Filed 12/27/19 P. v. Prado 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS A. PRADO,

Defendant and Appellant.

C082774

(Super. Ct. No. 16FE015073)

Defendant Jesus A. Prado pleaded no contest to being a felon in possession of a firearm. The trial court placed him on probation for five years with various terms and conditions, including an electronics search condition. The trial court also ordered defendant to pay various fines, fees and assessments, including a $300 restitution fine, a $40 court operations assessment, and a $30 criminal conviction assessment.

Defendant now contends (1) the electronics search condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and violates his constitutional rights, and (2) pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the restitution fine, court operations assessment and criminal conviction assessment must be stayed pending a determination of his ability to pay.

We will remand the matter with directions that the trial court strike the electronics search condition in keeping with the California Supreme Court’s holding in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), and to allow the trial court to consider defendant’s ability to pay the restitution fine and assessments. We will otherwise affirm the judgment.

BACKGROUND

After he was convicted of a felony, defendant possessed a .357-caliber revolver. He pleaded no contest to being a felon in possession of a firearm. (Pen. Code, § 29800, subd. (a)(1).) Consistent with the plea agreement, the trial court placed him on probation for five years with various terms and conditions.

At sentencing, defense counsel objected to probation condition No. 8, which states:

“Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent.

“Defendant, being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1564 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices.

“Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search.”

Defense counsel asserted the condition was invalid under Lent and also violated other laws. The prosecution filed points and authorities in support of the condition, along with a declaration from Sean E. Smith, a detective with the Sacramento County Sheriff’s Department. Among other things, the declaration said people engaged in weapons offenses often use electronic devices to buy or sell weapons, threaten others, and conspire to commit crimes. He said evidence of such offenses can be found on electronic devices, and Detective Smith personally observed firearms posted for sale or felons posing with firearms on various forms of social media. But there was no evidence that defendant used electronic devices in relation to his current offense or in any prior criminal activity.

Concluding that people like to take pictures of themselves holding guns, the trial court imposed the electronics search condition. The trial court also ordered defendant to pay various fines, fees and assessments, including a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373).

DISCUSSION

I

Defendant contends the electronics search condition is invalid under Lent, supra, 15 Cal.3d 481, and it also violates his constitutional rights.

“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. [Citation.]” (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) “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.]” (Lent, at p. 486.)

Ricardo P. involved a minor who was placed on probation after admitting two counts of burglary; one condition of probation was that he “submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices.” (Ricardo P., supra, 7 Cal.5th at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court “imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs.” (Ibid.)

The Supreme Court found the condition invalid under Lent. (Ricardo P., supra, 7 Cal.5th at p. 1116.) The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Id. at p. 1122.) The Supreme Court held that the electronics search condition was not reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)

Here, there is no evidence defendant used electronic devices in relation to his current offense or in any prior criminal activity. Detective Smith’s declaration did not include any particular facts about defendant or his crimes. The electronics search condition is invalid under Lent and Ricardo P. and must be stricken. Under the circumstances, we need not address defendant’s other challenges to the electronics search condition.

II

Defendant also contends in supplemental briefing that pursuant to Dueñas, supra, 30 Cal.App.5th 1157, the restitution fine, court operations assessment and criminal conviction assessment must be stayed pending a determination of his ability to pay.

The Attorney General counters that defendant forfeited this appellate contention because he failed to raise it in the trial court. However, as the court explained in People v. Castellano (2019) 33 Cal.App.5th 485, the statutes authorizing imposition of the challenged fine and assessments did not reference consideration of ability to pay, and in fact, section 1202.4, subdivision (c) precluded such consideration. (Castellano, at p. 489.) The court explained that when, as here, the defendant’s challenge is based on a newly announced constitutional principle, reviewing courts have declined to find forfeiture. (But see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [Dueñas claim forfeited where trial court increased restitution fine above the minimum].) We decline to find forfeiture here, where the trial court imposed the minimum restitution fine and Dueñas was decided after sentencing in this case. Because defendant’s conviction and sentence are not yet final, a limited remand under Dueñas, supra, 30 Cal.App.5th 1157 is appropriate to permit a hearing on defendant’s ability to pay. (See Castellano, at pp. 490-491.)

DISPOSITION

The matter is remanded. On remand, the trial court is directed to issue an amended probation order striking the electronics search condition, condition No. 8. Remand will also permit the trial court to consider defendant’s ability to pay the fines, fees and assessments. The judgment is otherwise affirmed.

/S/

MAURO, J.

I concur:

/S/

ROBIE, Acting P. J.

RENNER, J., Concurring and Dissenting.

I concur in the majority opinion except for part II of the Discussion, from which I respectfully dissent. I disagree with the conclusion that a limited remand is appropriate under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), to permit a hearing on defendant’s ability to pay.

I agree with those authorities that have concluded that due process does not require the trial court to conduct a hearing and conclude that the defendant has the present ability to pay before imposing the assessments and restitution fines at issue here and in Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Further, “the fundamental policy question presented in Dueñas is a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?” (People v. Hicks, supra, at p. 329.) This “is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature.” (Ibid.) The question has yet to be resolved. (See Governor’s veto message to Sen. on Assem. Bill No. 927 (Oct. 9, 2019) (2019-2020 Reg. Sess.).) We should not grant remand to allow a hearing on these issues while the fees in this case remain mandatory.

/S/

RENNER, J.