Filed 1/14/20 P. v. Jackson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

LEWIS JACKSON,

Defendant and Appellant.

D074822

(Super. Ct. Nos. SCD275745,

SCD276101)

APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed.

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, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Lewis Jackson agreed to plead guilty to one count of possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378) and to admit that he committed the offense while on bail (Pen. Code, § 12022.1, subd. (b)) in case No. SCD276101 (SCD276101). Jackson also agreed to plead guilty to one count of possession for sale of a controlled substance (heroin) (Health & Saf. Code, § 11351) in case No. SCD275745 (SCD275745). Jackson stated in the plea agreements that he was willing to enter these pleas in exchange for a total sentence of five years, to be stayed pending successful completion of probation, and the dismissal of the remaining charges in those cases. Jackson also agreed to waive his right to appeal “any sentence stipulated herein.” The court held a plea hearing and accepted Jackson’s guilty pleas.

At sentencing, pursuant to the plea agreements, the trial court sentenced Jackson to five years as follows: four years in SCD276101 comprised of the mid-term of two years on the underlying offense of possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378) plus two years for the on-bail enhancement (§ 12022.1, subd. (b)), and one consecutive year in SCD295745 for possession for sale of a controlled substance (heroin) (Health & Saf. Code, § 11351). The court suspended execution of the sentence, and placed Jackson on probation to complete a residential treatment program. In its order granting probation, the court imposed an electronics search condition. The court also imposed various fines and fees including a $40 court operations fee, a $30 criminal conviction assessment fee, a $300 restitution fine, a $154 criminal justice administration fee, a $615 drug program fine, and a $205 lab analysis fine.

On appeal, Jackson contends that the electronics search condition is facially unconstitutional. Jackson also claims that the trial court’s imposition of the fines and fees enumerated in the previous paragraph, without a determination of his ability to pay violated his right to due process. In the alternative, Jackson claims that the drug program fine must be reduced to $150 per conviction and the lab analysis fine reduced to $50 per conviction.

The People argue that Jackson’s appeal should be dismissed because his claims on appeal fall within the scope of an appellate waiver contained in the plea agreement. The People further claim that Jackson forfeited his claims and that in any event, they are without merit, with one exception. The People state that the $615 drug program fine (Health & Saf. Code, § 11372.7) and the $205 lab fine (Health & Saf. Code, § 11372.5) should be reduced to $300 and $100 respectively, in light of the statutory maximums for each fine ($150 for Health & Saf. Code, § 11372.7 and $50 for Health & Saf. Code, § 11372.5) and the fact that Jackson incurred two convictions.

We reject the People’s request to dismiss Jackson’s appeal, pursuant to the reasoning of this court’s decision in People v. Patton (2019) 41 Cal.App.5th 934, 943 (Patton) [concluding that scope of the waiver of right to appeal “stipulated sentence” herein, in plea agreement “did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings”].) However, we conclude that the electronics search condition is facially constitutional and that Jackson forfeited his claim as to the fines and fees. We also decline to accept the People’s concession that the drug program fine and lab analysis fine should be reduced, for reasons that we explain in the following footnote. Accordingly, we affirm the judgment.

II.

FACTUAL BACKGROUND

On or about February 23, 2018, Jackson possessed heroin for sale. On or about March 21, 2018, Jackson possessed methamphetamine for sale while out of custody on bail in case number SCD275745.

III.

DISCUSSION

A. Jackson’s waiver of his right to appeal his stipulated sentence does not preclude his appellate challenges

The People contend that Jackson’s appeal must be dismissed in light of the appellate waiver contained in his plea agreement.

1. Governing law

In Patton, supra, this court explained that 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.” (Patton, supra, 41 Cal.App.5th at p. 940.) However, “[a] certificate is not required if the appeal is based on . . . ‘[g]rounds that arose after entry of the plea and do not affect the plea’s validity.’ ” (Ibid. [quoting Cal. Rules of Court, rule 8.304(b)(4) (Rule 8.304)].)

In Patton, the defendant entered into a plea agreement that stated that he agreed to waive his right to appeal ” ‘any sentence stipulated herein.’ ” (Patton, supra, 41 Cal.App.5th at p. 939.) On appeal, the defendant sought to challenge a probation condition that the trial court imposed at sentencing. (Id. at p. 937.) The Patton court rejected the People’s argument that the appeal should be dismissed for lack of a certificate of probable cause. (Ibid.) In reaching this conclusion, the Patton court noted that it was undisputed that the grounds for the defendant’s appeal arose ” ‘after entry of the plea,’ ” within the meaning of Rule 8.304. (Patton, supra, at p. 938.) In addition, the Patton court rejected the People’s argument that the defendant’s appeal affected the validity of the plea. (Ibid.) The Patton court reasoned:

“In waiving his right to appeal ‘any sentence stipulated herein,’ Patton’s plea agreement referred to the terms of the sentence that were included in the agreement itself. (Italics added.) We construe that language to apply to the specifics of the stipulated sentence specified in the plea agreement. By its terms, the scope of the waiver is limited; it did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings. ([People] v. Becerra [(2019)] 32 Cal.App.5th [178,] 188 [no certificate required ‘[i]f the defendant’s claim is not within the scope of an appellate waiver’].) Thus, Patton’s appeal in no way attacks the plea or affects its validity, and accordingly no certificate of probable cause was required. (Rule 8.304(b)(4).)” (Id. at pp. 942–943.)

2. Application

The appellate waivers in Jackson’s plea agreements are materially indistinguishable from the appellate waiver at issue in Patton. In the plea agreements, Jackson agreed to give up his right to appeal “any sentence stipulated herein.” As in Patton, Jackson’s waiver “did not encompass provisions . . . that were yet to be determined in future proceedings,” such as the imposition of probation conditions or the imposition of fines and fees. (Patton, supra, 41 Cal.App.5th at p. 943.) Jackson’s appeal thus does not affect the validity of the plea, and therefore, no certificate of probable cause was required. (Ibid.)

B. The electronics search condition is facially constitutional

Jackson contends that the electronics search condition is facially unconstitutional. The People contend that Jackson forfeited his challenge by failing to raise it in the trial court and that the condition is not facially unconstitutional in any event.

1. Factual and procedural background

The trial court’s order of probation states in relevant part:

“The defendant shall: [¶] . . . [¶] Submit 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 [a probation officer] or law enforcement officer.”

2. Governing law

In Patton, supra, 41 Cal.App.5th at pages 946–947, this court explained that challenges to probation conditions must ordinarily be brought in the trial court, unless the challenge constitutes a facial challenge, which may be brought for the first time on appeal:

“The People argue Patton forfeited his overbreadth challenge by failing to raise it before the trial court. An as-applied constitutional challenge is forfeited unless previously raised. [Citation.] ‘ “The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so they may be corrected.” ‘ [Citation.] However, the forfeiture rule does not extend to facial constitutional challenges presenting pure questions of law that can be resolved without referring to the particular sentencing record developed below.”

The Patton court rejected the defendant’s facial challenge to the electronics search condition on the merits, explaining first the nature of a facial challenge:

“A facial challenge ‘does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts.’ [Citation.] The claim is that a condition cannot have any valid application, without relying on any facts in the sentencing record. [Citation.]” (Patton, supra, 41 Cal.App.5th at p. 946.)

The Patton court then concluded that an electronics search condition that is identical to the condition imposed in this case was not unconstitutionally overbroad on its face. (Patton, supra, 41 Cal.App.5th at p. 947.)

3. Application

Jackson may raise his facial challenge to the probation condition notwithstanding that he did not object to the condition in the trial court. (Patton, supra, 41 Cal.App.5th at pp. 946–947.) However, as we concluded with an identical electronics search condition in Patton, we conclude that Jackson’s facial challenge to the electronics search condition is without merit. It cannot be said that the electronics search condition “cannot have any valid application.” (Id. at p. 946.) As explained in Patton, there are instances in which an electronics search condition may be constitutionally imposed, particularly where a probationer’s underlying offense or criminal history involved the illicit use of an electronic device. (See id. at pp. 946–947; cf. In re Ricardo P. (2019) 7 Cal.5th 1113, 1128–1129 [observing that “[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”].)

C. Jackson forfeited his challenge to the trial court’s imposition of various fines and fees

Jackson contends that the trial court erred in imposing a $40 court operations fee, a $30 criminal conviction assessment fee, a $154 criminal justice administration fee, a $300 restitution fine, a $205 lab analysis fine, and a $615 drug program fine without first determining his ability to pay. (Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); see id. at p. 1160 [“Because the only reason Dueñas cannot pay the [restitution] fine and [court facilities and court operations] fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional”].) Jackson acknowledges that “[n]o objection was raised to the imposition of the fines and fees” in the trial court.

Ordinarily, a defendant who fails to object to the imposition of a fee or fine in the trial court may not raise a claim pertaining to that charge on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation fines and attorney fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 596–598 [defendant forfeits appellate challenge to the sufficiency of evidence supporting a Gov. Code, § 29550.2, subd. (a) booking fee if objection not made in the trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to defendant’s claim that restitution fine amounted to an unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 198, 227 [claim that trial court erroneously failed to consider ability to pay a restitution fine forfeited by the failure to object].)

Jackson argues that he has not forfeited his claim of error because the change in the law occasioned by Dueñas was “not foreseeable,” and because any objection based on “inability to pay would have been overruled due to the complete lack of authority to support such an argument.”

With respect to Jackson’s claim of lack of foreseeability, we acknowledge the split of authority with respect to how unforeseen Dueñas may be said to have been, and whether the novelty of that decision may serve as the basis for excusing a defendant’s failure to object in any case. (Compare People v. Castellano (2019) 33 Cal.App.5th 485, 489 [Dueñas was “a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial” and declining to apply the forfeiture doctrine to defendant’s challenge to assessments and restitution fine] with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [concluding that defendant forfeited challenge to assessments and restitution fine and stating “we disagree . . . [that] Dueñas as ‘a dramatic and unforeseen change in the law’ “].)

However, in this case, irrespective of the novelty of the principles announced in Dueñas, it cannot be said that the potential legal viability of an objection to the trial court’s imposition of at least one of the fines on the basis of ability to pay could not have been foreseen. On the contrary, as Jackson acknowledges in his opening brief, the trial court was statutorily required to consider Jackson’s ability to pay the drug program fine (Health & Saf. Code, § 11372.7) prior to imposing it. (Id., subd. (b).) That statute provides:

“The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee.[ ] If the court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person’s financial ability. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee.”

Further, the trial court is not required to make an express finding of ability or inability to pay the drug program fine. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1516 [“No express finding as to a defendant’s ability or inability to pay is required”].) Thus, by failing to raise an objection on the basis of inability to pay the drug program fine in the trial court, Jackson forfeited any appellate challenge to the imposition of this fine based on his ability to pay. (See, e.g., People v. Trujillo (2015) 60 Cal.4th 850, 858.) Further, Jackson points to nothing in the record indicating that an objection to the imposition of the drug program fine based on inability to pay would “have been overruled.” We therefore reject Jackson’s contention that it would have been futile to raise an objection to the $615 drug program fine on the basis of inability to pay.

Further, since Jackson raised no objection to the imposition of a $615 drug program fine on the ground that he lacked an ability to pay such a fine, notwithstanding clearly established statutory authorization for raising such a challenge (Health & Saf. Code, § 11372.7, subd. (b)), we see no basis for excusing his failure to object to the imposition of fines and fees of lesser amounts. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez) [employing similar reasoning].)

Accordingly, we conclude that Jackson forfeited his challenge to the trial court’s imposition of a $40 court operations fee, a $30 criminal conviction assessment fee, a $154 criminal justice administration fee, a $300 restitution fine, a $205 lab analysis fine, and a $615 drug program fine without first determining his ability to pay.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.