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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RICARDO A. PEREZ,

Defendant and Appellant.

D074650

(Super. Ct. No. SCS302396)

APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed as modified.

Cherise Bacalski, 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, Daniel B. Rogers, Lise S. Jacobson, Adrianne S. Denault and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant Ricardo A. Perez appeals from a judgment entered after he pled guilty to one count of unlawfully taking a vehicle. The trial court placed Perez on probation and imposed a variety of probation conditions. In addition, the court imposed various statutory fees and fines.

On appeal, Perez challenges the imposition of a probation condition that requires him to submit his electronic devices to search at any time when requested by law enforcement officials, on the ground that the condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad on its face. Perez separately contends that, pursuant to the rule announced in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court’s imposition of various fines and fees, without first considering Perez’s ability to pay those fines and fees, amounted to a due process violation, such that he is entitled to have those fines and fees vacated and to have the trial court conduct an ability-to-pay hearing on remand.

The People argue that Perez’s appeal should be dismissed because his claims fall within the scope of an appellate waiver contained in the plea agreement. The People further claim that Perez forfeited his contention that the electronics search condition is unconstitutionally overbroad by failing to raise that objection in the trial court, and that he forfeited his challenge to the imposition of the fines and fees, given that he never raised the ability-to-pay issue in the trial court. We reject the People’s request to dismiss Perez’s appeal, pursuant to the reasoning of this court’s decision in People v. Patton (2019) 41 Cal.App.5th 934 (Patton) [concluding that scope of the waiver of right to appeal ” ‘sentence stipulated herein,’ ” (italics omitted) in plea agreement “did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings” (italics omitted)].) We therefore consider the merits of Perez’s appellate challenges.

With respect to Perez’s challenge to the imposition of an electronics search condition, given our Supreme Court’s recent opinion in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), we conclude that the electronics search condition must be stricken because it satisfies all three prongs of the analysis set forth under Lent.

With respect to Perez’s due process challenge to the imposition of various fines and fees, we conclude that due process does not entitle Perez to remand for an ability-to-pay hearing prior to the imposition of these monetary obligations. We adopt the conclusion of a recent court of appeal decision that rejects the Dueñas court’s due process analysis. (See People v. Hicks (2019) 40 Cal.App.5th 320, 327–330 (Hicks), review granted Nov. 26, 2019, S258946.) We therefore reject Perez’s Dueñas-based challenge to the fines and fees that the court imposed in this case.

The portion of the probation order requiring Perez to subject his electronic devices to search at any time is stricken. The judgment as so modified is otherwise affirmed.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

On July 24, 2018, Perez attempted to enter the United States at the San Ysidro Port of Entry in a vehicle that had been reported stolen. California Highway Patrol officers responded to the scene and spoke with Perez, who was unable to provide a valid driver’s license, given that his license had been suspended.

Perez told the officers that he had come across an unoccupied vehicle idling outside a CVS Pharmacy in San Bernardino. After no one returned to the vehicle for fifteen minutes, Perez decided to take the vehicle to go visit his family in Los Angeles. Perez indicated that he did not know to whom the vehicle belonged.

Perez was arrested and transported to San Diego County Jail.

B. Procedural background

The People charged Perez with one count of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a); count 1); one count of buying, receiving, concealing, or selling a stolen vehicle (Pen. Code, § 496d; Veh. Code, § 415; count 2); one count of grand theft auto (§ 487, subd. (d)(1); count 3); and one count of driving while the privilege has been suspended (Veh. Code, § 14601.1, subd. (a); count 4). With respect to counts one and two, the information further alleged that Perez had previously been convicted of felony vehicle theft. (§ 666.5, subd. (a); Veh. Code, § 10851.)

On August 3, 2018, Perez pled guilty to count one, unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)); the remaining charges and enhancements were dismissed.

At sentencing, the trial court imposed and suspended a three-year prison sentence and placed Perez on three years of formal probation, with the condition that he serve 270 days in local custody, with 84 days credit for time served. As one of the conditions of probation, the court required that Perez “[s]ubmit [his] person, vehicle, residence, property, personal effects, computers, and recordable media cell phone to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer.” (Italics added.)

The trial court imposed a fine in the amount of $820, which the court deemed satisfied by time served, and other fines and fees, including a court operations assessment fee of $40; a criminal conviction assessment fee of $30; a criminal justice administration fee of $154; an emergency medical air transport fee of $4; and a restitution fine of $300, plus a 10% county collection fee of $30. The court also ordered Perez to pay $1,433 for preparation of his presentence investigation report, as well as a monthly fee of $176 for probation services, based upon a future financial evaluation of his ability to pay these costs. He was also ordered to pay $570 for his appointed counsel.

Perez filed a timely notice of appeal.

III.

DISCUSSION

A. Perez is not required to obtain a certificate of probable cause to raise his claims on appeal

The People contend that Perez’s appeal must be dismissed in light of the appellate waiver contained in his plea agreement. According to the People, as part of the plea agreement in this case, Perez waived his right to appeal and he was therefore required to obtain a certificate of probable cause in order to pursue this appeal.

1. Applicable 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 provided 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. (Id. at p. 938.) 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 explained:

“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 . . . . We construe that language to apply to the specifics of the stipulated sentence specified in his 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, some italics omitted.)

2. Analysis

The appellate waiver in Perez’s plea agreement is materially indistinguishable from the appellate waiver at issue in Patton. In the plea agreement, Perez agreed to give up his right to appeal “denial of [his] 1538.5 motion,” “issues related to strike priors,” and “any sentence stipulated herein.” Like the waiver at issue in Patton, Perez’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, italics omitted.) Perez’s appeal thus does not affect the validity of the plea, and Perez was therefore not required to obtain a certificate of probable cause in order to challenge the matters that he raises on appeal. (Ibid.)

B. The electronics search condition must be stricken

The order of probation provides in relevant part:

“The defendant shall: [¶] . . . [¶] Submit person, vehicle, residence, property, personal effects, computers, and recordable media cell phone 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.”

Perez contends that the electronics search condition is unreasonable under Lent and that it is facially unconstitutional. The People contend that the condition is neither unreasonable under Lent nor facially unconstitutional. After both parties had fully briefed the issue of the validity of this probation condition under the authority of Lent, supra, 15 Cal.3d 481, as well as on constitutional overbreadth grounds, the Supreme Court issued its opinion in Ricardo P., supra, 7 Cal.5th 1113, which considered the validity of a similar electronics search condition. After the Supreme Court filed its opinion in Ricardo P., this court requested supplemental briefing from the parties regarding the effect, if any, of the Ricardo P. opinion on the issues raised in this case. The parties submitted their supplemental briefs, and we now consider the merits of their arguments.

2. Relevant law

a. The reasonableness standard for probation conditions

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, subd. (j).)

“The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted [section 1203.1] to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, quoting Lent, supra, 15 Cal.3d at p. 486.)

In Lent, the Supreme Court adopted a three-part test for determining the reasonableness of a probation condition: A condition of probation will be held invalid 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.) “The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a condition of probation.” (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)

b. Ricardo P.

In Ricardo P., supra, 7 Cal.5th 1113, a juvenile was declared a ward of the court after he committed two felony burglaries. The trial court placed him on probation. The court imposed various probation conditions, including one that required the juvenile 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.) The record included the fact that the juvenile had told a probation officer that he committed the crime because he was not thinking and that he had also said that he had stopped smoking marijuana because it interfered with his ability to ” ‘think clearly.’ ” (Id. at p. 1117.) In imposing the electronics search condition, the trial court justified the condition on the ground that the court believed the juvenile had himself suggested that his use of marijuana was related to the offense, and also because, in the court’s view, minors often brag about marijuana usage on the Internet, it was important to permit the probation officer to monitor Ricardo’s drug usage through searches of the juvenile’s electronic media and accounts. (Ibid.)

On appeal, the juvenile challenged the electronics search condition as being invalid under Lent, supra, 15 Cal.3d 481 and as being unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) The Court of Appeal upheld the condition under Lent, but found that it was unconstitutionally overbroad. (Ibid.)

The Supreme Court granted review on the limited question of “whether the electronics search condition imposed by the juvenile court satisfies Lent.” (Ricardo P., supra, 7 Cal.5th at p. 1118.) The Supreme Court expressed skepticism regarding the trial court’s inference that the juvenile had been using drugs during the burglaries, as well as the trial court’s generalization that teenagers tend to brag about drug use online. (Id. at pp. 1119–1120.) However, even accepting the truth of these premises, the Court concluded “that the electronics search condition here satisfies Lent’s third prong, such that the condition is invalid under Lent, because the burden it imposes on [the juvenile’s] privacy is substantially disproportionate to the condition’s goal of monitoring and deterring drug use.” (Id. at p. 1120.)

The Supreme Court explained that cases “upholding probation conditions under Lent’s third prong have involved stronger connections between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history.” (Ricardo P., supra, 7 Cal.5th at p. 1120.) The third prong of Lent “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.) Citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, and Riley v. California (2014) 573 U.S. 373, 393, 394, 395, the Supreme Court noted that the electronics search condition imposed on the juvenile significantly burdens privacy interests due to the type and quantity of information stored on electronic devices. (Ricardo P., supra, 7 Cal.5th at p. 1123.) Nothing suggested that the juvenile had ever used an electronic device or social media in connection with illegal activity. (Id. at p. 1122.) The court ultimately determined that the electronics search condition “imposes a very heavy burden on privacy with a very limited justification,” and concluded that this “disproportion” meant that the condition was “not ‘ “reasonably related to future criminality” ‘ and [was] therefore invalid under Lent.” (Id. at p. 1124, some italics omitted.)

The Ricardo P. court emphasized that “[i]n certain cases, the probationer’s offense or personal history may provide the . . . 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, italics added.) However, in the absence of evidence that the defendant had used or will use electronic devices in connection with any illegal activity, the substantial burdens imposed by an electronics search condition are not justified. (Id. at p. 1122.)

3. Analysis

Although Ricardo P. involved a juvenile, the Supreme Court made clear that its analysis applies as well in the adult probation setting because “the Lent test governs in juvenile and adult probation cases alike.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)

In this case, as in Ricardo P., the main question is whether imposition of the electronics search condition satisfies the third prong of the Lent test, i.e., whether the electronics search condition is reasonably related to future criminality, given that both parties appear to concede that Perez did not use an electronic device in committing this offense and the use of electronic devices is not itself criminal. The electronics search condition in this case is not identical to the one at issue in Ricardo P., but it is substantially similar. The People argue that the probation condition at issue in Ricardo P. “allowed ‘probation officers to remotely access Ricardo’s e-mail, text and voicemail messages, photos, and online accounts, including social media like Facebook and Twitter, at any time,’ ” and also permitted officers to monitor his electronic communications in real time and lacked any temporal limitations, such that officers could access digital information ” ‘that long predated the imposition of Ricardo’s probation.’ ” The People contend that in contrast, in this case, Perez would be “subject to a warrantless search [only] when a probation officer . . . physically interacts with appellant,” and suggest that officers are unable to “remotely access or monitor any of appellant’s emails, text, voicemail messages, photographs or social medical accounts.” We reject the People’s suggestion that the electronics search condition imposed in this case “is not as encompassing as that in Ricardo P. which was ‘expansive in its scope.’ ” We are not persuaded that the minor differences between the electronics search condition in Ricardo P. and the one imposed in this case are materially distinguishable on this basis. However, even if we were to assume that it is true that under the condition imposed in this case, officers may not remotely access Perez’s electronic devices, the electronics search condition imposed on him still permits officers unfettered access to Perez’s devices, day or night, including access to his e-mails, text messages, search histories, and any photos and videos stored on those devices, with no temporal limitations as to what content may be monitored or searched. Indeed, we see no material difference between the potential burden imposed by the condition in this case and the substantial burden caused by the electronics search condition in Ricardo P.

Further, there is nothing in the record to support a conclusion that the justification for imposing the electronics search condition is proportional to the very heavy burden that it places on Perez’s privacy. The trial court relied on the fact that Perez had admitted to some past drug use as a basis for imposing the electronics search condition, commenting, “I see the connection to the need to monitor any cell phone use . . . in light of the drug use.” However, the Supreme Court rejected a similar basis for the electronics search condition imposed in Ricardo P. Indeed, the burden that an electronics search condition such as the one at issue in Ricardo P. imposes, “is substantially disproportionate to the condition’s goal of monitoring and deterring drug use.” (Ricardo P., supra, 7 Cal.5th at p. 1120.)

The People contend that, unlike the juvenile in Ricardo P., Perez has ” ‘quite an extensive criminal history for someone who is just 23 years old.’ ” The People note that Perez was on summary probation in three other criminal cases at the time he committed his current offense, and that a probation officer has described his performance on summary probation as ” ‘poor.’ ” However, there is no evidence in the record that Perez has ever utilized an electronic device, cell phone, or computer to commit or even plan his crimes. The fact that Perez is a recidivist, in the absence of any connection between his criminal activity and the use of an electronic device, is not sufficient to justify the imposition of a search condition that is as burdensome and intrusive as the electronics search condition imposed here. (See Ricardo P., supra, 7 Cal.5th at p. 1122 [“As noted, nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct”].)

In sum, Ricardo P. counsels that a broad search of a probationer’s electronic devices, without restriction, is not permissible in a case such as this one, where the record discloses no connection between the probationer’s use of electronics and his drug use or other criminality. (Ricardo P., supra, 7 Cal.5th at p. 1122.) The Supreme Court also declined to “decide whether there is sufficient basis in the present record to support the Court of Appeal’s suggestion that the juvenile court, on remand, may restrict the condition to search of ‘electronic information that is reasonably likely to reveal whether Ricardo is boasting about his drug use or activity, such as text and voicemail messages, photographs, e-mails, and social-media accounts’ ” and further declined to “address how the parameters of such a condition might be delineated.” (Id. at p. 1124.) Rather, the Supreme Court simply “affirm[ed] the Court of Appeal’s judgment striking the electronics search condition” and remanded the case to the Court of Appeal to permit it to remand “to the juvenile court for further proceedings consistent with this opinion.” (Id. at p. 1129.)

The People have not suggested any modification of the electronics search condition that would render the search of Perez’s electronic devices valid under Lent. We will therefore strike the challenged probation condition.

C. No remand is necessary for an “ability to pay” hearing because the imposition of fines and fees in this case does not violate due process

Perez argues that the trial court’s imposition of nearly $9,000 in fines and fees, without any consideration of his ability to pay those fines and fees, violated his due process rights under the rule announced in Dueñas, supra, 30 Cal.App.5th at page 1168. He argues that any waiver or forfeiture doctrines should not apply because it would have been futile to raise this contention in the trial court, since Perez was sentenced before Dueñas was issued. Perez argues in the alternative that this court should nevertheless exercise its discretion to consider arguably forfeited issues where due process rights are implicated, and/or, that this court should consider the merits of the issue because Perez’s trial counsel’s failure to raise the issue constituted ineffective assistance of counsel. Perez asks this court to vacate the fines and fees imposed and to remand for the trial court to conduct an ability to pay hearing.

1. Additional relevant background

In sentencing Perez, the trial court imposed various fees and fines. One of these is an $820 fine, which the court deemed satisfied by Perez’s time served. Other fines and fees that the trial court imposed include: a court operations assessment fee of $40; a criminal conviction assessment fee of $30; a criminal justice administration fee of $154; an emergency medical air transport fee of $4; and a restitution fine of $300, plus a 10% county collection fee of $30. The court also ordered Perez to pay $1,433 for preparation of his presentence investigation report and a monthly fee of $176 for probation services. In addition, Perez was also ordered to pay $570 for his appointed counsel.

 

2. Analysis

The People contend that Perez forfeited his contention that the trial court’s imposition of these fines and fees, without considering Perez’s ability to pay, violates his right to due process, by failing to raise the issue in the trial court. Given that Perez also raises an ineffective assistance of counsel argument, we consider his due process contention on its merits (see People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel]).

In Dueñas, supra, 30 Cal.App.5th 1157, 1168, the court held that due process precludes a trial court from “impos[ing]” certain assessments and fines when sentencing a criminal defendant in the absence of determination that the defendant has a “present ability to pay” those assessments and fines. Specifically, Dueñas held that “due process of law requires [a] trial court to . . . ascertain a defendant’s present ability to pay before it imposes” (1) “court facilities and court operations assessments” (under § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under § 1202.4). (Dueñas, supra, at pp. 1164, 1167, 1172.)

More recently, however, another Court of Appeal opinion questioned whether “Dueñas’s expansion of the boundaries of due process” to provide an additional “protection not conferred by either [of Dueñas’s] foundational pillars” is a “correct interpretation,” and ultimately concluded that it is not. (Hicks, supra, 40 Cal.App.5th at

 

p. 327.) In considering the issue, the Hicks court noted that Dueñas rests on “two strands of due process precedent,” (id. at p. 326) the first of which “secures a due process-based right of access to the courts,” (italics omitted) and the second of which “erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant’s indigence rather than contumaciousness.” (Id. at p. 325.) Hicks explains, neither of these strands “dictate[s]” Dueñas’s result (id. at p. 326). For this reason, and because Dueñas “is inconsistent with the purposes and operation of probation,” (id. at p. 327) the court in Hicks concluded that “due process does not speak to [the] issue [of how best to balance the competing interests of indigent defendants and an operable court and victim restitution system] and . . . Dueñas was wrong to conclude otherwise.” (Id. at p. 329.)

We find the Hicks court’s analysis of the due process issue to be persuasive, and adopt the holding in Hicks that “[n]either strand [of due process precedent] bars the imposition of [the] assessments and the . . . restitution fine” even as to a defendant who is unable to pay. (Hicks, supra, 40 Cal.App.5th at p. 329.) Like the defendant in Hicks, Perez has not, to date, been denied access to the courts or been incarcerated as a result of the imposition of these financial obligations. No remand for an ability-to-pay hearing is therefore necessary.

IV.

DISPOSITION

That portion of the probation order requiring Perez to submit his “computers, and recordable media cell phone” to search by a probation officer or law enforcement officer is stricken. In all other respects, the judgment is affirmed.

AARON, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.