Opinion
G057596
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. NORMA QUEVEDO GARCIA, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF3244) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed as modified; remanded as directed. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Norma Quevedo Garcia of one count of second degree robbery (Pen. Code, §§ 211 & 212.5, subd. (c)).
Statutory references are to the Penal Code unless otherwise indicated.
Because Garcia neither challenges her conviction, nor contests the underlying facts, we will only briefly summarize them. The prosecution's evidence showed the robbery victim was walking in Santa Ana when Garcia and another woman tripped him. They stuck a hard object in his upper back as he laid face down on the ground and took his wallet containing his identification card and $500 cash.
The court suspended imposition of sentence, placed Garcia on three years formal probation, and ordered her to serve one year in the county jail. As one of her probationary conditions, Garcia agreed to subject her electronic devices to warrantless searches and seizures.
The court also ordered her to pay a $40 court operations assessment fee (§ 1465.8), a $30 criminal conviction assessment fee (Gov. Code, § 70373), and a mandatory state restitution fine of $300 (§ 1202.4). At her sentencing hearing, Garcia did not object to either the court fee assessments or the restitution fine; she did not request a hearing or alert the court to any issues regarding to her ability to pay.
The court also imposed a local crime prevention fund fee of $10 (§ 1202.5(a)), and imposed and stayed a $300 probation revocation fine (§ 1202.44), neither of which is contested in this appeal.
On appeal, Garcia raises two claims relating to her sentence: (1) the warrantless electronic device search condition is "unconstitutionally overbroad" and not "reasonably related to the underlying offense"; and (2) the imposition of the fees and restitution fine without first determining her ability to pay violated her due process rights. Garcia asserts the matter must therefore be remanded for a hearing to determine her ability to pay. She alternatively argues her trial attorney's failure to object to the probation condition and the imposition of the fine and fees constituted deficient representation.
We agree with Garcia's first contention and strike the electronic device search condition of probation. Her second claim is forfeited by a failure to object in the trial court. On the record before us, Garcia has failed to demonstrate her trial attorney's failure to object to the fine and fees was ineffective assistance of counsel.
DISCUSSION
1. The Electronic Device Search Condition Was Unwarranted
Garcia was placed on probation after being convicted of a single count of robbery. As a condition of her probation, the trial court required her to submit to warrantless searches and seizures of her "person and property including any residence, premises, container, or vehicle under your control, including electronic devices . . . ."
There was no evidence Garcia used an electronic device in connection with the robbery, or took one from the victim, and the court imposed the condition without any explanation. Indeed, the court did not discuss with Garcia any of the terms and conditions of her probation except for her one-year jail sentence. The terms and conditions apparently were derived from what appear to be pages seven and eight of a generic Orange County Superior Court guilty plea and terms of probation form, which Garcia and her attorney initialed and signed before the sentencing hearing.
The probation department recommended a general search and seizure term of probation, but did not ask for a specific electronic device search condition. The prosecutor also did not ask for an electronic device search term and instead simply requested "standard search and seizure terms."
Garcia now challenges the electronic device search condition as invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded by Proposition 8 on other grounds as noted in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6 (Moran). In addition, she argues the condition is unconstitutionally overbroad under In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.).
In Lent, our Supreme Court held "a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at p. 486.) In Sheena K., the Supreme Court found "[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.)
Recently, in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), the Supreme Court revisited Lent to examine whether an electronic device search condition like the one at issue here was ""'reasonably related to future criminality.'"" (Id. at p. 1116.) It found the record before it, "which contains no indication that [Ricardo P.] 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 electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid under Lent." (Ibid.) We believe this case is indistinguishable from Ricardo P. As a result, we need not reach Garcia's constitutional claim under Sheena K. or her ineffective assistance of counsel contention.
Ricardo P. had been made a ward of the juvenile court after committing two residential burglaries with his adult cousins. He challenged the electronic device search condition of probation in the trial court, arguing it was '"not reasonably related to the crime or preventing future crime."' (Ricardo P., supra, 7 Cal.5th at p. 1117.)
Unlike in Ricardo P., Garcia did not object to the probationary term. Generally, the failure to object to a probationary term forfeits a challenge on appeal unless it presents a pure question of law that can be resolved without reference to the particular factual sentencing record developed in the trial court. (Sheena K., supra, 40 Cal.4th at p. 889.) Nonetheless, because Garcia also raises an ineffective assistance of counsel claim based on that failure to object, we shall consider her Lent claim on the merits. (See Moran, supra, 1 Cal.5th at p. 403, fn. 5.)
A. Legal Background
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.' [Citation.] Accordingly, . . . a sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . .' [Citation.] But such discretion is not unlimited: '[A] condition of probation must serve a purpose . . . , and conditions regulating noncriminal conduct must be "'reasonably related to the crime of which the defendant was convicted or to future criminality.'"" (Moran, supra, 1 Cal.5th at pp. 402-403.)
Lent provides the framework for determining whether a condition of probation is reasonable. "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." (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).)
In applying Lent, we review the imposition of a probation condition for abuse of discretion. (Moran, supra, 1 Cal.5th at p. 403.) Thus, "a reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable." (Ibid.; Olguin, supra, 45 Cal.4th at p. 384.)
In contrast, constitutional challenges to a probationary condition are reviewed de novo. (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1127.)
B. Analysis
The first two prongs of the Lent test are satisfied here. The electronics search condition has no relationship to the robbery for which Garcia was convicted, and there is no indication that any electronic device was involved in the commission of the robbery. The condition also relates to conduct which is not in itself criminal—the possession and use of electronic devices.
Consequently, "[t]his case turns on whether the electronics search condition satisfies Lent's third prong—that is, whether it "'requires or forbids conduct which is not reasonably related to future criminality.'"" (Ricardo P., supra, 7 Cal.5th at p. 1119.) We hold the search condition here is invalid under the Lent test because, on the record before us, the burden it imposes on Garcia's privacy is "substantially disproportionate to the countervailing interests of furthering [her] rehabilitation and protecting society." (Id. at p. 1119.)
The Attorney General argues "[i]t is reasonable to conclude that [Garcia] and her accomplice may well have used electronic means to communicate with each other prior to the crime." We disagree. There is nothing in this record to support such a conclusion. Garcia's "accomplice" was never tried for this crime. The charges against her were dismissed after the preliminary examination when the magistrate found "there's simply no evidence that she participated in the robbery in any way; that she was simply there was all I heard."
We also reject the Attorney General's assertion "the trial court had a reasonable basis to conclude that [Garcia] could be assisted by a probation condition that helped her avoid future criminality . . . [and] could reasonably have decided permitting a probation officer to examine [Garcia's] electronic devices would be an effective way to confirm her compliance with the law and other probation conditions."
First, there is nothing in the record to indicate the trial court reached such a conclusion. The trial court never discussed the propriety of Garcia's probationary terms and conditions at the sentencing hearing. They were simply imposed without any specific analysis of their applicability to this case. Second, as the Supreme Court has noted, "[i]n virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct." (Ricardo P., supra, 7 Cal.5th at p. 1123.) If such generalizations were sufficient to justify the substantial burdens of an electronics search condition, "it is hard to see what would be left of Lent's third prong." (Id. at p. 1124.)
The two supporting cases the Attorney General cites are no longer valid authority. In both People v. Valdivia (2017) 16 Cal.App.5th 1130, review granted Feb. 14, 2018, S245893, and People v. Trujillo (2017) 15 Cal.App.5th 574, review granted Nov. 29, 2017, S244650, the Supreme Court granted review and transferred the cases back to the Court of Appeal with directions.
"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. [Citations.] [¶] Such proportionality is lacking here. As noted, nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct." (Ricardo P., supra, 7 Cal.5th at p. 1122.) And so it is here.
The record reflects this is Garcia's first exposure to the criminal justice system. As in Ricardo P., the burden imposed by the electronics search condition here is substantially disproportionate to any interests that term might hypothetically serve; therefore this term of probation is invalid. The Attorney General has not suggested remand or that the electronics search condition could be narrowed in such a way as to satisfy Lent. We therefore strike the challenged probation condition.
2. Garcia Forfeited Her Challenge to Imposition of the Fees and Restitution Fine
A. Background
Garcia's probation order required her to pay a $40 court operations assessment fee, a $30 criminal conviction assessment fee, and a mandatory state restitution fine of $300. Garcia initialed a box on the probation conditions form stating, "I have read, I understand, and I accept these terms and conditions of probation . . . ." In court, she verbally acknowledged and accepted the terms and conditions of her probation on the form as her "lawyer had [her] initial and sign." In other words, Garcia agreed to pay the restitution fine and court fees.
At the sentencing hearing itself, Garcia did not object to the fee assessments or the restitution fine and did not request a hearing regarding her ability to pay. According to the probation and sentencing report, Garcia was given a "Notice of Right to a Financial Hearing" pursuant to section 1203.1b, but she did not submit an "Adult Financial Statement" declaring her assets and liabilities. The report stated Garcia was "transient," but also that she had worked in the past as a house cleaner, making $110 a day in cash. She told the probation officer she quit that type of work in 2014 to care for her baby and had been unemployed since then.
Garcia now argues it was "error for the trial court to order [her] to pay a restitution fund fine and court security and court facilities fee without conducting a hearing and deciding that she can pay these fines and fees." In support, she cites People v. Duenas (2019) 30 Cal.App.5th 1157 (Dueñas).
B. Dueñas
Dueñas is distinguishable. That case involved a homeless mother with cerebral palsy, who was unable to work and whose family was unable to afford even basic necessities due to their poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas's earlier failure to pay several juvenile traffic citations resulted in the suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license, and even more court fines and fees. (Id. at p. 1161.) While she often served time in jail in lieu of paying her fines, Dueñas was still ordered to pay the related mandatory court fees. (Ibid.)
After she pleaded guilty to another misdemeanor driving with a suspended license charge, the trial court imposed statutory fine and fee assessments similar to those charged to Garcia here. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) At her sentencing hearing, Dueñas raised a due process and equal protection challenge, objecting that she did not have the ability to pay the statutory fees and fines. She requested a hearing and produced undisputed evidence establishing her inability to pay. (Id. at p. 1162.) The court struck some fees but imposed others, concluding they were mandatory. (Id. at pp. 1162-1163.) The court rejected her due process and equal protection arguments. (Id. at pp. 1163-1164.)
The Court of Appeal reversed, stating that "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Thus, "the [fee] assessment provisions . . . , if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Id. at p. 1168, italics added.) The Court of Appeal further held any restitution fine—including the statutory minimum—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." (Id. at p. 1164.) The appellate court did not explain what it meant by the term "present ability."
C. Garcia Forfeited Her Dueñas-Based Claim by Failing to Object
The full extent to which Dueñas applies to other defendants, whose indigent circumstances are not as well established in the appellate record, remains to be seen. Different Courts of Appeal, including ours, have issued published opinions addressing Dueñas, following it, distinguishing it, or rejecting it as wrongly decided. Our Supreme Court has granted review in several cases involving Dueñas issues.
We need not resolve these conflicts here because, unlike Dueñas, Garcia did not preserve this issue for an appeal since she did not object to imposition of the fine and fee assessments in the trial court. Indeed, she agreed to them, and she has therefore forfeited her ability to challenge them now. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; People v. Torres (2019) 39 Cal.App.5th 849, 850; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Garcia insists she did not forfeit her right to challenge the fine and fees by arguing their imposition without an ability-to-pay determination constituted an unauthorized sentence. In support she cites People v. Scott (1994) 9 Cal.4th 331, 354 (Scott). We disagree with Garcia's characterization of the issue as well as the applicability of Scott.
In Scott, the Supreme Court noted "the 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (Scott, supra, 9 Cal.4th at p. 354.) For such purposes, "a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid., italics added.)
Thus, an "unauthorized sentence" may be corrected on appeal because it presents pure questions of law independent of any factual issues. (People v. Smith (2001) 24 Cal.4th 849, 852.) However, a defendant's ability to pay a fee or fine is not a pure question of law. (People v. McCullough (2013) 56 Cal.4th 589, 597; see also People v. Avila (2009) 46 Cal.4th 680, 729 (Avila) [rejecting argument that, since the defendant did not have the ability to pay, imposition of a restitution fine under section 1202.4 was an unauthorized sentence not subject to the forfeiture rule].) Factors bearing on an ability to pay determination include the "defendant's current age and health, education, prospects of future earnings, assets, and any other sources of income, as well as other fines and fees ordered." (McCullough, at p. 597.) By failing to raise such a fact-based issue in the trial court, a defendant forfeits it on appeal. (Ibid.)
A defendant is necessarily in the best position to know whether he or she can pay any fees or fines. "[T]he most knowledgeable person regarding the defendant's ability to pay would be the defendant himself. It should be incumbent upon the defendant to affirmatively argue against application of the fine and demonstrate why it should not be imposed." (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750.) This, of course, is exactly what Dueñas did in her case. In our view, that burden must be met—or at the very least the issue raised—in the first instance in the trial court. Otherwise it is forfeited on appeal. We therefore do not reach the merits of defendant's Dueñas-based claim.
D. Garcia Has Not Shown Trial Counsel Was Constitutionally Ineffective for Failing to Raise a Dueñas Claim at Sentencing
Alternatively, Garcia contends her trial attorney was constitutionally ineffective for failing to object to the imposition of the restitution fine and court fees as a term and condition of her probation without an ability to pay hearing.
This claim is without merit because we cannot determine from the record before us why trial counsel failed to request a hearing on Garcia's ability to pay. "To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Maury (2003) 30 Cal.4th 342, 389.)
It is possible Garcia had an ability to pay the fine and fees, either present or future, and that her counsel made a rational decision not to press the issue. In addition, "a defense counsel's decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant's financial circumstances . . . ." (People v. Acosta (2018) 28 Cal.App.5th 701, 707 (Acosta).) The trial court's initial inclination here apparently was to impose a two-year prison sentence and deny Garcia's request for a grant of probation. Counsel could have made the reasonable tactical decision not to request an ability to pay hearing to forego the possibility that the trial court might conclude Garcia lacked the ability to turn her life around and succeed on probation. Based on the strategy employed, trial counsel was able to persuade the court to give Garcia a probationary sentence.
Moreover, unlike the Dueñas case, we have nothing in the record from which we can determine Garcia did not have the ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) In fact, Garcia told the probation officer she had worked in the past as a house cleaner, making $110 a day in cash. Nothing suggests she could not do such work in the future. "'Ability to pay does not necessarily require existing employment or cash on hand.'" (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) "'[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to . . . earn money after [her] release from custody." (Ibid.)
Thus, Garcia has failed to establish a reasonable probability that, even had counsel raised the issue below, she would have obtained Dueñas relief. She has also failed to show her counsel's performance was deficient, i.e., that there could be no satisfactory explanation for her counsel's decision not to object to the imposition of the fine and fees. (Acosta, supra, 28 Cal.App.5th at p. 706.) We therefore reject Garcia's ineffective assistance claim.
DISPOSITION
The judgment is modified by striking the probation condition requiring Garcia to submit to warrantless searches and seizures of her electronic devices. In all other respects the judgment is affirmed. The case is remanded to allow the trial court to modify its probation order as directed.
GOETHALS, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.