Opinion
D075279
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. SAGE JESSICA DIESSNER, Defendant and Appellant.
Cherise Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Collette C. Cavalier, and Michelle Ryle, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS304332 ) APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed in part; reversed in part; remanded with directions. Cherise Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Collette C. Cavalier, and Michelle Ryle, Deputy Attorneys General, for Plaintiff and Respondent.
Sage Jessica Diessner was charged with driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 1) and driving with a measurable blood alcohol level of .08 or higher causing injury (§ 23153, subd. (b); count 2). Each count included the allegation that Diessner's blood alcohol content was above 0.15 percent (§ 23578). Diessner pled guilty to count 2 and admitted the corresponding allegation. The court sentenced Diessner to three years-probation on the condition she serve 120 days in the custody of the county sheriff.
Statutory references are to the Vehicle Code unless otherwise specified.
Among other probation conditions, the court imposed a Fourth Amendment electronic search waiver (electronic search condition) and a provision requiring Diessner to report contact with law enforcement. In addition, the court levied certain fees, assessments, and fines.
Diessner appeals, contending: (1) the electronic search condition violates People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad; (2) the provision requiring her to report contact with law enforcement is unconstitutionally vague; and (3) the imposition of the fees and fines violates her due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
The People counter that none of Diessner's challenges here have merit. In addition, they maintain we cannot even reach the merits of Diessner's arguments in the instant matter because she did not obtain a certificate of probable cause before filing her appeal.
We disagree with the People that Diessner was required to obtain a certificate of probable cause before filing the instant appeal. Further, we agree that the electronic search condition violates Lent, supra, 15 Cal.3dd 481. However, we find Diessner's challenge to her probation condition to report contact with law enforcement lacks merit. In addition, we determine that she waived any challenge to the fees, assessments, and fines that were imposed. Accordingly, we remand this matter back to the superior court to strike the electronic search condition. In all other respects, we affirm the judgment.
FACTURAL AND PROCEDURAL BACKGROUND
The underlying facts of Diessner's crimes are not relevant to the issues before us. Suffice it to say, Diessner struck another vehicle while driving her sedan under the influence of alcohol. The driver of the other vehicle sustained injuries.
Diessner ultimately pled guilty to driving with a measurable blood alcohol level of .08 or higher and causing injury in violation of section 23513, subdivision (b) (count 2). Diessner's change of plea form acknowledged that she would abide by conditions deemed reasonable by the court if granted probation. As part of her change of plea form, Diessner initialed next to a box indicating that she gave up her "right to appeal . . . any sentence stipulated herein."
Diessner acknowledged a restitution fine of $300 to $10,000 as a possible sanction. As provided in the change of plea DUI addendum, potential fines ranged from $390 to $5000. Diessner acknowledged she would be fined up to $50 for an alcohol and abuse education penalty assessment and pay all required fines and fees under section 23646. In the DUI addendum, section 7 included an asterisk if applicable that "If my blood-alcohol level was .20 percent or above or I refused to take a chemical test, the court shall consider this in determining whether to enhance the penalties, grant probation, or impose additional terms of probation. (VC § 23578)"
At the change of plea hearing, the trial court advised Diessner that the felony driving under the influence conviction carries more serious consequences compared to her misdemeanor driving under the influence conviction. Diessner said she understood this consequence.
The superior court placed Diessner on three years probation on condition that she serve 120 days in the custody of the county sheriff. Among other conditions, the court imposed two probation conditions (6K and 6N) that Diessner challenges here. Condition 6K states: "Provide true name, address, and date of birth if contacted by law enforcement. Report contact or arrest in writing to the [Probation Officer] within 7 days. Include the date of contact/arrest, charges, if any, and the name of the law enforcement agency." Diessner did not object to condition 6K.
Condition 6N provides: "Submit person, vehicle, residence, property, personal effects, computers, and recordable media cell phone 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." During her sentencing hearing, Diessner's attorney objected to condition 6N to the extent it included a waiver of Diessner's Fourth Amendment rights as to her cell phone, recordable devices, and computers. Counsel noted that Diessner's offense was for driving under the influence, which had no connection to the use of a cell phone.
The phrase "cell phone" was handwritten into condition 6N.
The court responded:
"And I understand your request but my experience is Ms. Diessner is going to be on probation for the next three years. Probation needs to supervise her. And I have found, in my experience, cell phones frequently contain photographs of people violating probation, including drinking, using drugs, having guns in their possession. So I'm not going to eliminate that tool of probation. So I'm going to order the Fourth waiver search of the cell phone."
Diessner's counsel did not object to any other conditions or any fines, fees, or assessments that were imposed.
DISCUSSION
I
CERTIFICATE OF PROBABLE CAUSE
The People argue that Diessner's appeal should be dismissed because her claims fall within the scope of an appellate waiver contained in the plea agreement. Specifically, they argue that, before sentencing, Diessner met with a probation officer and understood the electronic search condition would "probably be imposed" and agreed to follow that condition. As such, the People insist the electronic search condition the court imposed was part of the sentence Diessner negotiated. In addition, citing People v. Espinoza (2018) 22 Cal.App.5th 794 (Espinoza), the People assert a certificate of probable cause was required because Diessner's challenge to the probation condition "effectively challenges the waiver of the right to appeal included in the plea agreement."
However, the People admit that this court recently addressed a "very similar" issue and concluded the appellant did not need to obtain a certificate of probable cause before challenging a probation condition on appeal. (See People v. Patton (2019) 41 Cal.App.5th 934, 942-943 (Patton).) In that case, this court explained that Penal Code section 1237.5 "generally prohibits appeals following pleas of guilty or no contest unless the defendant first obtains a certificate from the trial court attesting that there are reasonable grounds for the appeal." (Patton, at p. 940.) However, "[a] certificate is not required if the appeal is based on . . . '[g]rounds that arose after entry of the plea and do not affect the plea's validity.' " (Ibid., [quoting Cal. Rules of Court, rule 8.304(b)(4) (Rule 8.304)].)
In Patton, the defendant entered into a plea agreement that stated that he agreed to waive his right to appeal " 'any sentence stipulated herein.' " (Patton, supra, 41 Cal.App.5th at p. 939.) On appeal, the defendant sought to challenge a probation condition that the trial court imposed at sentencing. (Id. at p. 937.) We rejected the People's argument that the appeal should be dismissed for lack of a certificate of probable cause. (Ibid.) In reaching this conclusion, we observed that it was undisputed that the grounds for the defendant's appeal arose " 'after entry of the plea,' " within the meaning of Rule 8.304. (Patton, at p. 938.) In addition, this court rejected the People's argument that the defendant's appeal affected the validity of the plea. (Ibid.) We reasoned:
"In waiving his right to appeal 'any sentence stipulated herein,' Patton's plea agreement referred to the terms of the sentence that were included in the agreement itself. (Italics added.) We construe that language to apply to the specifics of the stipulated sentence specified in the plea agreement. By its terms, the scope of the
waiver is limited; it did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings. ([People v.] Becerra [(2019)] 32 Cal.App.5th [178,] 188 [no certificate required '[i]f the defendant's claim is not within the scope of an appellate waiver'].) Thus, Patton's appeal in no way attacks the plea or affects its validity, and accordingly no certificate of probable cause was required. (Rule 8.304(b)(4).)" (Patton, at pp. 942-943.)
The appellate waiver in Diessner's plea agreement is materially indistinguishable from the appellate waiver at issue in Patton. In the plea agreement, Diessner agreed to give up her right to appeal "any sentence stipulated herein." Patton involved the same waiver. (See Patton, supra, 41 Cal.App.5th at p. 939 ["As part of the plea deal [defendant] agreed to 'give up [his] right to appeal . . . any sentence stipulated herein.' "]) As in Patton, Diessner's waiver "did not encompass provisions . . . that were yet to be determined in future proceedings," such as the imposition of probation conditions or the imposition of fines and fees. (Id. at p. 943.) Diessner's appeal thus does not affect the validity of the plea, and therefore, no certificate of probable cause was required. (Ibid.)
A different conclusion is not warranted when we consider Espinoza, supra, 22 Cal.App.5th 794. In Espinoza, the appellate court concluded the defendant "broadly waived her 'right to appeal the judgment and rulings of the court.' " (Id. at p. 801.) Moreover, the court found, by "its express terms, the waiver includes her right to appeal the imposition of probation terms, and she does not argue otherwise." (Ibid.) In other words, the defendant in Espinoza did not take the position that the appellate waiver she signed did not apply to her appeal. Here, Diessner makes no such concession, and the appellate waiver in the instant action is more like the waiver in Patton than the waiver in Espinoza.
Similarly, we are not persuaded by the People's argument that Patton is not applicable here because Diessner was advised "at least twice that she would be subject to stricter conditions than had been imposed as part of her prior misdemeanor DUI." The People also point out that Diessner signed a DUI addendum, which stated that because she had a blood alcohol content above 0.20 percent, the sentencing court could impose additional terms of probation. Although Diessner might have been told she could be subject to additional or stricter probation conditions, we fail to see how such a warning somehow expanded the scope of her appellate waiver. Nor do these warnings show that she was told she would be subject to an electronic search condition. The People emphasize that the probation report indicates that the probation officer told Diessner that she would "probably" be subject to search conditions, but there is no indication in the probation report that the probation officer and Diessner discussed an electronic search condition.
In conclusion, we believe the instant matter is analogous to Patton, supra, 41 Cal.App.5th 934. We therefore follow that case and conclude Diessner did not need to obtain a certificate of good cause before bringing this appeal.
II
THE ELECTRONIC SEARCH CONDITION
Diessner contends the electronic search condition violates Lent, supra, 15 Cal.3d 481 and is unconstitutionally overbroad. We agree that the subject condition violates Lent.
The California Supreme Court recently considered the reasonableness of electronic search conditions in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). Applying that decision to the record here, we conclude the broad electronic search condition imposed on Diessner is not reasonable. Under Lent, "[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.' " (Lent, supra, 15 Cal.3d at p. 486.) "The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' " (Ricardo P., at p. 1118.) "On appeal, we ' "review conditions of probation for abuse of discretion." ' [Citation.] Specifically, we review a probation condition 'for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' " (Ibid.)
In the instant action, the parties agree that the electronic search condition fails the first two prongs of the Lent test. Thus, the dispute before us is whether the electronic search condition requires or forbids conduct that is not reasonably related to future criminality.
Our high court in Ricardo P. considered the third Lent prong in the context of an electronic search condition imposed on a juvenile probationer. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The juvenile admitted two felony counts of burglary. (Ibid.) "As a condition of his probation, the juvenile court required Ricardo to submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices. Although there was no indication Ricardo used an electronic device in connection with the burglaries, the court imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.) The California Supreme Court concluded that this rationale was insufficient to justify the broad electronic search condition: "[T]he record here, which contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity, is insufficient to justify the substantial burdens imposed by this electronic search condition. The probation condition is not reasonably related to future criminality and is therefore invalid under Lent." (Ricardo P., at p. 1116.)
"Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Ricardo P., supra, 7 Cal.5th at p. 1122.) A broad electronic search condition "significantly burdens [a probationer's] privacy interests" because of the comprehensive nature of the information stored by modern electronic devices such as cell phones. (Id. at p. 1123, citing Riley v. California (2014) 573 U.S. 373, 395.) It therefore requires a correspondingly strong justification for the search condition. But where, as in Ricardo P., the justification for the search condition is mere speculation that the probationer will use his electronic devices to document or discuss drug or alcohol usage—on the ground that minors typically do so—the justification is inadequate. (Ricardo P., at pp. 1122-1123.) As the California Supreme Court explained, "This case involves a probation condition that imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.) In other words, "the burden it imposes on [defendant's] privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119.) "This disproportion leads us to conclude, on this record, that the electronic search condition is not ' "reasonably related to future criminality" ' and is therefore invalid under Lent." (Ricardo P., at p. 1124.)
Ricardo P. involved a juvenile, but its reasoning applies with equal force here, and we should be more exacting in our review because the court sentencing Diessner did not have the same latitude as a juvenile court in the same situation. " 'A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.)
Under Ricardo P., "there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical." (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166 (Alonzo M.).) For example, in Alonzo M., the record contained evidence of the juvenile's extensive use of electronic devices to communicate with friends and for other purposes. (Id. at pp. 166-167.) The trial court imposed an electronic search condition to "help to ensure that [the juvenile] does not again succumb to the negative influences he blames for the criminal behavior that led to this wardship." (Id. at p. 167.) Because there was a basis in the evidence to believe that the electronic search condition would achieve these purposes, specifically the juvenile's extensive use of electronic devices, the reviewing court found that a narrowly tailored search condition would be reasonable. (Id. at p. 168.)
The record here does not reflect any such connection between the electronic search condition at issue and Diessner's criminal conduct or personal history. In rejecting Diessner's argument against the electronic search condition, the superior court noted that it found in its "experience, cell phones frequently contain photographs of people violating probation, including drinking . . . ." But the relevant question is whether there is any indication beyond speculation that Diessner's conduct provides a strong justification for an electronic search condition. Where, as here, there is no indication that the defendant used or will use electronic devices in a manner that would lead to effective monitoring, the justification for a broad electronic search condition is lacking. (See Ricardo P., supra, 7 Cal.5th at p. 1116; Alonzo M., supra, 40 Cal.App.5th at p. 167.)
The same reasoning applies to the People's claim that the electronic search condition will help prevent future criminality "as it provides a necessary tool for effective supervision based on [Diessner's] history of driving under the influence of alcohol." The People's contention does nothing to connect Diessner's use of electronic devices to her future criminality. As one court explained, "Because of the significant burden imposed on [the defendant's] privacy interest and the absence of any information in the record to connect the condition with the goal of preventing future criminality, we again hold that the electronic search condition imposed on [the defendant] is invalid under Lent." (People v. Bryant (2019) 42 Cal.App.5th 839, 847.) Here, there is nothing in the record regarding Diessner's use of her cell phone, computer, or social media to memorialize her drinking. Simply put, there is no connection between Diessner's driving under the influence and her use of any electronic device. As such, the broad electronic search condition at issue here is likewise invalid under Lent. (See Ricardo P., supra, 7 Cal.5th at p. 1116.)
Because we find the electronic search condition invalid under Lent, supra, 15 Cal.3d 481, we do not reach Diessner's argument that the search condition is unconstitutionally overbroad.
III
THE REPORT CONTACT WITH LAW ENFORCEMENT CONDITION
Diessner contends that condition 6K, which states that she 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).' " (In re Sheena K. (2007) 40 Cal.4th 875, 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.) 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.)
Diessner relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), to support her argument that the portion of this condition requiring that she report any "contact" with law enforcement is unconstitutionally vague. The court in Relkin 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 Diessner "[p]rovide [her] 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 Diessner. This would not include mere greetings by law enforcement officers or conversations with officers at events Diessner may attend. Further, the requirement that Diessner report the "contact or arrest" and that she 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 Diessner, or Diessner 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 Diessner and a law enforcement officer, including the exchanging of pleasantries, and a situation in which Diessner is a witness to a crime or is specifically stopped and questioned by a law enforcement officer. We therefore reject Diessner's vagueness challenge to condition 6K.
IV
THE FEES AND FINES LEVIED AGAINST DIESSNER
At sentencing, the trial court imposed a $1,628 fine under Penal Code section 1465.7, subdivision (a); a $40 court operations assessment under Penal Code section 1465.8; a $30 criminal conviction assessment per Government Code section 70373; a $154 criminal justice administration fee under Government Code section 29550; a $100 alcohol/drug assessment program fee under Vehicle Code section 23649; a $50 alcohol prevention and abuse penalty assessment under Vehicle Code section 23645; a $7 emergency medical air transport fee per Government Code section 76000.10; a $300 restitution fine under Penal Code section 1202.4, subdivision (b); and a county collection fee of $30 under Penal Code section 1202.4, subdivision (l).
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Diessner contends that imposition of these various fines, fees, and assessments, without a determination of her ability to pay, violated her constitutional right to due process. She contends her case should be remanded to allow the trial court to determine whether she has the ability to pay these amounts. Yet, as the People point out and Diessner concedes, she did not object to the imposition of any of these fines or request an ability to pay hearing below. As such, as we explain, we conclude Diessner forfeited the claimed Dueñas error.
Dueñas involved an indigent, disabled, and homeless mother of young children who, due to illness, did not complete high school and subsisted on public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas objected on due process grounds to the trial court's imposition of various fines and fees. (Id. at p. 1162.) "The court rejected Dueñas's 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.) In reversing, the Court of Appeal in Dueñas observed, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court therefore held that "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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the 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." (Ibid.)
The Courts of Appeal have reached different conclusions regarding the substantive merits of the Dueñas opinion as well as the question of whether a defendant forfeits any claim of error by failing to raise the issue in the trial court. Here, we find forfeiture based on the fact that Diessner had the ability to object to the alcohol/drug assessment program fee and the alcohol prevention and abuse assessment—even before Dueñas was decided—but failed to do so. Where a statutory basis to object based on inability to pay exists, but a defendant fails to assert such a claim, the claim is forfeited. For example, in Gutierrez, this court held that a defendant who fails to object to a restitution fine above the statutory minimum forfeits any ability-to-pay argument. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) We reasoned that the statute governing imposition of restitution fines "expressly permitted such a challenge" even before Dueñas. (Gutierrez, at p. 1033.) The Dueñas decision does not compel a different conclusion on the issue of forfeiture in such circumstances. (Gutierrez, at p. 1033 ["[E]ven if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine [above the statutory minimum] by failing to object."].) The same is true here, where Diessner had the statutory right to request that the trial court consider her ability to pay the alcohol/drug assessment program fee and the alcohol prevention and abuse assessment (§§ 23645, subd. (c), 23649, subd. (b)), but failed to do so. By failing to object to this fee and assessment or seek an ability to pay hearing prior to the court's imposition of the fee or assessment, Diessner forfeited her challenge on appeal.
For example, the courts in People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted November 26, 2019, S258946, and People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 disagreed with Dueñas, whereas the court in People v. Belloso (2019) 42 Cal.App.5th 647, 654-656 followed Dueñas. The Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96 on November 13, 2019, S257844. We need not address the validity of Dueñas given our conclusion here that Diessner forfeited her claim of error.
For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155, and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 found forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134, 137-138, People v. Castellano (2019) 33 Cal.App.5th 485, 489, and People v. Jones (2019) 36 Cal.App.5th 1028, 1033 did not find forfeiture.
Further supporting forfeiture here, Diessner did not object or request an ability to pay hearing when the court assessed a criminal justice administration fee under Government Code section 29550. That section permits judicial consideration of a defendant's ability to pay. Moreover, the California Supreme Court has already held that failure to challenge this kind of fee at sentencing forfeits the claim on appeal. In People v. McCullough (2013) 56 Cal.4th 589, the defendant argued the trial court was required to consider his ability to pay before assessing him a booking fee under Government Code sections 29550 to 29550.2. (McCullough, at pp. 590-591.) The court held the defendant had a statutory right to request a determination of his ability to pay, which he forfeited by failing to raise it at sentencing. (Id. at pp. 592-593, 599.) Diessner also forfeited her current objection to the criminal justice administration fee by not raising it below. McCullough's forfeiture rule (rather than any principles announced in Dueñas) is determinative here.
Except for victim restitution, Diessner's remaining fines and fees were mandatory regardless of ability to pay. (See Dueñas, supra, 30 Cal.App.5th at pp. 1163, 1170.) But she plainly could have challenged about 13 percent of the total based on ability to pay. Presumably, if she would struggle to pay the full amount, objecting to 13 percent would be both significant and rational. (See, e.g., Gutierrez, supra, 35 Cal.App.5th at p. 1033.) For this reason, we conclude she forfeited her challenge to all the fines and fees assessed.
We do not consider the court's award of victim restitution in our forfeiture analysis because victim restitution is not addressed by the court in Dueñas, and Diessner's ability to pay victim restitution is not a proper factor to consider in setting a restitution award under Penal Code section 1202.4, subdivision (f). (See People v. Evans (2019) 39 Cal.App.5th 771, 776-777.)
In somewhat of a throw-away argument, Diessner contends that if we find forfeiture on appeal, then of necessity her counsel provided ineffective assistance of counsel under the Sixth Amendment. Diessner bears the burden of showing counsel's representation was defective, and she was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 690.) The record does not establish either prong of the Strickland test. We have no idea why counsel did not raise the ability to pay issue. In fact, on the record before us, it might be that neither Diessner nor her attorney believed Diessner lacked the ability to pay the fines, fees, and assessments. Diessner, who was 31 years old at the time of her offense, reported to the probation officer that she had a college degree and was working for the past two and a half years as a server at an upscale restaurant, making $11.50 an hour plus tips. Before that, she worked as a server for a year in Del Mar, and prior to that, as a server for two years in Hawaii. Further, in the instant action, the court ordered Diessner to pay $35 a month, 60 days after she was released from custody. Given Diessner's educational background and work history, perhaps she believed herself capable of making the $35 monthly payment. Yet, the record does not provide any other insight regarding Diessner's attorney's failure to object to the fines, fees, and assessments. Nor does the record enlighten us on the significance of any failure of Diessner in the future to pay any of the amounts.
Our Supreme Court addressed the issue of establishing ineffective assistance of counsel on a silent record in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268. The court found it difficult to establish error or prejudice without a full record. The court suggested the defendant's remedy, if any, must be by way of a petition for habeas corpus. (Ibid.)
DISPOSITION
This matter is remanded to the superior court with directions to strike the electronic search condition. Specifically, the court is to strike references in condition 6N to "computers," "recordable media," and "cell phone." In all other respects, the judgment is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.