Filed 12/12/19 P. v. Calupe CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH A. CALUPE,

Defendant and Appellant.

D074444

(Super. Ct. No. SCD276044)

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed.

Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General for the Plaintiff and Respondent.

 

Kenneth A. Calupe pleaded guilty to corporal injury on a spouse in violation of Penal Code section 273.5, subdivision (a). The court sentenced him to three years formal probation with conditions, and ordered him to serve 180 days in custody to be stayed pending his successful completion of probation and a domestic violence program. Calupe contends certain conditions of his probation, including gang-related conditions and a requirement that he submit to searches of his electronic devices, must be stricken as unreasonable under section 1203.1 and People v Lent (1975) 15 Cal.3d 481 (Lent). He also contends the electronics search condition is unconstitutionally overbroad. Calupe finally contends the trial court violated his right to due process by imposing certain fees and fines without determining that he had the ability to pay them.

The People maintain Calupe’s appeal of his probation conditions should be dismissed for failure to obtain a certificate of probable cause. We reject that argument. After completion of initial briefing in this matter, the California Supreme Court addressed the principles of Lent, supra, 15 Cal.3d 481 in In re Ricardo P. (2019) 7 Cal.5th 1113, 1115 (Ricardo P.).) We invited the parties to brief the impact, if any, of that decision. Having considered Ricardo P. and the additional briefing, we uphold the trial court’s imposition of the challenged conditions under Lent. We reject Calupe’s facial overbreadth challenge to the electronics search condition as well as his due process challenge to the trial court’s fines and fees order.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2018, while their children were at school, Calupe grabbed his wife and threw her to the ground, then held her down by the face. He also put his hand over her mouth while she tried to scream. Calupe had been accusing her of having an affair and was angry because she had turned off her phone. He was under the influence of methamphetamine at the time of the offense. Calupe’s wife obtained an emergency protective order as well as a move-out order for Calupe. In part, the protective order barred Calupe from having personal, electronic, telephonic, or written contact with his wife. Calupe’s wife later tried to get the restraining order removed, claiming Calupe was a “good father and husband and this incident happened because he ‘was using.’ ”

Calupe thereafter pleaded guilty to corporal injury on a spouse, admitting as the factual basis that he willfully inflicted corporal injury resulting in a traumatic condition to his spouse. At his change of plea hearing, the court advised Calupe that pending sentencing, he was still under a full no-contact order with the victim. The court continued: “I am also adding a Fourth [Amendment] waiver, which means you can be searched at any time, with or without a warrant, and with or without probable cause, and you cannot use any drugs, including marijuana, you can have no contact with the victim. That fourth waiver is going to include all electronic devices, including your cell phone. If you don’t give up the pass code to the police when they want to see it, it’s a violation of the terms and conditions of this plea and I can send you to prison, do you understand that?” Calupe responded, “Yes, ma’am.”

Calupe’s plea agreement reflects his agreement with the district attorney to “NOLT” (no opposition to local time) and that the trial court would dismiss the remaining charges and allegations (assault by means likely to produce great bodily injury under section 245, subdivision (a)(4), false imprisonment under sections 236 and 237, subdivision (a), and an allegation that Calupe served a prior prison term within the meaning of section 667.5, subdivision (b)) and sentence him to 180 days in custody stayed pending his successful completion of a domestic violence program and outpatient treatment. The plea contains Calupe’s acknowledgement that if the court did not sentence him to prison, it might grant probation with conditions it “deemed reasonable . . . .” On the plea form, Calupe initialed a clause entitled “Appeal Rights,” which states, “I give up my right to appeal the following: 1) denial of my 1538.5 motion, 2) issues related to strike priors . . . . , and 3) any sentence stipulated herein.”

Probation records show Calupe, who was 36 years old at the time of the offense, has both a juvenile and an adult criminal record. In 1997 he was put on probation for possessing a concealed firearm, then violated his probation a month later for possessing a knife. In 2000, he suffered a true finding that he committed theft after he deposited stolen checks in a bank then tried to withdraw the money. According to Calupe, he did so because an acquaintance gang member said he would harm him if he did not deposit the checks. As an adult in 2003, Calupe pleaded guilty to burglary for depositing a stolen check and was again placed on probation, which he violated several times over the next few years. That year he also pleaded guilty to misdemeanor possession of a controlled substance, forgery, and evading a police officer while recklessly driving, running at least six red lights at a high rate of speed including near an elementary school, making unsafe lane changes and driving onto oncoming traffic. Calupe ended up crashing head on with an uninvolved vehicle being driven by an 18-year-old girl. When taking Calupe into custody, officers found a baggie of methamphetamine in his pocket, as well as a sheet of paper with names, and social security, credit card and bank account numbers in his wallet. In 2014 Calupe pleaded guilty to being a felon in possession of a firearm—a loaded .45-caliber semi-automatic pistol—and was sentenced to state prison. He admitted he was a member of the Oceanside Mesa Locos criminal street gang. Three years later Calupe again pleaded guilty to both possession and being under the influence of a controlled substance, offenses that were committed about three months apart. In 2017, Calupe violated the terms of a temporary restraining order against his wife when he walked inside their residence armed with a baseball bat and yelled at her, causing her to fear for her life. Police stopped him that day with methamphetamine in his right sock.

Calupe reported first using methamphetamine at age 10, using it “off and on” up until age 19, when he began to use it more frequently. At the time of the offense, he had been using a gram of methamphetamine daily for a month. He also admitted he associated with a Filipino gang from 1998 to 2000, then became a member of the Mesa Loco gang in 2001, but assertedly stopped associating with that gang in 2014.

At his sentencing hearing, Calupe informed the court he had tried and completed outpatient drug treatment programs, but financial and marital problems triggered his ongoing methamphetamine use. The court acknowledged his “long-term problem with drugs,” which was part of the problem in his current domestic violence conviction. It issued another domestic violence protective order with a condition, among others, that Calupe have no “personal, electronic, telephonic, or written contact” with his wife. The court sentenced Calupe to three years formal probation and ordered him to serve 180 days in custody, which was stayed upon his successful completion of a domestic violence program. It imposed various terms and conditions of probation, including the following over Calupe’s counsel’s objection:
• Do not associate with any person who you know, or who a [probation officer] or other law enforcement officer informs you, is a Mesa Loco gang member. (Condition 12b.)

• Do not knowingly visit/frequent any school grounds unless you are a student registered at the school. (Condition 12c.)

• Do not knowingly display any gang signs or gestures. (Condition 12e.)

The court also imposed over defense counsel’s objection condition 6, subdivision (n), requiring Calupe to “[s]ubmit [his] person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [his probation officer] or law enforcement officer.” In part, the prosecutor had argued that such a condition was necessary “in light of the protective order” for the probation department to ensure Calupe was complying with that order.

Calupe appeals from his guilty plea. His notice of appeal states the appeal “is on the sentence or other matters occurring after the plea.” Calupe did not request a certificate of probable cause.

DISCUSSION

I. Certificate of Probable Cause Requirement

A. Legal Principles

Section 1237.5 generally prohibits appeals following pleas of guilty or no contest unless the defendant first obtains a certificate from the trial court attesting that there are reasonable grounds for the appeal. The rule is subject to an exception, however, for appeals based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4); see People v. French (2008) 43 Cal.4th 36, 43.) Thus, when a defendant seeks appellate review of “an integral element of a negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal” (People v. Panizzon (1996) 13 Cal.4th 68, 86), the defendant must obtain a certificate of probable cause.

” ‘[A] “negotiated plea agreement is a form of contract,” [and] it is interpreted according to general contract principles. [Citation.] Acceptance of the agreement binds the court and the parties to the agreement. [Citations.] ” ‘When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties . . . must abide by the terms of the agreement.’ ” ‘ ” (People v. Wright (2019) 31 Cal.App.5th 749, 754; see K.R. v. Superior Court (2017) 3 Cal.5th 295, 304.) “A plea bargain may include the waiver of the right to appeal. [Citation.] . . . ‘ “[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]” [Citation.] It ” ‘[i]s the intelligent relinquishment of a known right after knowledge of the facts.’ [Citation.]” [Citation.] The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.] The right of appeal should not be considered waived or abandoned except where the record clearly establishes it.’ ” (Wright, at p. 754.)

B. Contentions

Anticipating the People’s argument that his appeal should be dismissed for failure to obtain a certificate of probable cause (§ 1237.5), Calupe contends he did not waive his right to appeal unreasonable probation conditions like his gang-related and electronic search conditions, and thus was not required to obtain such a certificate so as to challenge those conditions on appeal. He maintains the appellate waiver in his plea agreement is very specific and narrow, limited only to the sentence stipulated to by the parties. Calupe argues that because the parties did not stipulate to the gang-related conditions as part of his sentence, his challenge falls outside the scope of his waiver of appeal rights, eliminating the need for a certificate of probable cause. As for his electronic search condition, Calupe likewise argues a certificate is not required. He points out that while the court imposed an electronic search condition “pending sentencing,” that condition was unilaterally imposed as part of his Cruz (People v. Cruz (1988) 44 Cal.3d 1247) waiver conditions, and was not part of his stipulated sentence.

The People respond that Calupe’s waiver of his right to appeal the “sentence stipulated herein”—formal probation—expressly included his right to appeal all of the probation terms and conditions. They acknowledge Calupe’s waiver is narrower than the broad general waivers involved in People v. Espinoza (2018) 22 Cal.App.5th 794, 797, 801 (Espinoza) [defendant “broadly waived her ‘right to appeal the judgment and any rulings of the court’ ” and agreed to “give up [her] right of appeal”] and People v. Becerra (2019) 32 Cal.App.5th 178, 189 [defendant waived ” ‘all rights regarding state and federal writs and appeals’ ” including but not limited to ” ‘the right to appeal [his] conviction, the judgment, and any other orders previously issued by this court’ “].) However, they maintain the distinction between broad and specific waivers revolves around whether a waiver encompasses claims of future error, which is not implicated in this case. They further argue that because Calupe was well aware he would be placed on formal probation, he knowingly and intelligently waived the right to appeal the probation conditions.

C. Analysis

As both parties acknowledge, the question of whether a defendant’s claim falls within the scope of an appellate waiver does not require a certificate of probable cause. (Becerra, supra, 32 Cal.App.5th at p. 188.) We cannot say that Calupe’s narrow appellate waiver has the same effect as the broad waivers in Espinoza and Becerra. (Accord, People v. Patton (2019) 41 Cal.App.5th 934, 942-943.)

Whether we assess the scope of Calupe’s appellate waiver or apply a contract analysis to the plea agreement (Becerra, supra, 32 Cal.App.5th at pp. 188-189; see People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Patton, supra, 41 Cal.App.5th at p. 948, conc. opn. Haller, J.]), we conclude Calupe’s challenge is outside the scope of his plea agreement. The plea agreement did not reference any specific terms of probation, thus, Calupe did not agree to either the gang-related or electronic search conditions specifically as part of his plea. By its terms, the scope of Calupe’s waiver did not encompass provisions such as particular probation conditions that were yet to be determined in future proceedings. (Patton, supra, 41 Cal.App.5th at pp. 942-943.) The court did not outline or impose those specific terms until the time of his sentencing hearing, after he entered his plea. Accordingly, Calupe’s challenges to those conditions do not attack his plea or affect its validity, and no certificate of probable cause was required.

We reach the same conclusion even though the trial court pending its sentencing hearing imposed an electronics search condition on Calupe as part of a Cruz waiver. The condition was not imposed as part of any stipulated sentence in connection with his plea, and falls outside the scope of Calupe’s appellate waiver. We proceed to the merits of Calupe’s appeal.

II. Challenges to Probation Conditions

A. Gang-Related Conditions

Calupe contends his gang-related conditions of probation are unreasonable under Lent, supra, 15 Cal.3d 481 because there is no relationship between the conditions and his spousal abuse crime, the conditions relate to conduct that is not in itself unlawful, and the conditions are not reasonably related to future criminality. Calupe points out that while he previously associated with gang members, he told a probation officer he was done with gang life and had stopped associating with gangs in 2014. Comparing his case to In re Edward B. (2017) 10 Cal.App.5th 1228, 1236, he asserts there is no reasonable factual nexus between his crime and the conditions, and thus no reasonable basis to impose them. Calupe does not otherwise separately analyze each challenged condition for reasonableness.

The People concede the gang-related conditions have no relationship to Calupe’s conviction for inflicting corporal injury on a spouse and prohibit conduct (associating with gang members, displaying gang signs, wearing gang clothing and possessing gang paraphernalia) that is not in and of itself illegal. They respond that given Calupe’s self-admitted gang membership and previous gang-related crimes, the conditions are reasonably related to preventing Calupe’s future criminality, and thus the court did not abuse its discretion by imposing them. They argue the matter is analogous to People v. Lopez (1998) 66 Cal.App.4th 615, in which the appellate court upheld under Lent a gang condition for a defendant, a self-admitted gang member, who pleaded guilty to a non-gang-related offense. (Lopez, at pp. 621-622.)

1. Standard of Review

We review Calupe’s probation conditions for abuse of discretion. (Ricardo P., supra, 7 Cal.5th at p. 1118.) Under that standard, we look ” ‘for an indication that the condition is “arbitrary or capricious” or otherwise exceeds the bounds of reason under the circumstances.’ ” (Ibid.)

2. Lent Principles

Under Lent, which involved an adult probationer as here, ” ‘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.’ [Citation.] . . . ‘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.] The Lent test ‘is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.’ ” (Ricardo P. supra, 7 Cal.5th at p. 1118.)

Lent’s third prong, the sole factor at issue here, requires an analysis of the “connections between the burdens imposed by the challenged [probation] condition and a probationer’s criminal conduct or personal history,” as well as the goal of deterring future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1120.) That factor “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.) It contemplates a degree of proportionality (id. at p. 1122); a condition will satisfy Lent’s third prong of invalidity if, in light of the facts and circumstances in the case, the burden it imposes on a probationer is “substantially disproportionate to the condition’s goal . . . .” (Id. at p. 1119; see also id. at pp. 1127-1128.) At the same time, conditions ” ‘aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime’ [citation] so long as they are ‘reasonably directed at curbing [the defendant’s] future criminality’ [citation]. For example, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense.” (Id. at p. 1122, citing People v. Lopez, supra, 66 Cal.App.4th at pp. 623-625.)

In Ricardo P., the California Supreme Court found such proportionality lacking where the trial court imposed a “sweeping” electronics search condition on a juvenile probationer where “nothing in the record suggest[ed he] ever used an electronic device or social media in connection with criminal conduct.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The sole justification for the condition was the trial court’s observation that the minor had previously used marijuana and belief that minors typically “brag[ged]” about drug use on the Internet. (Ibid.) On that record, the California Supreme Court held the condition imposed “a very heavy burden on privacy with a very limited justification,” and the disproportion compelled the court to invalidate it under Lent as “not ‘ “reasonably related to future criminality” ‘ . . . .” (Id. at p. 1124.) The court summarized other cases involving invalid conditions, including People v. Brandão (2012) 210 Cal.App.4th 568, in which the appellate court invalidated a no-gang-contact condition placed on a defendant who was convicted of possessing methamphetamine. (Ricardo P., at p. 1121, citing Brandão, at p. 570.) Nothing in the record indicated the defendant had any gang affiliations or other gang-related history and the underlying offense had nothing to

do with a gang, thus the court held the no-gang-contact probation condition was not

” ‘reasonably related to a risk that defendant will reoffend.’ ” (Ricardo P., at p. 1121, citing Brandão, at p. 574.) Ricardo P. approved the Brandão court’s treatment of the People’s argument that the condition would prevent the defendant from associating with gang members and avoid a ” ‘ “slide down the recidivist ladder.” ‘ ” (Ibid.) Brandão reasoned: ” ‘To be sure,’ . . . ‘making contact with members of criminal street gangs could be deleterious to defendant,’ but Lent does not ‘authoriz[e] conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant’s current or prior offenses or any factor suggesting a risk of future criminal conduct.’ ” (Ricardo P., at p. 1121, citing Brandão, at p. 577.)

3. Analysis

Concededly, there is nothing in this record showing Calupe’s present spousal abuse offense is related to gang membership or any gang activity. However, Calupe’s personal circumstances and criminal history support the trial court’s imposition of the gang-related conditions. Though Calupe reportedly ended his association with gangs in 2014, he admitted a lengthy period of past membership and affiliation with gangs (from 1998 to 2014) and had committed crimes at the request of a gang member. His circumstances are therefore more akin to those of the defendant in People v. Lopez, supra, 66 Cal.App.4th 615, who admitted membership in a criminal street gang and whose circumstances warranted imposition of a no-gang-contact probation condition. (Id. at p. 626.) The defendant in Lopez pleaded guilty to unlawful driving or taking a vehicle after he fled from an officer who saw him and his codefendant with a vehicle stopped in the middle of a roadway. (Id. at p. 631.) Though the defendant’s offense was his first adult felony, he was in his early 20’s, and had a lengthy history of juvenile offenses as well as misdemeanor adult crimes. (Id. at p. 626.) The appellate court upheld the no-contact gang condition, stating: “Even if the evidence was insufficient to show that the present crime was in some manner gang related, [defendant’s] age, gang affiliation, and consistent and increasing pattern of criminal behavior warranted a conclusion . . . that [his] disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation because it would insulate him from a source of temptation to continue to pursue a criminal lifestyle.” (Id. at p. 626.) The court held the two elements of the gang-condition promoted the goals of rehabilitation and public safety by forbidding conduct reasonably related to future criminality: “The restriction on contacts with gang members was reasonable because ‘[a]ssociation with gang members is the first step of involvement in gang activity.’ [Citation.] The prevention of future criminality was also served by this prohibition because it insured that Lopez would not be present at confrontational situations between rival gangs; hostility among different gangs is often an underlying cause of criminal activity. [Citation.] The restriction on the display of gang indicia was reasonable because it removed from Lopez the visible reminders of his past gang connection.” (Ibid.)

As discussed above, Ricardo P. cited Lopez with approval, acknowledging that a probation condition may be properly based on information from a probation report that raises concerns about future criminality unrelated to a prior offense. (Ricardo P., supra, 7 Cal.5th at p. 1122.) Calupe’s probation report and his criminal history raise such concerns in this case. It is not hypothetical or abstract to say Calupe’s prior affiliations with and membership in criminal street gangs have a bearing on Calupe’s future criminality. The trial court could reasonably conclude that it would promote his rehabilitation to eliminate the possible resort or exposure to those connections, and that the burdens imposed on Calupe by the challenged conditions (avoiding contact with known Mesa Loco gang members, avoiding knowingly displaying gang signs or gestures, and staying away from schools unless he was a registered student) were proportional to that interest. As in Lopez, it would not be arbitrary and capricious or a patent abuse of discretion for the trial court to conclude that even though Calupe had sought to distance himself from gang life and his present crime was not apparently gang-related, “disassociation from gang-connected activities is an essential element of any probationary effort at rehabilitation because it would insulate [Calupe] from a source of temptation to continue to pursue a criminal lifestyle.” (People v. Lopez, supra, 66 Cal.App.4th at p. 626.) We conclude the above-referenced challenged probation conditions satisfy the Lent reasonableness standard as applied in Ricardo P.

B. Electronic Search Condition

1. Lent Analysis

Though it is a closer call, we reach the same conclusion with regard to the electronics search probation condition, which Calupe challenges as both unreasonable under Lent and overbroad. According to Calupe, we must strike the condition because electronic devices played no part in his present offense, the condition relates to conduct that is not criminal, and the condition is not reasonably related to his future criminality. On the latter point, Calupe argues the condition is not necessary to monitor his compliance with the protective order in his case, which he asserts has since been modified to be a no-negative-contact order.

The People maintain that the electronics search condition was properly imposed because it “provides a necessary tool for effective supervision and is reasonably related to preventing future criminality, i.e., by ensuring that [Calupe] complied with the protective order prohibiting any contact with his wife and any physical contact with their children.” They ask us to follow prior decisions of this court and others upholding such conditions to find the search condition valid under Lent “because it provides a necessary tool to effectively supervise [Calupe’s] other probation conditions” and also because it is closely related to preventing future criminal behavior in view of Calupe’s criminal record, which is intertwined with drug use, as well as his noncompliance on probation and parole. The People assert that Calupe’s criminal behavior stems directly from his drug use, and his behavior implicates significant public safety concerns as well as the safety of his wife. They argue Calupe’s “inability to remain clean and sober on his own, and the fact that his drug use is triggered by unavoidable day-to-day problems like finances and marital issues, demonstrate that [he] is clearly in need of close supervision.” Thus, the People argue the trial court had a reasonable basis to conclude the most effective way to confirm Calupe remains law-abiding and compliant on probation is to permit examination of his electronic devices, rather than relying solely on his word, which may not be reliable.

We invited the parties to submit supplemental briefing on the impact, if any, of Ricardo P. on these issues. The People concede the electronics search condition is unrelated to Calupe’s current domestic violence conviction. They continue to maintain, however, that the electronics search condition is reasonably related to Calupe’s future criminality and its burden is proportional to the countervailing interests of furthering his rehabilitation, as well as public protection, primarily given Calupe’s criminal and violent history stemming from his drug use. The People argue this is so “given [Calupe’s] ongoing, untreated drug problem—which is the root of his criminal and violent behavior, including the domestic violence against his wife—[his] history of noncompliance on probation and failing to appear for court hearings, and his previous inability to abide by a temporary restraining order obtained by his wife.”

The challenged probation condition here, requiring Calupe to “submit . . . [his] computers[] and recordable media including electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer,” is not materially different from that in Ricardo P. The California Supreme Court found this type of condition “significantly burdens privacy interests,” even potentially greater than a traditional property or residence search. (Ricardo P., supra, 7 Cal.5th at p. 1122.) “The plain language of this electronics search condition would require [the juvenile] to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles.” (Id. at p. 1123.) And, the court observed that if the record in that case were sufficient to sustain the probation condition, “it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang.” (Id. at p. 1123.) The court acknowledged that its decision in People v. Olguin (2008) 45 Cal.4th 375 had some “expansive language,” but declined to read Olguin to require courts to find reasonableness ” ‘for every probation condition that may potentially assist a probation officer in supervising a probationer.’ ” (Ricardo P., at p. 1126.) It explained: “If we were to hold that any search condition facilitating supervision of probationers is ‘reasonably related to future criminality,’ we might be obligated to uphold under Lent a condition mandating that probationers wear 24-hour body cameras or permit a probation officer to accompany them at all times. Such conditions would enhance supervision of probationers and ensure their compliance with other terms of probation. But they would not be reasonable because the burden on the probationer would be disproportionate to the legitimate interest in effective supervision.” (Id. at p. 1125.) Such a broad reading of Olguin “would effectively eliminate the reasonableness requirement in Lent’s third prong, for almost any condition can be described as ‘enhancing the effective supervision of a probationer.’ ” (Id. at p. 1127.)

The record in this case of Calupe’s circumstances and criminal history is vastly different from that of the juvenile in Ricardo P. As the People point out, Calupe has an extensive juvenile and adult criminal history, including involvement and membership in criminal street gangs, that is exacerbated or stems in whole or part from long-time drug use. His drug use has not been helped in the past by outpatient treatment programs and is triggered by his personal circumstances. His present domestic violence crime resulted in him being ordered to not contact his wife via electronic means. Calupe’s significant methamphetamine abuse, lack of stable housing, lengthy criminal history, and repeated failures while on probation constitute substantial risk factors relevant to reoffending. We conclude the circumstances of this case present a “closer relationship between the probation condition on the one hand and [Calupe’s] criminal conduct and deterring future criminality on the other” (Ricardo P., supra, 7 Cal.5th at p. 1120), which justifies the electronics search condition and does not make it overly disproportionate to its burdens. In Ricardo P., the court observed that it had upheld the validity of a warrantless-property-search condition on a prior narcotics offender since such a condition was reasonably related to the probationer’s prior criminal conduct and was aimed at deterring or discovering subsequent criminal offenses; it was ” ‘ “related to [the probationer’s] reformation and rehabilitation in the light of the offense of which he was convicted.” ‘ ” (Id. at p. 1121, citing People v. Mason (1971) 5 Cal.3d 759, 764.)

We recognize there is no indication electronic devices directly played a role in Calupe’s domestic violence offense. But Ricardo P. explained that there need not be a nexus between the condition and the underlying offense; ” ‘conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime’ [citation] so long as they are ‘reasonably directed at curbing [the defendant’s] future criminality[.]’ ” (Ricardo P., supra, 7 Cal.5th at p. 1122.) And the court did not categorically invalidate electronic search conditions. (Id. at p. 1128.) The trial court in this case could have reasonably concluded that the electronics search condition would assist the probation officers in ensuring Calupe would not make efforts to contact his wife, and deter him from doing so. Because drug procurement is often facilitated via phone calls or texts, the court could also have reasonably found the condition would deter Calupe from obtaining the drugs that led to his present offense and other criminal and dangerous behavior such as his reckless driving offense. In sum, the condition does not impose a burden that is substantially disproportionate to the legitimate interests of the People in promoting Calupe’s rehabilitation and public safety.

2. Constitutional Challenge

We reject Calupe’s claim of facial overbreadth, which he bases on Riley v. California (2014) 573 U.S. 373 (Riley) and California appellate court opinions including People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), holding such conditions to be unconstitutionally overbroad. “[A] facial overbreadth challenge is difficult to sustain.” (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) Such a challenge to a probation condition such as the electronics search condition here “is an assertion that the [probation condition] is invalid in all respects and cannot have any valid application [citation], or a claim that the [probation condition] sweeps in a substantial amount of constitutionally protected conduct.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1109, italics omitted; In re Sheena K. (2007) 40 Cal.4th 875, 885.) We review such claims de novo. (People v. Guzman (2018) 23 Cal.App.5th 53, 64; Appleton, at p. 723.)

Calupe urges us to follow Appleton, supra, 245 Cal.App.4th 717. In Appleton, the defendant, who met his minor victim through a social media application for smartphones, pleaded no contest to false imprisonment by means of deceit. (Appleton, at p. 719.) Though the court found the state had an interest in preventing the defendant from “us[ing] social media to contact minors for unlawful purposes” (People v. Appleton, at

pp. 721, 727), the court held in part based on Riley, supra, 573 U.S. 373, that a general electronics device search condition was unconstitutionally overbroad “as worded . . . .” (Id. at pp. 724-727.) Given the limited justification for the condition, the Appleton court struck the condition and remanded the matter to the trial court to craft a narrower condition. (Id. at pp. 719, 727.)

Calupe argues as did the defendant in Appleton that electronic search conditions could potentially expose a large volume of documents or data having nothing to do with illegal activity, and thus such conditions “exceed the bounds of what is reasonably related to the state’s interest in the rehabilitation of appellant and the protection of the public based on appellant’s conviction.” Calupe also argues prior decisions involve defendants whose use of social media was instrumental in the crime, unlike Calupe’s offense. But particularized facts about Calupe and his offense are irrelevant in a facial constitutional challenge. (See Sheena K., supra, 40 Cal.4th at p. 885 [appellate claim that the language of a probation condition is unconstitutionally vague or facially overbroad “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts”]; see also People v. Kendrick (2014) 226 Cal.App.4th 769, 778 [challenge that invites a fact-driven inquiry based on specifics of defendant’s offense and personal circumstances amounts to an as-applied, not a pure facial constitutional challenge].)

Even if the warrantless search of a probationer’s electronic devices “significantly burdens privacy interests” (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123, citing Riley, supra, 573 U.S. at p. 393 and Cal. Const., art. 1, § 1), we nonetheless reject Calupe’s facial overbreadth claim. We cannot say a condition requiring a probationer to submit to a warrantless search of his cell phone is necessarily or always unconstitutional in the abstract. In appropriate cases—such as where a defendant uses electronic means to stalk another person, embezzle money or commit an offense related to usage of a computer—a broad electronics search condition would be warranted as a useful, reasonable and constitutional tool to deter or discover criminal activity.

In sum, we hold that monitoring of electronic devices is not unconstitutional as a matter of law, and accordingly reject Calupe’s claim that the challenged probation condition is facially unconstitutional.

III. Imposition of Fines and Assessments

At his sentencing hearing, the trial court ordered Calupe to pay a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code,

§ 70373), and a $300 restitution fine (§ 1202.4, subd. (b)). The trial court ordered the fines and restitution to be paid at a combined rate of $35 per month. Calupe’s counsel did not object to the assessments or fine, and he did not raise any issue concerning Calupe’s ability to pay them.

Calupe contends imposition of these charges without a determination of his ability to pay them violated his right to due process. He relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, involving an indigent, unemployed and homeless mother of two with cerebral palsy who lived on public aid. (Id. at pp. 1160-1161.) After she was convicted of a series of misdemeanor offenses, she was given the choice to pay certain fees and fines, which she could not afford, or go to jail. (Id. at p. 1161.) Dueñas held “the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, 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.” (Dueñas, at p. 1168.) Thus, the court was required to conduct a hearing to ascertain the defendant’s present ability to pay before it imposed court operations and court facilities (now referred to as criminal conviction) assessments under Penal Code section 1465.8 and Government Code section 70373. (Id. at p. 1164; see also id. at p. 1168.) The court further held regarding restitution fines that “although Penal Code section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Id. at p. 1164; see also People v. Belloso (2019) ___ Cal.App.5th ___ [2019 WL 6317269, *5] [following Dueñas].)
There is a growing body of authority disagreeing with Dueñas or declining to extend it beyond its unique facts. (See People v. Allen (2019) 41 Cal.App.5th 312, 326; People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted Nov. 26, 2019, S258946 [Second District, Division Two holding Dueñas wrongly decided]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 (Aviles) [Fifth District; same]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 [same] (conc. opn. of Benke, J.); People v. Caceres (2019) 39 Cal.App.5th 917, 927 [Second District, Division One “urg[ing] caution in following” Dueñas and holding “the due process analysis in Dueñas does not justify extending its holding beyond” its “extreme facts”]; Cf. People v. Kopp (2019) 38 Cal.App.5th 47, 94, [“Although we do not reject Dueñas outright, we urge caution in following that case and announcing a significant constitutional rule without regard to the extreme facts Dueñas presented”], review granted November 13, 2019, S257844.)

In Hicks, the Court of Appeal reasoned that the due process principles invoked by Dueñas—that (1) courts must waive costs or fees that would preclude access to the courts and (2) a defendant may not be incarcerated for failing to pay criminal penalties—did not support that court’s bar on imposing fees. (Hicks, 40 Cal.App.5th at pp. 325-326, rev. gr.) Hicks decided that Dueñas’s holding was in fact inconsistent with those due process principles, and also with the purposes and operation of probation, which in part requires defendants to make efforts to repay their debt to society and gives them a significant period of time to do so. (Id. at pp. 327-328.) Hicks followed the authorities disagreeing with Dueñas and declining to extend it beyond its facts. (Id. at p. 329.)

We do not need to further address Dueñas’s validity, because Calupe forfeited his arguments concerning his due process rights and inability to pay these fees and fines by failing to object to them on these grounds in the trial court. (People v. Fransden (2019) 33 Cal.App.5th 1126, 1153-1155 [forfeited]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same], but see People v. Castellano (2019) 33 Cal.App.5th 485, 489 [not forfeited]; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 [same].) Though Calupe concedes his counsel did not object, he maintains any such objection would have been futile given the “state of the law at the time of sentencing” in July 2018. He also argues we may reach the issue as a facial challenge to imposition of the restitution fine without an ability-to-pay determination.

We cannot agree. On the latter point, the premise of Calupe’s challenge is the factual question of his alleged inability to pay. (Accord, People v. Frandsen, supra, 33 Cal.App.5th at p. 1153.) Nor do we agree an objection would have been futile given the state of the law. The court in Dueñas also imposed a minimum restitution fine, and the defendant there made her challenge. (See Frandsen, at pp. 1154-1155 [Dueñas was foreseeable and “applied law that was old, not new” based on the “ancient” principle that a punitive award must be considered in light of the defendant’s financial condition]; People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033 [“even if Dueñas was unforeseeable . . . [, the defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object” at the time of sentencing].) We agree Dueñas presents a clarification of existing rather than new law, and based on “the traditional and prudential virtue of requiring parties to raise an issue in the trial court if they would like appellate review of that issue” (Frandsen, supra, at p. 1155), Calupe forfeited his right to appeal the fines and fees on grounds he is unable to pay them.

Even assuming arguendo some error by the court’s failure to determine Calupe’s ability to pay the fines and fees, we conclude such error would be harmless because the record in this case, unlike the record concerning the defendant in Dueñas, indicates Calupe has the ability to pay the $370 sum out of his wages. (Accord, People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [holding Dueñas error harmless where the defendant would be able to pay the fines and fees out of his prison wages, which were assumed to be $12 per month over his five-year term], rev. denied Oct. 23, 2019.) As of July 2018 when his probation report was written, Calupe was employed by a roofing company full time, Monday through Friday, ten hours a day, earning $13 an hour. He reported a total monthly income of $1200, including $190 a month in food stamps. Prior to that time, Calupe had been employed for two years until he started using drugs again. In short, Calupe is capable of working and will earn enough to pay the monthly $35 until his fines and fees are paid off.

DISPOSITION

The judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.