Opinion
C088726
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. STEPHANIE RAE HEATHCOTE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18F0006186)
This case involves the theft of prescription medication from a Rite Aid pharmacy in Redding. Following a jury trial, defendant Stephanie Rae Heathcote was found guilty of obtaining a controlled substance (hydrocodone) by fraud (Health & Saf. Code, § 11173, subd. (a)—count 1) and misdemeanor embezzlement of property (hydrocodone & Tamiflu) in an amount less than $950 (Pen. Code, § 503—count 2). The trial court imposed a two-year sentence but suspended its execution and placed defendant on formal probation for three years with various terms and conditions, including a warrantless search condition. This timely appeal followed.
Undesignated statutory references are to the Health and Safety Code.
On appeal, defendant contends reversal is required due to instructional error, vindictive prosecution, and the one-dismissal rule. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant additionally contends the trial court erroneously imposed certain fines and assessments because it did not expressly consider her ability to pay those fines and assessments. Finally, defendant contends the electronic search condition imposed by the trial court must be stricken as unconstitutionally overbroad.
We will strike the electronic search condition from the probation order and remand the matter for the trial court to consider whether the condition can be narrowed in a manner that will pass constitutional muster. We will also direct the trial court to correct clerical errors in the sentencing minute order. As modified, the judgment is affirmed.
FACTUAL BACKGROUND
In early 2018, defendant worked in the pharmacy of a Rite Aid in Redding. She was initially hired by Rite Aid as a pharmacy cashier. After successfully completing a probationary period, she was promoted to the position of pharmacy technician trainee. In those capacities, her responsibilities included operating the cash register in the pharmacy, cleaning and stocking the pharmacy, and "pull[ing]" and counting medication.
Beginning in February 2018, the Rite Aid pharmacy manager noticed that prescription medication was missing from the pharmacy. When patients attempted to pick up their medication, it was not in their designated bags located in the will-call area of the pharmacy. The pharmacy manager reported the issue to the district manager, who forwarded the report to Rite Aid's loss prevention unit.
Christopher Morris, a Rite Aid asset protection district manager, investigated the missing prescription medication. As part of his investigation, which began in March 2018, Morris viewed video footage from the store's security cameras. During his review of the footage, he observed defendant engage in suspicious behavior, including taking prescription medication out of one patient's bag in the will-call area of the pharmacy and placing it into another patient's bag. Morris also observed defendant, at the end of her shift, pick-up a patient's bag in the will-call area of the pharmacy, place it under a trash bag, and then carry it to the back room of the store. In addition to defendant's suspicious behavior, Morris learned that defendant was the last person to handle most of the prescription medication that had gone missing. He also learned that defendant was the only Rite Aid employee working on each of the days prescription medication had been reported missing.
When Morris interviewed defendant in the store manager's office in April 2018, she initially denied any wrongdoing. However, she eventually admitted to stealing a controlled substance, hydrocodone (brand name Norco), and a noncontrolled substance, Tamiflu. At the end of the interview, defendant signed a written statement admitting that she had stolen seven hydrocodone pills and an unspecified amount of Tamiflu pills. She apologized to Morris multiple times for her actions, explaining that she took the hydrocodone pills for her ailing father and the Tamiflu pills for her sick mother.
Following the interview, Morris called the police and reported the theft. After the responding officer advised defendant of her Miranda rights, defendant admitted to stealing 12 Norco (i.e., hydrocodone) pills and four Tamiflu pills, explaining that she took the medication for her sick parents. At no point during her conversation with the officer did she deny taking hydrocodone or Tamiflu. Nor did she accuse Morris of mistreating her or claim that he prohibited her from ending the interview and leaving the store.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
A few weeks later, defendant told the Rite Aid pharmacy manager that she did not steal any prescription medication from the pharmacy. She also told the pharmacy manager that she had been held in the manager's office against her will. However, according to Morris, defendant never requested to end the interview, which lasted about 45 to 60 minutes. Morris claimed that, contrary to defendant's contention, she was free to end the interview and leave the store at any time. Morris explained that it was company policy to permit her to do so.
At some point, defendant told another Rite Aid employee that she did not steal any prescription medication from the pharmacy.
Defendant did not testify at trial or call any witnesses.
DISCUSSION
1.0 Alleged Instructional Error
Defendant contends the trial court committed prejudicial instructional error by failing to properly instruct the jury on the " 'controlled substance' element" of count 1, which charged her with obtaining a controlled substance (hydrocodone) by fraud in violation of section 11173, subdivision (a). According to defendant, the trial court should have defined the term "controlled substance" or instructed the jury that hydrocodone was the relevant controlled substance. The People concede the instructional error, but argue the error was harmless. We agree that the instructional error was harmless.
1.1 Additional Background
After the presentation of evidence, the parties and trial court engaged in an extended discussion about how to properly instruct the jury on count 1. At the outset of that discussion, the parties and trial court acknowledged that there was no pattern jury instruction for this offense. Relying on CALCRIM No. 1804 (Theft by False Pretense) as a template and the statutory language of section 11173, subdivision (a), the parties agreed that the jury should be instructed as follows:
Section 11173, subdivision (a) provides: "No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact."
"The defendant is charged in Count 1 with obtaining a controlled substance by fraud in violation of Health and Safety Code section 11173[, subdivision] (a).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant obtained or attempted to obtain controlled substances.
"AND
"2. The defendant knowingly and intentionally attempted to obtain controlled substances by fraud, deceit, misrepresentation or subterfuge, or by the concealment of a material fact.
"Someone intends to defraud if he or she intends to deceive another person to obtain a controlled substance."
Although there was a discussion about what terms should be defined for the jury, neither the trial court nor the parties suggested that the term "controlled substance" be defined or that hydrocodone should be identified as the specific controlled substance defendant was charged with obtaining by fraud in count 1.
During closing argument, the prosecutor told the jury that in order to establish defendant's guilt on count 1 he had the burden to prove that she had obtained a controlled substance. He then argued that he had met his burden because defendant admitted to taking 12 Norco (i.e., hydrocodone) pills. The prosecutor pointed out that defendant admitted the theft to "the Rite Aid officer" (i.e., Morris), in writing, and to a police officer. In response, defense counsel argued that defendant should be acquitted because she was not the perpetrator of the theft. The defense theory was that Morris forced a false confession out of defendant after holding her against her will in the manager's office. At no point did defense counsel argue that defendant should be acquitted on count 1 because the People had failed to establish that she had stolen a controlled substance.
The jury was instructed orally and in writing on count 1 in accordance with the parties' agreed-upon instruction. The verdict form for count 1 did not indicate that hydrocodone was the controlled substance defendant was charged with obtaining by fraud. However, the packet of written instructions provided to the jury began with a verbatim description of the charges alleged against defendant in the relevant charging document. The jury, therefore, was expressly informed that the relevant controlled substance defendant was charged with obtaining by fraud in count 1 was hydrocodone, and that the property defendant was accused of embezzling in count 2 was hydrocodone and Tamiflu.
1.2 Analysis
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
"We assess federal constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Under Chapman, we must reverse unless the People 'prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Ibid.) Where the trial court fails to instruct on an element of the charged offense, however, the People must make a more substantial showing. That showing is governed by Neder v. United States (1999) 527 U.S. 1, 17-19 (Neder), and by the California Supreme Court's decision interpreting Neder, [People v.] Mil [(2012)] 53 Cal.4th 400 [(Mil)] . . . .
" 'Neder instructs us to "conduct a thorough examination of the record. If, at the end of that examination [we] cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—[we] should not find the error harmless." ' (Mil, supra, 53 Cal.4th at p. 417, quoting Neder, supra, 527 U.S. at p. 19.) On the other hand, the error is harmless if the People can prove beyond a reasonable doubt that the omitted element was uncontested and supported by such overwhelming evidence that no rational juror could come to a different conclusion. (Mil, supra, at pp. 417-419; accord, People v. French (2008) 43 Cal.4th 36, 53.)" (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165-1166.)
" ' "[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in [People v.] Watson [(1956) 46 Cal.2d 818].' [Citations.] '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' " (People v. Beltran (2013) 56 Cal.4th 935, 955.)
Here, the jury found defendant guilty on count 1, which alleged that she had violated section 11173, subdivision (a) by obtaining a controlled substance (hydrocodone) by fraud. "[A]ny substance expressly listed by any accepted name in sections 11054 through 11058 is a controlled substance as a matter of law, and the jury need not make any further finding in that regard." (People v. Davis (2013) 57 Cal.4th 353, 361-362, fn. 5.) Hydrocodone is among the substances specifically identified as a Schedule II controlled substance under section 11055. (§ 11055, subd. (b)(1)(I)(i).) Thus, because hydrocodone is a controlled substance as a matter of law, the instructional error in this case was the trial court's failure to advise the jury in the instruction defining the elements of count 1 that hydrocodone was the relevant controlled substance defendant was accused of obtaining by fraud.
As the parties correctly point out, the pattern instructions concerning various controlled substance offenses direct the trial court to identify the specific controlled substance at issue in the first paragraph. (See e.g., CALCRIM Nos. 2300-2304, 2306, 2748.)
We conclude the instructional error was harmless under any standard. The evidence presented at trial supporting defendant's guilt was overwhelming. Among other things, the evidence showed that hydrocodone was a controlled substance and Tamiflu was a noncontrolled substance, and that defendant admitted to stealing both of these prescription medications to a Rite Aid asset protection district manager and to a police officer. Her admission to the theft was reduced to writing and admitted into evidence at trial. The issue of whether hydrocodone was a controlled substance for purposes of count 1 was not contested by the defense at trial. Instead, the defense theory was that defendant was not the perpetrator of the theft. According to the defense, Morris forced a false confession out of defendant after holding her against her will in the manager's office. The evidence supporting this theory was weak, at best. The only evidence which supported this theory was testimony from a Ride Aid employee indicating that defendant had denied taking the missing prescription drugs, and testimony from the Rite Aid pharmacy manager indicating that, several weeks after defendant's admission of the theft to Morris and a police officer, defendant claimed she did not steal any prescription medication and was held against her will in the manager's office. The responding police officer, however, testified that defendant never denied taking the prescription medications, accused Morris of mistreating her, or claimed that Morris prohibited her from ending the interview and leaving the store. When Morris testified, he indicated that defendant never requested to end the interview or leave the store. He also indicated that, pursuant to a company policy, she could have done so at any time. In closing argument, the prosecutor told the jury that the People had met its burden of proof on count 1 because defendant admitted to taking Norco (i.e., hydrocodone) pills. The packet of written instructions provided to the jury advised the jurors of the specific charges alleged against defendant as set forth in the relevant charging document. The jury was told that count 1 alleged that defendant obtained a controlled substance (hydrocodone) by fraud while count 2 alleged that defendant had embezzled the property of Rite Aid by taking hydrocodone and Tamiflu. In finding defendant guilty on both counts, the jury necessarily rejected the defense theory that defendant was not the perpetrator of the theft. The jury's verdict reflects that it found defendant had taken both hydrocodone and Tamiflu from the Rite Aid pharmacy. Had the jury credited the defense theory, it would have acquitted defendant on both count 1 and count 2. On this record, we are convinced beyond a reasonable doubt that the jury's verdict would have been the same absent the instructional error.
2.0 Vindictive Prosecution
Defendant contends the trial court erred in denying her motion to dismiss the case for vindictive prosecution. We disagree.
2.1 Additional Information
On May 10, 2018, the People filed a misdemeanor complaint charging defendant with a single count of embezzlement of "medications" in violation of Penal Code section 503. On September 11, 2018, the trial court granted the People's request to dismiss the misdemeanor complaint. On that same day, the People filed a felony complaint, alleging one count against defendant for obtaining a controlled substance (hydrocodone & Tamiflu) by fraud in violation of section 11173, subdivision (a).
The appellate record does not include the misdemeanor complaint filed on May 10, 2018. However, during the pendency of this appeal, defendant filed a motion asking us to take judicial notice of the misdemeanor complaint and the trial court docket sheet indicating that it was dismissed on September 11, 2018. We granted the request.
As we discuss below, the trial court subsequently granted the People's request to amend the charging document to, among other things, remove Tamiflu from count 1 because Tamiflu is not a controlled substance.
After the felony complaint was deemed an information on October 4, 2018, defendant filed a motion to dismiss for vindictive and retaliatory prosecution in violation of her right to due process under the federal and state Constitutions. Defendant argued that dismissal of the case was warranted because the felony complaint was filed shortly before trial was scheduled to commence after she declined the People's offer to plead to the misdemeanor embezzlement count and exercised her right to a jury trial. In support of the motion, defense counsel filed a declaration, which claimed that Deputy District Attorney Rachel Donahou had told him for the first time at the trial assignment hearing on September 7, 2018, that she would "file a felony, upon further review of the file, if [defendant did] not take a plea to a misdemeanor." Approximately three hours later, defense counsel received an e-mail from Donahou indicating that she was going to refile the case with a felony charge.
The People filed a written opposition to the motion to dismiss, which was accompanied by declarations executed by Donahou and Chief Deputy District Attorney Benjamin Hanna. In her declaration, Donahou stated that she was assigned to defendant's case on September 7, 2018, and had reviewed the charging document for the first time on that day. She explained that she had reviewed over 1,000 felony cases in her capacity as a felony filing deputy, including cases involving section 11173, and found it "odd" that defendant had been charged with misdemeanor embezzlement instead of a felony violation of section 11173. She further explained that it was her practice to file felony charges in cases where, as here, a defendant was accused of stealing prescription medication when the defendant, an employee of a pharmacy, had "likely undergone training regarding controlled substances and [had] been entrusted with the proper handling of prescription medication." Donahou noted that the prosecutor who had originally filed this case was a newer and less experienced attorney in her office, and that "[t]his type of case is normally filed as an HS 11173," since "HS 11173 is a specific section for stealing prescription medications rather than the generic embezzlement section in PC 503." According to Donahou, at the time she initially reviewed the charging document, she "felt that it was highly likely that the case had been filed incorrectly due to the [filing deputy's] lack of knowledge of HS 11173."
Donahou's declaration provided the following description of the events leading to the filing of the felony complaint. During the chambers conference on September 7, 2018, she advised the trial court and defense counsel that it appeared this case had been improperly filed as a misdemeanor case instead of a felony case alleging a violation of section 11173. Donahou explained that it was "likely" she would have charged defendant with a felony, but that she was not willing to make that determination until she reviewed the entire file.
Later that same day, Donahou discussed this case at the weekly felony team meeting in her office. The consensus among those present at the meeting was that the case should have been filed as a felony case, and that the filing deputy had made a mistake in filing it as a misdemeanor case. After the meeting, Hanna independently reviewed the case file and determined that defendant should have been charged with a felony violation of section 11173. As such, he directed Donahou to refile the case with a felony charge.
In his declaration, Hanna confirmed that Donahou had discussed this case at the weekly felony meeting on September 7, 2018, and that the consensus among those present at the meeting was that the case "likely" should have been filed as a felony case alleging a violation of section 11173. He also confirmed that he had directed Donahou to refile the case with a felony charge after he independently reviewed the case file. Hanna asserted that his decision was "in no way premised on whether [defendant] was willing to plead to the case as a misdemeanor."
On September 10, 2018 (i.e., the following Monday), Donahou informed defense counsel and the trial court at the pre voir dire conference that she intended on refiling the case with a felony charge. Donahou advised defense counsel that her office had mistakenly filed the case with only a misdemeanor charge, and that if defendant wanted to take advantage of that mistake she "would keep the misdemeanor offer open." In making this overture, Donahou explained that she "was trying to extend professional courtesy to [defense counsel] by informing him of the issue and not revoking the previous offer." According to Donahou, defense counsel's declaration mischaracterized her conduct with regard to the filing of the felony complaint. Donahou denied that she had told defense counsel she would " 'file a felony, upon further review [of] the file, if [defendant] d[id] not take a plea to a misdemeanor.' " Donahou maintained that the decision to refile the case with a felony charge was based on the circumstances of the offense, not because defendant did not "accept the misdemeanor offer."
In denying defendant's motion, the trial court reasoned, in part, as follows:
"[N]o presumption of vindictiveness applies in this case because the Defendant exercised a pretrial right. Even if the presumption were to apply, I would find that the People would overcome that presumption [because of] the evidence submitted.
"I find the declarations of all Counsels, including [defense counsel], to be very credible. There is very little factual dispute in this case. However, I do find factually that Ms. Donahou's recitation of the events in Chambers is more accurate. The decision to refile as a felony was not made in Chambers that day. It was clear that the misdemeanor offer remained open until the case was dismissed and refiled as a felony.
"Now, Counsel, while I do believe it is what I'll call, quote, unquote, bad form, to make this decision to dismiss and refile as a felony after a trial has been confirmed, I don't believe in this particular case it was done for an improper or vindictive purpose under these facts."
2.2 Analysis
"[T]he due process clauses of the federal and state Constitutions [citations] forbid the prosecution from taking certain actions against a criminal defendant, such as increasing the charges, in retaliation for the defendant's exercise of constitutional rights. [Citations.] It is not a constitutional violation, however, for a prosecutor to offer benefits, in the form of reduced charges, in exchange for a defendant's guilty pleas, or to threaten to increase the charges if the defendant does not plead guilty." (People v. Jurado (2006) 38 Cal.4th 72, 98 (Jurado).)
"In the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges [against the defendant]." (Jurado, supra, 38 Cal.4th at p. 98.) "While a defendant's exercise of some pretrial procedural right may present an opportunity for vindictiveness, 'a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.' " (People v. Bracey (1994) 21 Cal.App.4th 1532, 1544.)
" ' " '[A] prosecutor should remain free before trial to exercise the broad discretion entrusted to [her] to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct [because] the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.' " ' " (People v. Michaels (2002) 28 Cal.4th 486, 514-515.) Thus, when challenging a prosecutor's decision to increase the charges before the commencement of trial, "the defendant must 'prove objectively that the prosecutor's charging decision was motivated by a desire to punish [her] for doing something the law plainly allowed [her] to do.' " (Jurado, supra, 38 Cal.4th at p. 98.)
"Absent proof of vindictiveness or other improper motive, increasing the charges . . . when a plea bargain is refused does not constitute unconstitutional punishment or retaliation for the exercise of a defendant's legal rights. '[I]n the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.' " (People v. Grimes (2016) 1 Cal.5th 698, 736.)
We find no error in the trial court's denial of defendant's motion to dismiss the case for vindictive and retaliatory prosecution. The evidence before the trial court showed that more experienced attorneys in the district attorney's office reconsidered the decision of a newer and lesser experienced attorney to file this matter as a misdemeanor case. The reconsideration of the initial charging decision occurred after a discussion of the case during the weekly felony meeting at the district attorney's office. The consensus among those present at that meeting was the case should have been filed as a felony case. Following the meeting, the chief deputy district attorney (Hanna) independently reviewed the case file and determined that defendant should have been charged with a felony. While the decision to refile this case with a felony charge was made shortly before trial was scheduled to commence, defendant was offered the opportunity to plead to the misdemeanor charge prior to the filing of the felony complaint, which she chose not to do. The trial court conducted a hearing at which it found that the refiling of the case with a felony charge was not "done for an improper or vindictive purpose." In so finding, the court credited Donahou's version of events leading to the filing of the felony complaint, and her assertion that the decision to refile the case with a felony charge was based on the facts of the case, not defendant's failure to accept the offer to plead to a misdemeanor. On this record, we cannot conclude the trial court erred. The record does not contain evidence of vindictiveness or other improper motive objectively proving the People's decision to refile the case with a felony charge was motivated by a desire to punish defendant for rejecting the offer to plead to the misdemeanor charge.
3.0 One-dismissal Rule
Defendant contends that her misdemeanor conviction for embezzlement of property (hydrocodone & Tamiflu) must be reversed because her prosecution for that charge was barred by the one-dismissal rule under Penal Code section 1387. According to defendant, the one-dismissal rule was violated when the trial court permitted the People to amend the information to allege the same misdemeanor embezzlement charge that had previously been dismissed. We disagree.
3.1 Additional Information
On May 10, 2018, the People initiated proceedings against defendant by filing a misdemeanor complaint alleging one count—embezzlement of "medications" in violation of Penal Code section 503. On September 11, 2018, the misdemeanor complaint was dismissed at the People's request and a felony complaint was subsequently filed charging defendant with one count—obtaining a controlled substance (hydrocodone & Tamiflu) by fraud in violation of section 11173.
After the felony complaint was deemed an information on October 4, 2018, the People filed a motion to amend the information to remove the reference to Tamiflu in count 1 because Tamiflu was not a controlled substance, and to add, among other things, a misdemeanor charge for embezzlement of property (hydrocodone & Tamiflu) in violation of Penal Code section 503 (count 2). The defense opposed the motion, arguing that the one-dismissal rule prohibited the addition of count 2 to the information. On November 21, 2018, the trial court granted the People's motion to amend the information.
3.2 Analysis
Penal Code section 1387 provides, in pertinent part, "An order terminating an action . . . is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated . . . or if it is a misdemeanor not charged together with a felony . . . ." (Pen. Code, § 1387, subd. (a).) "The statute treats a misdemeanor charged with a felony the same as a felony." (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1017, fn. 4 (Burris).)
Not every dismissal qualifies as a dismissal for purposes of Penal Code section 1387. The statute describes various circumstances in which a prior dismissal will be excused and not count towards a prosecution bar. (See Pen. Code, § 1387, subds. (a)-(c).) Those circumstances are not present here; it is undisputed the dismissal in this case is a qualifying dismissal.
In Burris, our Supreme Court explained that Penal Code section 1387 implements a series of public policies, including "curtail[ing] prosecutorial harassment by placing limits on the number of times charges may be refiled," "reduc[ing] the possibility that prosecutors might use the power to dismiss and refile to forum shop," and "prevent[ing] the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges." (Burris, supra, 34 Cal.4th at p. 1018.) In construing the statute, the court concluded: "Misdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge. Felony prosecutions, in contrast, are subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge. [¶] We note that because what matters is the nature of the current charge, the nature of any prior charges is immaterial to application of these dismissal rules. Thus, either a misdemeanor or a felony dismissal will bar a subsequent misdemeanor charge, while either two felony dismissals or one misdemeanor and one felony dismissal will bar a subsequent felony charge." (Id. at pp. 1019-1020, fn. omitted.) In reaching this conclusion, the court reasoned, "Section 1387 reflects a legislative judgment that because of the heightened threat to society posed by serious crimes [(i.e., felonies)], more filings should be permitted for serious crimes than for minor ones [(i.e., misdemeanors)]. In turn, the best measure of the seriousness of a crime—and the corresponding societal interest in its prosecution and punishment—is not how the crime was originally charged, based on possibly limited evidence, but how the prosecution currently seeks to charge it, based on the most current and best available evidence. It follows that, for purposes of categorizing a crime as subject to a one-dismissal or two-dismissal rule, what matters is the current charge, not the one previously dismissed." (Id. at p. 1019, fn. omitted.)
We conclude the trial court correctly determined that the one-dismissal rule did not apply under the circumstances of this case—that is, the rule did not bar the People from adding the misdemeanor embezzlement charge (count 2) to the information. Although that same charge had previously been dismissed, because it was subsequently charged together with a felony, it is considered a felony subject to the two-dismissal rule, not the one-dismissal rule. Accordingly, Penal Code section 1387 did not bar the prosecution of the misdemeanor embezzlement charge. 4.0 Dueñas-based Challenge
At sentencing, the trial court imposed various fines and fees, including a $300 restitution fund fine, suspended a matching probation revocation restitution fine, and imposed an $80 court operations assessment fee and a $60 criminal conviction assessment fee.
On appeal, defendant challenges the trial court's imposition of the restitution fines as well as the assessments for court operations and facilities. (Pen. Code, §§ 1202.4, 1202.44, 1465.8; Gov. Code, § 70373.) Citing Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that the imposition of these fines and assessments without express consideration of her ability to pay is a violation of her due process rights. She asks us to vacate the assessments and stay the restitution fine. Alternatively, she asserts that, if the appellate record is insufficient to establish her indigence, the matter must be remanded for the trial court to conduct an ability to pay hearing. We disagree.
Although it is defendant's burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844 (Kopp); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154), defendant neither objected to the restitution fines and assessments generally nor asserted her inability to pay them. As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, at pp. 1154-1155), although there is also authority to the contrary (People v. Johnson (2019) 35 Cal.App.5th 134, 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489,). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits that issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [failure to object to maximum restitution fine on ground of inability to pay forfeits Dueñas issue] (Gutierrez).)
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
We note that the defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.)
Here, we decline to find forfeiture and turn to the merits. Subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) "For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise." (Id. at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.
The analysis of Dueñas in Hicks is adopted in People v. Kingston (2019) 41 Cal.App.5th 272, 279-281 (Kingston), and is paralleled in People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles), People v. Caceres (2019) 39 Cal.App.5th 917, 927, and in the opinions of individual justices in People v. Santos (2019) 38 Cal.App.5th 923, 937-938 (dis. opn. of Elia, J.), and Gutierrez, supra, 35 Cal.App.5th at pages 1038-1039 (conc. opn. of Benke, J.).
Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)
Therefore, given the absence of any valid claim under due process in connection with the restitution fines and assessments, we conclude defendant is not entitled to a remand for the trial court to consider her ability to pay these fines and assessments.
5.0 Electronic Search Condition
Defendant contends the electronic search condition imposed by the trial court must be stricken as unconstitutionally overbroad. The People initially assert that the warrantless search condition need not be modified because the trial court did not orally impose an electronic search condition at sentencing. Alternatively, to the extent the trial court did in fact impose such a condition, the People concede that it must be stricken as unconstitutionally overbroad but request that the matter be remanded for further proceedings. We agree with the parties that the electronic search condition must be stricken from the probation order.
In her reply brief, defendant argues for the first time that the trial court did not orally impose an electronic search condition as part of the warrantless search condition at sentencing. Like the People, she asserts that the electronic search condition must be stricken from the probation order on this ground.
5.1 Additional Background
The probation report prepared in advance of defendant's sentencing recommended that the trial court place defendant on formal probation for three years with various terms and conditions, including a warrantless search condition that provided as follows: "[Defendant must] submit her person, property, vehicle and residence to warrantless search at any time, with or without probable cause, by any peace officer or probation officer and that she provide any password or combination necessary to access any electronic device or service during the warrantless search process." At the sentencing hearing, the trial court orally imposed a search condition, stating: "You'll also submit your person, property, vehicle, and residence to a warrantless search at any time by a peace officer or probation officer." The sentencing minute order/probation order, however, reflects that the trial court imposed the search condition recommended by the probation officer. We need not decide whether the trial court imposed the electronic search condition challenged by defendant. As discussed below, even assuming it did, we agree with the parties that it must be stricken from the probation order.
The trial court's oral statement and written minute order are contradictory. Some authorities hold that when the record of the court's oral pronouncement conflicts with the clerk's minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Price (2004) 120 Cal.App.4th 224, 242 ["Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes."].) Others hold that " 'whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case.' " (People v. Smith (1983) 33 Cal.3d 596, 599; People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4 [it is the " 'general rule' " that " 'a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case.' "].) With probation conditions, a court's oral pronouncement may be less comprehensive, given that the conditions are set forth in detail in the probation order. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [when reporter's transcript and clerk's transcript cannot be reconciled, appellate court adopts the transcript "that should be given greater credence in the circumstances of the case"].) Here, an examination of the circumstances does not resolve the conflict between the trial court's oral pronouncement of sentence and the minute order setting forth the conditions of defendant's probation.
Defendant did not object to the warrantless search condition in the probation order. Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if that claim "amount[s] to a 'facial challenge,' " i.e., a challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad," (In re Sheena K. (2007) 40 Cal.4th 875, 885 ) that is, a " ' "pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court" ' " (id. at p. 889). Such a claim "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts . . . ." (Id. at p. 885.) Here, defendant raises a facial challenge to the electronic search condition and accordingly, her claim is not forfeited.
5.2 Analysis
" '[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.' " (People v. Olguin (2008) 45 Cal.4th 375, 384.) "Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands." (In re White (1979) 97 Cal.App.3d 141, 149-150.)
A probation condition "is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "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." (Ibid.) We independently review defendant's constitutional challenge to a probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Here, the warrantless electronic search condition imposed by the trial court allows any peace officer or probation officer unfettered access to defendant's electronic devices and accounts to conduct warrantless searches without limitation and requires that defendant provide all passwords or other information necessary to effectuate such a search. It is undeniable that these search conditions implicate defendant's constitutional rights. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1123 (Ricardo P.); Riley v. California (2014) 573 U.S. 373, 393-395 (Riley); People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton).) As recognized by the Supreme Court of the United States in Riley at pages 393 to 397, modern cell phones represent significant privacy concerns because they differ both quantitatively and qualitatively from other objects previously subject to search, either on a person or in his/her home.
Quantitatively, cell phones have an immense storage capacity, enabling the collection of large amounts of data, much of which would not have been previously kept, dating back to the purchase of the device or beyond. (Riley, supra, 573 U.S. at p. 394.) Qualitatively, phones collect types of data previously unavailable, such as search histories, location data, and software applications ("apps"), which allow unprecedented revelations into an individual's private life including medical and romantic interests, etc. (Id. at pp. 395-396.) In fact, "[a] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." (Id. at pp. 396-397, italics added.)
Further, while defendant has a reduced expectation of privacy by virtue of her probationer status, she still retains a protectable privacy interest. (Ricardo P., supra, 7 Cal.5th at p. 1140 (conc. & dis. opn. of Cantil-Sakauye, C.J.) [citing In re Jaime P. (2006) 40 Cal.4th 128, 137, for proposition that " 'both parolees and probationers retain some expectation of privacy, albeit a reduced one' "]; Samson v. California (2006) 547 U.S. 843, 850 .) This reduced interest in an essentially unprecedented intrusion into private affairs begs the question whether such an intrusion is nonetheless constitutionally permissible because it is tailored carefully to the government's legitimate interest in defendant's reformation and rehabilitation. We conclude that it is not.
It goes without saying that the state has a legitimate and significant interest in ensuring that the purpose of probation—defendant's rehabilitation—is achieved here. (See People v. Wardlow (1991) 227 Cal.App.3d 360, 365 ["The purpose of probation is rehabilitation."].) This interest includes not only the rehabilitation of the probationer, but also the protection of the community. (United States v. Knights (2001) 534 U.S. 112, 119-120 .)
However, the state's interest in reforming defendant's tendency to commit theft while protecting the community does not justify unfettered access to all of defendant's electronic devices and accounts, enabling the search of highly personalized data having no reasonable connection to ensuring defendant does not reoffend. In fact, "a search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, . . . personal diaries, and intimate correspondence with family and friends." (Appleton, supra, 245 Cal.App.4th at p. 725; see Riley, supra, 573 U.S. at p. 396 [discussing the extraordinary breadth of software apps available for every aspect of modern life].) Such access sweeps more broadly than necessary to achieve the state's legitimate, laudable purposes and on that ground must be stricken. (See In re P.O. (2016) 246 Cal.App.4th 288, 298-299 [finding overbroad a search condition permitting review of information unrelated to goal of monitoring minor's involvement with drugs].) Accordingly, because the electronic search condition is unconstitutionally overbroad, we will strike it from the probation order. We will remand the matter to permit the trial court an opportunity to impose a valid electronic search condition more narrowly tailored to the state's interests.
6.0 Clerical Errors
Although not mentioned by either party, we have noticed clerical errors in the sentencing minute order that must be corrected. The order incorrectly states that defendant was found guilty of felony embezzlement. However, the record reflects that defendant was charged with and found guilty of misdemeanor embezzlement. In addition, the sentencing minute order does not reflect that the trial court imposed a two-year sentence but suspended its execution pending the three-year term of probation. Instead, the order states that imposition of sentence is suspended for three years.
We will order the trial court to correct these clerical errors. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-187 [courts may correct clerical errors in the records at any time, and an appellate court may correct clerical errors on its own motion or on application of the parties]; People v. Mesa (1975) 14 Cal.3d 466, 471 [the pronouncement of judgment is a judicial function, whereas preparation of the minutes is a clerical function; any inconsistency is presumed to be a clerical error].)
DISPOSITION
The trial court is directed to issue an amended probation order, striking the condition requiring defendant to provide any peace officer or probation officer "any password or combination necessary to access any electronic device or service during the warrantless search process." The trial court shall also correct the sentencing minute order in accordance with this opinion. As modified, the judgment is affirmed. Because the trial court may be able to impose a valid electronic search condition more narrowly tailored to the state's interests, the case is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
BUTZ, J. I concur: /s/_________
HULL, Acting P. J. ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except section 4.0 relating to the imposition of the fines and assessments regarding defendant's ability to pay. Defendant believes Dueñas calls into question the imposition of the $300 restitution fine, $300 stayed parole revocation fine, $80 court operations assessment, and $60 criminal conviction assessment without a determination of her ability to pay. (Maj. opn. ante, at p. 17; People v. Dueñas (2019) 30 Cal.App.5th 1157.) I concur with the majority's conclusion defendant did not forfeit the ability to pay argument but disagree with their conclusion on the merits.
I agree with Dueñas that principles of due process would preclude a trial court from imposing the fines and assessments at issue if a defendant demonstrates he or she is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) I do not find the analysis in Hicks to be well-founded or persuasive and believe the majority has it backwards -- it is Hicks that was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) I further do not agree with Aviles that the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1061, 1067, 1069-1072.)
I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant's ability to pay the challenged fines and assessments because her conviction and sentence are not yet final. (See People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.)
/s/_________
Robie, J.