Filed 12/12/19 P. v. Townsel CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYDELL TOWNSEL,

Defendant and Appellant.

C088675

(Super. Ct. No. STKCRFE20170016284)

A jury found defendant Raydell Townsel guilty of second degree robbery. (Pen. Code, § 211.) The trial court placed him on probation with various conditions, including that he submit to warrantless searches of his electronic storage devices. The court also imposed fines and fees, including a $30 court facilities assessment pursuant to Government Code section 70373. On appeal, defendant argues: (1) there was insufficient evidence to justify his conviction; (2) the trial court erred by failing to instruct the jury on the lesser included offense of grand theft of personal property; (3) the court erred by reading the verdict in his absence; (4) the electronics search condition is unconstitutionally overbroad; and (5) his case should be remanded to the trial court to conduct an ability to pay hearing pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

We will strike the electronics search condition. In all other respects, the judgment is affirmed.

I. BACKGROUND

On June 29, 2017, Kristy rode her bicycle to meet a friend for dinner. Kristy unhooked her front wheel and leaned the bike against a pole. She sat on the curb about three or four feet away from the bike and used her phone while she waited for her friend.

Defendant walked toward Kristy, grabbed her bike, and walked away with it. Kristy followed him. She said, “What are you doing? That’s my bike. Give it back.” She asked defendant to give the bike back multiple times, and each time he replied, “That’s not your bike. That’s my son’s bike.” Kristy shouted for help, but no one helped her. Defendant walked quickly through oncoming traffic, and Kristy chased him.

Kristy grabbed defendant’s shirt and it tore. The front wheel of the bike fell off. At the same time, defendant turned around toward Kristy and lifted his fist as though he was going to hit her. Kristy backed off because she “didn’t want to get hit over a bicycle.” She testified she felt “[a] little nervous because I wasn’t trying to get hurt for a bike basically.” When asked if she was afraid, she said, “[a] little bit. I was a little bit afraid, nervous and upset.”

Kristy continued to follow defendant and ask for help. She took his photograph before running into a store for help. When a sheriff’s deputy arrived, Kristy was upset, crying, and speaking rapidly.

II. DISCUSSION

A. The Fear Element

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “It is settled that the crime of theft, whether divided by degree into grand theft or petty theft, is a lesser included offense of robbery. [Citation.] Robbery includes the added element of force or fear.” (People v. DePriest (2007) 42 Cal.4th 1, 50.) Additionally, “[a] theft or robbery remains in progress until the perpetrator has reached a place of temporary safety.” (People v. Flynn (2000) 77 Cal.App.4th 766, 772.) Thus, a theft becomes a robbery if the defendant, having peacefully acquired the property, uses force or fear to retain or escape with it. (People v. Gomez (2008) 43 Cal.4th 249, 256; People v. Winkler (1986) 178 Cal.App.3d 750, 756.) “Fear” under section 211 includes “[t]he fear of an unlawful injury to the person or property of the person robbed.” (§ 212.) “ ‘To establish a robbery was committed by means of fear, the prosecution “must present evidence ‘ . . . that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ ” ’ [Citation.] Thus, the fear element is subjective in nature. [Citation.] However, the victim need not explicitly testify that he or she was afraid of injury where there is evidence from which it can be inferred that the victim was in fact afraid of injury.” (People v. Montalvo (2019) 36 Cal.App.5th 597, 612.)

Defendant argues there was insufficient evidence of fear to justify his conviction. He also argues that because the element of fear was at issue, the trial court erred by failing to instruct the jury on the lesser included offense of grand theft of personal property. As to both points, we disagree.

“The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present.” (People v. DePriest, supra, 42 Cal.4th at p. 50.) “Nevertheless, ‘the existence of “any evidence, no matter how weak,” will not justify instructions on a lesser included offense . . . .’ [Citation.] Such instructions are required only where there is ‘substantial evidence’ from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.” (Ibid.)

Defendant seems to argue that fear was at issue because Kristy testified she was only “a little bit” afraid when he raised his fist at her, and, after she backed down, she continued to follow him and take his picture. Defendant’s argument is unpersuasive. “The extent of the victim’s fear ‘do[es] not need to be extreme for purposes of constituting robbery.’ ” (People v. Davison (1995) 32 Cal.App.4th 206, 216.) “ ‘The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for [her] property.’ ” (Id. at p. 212.) Here, Kristy testified that when defendant lifted his fist as though he would hit her, she was “a little bit afraid, nervous and upset” and that she backed off because she did not want to get hit over her bicycle. She explained, “If I didn’t think he was going to hit me, I would have continued what I was doing.” The fact that, after she backed off, she followed defendant and took his picture does not support any inference that the taking of the bicycle was not accomplished by force or fear or that she was not actually afraid.

The case of People v. Brew (1991) 2 Cal.App.4th 99 (Brew), cited by defendant, does not aid either of his arguments. In Brew, “[The defendant] was standing ‘real close’ to [the cashier], approximately two and one-half to three feet away. There was no counter or other barrier between them. [The cashier] took some money from [the defendant] and opened the cash register drawer. As she was placing the money into the drawer, [the defendant] ‘came inside’ the register area. Scared, [the cashier] moved away from the register. [The defendant] then lifted the register drawer and confiscated money, checks and credit card charge slips from underneath the drawer. In the process of doing this, [the defendant] said nothing to [the cashier]. Nor did [the defendant] touch [the cashier].” (Id. at pp. 102-103.) The Brew court concluded that these circumstances were sufficient to support a robbery conviction, but the jury should have been instructed on theft as a lesser included offense: “arguably, the evidence would support a finding that the offense was committed without [force or fear] being present. In his defense at trial, [the defendant] argued strongly against a finding of fear or force. [As to the cashier], defense counsel told the jury: ‘She communicated to you that she was scared. But is it the type of force or fear required that the People have to prove beyond a reasonable doubt, a [violation of section] 211, or is it the shock of somebody reaching and making an unexpected movement toward the cash register drawer?’ It is this question which was imperative for the jury to determine on count two. An instruction on grand theft by larceny would have insured that the jury confronted it head-on.” (Id. at p. 105.) Here, defendant made a gesture Kristy perceived as threatening and there is no reasonable basis to infer Kristy’s decision to back off was motivated by anything other than her fear that defendant would hit her. Her testimony was clear that her fear was based on her belief that defendant would hit her if she did not back off her pursuit of the bicycle. It is not reasonably probable the jury would have found the element of fear was lacking had it been instructed on theft as a lesser offense. Sufficiency of the evidence is easily established, and lesser included offense instructions were not required.

B. The Reading of the Verdict

1. Trial Court Proceedings

On September 21, 2018, the jury began deliberating and a lunch recess was declared at 12:02 p.m. The trial court told defendant on the record, “you don’t need to stay around the courthouse.”

At about 3:25 p.m., the jury informed the court it had reached a verdict.

At 4:08 p.m., the jury entered the courtroom and the court called defendant’s case despite his absence.

The court said, “[T]hanks. I’m sorry to keep you so long. I told Mr.—I’m not picking on him. I said be no more than 15 minutes away. Apparently he is, he is on a bus. I’m not going to keep you here because the bus is not close. I was hoping he would be here quickly.”

After the clerk read the verdict of guilty, the court polled the jurors regarding the verdict. Each juror affirmed the guilty verdict as his or her own. The court then discharged the jury.

At 4:15 p.m., after an off-the-record discussion was held, the court called defendant’s case again. Defendant was now present, and the court informed him that the jury had found him guilty of robbery.

2. Harmless Error

Section 1148 provides, in relevant part, “If charged with a felony the defendant must, before the verdict is received, appear in person, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that the verdict be received in his absence.” (Italics added.) Defendant argues the trial court erred by receiving the verdict in his absence. He relies on People v. Beauchamp (1874) 49 Cal. 41, which reversed a conviction based on such an error and predates both the addition of the italicized language to section 1148 and the adoption of article VI, section 13 of the California Constitution: “No judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” We need not address the question of alleged error because we reject defendant’s assertion that the receiving of the verdict in his absence was prejudicial. The jury had already reached a unanimous verdict before it learned defendant would be absent for the reading of the verdict. Defendant was represented by counsel and the jury was polled in his absence. When he returned, defendant was informed of the verdict. Any error was harmless. (People v. Miller (1867) 33 Cal. 99, 100-101.)

C. Electronics Search Condition

1. Trial Court Proceedings

Probation condition 10 requires defendant to submit to the search and seizure “of cell phones, computers, or other electronic storage devices and the data contained therein; and [to] provide access to these devices and the data contained therein including disclosing and providing any and all information necessary to conduct the search at any time of day or night, with or without a search warrant, with or without probable cause as directed by [the] probation officer or any peace officer.” Defendant objected that the condition was not “reasonably related to the facts of the underlying charge in this case.” The court responded that it would impose the condition “because people do a lot of things on their phones these days, and some of ‘em might not be legal.”

2. Overbreadth

Defendant argues the electronics search condition is unconstitutionally overbroad. We agree.

“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.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) 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.’ [Citations.] 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.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

On appeal, defendant does not challenge the condition as failing under People v. Lent (1975) 15 Cal.3d 481. Accordingly, we need not employ the analysis recently set forth by the majority in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), which addressed the question of whether an electronics search condition satisfied the third prong of the Lent test. In that case, our Supreme Court held that where there was no evidence the defendant had used or will use electronic devices in connection with any drugs or illegal activity, the substantial burdens imposed by an electronics search condition were not justified. (Id. at p. 1116.) “The probation condition is not reasonably related to future criminality and is therefore invalid under Lent.” (Ibid.) While Ricardo P. is not dispositive of the overbreadth issue, it is also not entirely irrelevant because both analyses “require a court to assess the relative burdens and benefits of probation conditions.” (Id. at p. 1128.)

With respect to the overbreadth analysis, we agree with defendant that the electronics search condition impinges on his constitutional right to privacy under the Fourth Amendment. (People v. Appleton (2016) 245 Cal.App.4th 717, 724; cf. Ricardo P., supra, 7 Cal.5th at p. 1123 [concluding electronics search condition “significantly burdens privacy interests”].) While the condition would assist in monitoring whether defendant is obeying all laws as required by the conditions of his mandatory supervision, we disagree with the People’s assertion that it is “tailored” to these purposes. The condition is, in fact, overbroad relative to these purposes. As the appellate court observed in Appleton, the electronics search condition “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, financial records, personal diaries, and intimate correspondence with family and friends.” (Appleton, supra, at p. 725.) Additionally, there is nothing in the record to indicate any electronic device played any role in either defendant’s current offense or any other offense he has committed. The electronics search condition is neither carefully tailored nor reasonably related to the state’s interest in reformation and rehabilitation. “Accordingly, we conclude the probation condition as worded is unconstitutionally overbroad and we will strike the condition.” (Id. at p. 727.) Here, the People have not suggested remand or that the electronics search condition could be narrowed. Therefore, we will simply strike the challenged probation condition.

D. Dueñas

As set forth above, the court imposed a $30 court facilities assessment under Government Code section 70373. On appeal, defendant argues his case should be remanded to the trial court to conduct an ability to pay hearing pursuant to Dueñas, supra, 30 Cal.App.5th 1157.

As relevant to this proceeding, the Dueñas court held it violates due process under the state and federal constitutions to impose the assessments required on criminal convictions by section 1465.8 and Government Code section 70373 without finding that the defendant has the present ability to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1168.)

The People argue defendant forfeited his Dueñas claim by failing to object on due process grounds or even express any concern about inability to pay in the trial court. We are not persuaded the analysis used in Dueñas is correct. Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373. (Kopp, supra, at pp. 95-96, rev. granted.)

In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant’s present ability to pay before imposing the assessment at issue in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.)

The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), which itself rested on the “constitutional guaranties of due process and equal protection” and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Id. at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas do not deny defendants access to the courts. (Hicks, supra, 40 Cal.App.5th at p. 326, rev. granted; People v. Aviles, supra, 39 Cal.App.5th at pp. 1068-1069; People v. Caceres, supra, 39 Cal.App.5th at p. 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” (Griffin, supra, at p. 19.) Another line of cases relied upon by Dueñas utilizes this “principle of ‘equal justice’ ” and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, at pp. 1166-1168.) The assessment at issue in this proceeding subjects an indigent defendant “only to a civil judgment that she [or he] cannot satisfy.” (Dueñas, supra, at p. 1167.) Thus, the authorities prohibiting incarceration for indigence alone are also inapplicable. (Hicks, supra, at p. 326, rev. granted; People v. Caceres, supra, at pp. 927-928.) We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to an assessment imposed under Government Code section 70373 based on the present ability to pay. (Hicks, supra, at p. 327, rev. granted; People v. Aviles, supra, at p. 1069; People v. Caceres, supra, at p. 928.) Defendant’s claim based on Dueñas is without merit.

III. DISPOSITION

The order granting probation is modified by striking the electronics search condition (condition No. 10). In all other respects, the judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

BUTZ, J.