Opinion
C087352
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY ANN RICHIE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62153733)
After defendant Kimberly Ann Richie pleaded no contest to bringing drugs into jail (Pen. Code, § 4573, subd. (a)), the trial court granted her three years' 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 her constitutional rights because there was no determination of her ability to pay them. We will affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant brought a pipe used to smoke methamphetamine into the county jail. Pursuant to a negotiated agreement, defendant pleaded no contest to bringing drugs into jail (§ 4573, subd. (a)). The trial court granted defendant three years' formal probation with various terms and conditions, including that she serve 364 days in jail. The prosecutor requested and the court imposed an electronics search condition pursuant to section 1546, providing that, "Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any other object under his/her control, including but not limited to cell phones and computers, to search and seizure by an[y] law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent." Defendant made no objection to the probation condition.
After defendant pleaded no contest, trial counsel submitted medical records to the court that detailed the decline in defendant's health after her plea. At the sentencing hearing, trial counsel and the court discussed defendant's medical condition, and counsel informed the court defendant had "more surgeries scheduled" and she had been in the hospital. Defendant informed the court she had "an autoimmune disorder," and she had to see a rheumatologist, have "IV therapy," and "one or more surgeries" because her "throat keeps closing up." The court told defendant it would "take that into consideration" and subsequently structured her sentence to allow her release from jail for the surgery with a second turn-in date to complete her sentence two months after the surgery.
Prior to imposing the challenged assessments and fine, the trial court stated it would "strike the base fine to zero" and reduce the amount of the probation supervision and booking fees based on defendant's "financial status and medical status." The court then imposed various fines and fees, including a restitution fine in the amount of $300, a $40 court operations fee, and a $30 criminal assessment fee. The court awarded defendant presentence credit for 33 actual days and 32 days conduct credit.
DISCUSSION
I
Facial Overbreadth Challenge to Electronics Search Condition
Defendant contends the electronics search condition is facially overbroad. She argues there were narrower means to ensure she did not violate the terms of probation. While she concedes she did not object in the trial court, she asserts her claim is not forfeited because she asserts a facial challenge. We reject defendant's contention.
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 the defendant did not object to the electronics search condition in the trial court, she has forfeited her ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to her. (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, her claim is not forfeited.
Because we agree defendant has raised a facial challenge to the condition, we need not reach her secondary argument that if her overbreadth claim is forfeited, her trial counsel provided ineffective assistance in failing to object to the condition as overbroad.
"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 that 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, 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. 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." (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128-1129 (Ricardo P.).) 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 In re Malik J., the court concluded an electronics search condition was reasonable in light of the defendant's criminal history. (In re Malik J., at p. 902.) Similarly, in People v. Ebertowski, the court held an electronics search condition was valid under the circumstances of the case. (Ebertowski, at pp. 1173, 1176-1177; see also People v. Patton (2019) 41 Cal.App.5th 934, 945, 946 [reasoning that because electronics search conditions may be constitutionally imposed under some circumstances, they are not facially invalid].) Accordingly, we cannot conclude the electronics search condition imposed in this case is 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 the electronics search condition is unconstitutionally overbroad on its face. In Riley, the Supreme Court held 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 ["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 her argument this condition is facially overbroad. Appleton, however, did not involve a facial challenge to an electronic device search condition. (Id. at pp. 721, 727.) Accordingly, 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 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 defendant's claim the electronics search condition is facially overbroad.
II
Imposition of Restitution Fine and Court Fees
In a supplemental brief filed with this court's permission following the Second Appellate District's recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues imposition of the following fines and fees violated her constitutional rights because the trial court did not determine her 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). She 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 her ability to pay in the trial court. Assuming, without deciding, defendant's challenges to the restitution fine and other fees have not been forfeited, we conclude Dueñas was wrongly decided and therefore reject defendant's claim on that basis.
A.
Dueñas
In Dueñas, the defendant (Dueñas) 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 granted Dueñas 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 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 (Griffin).)
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.)
B.
Forfeiture
There is presently a split of authority with respect to whether or not a defendant who did not object to the trial court's imposition of mandatory fines and fees based on inability to pay, such as defendant in this case, forfeits a Dueñas claim. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126 [finding forfeiture] with People v. Castellano (2019) 33 Cal.App.5th 485 [no forfeiture].) We need not weigh in on this forfeiture issue here because, as we explain immediately below, even assuming defendant's claim is properly preserved for review, there was no constitutional violation.
C.
No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas, supra, 30 Cal.App.5th 1157 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; People v. Kingston (2019) 41 Cal.App.5th 272, 279-282). We join the latter group and limit our discussion of the matter to rejecting Dueñas outright.
In Hicks, our colleagues at the Second Appellate District rejected the Dueñas, supra, 30 Cal.App.5th 1157 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.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17 , "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." (Hicks, at p. 326.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., In re Antazo (1970) 3 Cal.3d 100 and Bearden v. Georgia (1983) 461 U.S. 660, 667-668 , 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 pp. 326-327.) 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." (Hicks at p. 326.)
Finally, the Hicks court also concluded Dueñas, supra, 30 Cal.App.5th 1157 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.)
We agree with the Hicks analysis in its entirety. The strands of precedent relied upon by the Dueñas court (supra, 30 Cal.App.5th 1157) 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 her inability to pay. Rather, she was incarcerated because of her crime. She was granted probation for this crime, with 364 days of jail time and 65 days' credit, and she will have an opportunity to attempt to pay these obligations, e.g., from wages if she obtains employment upon her release on probation. "Should they remain unpaid at the end of [her probation term], the trial court will have to decide whether it was due to [her] 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.)
Nor has defendant persuaded this court that imposition of the fines and fees would violate her Eighth Amendment right against excessive fines. Defendant has cited no authority, nor have we discovered any on our own, 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 her economic situation.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J.
I concur:
/s/_________
BLEASE, Acting P. J. ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except section II relating to the imposition of the restitution fine and assessments regarding defendant's ability to pay. Defendant believes Dueñas calls into question the imposition of the $300 restitution fine, $40 court operations assessment, and $30 criminal assessment without a determination of her 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 fine and assessments at issue if a 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, 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 her conviction and sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491.)
/s/_________
Robie, J.