Filed 12/31/19 P. v. Taele 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ARONA TAELE, JR.,

Defendant and Appellant.

D075009

(Super. Ct. No. SCN386627)

APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed as modified.

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

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson, Kristine Gutierrez and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

Arona Taele, Jr. appeals following a guilty plea to one count of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), for which he was placed on probation, made subject to various conditions of probation, including an electronics search condition, and ordered to pay various fines and fees. Taele contends (1) the electronic search condition must be stricken because it is unreasonable and unconstitutionally overbroad; and (2) his right to due process was violated because certain fines were imposed on him without a determination that he had an ability to pay them.

We conclude that based on our Supreme Court’s recent decision in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), Taele’s challenge to the electronics search condition has merit. With respect to Taele’s challenge to the imposition of certain fees and fines without a determination of his ability to pay, we conclude that any error was harmless. Accordingly, we strike the electronics search condition from the order granting formal probation, and in all other respect we affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of May 12, 2018, while intoxicated and arguing with his wife over his alleged infidelity, Taele injured his wife when he slammed her body and head into walls. Taele’s 12-year old daughter witnessed the assault, and his younger daughter was also present in the home.

Taele was charged with one count of inflicting corporal injury on a spouse (§ 273.5, subd. (a)); one count of assault with a deadly weapon (§ 245, subd. (a)(1)); and two counts of cruelty to a child (§ 273a, subd. (b)). After a preliminary hearing, Taele pled guilty to inflicting corporal injury on a spouse (§ 273.5, subd. (a)).

The trial court placed Taele on three years formal probation with various terms and conditions. Among the conditions appearing in the order granting formal probation was item 6.n, which required that Taele “[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media [and] cell phone to search at any time with or without a warrant, and with or without reasonable cause, when required by [probation officer] or law enforcement officer.” In the order granting formal probation, the trial court also ordered Taele to pay various fees and fines, including, as relevant here, (1) a $40 court operations assessment (§ 1465.8); (2) a $30 criminal conviction assessment fee (Gov. Code, § 70373); (3) a $300 restitution fine (§ 1202.4, subd. (b)); (4) a $250 domestic violence fund fee (§ 1203.097); and (5) a $154 criminal justice administration fee (Gov. Code, § 29550). All of the fines and fees were ordered to be paid at the rate of $50 per month. A criminal protective order entered at the time of the sentencing hearing required, among other things, that Taele have “no personal, electronic, telephonic or written contact” with his wife and minor daughters. Similarly, the conditions of probation included that Taele “not knowingly contact” his wife and children. The trial court specified that the prohibition on Taele’s contact with wife and daughters set forth in the conditions of probation and in the protective order could be modified by a subsequent determination of appropriate contact by child protective services, or by an order of the family, juvenile or probate court.

At the sentencing hearing, defense counsel objected to the electronics search condition, arguing that “[i]t’s unconstitutional without nexus to the conduct in this case.” The People, in contrast, maintained that the electronics search condition should be imposed in light of the protective order prohibiting Taele from having electronic contact with his wife and daughters. As the prosecutor argued, “I think in order for probation to be able to thoroughly help him successfully get through the probation period, and as they may need from time to time, it would be important for them to have access to collect electronic devices to ensure he is in compliance with all protective orders that exist in this court and in family court.” When the trial court inquired of the probation officer at the hearing, she generally agreed that access to Taele’s electronic devices would deter Taele’s future criminality and assist in Taele’s supervision.

Following the order granting formal probation, Taele filed a notice of appeal without obtaining a certificate of probable cause. In this appeal, Taele challenges the electronics search condition and argues that the trial court improperly imposed certain fees and fines without considering his ability to pay.

II.

DISCUSSION

A. The Electronics Search Condition Is Disproportionate to the Legitimate Interests Served by the Condition in Taele’s Case and is Accordingly Unreasonable

We first address Taele’s challenge to the trial court’s imposition of the electronics search condition. Taele contends that the electronics search condition was (1) unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent); and (2) unconstitutionally overbroad.

1. Legal Standards for Electronic Search Conditions Under Lent

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.) Under Lent, a condition of probation is unreasonable 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.) “[A]ll three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.)

After the briefing in this appeal was completed, our Supreme Court decided Ricardo P., supra, 7 Cal.5th 1113, which concluded that the electronics search condition at issue in that case was not “reasonably related to future criminality,” under Lent’s third prong. (Id. at p. 1116.) Specifically, in Ricardo P., the juvenile probationer, who had committed two burglaries (id. at p. 1115), was ordered by the juvenile court 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.) Even though there was no basis for inferring that electronic devices were connected to the juvenile’s commission of the burglaries, the juvenile court imposed the electronics search condition to enable probation officers to monitor whether the juvenile was communicating about drugs or with people associated with drugs. (Id. at p. 1119.) To support its reasoning, the juvenile court pointed to evidence that the juvenile had previously used marijuana, which the juvenile stated ” ‘did not allow him to think clearly.’ ” (Ibid.)

Explaining that “Lent’s requirement that a probation condition must be ‘ “reasonably related to future criminality” ‘ contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition” (Ricardo P., supra, 7 Cal.5th at p. 1122), our Supreme Court concluded that “[s]uch proportionality is lacking here” because, among other things, “nothing in the record suggests that [the juvenile] has ever used an electronic device or social media in connection with criminal conduct.” (Ibid.) Our Supreme Court explained that because an electronics search condition is “burdensome and intrusive” it “requires . . . substantial and particularized justification” (Ricardo P., at p. 1126), which was lacking.

In the course of explaining its holding, Ricardo P. observed that Lent would be ” ‘render[ed] . . . meaningless by broadening the third prong to allow any probation condition that enhances surveillance of the probationer,” (Ricardo P., supra, 7 Cal.5th at p. 1125) and thus declined to “categorically permit any probation conditions reasonably related to enhancing the effective supervision of a probationer.” (Id. at p. 1127.) Doing so “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.) Ricardo P. favorably cited a case holding that ” ‘[t]he fact that a search of [the probationer’s] cellular phone records might aid a probation officer in ascertaining . . . compliance with other conditions of supervision, is without more, an insufficient rationale to justify the impairment of [the probationer’s] constitutionally protected interest in privacy.’ ” (Id. at p. 1126, quoting People v. Bryant (2017) 10 Cal.App.5th 396, 404, judg. vacated and cause remanded, sub. opn. People v. Bryant (2019) 42 Cal.App. 5th 839, italics added.)

In summing up its holding, Ricardo P. clarified that it did not intend to “categorically invalidate electronics search conditions” and “[i]n certain cases, the probationer’s offense or personal history may provide the juvenile 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, as our Supreme Court explained, “[u]nder the rule we set forth today, a juvenile court imposing such a condition must consider whether, in light of ‘the facts and circumstances in each case’. . . , the burdens imposed by the condition are proportional to achieving some legitimate end of probation.” (Ricardo P., at p. 1127.)

2. The Imposition of the Electronics Search Condition Was Unreasonable in This Case

We asked the parties to provide supplemental briefing regarding the electronics search condition imposed on Taele in light of Ricardo P.

The People contend that the electronics search condition imposed on Taele is valid under Ricardo P. because it is “a reasonable and proportional means of deterring his future criminality, monitoring his compliance with the no-contact protective order, and promoting his successful rehabilitation.” Specifically, the People point out that the trial court ordered probation “with various terms and conditions, the most relevant of which were a no-contact order prohibiting (among other forms) electronic communication with the victim or the couple’s children except as permitted by the juvenile or probate court.” The People argue that “the condition allowing probation officers to monitor [Taele’s] electronic communications is crucial to the practical enforcement of a protective order designed to safeguard the victims of appellant’s assaultive conduct.” The People further contend that Taele’s “alarming pattern of spousal abuse and alcohol addiction underscores the need for close supervision in order to safeguard [his wife’s] wellbeing.”

Taele, in contrast, argues that the electronics search condition is not a proportionate means to deter future criminality because “[t]he record here contains no indication that [Taele] had used or will use electronic devices in connection with illegal activity.” Specifically addressing the People’s argument that the electronics search condition is necessary to enforce the protective order, Taele points out that “[t]here is nothing in the record indicating that [he] would use electronic devices to disobey the protective order.”

We conclude, based on Ricardo P., that Taele’s challenge to the electronics search condition has merit. As in Ricardo P., “nothing in the record suggests that [Taele] has ever used an electronic device or social media in connection with criminal conduct.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) More importantly, there is no indication in the record that an order allowing a probation officer to search Taele’s electronics would do anything to prevent Taele from engaging in future violent conduct against his wife or would make it less likely that he would use excessive alcohol and commit other similar crimes. Therefore, the considerable burdens imposed by the electronics search condition are not proportional to the goal of preventing future criminality in Taele’s case. (See Ricardo P., at p. 1127.) Further, although the People argue we should approve the electronics search condition on the ground that it will be helpful in allowing a probation officer to monitor whether Taele is complying with the no-electronic-contact provision in the protective order, that argument fails because Ricardo P. establishes that an electronics search condition is not warranted merely to “enhanc[e] the effective supervision of a probationer.” (Ricardo P., at p. 1127.) In sum, we conclude that the electronics search condition is not a proportionate means to achieving a legitimate end of probation in Taele’s case and is therefore not reasonable under Lent’s third prong. We will accordingly order that the electronics search condition be stricken from the order granting formal probation.

B. Any Error by the Trial Court in Imposing Fines and Fees Without Assessing Taele’s Ability to Pay Was Harmless Error

Next we consider Taele’s contention that this matter should be remanded for a hearing on Taele’s ability to pay various fines and fees imposed by the trial court. Specifically Taele contends that he has a due process right to have a hearing on his ability to pay the following fees and fines: (1) a $40 court operations assessment (§ 1465.8); (2) a $30 criminal conviction assessment fee (Gov. Code, § 70373); (3) a $300 restitution fine (§ 1202.4, subd. (b)); (4) a $250 domestic violence fund fee (§ 1203.097); and (5) a $154 criminal justice administration fee (Gov. Code, § 29550). The total amount of the fees and fines that Taele challenges is $774. The trial court ordered that the $774 be paid at a rate of $50 per month.

Taele’s due process argument is based on People v. Dueñas (2019) 30 Cal.App.5th 1157, and the case law subsequently following it. In Dueñas the indigent defendant objected to the trial court’s imposition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), a $150 restitution fine (§ 1202.4) and attorney fees ordered in a prior case, and she asked that the trial court hold a hearing on her ability to pay before imposing them. (Dueñas, at p. 1162.) The court agreed to hold a hearing on the defendant’s ability to pay the attorney fees, but not any of the fines and fees. (Ibid.) At the hearing, the court determined that the defendant lacked the ability to pay the previously-ordered attorney fees and waived them, but the court concluded that the $30 court facilities assessment and the $40 court operations assessment were both mandatory fees it was required to impose regardless of the defendant’s inability to pay. Further, with respect to the $150 restitution fine, the court found that the defendant had not shown the “compelling and extraordinary reasons” required by statute (§ 1202.4, subd. (c)) to justify waiving that fine. (Id. at p. 1163.)

On appeal, Dueñas held that the trial court should have considered the defendant’s ability to pay before imposing the fines and fees. “We conclude that due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373. We also hold 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.)

We note that our Supreme Court recently granted review of the issues addressed in Dueñas. (People v. Kopp (2019) 38 Cal.App.5th 47, 94, review granted Nov. 13, 2019, S257844).

Taele argues that, based on Dueñas, because the trial court imposed the fines and fees without determining that he had an ability to pay, he was denied his right to due process. As a remedy, Taele seeks a remand so that the trial court can consider his ability to pay. The People contend that Taele has forfeited his ability to challenge his ability to pay the fines and fees because he did not raise the issue in the trial court.

We need not express an opinion on whether Dueñas was correctly decided or address the forfeiture issue raised by the People. Assuming, without deciding, that the trial court committed error by not holding a hearing on Taele’s ability to pay and that Taele did not forfeit his appellate challenge, we conclude the error, if any, was harmless. We review federal constitutional errors under the harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Johnson (2019) 35 Cal.App.5th 134, 140 (Johnson) [applying Chapman standard in determining that Dueñas error was harmless]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031 [same].)

Here, the error, if any, was harmless because the record demonstrates that Taele would not have established an inability to pay the minimal fines and fees that the trial court ordered to be paid at a rate of $50 per month had the trial court considered the issue. Unlike the defendant in Dueñas, who was indigent, homeless, unable to work because of a chronic illness, and received public assistance (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161), the probation officer’s report in this case shows that Taele was gainfully employed and had no debt. Specifically, the probation officer reported that Taele was employed at a middle school as a campus supervisor and a substitute teacher, that he also works as an assistant coach at a middle school, and he performs freelance work giving private batting lessons and speed and agility training for football.

When a defendant’s ability to pay a particular fine or fee is to be considered by the trial court, the determination may be made “based on the person’s ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed.” (People v. Staley (1992) 10 Cal.App.4th 782, 783, italics deleted; see also People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [” ‘[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s present ability but may consider a defendant’s ability to pay in the future.’ “].) In deciding whether any error under Dueñas was harmless, courts have considered a defendant’s ability to earn and earning history. (Johnson, supra, 35 Cal.App.5th at p. 139 [any Dueñas error was harmless because, among other things, the defendant “testified that he worked off and on as a painter and a municipal cleaner. He owned and used a cell phone for texting, and quite clearly could afford the ongoing expense associated with that. And on the night of the offense for which he was convicted, he was able to afford the unplanned expense of a hotel room”].)

Based on the current record, because Taele has been gainfully employed in multiple jobs, he will be able to pay the $774 in fines and fees that the trial ordered to be paid at the rate of $50 per month. Thus, we conclude beyond a reasonable doubt that Taele will not obtain a more favorable result with respect to the fines and fees if we were to remand this matter for the trial court to consider Taele’s ability to pay. As a result, the error, if any, in the trial court’s failure to hold an ability-to-pay hearing under Dueñas was harmless.

 

DISPOSITION

The order granting formal probation is modified to strike the language from item 6.n which requires Taele to submit to a search of his “computers, and recordable media [and] cell phone.” In all other respects, the judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

O’ROURKE, J.