to relief on appeal. Accordingly, we will affirm the judgment.
I. STATEMENT OF THE CASE
In an August 2018 amended information, the People (Respondent), through the district attorney, charged Appellant with robbery (§ 211; count 1); possession of a controlled substance, viz., fentanyl, for sale (Health & Saf. Code, § 11351; count 2); and simple possession of a controlled substance, viz., fentanyl (Health & Saf. Code, § 11350, subd. (a); count 3), as a lesser-included offense of count 2. Respondent further alleged that Appellant committed count 1 while on felony probation (§ 1203, subd. (k)).
At trial, the jury returned verdicts of not guilty of robbery (count 1); guilty of petty theft (§ 484), as a lesser included offense of robbery (count 1); and guilty of possession for sale of a controlled substance (count 2).
The parties do not tell us what happened to count 3, possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The clerk's transcript indicates that the verdict form was "not used"; and we note that the crime charged in count 3 was a lesser included offense of count 2, possession of a controlled substance for sale, for which the jury returned a guilty verdict.
In September 2018, the trial court imposed the following sentence on Appellant: time served on count 1; a four-year split term on count 2—two years in county jail followed by two years of mandatory supervision; and imposition of various statutory fines, fees, and assessments. At the time of sentencing, the court also entered a written order which directed more than 30 conditions for the two years of mandatory supervision.
Appellant timely appealed in October 2018.
The parties agree that, in June 2019, the trial court revoked Appellant's mandatory supervision and remanded him to custody.
II. STATEMENT OF FACTS
Because Appellant raises on appeal only issues related to pretrial diversion and sentencing, we present a limited factual background related to the conviction.
In April 2018, Appellant selected three bottles of liquor from the liquor counter of a convenience market in Chula Vista. As the store manager walked with Appellant to the cash register, Appellant pushed him aside, causing the manager to fall to the ground. Appellant left the store without paying for the liquor and was driven away in a car that was waiting for him.
Approximately six weeks later, Chula Vista police arrested Appellant. A search of Appellant's backpack revealed marijuana, fentanyl pills, tramadol pills, a digital scale, empty plastic bags, and cash.
III. DISCUSSION
On appeal Appellant raises three issues: (1) whether Appellant received ineffective assistance from his trial attorney, because counsel failed to request that the court order pretrial mental health diversion under section 1001.36; (2) whether the trial court erred in ordering, as part of Appellant's sentence, various fines, fees, and assessments without first determining whether Appellant had an ability to pay them; and (3) whether the terms of an electronics search condition ordered by the court as part of Appellant's mandatory supervision are unconstitutionally overbroad. Appellant has not met his burden on appeal of establishing reversible error as to any of the three issues, because, as we explain post: (1) the record in this direct appeal will not support a ruling that trial counsel's representation of Appellant was constitutionally deficient; (2) by failing to object at the time of sentencing, Appellant forfeited appellate review of potential error associated with the fines, fees, or assessments; and (3) because the trial court revoked Appellant's mandatory supervision, issues associated with the electronics search condition of the mandatory supervision are moot. A. On the Present Record, Appellant Has Not Shown That His Trial Attorney Rendered Constitutionally Ineffective Assistance
1. Additional Facts
More than two months before the commencement of Appellant's trial, section 1001.36 became effective. For certain defendants, it authorizes pretrial diversion into mental health treatment programs in lieu of criminal prosecution. (See pt. III.A.2., post.)
Appellant contends that, by failing to request section 1001.36 pretrial diversion prior to trial, his trial attorney did not effectively represent him. Respondent counters by arguing that Appellant did not meet his burden of showing either that trial counsel's performance was deficient or that Appellant was prejudiced by trial counsel's performance.
Respondent also argues that, because Appellant failed to request the pretrial diversion prior to sentencing, Appellant forfeited any right he may have had to ask us to order the trial court to consider a section 1001.36 pretrial diversion request. Since we will not be reaching the merits of Appellant's claim that his trial attorney ineffectively assisted him with regard to possible pretrial diversion (see pt. III.A.3., post), there is no need to—and we do not—express an opinion as to Respondent's forfeiture argument.
2. Law
a. Pretrial Diversion
Effective June 27, 2018, the Legislature added sections 1001.35 and 1001.36, which promote and authorize trial courts to grant "pretrial diversion" to defendants diagnosed with qualifying mental disorders. (Stats. 2018, ch. 34, § 24.) In this context, " 'pretrial diversion' means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment . . . ." (§ 1001.36, subd. (c).) Section 1001.36, subdivision (a) permits a trial court, after considering the parties' positions, to "grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in paragraph (1) of subdivision (b)."
Effective January 1, 2019, the Legislature amended section 1001.36 to prohibit its use in cases involving various violent crimes, none of which are at issue in this appeal. (Stats. 2018, ch. 1005, § 1.)
Section 1001.36, subdivision (b)(1) sets forth six requirements that must be satisfied for a defendant to be eligible for mental health diversion. First, the trial court must be "satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders[.]" (§ 1001.36, subd. (b)(1)(A).) Second, the trial court must be "satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense." (§ 1001.36, subd. (b)(1)(B).) Third, "a qualified mental health expert" must provide an opinion that "defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment." (§ 1001.36, subd. (b)(1)(C).) Fourth, subject to certain exceptions related to the defendant's competence, the defendant must consent to diversion and waive the right to a speedy trial. (§ 1001.36, subd. (b)(1)(D).) Fifth, the defendant must "agree[] to comply with treatment as a condition of diversion." (§ 1001.36, subd. (b)(1)(E).) Finally, the court must be "satisfied that the defendant will not pose an unreasonable risk of danger to public safety . . . if treated in the community." (§ 1001.36, subd. (b)(1)(F).)
If a defendant meets these eligibility requirements, the trial court may order pretrial diversion into an approved treatment program. (§ 1001.36, subd. (c)(1).) The criminal proceedings against the defendant may be diverted "no longer than two years." (§ 1001.36, subd. (c)(3).) If the defendant "has performed satisfactorily in diversion," then, at the end of the diversion period, "the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion," and "the arrest upon which the diversion was based shall be deemed never to have occurred, and . . . access to the record of the arrest [shall be ordered] restricted[.]" (§ 1001.36, subd. (e).)
b. Ineffective Assistance of Counsel
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215, citing Strickland v. Washington (1984) 466 U.S. 668, 684 (Strickland).) This right entitles the defendant "not to some bare assistance but rather to effective assistance." (Ledesma, at p. 215; accord, Strickland, at p. 686.)
In asserting a claim of ineffective assistance of counsel, an aggrieved defendant "must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Kipp (1998) 18 Cal.4th 349, 366, italics added, quoting Strickland, supra, 466 U.S. at p. 686.) With regard to counsel's performance, to establish ineffective assistance based only on the trial record (i.e., on direct appeal, as opposed to habeas corpus proceedings), "the defendant must show '(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.' " (People v. Hoyt (2020) 8 Cal.5th 892, 985 (Hoyt).) With regard to prejudice, the defendant must show "a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (People v. Centeno (2014) 60 Cal.4th 659, 676 (Centeno), quoting Strickland, at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
If the defendant is unable to establish both deficient performance and prejudice, " 'we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' " (Centeno, supra, 60 Cal.4th at pp. 674-675.)
3. Analysis
Relying on what he calls "the public record in this matter," Appellant contends that, based on "information about [Appellant's] drug abuse, . . . it cannot reasonably be disputed that [Appellant] was suffering from a mental health disorder at the time he committed the offenses and that his disorder was a significant factor in the commission of the offenses." Because section 1001.36 was in effect prior to the commencement of Appellant's trial and because, according to Appellant, "he would have benefitted from being sent to treatment," Appellant argues that his trial attorney's performance was constitutionally deficient by failing to request diversion under section 1001.36.
Appellant first directs us to the probation officer's report, prepared in September 2018 for purposes of sentencing, which reflects the officer's summary of what Appellant told the officer in a video conference regarding Appellant's drug use. Notably, none of the information provided by Appellant—on which Appellant relies in this appeal—has been verified. The probation officer's report also identifies prior offenses, which include drug- and nondrug-related offenses. In total, they resulted in at least six different cases (with more than 25 counts), more than a year in jail, and multiple instances of revocations of earlier probations—all within three years of the judgment underlying the present appeal, at a time when Appellant was between 18 and 20 years of age.
Appellant next directs us to letters from Appellant's mother, two aunts, and an uncle, submitted to the court in September 2018, requesting leniency in sentencing.
Finally, Appellant relies on the "nature of the offenses in this matter," for which Appellant suggests without evidence that "[Appellant's] substance abuse played a significant factor."
In this direct appeal, we are unable to reach the merits of Appellant's arguments.
The record is silent as to why Appellant did not pursue pretrial diversion under section 1001.36. Although he contends that the record discloses trial counsel had no rational tactical purpose for not requesting pretrial diversion under section 1001.36 and there is no other satisfactory explanation for failing to request pretrial diversion (see Hoyt, supra, 8 Cal.5th at p. 985; Centeno, supra, 60 Cal.4th at p. 675), we disagree. For example, trial counsel may have conferred with Appellant and learned Appellant was unwilling to consent to the treatment required by section 1001.36. Alternatively, trial counsel may have investigated the facts and concluded there was insufficient evidence to support one or more of the many requirements for pretrial diversion. Another possibility is that counsel knew that, just two years earlier, Appellant failed to comply with a diversion program in a previous case. Given the multiple, potentially valid reasons why Appellant's trial counsel might not have raised the issue of pretrial diversion in the trial court—and the examples above are not the universe of possibilities—we cannot conclude on the silent record that Appellant's trial counsel was ineffective.
Section 1001.36 requires the defendant to both "consent[] to diversion" and "comply with treatment." (§ 1001.36, subd. (b)(1)(D), (E).) Here, Appellant affirmatively told the probation officer that he did not have "any psychological problems."
Section 1001.36 requires a "qualified mental health expert" to opine that "the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment." (§ 1001.36, subd. (b)(1)(C).) As we noted ante, however, the record indicates that Appellant believes he does not have a mental disorder.
In any event, even if we were to reach the merits of Appellant's argument, the result would be no different, because Appellant has not established prejudice. Since the record contains no evidence from a qualified mental health expert, section 1001.36 cannot provide relief. (E.g., § 1001.36, subd. (b)(1)(C).) Without the potential for an application of section 1001.36, there is no possibility that the result (i.e., a trial without diversion) would have been different (i.e., diversion and dismissal of the charges) had trial counsel requested relief under section 1001.36 on this record.
For the foregoing reasons, Appellant has not met his burden of establishing ineffective assistance of counsel in this direct appeal. B. Appellant Forfeited Appellate Review of Potential Error Associated With the Fines, Fees, and Assessments Ordered
1. Additional Facts
In this appeal from the judgment, Appellant challenges the trial court's imposition, as part of his sentence, of: a restitution fine of $1500 (§ 1202.4); a suspended mandatory supervision revocation fine of $1500 (§ 1202.45); a drug program fee of $615 (Health & Saf. Code, § 11372.7); a lab analysis fee of $205 (Health & Saf. Code, § 11372.5); a criminal justice administration fee of $154 (Gov. Code, § 29550); a court operations assessment of $80 (§ 1465.8); and a conviction assessment of $60 (Gov. Code, § 70373) (together, Fines, Fees, and Assessments).
In his opening brief on appeal, Appellant mentions this restitution fine under a point heading that reads, "Execution of the restitution fine should be stayed due to [Appellant's] indigence at the time of sentencing." (Italics added; holding omitted.) Nonetheless, both parties have briefed their positions on the merits of the imposition of the fine, not just whether its enforcement should be stayed. Thus, we will proceed with the understanding that Appellant is challenging and Respondent is supporting both the imposition of the fine and the trial court's failure to have stayed it.
Appellant has not challenged the $39 theft fine (§ 1202.5) ordered with the other Fines, Fees, and Assessments.
Relying principally on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Appellant contends that, in imposing the Fines, Fees, and Assessments without first determining whether he had the ability to pay them, the trial court violated his constitutional right to due process. In the alternative, Appellant suggests that, by failing to object in the trial court to the imposition of the Fines, Fees, and Assessments at or before the time of sentencing, trial counsel provided constitutionally deficient assistance. In response, Respondent presents both procedural and substantive arguments, including specifically that, by failing to object in the trial court, Appellant forfeited appellate court consideration of his substantive arguments in the first instance.
Late last year, the Governor vetoed Assembly Bill No. 927 (2019-2020 Reg. Sess.), which required a hearing on a defendant's ability to pay fines, fees, and assessments. (Assem. Bill No. 927 (2019-2020 Reg. Sess.).) In his veto message, the Governor "support[ed] th[e] bill's intent . . . . [to] tackle the issue of burdensome fines, fees and assessments that disproportionately drag low-income individuals deeper into debt," but believed the issue needed to be addressed in the budget process to "ensur[e] adequate funding for courts and victims' compensation." (Governor's veto message to Assem. on Assem. Bill No. 927 (Oct. 9, 2019) Recess J. No. 14 (2019-2020 Reg. Sess.) p. 3651.)
As we explain, Appellant forfeited his appellate arguments because he failed to timely object in the trial court at the time of sentencing. On that basis, we will conclude that Appellant did not establish reversible error in imposing the Fines, Fees, and Assessments without reaching the merits of the substantive arguments Appellant raises in his appeal. As we further explain, on the present record, Appellant did not establish that trial counsel rendered constitutionally ineffective assistance in failing to object.
2. Law & Analysis
Initially and importantly, there is no dispute: At the time of his sentencing, Appellant neither objected to the Fines, Fees, and Assessments nor requested an ability-to-pay hearing.
In Dueñas, at the sentencing hearing, the defendant objected to the trial court's imposition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $150 restitution fine (§ 1202.4) on the basis that she was unable to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) In support of her objection and related request to hold an inability-to-pay hearing, the defendant presented evidence that she was a probationer who suffered from cerebral palsy and was indigent, homeless, receiving public assistance, and the mother of young children. (Ibid.) The trial court overruled the defendant's objection, ruling that (1) the $30 court facilities assessment and the $40 court operations assessment were both mandatory, regardless of the defendant's inability to pay them, and (2) the defendant had not made the " 'compelling and extraordinary' " showing under section 1202.4, subdivision (c), to justify waiving the $150 restitution fine. (Dueñas, at p. 1163.) In particular, the trial court rejected the defendant's constitutional arguments "that due process and equal protection required the court to consider her ability to pay these fines and assessments[.]" (Ibid.)
The appellate court reversed. (Dueñas, supra, 30 Cal.App.5th 1157.) As potentially applicable in the present appeal, Dueñas concluded that, for purposes of the restitution fine, "section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum"; however, "the execution of any restitution fine imposed under this statute [(§ 1202.4)] 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.) For purposes of the assessments, Dueñas concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments" under section 1465.8 and Government Code section 70373, respectively. (Dueñas, at p. 1164.)
Although the applicability of Dueñas has been the subject of many opinions since its filing last year, because we are deciding this appeal on forfeiture grounds, we express no view as to substantive rulings in Dueñas or the more recent opinions, except to the extent they provide guidance on the issue of forfeiture.
In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), the appellate court applied Dueñas to a defendant who had been assessed various court fees and the statutory minimum restitution fine. (Id. at pp. 488-489.) Castellano embraced the application of the forfeiture rule, explaining that a defendant must "in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Id. at p. 490.) However, in that case, the court declined to deem the defendant's failure to object to the fine and fees a forfeiture because, at the time of the defendant's sentencing, Dueñas was "a newly announced constitutional principle that could not reasonably have been anticipated[.]" (Castellano, at p. 489; accord, People v. Taylor (2019) 43 Cal.App.5th 390, 397, 399 (Taylor) [no forfeiture as to operations and facilities fees, because " 'Dueñas was unforeseeable' "; but forfeiture as to restitution fine based on language of § 1202.4 (see fns. 14 & 15, post)]; People v. Belloso (2019) 42 Cal.App.5th 647, 654-655 [same court as Dueñas and Castellano]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson) [rejecting a forfeiture; "we are hard-pressed to say [the Dueñas] holding was predictable and should have been anticipated"].)
Castellano, supra, 33 Cal.App.5th 485, was published less than three months after Dueñas, supra, 30 Cal.App.5th 1157, and both opinions were filed by the same division of the same appellate district.
In People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), the court took a different approach on forfeiture. There, the trial court imposed the statutory maximum restitution fine under section 1202.4 ($10,000) and various assessments (totaling $120). (Frandsen, at p. 1153.) Contrary to Castellano, the appellate court rejected the defendant's contention that an objection would have been futile, expressly disagreeing with Castellano's suggestion that the rulings in Dueñas " 'could not reasonably have been anticipated.' " (Frandsen, at p. 1154, quoting Castellano, supra, 33 Cal.App.5th at p. 489.)
As Frandsen explains, "Dueñas applied law that was old, not new." (Frandsen, supra, 33 Cal.App.5th at p. 1155.) "Dueñas was foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied 'the Griffin-Antazo-Bearden analysis,' which flowed from Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas opinion likewise observed ' "[t]he principle that a punitive award must be considered in light of the defendant's financial condition is ancient." (Adams v. Murakami (1991) 54 Cal.3d 105, 113.) The Magna Carta prohibited civil sanctions that were disproportionate to the offense or that would deprive the wrongdoer of his means of livelihood. [Citation.]' (Dueñas, supra, 30 Cal.App.5th at p. 1169.)" (Frandsen, at pp. 1154-1155.)
Section 1202.4, subdivision (b) expressly requires the sentencing court to impose a restitution fine in an amount not less than $300 and not more than $10,000 in every felony conviction, unless the court finds "compelling and extraordinary reasons for not doing so." In the present appeal, as in Frandsen, supra, 33 Cal.App.5th at page 1154, the trial court imposed a section 1202.4 restitution fine above the minimum. Although section 1202.4, subdivision (c) provides that a defendant's inability to pay is not a "compelling and extraordinary reason not to impose a restitution fine," a defendant's inability to pay may be considered " 'in increasing the amount of the restitution fine in excess of the minimum fine [of $ 300].' " (See Frandsen, at p. 1154.) As to this latter standard—which applied to the trial court's imposition of Appellant's section 1202.4 restitution fine here—"[a] defendant shall bear the burden of demonstrating his or her inability to pay." (§ 1202.4, subd. (d), italics added.) For this reason, we agree with the Frandsen court's observation and conclusion: "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (Frandsen, at p. 1154, italics added.)
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b).)
The restitution fines in Castellano and Johnson were the statutory minimum. (Castellano, supra, 33 Cal.App.5th at p. 488; Johnson, supra, 35 Cal.App.5th at p. 138, fn. 5.) Thus, the trial courts in Castellano and Johnson lacked statutory authorization to consider the respective defendant's inability to pay. (§ 1202.4, subd. (c) ["Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine"; italics added].) For this reason, neither Castellano nor Johnson provides guidance on the issue of forfeiture where, as here, the section 1202.4 restitution fine is greater than the statutory minimum. In contrast, in Taylor, because of the statutory language of section 1202.4, the court reached a different result as to the forfeiture of appellate arguments related to the restitution fine (forfeiture based on § 1202.4; award affirmed) and arguments related to operations and facilities fees (no forfeiture; awards reversed). (Taylor, supra, 43 Cal.App.5th at p. 399.)
Late last year, the Supreme Court granted review as to the following two issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
This is not a new concept. More than a decade ago, in People v. Avila (2009) 46 Cal.4th 680 (Avila), the Supreme Court was faced with a defendant who argued on appeal that the trial court erred by imposing the statutory maximum restitution fine under former section 1202.4 "without considering his ability to pay." (Avila, at p. 728.) Our high court ruled that the defendant forfeited his claim of sentencing error by failing to object at the time of judgment. (Id. at p. 729 ["Had defendant brought his argument to the court's attention, it could have exercised its discretion and considered defendant's ability to pay, along with other relevant factors, in ascertaining the fine amount."].) This forfeiture rule has been followed consistently. (People v. Nelson (2011) 51 Cal.4th 198, 227 ["defendant forfeited this claim [that the trial court erred by not considering his ability to pay the section 1202.4 restitution fine] by failing to object at his sentencing hearing"]; People v. Gamache (2010) 48 Cal.4th 347, 409 [same]; see People v. Trujillo (2015) 60 Cal.4th 850, 858 [the defendant has the burden "to assert noncompliance with section 1203.1b [fees for costs of probation] in the trial court as a prerequisite to challenging the imposition of probation costs on appeal"]; People v. Aguilar (2015) 60 Cal.4th 862, 864 ["defendant's failure to challenge the fees in the trial court [for probation costs (§ 1203.1b) and reimbursement of fees paid to appointed counsel (§ 987.8)] precludes him from doing so on appeal"]; People v. McCullough (2013) 56 Cal.4th 589, 591 ["a defendant who fails to contest the [ability to pay a Government Code section 29550.2, subdivision (a)] booking fee when the court imposes it forfeits the right to challenge it on appeal"].)
"[F]ormer section 1202.4 contained language regarding a trial court's consideration of the defendant's ability to pay similar to that contained in the current statute." (Avila, supra, 46 Cal.4th at p. 729.)
Indeed, in a case similar to Appellant's, we recently held that "even if Dueñas was unforeseeable . . . [, the defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object" at the time of sentencing. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), italics added; accord, People v. Smith (2020) 46 Cal.App.5th 375, 395; People v. Abrahamian (2020) 45 Cal.App.5th 314, 338; People v. Lowery (2020) 43 Cal.App.5th 1046, 1054; People v. Keene 43 Cal.App.5th 861, 863-864 (Keene); Taylor, supra, 43 Cal.App.5th at pp. 399-400 [as to restitution only, but not as to challenged fees]; People v. Hicks (2019) 40 Cal.App.5th 320, 328, fn. 3, review granted Nov. 26, 2019, S258946; People v. Ramirez (2019) 40 Cal.App.5th 305, 312 (Ramirez); People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41 (Jenkins), review granted Nov. 26, 2019, S258729; People v. Torres (2019) 39 Cal.App.5th 849, 860; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.) We follow these cases here in concluding that Appellant also forfeited any ability-to-pay argument as to the section 1202.4 restitution fine of $1500—both its imposition by the trial court and Appellant's requested stay of enforcement on appeal (see fn. 9, ante)—by failing to object prior to entry of judgment.
We also apply the forfeiture doctrine to Appellant's belated objections to the Fines, Fees, and Assessments other than the section 1202.4 restitution fine. As we explained ante, Appellant was required to create such a record with regard to his alleged inability to pay the section 1202.4 restitution fine in order to avoid the forfeiture; and, had he done so, presumably the record would have contained evidence that also addressed his ability to pay the remaining Fines, Fees, and Assessments, thereby preserving the issue for appellate review. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033; Jenkins, supra, 40 Cal.App.5th at pp. 40-41, review granted; see generally Keene, supra, 43 Cal.App.5th at pp. 863-864; Ramirez, supra, 40 Cal.App.5th at p. 312.)
We reject Appellant's contention that raising such an objection would have been futile. Appellant was not precluded from arguing an inability to pay at the time of sentencing. Just as the defendant in Dueñas did in the face of some of the same assessments (Dueñas, supra, 30 Cal.App.5th at p. 1162 [§ 1465.8 court operations assessment; Gov. Code, § 70373 conviction assessment]) Appellant could have—and should have—made a record at the time of sentencing by presenting objections and/or requesting an ability-to-pay hearing.
We also reject Appellant's contention that, because we have determined that Appellant forfeited appellate consideration of his ability-to-pay due process arguments, his trial attorney provided constitutionally ineffective assistance by failing to object. With the record in the present appeal, Appellant is unable to establish either counsel's deficient performance or prejudice. As to deficient performance, Appellant cannot establish that the record either: " 'affirmatively discloses' " that trial counsel " 'had no rational tactical purpose' " in failing to object; indicates that " 'counsel was asked for a reason and failed to provide one' "; or supports the legal conclusion that there is " 'no satisfactory explanation' " for counsel's failure to object. (Hoyt, supra, 8 Cal.5th at p. 985.) To the contrary, at the time of sentencing, the record discloses that Appellant "supported himself[,] . . . denied any debts[, and] . . . will inherit $200,000 - $300,000" within three months of the sentencing. (Italics added.) With these facts before the court, counsel's tactic may have been to focus on other sentencing issues. Likewise, as to prejudice, Appellant cannot establish on the present record that, had trial counsel objected, there is a probability of a different result sufficient to undermine confidence in the outcome. (See Strickland, supra, 466 U.S. at p. 694.) With a statement by Appellant that he would inherit at least $200,000 within three months of sentencing, our confidence in the outcome is not undermined by the court's order that he pay a total of $4,114 in Fines, Fees, and Assessments. C. Appellant's Challenge to the Electronics Search Condition of His Mandatory Supervision is Moot
We incorporate by this reference the legal authorities set forth at part III.A.2.b., ante, entitled "Ineffective Assistance of Counsel."
Once again, where, on direct appeal, counsel's trial tactics cannot be eliminated as a basis for failing to object, the defendant's "claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Hoyt, supra, 8 Cal.5th at p. 985.)
The $4,114 amount includes a $1,500 mandatory supervision revocation restitution fine that was suspended so long as Appellant's mandatory supervision was not revoked. (§ 1202.45, subd. (b).)
1. Additional Facts
In part, the trial court sentenced Appellant to a four-year split term—i.e., two years in county jail followed by two years of mandatory supervision. (§ 1170, subd. (h).) Among the more than 30 conditions of mandatory supervision ordered, the court required that Appellant "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media . . . to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer" (electronics search condition). In their respective merits briefs on appeal, Appellant argues that the electronics search condition is unconstitutionally overbroad, and Respondent presents procedural and substantive opposition to Appellant's argument.
In response to a question in our request for supplemental briefing, counsel for Appellant and counsel for Respondent each advised the court that Appellant's challenge to the electronics search condition had become moot. According to counsel, Appellant's mandatory supervision has been revoked, and he is serving the remainder of his four-year term in custody.
2. Law & Analysis
" ' "[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [the appellant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal" ' as moot." (People v. DeLeon (2017) 3 Cal.5th 640, 645 (DeLeon).) That is because, " ' "[a]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events." ' " (People v. Gonzalez (2017) 7 Cal.App.5th 370, 380, disapproved on another ground in DeLeon, at p. 646.)
We agree with the parties that, since Appellant's mandatory supervision has been revoked, any issues on appeal related to this portion of his sentence are moot. Stated differently, because Appellant is no longer subject to mandatory supervision, there is no justiciable controversy related to the electronics search condition, and a ruling on the validity of that condition will neither have a practical effect nor provide any effective relief. Having reached and decided other issues in this appeal, however, we will not dismiss the appeal. (E.g., DeLeon, supra, 3 Cal.5th at p. 645.) Instead, we proceed to disposition without reaching the merits of any issues challenging the electronics search condition.
Although there are situations in which appellate courts have the discretion to consider moot issues (DeLeon, supra, 3 Cal.5th at p. 646), neither party has suggested any reason to do so here.
IV. DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. AARON, J.