Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Warren J. Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN391856) APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Reversed in part; remanded for further proceedings. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jeffrey Papp appeals from a judgment entered after he pled guilty to one count of inflicting corporal injury resulting in a traumatic condition on his spouse. The trial court sentenced Papp to 365 days in local custody and placed him on a three-year term of probation, and imposed a number of probation conditions. In addition, the court imposed various statutory fees and fines.
On appeal, Papp challenges the imposition of a probation condition that requires him to submit his computers and recordable media to search at any time when requested by law enforcement officials (the electronics search condition), on the ground that the condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad, both facially and as applied to him.
Papp also separately contends that, pursuant to the rule announced in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court's imposition of various fines and fees without consideration of Papp's ability to pay those fines and fees amounted to a due process violation, such that he is entitled to have those fines and fees vacated and to have the trial court conduct an ability-to-pay hearing on remand.
With respect to Papp's challenge to the imposition of an electronics search condition, we conclude that the electronics search condition must be stricken under the recent holding of our Supreme Court in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) because the condition is unreasonable under the analysis set forth under Lent. However, we remand the matter so that the trial court may consider whether to impose a narrower electronics search condition that would be proportional to the state's interest, such that the condition would be reasonable under Lent and consistent with Ricardo P.
With respect to Papp's due process challenge to the imposition of various fines and fees, we conclude that due process does not entitle Papp to remand for an ability-to-pay hearing prior to the imposition of these monetary obligations. We adopt the conclusion of a recent court of appeal decision that rejects the Dueñas court's due process analysis. (See People v. Hicks (2019) 40 Cal.App.5th 320, 327-330, review granted Nov. 26, 2019, S258946 (Hicks).) We therefore reject Papp's Dueñas-based challenge to the fines and fees that the trial court imposed in this case.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, Papp pled guilty to inflicting corporal injury resulting in a traumatic condition upon his wife (Pen. Code, § 273.5, subd. (a)). As part of his guilty plea, Papp admitted that he "unlawfully inflicted corporal injury, resulting in a traumatic condition, upon [his] spouse."
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Papp received a stipulated sentence of 365 days in local custody and three years of formal probation.
Among the terms and conditions of probation the court imposed is the condition that Papp "submit [his] person, vehicle, residence, property, personal effects, computers, and recordable media __________ to search at any time with or without a warrant, and with or without reasonable cause, when required by a P.O. or law enforcement officer."
The court also imposed a variety of fines, fees and assessments, including, among others, a $300 restitution fine under section 1202.4, subdivision (b), and a domestic violence fund fee of $500 under section 1203.097.
We describe the specific fines and fees imposed by the court that Papp challenges on appeal in section III.B, post.
Papp filed a timely notice of appeal.
A. The electronics search condition must be stricken under Ricardo P.
The order of probation provides in relevant part:
"THE DEFENDANT SHALL: . . . [¶] . . . [¶] Submit person, vehicle, residence, property, personal effects, computers, and recordable media __________ to search at any time with or without a warrant, and with or without reasonable cause when required by [a probation officer] or law enforcement officer."
Papp contends that the electronics search condition is unreasonable under Lent and that it is also unconstitutional because it is facially overbroad and also overbroad as applied to him. The People contend that the condition is neither unreasonable under Lent nor unconstitutional.
Upon granting probation, the court may impose any "reasonable conditions, as it may determine 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 generally and specifically for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).)
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted [section 1203.1] to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, quoting Lent, supra, 15 Cal.3d at p. 486.)
In Lent, the Supreme Court adopted a three-part test for determining the reasonableness of a probation condition: A condition of probation will be held invalid if 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 condition of probation." (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)
Recently, the Supreme Court issued its opinion in Ricardo P., supra, 7 Cal.5th 1113, in which the Court considered the validity of a similar electronics search condition under Lent. In Ricardo P., supra, 7 Cal.5th 1113, a juvenile was declared a ward of the court after he committed two felony burglaries. The trial court placed him on probation. The court imposed various probation conditions, including one that required the juvenile to " '[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.' " (Id. at pp. 1116-1117.) The record included the fact that the juvenile had told a probation officer that he committed the crime because he was not thinking and that he had also said that he had stopped smoking marijuana because it interfered with his ability to " 'think clearly.' " (Id. at p. 1117.) In imposing the electronics search condition, the trial court justified the condition on the ground that the court believed the juvenile had suggested that his use of marijuana was related to the offense and also because, in the court's view, minors often brag about marijuana usage on the Internet. The court thought that it was important to permit the probation officer to monitor Ricardo's drug usage through searches of the juvenile's electronic media and accounts. (Ibid.)
On appeal, the juvenile challenged the electronics search condition as invalid under Lent, supra, 15 Cal.3d 481 and as unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) The Court of Appeal upheld the condition under Lent, but found that it was unconstitutionally overbroad. (Ibid.)
The Supreme Court granted review on the limited question of "whether the electronics search condition imposed by the juvenile court satisfies Lent." (Ricardo P., supra, 7 Cal.5th at p. 1118.) The Supreme Court expressed skepticism regarding the trial court's inference that the juvenile had been using drugs during the burglaries, as well as the trial court's generalization that teenagers tend to brag about drug use online. (Id. at pp. 1119-1120.) However, even accepting the truth of these premises, the Court concluded "that the electronics search condition here satisfies Lent's third prong, such that the condition is invalid under Lent, because the burden it imposes on [the juvenile's] privacy is substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Id. at p. 1120.)
In reaching this determination, the Supreme Court rejected a broad interpretation of a statement in People v. Olguin (2008) 45 Cal.4th 375, at pages 380-381 (Olguin), that " '[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . "reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at pp. 1125-1127.) The probation condition at issue in Olguin required that the defendant notify the probation officer about any pets at his residence. (Id. at pp. 1124-1125.) The probationer had not challenged the "residence search condition itself," but merely the requirement that "he notify the probation officer" about pets. (Id. at p. 1125.)
The Supreme Court declined to interpret this admittedly "expansive language" in Olguin to mean that any and all probation conditions that are " 'reasonably related to enhancing the effective supervision of probationers are valid under Lent.' " (Ricardo P., supra, 7 Cal.5th at pp. 1125-1127.) Rather, as the Supreme Court explained in Ricardo P., the Olguin court's reasoning "reflected the specific circumstances presented by the pet notification condition at issue and emphasized the nonburdensome manner in which the condition helped to ensure the probation officer's safety and ability to properly supervise the probationer." (Id. at p. 1126, italics added.) The Supreme Court contrasted the minimally burdensome condition at issue in Olguin with the "far more burdensome and intrusive" electronics search condition at issue in Ricardo P., and noted that because of the significant burden and intrusiveness of the electronics search condition, imposition of such a condition "requires a correspondingly substantial and particularized justification." (Ibid., italics added.)
The Supreme Court clarified that in imposing probation conditions, courts must consider "whether, in light of 'the facts and circumstances in each case' [citation], the burdens imposed by the condition are proportional to achieving some legitimate end of probation." (Ricardo P., supra, 7 Cal.5th at p. 1127.) According to the Supreme Court, cases "upholding probation conditions under Lent's third prong have involved stronger connections between the burdens imposed by the challenged condition and a probationer's criminal conduct or personal history" than the connection between the electronics search condition and the juvenile's conduct and personal history in Ricardo P. (Id. at p. 1120.) Citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, and Riley v. California (2014) 573 U.S. 373, 393, 394, 395, the Supreme Court noted that the electronics search condition imposed on the juvenile significantly burdened privacy interests due to the type and quantity of information stored on electronic devices. (Ricardo P., supra, at p. 1123.) Nothing suggested that the juvenile had ever used an electronic device or social media in connection with illegal activity. (Id. at p. 1122.) Given this record, the Court concluded that the electronics search condition "imposes a very heavy burden on privacy with a very limited justification," and that such "disproportion" meant that the condition was "not ' "reasonably related to future criminality" ' and [was] therefore invalid under Lent." (Id. at p. 1124.)
The Ricardo P. court emphasized, however, that it was not "categorically invalidat[ing] electronics search conditions" and noted that "[i]n certain cases, the probationer's offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) However, in the absence of evidence that the defendant had used, or will use, electronic devices in connection with any illegal activity, the substantial burdens imposed by a sweeping electronics search condition were not justified. (Id. at p. 1122.)
Although Ricardo P. involved a juvenile, the Supreme Court made clear that its analysis also applies in the adult probation setting, such as in this case, because "the Lent test governs in juvenile and adult probation cases alike." (Ricardo P., supra, 7 Cal.5th at p. 1119.)
We therefore consider whether the electronics search condition imposed in this case may be upheld as reasonable under the three-part test announced in Lent. Both parties appear to concede that Papp did not use an electronic device in committing the underlying offense, and that the use of electronic devices is not itself criminal. Thus, here, as in Ricardo P., the question is whether imposition of the electronics search condition satisfies the third prong of the Lent test, i.e., whether the electronics search condition is reasonably related to future criminality.
In considering that question, we look at the burdens imposed by the condition and ask whether those burdens "are proportional to achieving some legitimate end of probation." (Ricardo P., supra, 7 Cal.5th at p. 1127.) As in Ricardo P., the electronics search condition at issue in this case imposes a significant burden on Papp's privacy. Although the electronics search condition in this case is not identical to the one at issue in Ricardo P., it is substantially similar. As described by the Supreme Court, the probation condition at issue in Ricardo P. was "a sweeping probation condition requiring Ricardo to submit all of his electronic devices and passwords to search at any time" (id. at p. 1122) and did not include any "temporal limitations, [thereby] permitting officers to access digital information that long predated the imposition of Ricardo's probation" (id. at p. 1127). The electronics search condition imposed here is similarly broad, in that it permits officers unfettered access to Papp's electronic devices, day or night, including access to his e-mails, text messages, search histories, and any photos and videos stored on those devices, with no temporal limitations as to what content may be monitored or searched. We see no material difference between the burden imposed by the condition in this case and the substantial burden caused by the electronics search condition in Ricardo P.
Given the substantial burden imposed by the electronics search condition, the condition must serve a proportional countervailing interest. The record does not demonstrate that such proportionality exists. The People argue that the electronics search condition "provides a necessary tool for effective supervision and is reasonably related to preventing future criminality based on appellant's history of domestic violence against his wife and others." The People point to "indicat[ions]" in the record of "a prior lack of compliance with his probation conditions" in support of the need to search Papp's electronic devices to ensure his compliance with the terms of probation. Papp argues that there is "[n]othing in [his] current offense of conviction, nor in his criminal history, [that] suggests he used electronic devices in conjunction with criminal activity."
The trial court mentioned Papp's "pretty extensive [criminal] record" in determining whether to impose the electronics search condition. The prosecutor commented that the current case involved domestic violence, and that one of the other conditions of probation is a no-contact order, prohibiting Papp from contacting his victim. The prosecutor posed the question, "How is Probation supposed to supervise him and make sure he's not having contact with her if he can't even look at his phone, which is how most people communicate these days?"
These general concerns raised by the trial court and the prosecutor offer no greater connection to Papp's current conduct or personal history than the juvenile court's generalization in Ricardo P. that teenagers tend to brag about drug use online. As Papp notes, the record of his current offense and his criminal history do not include any indication that Papp has ever utilized an electronic device in committing his offenses, indicating the absence of the necessary proportionality between the burden imposed by the broad probation condition and the legitimate interest in Papp's rehabilitation. (See Ricardo P., supra, 7 Cal.5th at p. 1122 ["Such proportionality is lacking" where "[a]s noted, nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct"].) "In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct." (Id. at p. 1123.) If such generalizations about the ability to ensure a defendant's compliance were sufficient to justify the substantial burdens of an electronics search condition such as the one imposed here, "it is hard to see what would be left of Lent's third prong." (Id. at p. 1124.) As the Supreme Court concluded in Ricardo P., we conclude that the burden imposed by the sweeping, unrestricted electronics search condition in this case is substantially disproportionate to the interests that it was intended to serve. We therefore strike it.
Because we strike the electronics search condition as unreasonable under Lent, we need not consider Papp's alternative challenge to the condition on constitutional overbreadth grounds. --------
This is not to say, however, that the state does not have a legitimate rehabilitative interest in Papp's compliance with the other terms of his probation, or that the state's interest in ensuring the protection of Papp's victim through a no-contact order is insubstantial or illegitimate. We therefore remand the case for the trial court to consider whether to impose a more narrow electronics search condition, the burden of which would be proportional to the state's interest in ensuring, in particular, Papp's compliance with the no-contact order. (See In re Alonzo M. (2019) 40 Cal.App.5th 156, 168 [remanding case to allow juvenile court to "impose an electronic[s] search condition that is more narrowly tailored to allowing search of any medium of communication reasonably likely to reveal whether Alonzo is associating with prohibited persons"].) B. No remand is necessary for an "ability-to-pay" hearing because the imposition of fines and fees in this case does not violate due process
Papp argues that the trial court's imposition of several fines and fees, without any consideration of his ability to pay those fines and fees, violated his due process rights under the rule announced in Dueñas, supra, 30 Cal.App.5th at page 1168. He argues that any waiver or forfeiture doctrines should not apply because it would have been futile to raise this contention in the trial court, since he was sentenced before the Dueñas opinion was issued. Papp argues in the alternative that this court should exercise its discretion to consider arguably forfeited issues where fundamental constitutional rights are implicated, and/or, that this court should consider the merits of the issue because his trial counsel's failure to raise the issue constituted ineffective assistance of counsel. Papp asks this court to vacate the fines and fees imposed and to remand for the trial court to conduct an ability-to-pay hearing.
1. Additional relevant background
In sentencing Papp, the trial court imposed a number of fees and fines, without objection and without a hearing on the question of Papp's ability to pay. Papp now contends that the court should not have imposed those fines and fees without first finding that he has the ability to pay them. Those fees and fines include: a court operations assessment fee of $40 (§ 1465.8); a criminal conviction assessment fee of $30 (Gov. Code, § 70373); a criminal justice administration fee of $154 (Gov. Code, § 29550.1); a domestic violence fund fee of $500 (§ 1203.097); and a restitution fine of $300 (§ 1202.4b), plus a 10% county collection fee of $30 (§ 1202.4(1)).
The People contend that Papp forfeited his contention that the trial court's imposition of these fines and fees, without considering Papp's ability to pay, violates his right to due process, by failing to raise the issue in the trial court. Given that Papp has also raised a claim of ineffective assistance of counsel for his attorney's failure to object to the imposition of these fines and fees, we consider his due process contention on its merits without considering the question of forfeiture (see People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its possible forfeiture, because defendant asserted ineffective assistance of counsel]).
In Dueñas, supra, 30 Cal.App.5th 1157, 1167, the court held that due process precludes a trial court from "impos[ing]" certain assessments and fines when sentencing a criminal defendant, in the absence of a determination that the defendant has the "present ability to pay" those assessments and fines. Specifically, Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) "court facilities and court operations assessments" (under § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under § 1202.4). (Dueñas, supra, at pp. 1164, 1167, 1172.)
More recently, however, another Court of Appeal opinion questioned whether "Dueñas's expansion of the boundaries of due process" to provide additional "protection not conferred by either [of Dueñas's] foundational pillars" is a "correct interpretation," and ultimately concluded that it is not. (Hicks, supra, 40 Cal.App.5th at p. 327.) In considering the issue, the Hicks court noted that Dueñas rests on "two strands of due process precedent," (id. at p. 326) the first of which "secures a due process-based right of access to the courts," (italics omitted) and the second of which "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Id. at p. 325.) Hicks explains that neither of these strands "dictate[s]" Dueñas's result. (Id. at p. 326.)
For this reason and because Dueñas "is inconsistent with the purposes and operation of probation," (Hicks, supra, 40 Cal.App.5th at p. 327) the court in Hicks concluded that "due process does not speak to [the] issue [of how best to balance the competing interests of indigent defendants and an operable court and victim restitution system] and . . . Dueñas was wrong to conclude otherwise." (Id. at p. 329.)
We find the Hicks court's analysis of the due process issue to be persuasive, and for this reason, we adopt the holding in Hicks that "[n]either strand [of due process precedent] bars the imposition of [the] assessments and the . . . restitution fine" even as to a defendant who is unable to pay. (Hicks, supra, 40 Cal.App.5th at p. 329.) Like the defendant in Hicks, Papp has not, to date, been denied access to the courts nor does he face incarceration as a result of the imposition of these financial obligations. No remand for an ability-to-pay hearing is therefore necessary.
The portion of the probation order requiring Papp to subject his "computers and recordable media" to search at any time is stricken. The matter is remanded to the trial court for the limited purpose of permitting the court to consider whether to impose a different, more narrow search condition with respect to searches of Papp's electronic devices that would be consistent with this opinion. In all other respects, the judgment is affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.