Filed 12/16/19 P. v. Ayala 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

LOUIE AYALA,

Defendant and Appellant.

D075074

(Super. Ct. No. SCD278567)

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

Justin Behravesh, 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 A. Swenson, Kristine A. Gutierrez, and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

Louie Ayala pleaded guilty to reckless driving while evading a peace officer (Veh. Code, § 2800.2) and driving a vehicle with a blood alcohol level of 0.15 or higher (id., §§ 23152, 23578). The trial court suspended imposition of his sentence for five years and granted formal probation. As a condition of his formal probation, Ayala was required 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 [the probation officer] or law enforcement officer.”

Ayala appeals. He contends (1) the condition requiring him to submit his computers, recordable media, and electronic devices to warrantless search is unreasonable and unconstitutionally overbroad and (2) the court erred by imposing a restitution fine and certain fees without considering Ayala’s ability to pay them. We conclude Ayala may properly raise his first contention, notwithstanding his failure to obtain a certificate of probable cause from the trial court. On the merits, our Supreme Court’s recent opinion in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) makes clear the electronics search condition is unreasonable on the current record. We therefore reverse the judgment and remand with directions to strike the electronics search condition and consider whether a more narrowly tailored or alternative condition would be reasonable. On remand, Ayala may also raise an objection to the restitution fine and fees based on his alleged inability to pay. We need not consider the merits of that contention here.

FACTUAL AND PROCEDURAL BACKGROUND

As part of his guilty plea, Ayala admitted committing three traffic violations while evading a peace officer. He also admitted he was driving under the influence of alcohol and had a blood alcohol level of 0.15. The parties stipulated that Ayala would receive probation and credit for time served. After one year of successful probation, his evading conviction would be reduced to a misdemeanor. Ayala acknowledged that “[a]s conditions of probation I may be given up to a year in jail custody, plus the fine, and any other conditions deemed reasonable by the Court.” Ayala agreed to waive his appellate rights, in the following terms: “I give up my right to appeal the following: 1) denial of my [Penal Code section] 1538.5 motion, 2) issues related to strike priors . . . , and 3) any sentence stipulated herein.”

A probation officer interviewed Ayala. According to her report, the officer reviewed “[t]he general conditions of Probation” with Ayala and “he indicated that he understood the conditions and was willing to comply.” The officer recommended various conditions of probation, including the electronics search condition described above.

At sentencing, Ayala objected to the electronics search condition. His counsel argued, “I don’t believe there’s a nexus [with the crime]. I understand that the Court indicated that the Court wanted probation to be able to monitor and make sure Mr. Ayala is not using alcohol, but I think probation has the adequate—the adequate resources by being able to do drug testing of Mr. Ayala.” The court disagreed. It noted that Ayala’s conduct had been very dangerous and “could have easily killed somebody.” It explained, “So until further court order, he’s not going to drink alcohol at all, and I want to make sure probation can monitor electronic devices to make sure he’s not drinking alcohol at all, including posting anything that indicates he’s recently partaken in alcohol.” The court therefore imposed the electronics search condition.

The court also imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $30 county collection fee (Pen. Code, § 1202.4, subd. (l)), an $80 court operations assessment (Pen. Code, § 1465.8), a $60 criminal conviction assessment (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.). The court also imposed and stayed a $300 probation revocation fine (Pen. Code, § 1202.44). Ayala did not object to these fines and fees, though his counsel did ask for a payment plan of $35 per month, which the court granted. The first payment was due six months from the date of the order granting probation.

DISCUSSION

I
Electronics Search Condition

A

Ayala contends the electronics search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. Before we reach the merits of this contention, however, we address the Attorney General’s threshold argument that Ayala’s contention is barred by his failure to obtain a certificate of probable cause in the trial court.

“The right to appeal from a final judgment of conviction based on a plea of guilty or no contest is subject to certain limitations, including first obtaining a certificate of probable cause from the trial court.” (People v. Arriaga (2014) 58 Cal.4th 950, 958, citing Pen. Code, §§ 1237, subd. (a), 1237.5.) “Notwithstanding the broad language of [the statute], it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).)

But not every issue arising from “proceedings held subsequent to the plea” falls within this exception: “It has long been established that issues going to the validity of a plea require compliance with [Penal Code] section 1237.5.” (Panizzon, supra, 13 Cal.4th at pp. 74, 76, italics added.) “In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (Id. at p. 76.)

The Attorney General relies on two recent opinions, People v. Becerra (2019) 32 Cal.App.5th 178 (Becerra) and People v. Espinoza (2018) 22 Cal.App.5th 794 (Espinoza), to argue that Ayala’s challenge to the electronics search condition necessarily challenges the validity of his plea. The Attorney General points out that Ayala’s plea agreement included a waiver of appellate rights. In the Attorney General’s view, because Ayala waived the right to challenge the electronics search condition, Ayala’s attempt to raise the issue on appeal necessarily challenges the validity of the appellate waiver and therefore the validity of the plea itself. (See Becerra, at p. 188 [“[I]f the defendant’s appellate claim falls within the scope of an appellate waiver that is part of a plea agreement, the defendant ‘must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea.’ “]; Espinoza, at p. 803 [“In summary, we hold that when a defendant waives the right to appeal as part of a plea agreement, and the waiver’s terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal.”].)

We assume for purposes of this opinion that Becerra and Espinoza were correctly decided. (Cf. People v. Mumm (2002) 98 Cal.App.4th 812, 815 [“A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error.”], italics added; People v. Sherrick (1993) 19 Cal.App.4th 657, 659; People v. Vargas (1993) 13 Cal.App.4th 1653, 1662-1663.) Even with that assumption, however, the Attorney General’s argument is not persuasive.

“The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea.” (People v. Buttram (2003) 30 Cal.4th 773, 785 (Buttram).) “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767.)

Becerra and Espinoza considered sweeping and comprehensive appellate waivers. In Becerra, the defendant’s plea agreement contained the following provision: “I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered.” (Becerra, supra, 32 Cal.App.5th at p. 183.) Similarly, in Espinoza, the defendant agreed to the following waiver: ” ‘Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court (e.g.: Penal Code Section 1538.5(m)). I give up my right of appeal.’ ” (Espinoza, supra, 22 Cal.App.5th at p. 798, bold omitted.)

Unlike the appellate waivers in Becerra and Espinoza, the waiver Ayala signed was targeted. It covered only search and seizure issues under Penal Code section 1538.5, issues related to strike priors, and “any sentence stipulated herein.” The sentence stipulated in Ayala’s plea agreement was probation, credit for time served, and the reduction of his evading count to a misdemeanor after one year of successful probation. The plea agreement did not contain any stipulation regarding electronics search conditions. The plain language of the plea agreement compels this conclusion, as does the parties’ subsequent conduct. Ayala objected to the electronics search condition at sentencing, and the trial court considered the merits of the objection. If the electronics search condition were part of the parties’ stipulated sentence, such an objection would not have been cognizable. Ayala’s challenge to the electronics search condition is therefore not encompassed by his appellate waiver. For that reason, his challenge to the electronics search condition does not constitute a challenge to the validity of the appellate waiver or Ayala’s plea itself. (See Becerra, supra, 32 Cal.App.5th at p. 188 [“If the defendant’s claim is not within the scope of an appellate waiver, the waiver does not preclude an appellate court from considering the defendant’s underlying claim.”].)

The Attorney General claims that the electronics search condition is part of Ayala’s stipulated sentence, and therefore his appellate waiver, because Ayala’s plea agreement cautioned him that his grant of probation may include “any . . . conditions deemed reasonable by the Court.” We disagree. These terms reflect the parties’ agreement that Ayala’s probation may be conditioned on something, but it does not reflect an agreement regarding what those conditions must be. The parties could have negotiated specific conditions, but they did not do so. It is illustrative to consider the situation where the trial court declined to impose an electronics search condition. Would the trial court in that situation have violated the parties’ agreement? We think not. Instead, by leaving the exact conditions unspecified, the plea agreement left the conditions of probation up to the discretion of the court. It is well-settled, in such a circumstance, that a defendant may challenge such discretionary decisions without a certificate of probable cause. (See, e.g., Buttram, supra, 30 Cal.4th at pp. 785-786 [“In such a circumstance, when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was ‘part of [the] plea bargain.’ “].)

The Attorney General also claims that Ayala’s probation interview, in which the probation officer went over “[t]he general conditions of Probation,” shows that Ayala stipulated to the electronics search condition. The Attorney General’s claim is unpersuasive. First, it is unclear what the “general conditions” referenced in the probation report were and whether they included the electronics search condition at issue here. Second, even if that condition were discussed, the probation interview occurred after the plea agreement, so it could not have informed Ayala’s understanding of that agreement. Third, we are skeptical that a probation officer’s comments during the interview could obligate the parties and the court to accept a specific probation condition as “stipulated” when the plea agreement plainly leaves the exact conditions of probation unspecified.

In sum, because the electronics search condition is not part of his stipulated sentence, Ayala’s challenge to that condition is not encompassed within his appellate waiver of a stipulated sentence. Ayala may therefore raise the challenge on appeal without a certificate of probable cause. We turn now to the merits of his challenge.

B

As noted, Ayala challenges the electronics search condition as unreasonable under Lent, supra, 15 Cal.3d 481, and unconstitutionally overbroad. Our Supreme Court recently considered the reasonableness of electronics search conditions in Ricardo P., supra, 7 Cal.5th 1113. Applying that decision to the record here, we conclude the broad electronics search condition imposed on Ayala is unreasonable. We therefore need not consider Ayala’s overbreadth argument.

Under Lent, “[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.’ ” (Lent, supra, 15 Cal.3d at p. 486.) “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.) “On appeal, we ‘ “review conditions of probation for abuse of discretion.” ‘ [Citation.] Specifically, we review a probation condition ‘for an indication that the condition is “arbitrary or capricious” or otherwise exceeds the bounds of reason under the circumstances.’ ” (Ibid.)

The parties agree the first two Lent prongs are satisfied by the electronics search condition here. We are therefore concerned only with the third prong: whether the condition is reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p. 486.)

Ricardo P. considered the third Lent prong in the context of an electronics search condition imposed on a juvenile probationer. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The juvenile admitted two felony counts of robbery. (Ibid.) “As a condition of his probation, the juvenile court required Ricardo to submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices. Although there was no indication Ricardo used an electronic device in connection with the burglaries, the court imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs.” (Ibid.) Ricardo P. concluded that this rationale was insufficient to justify the broad electronics search condition: “[T]he record here, which contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity, is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid under Lent.” (Id. at p. 1116.)

“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.) A broad electronics search condition “significantly burdens [a probationer’s] privacy interests” because of the comprehensive nature of the information stored by modern electronic devices such as cell phones. (Id. at p. 1123, citing Riley v. California (2014) 573 U.S. 373, 395.) It therefore requires a correspondingly strong justification for the search condition. But where, as in Ricardo P., the justification for the search condition is mere speculation that the probationer will use his electronic devices to document or discuss drug usage—on the ground that minors typically do so—the justification comes up short. (Ricardo P., at pp. 1122-1123.) As our Supreme Court explained, “This case involves a probation condition that imposes a very heavy burden on privacy with a very limited justification.” (Id. at p. 1124.) In other words, “the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” (Id. at p. 1119.) “This disproportion leads us to conclude, on this record, that the electronics search condition is not ‘ “reasonably related to future criminality” ‘ and is therefore invalid under Lent.” (Id. at p. 1124.)

Ricardo P. involved a juvenile, but its reasoning applies with equal force here. Indeed, we should be more exacting in our review because the court sentencing Ayala did not have the same latitude as a juvenile court in the same situation. ” ‘A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.’ ” (Ricardo P., supra, 7 Cal.5th at p. 1118.)

With the benefit of Ricardo P., which was not decided at the time of Ayala’s sentencing, we conclude that the electronics search condition imposed on Ayala fails the third Lent prong as well. The heavy burden on Ayala is very similar to Ricardo P., as is the speculative nature of the justification for the search condition. The trial court cited the need to monitor Ayala’s electronic devices to determine whether he discloses alcohol use, but as in Ricardo P., there is no reason to believe Ayala would use his electronic devices in that way. Moreover, the electronics search condition is not limited to alcohol use; it could be used to search Ayala’s electronic devices for information on any topic. The burden imposed on Ayala’s privacy is substantially disproportionate to the state interest in monitoring his electronic devices for alcohol use. The electronics search condition is therefore unreasonable under Lent, and the trial court abused its discretion by imposing it.

In briefing submitted before Ricardo P. was filed, the Attorney General relied on People v. Olguin (2008) 45 Cal.4th 375, 380-381, in which the Supreme Court stated, “A condition of probation that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality.’ ” Ricardo P. acknowledged that Olguin “contains some expansive language,” but it limited Olguin to its specific factual scenario, i.e., a condition requiring the probationer to disclose whether he had any pets to his probation officer. (Ricardo P., supra, 7 Cal.5th at p. 1126.) The Supreme Court explained, “We . . . decline to read Olguin to categorically permit any probation conditions reasonably related to enhancing the effective supervision of a probationer. ‘Not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable’ under Lent. [Citation.] Endorsing [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.’ ” (Ricardo P., at p. 1128.)

The Attorney General emphasizes the close connection between alcohol use and Ayala’s criminal conduct in this case. We agree that this connection is stronger than the (somewhat speculative) connection between drug use and criminal conduct in Ricardo P. But, for purposes of its analysis, Ricardo P. accepted the premise that the juvenile had used drugs when he committed his crimes. (Ricardo P., supra, 7 Cal.5th at p. 1120.) More fundamentally, Ricardo P. teaches that our review of an electronics search condition must focus on the justification for that condition, not the justification for monitoring the probationer in general. The justifications for the conditions here and in Ricardo P. are equally speculative, given the lack of evidence in both cases that electronic devices would be used to disclose alcohol or drug use. And, while the need to monitor Ayala for alcohol use may be greater than the need to monitor the juvenile in Ricardo P. for drug use, a limitless electronics search condition casts too wide a net in both cases to be reasonable. (Id. at p. 1127.)

While we are skeptical that any electronics search condition would be an appropriate condition of Ayala’s probation on the current record, we do not categorically reject the possibility. (See Ricardo P., supra, 7 Cal.5th at p. 1124.) We will therefore reverse the judgment and remand the matter to the trial court with instructions to strike the electronics search condition. (See People v. Appleton (2016) 245 Cal.App.4th 717, 728-729.) On remand, the court may consider whether to impose a more targeted or alternative condition consistent with this opinion and Ricardo P.

II
Fines and Fees

Ayala further contends the trial court erred by imposing the restitution fine and several fees without making a finding that he had the ability to pay them under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). As noted, the court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $30 county collection fee (Pen. Code, § 1202.4, subd. (l)), an $80 court operations assessment (Pen. Code, § 1465.8), a $60 criminal conviction assessment (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.). The court also imposed and stayed a $300 probation revocation fine (Pen. Code, § 1202.44).

The Dueñas court observed that “[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive.” (Dueñas, supra, 30 Cal.App.5th at p. 1167.) The court therefore held 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.” (Id. at p. 1164.) It also held 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.” (Ibid.)

The validity of Dueñas is unsettled, and some courts have disagreed with its legal analysis and conclusions. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 94, 96, review granted Nov. 13, 2019, S257844 (Kopp); People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038 (conc. opn. of Benke, J.); People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946.)

Given the procedural posture of this case—where the matter must be remanded to the trial court to address the electronics search condition discussed above—and the fact that our Supreme Court will resolve the split in authority as to whether Dueñas was correctly decided, we conclude Ayala may request an ability to pay hearing on remand.

We express no opinion on the merits of Ayala’s objection to the restitution fine and fees, other than to note that Ayala “bears the burden of proving an inability to pay” (Kopp, supra, 38 Cal.App.5th at p. 96; accord, People v. Santos (2019) 38 Cal.App.5th 923, 934; People v. Castellano (2019) 33 Cal.App.5th 485, 490), and “the trial court should not limit itself to considering only whether [Ayala has] the ability to pay at the time of the sentencing hearing.” (Kopp, at p. 96; see People v. Staley (1992) 10 Cal.App.4th 782, 783 [” ‘[A]bility to pay’ . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay 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. Jones (2019) 36 Cal.App.5th 1028, 1035 [future prison wages support ability to pay determination]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [same].)

DISPOSITION

The judgment is reversed with directions to strike the portion of Ayala’s probation condition requiring him to submit his “computers” and “recordable media including electronic devices” to warrantless search. The trial court may consider whether to impose a more targeted or alternative condition consistent with this opinion and Ricardo P. The court shall also consider any objection to the restitution fine and fees based on Ayala’s ability to pay.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.