Opinion
H039935
10-17-2017
THE PEOPLE, Plaintiff and Respondent, v. MARVIN MAGAT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1239524)
Defendant Marvin Magat pleaded no contest to two counts of committing a lewd act on a child (Pen. Code, § 288, subd. (a)). On May 29, 2013, the court suspended defendant's sentence and placed him on felony probation for three years under various terms and conditions, including the requirement that he pay a fine of $300 and penalty assessments of $735, pursuant to section 290.3. Thereafter, on July 19, 2013, the court imposed additional conditions.
Further statutory references are to the Penal Code unless otherwise indicated.
Defendant asserted three challenges on appeal. First, he challenged two probation conditions imposed pursuant to section 1203.067, subdivision (b), namely, (1) a condition requiring him to "waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program" (§ 1203.067, subd. (b)(3)); and (2) a condition requiring him to "waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the Probation Officer" (§ 1203.067, subd. (b)(4)). Second, defendant challenged a probation condition that prohibited him from living in a home in which children under 18 resided. Third, he challenged a condition requiring him to pay a fine of $300 and penalty assessments of $735, claiming there was no substantial evidence he had the ability to pay the fine and assessments as required under section 290.3.
In the opinion filed May 11, 2015, a panel of this court concluded, inter alia, that (1) the probation condition imposed under section 1203.067, subdivision (b)(3) requiring a waiver of the privilege against self-incrimination was prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420; (2) the probation condition imposed under section 1203.067, subdivision (b)(4) requiring defendant to waive the psychotherapist-patient privilege should be construed as requiring a waiver only insofar as necessary to enable communications between the sex offender management professional and the supervising probation officer, and, as so construed, was not overbroad in violation of defendant's constitutional right of privacy; (3) the residency condition should be modified to require that defendant know or reasonably should know of the existence of minors living in the home; and (4) the fine and assessments imposed under section 290.3 should be stricken.
The California Supreme Court granted review on July 22, 2015. On May 10, 2017, the Supreme Court transferred the case to this court, with instructions that we reconsider the opinion in light of its decision in People v. Garcia (2017) 2 Cal.5th 792 (Garcia). After receiving supplemental briefing from the parties pursuant to this court's request, we will dispose of the appeal by declaring the challenges to the probation conditions imposed under section 1203.067, subdivisions (b)(3) and (b)(4) and the residency condition moot, and by ordering that the fine and assessments imposed under section 290.3 be stricken.
I. FACTS
A cousin of defendant reported to the police in June 2011 that approximately four years earlier, defendant had sexually abused her daughter and her (defendant's cousin's) niece. Defendant had been 16 years old at the time. Shortly thereafter, on July 6, 2011, a second person, Desiree Doe, reported to the police that at some time in the past, defendant was babysitting her and her cousin, Ashley Doe, at their grandmother's house. (At the time, Desiree was five or six, and Ashley was six or seven.) Desiree reported that defendant had instructed "them to kiss him 'or else' (implying that he would get them in trouble if they did not kiss him)." Defendant forced Desiree to kiss him on the lips, and he told her that something bad would happen to her if she reported it to anyone. It made her feel "really bad because [she] did not want to do that to him." He instructed Desiree to leave the room and she complied. Desiree told the arresting officer that she had not told anyone about the incident because she had been afraid and thought her mother would "tell everyone" what had happened.
On July 6, 2011, Ashley reported to the police that when she was six years old, defendant, who had been babysitting her and Desiree, had forced both of them to kiss him on the lips and "[s]he felt 'grossed out' " about doing it. He then told Desiree to leave, and he locked the door. Defendant took off his pants and underwear, lay down on the bed, and instructed Ashley to get on top of him and to move up and down on him while remaining clothed. She reported that "she felt 'grossed out' when she was on top of him." Defendant instructed Ashley not to tell anyone what had happened and that it would be their " 'deepest and darkest secret.' "
In an interview with the police on July 18, 2011, defendant admitted that when he was 14 years old, he had kissed Ashley three or four times. He said he had taken off his pants and thought he had become aroused. Defendant told the police that he had taken off his clothes in Ashley's presence two or three times. On one occasion, he told her to take off her clothes and he touched her legs. He also instructed her to touch his penis for two or three minutes. He then lay on top of her on a couch but did not have sexual intercourse with her. His penis touched her vagina but he did not ejaculate. On another occasion, defendant took off his clothes, instructed Ashley to take off her clothes, and got on top of her. His penis touched her vagina but did not enter it. He told the police he had "realized what he was doing was wrong, so he did not go through with it." Ashley's brother saw them and told defendant to stop what he was doing.
II. PROCEDURAL BACKGROUND
In a complaint filed August 22, 2012, defendant was charged with four counts of lewd or lascivious acts upon a child by force, violence, duress, menace, or fear (§ 288, subd. (b)(1)). The first two counts contained allegations that the victim was Ashley Doe and that the offenses occurred between January 1, 2007, and December 31, 2007. Counts 3 and 4 contained allegations that the victim was Desiree Doe and that the offenses occurred between January 1, 2007, and December 31, 2007.
On January 25, 2013, the District Attorney moved to amend the complaint to allege counts 1 and 3 as lewd acts on a child (§ 288, subd. (a)). Defendant waived a preliminary hearing and entered a plea of no contest to counts 1 and 3, as amended, conditioned upon the dismissal of the remaining counts and with the understanding that he would receive a maximum three-year prison sentence.
On May 29, 2013, the court suspended imposition of the sentence and placed defendant on probation for three years on various terms and conditions, including (1) serving one year in county jail, and (2) paying a fine of $300 and penalty assessments of $735, pursuant to section 290.3. At that time, the court dismissed counts 2 and 4. After receiving briefing in which defendant specifically objected to the imposition of the conditions under subdivisions (b)(3) and (b)(4) of section 1203.067, the court, on July 19, 2013, imposed the two sex offender management program conditions that are the subject of this appeal. It also ordered defendant to pay all sex offender management participation fees as determined by the court, under subdivision (c) of section 1203.067.
III. DISCUSSION
A. Challenged Probation Conditions
In defense counsel's supplemental letter brief, he stated that his client had completed the three-year term of his probation. Therefore, counsel stated, his challenges to the probation condition imposed under section 1203.067, subdivision (b)(3), the condition imposed under section 1203.067, subdivision (b)(4), and the condition concerning residency were moot. The Attorney General, in his supplemental letter brief, agreed with this position. We agree that the circumstance of defendant's completion of probation has rendered his appellate challenges to the three probation conditions moot, and we will therefore not address the merits of the claims. (See People v. Moran (2016) 1 Cal.5th 398, 408, fn. 8 [termination of probation rendered defendant's challenge to validity of condition moot].)
In Garcia, supra, 2 Cal.5th 792, our high court held that the probation condition imposed under section 1203.067, subdivision (b)(3) should be construed to require probationers to "answer all questions posed by the containment team fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding." (Garcia, supra, at p. 803.) The court explained that, so construed, the condition did not violate the probationer's Fifth Amendment rights, since "the Fifth Amendment does not establish a privilege against the compelled disclosure of information; rather, it 'precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.' [Citation.]" (Garcia, supra, at p. 807.) And the Supreme Court found that the probation condition imposed under section 1203.067, subdivision (b)(4) did not violate the probationer's right to privacy and the condition was not unconstitutionally overbroad. (Garcia, supra, at pp. 809-810.) In addressing the privacy issue, the court found the intrusion on the psychotherapist-patient privilege to be "quite narrow," in that "a probationer's confidential communications may be shared only with the probation officer and the certified polygraph examiner." (Id. at p. 810.) And the court rejected the overbreadth challenge. The court similarly noted that "[t]he required waiver [of the psychotherapist-patient privilege] extends only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program. [Citation.]" (Id. at pp. 811-812.) The court explained that, "[i]n all other respects, the privilege remains intact." (Id. at p. 813.)
B. Imposition of Fine and Penalty Assessments
Before the court entered its probation order on May 29, 2013, defense counsel urged that the court impose "minimal fines and fees" due to defendant's lack of financial resources. After acknowledging counsel's position, the court ordered, among other things, that defendant pay a fine of $300 and penalty assessments of $735, pursuant to section 290.3. It made no express finding and conducted no inquiry concerning whether defendant had the ability to pay these amounts.
Defendant contends the court erred in imposing the fine and penalty assessments under section 290.3 without determining, based upon substantial evidence, whether defendant had the ability to pay them. The Attorney General responds that from "the current record, this Court should presume that the trial court knew the applicable law and made an implied finding of ability to pay the section 290.3 fine." In his supplemental letter brief following transfer of this case from the Supreme Court, the Attorney General also argued that it was improper for this court to consider defendant's claim (urged in defense counsel's supplemental letter brief) that his wages were being garnished to satisfy the fee and assessments imposed under section 290.3.
Under section 290.3, the court is required to impose a statutory fine unless it finds a defendant is unable to pay it. (People v. McMahan (1992) 3 Cal.App.4th 740, 749 (McMahan).) The burden is upon the defendant to timely raise an objection to the imposition of a fine under section 290.3 based on his or her inability to pay. (McMahan, supra, at p. 749-750.) The court is not required to make express findings on the record in deciding to impose, or to not impose, a fine under section 290.3. (People v. Burnett (2004) 116 Cal.App.4th 257, 261 (Burnett).) "Section 290.3 does not limit the evidence the trial court may consider in determining a defendant's ability to pay the sex offender fine. Consequently, the trial court may consider all evidence relevant to ability to pay, including the amount of any fine or restitution ordered and the defendant's potential future income. Following a consideration of the facts and after concluding the defendant does not have the ability to pay, the trial court may properly decline to impose the sex offender fine." (Ibid.)
"Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (§ 290.3, subd. (a).)
The court here did not make a finding that defendant had the ability to pay the fine under section 290.3. We may, of course, imply such a finding. (Burnett, supra, 116 Cal.App.4th at p. 261.) And while "we must draw all reasonable inferences in favor of the [order]" (People v. Mercer (1999) 70 Cal.App.4th 463, 467), there must be substantial evidence to support the implied finding.
Defense counsel below, in urging the court "in the interest of justice . . . to lower or strike the fees that [are] within its power to do," made an offer of proof regarding defendant's indigence. She indicated that defendant was living with his sister, who was supporting him financially because he had lost his job when he was taken into custody. She also stated that defendant was unemployed, had no means of support, had no savings, and was financially dependent on his sister. It was also noted in the probation officer's report that defendant did not have a high school diploma. The court acknowledged counsel's position by stating, "I appreciate that." It did not cite any evidence rebutting defense counsel's offer of proof that defendant was without assets or income, and the prosecution submitted nothing in response on the issue. Nor does anything in the probation officer's report indicate that defendant had any income, assets, employment, or employment prospects. There was thus no substantial evidence to support the trial court's implied finding of defendant's ability to pay the fees.
The circumstances here are analogous to those in People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco). In Pacheco, this court was concerned with an implied finding of the defendant's ability to pay relating to the payment of attorney fees under section 987.8. A panel of this court concluded that, while the court's finding of the defendant's ability to pay could be implied, it nonetheless "must be supported by substantial evidence. [Citations.]" (Pacheco, supra, at p. 1398.) Because there was nothing in the record concerning the defendant's "assets, employment status or other means of income from which the court could have made a determination of his ability to pay attorney fees as provided by section 987.8," the attorney fee order was reversed. (Id. at p. 1399.)
Pacheco, supra, 187 Cal.App.4th 1392, was disapproved on other grounds in People v. McCullough (2013) 56 Cal.4th 589, 599 (McCullough). The Supreme Court in McCullough held that, contrary to the holding in Pacheco, a defendant's failure to object at the trial level to the imposition of a booking fee under Government Code section 29550.2 forfeits an appellate challenge to that fee. (McCullough, supra, at p. 599.) Here, the Attorney General did not assert that defendant forfeited the appellate challenge to imposition of the fine and assessments under section 290.3 based upon his failure to object at the trial level.
Likewise, here, there is no evidence refuting defense counsel's offer of proof regarding her client's indigence. There was thus no substantial evidence to support the court's implied finding of defendant's ability to pay the fine and assessments levied under section 290.3. We will therefore remand to the trial court with instructions to strike the fine and assessments imposed pursuant to section 290.3, and to consider any post-probation order developments, such as garnishment of defendant's wages to satisfy such fine and assessments.
IV. DISPOSITION
The matter is remanded to the trial court with directions that it strike the fine of $300 and penalty assessments of $735 imposed pursuant to Penal Code section 290.3 as stated in the order of probation dated May 29, 2013. All other challenges to the probation orders of May 29, 2013, and July 19, 2013, are deemed moot.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.