Opinion
F078908
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS CRUZ JOSHUA SUAREZ, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CR-04067)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Thomas Cruz Joshua Suarez pleaded no contest to unlawful possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1)) and was placed on probation. On appeal, he contends the court improperly imposed a condition of probation that he could not leave the county without the permission of his probation officer. Defendant further argues the court improperly ordered him to pay a restitution fine and other fees in violation of his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTS
Given defendant's plea, the facts are from the testimony at the January 11, 2019, preliminary hearing, where the court also heard and denied defendant's suppression motion.
Around 5:00 p.m. on July 31, 2018, Merced County Probation Officer Liliana Fernandez and K-9 Officer Jennifer Shaw stopped at a convenience store and gas station in Dos Palos. They were on duty, in uniform, and the word "Probation" was printed on both sides of their vests.
Fernandez saw Blair Parker in the store's parking lot. Fernandez was Parker's probation officer and she clearly recognized him. She knew he was subject to a warrantless search condition. Fernandez watched as Parker walked toward a car, with his hands about to open the passenger side door. Another man, later identified as defendant, was standing by the driver's side door.
Fernandez called out, " 'Blair ... it's Probation. Can you guys please ... keep your hands where we can see them. We're going to conduct a probation compliance check.' " Parker complied. Fernandez conducted pat down searches for weapons on both Parker and defendant and did not find anything.
Fernandez spoke with Parker, who said defendant was his friend, and he picked him up in Los Banos and gave him a ride to Dos Palos. Parker said he kept some of his belongings in defendant's car. Defendant said the car belonged to his brother and he was driving it with permission.
Fernandez checked the vehicle through dispatch and it was not stolen. Fernandez asked defendant if she could search his car. Defendant replied, " 'I would rather not.' " Defendant was not on probation or parole at the time.
Fernandez stood outside the car but looked into the back seat. She saw in plain sight the papers that listed Parker's probationary terms and conditions. Based on the presence of the papers in the back seat, Fernandez believed that Parker had been in the vehicle.
Fernandez asked Shaw to have K-9 Sage search the vehicle. Shaw advised Parker that K-9 Sage would search the vehicle; Parker did not oppose the search. Shaw asked for defendant's identification, and a records check showed defendant was previously on probation or parole.
Shaw told defendant that K-9 Sage would search the vehicle, and he responded, " 'Okay.' " K-9 Sage searched the inside of the vehicle and alerted to the front passenger side and the back of the driver's side.
Behind the driver's seat, Shaw found a plastic bag that was tied shut. It contained a box of .45-caliber ammunition, a high capacity magazine, and a pill. Fernandez advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Before Fernandez could ask about the contraband, defendant voluntarily said, " 'Everything you found in there is mine.' " Fernandez asked defendant what he was referring to. Defendant replied, " 'The ammunition and the magazine and I think a pill.' " The officers also found marijuana in the glove box.
Fernandez searched the Internet on her phone to determine the type of pill that was in the box, using the pill's shape and code number, and it appeared to be a Xanax. Defendant later admitted the pill was a Xanax and he did not have a prescription for it.
PROCEDURAL BACKGROUND
On January 30, 2019, an information was filed in the Superior Court of Merced County charging defendant with count 1, felony unlawful possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1)); count 2, misdemeanor possession of a large capacity magazine (§ 32310, subd. (c)); and count 3, misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377).
All further statutory references are to the Penal Code unless otherwise indicated.
On February 8, 2019, defendant entered into a negotiated disposition and pleaded no contest to count 1; the court dismissed counts 2 and 3. The court awarded defendant credit for time served, suspended imposition of sentence, and placed him on probation for three years subject to certain terms and conditions, including: "Notify the Probation Officer in writing within five (5) days ... of any changes in your place of residence or employment status and seek and maintain gainful employment," and "Do not leave the County of Merced without the permission of ... the Probation Officer or the State of California without the written permission of the Court and the Probation Officer."
The court ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)) and stayed a $300 probation revocation fine (§ 1202.44).
The court also imposed a $100 penalty fine (§ 1203.1); a $100 state penalty assessment (§ 1464; 100 percent of base fine); a $70 county penalty assessment (Gov. Code, § 76000; 70 percent of base fine); a state surcharge of $20 (§ 1464.7; 20 percent of base fine); a $50 court construction penalty (Gov. Code, § 70372; 50 percent of base fine); a $40 court security assessment fee (§ 1465.8); and a $30 criminal conviction assessment fee (Gov. Code, § 70374).
On February 27, 2019, defendant filed a timely notice of appeal.
DISCUSSION
I. The probation condition
The court imposed the following conditions of defendant's probation:
"Do not leave the County of Merced without the permission of ... the Probation Officer or the State of California without the written permission of the Court and the Probation Officer."
Defendant contends the condition that requires him to obtain his probation officer's permission to leave Merced County is unconstitutionally overbroad and infringes upon his right to travel. Defendant asserts this condition must be stricken or the matter remanded for the court to modify the condition. A. Forfeiture
Defendant has not challenged the second part of this probation condition, that he cannot leave California without the written permission of both the probation officer and the court.
Defendant acknowledges he failed to object to the probation conditions, but argues he has not forfeited his challenge to this particular condition because he is raising a pure question of constitutional law.
"[T]he types of conditions a court may impose on a probationer are not unlimited. We first recognized the limits on probation conditions in the seminal case of People v. Lent (1975) 15 Cal.3d 481 [(Lent)]. 'Generally, "[a] condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ....' [Citation.]" [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.' [Citation.] " (People v. Moran (2016) 1 Cal.5th 398, 403 (Moran).) However, it is well settled that a Lent challenge is forfeited by a defendant's failure to object on that ground in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237.)
"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.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) However, "[a]n as-applied constitutional challenge is forfeited unless previously raised. [Citation.] ' "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." ' [Citation.]" (People v. Patton (2019) 41 Cal.App.5th 934, 946.)
"[T]he forfeiture rule does not extend to facial constitutional challenges presenting pure questions of law that can be resolved without referring to the particular sentencing record developed below. [Citation.] A facial challenge 'does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts.' [Citation.] The claim is that a condition cannot have any valid application, without relying on any facts in the sentencing record. [Citation.]" (People v. Patton, supra, 41 Cal.App.5th 934, 946.)
Defendant did not challenge the probation condition as being unreasonable under Lent, and he did not raise an "as-applied" constitutional challenge based on his specific circumstances. As a result, his appellate arguments are limited to a facial challenge as to whether the probation condition is constitutionally overbroad in general. B. Constitutional challenge
"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.]" (In re Sheena K., supra, 40 Cal.4th 875, 890; People v. Relkin (2016) 6 Cal.App.5th 1188, 1194.)
"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—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
"Although not explicitly guaranteed in the United States Constitution, '[t]he right to travel, or right of migration, now is seen as an aspect of personal liberty which, when united with the right to travel, requires "that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." ' [Citations.] This right also includes the right of intrastate travel, which 'has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution.' [Citation.] Like all constitutional rights, the right to travel is subject to limits: 'Neither the United States Supreme Court nor this court has ever held ... that the incidental impact on travel of a law having a purpose other than restriction of the right to travel, and which does not discriminate among classes of persons by penalizing the exercise by some of the right to travel, is constitutionally impermissible.' [Citation.]" (Moran, supra, 1 Cal.5th at pp. 405-406.)
"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. [Citations.]" (Moran, supra, 1 Cal.5th at p. 406.) "Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (Ibid.) Moreover, the imposition of probation conditions that restrict travel have been regularly upheld even when subject to "as-applied" constitutional overbreadth challenges. (People v. Relkin, supra, 6 Cal.App.5th 1188, 1195-1196.) C. Analysis
The probation condition in this case is not facially overbroad and does not violate defendant's right to travel. The burdens imposed on defendant are comparatively minor. He is not subject to an outright travel ban; he is only prohibited from leaving Merced County without prior permission.
Defendant argues the condition in this case, that requires him to obtain permission from his probation officer before he leaves Merced County, is not narrowly tailored to his particular situation because there is no evidence that his criminal offenses were tied to leaving Merced County. As noted above, however, defendant failed to raise an "as-applied" constitutional challenge and concedes there is no evidence about his places of residence or employment.
Defendant relies on a series of cases in support of his constitutional claim. He first cites to In re White (1979) 97 Cal.App.3d 141 (White), where the defendant was convicted of soliciting an act of prostitution. She was placed on probation, and the court imposed an outright travel ban to three large "zones" in the city where she lived, because those areas were allegedly known for prostitution activity. As a result of the travel ban, she was forced to move her residence that was in one of the zones, prohibited from entering the bus station to travel out of the city since it was in another zone, and also prohibited from taking her children to the city's park and visiting family members who lived in another zone. (Id. at pp. 143-144.) White held the prohibition was "so sweeping and so punitive" that it was not related to rehabilitation, and it was unconstitutionally overbroad because it placed a greater burden on the probationer's legal and legitimate activities than on the potential for illegal prostitution. (Id. at pp. 147-148.) White remanded the matter for the trial court to modify the travel restriction with specific limitations, such as time of day or the purpose for presence in the area, that would achieve the same rehabilitative purposes but reduce the burden on the defendant's right to travel. (Id. at pp. 150-151.)
Defendant next relies on People v. Smith (2007) 152 Cal.App.4th 1245, where the defendant was convicted of committing a lewd act on a minor and required to register as a sex offender. The court placed him on probation, with a condition that prohibited him from leaving Los Angeles County for any reason, which was a standard condition imposed on anyone convicted of an offense that required registration. (Id. at p. 1247.) Smith held the defendant had "a constitutional right to intrastate travel [citations] which, although not absolute, may be restricted only as reasonably necessary to further a legitimate governmental interest [citation]." (Id. at p. 1250.) Smith held the absolute travel prohibition was "constitutionally infirm" because it failed to consider defendant's right to work and it did not reasonably relate to his crimes. As in White, Smith remanded the matter for the trial court to craft a less restrictive condition. (Id. at pp. 1251-1252.)
In contrast to Smith and White, the court here did not impose an outright travel ban on defendant. He was not prohibited from leaving Merced County under any circumstances, but instead only has to request permission to leave under the express terms of his probation conditions. There is no reason on this record to believe that permission would be unreasonably withheld. In addition, there is no evidence in the record about how or why defendant might be adversely affected by having to obtain permission from his probation officer before leaving Merced County.
Defendant's reliance on People v. Soto (2016) 245 Cal.App.4th 1219 is also misplaced. In Soto, the defendant was convicted of driving under the influence and with a suspended license. He was placed on probation on condition that he obtain permission from his probation officer or an order from the court prior to changing his residence from Monterey County or leaving the state. The defendant objected and argued the conditions violated Lent, and his objections were overruled. (Id. at pp. 1224-1226.) Soto held the conditions were invalid under Lent because his crimes were not reasonably related to his residence or location, the conditions related to behavior that was not criminal, and the conditions were not related to future criminality. (Id. at pp. 1226-1227.) "[T]here is nothing in the record to indicate that defendant's living situation contributed to his crime or would contribute to his future criminality. The only mention of defendant's living situation is contained in the probation report, which indicated that defendant had a stable residence and was living with his brother. In sum, there is nothing to suggest that leaving Monterey County or the State of California would have an effect on defendant's rehabilitation." (Id. at p. 1228.)
Soto similarly does not support defendant's facial challenge because the holding was solely based on that defendant's objections under Lent. As noted above, however, defendant never challenged the probation condition as unreasonable under Lent.
Finally, defendant asserts the matter should be remanded so the court can modify the condition to "make it less onerous, such as requiring [defendant] to give telephonic notice to probation when traveling outside the county." (Italics added.) Defendant thus seeks to change the condition from obtaining "permission" to merely giving "notice" as he deems fit and on his own terms. As already explained, defendant is not subject to an outright prohibition from leaving the county and failed to make any record to show how this condition would affect his circumstances. We thus decline to remand the matter. II. The restitution fine and fees
Defendant contends the court's imposition of the restitution fine of $300, and the other assessments and fees, violated his due process rights pursuant to Dueñas because the court failed to conduct a hearing to determine if he had the ability to pay these amounts. Defendant asserts the matter must be remanded for the People to prove he had the ability to pay.
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.)
We first note that contrary to the People's argument, defendant did not forfeit review of this issue. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. The court imposed the statutory minimum restitution fine of $300 pursuant to section 1202.4, subdivision (b), and defendant lacked statutory ability to further object under the governing law at the time of his sentencing hearing. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) We thus turn to defendant's contentions. A. Dueñas
In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. She had dropped out of high school because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) As a teenager, the defendant's driver's license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)
After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. The court imposed a $30 court conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and the minimum restitution fine of $150 for a misdemeanor (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) The defendant challenged the fees and fines imposed under sections 1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The court rejected her constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.)
Dueñas held the defendant's due process rights had been infringed and that an ability to pay hearing was required so the defendant's "present ability to pay" could be determined before assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, at p. 1164.) Dueñas also held that the minimum restitution fine of $150 (§ 1202.4, subd. (b)(1)) had to be stayed. Dueñas reached these conclusions even though section 1202.4 barred consideration of a defendant's ability to pay unless the judge was considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that "execution of any restitution fine imposed under this statute 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, at p. 1164.)
We find defendant's reliance on Dueñas is misplaced because it is distinguishable from the present matter, and defendant's constitutional rights have not been violated. According to Dueñas, the defendant in that case lost her driver's license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. Dueñas described this as "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.)
In contrast to Dueñas, defendant's conviction for possession of ammunition in this case, and his resulting probationary status, were not a product of the court's prior imposition of criminal assessments and fines. Defendant was not caught in an unfair cycle of incarceration, and he could have avoided the present conviction regardless of his financial circumstances. Dueñas is thus distinguishable and it has no application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928-929 [declining to apply Dueñas's "broad holding" beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 ["Dueñas is distinguishable."].) B. The court did not violate defendant's due process rights.
Even if Dueñas applied to this case, we reject any argument that the trial court violated defendant's constitutional rights. The probationer in Dueñas presented compelling evidence that the imposed assessments resulted in ongoing unintended punitive consequences against her. Dueñas determined that these unintended consequences were "fundamentally unfair" for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
Dueñas noted the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated that "[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that '[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.' [Citation.]" (Dueñas, supra, at p. 1171, fn. 8.)
The analysis in Dueñas was strongly criticized by this court in People v. Aviles (2019) 39 Cal.App.5th 1055, 1059-1060 (Aviles), and also in People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted November 26, 2019, S258946 (Hicks). (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 (Kingston) [finding Hicks to be "better reasoned" than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at p. 928 ["In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant's ability to pay before imposing court assessments or restitution fines."].)
As we explained in Aviles, the " 'excessive fines' " clause in the Eighth Amendment to the United States Constitution was more appropriate than a due process argument for an indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Aviles found no constitutional violation for the imposition of assessments and fines imposed on a felon who, after fleeing from officers, shot and wounded two of them. (Id. at pp. 1059-1060.) Aviles also concluded that any presumed error was harmless because the felon had the ability to earn money while in prison. (Id. at pp. 1075-1077.)
Hicks held that, in contrast to Dueñas's application of due process, a due process violation must be based on a fundamental right, such as denying a defendant access to the courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas's analysis was flawed because it expanded due process in a manner that grants criminal defendants a right not conferred by precedent; that is, an ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325-326, review granted.) Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329-330.)
We similarly reject any claim that the trial court violated due process. The fines, fees, and assessments imposed in this case do not implicate the traditional concerns of fundamental fairness. Defendant was not denied access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18-20 [due process and equal protection require a state to provide criminal defendants with a free transcript for use on appeal]; Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) Defendant was not incarcerated because he was unable to pay prior fees, fines or assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672-673 [fundamental fairness is violated if a state does not consider alternatives to imprisonment if a probationer in good faith cannot pay a fine or restitution]; Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.)
The instant case does not present the unique concerns that existed in Dueñas. There is no evidence to establish or even reasonably suggest that defendant faces ongoing unintended punitive consequences. Defendant does not establish how he suffered a violation of a fundamental liberty interest. Since unintended consequences are not present, it was not fundamentally unfair for the court to impose the fees, fines and assessments in this matter without first determining defendant's ability to pay. As such, the trial court did not violate defendant's due process rights. (See Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329, review granted.)
Finally, we find the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and thus not excessive under the Eighth Amendment. (Aviles, supra, 39 Cal.App.5th at p. 1072.)
Based on this record, we conclude the court's order did not violate defendant's constitutional rights.
DISPOSITION
The judgment is affirmed.