Opinion
E077313
10-25-2023
THE PEOPLE, Plaintiff and Respondent, v. JOYCE DAINE HUMBLE, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB20001006, William Jefferson Powell IV, Judge. Affirmed and remanded with directions.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
In 2021 Joyce Daine Humble was sentenced to three years' formal probation and assessed administrative fines and fees. Her probation included a condition which required her to submit to search and seizure of her electronic devices. On appeal, Humble challenges the electronic search term as facially overbroad, and she argues that certain fines and fees should be vacated, and a minute order must be corrected as to a fine. The People agree with the latter arguments but disagree that the probation condition is facially overbroad. We agree with the People, so we remand with directions to vacate the fines and fees and correct the minute order, but otherwise affirm the judgment.
BACKGROUND
In April 2021 Humble pled no contest to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The court sentenced her to three years' formal probation, per her plea terms. One of the conditions of probation was that she "[s]ubmit to a search and seizure (electronic device) by a government entity of any electronic device that you are an authorized possessor of pursuant to [section] 1546.1[, subdivision] (c)(10)."
Unlabeled statutory citations refer to the Penal Code.
Other terms of her probation required she "[m]ake restitution to the victim(s) in an amount and at a rate to be determined; to include a 15% fee for administrative processing costs," and "[p]ay a victim restitution fine pursuant to [section] 1202.4[, subdivision] (b)(1)[,] plus a ten percent 10% processing fee." The latter processing fee is also reflected in the sentencing minute orders. In addition, the court imposed a crime prevention fine under section 1202.5.
Humble appealed in June 2021, requesting and receiving a certificate of probable cause from the trial court.
DISCUSSION
Humble argues the electronic search condition of her probation is facially overbroad and unconstitutional. She also argues there are errors in the assessment of costs and in the sentencing minute order. We address each argument in turn.
A. Electronic Search Condition
First, we address forfeiture. Humble concedes she did not object to the probation condition at the trial court level, which means she cannot challenge the condition as unconstitutional as applied to her circumstances. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Nevertheless, "the 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.'" (People v. Patton (2019) 41 Cal.App.5th 934, 946 (Patton).) "[A] facial challenge to a law on grounds that it is overbroad . . . is an assertion that the law is invalid in all respects and cannot have any valid application [citation], or a claim that the law sweeps in a substantial amount of constitutionally protected conduct." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1109, italics omitted.) In other words, when a defendant challenges a condition as facially overbroad, "[t]he claim is that [the] condition cannot have any valid application, without relying on any facts in the sentencing record." (Patton, supra, 41 Cal.App.5th at p. 946, italics omitted.) For this reason, "a facial overbreadth challenge is difficult to sustain." (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.)
"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 .) Thus "[a] probation condition imposing limits on constitutional rights must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad." (Patton, supra, 41 Cal.App.5th at p. 946.)
Though we agree that the challenged condition implicates constitutionally protected conduct, we do not find it overbroad on its face. Multiple courts have addressed whether similar electronic search conditions are constitutionally overbroad and concluded they are not. In Patton, for example, the trial court imposed a probation condition which required the defendant to" 'submit [his] person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer.'" (Patton, supra, 41 Cal.App.5th at p. 944.) The defendant had, like Humble, failed to object to the condition at the trial court level, and therefore challenged the condition only as facially overbroad, rather than overbroad as applied. (Id. at p. 946.)
Patton rejected the defendant's claim, noting that at least one other court had found a similar condition constitutional as applied, In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.). (Patton, supra, 41 Cal.App.5th at pp. 938, 945-946.) Moreover, our Supreme Court approved of Malik J.'s holding. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 1129.) Since our Supreme Court had concluded such a condition was appropriate at times, it could not be facially unconstitutional as overbroad. (Patton, at p. 947.) And any time"' a constitutional defect may be correctable only by examining factual findings in the record or remanding to the trial court for further findings,'" failure to raise a "constitutional objection based on privacy interests" forfeits that challenge. (Ibid.) Indeed, even "[t]he closeness of fit between the condition imposed and defendant's rehabilitation veers into as-applied territory." (Ibid.)
The circumstances here are nearly identical to those in Patton. As in Patton, Humble failed to object to the condition below, and therefore forfeited any as-applied challenge. Since our Supreme Court has held the condition can be constitutionally imposed at times, it is not facially unconstitutional. We need not and do not decide how Humble might have fared on an as-applied challenge.
B. Administrative Collection Fees
Humble argues, and the People agree, that we should direct the trial court to vacate the unpaid balance of the administrative collection fees it imposed under sections 1202.4, 1203.1, and 1214.15 due to Assembly Bill No. 177.
Assembly Bill No. 177 (2021-2022 Reg. Sess.) went into effect January 1, 2022. (Cal Const., art. IV, § 8; Gov. Code, § 9600.) It amended Penal Code section 1465.9, subdivision (b), which now reads "[o]n and after January 1, 2022 the balance of any court-imposed costs pursuant to Section . . . 1202.4, 1203.1, . . . [or] 1214.5. . . shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." As courts analyzing an earlier version of Penal Code section 1465.9 note, this language provides a double remedy. First, any outstanding fines or administrative costs covered by Penal Code section 1465.9 are uncollectible. Second, the portions of any judgment imposing those fines or costs must be vacated. (People v. Greeley (2021) 70 Cal.App.5th 609, 625-627 [analyzing an earlier version of Penal Code section 1465.9 with the same language].)
The court levied at least two, and possibly up to three, now uncollectible costs on Humble. First, the court required Humble to pay a 10 percent administrative processing fee on top of her restitution fine, as then authorized by section 1202.4, subdivision (l). Second, it imposed a 15 percent administrative processing fee on top of the requirement she pay restitution, as then authorized under section 1203.1. It is also possible the court ordered Humble pay a 10 percent interest rate on any restitution as then authorized under section 1214.5. All these administrative costs are now uncollectible and unenforceable.
Though we see no reference to section 1214.5 in the record, the terms and conditions of probation require Humble to "[m]ake restitution to the victim(s) in an amount and at a rate to be determined." The court also retained jurisdiction on restitution under section 1202.46. Therefore, we cannot say for sure on this record whether the court required Humble to pay restitution, and if so, whether it required Humble to pay interest under section 1214.5. If it did, the 15 percent administrative processing fee and any interest it imposed are now uncollectible and must be vacated, so we state as much in the disposition.
Accordingly, we agree with the parties and remand the case to the trial court with directions to vacate the portions of the minute order and terms and conditions of probation imposing administrative costs under section 1202.4, subdivision (l), 1203.1, and restitution interest under section 1214.5.
C. Minute Order Correction
Finally, the parties agree the minute order and terms and conditions of probation erroneously include a fine under section 1202.5, which could not be imposed here and was not imposed in the oral pronouncement of sentence. Section 1202.5 only applies when "a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or Section 488, or 594." (§ 1202.5, subd. (a).) Humble pled to a violation of section 245, which is not among the crimes listed in section 1202.5. Accordingly, we remand to the trial court with directions to correct the minute order and terms and conditions of probation to strike the order to pay any fine under section 1202.5.
DISPOSITION
We remand with directions to vacate any remaining balance of the administrative costs imposed under sections 1202.4, 1203.1, and 1214.5. We also direct the trial court to amend the sentencing minute order and terms and conditions of probation to strike any fines imposed under section 1202.5. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P. J. FIELDS J.