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People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
Jan 28, 2020
C086943 (Cal. Ct. App. Jan. 28, 2020)

Opinion

C086943

01-28-2020

THE PEOPLE, Plaintiff and Respondent, v. RICARDO HERNANDEZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF17-0001805)

After defendant Ricardo Hernandez pleaded no contest to carrying a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1)), the trial court placed him on three years of probation and imposed an electronics search condition. Additionally, the court imposed a restitution fine, a criminal conviction assessment, and a court operations fee. On appeal, defendant contends: (1) the electronics search condition imposed is facially overbroad; and (2) the imposition of the restitution fine and court fees violates his constitutional rights because there was no determination of his ability to pay them. We will affirm.

Undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

During a traffic stop, defendant was found "in possession of a loaded firearm capable of being concealed on the person at a time when he was an active member of a criminal street gang." Pursuant to a negotiated agreement, defendant pleaded no contest to carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1)) when he was an active participant in a criminal street gang. The trial court placed defendant on three years of formal probation with various terms and conditions, including that he serve 20 days in jail with credit for 20 days served, and register pursuant to section 186.30. The court also imposed an electronics search condition, ordering, "You must provide access, meaning your passwords, to all computers, computer components and cellular telephones, including passwords, including access to social networking sites, to the probation officer, at any time of the day or night, with or without a warrant and without probable or reasonable cause. And I'll add to that, not only provide your passwords, as ordered, to Probation, don't change your passwords unless you've notified Probation what the new password is." Defendant made no objection to the probation condition.

The trial court imposed various fines and fees, including a restitution fine in the amount of $300, a $40 court operations fee, and a $30 conviction assessment fee. The court found defendant had a "future financial ability to pay" the fines and fees and if they were not fully paid 90 days before his discharge from probation, then defendant would need to file an updated income and expense declaration.

DISCUSSION

1.0 Electronics Search ConditionOverbreadth

Defendant contends the electronics search condition is facially overbroad. He argues there were narrower means to ensure he did not violate the terms of his probation. While he concedes he did not object below, he asserts that his claim is not forfeited because he raises a facial challenge. We do not agree with defendant that the condition is facially overbroad.

Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Because defendant did not object to the electronics search condition in the trial court, he has forfeited his ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to him. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if that claim "amount[s] to a 'facial challenge,' " i.e., a challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad," (id. at p. 885) that is, a " ' "pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Id. at p. 889). Such a claim "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts . . . ." (Id. at p. 885.) Here, defendant raises a facial challenge to the condition and accordingly, his claim is not forfeited.

Because we agree that defendant has raised a facial challenge to the condition, we need not reach his secondary argument that if his overbreadth claim is forfeited, his trial counsel provided ineffective assistance in failing to object.

"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) "Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights." (People v. Mason (1971) 5 Cal.3d 759, 768 (dis. opn. of Peters, J.), disapproved on unrelated grounds by People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) "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 . . . ." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We independently review defendant's constitutional challenge to the electronics search condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

In a facial overbreadth challenge to an electronics search condition, the issue is whether the search condition, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (Sheena K., supra, 40 Cal.4th at p. 885.) The answer here is "no." While the Supreme Court has not directly reached this issue, its recent decision in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) provides some insight. There, our high court noted, "Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Id. at pp. 1128-1129.) In reaching this conclusion, Ricardo P. relied on In re Malik J. (2015) 240 Cal.App.4th 896 and People v. Ebertowski (2014) 228 Cal.App.4th 1170, cases in which similar search conditions were upheld. (Ricardo P., at p. 1129.) In Malik J., the court concluded that an electronics search condition was reasonable in light of the defendant's criminal history. (Malik J., at p. 902.) Similarly, in Ebertowski, the court held that an electronics search condition was valid under the circumstances of the case. (Ebertowski, at pp. 1173, 1176-1177; see People v. Patton (2019) 41 Cal.App.5th 934, 938, 947 [reasoning that because electronics search conditions may be constitutionally imposed under some circumstances, they are not facially invalid].) Accordingly, we cannot conclude that electronics search conditions, such as the one imposed in this case, are facially overbroad in all possible cases.

Defendant 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. In Riley, the Supreme Court held that a warrant is generally required prior to the search of a cell phone incident to arrest. (Id. at p. 403.) However, the Riley case did not address any issues regarding probation search conditions. The privacy expectation of an arrestee is significantly different than that of a probationer. (See United States v. Knights (2001) 534 U.S. 112, 119 [151 L.Ed.2d 497, 505] ["Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' "].) Defendant also relies extensively on People v. Appleton (2016) 245 Cal.App.4th 717, to support his argument that this condition is facially overbroad. Appleton, however, did not involve a facial challenge to an electronic device search condition and therefore does not assist defendant. (Id. at pp. 721, 727.) Both of these authorities are distinguishable.

We conclude that although application of this search condition could be constitutionally overbroad as applied to certain probationers, in other circumstances it may be entirely appropriate and constitutional. The criminal offense or the defendant's personal history may provide a sufficient basis on which to conclude the condition is a proportional means of deterring future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) In those cases, the imposition of such probation conditions would be constitutional. Because there could be circumstances in which such a condition was appropriate, we reject the claim that the electronics search condition is facially overbroad. 2.0 Imposition of Restitution Fine and Court FeesAbility to Pay

In a supplemental brief filed with this court's permission, following the Second Appellate District, Division Seven's recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210) (Dueñas), defendant argues imposition of the following fines and fees violated his constitutional rights because the trial court did not determine his ability to pay before imposing them: (1) a restitution fine of $300 (§ 1202.4), (2) a court operations assessment of $40 (§ 1465.8), and (3) a criminal assessment of $30 (Gov. Code, § 70373). He asks this court to stay each of these fines and fees. The Attorney General responds by arguing this claim is forfeited by defendant's failure to raise the issue of his ability to pay below. Assuming, without deciding, defendant's challenge to the restitution fine and fees have not been forfeited, we conclude Dueñas was wrongly decided and therefore reject defendant's claim on that basis.

2.1 Dueñas

In Dueñas, the defendant was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court placed Dueñas on probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (§ 1202.4, subd. (c)) to justify waiving this fine." (Id. at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination that she possessed the ability to pay them. (Ibid.)

Our colleagues at the Second Appellate District, Division Seven reversed. With respect to the court facilities and court operations assessments, the court held "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 [these] assessments . . . ." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1956) 351 U.S. 12, 17 [100 L.Ed. 891, 898] (Griffin).) Analogizing the imposition of these mandatory assessments, without first determining an ability to pay in the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo)) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 [76 L.Ed.2d 221, 229-230] (Bearden)), the court stated: "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. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (Dueñas, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)

With respect to the minimum restitution fine, the court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "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, supra, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.)

2.2 No Constitutional Violation

Reactions to the new constitutional principle articulated in Dueñas have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068). We join the latter group and limit our discussion of the matter to rejecting Dueñas outright.

We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).) --------

In Hicks, our colleagues at the Second Appellate District, Division Two, rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 326, rev.gr.) The first strand, starting with Griffin, supra, 351 U.S. 12, 19, "secures a due process-based right of access to the courts." (Hicks, at p. 326.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Ibid.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., Antazo, supra, 3 Cal.3d 100 & Bearden, supra, 461 U.S. 660, described above) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Id. at p. 326.)

Finally, the Hicks court also concluded Dueñas erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670.) To confer such an immunity, that court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams [v. Illinois (1970)] 399 U.S. [235,] 244 [].) By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the court in both Bearden and Williams." (Hicks, supra, 40 Cal.App.5th at p. 327, rev.gr.)

We agree with the Hicks analysis in its entirety. The strands of precedent relied upon by the Dueñas court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay. Rather, he was placed on probation because of his crime, with 20 days of jail time and full credit for time served. Additionally, the record reflects that defendant is gainfully employed and he will have an opportunity to attempt to pay these obligations. As the trial court noted, if he is unable to pay during the course of his probation, he may file an income and expense declaration with the court. Should the restitution fine and court fees "remain unpaid at the end of his [probation term], the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try." (Hicks, supra, 40 Cal.App.5th at p. 329, rev.gr.)

Nor has defendant persuaded this court that imposition of the fines and fees in this case violated his Eighth Amendment right against excessive fines, as that right was recently described by the United States Supreme Court in Timbs v. Indiana (2019) ___ U.S. ___ [139 S.Ct. 682, 203 L.Ed.2d 11]. That case involved the seizure and civil forfeiture of a $42,000 car and is manifestly inapposite. (Timbs, 139 S.Ct. at p. 686.) Defendant has cited no authority, nor have we discovered any, supporting the position that the fines and fees imposed in this case are excessive in relation to either the gravity of defendant's offense or his economic situation. (Id. at p. 688.) Defendant's claim that the imposition of the fines and fees violates his right to equal protection is equally unsupported and unavailing. Defendant has cited no authority to support the proposition that a restitution fine or court fees violate his right to equal protection. The authorities he does cite do not stand for such a proposition.

DISPOSITION

The judgment is affirmed.

/s/_________

Butz, J. I concur: /s/_________
Murray, J. ROBIE, J., Concurring and Dissenting.

I concur in all parts of the Discussion except section 2.0 relating to the imposition of the restitution fine and court assessments regarding defendant's ability to pay. Defendant believes Dueñas calls into question the imposition of a Penal Code section 1202.4 $300 fine, a Penal Code section 1465.8 assessment and a Government Code section 70373 assessment without a determination of his ability to pay. (People v. Dueñas (2019) 30 Cal.App.5th 1157.) I agree with Dueñas that principles of due process would preclude a trial court from imposing the restitution fine and assessments at issue if the defendant demonstrates he or she is unable to pay them. (Id. at p. 1168.) I do not find the analysis in Hicks to be well-founded or persuasive and believe the majority has it backwards -- it is Hicks that was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946.)

Defendant has not forfeited the argument, as the People contend. I agree that, as stated in Castellano, a trial court is required to determine a defendant's ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fine and assessments on inability to pay at the time the trial court imposed them, however, defendant could not have reasonably been expected to challenge the trial court's imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 ["[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence"].)

I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant's ability to pay the challenged fine and assessments because his conviction and sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491.)

/s/_________

Robie, Acting P. J.


Summaries of

People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
Jan 28, 2020
C086943 (Cal. Ct. App. Jan. 28, 2020)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICARDO HERNANDEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)

Date published: Jan 28, 2020

Citations

C086943 (Cal. Ct. App. Jan. 28, 2020)