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People v. Mendoza

California Court of Appeals, Sixth District
Feb 8, 2011
H035336, H035660 (Cal. Ct. App. Feb. 8, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MENDOZA, Defendant and Appellant. H035336, H035660 California Court of Appeal, Sixth District February 8, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC958089, C1072182

BAMATTRE-MANOUKIAN, J.

In superior court case No. CC958089, defendant Joseph Mendoza pleaded no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The court suspended imposition of sentence and placed him on probation for three years with various terms and conditions. In superior court case No. C1072182, defendant pleaded guilty to possession for sale of marijuana (Health & Saf. Code, § 11359). The court suspended imposition of sentence and placed him on probation for three years with various terms and conditions, including the conditions imposed in case No. CC958089. As defendant also admitted violating the terms of his probation in case No. CC958089, the court reinstated probation in that case with the original terms and conditions, the probation to be coterminous with probation in case No. C1072182.

Further unspecified statutory references are to the Penal Code.

On appeal, defendant contends that (1) some of the gang-related conditions of probation do not include an appropriate knowledge requirement, (2) the probation condition limiting his ability to attend court proceedings is unconstitutionally overbroad, (3) the order to pay attorney fees must be stricken, (4) trial counsel rendered ineffective assistance, (5) the minutes should be corrected to reflect the $200 restitution fine ordered by the court, and (6) the judgment must be modified to state that the ordered court security fee and the court facilities assessment are not conditions of probation. We will order the judgment in case No. CC958089 modified, and affirm the judgment as so modified. We will reverse the judgment in case No. C1072182, and remand the matter to the trial court with directions.

BACKGROUND

On October 11, 2009, defendant yelled gang slogans when he and another person approached three men. Defendant was charged by felony complaint No. CC958089 filed October 15, 2009, with three counts of assault with a deadly weapon. (§ 245, subd. (a)(1).) The complaint also alleged that defendant personally used deadly weapons, that is, golf clubs and bricks, in the commission of the three offenses. On February 4, 2010, defendant entered into a negotiated plea agreement whereby count one was amended to allege “a soft 245 [assault with force likely to produce great bodily injury] so it will be a nonstrike, and adding the victims who are identified in counts two and three” so that there are “three named victims in count one, ” and he pleaded no contest to that count with the understanding that he would “receive nine months top and bottom, no early release programs.” On February 23, 2010, the court dismissed counts two and three, suspended imposition of sentence, and placed defendant on probation for three years with various terms and conditions. Included in the probation conditions were a nine-month jail term, which was deemed served; a search condition; various gang-related conditions; and various fines and fees.

On March 18, 2010, defendant was driving a vehicle stopped by a Milpitas police officer for speeding. The officer searched the vehicle pursuant to defendant’s probation search condition and found two large bags that contained multiple smaller bags of marijuana. Defendant was charged by felony complaint No. C1072182 filed March 22, 2010, with possession for sale of marijuana (Health & Saf. Code, § 11359). He was separately charged with violating his probation in case No. CC958089. On April 26, 2010, defendant entered into a negotiated plea agreement whereby he pleaded guilty to the new offense and admitted violating his probation with the understanding that he would receive a one-year jail term for both cases and that the $457 confiscated from him upon his arrest would be applied towards his ordered fines and fees. He requested that he be sentenced immediately, so the court suspended imposition of sentence in case No. C1072182 and placed him on probation for three years with various terms and conditions, including a one year jail term, the conditions of his previous case, and other various fines and fees. The court reinstated probation in case No. CC958089 on the original terms and conditions, and ordered the probation to run coterminous with that in case No. C1072182.

DISCUSSION

Gang-related Conditions of Probation

As part of the conditions of probation in case No. CC958089, the court ordered that defendant “[1.] Not knowingly associate with individuals known to be members of a criminal street gang or knowingly associate with individuals identified as gang members by the probation department. [¶] [2.] Not knowingly frequent any areas of gang-related activities. [¶] [3.] Not participate in any gang activity as directed by a probation officer. [¶] [4.] Not use, display or possess any insignia, emblem, button, badge, cap, hat, scarf, bandanna, jacket or other article of clothing which is evidence of affiliation or membership in a street gang as directed by a probation officer. [¶]... [¶] [5.] Not obtain any new gang-related tattoos as directed. [¶] [6.] Not appear at any court proceedings unless a party, a defendant in a criminal action or appearing subpoenaed as a witness or with prior written permission from a probation officer.”

In their briefs, the parties refer to and quote the probation conditions recommended in the probation officer’s waived referral report. We here discuss the conditions actually imposed by the court at sentencing. We have numbered them 1 through 6 solely for ease of reference.

Contentions

Defendant contests some of these conditions of probation as being unconstitutionally overbroad and vague. He argues that conditions 3, 4, and 5 “do not include a requirement that [he] knowingly take the action that would put him in violation of probation, ” and condition 6 “impinge[s] on a variety of [his] constitutional rights, including his First Amendment right to petition the government for redress of grievances, as well as his right, as a member of the public, to attend trials which is implicit in the First Amendment’s guarantees of freedom of speech and of the press.” Defendant requests that this court correct conditions 3, 4, and 5 by inserting a knowledge requirement, and correct condition 6 by modifying it to reflect the probation condition this court ordered in People v. Leon (2010) 181 Cal.App.4th 943, at page 954 (Leon).

The Attorney General contends that condition 3 already includes a knowledge requirement but concedes that a knowledge requirement should be added to conditions 4 and 5. The Attorney General also contends that condition 6 should be modified to include “an explicit knowledge requirement and a standard for the probation officer to grant or withhold approval, thereby rendering it constitutional.”

The Attorney General agrees with defendant’s claim that he is entitled to raise a constitutional challenge to the probation conditions even though he did not object to them in the trial court. (See Leon, supra, 181 Cal.App.4th at p. 949.)

Analysis

In Leon, this court stated: “ ‘In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]’ [Citation.]” (Leon, supra, 181 Cal.App.4th at p. 948.) “But the Supreme Court has recognized that ‘[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. [Citation.]’ [Citation.] Also, ‘[a] probation condition “must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ” if it is to withstand a challenge on the ground of vagueness. [Citation.]’ [Citation.]” (Id. at pp. 948-949.) “Given ‘the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, ’ the knowledge requirement in probation conditions ‘should not be left to implication.’ [Citation.]” (Id. at p. 950.)

The third gang condition of probation states: “Not participate in any gang activity as directed by a probation officer.” Defendant contends that the condition should include an explicit knowledge requirement. Reading the third gang condition together with the second gang condition, the Attorney General contends that the condition need not be modified because it already includes an explicit knowledge requirement. We agree with defendant that the condition as ordered should be modified to read: “You shall not participate in any activity that you know, or that a probation officer informs you, is criminal street gang activity.”

The fourth gang condition of probation states: “Not use, display or possess any insignia, emblem, button, badge, cap, hat, scarf, bandanna, jacket or other article of clothing which is evidence of affiliation or membership in a street gang as directed by a probation officer.” Defendant contends and the Attorney General concedes that the condition should include an explicit knowledge requirement. We will order the condition modified to state: “You shall not use, display or possess any insignia, emblem, button, badge, cap, hat, scarf, bandanna, jacket or other article of clothing that you know, or that a probation officer informs you, is evidence of affiliation or membership in a criminal street gang.”

The fifth gang condition of probation states: “Not obtain any new gang-related tattoos as directed.” Defendant contends and the Attorney General concedes that the condition should include an explicit knowledge requirement. We will order the condition modified to state: “You shall not obtain any new tattoo that you know, or that a probation officer informs you, is evidence of affiliation or membership in a criminal street gang.”

In Leon, this court also stated: “A general ban on being present at any courthouse or court proceeding, except when scheduled for a hearing or subpoenaed as a witness, may impinge upon a host of constitutional rights.” (Leon, supra, 181 Cal.App.4th at p. 952.) “[I]n general, the First Amendment right of access applies to civil proceedings as well as to criminal proceedings.’ [Citations.]” (Id. at pp. 952-953.) A condition that is “neither ‘limited to protecting specific witnesses or parties’ nor ‘confined to trials involving gang members’ [is] ‘so broad’ that it prevent[s] activities unrelated to future criminality.’ [Citation.]” (Id. at p. 953.) “Additionally, the probation condition is not saved because it allows defendant to attend court proceedings with the probation officer’s permission. A probation condition that in effect delegates unfettered discretion to a probation officer to determine its scope at the very least risks being unconditionally overbroad.” (Ibid.) “While the trial court might expect the probation officer to routinely grant permission to defendant to be present at a court proceeding or courthouse unless defendant appeared to have an unlawful purpose, a gang-related purpose, or some other purpose related to future criminality, the probation condition does not provide this standard for granting or withholding approval.” (Id. at p. 954.)

The sixth gang condition of probation states: “Not appear at any court proceedings unless a party, a defendant in a criminal action or appearing subpoenaed as a witness or with prior written permission from a probation officer.” Defendant requests that this court correct the condition by modifying it to reflect the probation condition this court ordered in Leon, supra, 181 Cal.App.4th at page 954. The Attorney General contends that the condition should be modified to include “an explicit knowledge requirement and a standard for the probation officer to grant or withhold approval.” Accordingly, we will modify the condition to state: “You shall not be present at any court proceeding where you know, or a probation officer informs you, that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have prior written permission from a probation officer.”

Fines and Fees

On February 23, 2010, when placing defendant on probation in case No. CC958089, the court stated in part: “Imposition of sentence will be suspended. [¶] You’ll be placed on formal probation for a period of three years. [¶]... [¶] You’re referred to the Department of Revenue for a determination of your ability to pay the fines and fees the court will impose. [¶] If you disagree with their findings, you have a right to have a hearing on that issue before the court. [¶] Court will impose a county jail sentence of nine months. [¶]... [¶] Sentence will be deemed served. [¶] General order of restitution will be imposed. If there’s any finding on restitution and you disagree with it, you have a right to have a hearing on that issue before the court. [¶]... [¶] Maintain employment and/or academic or vocational training. [¶]... [¶] Restitution fine of $200. Additional restitution fine equal to that is imposed and suspended. [¶] The court security fee and conviction assessment fees of $30, respectively. [¶] Booking fee [$]129.75 to Milpitas. [¶]... [¶] Probation supervision fee not [to] exceed $110 per month. [¶] Are all these terms and conditions acceptable to you, sir?” Defendant responded affirmatively.

On April 26, 2010, when placing defendant on probation in case No. C1072182, the court stated in part: “[I]mposition of sentence will be suspended, three years formal probation under the following terms and conditions: [¶] One year in the county jail. [¶] I’m assuming he got a probation supervision fee for the previous case. [¶] $220 restitution fine; [¶] $220 suspended. [¶]... [¶] And a $50 lab fee; [¶] $150 drug education fee; [¶] $30 court construction fee; [¶] $30 court security fee; [¶] a booking fee to the city of Milpitas $129.75; [¶] public defender fees $300; [¶] We’ll apply the $457 towards those fines and fees. [¶]... [¶] The conditions of probation for your previous case will also apply. [¶]... [¶] I’m saying 40 plus 40 half-time for 80 [days credit], and we’ll say halftime. [¶] And then for CC958089, probation will be reinstated and ordered to run coterminous; [¶] original terms and conditions; [¶] no additional penalties.” The court did not ask and defendant did not expressly state whether he accepted the court’s terms and conditions of probation.

Attorney Fees

Citing this court’s decision in People v. Viray (2005) 134 Cal.App.4th 1186 (Viray), defendant now contends that the court failed to comply with the procedures mandated in section 987.8 when it ordered him to pay $300 in attorney fees, so the order should be stricken or, alternatively, corrected to clarify that it is not a condition of probation. Defendant also contends that he did not forfeit this issue because his counsel rendered ineffective assistance as he “simply stood aside quietly when the court ordered [defendant] to reimburse the county for $300 of attorney’s fees.”

The Attorney General contends: (1) “[U]nlike in Viray, this Court should find that [defendant] has forfeited his claim regarding the alleged lack of procedures employed in ordering him to pay $300 in attorney’s fees.” (2) “In any event, the trial court did not err by imposing attorney’s fees because it complied with the statutory requirements of section 987.8, subdivision (b).” (3) “In light of [defendant’s] strong financial position at the time of his arrest, his young age, his short jail-term, and the requirement that he maintain employment as a condition of his probation, there was more than substantial evidence to support the $300 attorney fees order.” (4) “Even assuming, arguendo, that the trial court erred by ordering [defendant] to pay attorney’s fees, this Court need not strike the order, as [defendant] contends.” (5) “The record makes no reference to the attorney’s fees as being a part of the conditions of probation, and thus, the trial court committed no error.” (6) “Here, the public defender did not violate [defendant’s] right to conflict-free counsel.”

In Viray, the defendant contested on appeal the trial court’s order that she reimburse the public defender’s office in the amount of $9,200 pursuant to section 987.8. (Viray, supra, 134 Cal.App.4th at p. 1213.) This court found that the defendant was not barred from objecting on appeal to the order for attorney fees, as “an appellate forfeiture [cannot] properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees.” (Id. at p. 1215.) Moreover, a challenge to the sufficiency of the evidence to support the order “requires no predicate objection in the trial court. [Citations.]” (Id. at p. 1217.)

Section 987.8 provides in relevant part that “the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost” of legal assistance “provided... through the public defender or private counsel appointed by the court.” (§ 987.8, subd. (b).) “ ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her....” (§ 987.8, subd. (g)(2).) Factors to be considered include (1) the “defendant’s present financial position, ” (2) “reasonably discernible future financial position” in the six months following the ability-to-pay hearing, (3) likelihood of obtaining employment during that period, and (4) any other facts bearing upon the defendant’s “financial capability.” (§ 987.8, subd. (g)(2)(A)-(D).)

The determination that a defendant has the present ability to pay is a prerequisite to entry of an order requiring payment of attorney fees. (§ 987.8, subd. (e).) Only the trial court can make that determination. (See § 987.8, subd. (b).) However, “[t]he court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (Ibid.)

Here, the trial court made no express finding that defendant had the present ability to pay the ordered $300 in attorney fees. Although the court referred defendant to the Department of Revenue for a determination of his ability to pay all ordered fines and fees when it sentenced him on February 23, 2010, in case No. CC958089, it did not order defendant to pay attorney’s fees at that time. The court did not refer defendant to the Department of Revenue for a determination of his ability to pay the ordered fines and fees when it sentenced him on April 26, 2010, in case No. C1072182, which is when it imposed the $300 attorney fees order. Therefore, the attorney fees order was not made contingent on the Department of Revenue’s determination, nor was a provision made for a subsequent court hearing on defendant’s ability to pay. Accordingly, we find that the trial court did not comply with the procedures outlined in section 987.8 for imposition of an order to pay attorney fees, and we agree with the Attorney General that a remand for a hearing on defendant’s ability to pay the ordered fees is the appropriate remedy. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1403 (Pacheco).)

We also find that the order to pay attorney fees was improperly imposed as a condition of probation. The probation officer’s report in case No. CC958089 recommended that the court order defendant to pay “Attorney fees if appropriate, ” but the court did not order defendant to pay any attorney fees at the February 23, 2010 sentencing hearing. Defendant waived a probation report before being sentenced in case No. C1072182 and, although the court did not specifically state that the ordered “public defender fees [of] $300” was a condition of probation, the court made the order along with other conditions of probation and just before stating that the $457 confiscated from defendant upon his arrest would by applied “towards those fines and fees.” The form minute order for the sentencing hearing also includes the attorney fees order in the same column with other fines and fees (such as the drug lab and drug education fees) which were ordered as conditions of probation.

The judge who sentenced defendant on April 26, 2010, was not the same judge who sentenced him on February 23, 2010.

An order directing payment of attorney fees may not be made a condition of probation. (People v. Flores (2003) 30 Cal.4th 1059, 1067, fn. 5; Pacheco, supra, 187 Cal.App.4th at p. 1399.) As we are remanding the matter to the trial court to allow it to hold a hearing to determine defendant’s ability to pay the ordered $300 in attorney fees, defendant cannot show that he was prejudiced by his counsel’s failure to object to the trial court’s order. Therefore, no ineffective assistance of counsel has been shown. (See, e.g., Fuller v. Oregon (1974) 417 U.S. 40 [collection of attorney fees from defendants who can afford to pay is permitted].)

Restitution Fines

The amended minute order of the February 23, 2010 sentencing hearing in case No. CC958089 states that the court ordered a $220 restitution fine, and an additional $220 restitution fine suspended pursuant to section 1202.44. Defendant contends, and the Attorney General concedes, that the amended minute order should be corrected to reflect that the amounts the court ordered were $200, respectively. We will so order.

Court Security Fees

In both cases, the trial court ordered defendant to pay a $30 court security fee pursuant to section 1465.8 as a condition of probation. Defendant contends, citing Pacheco, supra, 187 Cal.App.4th at pages 1402-1403, that the court security fee cannot be ordered as a condition of probation and that we should modify each judgment to state that the order to pay the fee is not a condition of probation. The Attorney General agrees that the judgments should be modified to state that the ordered fee is an order separate and apart from the ordered conditions of probation. (See People v. Alvarado (2010) 187 Cal.App.4th 72, 79-80.)

“To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense....” (§ 1465.8, subd. (a)(1).)

Court Facilities Assessments

In both cases, the trial court imposed a court facilities assessment of $30 pursuant to Government Code section 70373 as a condition of probation. Defendant contends, again citing Pacheco, supra, 187 Cal.App.4th at pages 1402-1403, that the assessment cannot be ordered as a condition of probation, and that we should modify each judgment to state that the order to pay the assessment is not a condition of probation. He acknowledges that we did not discuss the court facilities assessment in Pacheco, but argues that our analysis of the court security fee is equally applicable to the court facilities assessment. The Attorney General agrees that the fee should not be imposed as a condition of probation, but as a separate order, and that the judgments should be modified to so state.

“To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense....” (Gov. Code, § 70373, subd. (a)(1).)

DISPOSITION

The judgment in case No. CC958089 is ordered modified so that the third through sixth gang conditions state, respectively: 3. “You shall not participate in any activity that you know, or that a probation officer informs you, is criminal street gang activity.” 4. “You shall not use, display or possess any insignia, emblem, button, badge, cap, hat, scarf, bandanna, jacket or other article of clothing that you know, or that a probation officer informs you, is evidence of affiliation or membership in a criminal street gang.” 5. “You shall not obtain any new tattoo that you know, or that a probation officer informs you, is evidence of affiliation or membership in a criminal street gang.” 6. “You shall not be present at any court proceeding where you know, or a probation officer informs you, that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have prior written permission from a probation officer.”

The judgment is further ordered modified by deleting that defendant pay, as conditions of probation, the $30 court security fee and the $30 court facilities assessment. However, the order that defendant pay such fees is affirmed as an order entered as part of the judgment, separate and apart from the conditions of probation. As so modified, the judgment is affirmed. The clerk of the superior court shall correct the February 23, 2010 minute order to reflect that the ordered restitution fine and suspended restitution fine are each $200, rather than $220.

The judgment in case No. C1072182 is reversed. The matter is remanded to the trial court with directions to strike the order that defendant pay, as conditions of probation, the $300 public defender fees, $30 court security fee, and $30 court facilities assessment. The court may hold a hearing to determine, in accordance with the applicable statutes, defendant’s ability to pay any public defender fees up to the amount of $300. The court shall reinstate the order to pay a $30 court security fee and a $30 court facilities assessment as part of the judgment, but separate and apart from the conditions of probation.

WE CONCUR: PREMO, ACTING P.J., GROVER, J.

Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Mendoza

California Court of Appeals, Sixth District
Feb 8, 2011
H035336, H035660 (Cal. Ct. App. Feb. 8, 2011)
Case details for

People v. Mendoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MENDOZA, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Feb 8, 2011

Citations

H035336, H035660 (Cal. Ct. App. Feb. 8, 2011)