Opinion
C089301
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. THERESA LOUISE GUEVARA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CH036138)
Defendant Theresa Louise Guevara appeals a judgment entered after a jury found her guilty of bringing a controlled substance into a state prison. (Pen. Code, § 4573.) She challenges: (1) the trial court's failure to grant her request for probation; (2) the propriety of an electronics search condition imposed as part of her period of mandatory supervision; and (3) the imposition of her fines and fees imposed by the court in light of its inability to pay findings.
Undesignated statutory references are to the Penal Code.
We concur that the trial court's imposition of the electronics search condition violated the third prong of People v. Lent (1975) 15 Cal.3d 481 (Lent) as explained in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). Accordingly, we will strike this condition. We will also modify the judgment to correct certain fines and fees for the reasons explained herein. We will affirm the judgment as modified.
I. BACKGROUND
The People's October 1, 2018 information charged defendant with one count of bringing a controlled substance into a state prison. The matter was tried to a jury, which found defendant guilty. Following a review of the probation report and sentencing memoranda, the court denied defendant's request for probation, noting as factors weighing against probation: (1) the large amount of heroin increased the risk to inmates and staff and was worse than other instances of the same crime (Cal. Rules of Court, rules 4.414, subd. (a)(1), 4.421(a)(10)); (2) the sophistication of the crime where defendant passed heroin in a prison visiting room by hiding the drugs in a shared bag of chips in coordination with her boyfriend and another inmate (rules 4.414(a)(8), 4.421(a)(8)); (3) her continued refusal to accept the jury's decision despite compelling video evidence of her guilt (rule 4.414(b)(7)); (4) that defendant was on notice and understood the seriousness of her crime (rule 4.408(a)); and (5) that defendant was a willing and active participant (rules 4.414(a)(6), 4.421(a)(4)).
Subsequent undesignated references to rules will be to the California Rules of Court.
The court sentenced defendant to the low term of two years to be served as a split term (§ 1170, subd. (h)(5)(B)) with 270 days in county jail and 460 days on mandatory supervision. As a condition of her mandatory supervision, the court ordered that defendant "shall be subject to search of and seizure from electronic communication devices, including but not limited to cellular telephones, at any time day or night, whether the defendant is present or absent, with or without a search warrant or probable cause by any probation officer or peace officer."
The court imposed a $300 restitution fine (§ 1202.4), which it stayed pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. The court also imposed a $300 "probation revocation restitution fine" which would become due if mandatory supervision is revoked. The court waived the $40 court operations fee (§ 1465.8), a $30 criminal conviction fee (Gov. Code, § 70373) in the interests of justice, and refused imposition of the $223 supervision fee, noting defendant was not employed and was on disability. The court then found defendant was indigent and refused to impose the $600 for the presentence report fee and waived the $240 jurisdictional transfer fee. The court nonetheless noted that if defendant applied for an out-of-state transfer, she would be subject to the $150 interstate compact transfer fee. Finally, the court ordered defendant pay a booking fee of $138.06. Defendant did not object and timely appealed the court's judgment.
II. DISCUSSION
A. Denial of Probation
Defendant complains the trial court erred in denying her request for probation, challenging the court's findings regarding her lack of remorse, knowledge of the seriousness of her offense, the net weight of heroin involved, the sophistication of the crime, and failure to consider other relevant circumstances. We disagree.
The trial court has discretion to make numerous sentencing choices, including whether to grant or deny probation. In making these choices, the trial court need only state its reasons in simple language, identifying the primary factor or factors that support the exercise of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851; rule 4.406(a).) When we review a trial court's decision to deny probation, we may not substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order denying probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), overruled on other grounds as stated in People v. Cook (2015) 60 Cal.4th 922, 928.) A defendant bears a " 'heavy burden' " when attempting to show an abuse of discretion. (Ibid.)
Rule 4.414 sets forth certain criteria relevant to the trial court's decision to grant or deny probation. Relevant factors include the seriousness of the crime as compared with other instances of the same crime (rule 4.414(a)(1)), whether the defendant was an active participant (rule 4.414(a)(6)), the sophistication of the crime (rule 4.414(a)(8)), and whether the defendant is remorseful (rule 4.414(b)(7)). "In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rules 4.406(b)(2) & 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.) [¶] . . . . [I]n determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable." (Weaver, supra, 149 Cal.App.4th at p. 1313.)
Defendant complains the trial court's lack-of-remorse finding was unfounded and the court's reliance on lack of remorse to deny probation was an abuse of discretion. However, this ignores that the court expressly found it was not applying a trial penalty and enumerated multiple factors upon which it based its decision. (See Rule 4.414(a)(1),(6), (8), (b)(7).) There is nothing impermissible about the court stating its opinion that it saw defendant pass drugs on the video and found defendant's continued profession that she had merely been sharing chips concerning and insulting. Whether it is called a lack of "remorse" under rule 4.414(b)(7) or merely considered under rule 4.408, defendant's continued denial in light of compelling video evidence was relevant to the court's consideration of the appropriateness of probation.
Defendant also complains "the court abused its discretion when it based its denial of probation on information [defendant's knowledge that her crime was serious] that lacked 'some minimal indicium of reliability beyond mere allegation.' " Here, the trial court agreed with the People that defendant was on notice and understood the seriousness of her crime based upon conversations she had previously had with law enforcement. The court may consider this information pursuant to rule 4.408(a). Defendant nonetheless challenges whether there was information in the record supporting this allegation. Not only did defendant fail to object below thus forfeiting this argument on appeal (People v. Scott (1994) 9 Cal.4th 331, 356), this argument is also contrary to the record. The complained-of information was the subject of motions in limine seeking admission of testimony concerning defendant's interview during an investigation for the smuggling of heroin into prison that occurred on a different occasion, wherein following a visit with defendant, her boyfriend was found in possession of heroin and pled guilty to possession. Ultimately, the judge excluded this information as being more prejudicial than probative under Evidence Code section 352 following an Evidence Code section 402 hearing. However, defendant has not shown it was inappropriate to consider this information when determining whether to grant defendant probation.
Further, defendant faults the trial court's consideration that defendant smuggled heroin, as opposed to other drugs, as an aggravating factor because it was an element of the offense. We disagree. Defendant's rule 4.420(d) argument is unpersuasive in the context of the trial court's decision to deny probation. Rule 4.420(d) governs the selection of a term of imprisonment. In this case, the court did not use defendant's smuggling of heroin to impose a particular term, rather, the court imposed the minimum term of two years. That the substance defendant smuggled was more serious than other controlled substances that would violate the same statute was properly considered when evaluating whether to grant or deny probation. (Rule 4.414(a)(1).)
Defendant also criticizes the court's use of the amount of heroin as supporting its denial of probation. This complaint ignores the court's clear articulation that the 30 grams of heroin included the packaging, but was nevertheless "a substantial amount of heroin." It also ignores that the net weight of the bindle was established at trial to be 30.568 grams and the contents of the bindle confirmed to be heroin.
We likewise reject defendant's challenge to the court's finding that her crime was sophisticated. That another individual before the court on the day of sentencing may have utilized a similar method of transfer does not establish that the court abused its discretion in finding her crime sophisticated. Rather, the use of a shared bag of chips and coordination with multiple individuals to facilitate the exchange supports the court's finding.
Finally, defendant's argument that the trial court failed to consider relevant factors that supported a grant of probation is contrary to the record. As acknowledged by defendant's own briefing, the trial court expressly considered, for example, defendant's lack of record, that no weapons were used, the likelihood that defendant would not commit this crime again, defendant's health conditions and potential loss of disability benefits if incarcerated, and defendant's professed willingness to comply with the terms of probation. The trial court nonetheless denied defendant's request for probation. It is not for this court to independently reweigh the probation factors. (Weaver, supra, 149 Cal.App.4th at p. 1311.) Accordingly, defendant has not established that the trial court abused its discretion in denying her request for probation. B. The Electronics Search Condition
We do not address defendant's argument that she was remorseful, having already found that evidence supported the trial court's determination that she was not.
Defendant objects to the imposition of an electronics search condition in light of the Supreme Court's guidance in Ricardo P., supra, 7 Cal.5th 1113 and Lent, supra, 15 Cal.3d 481. Because we agree with defendant, we need not consider her remaining constitutional challenges to this condition. We further exercise our discretion to reach defendant's Ricardo P./Lent challenge even though her counsel failed to object in the trial court. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
"The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. ([]§ 1203 et. seq.)" (Lent, supra, 15 Cal.3d at p. 486.) Consequently, imposition of a probation condition is reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "A condition of probation will not be held invalid 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, at p. 486.) The Lent test "is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (Olguin, supra, at pp. 379-380.) We apply the same test to conditions imposed during periods of mandatory supervision. (People v. Malago (2017) 8 Cal.App.5th 1301, 1306-1308 [applying Lent factors to review mandatory supervision terms]; People v. Martinez (2014) 226 Cal.App.4th 759, 764-765 [same].)
Because the challenged electronics search condition neither relates to a crime for which defendant was convicted, nor to conduct which is itself criminal, only the third Lent factor is implicated in this case. Thus, we must decide whether the challenged electronics search condition was " 'reasonably related to future criminality.' " (Lent, supra, 15 Cal.3d at p. 486.)
We find the Supreme Court's decision in Ricardo P. instructive. In that case, a minor was placed on probation after admitting two counts of burglary. Included among the conditions of probation was that he "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Ricardo P., supra, 7 Cal.5th at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court "imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.)
Similar to this case, the Supreme Court granted review to determine "whether the electronics search condition satisfies Lent's third prong—that is, whether it ' "requires or forbids conduct which is not reasonably related to future criminality." ' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court determined the third prong of Lent required a reasonable relationship between the condition and future criminality, reasoning that Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]" (Id. at p. 1122.)
However, it found that relationship was not met. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) The court noted the electronics search condition significantly burdened the minor's privacy interests given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at pp. 1122-1123.) In contrast, the record did not support such a significant burden on the minor's privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Ibid.) Such an abstract or hypothetical connection to the interest served by the probation condition was insufficient to justify the significant intrusion into the minor's privacy. (Id. at pp. 1120-1123.)
The court reasoned: "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
Nor did the court accept the argument that any condition reasonably related to effective supervision was valid under Olguin, which had upheld a probation condition requiring the probationer to notify the probation officer of the presence of any pets at his/her residence. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1127.) Unlike a minimally intrusive notification requirement meant to ensure officer safety, "requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification." (Id. at p. 1126.)
Like the minor in Ricardo P., here, the record is devoid of any information from which we could find a proportionality between the privacy intrusion imposed by the electronics search condition and the goal of deterring defendant's future criminality, to wit, bringing a controlled substance into a state prison. While there may be circumstances where a defendant's personal history may justify an electronics search condition as a means of deterring future criminality (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129), here, there is no evidence that defendant has ever utilized her electronic devices in a way that would justify imposition of this search condition. Accordingly, the electronics search condition cannot withstand scrutiny under Lent and must be stricken. (Id. at p. 1129.) C. Inability to Pay
Defendant argues the trial court erred when it imposed an interstate transfer fee, a booking fee, and a probation revocation restitution fine in light of its inability to pay determinations and People v. Dueñas, supra, 30 Cal.App.5th 1157. Each of defendant's arguments may be disposed of without addressing Dueñas.
First, given that defendant has not applied for an interstate transfer and would not be required to pay any interstate transfer fee unless such a request was made, we find defendant's request that we strike the interstate transfer fee is premature. Should she request an interstate transfer, she may object at that time.
Second, the trial court failed to identify the statutory basis for the complained-of booking fee, nor does the probation report identify that basis. Depending on which governmental entity arrested defendant, she may have had an ability to pay challenge. (Compare Gov. Code, §§ 29550, 29550.1, 29550.2.) Because we cannot ascertain the statutory basis for this fine and in light of her ineffective assistance of counsel claim, we will strike the jail booking fee.
Finally, defendant asks we strike the probation revocation fine premised upon her inability to pay it. This argument fails for two reasons. First, it ignores that the court misspoke when it imposed a probation revocation fine under section 1202.44. Defendant was not granted probation, and when the court elected to sentence defendant to a split term with mandatory supervision, it was required to impose a matching $300 fine pursuant to section 1202.45, subdivision (b). (People v. Smith (2001) 24 Cal.4th 849, 853.) We can and will correct this mandatory sentencing error. (Ibid.) Because the section 1202.45 fine is suspended until mandatory supervision is violated (§ 1202.45, subd. (c)), we will not address her Dueñas argument.
III. DISPOSITION
For the reasons explained herein, we strike the electronics search condition. We also modify the judgment to strike the $300 probation revocation fine and impose a $300 suspended mandatory supervision revocation restitution fine. We further strike the $138.06 booking fee imposed without a statutory basis. Because the abstract of judgment already accurately reflects the modified judgment, no amendment to those documents are necessary. The trial court shall prepare modified terms of mandatory supervision and forward them to the appropriate entity. The judgment is affirmed as modified.
/S/_________
RENNER, J.
We concur:
/S/_________
ROBIE, Acting P. J.
/S/_________
KRAUSE, J.