Opinion
D075052
11-13-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL RITTNER, Defendant and Appellant.
Ken D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD277387) APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed. Ken D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
On June 16, 2018, Daniel Rittner and his coworker Anthony L. were working as nightclub security guards when they became involved in a verbal altercation about how to deal with an intoxicated customer. After work, they confronted each other in the employee parking lot and agreed to engage in a fistfight in a nearby alley. As they walked to the alley, Rittner pepper sprayed Anthony and hit him multiple times with an expandable metal baton, causing him to sustain injuries. The jury heard testimony from Anthony, two nightclub employees, law enforcement officials, and Rittner. Rittner's defense at trial was that he acted in self-defense after Anthony told Rittner that he had a gun and did not "fight fair."
A jury convicted Rittner of assault with a deadly weapon and found true the allegation that he had used a baton as a deadly weapon. (Pen. Code, §§ 245, subd. (a)(1) and 1192.7, subd. (c)(23).) The jury found not true the allegation that Rittner had inflicted great bodily injury upon Anthony. (§ 12022.7, subd. (a).) The trial court sentenced Rittner to three years of formal probation, with various terms and conditions. On appeal, Rittner contends that: (1) the trial court erred in failing to instruct the jury on the lesser included offense of simple assault; (2) three of the probation conditions that the court imposed, conditions 6k, 6l, and 6n, are unconstitutionally vague or overbroad; and (3) the court's imposition of a restitution fine and assessments without first holding an ability to pay hearing in accordance with People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) violated his due process rights. We reject these contentions and affirm.
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Case
Anthony L. was working as a nightclub security guard when he began asking customers to leave the premises at closing time. At around 2:00 a.m., he noticed a man at the bar who was visibly intoxicated. He informed his coworkers about the intoxicated customer. Anthony and Rittner, who was also a security guard at the nightclub, disagreed about how to deal with the customer. During the argument, Rittner said to Anthony, "[g]o back to work, nigger." Anthony responded: "What? You should watch who you're talking to." Rittner replied, "[y]ou are going to find out what I am about after—after work you can catch me outside." This interaction lasted only a few minutes. After this exchange, Anthony returned to work while Rittner dealt with the intoxicated customer. Later that evening, all of the security guards met inside the nightclub for a routine "debriefing." The verbal altercation between Anthony and Rittner was not discussed.
After the debriefing, Anthony left the nightclub and went to "warm up" his car in the employee parking lot. As he was sitting in his car listening to music, he saw Rittner and another security guard walking toward the parking lot. Due to Rittner's earlier statements and hostile demeanor, Anthony got out of his car "for [his] own safety." Anthony walked over to the passenger side of his car to turn off the radio, but the door was locked. At this point, Rittner reached into his pocket and said to Anthony, "Oh, yeah, what's up now[?]"
Still upset from Rittner's use of a racial slur, Anthony confronted Rittner about it. Rittner again used the same racial slur to refer to Anthony, prompting Anthony to say, "[i]f you want to do this, then we can do it right now." Rittner then told Anthony that he was from "somewhere" that "sounded like a gang affiliation," to which Anthony responded that he had "family all over San Diego." According to Anthony, he never referenced gangs or weapons during either of the verbal altercations that he had with Rittner.
Anthony walked to the alley, ready to engage in a fistfight. He stood in the alley, facing Rittner, and questioned Rittner about his use of the racial slur. In response, Rittner pepper sprayed Anthony in the face. Anthony walked away rubbing his eyes with his sweater. Rittner followed Anthony, hitting him in the head with the metal baton. Anthony never hit Rittner back because Anthony was disoriented by the pepper spray. After this altercation, Anthony briefly returned to his car before running back into the nightclub to rinse out his eyes. He called the police, who dispatched an ambulance to the scene. Anthony was transported to a nearby hospital and was treated for injuries to his head, right arm, right leg, and back, caused by the baton strikes. He received 10 staples for the laceration on his head. B. The Defense Case
The 911 call was played for the jury. During the call, Anthony said that he had been pepper sprayed and hit with a baton, that his eyes were burning, that he had a huge gash on his head, and that he required medical attention. While crying, Anthony also said that his coworker had threatened him, had used a racial slur, and had fled the scene.
Rittner testified in his own defense at trial. He conceded that he had engaged in a verbal altercation with Anthony inside the nightclub, but denied calling Anthony a "nigger" to his face. Rather, Rittner maintained that he had only "indirectly" called Anthony the slang term "nigga" at the end of the security guards' debriefing. According to Rittner, during the initial altercation, Anthony had asked Rittner "where [he was] from" and said that Anthony was from a local gang. Unfazed by Anthony's purported gang affiliation, Rittner told him that they could "handle it after work," "take the [security] shirts off," and "go around the corner." Rittner explained that "hand[ling] it" meant "hand-to-hand combat, fisticuffs," or "duk[ing] it out." He and Anthony went back to work after a supervisor interjected and separated them.
While Rittner was outside of the nightclub monitoring departing customers, Anthony walked past Rittner and told him that he had called his "homeboys" and that Rittner had "better watch [his] step" because they were "going to get [his] ass." Anthony walked past Rittner a second time and said that he had a "strap," or gun, in his car and that he did not "fight fair." After Anthony made this remark, Rittner went to his car, grabbed his pepper spray and baton, and returned to the nightclub for the debriefing. Rittner testified that, after the first debriefing, Anthony "shoulder checked" him. Rittner thought that Anthony was "trying to provoke a fight" by "standing outside of the door" while Rittner attended a second debriefing. Rittner spoke to a supervisor about Anthony's threatening behavior and waited a few minutes before leaving the nightclub.
According to Rittner, as he walked to the parking lot with a coworker, he noticed that Anthony's car was positioned between Rittner's car and the parking lot exit, which would prevent Rittner from being able to leave. As Rittner approached the parking lot, Anthony jumped out of his car and aggressively "came up to [Rittner's] face," claiming that Rittner had used a racial slur to refer to Anthony. At one point, Anthony went to the passenger side of his car and started reaching for the door handle, prompting Rittner to shine his flashlight at Anthony and tell him to get away from the car. Rittner explained that he told Anthony to get away from the car because he thought that Anthony might be retrieving a gun, given Anthony's earlier threat. Anthony then walked toward Rittner and said that he had "something else for [Rittner's] ass" and that they should "go around the corner." The two continued arguing and eventually agreed to engage in a fistfight in the alley.
Rittner testified that Anthony went around the corner, turned around, and started "digging in his waist." At this point, Rittner pepper sprayed Anthony and deployed his baton. Anthony turned his back to Rittner. Still concerned that Anthony was reaching for a gun, Rittner hit him with the baton. He had aimed for Anthony's collarbone but accidentally hit him in the head. Rittner continued hitting Anthony because he "wanted to clear him for weapons." Rittner also intended the baton strikes as commands for Anthony to get down, but Anthony did not comply. After this altercation, Rittner went inside the nightclub and hid from Anthony. Rittner eventually left the nightclub on foot. C. The Physical Evidence
At trial, the prosecution played a video recording for the jury that contained four video files depicting: (1) Rittner exiting the nightclub with a coworker; (2) the verbal altercation between Rittner and Anthony in the employee parking lot; (3) the assault in the alley; and (4) Anthony briefly returning to his car in the parking lot after the assault and before reentering the nightclub. The video recording does not have any audio. In the second video file, Anthony's car is facing the exit gate of the parking lot, with the lights turned on and the driver's side door open. As Rittner and his coworker approach the gate, Anthony jumps out of his car, walks past Rittner and around the front of his car, and attempts to open the passenger side door, prompting Rittner and his coworker to stop and stand near the front driver's side of the car. The passenger door appears to be locked. Anthony then walks around the back side of his car, aggressively approaches Rittner, and stands directly in front of him. Rittner and Anthony stand face-to-face for several seconds. Anthony then backs away from Rittner and walks past him, exiting the parking lot and entering the alley. Rittner follows Anthony into the alley and opens the baton before they both disappear behind a shed. The recording ends at this point.
In the third video file, Anthony is seen walking away from Rittner in the alley, rubbing his eyes with a sweater. He is followed by Rittner, who hits him in the back of the head with the baton. Anthony continues walking down the alley, away from Rittner, rubbing his eyes. Anthony eventually turns to face Rittner. Rittner follows Anthony, hitting him in the right leg with the baton as he attempts to block the blow with his right hand. Anthony walks away from Rittner again, this time going down the alley in the other direction. Although Anthony is no longer in the frame, the video shows Rittner swinging his right arm in an upward motion and hitting Anthony again with the baton. Rittner continues to follow Anthony; Rittner picks up his pace and swings his right arm in an upward motion again, hitting Anthony one last time with the baton before Rittner exits the frame. Several seconds later, Rittner can be seen pacing in the alley near the nightclub exit, still holding the baton in his right hand.
The jury was presented with six photographs of Anthony's injuries caused by the baton strikes. These photographs show: (1) a contusion above his elbow on his right arm; (2) a contusion on his right leg; (3) contusions on the upper and middle part of his back; and (4) a laceration to the right side of his head. A one-page summary of Anthony's medical records from the hospital emergency room, stating that he had an acute concussion and received 10 staples for the laceration on his head, was introduced in evidence. In addition, the jury was shown photographs of the baton and the baton itself; at trial, a detective demonstrated how to open the baton. D. The Jury's Deliberations and Verdict
We have independently reviewed the 911 call, the video recordings, the photographs of Anthony's injuries and the baton, and the medical record summary presented to the jury.
During deliberations, the jury foreperson submitted the following note to the court: "What constitutes great bodily injury? Please provide additional examples of the difference between moderate [and] severe injury." After receiving both counsels' approval, the court responded: "Great Bodily Injury is essentially a question of fact, not of law. Whether the harm resulting constitutes great bodily injury is a question of fact for the Jury to decide." Later that same day, the foreperson submitted a second note: "Do we need to come to a complete agreement for each allegation [and] what should we do if we can not [sic] come to a unanimous decision on one of the allegations?" After receiving counsels' approval, the court responded: "Yes, the Jury needs to be unanimous in its decision for each allegation. If the Jury cannot come to a unanimous decision for each allegation, please notify the Court." The jury returned its verdict and findings a few minutes later.
III.
DISCUSSION
A. Simple Assault Instruction
Rittner contends that the trial court had a sua sponte duty to instruct on simple assault as a lesser included offense of assault with a deadly weapon, and that its failure to do so constitutes reversible error.
1. Additional Background
After the close of the evidence, the court stated the following to both counsel outside of the presence of the jury: "I can tell you that in the [court's instruction] packet that you have received is CALCRIM that relates to simple assault. That was in case there was a basis for a lesser included. The Court does not find that there's a legal basis to instruct on the lesser concluded [sic]. So I will pull out the 220, simple assault." Neither Rittner's counsel nor the prosecutor objected. The court subsequently stated, "[a]s I said, we'll withdraw the CALCRIM 915 [Simple Assault]," and asked Rittner's counsel, "just for legal purposes, what's your position on the lesser included?" Counsel responded: "I don't believe that the lesser included is appropriate. We're not asking for it." The court then made the same inquiry of the prosecutor, who responded: "I do not think it's appropriate either." The court concluded: "That's the Court's legal analysis."
2. Legal Principles
"A trial court must instruct on a lesser included offense ' " 'whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury.' " ' [Citation.] Substantial evidence in this context is evidence from which reasonable jurors could conclude that the lesser offense, but not the greater, was committed. [Citation.] When evaluating whether a lesser included offense instruction should have been given, we view the evidence in the manner most favorable to the defendant and apply an independent review standard." (People v. Mullendore (2014) 230 Cal.App.4th 848, 856 (Mullendore).) We determine only the "bare legal sufficiency," not the weight or credibility of the evidence supporting such an instruction. (People v. Breverman (1998) 19 Cal.4th 142, 177.)
3. Forfeiture
Rittner's counsel did not object to the court's decision to withdraw the simple assault instruction. To the contrary, his counsel affirmatively agreed that there was no legal basis to instruct the jury on the lesser included offense, stating that the instruction was "not appropriate" and that the defense was "not asking for it." "The invited error doctrine bars an appellate challenge to the absence of a lesser included offense instruction if the defendant, for tactical reasons, persuaded the trial court to forgo giving the instruction." (People v. Bell (2019) 7 Cal.5th 70, 109.) The record reflects that, given that the assault was captured on video, Rittner's counsel "had a deliberate tactical purpose" to focus on Rittner's claim of self-defense rather than argue that he had committed only the lesser included offense. (Ibid.) Any error in failing to instruct the jury on simple assault was thus invited and Rittner's claim of error is forfeited on appeal.
4. Analysis
Even if Rittner had properly preserved this issue, his claim lacks merit. Simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) It has been held—and the People here do not dispute—that simple assault is necessarily included in the offense of assault with a deadly weapon. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.)
The trial court instructed the jury on the offense of assault with a deadly weapon other than a firearm, pursuant to CALCRIM 875, as follows:
"Defendant is charged with assault with a deadly weapon other than a firearm, in violation of . . . section 245.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person;
"2. The defendant did that act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
"4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person;
"AND
"5. The defendant did not act in self-defense.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.
"The touching can be done indirectly by causing an object to touch the other person.
"The People are not required to prove that the defendant actually touched someone.
"The People are not required to prove that the defendant actually intended to use force against someone when he acted.
"No one needs to actually have been injured by the defendant's act. But if someone was injured, you may consider that fact along with all the other evidence, in deciding whether the defendant committed an assault and, if so, what kind of assault it was.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The term deadly weapon other than a firearm is defined in another instruction to which you should refer."
The court subsequently instructed the jury with CALCRIM 3145 (Personally Used Deadly Weapon, § 1192.7, subd. (c)(23)), which provides in relevant part that: "A deadly weapon is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
The trial court had no duty to instruct on the offense of simple assault because the evidence did not support a finding that Rittner was guilty of only the lesser offense and not the greater. Viewing the evidence in the light most favorable to Rittner, Rittner admitted going out to his car to get his pepper spray and baton after he and Anthony had engaged in a verbal altercation inside the nightclub. He also admitted that he had indirectly referred to Anthony by the slang term "nigga" during a subsequent debriefing. After Anthony confronted him in the parking lot about his use of a racial slur, Rittner agreed to engage in a fistfight in the nearby alley. As they walked to the alley, Rittner pepper sprayed Anthony in the face. Rittner then struck Anthony in the head, leg, and back with the baton.
The assault was captured on video. The recording shows Rittner following Anthony into the alley and immediately opening his baton. It also shows Anthony walking away from Rittner several times while rubbing his face with a sweater. Rittner follows Anthony at every step, hitting him in the back of the head and leg with the baton. Rittner can be seen striking Anthony with the baton at least two more times before exiting the frame. Anthony does not throw a punch at Rittner or reach for a weapon at any point during the video recording.
Rittner argues that, because the jury found the great bodily injury allegation not true, it may have had "significant doubt" as to whether he used the baton in a manner likely to produce great bodily injury. Rittner points to the two jury notes—at least one of which concerned the great bodily injury allegation—to support his argument.
People v. Rodriguez (2018) 26 Cal.App.5th 890 (Rodriguez) and Mullendore, supra, 230 Cal.App.4th 848, on which Rittner relies, are both distinguishable. In Rodriguez, an inmate had assaulted two correctional officers in the hallway of a prison facility. (Rodriguez, at pp. 895-897.) The defendant was convicted of two counts of assault with a deadly weapon (a chain), among other offenses. (Ibid.) The jury was not instructed on the lesser included offense of simple assault. (Id. at pp. 900-902.) The jury had heard conflicting testimony about whether the defendant had used the chains on his waist restraint handcuffs as a deadly weapon. (Id. at pp. 895-896, 911.) In addition, the resolution of a videotape of the assault was of poor quality, the officer's purported head injury was not visible in the photograph, and no medical evidence was presented. (Id. at pp. 554, 896-897.) The appellate court in that case held that a lesser included offense instruction was required because the jury could have reasonably found, based on the evidence, that the defendant assaulted the correctional officers, but that he had not used the chains, or anything else, as a deadly weapon. (Id. at p. 901.)
In Mullendore, the defendant shattered a car window with his backpack after the driver honked at him for standing in the street. (Mullendore, supra, 230 Cal.App.4th at pp. 851-852.) The defendant was charged with assault by means of force likely to cause great bodily injury, but the jury convicted him of the lesser included offense of misdemeanor simple assault. (Id. at p. 853.) The defendant was also convicted, as charged, of throwing a substance at a vehicle that is capable of causing serious bodily harm and with intent to cause great bodily injury, a felony. (Ibid.; see Veh. Code, § 23110, subds. (a), (b).) The jury was not instructed on the lesser included misdemeanor offense of throwing a substance at a vehicle. (Mullendore, at pp. 853-854.) It was in that context that this court noted: "Because the jury had doubts concerning defendant's use of (or ability to apply) force likely to produce great bodily injury . . . , there is a reasonable probability it also had doubts about whether defendant had the intent to inflict such injury." (Id. at p. 857.)
In this case, in contrast, there was no conflicting evidence as to whether Rittner used the baton to strike Anthony, or about the manner in which he used it, and it is clear from the jury's notes that the jury's concern was the nature and severity of the injury inflicted by Rittner, not the manner in which he used the baton. The jury was presented with a videotape of Rittner's assault of Anthony, several photographs of Anthony's injuries, a one-page summary of Anthony's medical records, and the metal baton itself. Rittner's use of the baton to strike Anthony is easily discernible in the video. Rittner can be seen repeatedly striking Anthony with sufficient force to cause contusions to his leg, arm, and back, and a laceration to his head. Given the absence of conflicting evidence as to the manner in which Rittner used the baton to strike Anthony, the trial court, and counsel, correctly determined that the lesser included offense instruction was not warranted.
Based on the foregoing, we conclude that the trial court had no sua sponte duty to instruct the jury on the lesser offense of simple assault. B. Rittner's General Probation Conditions
Rittner challenges probation conditions 6k (report of contact with law enforcement), 6l (travel condition), and 6n (electronics search condition) as either unconstitutionally overbroad or void for vagueness.
1. Legal Principles
Trial courts enjoy wide discretion when determining the conditions and scope of probation. (§ 1203.1 et seq.) A trial court may impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . . , and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j).) Probation is not an inherent right; it is an act of leniency. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) In California, probationers may consent to limit their constitutional rights in preference to incarceration. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) If a condition of probation appears too onerous, a defendant may choose to serve the prison sentence, instead. (Id. at p. 379.) Generally, we review conditions of probation for abuse of discretion. (Ibid.) However, when a probation condition is challenged on constitutional grounds, we review the condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
2. Forfeiture
"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. [Citation.] However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if the defendant's appellate claim 'amount[s] to a "facial challenge" ' (italics added), i.e., a challenge that the 'phrasing or language . . . is unconstitutionally vague and overbroad,' and the determination whether the condition is constitutionally defective 'does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.' " (In re J.S. (2019) 37 Cal.App.5th 402, 407-408 (J.S.), quoting In re Sheena K. (2007) 40 Cal.4th 875, 885 (Sheena K.).)
Because Rittner did not object in the trial court to any of the probations conditions that he challenges on appeal, he has forfeited any "as-applied" constitutional challenges to those conditions. (J.S., supra, 37 Cal.App.5th at pp. 407-408; Sheena K., supra, 40 Cal.4th at p. 885.) Accordingly, we consider only his facial challenges to those probation conditions to the extent that they present pure matters of law that are not dependent on our review of the record in this case. (People v. Welch (1993) 5 Cal.4th 228, 235 (Welch); J.S., at pp. 407-408; Sheena K., at p. 885.)
3. Analysis
a. Condition "6k" - Report of Contact with Law Enforcement
Rittner contends that condition 6k, which states that he shall "[p]rovide true name, address, and date of birth if contacted by law enforcement" and "[r]eport contact or arrest in writing to the [probation officer] within 7 days," including "the date of contact/arrest, charges, if any, and the name of the law enforcement agency," is unconstitutionally vague.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' " (Sheena K., supra, 40 Cal.4th at p. 890.) "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." (Ibid.) Probation conditions are given " ' "the meaning that would appear to a reasonable, objective reader." ' " (In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.).) The mere fact that there " ' " 'may be difficulty in determining whether some marginal or hypothetical act is covered by [a condition's] language' " ' " does not render the condition "impermissibly vague." (Id. at p. 261.)
Rittner relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), to support his argument that the portion of this condition requiring that he report any "contact" with law enforcement is unconstitutionally vague. The Relkin court considered a probation condition that required the defendant "to 'report to the probation officer, no later than the next working day, any arrests or any contacts with or incidents involving any peace officer.' " (Id. at p. 1196.) The court concluded that "the portion of the condition requiring that defendant report 'any contacts with . . . any peace officer' " was vague because it "does indeed leave one to guess what sorts of events and interactions qualify as reportable." (Id. at p. 1197.) According to the court, it was not certain that the condition would not be triggered "when defendant says 'hello' to a police officer or attends an event at which police officers are present, but would be triggered if defendant were interviewed as a witness to a crime or if his 'lifestyle were such that he is present when criminal activity occurs.' " (Ibid.) "The language does not delineate between such occurrences and thus casts an excessively broad net over what would otherwise be activity not worthy of reporting." (Ibid.)
In contrast to the condition at issue in Relkin, condition 6k's requirement that Rittner "[p]rovide [his] true name, address, and date of birth if contacted by law enforcement" would appear to a reasonable, objective reader to refer to contacts initiated by a law enforcement officer in which the officer requests that information from Rittner. This would not include mere greetings by law enforcement officers or conversations with officers at events Rittner may attend. Further, the requirement that Rittner report the "contact or arrest" and that he include the "name of the law enforcement agency" indicates that the interaction must be of a type and nature that either the law enforcement officer would have supplied this information to Rittner, or Rittner would have been made aware of this information because the nature of the "contact" was sufficiently substantive. This, too, indicates that a reasonable reading of the condition sufficiently delineates between a casual, random interaction between Rittner and a law enforcement officer, including the exchanging of pleasantries, and a situation in which Rittner is a witness to a crime or is specifically stopped and questioned by a law enforcement officer. We therefore reject Rittner's vagueness challenge to condition 6k.
b. Condition "6l" - Travel Outside of San Diego County
Rittner contends that condition 6l, which provides that he shall obtain "[his probation officer's] consent before leaving San Diego [C]ounty" and the "court's and [probation officer's] written consent before moving out of state" is overly broad and void for vagueness.
"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.) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "[A] facial overbreadth challenge is difficult to sustain." (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) This is because "[i]nherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' " (United States v. Knights (2001) 534 U.S. 112, 119.)
Rittner argues that the portion of the travel condition requiring that he obtain his probation officer's "preapproval" before "temporarily leaving" San Diego County "for hours or even minutes" infringes on his constitutional right to intrastate travel and is not narrowly tailored. We disagree. Rittner has a constitutional right to intrastate travel, but as with all other liberties, this right may be restricted as a condition of probation. (People v. Moran (2016) 1 Cal.5th 398, pp. 405-406 (Moran).) "[R]easonable and incidental restrictions on [probationers'] movement are permissible." (Id. at p. 406.) "Imposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (Ibid.)
The travel condition that the trial court imposed is not facially overbroad. Rittner makes no reasoned argument that the condition is inappropriate in all circumstances or overbroad in the abstract, as he must if he is raising a facial challenge to the probation condition. A requirement that a probationer obtain consent before leaving the county does not prohibit a probationer from travelling outside of the county and could be reasonable in some circumstances for purposes of supervision and rehabilitation. Further, the condition would not prevent a probationer from travelling out of the county to work, to attend, and participate in many other activities. We thus conclude that Moran is dispositive and that the travel condition here is not facially unconstitutionally overbroad.
Rittner also argues that the condition is unconstitutionally vague because it is susceptible to multiple interpretations and must be modified to provide him with adequate notice of the prohibited conduct. We agree with Rittner's interpretation of the condition, i.e., that the condition requires that Rittner obtain the probation officer's approval before temporarily leaving the county, but we reject his contention that the condition is unconstitutionally vague. (Olguin, supra, 45 Cal.4th 375 at p. 382 ["A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' "].)
The travel condition is sufficiently precise for a probationer to know what is required of him. (Sheena K., supra, 40 Cal.4th at p. 890.) County boundaries are fixed. A probationer could not be found in violation of this condition for an inadvertent crossing of the county line, because a violation must be intentional. (People v. Galvan (2007) 155 Cal.App.4th 978, 983.) Moreover, we view the travel condition in light of Olguin and presume that a probation officer will not withhold consent for irrational, arbitrary, or capricious reasons. (Olguin, supra, 45 Cal.4th at pp. 383-384.) We therefore reject Rittner's overbreadth and vagueness challenges to condition 6l.
c. Condition "6n" - Electronics Search Condition
Rittner incorrectly cites to this condition as "1n" in his briefing on appeal.
Rittner contends that condition 6n, which provides that he shall "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices [and] cell phones to search at any time with or without a warrant, and with or without reasonable cause, when required by [probation officer] or law enforcement officer," is unconstitutionally overbroad.
Relying on People v. Appleton (2016) 245 Cal.App.4th 717, 721 (Appleton), Rittner argues that "the search condition at issue [here] is far more sweeping than the condition at issue in Appleton". Appleton challenged a probation condition that the defendant submit " '[a]ny computers and all other electronic devices . . . including but not limited to cellular telephones, laptop computers, or notepads' " to " 'forensic analysis search for material prohibited by law.' " The Appleton court relied on the holding of Riley v. California (2014) 573 U.S. 373 (Riley), that the data stored on a cell phone is both quantitatively and qualitatively different from records typically stored in one's home and is therefore subject to Fourth Amendment protection. (Riley, at pp. 396-397, 401.)
A search condition that permits unlimited searches of a probationer's computers and recordable media requires the probationer to waive his Fourth Amendment protections and thus, imposes a burden on the probationer's constitutional rights. (Riley, supra, 573 U.S. at pp. 396-397, 402.) We therefore consider whether the search condition permitting searches of a probationer's computers and/or recordable media, in the abstract, and not as applied to Rittner, is not sufficiently 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.)
When the electronics search condition is viewed in this light, we conclude that the condition is not facially overbroad. "Although it is readily apparent that application of this [electronics] search condition could be constitutionally overbroad as applied to certain probationers in some circumstances, it is equally apparent that such a search condition may be entirely appropriate, and constitutional, in other circumstances." (J.S., supra, 37 Cal.App.5th at p. 409.) There can be no dispute that certain probationers may require more intensive supervision and monitoring—in particular, with respect to their use of computers and other electronic and recordable media—based on the specific facts of the case. (See, e.g., In re Ricardo P. (2019) 7 Cal.5th 1113, 1128-1129 (Ricardo P.) ["In certain cases, the probationer's offense or personal history may provide the juvenile 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."].) Consequently, we cannot say that a condition requiring a probationer to submit to a warrantless search of his electronic devices and cell phone is necessarily or always facially overbroad. We therefore reject Rittner's overbreadth challenge to condition 6n. C. Rittner's Restitution Fine and Assessments
We are cognizant that the California Supreme Court recently "decline[d] to read [Olguin, supra, 45 Cal.4th 375] to categorically permit any probation conditions reasonably related to enhancing the effective supervision of a probationer." (Ricardo P., supra, 7 Cal.5th at p. 1127.) Unlike the facial overbreadth challenge raised in this case, however, the Court in Ricardo P. held that the challenged electronic search condition was invalid under People v. Lent (1975) 15 Cal.3d 481, and not under a constitutional overbreadth analysis. (Ricardo P., at pp. 1127-1129.) Rittner has not raised a Lent challenge.
Rittner challenges the trial court's imposition of a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code, § 29550), as violating his right to due process because the trial court made no finding of his ability to pay the fine, assessments and fee before imposing them.. (Citing Dueñas, supra, 30 Cal.App.5th 1157.) Rittner also urges us to adhere to this court's earlier holding in People v. Kopp (2019) 38 Cal.App.5th 47, 95, which recognized that principles of procedural due process may require the court to conduct an ability to pay hearing before it imposes assessments if the defendant requests such a hearing.
Ordinarily, a defendant who fails to object to the imposition of a fee or fine in the trial court may not raise a claim pertaining to that charge on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation fines and attorney fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 596-598 [defendant forfeits appellate challenge to the sufficiency of evidence supporting a Gov. Code, § 29550.2, subd. (a) booking fee if objection not made in the trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to defendant's claim that restitution fine amounted to an unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 198, 227 [claim that trial court erroneously failed to consider ability to pay a restitution fine forfeited by the failure to object].)
Rittner concedes that he did not object to the imposition of the fine or assessments in the trial court. Nevertheless, he argues that we should reject the People's argument that he forfeited his claim because (1) the issue falls within the well-recognized exception of forfeiture for unsettled law, given that Dueñas was decided while his appeal was pending, and (2) even if the claim was forfeited, the court may exercise discretion to consider the merits of a claim involving an important question of law. Even assuming that this contention is not forfeited, it is without merit.
We join our colleagues in Division Two of the Second Appellate District in disagreeing with the analysis and holding in Dueñas. (See People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks).) In Hicks, the defendant challenged the trial court's imposition of $70 in assessments ($280 on appeal), a $300 restitution fine, and a $150 drug program fee. (Id. at p. 324.) The Hicks court observed that, "Dueñas wove together two distinct strands of due process precedent": (1) "a due process-based right of access to the courts," i.e., "requiring courts to waive court costs and fees that would otherwise preclude criminal . . . litigants from . . . defending lawsuits or from having an appellate court review the propriety of any judgment"; and (2) "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." (Id. at p. 325.) The Hicks court concluded that these "two strands of due process precedent" do not dictate Dueñas's bar on imposing fees, assessments, and fines before holding an ability to pay hearing because their imposition does not: (1) deny a criminal defendant access to the courts, such as the defendant's right to present a defense at trial or to challenge the trial court's ruling on appeal; or (2) without more, result in incarceration for nonpayment due to indigence. (Id. at p. 326.)
After reaching this conclusion, the Hicks court held:
"Absent Dueñas, we are left to evaluate defendant's due process challenge under the two strands of precedent Dueñas cites. Neither strand bars the imposition of $280 in assessments and the $300 restitution fine in this case. [I]mposition of these financial obligations has not denied defendant access to courts. Additionally, their imposition has yet to result in defendant's incarceration. Defendant still has 21 months of probation left to make bona fide efforts to repay these obligations. Should they remain unpaid at the end of his probationary period, 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 329.)
Under the reasoning of Hicks, we conclude that the trial court's imposition of the fine, assessments and fee without first determining Rittner's ability to pay, does not violate his due process rights; he has not been denied access to the courts and the various charges imposed have not resulted in his incarceration. The trial court imposed a restitution fine of $300—the minimum provided by the statute—and assessments totaling $224. Like the defendant in Hicks, Rittner still has more than two years of probation left to attempt to pay the fine and assessments. If these obligations remain unpaid at the end of his probationary term and result in a probation revocation hearing threatening incarceration, his due process rights may be triggered at that time.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.