Opinion
D075008
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL GONZALES, Defendant and Appellant.
Matthew R. Garcia, 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, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN391953) APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. Matthew R. Garcia, 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, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General for Plaintiff and Respondent.
After a domestic violence incident, Rafael Gonzales pled guilty to one count of felony false imprisonment (Pen. Code, §§ 236, 237, subd. (a)). The trial court ordered him to serve 180 days in local custody, placed him on three years of formal probation, and imposed various fines and fees. As a condition of probation, the trial court ordered Gonzales to submit to warrantless searches of his computer and cell phone. On appeal, Gonzales challenges as unconstitutionally overbroad the electronics search condition, and argues under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) that his constitutional rights were violated when the trial court imposed fines and fees without assessing his ability to pay them. We reject Gonzales's contentions and affirm the judgment.
Unless otherwise specified, statutory references are to the Penal Code.
FACTS
The probation officer's report prepared in anticipation of sentencing describes the domestic violence incident. On October 10, 2018, 25-year-old Gonzales texted his former girlfriend, M., and arranged to meet her outside a convenience store. After M. got into his car to talk, Gonzales drove away despite M.'s requests to stop the car. Gonzales drove at "extreme speeds" while "swerving on the road" as M. repeatedly asked him to stop and let her out of the car. At one point, M. opened the door while the vehicle was in motion, but Gonzales increased his speed, preventing her from leaving the vehicle. M. texted her sister, who was at the convenience store with her boyfriend; they got in their own vehicle and pursued Gonzales. When Gonzales noticed the vehicle following him, he slammed on his brakes, causing a collision which resulted in significant damage to both vehicles. After the collision, Gonzales fled the scene. When he eventually returned, police arrested him.
Initially, Gonzales was charged with one felony count of kidnapping (Pen. Code, § 207, subd. (a)), and one misdemeanor count of hit and run driving (Veh. Code, § 20002, subd. (a)). The complaint was subsequently amended to include an additional felony count of false imprisonment (Pen. Code, §§ 236, 237, subd. (a)). Gonzales entered a guilty plea to the false imprisonment count, admitting that he unlawfully violated the personal liberty of another by violence, menace, fraud, or deceit (Pen. Code, §§ 236, 237, subd. (a)). The remaining charges were dismissed.
At sentencing, the trial court placed Gonzales on three years of formal probation and ordered him to serve 180 days in local custody, with 100 days credit for time served. The trial court issued an order requiring Gonzales to comply with various conditions of probation, including a requirement that Gonzales submit his "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." As relevant here, the trial court imposed a $40 court operations assessment (Pen. Code, § 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $154 criminal justice administration fee (Gov. Code, § 29550), a $500 domestic violence fund fee (Pen. Code, § 1203.097), and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)).
DISCUSSION
I.
Electronics Search Condition
Gonzales argues the electronics search condition is unconstitutionally overbroad on its face. Although Gonzales did not object to the probation condition as facially overbroad in the trial court, he may raise this argument for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 880, 888-889 (Sheena K); People v. Smith (2017) 8 Cal.App.5th 977, 987.) The facial constitutionality of a probation condition is subject to de novo review. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
At sentencing, Gonzales did not make the specific objection he raises on appeal; he objected generally to the electronics search condition as "unconstitutional."
Gonzales did not obtain a certificate of probable cause before filing this appeal. The Attorney General concedes, and we agree, that a certificate of probable cause was not necessary here because Gonzales's claim does not fall within the scope of the appellate waiver contained in his plea agreement. "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.' " (People v. Patton (2019) 41 Cal.App.5th 934, 940 (Patton), quoting Cal. Rules of Court, rule 8.304(b)(4).) Under Gonzales's plea agreement, as relevant here, Gonzales waived the right to appeal "any sentence stipulated herein." The scope of this language does not extend to a probation condition, such as the electronics search condition here, which was imposed at a future proceeding arising after entry of the defendant's plea. (Patton, at pp. 942-943.) Because Gonzales's appeal does not challenge the plea or affect its validity, he was not required to obtain a certificate of probable cause. (Ibid.)
"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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.); see Sheena K., supra, 40 Cal.4th at p. 890.) In the context of a facial challenge, our review of this issue is strictly legal. "A facial challenge 'does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts.' [Citation.] The claim is that a condition cannot have any valid application, without relying on any facts in the sentencing record." (Patton, supra, 41 Cal.App.5th at p. 946.)
The claim that an electronics search condition cannot have any valid application is not persuasive. Although it considered the issue in a different context, our Supreme Court in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) refused to categorically reject electronics search conditions in all circumstances: "Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile 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." (Id. at pp. 1128-1129.) In one opinion cited with approval by our Supreme Court, a broad electronics search condition was upheld against an overbreadth challenge. (People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1172, 1175 [affirming condition requiring probationer to " 'provide all passwords to any electronic devices, including cell phones, computers or notepads, within your custody or control, and submit such devices to search at any time without a warrant by any peace officer' "]; see Ricardo P., at p. 1129.) We therefore cannot say that a probation condition allowing the search of a probationer's computers and recordable media is not sufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (See Patton, supra, 41 Cal.App.5th at p. 947 [concluding that an electronics search condition that was substantively similar to the condition imposed in this case was not unconstitutionally overbroad on its face].)
The Ricardo P. court addressed the question of whether an electronics search condition satisfied the third prong of the test in People v. Lent (1975) 15 Cal.3d 481. (Ricardo P., supra, 7 Cal.5th at p. 1116.) Gonzales has not challenged the electronics search condition under People v. Lent.
The probation condition in Patton required the defendant to " 'submit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices 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.' " (Patton, supra, 41 Cal.App.5th at p. 939.)
Gonzales relies on the United States Supreme Court's decision in Riley v. California (2014) 573 U.S. 373 to contend that the electronics search condition is unconstitutionally overbroad on its face under the Fourth Amendment. Riley held that a warrant is generally required prior to the search of a cell phone incident to arrest because of the vast and varied data stored on modern cell phones. (Riley, at p. 403.) As our Supreme Court held in Ricardo P., the principles articulated in Riley confirm that an electronics search condition "significantly burdens privacy interests." (Ricardo P., supra, 7 Cal.5th at p. 1123, citing Riley, at pp. 393, 394, 395.) However, the overbreadth analysis already presupposes some burden on a probationer's constitutional rights. The relevant question is whether the condition is sufficiently narrowly tailored to the legitimate purpose of the restriction, justifying the burden. (Sheena K., supra, 40 Cal.4th at p. 890; E.O., supra, 188 Cal.App.4th at p. 1153.) Riley does not speak to that question, so Gonzales's reliance on it is unpersuasive.
Gonzales also cites several cases which were decided before the Supreme Court's decision in Ricardo P., and which were subsequently dismissed on mootness grounds (In re J.E. (2016) 1 Cal.App.5th 795; People v. Nachbar (2016) 3 Cal.App.5th 1122; In re J.S. (2019) 37 Cal.App.5th 402), or decided without addressing the constitutional overbreadth issue (People v. Valdivia (2017) 16 Cal.App.5th 1130; People v. Trujillo (2017) 15 Cal.App.5th 574), following transfers from the Supreme Court. We therefore do not address these cases. The briefing in this case was completed before Ricardo P. was issued and neither party requested the opportunity to file supplemental briefs regarding the impact of that decision here. Because Gonzales did not challenge the electronics search condition under Lent, we did not request supplemental briefing on our own motion.
Gonzales further contends that the electronics search condition could potentially expose a large volume of documents or data which have nothing to do with illegal activity, the condition as imposed here is unjustified because social media was not "instrumental in the commission of the crime," and the condition is "not narrowly tailored." This argument requires us to consider the particularized facts of Gonzales's case—including the specifics of his crime, his criminal and personal history, and risk factors relevant to reoffending. "This is a classic as-applied claim." (Patton, supra, 41 Cal.App.5th at p. 947.) If Gonzales had objected, the prosecution would have had an opportunity to present evidence on the record to justify the electronics search condition. Having failed to object, Gonzales has forfeited this argument. (Sheena K., supra, 40 Cal.4th at pp. 888-889; see People v. Kendrick (2014) 226 Cal.App.4th 769, 778 [defendant who in fact advanced an as-applied challenge, although it was presented as a facial challenge, forfeited the argument on appeal].)
Gonzales also contends a limitless search of his electronic devices is significantly overbroad because it can implicate the privacy interests of third parties. Gonzales did not raise this issue in the trial court and has therefore forfeited the argument on appeal. (Sheena K., supra, 40 Cal.4th at p. 881.) Gonzales has not developed any record that would demonstrate a burden on third parties based on the electronics search condition at issue here.
II.
Fines, Fees, and Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Gonzales contends that imposition of various fines, fees, and assessments, without a determination of his ability to pay, violated his constitutional right to due process. He contends his case should be remanded to allow the trial court to determine whether he has the ability to pay these amounts. We conclude Gonzales forfeited the claimed Dueñas error, and any alleged error was harmless beyond a reasonable doubt.
As noted, at sentencing, the trial court imposed a $40 court operations assessment (Pen. Code, § 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $154 criminal justice administration fee (Gov. Code, § 29550), a $500 domestic violence fee (Pen. Code, § 1203.097), and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)).
Dueñas involved an indigent, disabled, and homeless mother of young children who, due to illness, did not complete high school and subsisted on public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas objected on due process grounds to the trial court's imposition of various fines and fees. (Id. at p. 1162.) "The court rejected Dueñas's 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.) In reversing, the Court of Appeal in Dueñas observed, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court therefore held 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 Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the 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." (Ibid.)
The Courts of Appeal have reached different conclusions regarding the substantive merits of the Dueñas opinion, as well as the question of whether a defendant forfeits any claim of error by failing to raise the issue in the trial court. Here, we find forfeiture based on the fact that Gonzales had the ability to object to the domestic violence fee—even before Dueñas was decided—but failed to do so. Where a statutory basis to object based on inability to pay exists, but a defendant fails to assert such a claim, the claim is forfeited. For example, in Gutierrez, this court held that a defendant who fails to object to a restitution fine above the statutory minimum forfeits any ability-to-pay argument. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) We reasoned that the statute governing imposition of restitution fines "expressly permitted such a challenge" even before Dueñas. (Ibid.) The Dueñas decision does not compel a different conclusion on the issue of forfeiture in such circumstances. (Ibid. ["[E]ven if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine [above the statutory minimum] by failing to object."].) The same is true here, where Gonzales had the statutory right to request that the trial court consider his ability to pay the domestic violence fee (§ 1203.097, subd. (a)(5)(A)), but failed to do so. By failing to object to the domestic violence fee, or seek an ability to pay hearing prior to the court's imposition of the fee, Gonzales forfeited his challenge on appeal.
For example, the courts in People v. Hicks (2019) 40 Cal.App.5th 320, 326 and People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 (Aviles) disagreed with Dueñas, whereas the court in People v. Belloso (2019) 42 Cal.App.5th 647, 654-656 followed Dueñas. The Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted November 13, 2019, S257844 (Kopp). We need not address the validity of Dueñas given our conclusion here that Gonzales forfeited his claim of error.
For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 (Frandsen), and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 found forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson), People v. Castellano (2019) 33 Cal.App.5th 485, 489, and People v. Jones (2019) 36 Cal.App.5th 1028, 1033 (Jones) did not find forfeiture.
The trial court has the authority to reduce or waive the $500 fee only "[i]f, after a hearing in open court, the court finds that the defendant does not have the ability to pay . . . ." (§ 1203.097, subd. (a)(5)(A).) Only if the trial court exercises its discretion to reduce or waive the fee must the court state the reasons for doing so on the record. (Ibid.) When the trial court imposed this fee, it implicitly determined Gonzales had the ability to pay it. (See People v. Nelson (2011) 51 Cal.4th 198, 227 [where the trial court was not obligated to make express finding concerning defendant's ability to pay, the absence of any findings does not demonstrate it failed to consider this ability-to-pay factor].)
We reach the same conclusion, and find forfeiture here, based on Gonzales's failure to object to the remaining amounts imposed—i.e., the assessments (Pen. Code, § 1465.8; Gov. Code, § 70373), the restitution fine (Pen. Code, § 1202.4, subd. (b)), and the criminal justice administration fee (Gov. Code, § 29550), which total approximately $520 (payable at the rate of $35 per month). Gonzales, who was 25 years old at the time of his offense, reported to the probation officer that he had a monthly income of $1,600, and also stated he had been employed at a welding company for approximately one year at the time of his interview. Before that, he worked at the front desk of a hotel, and prior to that, as an inventory coordinator. Gonzales was sentenced to 180 days in local custody—receiving 100 days credit for time served—and three years of formal probation. With knowledge of these circumstances, Gonzales failed to object to the imposition of $520—an amount comparable to the domestic violence fee which, as noted, expressly permits an ability-to-pay challenge—and therefore forfeited his claim of error as to these amounts as well. (See Gutierrez, supra, 35 Cal.App.5th at pp. 1030-1031, 1033 ["[a]s a practical matter," if a defendant does not object to a maximum restitution fine based on an inability to pay, the defendant "surely would not complain on similar grounds" regarding additional fees including assessments under Pen. Code, § 1465.8, and Gov. Code, §§ 70373 and 29550].)
Defense counsel did not object to the amount of the fees imposed, or object based on defendant's inability to pay. Counsel did, however, request that the trial court reduce the monthly payment from the proposed amount of $75 per month to $35 per month. The trial court granted this request, thereby alleviating the financial impact of the imposed fees and assessments.
Gonzales contends that, "[b]ased on the record below, any perceived ability to pay is nothing more than speculation." But Gonzales was in the best position to know what amounts he could afford to pay at the sentencing hearing, and he failed to proffer any evidence that he was unable to pay the amounts imposed in order to preserve his argument on appeal. As discussed ante, Gonzales was required to create a record with regard to his inability to pay the domestic violence fee in order to avoid forfeiture. If he had done so, presumably the record would have contained more evidence regarding his ability to pay the remaining amounts as well. In short, any deficiencies in the record are due to Gonzales's own forfeiture. In any event, based on the information that was available to the trial court, we conclude it was a reasonable inference (not speculation) that Gonzales could afford to pay the monthly installments of $35 that he himself requested.
Gonzales acknowledges he did not object to the imposition of the fines and fees, but contends an objection would have been futile "given the state of the law at the time of sentencing," or, alternatively, that this court should reach the issue because it raises a question of constitutional law not dependent on the facts of the case. We reject both contentions. As already discussed, even before Dueñas was decided, there was an express statutory basis for objecting to the domestic violence fee at a minimum. It was incumbent on Gonzales to exercise his statutory right to object to this fee on the basis that he did not have the ability to pay. We also reject Gonzales's argument that he is raising a purely legal question; his alleged inability to pay clearly raises factual questions on a record that was not fully developed due to his own forfeiture. (See Frandsen, supra, 33 Cal.App.5th at p. 1153; Aviles, supra, 39 Cal.App.5th at pp. 1074-1075.)
Even if Gonzales had preserved his challenge based on Dueñas, and further assuming the trial court was required to consider Gonzales's ability to pay the fines, fees, and assessments before imposing them, we conclude any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; Jones, supra, 36 Cal.App.5th at p. 1035 [applying Chapman standard of harmless error analysis to Dueñas error].) In assessing whether a defendant has the ability to pay, courts may consider defendant's present and future ability to pay. (See Kopp, supra, 38 Cal.App.5th at p. 96, review granted.) Gonzales was sentenced to 180 days of incarceration, received credit for 100 days, and was placed on three years of formal probation. Unlike Dueñas, Gonzales is in his mid-twenties, has no evidence of any physical disability, and has a history of employment which includes earning a monthly income of $1,600. Gonzales's assertion that he is "indigent" is not supported by the record, and we reject his suggestion that his representation at trial by an appointed attorney demonstrates his inability to pay $35 per month. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["a defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine"].) Thus, even assuming Gonzales has a claim under Dueñas that was preserved for consideration on appeal, any error in failing to consider his ability to pay is harmless beyond a reasonable doubt on this record. (See Johnson, supra, 35 Cal.App.5th at pp. 139-140 [because defendant had "ample time to pay" $370 in assessments from his prison wages while serving an eight-year sentence, any assumed due process violation in imposing assessments without taking his ability to pay into account was harmless beyond a reasonable doubt]; Jones, supra, 36 Cal.App.5th at p. 1035 [rejecting claim of Dueñas error where record showed any error was harmless].)
It has been over one year since the time of Gonzales's sentencing.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.