Filed 1/3/20 P. v. Hill CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM HARLAN HILL,

Defendant and Appellant.

C087391

(Super. Ct. No. 16CF02591)

A jury found defendant William Harlan Hill guilty of theft by false pretenses. (Pen. Code, § 532, subd. (a).) The trial court placed defendant on probation with various terms and conditions. Defendant challenges several of these probation conditions on appeal. We will strike conditions requiring defendant to refrain from using or possessing alcohol, refrain from residing in a living environment that has not been approved as a clean and sober living environment, cooperate in psychological or psychiatric testing or counseling, and pay a drug testing fee. We will also remand to the trial court to clarify the scope of a condition requiring defendant to refrain from participating as an owner, partner, or employee in “any related sales or service business.” We reject defendant’s other contentions and affirm the judgment.

I. BACKGROUND

Defendant was charged with one count of theft by false pretenses. The evidence at trial showed that defendant listed a 1989 Chevy Silverado truck for sale on eBay. The listing described the truck as “very solid inside and out,” with new tires and wheels, and a “near new” interior. The listing also indicated the truck had 89,697 miles on the odometer. The listing was accompanied by photographs purporting to show the condition of the truck, which were published to the jury. An Arizona couple bought the truck for $2,600.

When the buyers received the truck, they discovered the vehicle was very different from the description in the eBay listing and accompanying photographs. There were no keys, one of the doors was attached to the frame with an awl, the wheels and tires were different, the moon roof did not work, and the odometer read 449,602. There was also exposed wires in the interior, lumps in the carpet, and blue spray paint on the dashboard. The jury was shown photographs of the truck the buyers received, reflecting the differences between the truck described in the eBay listing and the one delivered to them.

Defendant testified that he has his own company, which deals with commercial vehicles, boats, and recreational vehicles. Defendant explained that he regularly sold vehicles on eBay and had purchased the truck on eBay himself. He testified that he made various improvements to the truck before listing it for sale. He indicated the truck was in good condition when the transport company picked it up. According to defendant, the truck ran well and did not look like the ramshackle vehicle in the buyers’ photographs. Defendant acknowledged, however, that he did not have copies of the photographs from the eBay listing, which would have shown how the truck looked before it was shipped. He also acknowledged that he had changed the wheels at the transport company’s request, as the wheels shown in the eBay advertisement were too wide for the transport trailer. He also acknowledged that he had previously been convicted of fraud related to vehicle sales.

The jury found defendant guilty as charged. The trial court placed defendant on probation for three years with various terms and conditions. As relevant here, the terms and conditions of probation required defendant to (1) refrain from using or possessing alcohol (special condition No. 5), (2) submit to drug and alcohol testing and pay a drug testing fee (special condition No. 7), (3) cooperate in psychological or psychiatric testing or counseling (general condition No. 9), (4) refrain from residing in a living environment that has not been approved as a clean and sober living environment (special condition No. 38), (5) refrain from participating as an owner, partner, or employee in any related sales or service business (special condition No. 49), and (6) refrain from conducting or facilitating the sale, auction, or trade of motor vehicles, either directly or through an intermediary (special condition No. 68). Defendant did not object to any of these conditions.

The trial court ordered defendant to pay $16,457 in direct victim restitution. (§ 1202.4, subd. (f).) The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a corresponding $300 probation revocation fine, which was suspended (§ 1202.44). In addition, the trial court imposed an $850 fine, consisting of the following: a $200 general fine (§ 672), a $40 court surcharge (§ 1465.7), a $100 state court construction penalty (Gov. Code, § 70372, subd. (a)), a $200 state penalty assessment (§ 1464), a $140 county penalty assessment (Gov. Code, § 76000), a $20 DNA identification fund fee (Gov. Code, § 76104.6), an $80 DNA identification fund fee (Gov. Code, § 76104.7), a $30 conviction assessment fee (Gov. Code, § 70373), and a $40 court security fee (§ 1465.8). The trial court also imposed a $25 criminal justice administration fee. (Gov. Code, § 29550, subd. (c).) The trial court ordered defendant to reimburse the probation department for the cost of the presentence report ($1,077) and pay a probation supervision fee of $164 per month, for 36 months. (§ 1203.1b.) Defendant did not object to any of these fees, fines, or assessments.

This appeal timely followed.

II. DISCUSSION

A. Terms and Conditions of Probation

Probation is not a right, but an act of leniency that allows a defendant to avoid imprisonment. (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).) When a defendant chooses probation over incarceration, the trial court has broad discretion in imposing conditions on the probation to further the dual goals of rehabilitating the defendant and protecting the public. (Id. at pp. 402-403.) If the defendant finds these conditions to be too onerous, he or she may forego probation and accept the alternative sentence. (Id. at p. 403.)

“We review conditions of probation for abuse of discretion” (People v. Olguin (2008) 45 Cal.4th 375, 379) and will “disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances,” the condition is arbitrary, capricious, and unreasonable (Moran, supra, 1 Cal.5th at p. 403). The trial court’s discretion in imposing probation “is not without limits,” however; “a condition of probation must serve a purpose specified in the statute,” and conditions regulating noncriminal conduct must be “ ‘reasonably related to the crime of which the defendant was convicted or to prevent future criminality.’ ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Therefore, a condition of probation is generally “invalid [only 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.’ ” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (Olguin, supra, at p. 379.)

“Judicial discretion to set conditions of probation is further circumscribed by constitutional considerations.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1356.) “A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the conditions to avoid being invalidated as constitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Constitutional challenges, such as a claim that a condition is overbroad, are reviewed de novo. (People v. Stapleton (2017) 9 Cal.App.5th 989, 993.)

Challenges to probation conditions ordinarily must be raised in the trial court or appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) That said, the forfeiture rule does not apply, and a defendant who did not object to a probation condition at sentencing may do so on appeal, if the appellate claim “amount[s] to a ‘facial challenge’ ” that challenges the condition on the ground its “phrasing or language . . . is unconstitutionally vague and overbroad” and the determination whether the condition is constitutionally defective “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.” (Sheena K., supra, 40 Cal.4th at p. 885; see id. at p. 887.) Thus, a challenge to a probation condition on the ground it is unconstitutionally overbroad or vague “that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law” (id. at p. 887, italics omitted), and such a challenge is reviewable on appeal even if it was not raised in the trial court (id. at p. 889).

1. Alcohol-Related Conditions (Nos. 5 and 38)

Defendant challenges the conditions requiring him to refrain from using or possessing alcohol (special condition no. 5) and refrain from residing in a living environment that has not been approved as a clean and sober living environment (special condition no. 38). He argues the conditions are not reasonably related to his crime or future criminality. The People respond that defendant forfeited the issue by failing to object in the trial court, but concede the alcohol-related conditions are not reasonably related to defendant’s crime or future criminality. We agree with the People that the issue has been forfeited. (Moran, supra, 1 Cal.5th at p. 404, fn. 7 [“failure to object to a probation condition in the trial court on standard state law or reasonableness grounds forfeits the claim for appeal”]; People v. Welch (1993) 5 Cal.4th 228, 237 [“failure to timely challenge a probation condition on [state law] grounds in the trial court waives the claim on appeal”].) Nevertheless, to forestall defendant’s ineffective assistance of counsel claim, we will exercise our discretion to consider the issue. (Sheena K., 40 Cal.4th at p. 887, fn. 7 [“an appellate court may review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to its discretion”].) Turning to the merits, we accept the People’s concession and will direct the trial court to strike the alcohol-related conditions.

2. Drug Testing Fee Condition (No. 7)

Next, defendant argues the trial court erred in requiring him to pay a drug testing fee pursuant to section 1203.1ab in condition No. 7. Defendant observes, correctly, that section 1203.1ab only authorizes imposition of a drug testing fee as a condition of probation upon conviction of a drug-related offense. (See People v. Brooks (2017) 15 Cal.App.5th 331, 336.) The current conviction, for a violation of section 532, is not a drug-related offense. Accordingly, defendant argues the imposition of the drug testing fee condition was unauthorized. The People concede the error. We accept the concession and shall order the drug testing fee stricken. (See People v. Rivera (2019) 7 Cal.5th 306, 349 [“An unauthorized sentence is reviewable on appeal regardless of whether it was objected to at trial”].)

3. Psychiatric or Psychological Testing or Counseling (No. 9)

Defendant argues the trial court erred in imposing condition No. 9, which requires him to cooperate in any psychiatric or psychological testing or counseling that may be suggested by the probation officer. He argues the condition amounts to an unconstitutional delegation of authority to the probation officer to determine whether any testing or counseling would be required. The People respond that defendant forfeited the issue by failing to object in the trial court, but agree the condition was improperly imposed, as nothing in the record suggests defendant suffers from mental health issues. We conclude defendant’s challenge to condition No. 9 raises a pure question of law and has not been forfeited. (Sheena K., supra, 40 Cal.4th at pp. 888-889 [defendant’s challenge to probation condition as unconstitutionally overbroad and vague not forfeited by failing to object in juvenile court].) We further conclude condition No. 9 improperly delegates discretion to the probation officer to determine whether psychiatric or psychological testing or counseling will be required. (See People v. Cervantes (1984) 154 Cal.App.3d 353, 355-359 [reversing probation condition ordering defendant to pay victim restitution in an amount to be determined by the probation department].) Accordingly, we will direct the trial court to strike the condition.

4. Related Sales or Service Condition (No. 49)

Defendant next challenges condition No. 49, which provides: “Do not, except with the written permission of the Probation Officer, participate as an owner, partner, or employee in any related sales or service business.” Defendant argues the condition is unconstitutionally vague as to what constitutes a “related sales or service business.” The People respond that defendant forfeited the issue by failing to object in the trial court, but concede the condition fails to clearly define the prohibited conduct. We understand defendant to have raised a facial challenge to the constitutional validity of condition No. 49, which is not forfeited by his failure to object in the trial court. (Sheena K., supra, 40 Cal.4th at pp. 888-889.)

Trial courts must fashion precise supervision conditions so the probationer knows what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A probation condition is unconstitutionally vague if it “ ‘ “ ‘either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” ’ ” (People v. Relkin (2016) 6 Cal.App.5th 1188, 1196-1197; Sheena K., supra, at p. 890.) We agree with the parties that condition No. 49 is unconstitutionally vague. Accordingly, we will remand with directions that the trial court clarify what conduct is regulated by the condition restricting defendant from participating in “any related sales or service business.”

5. Sale, Auction, or Trade of Motor Vehicles Condition (No. 68)

Finally, defendant challenges condition No. 68, which provides: “Do not through yourself or any third party, conduct or facilitate the sale, auction, or trade of motor vehicles.” Defendant argues condition No. 68 violates his constitutional right to employment. We conclude defendant’s challenge to condition No. 68 has been forfeited.

a. Additional Background

During the trial, defendant testified that he has been working for himself since 1994, through a company that “deal[s] with commercial vehicles, boats, and RV’s.” Later, he estimated that he had sold vehicles on eBay on 75 previous occasions. Prior to sentencing, the probation department circulated a report indicating that defendant has been employed by an entity called Precision Craft Boat Works since October 1989. The record does not contain any other information concerning defendant’s business.

The probation report recommended the imposition of the above-quoted condition, with a proposed exception, which would have provided: “Exception: Boats or watercraft in the course of the defendant’s legitimate employment.” At the sentencing hearing, the prosecutor urged the trial court to eliminate the exception. The prosecutor indicated the buyers had obtained a civil judgment against defendant, and attempted to enforce the judgment against Precision Craft Boat Works. However, the prosecutor said, the buyers received a sworn declaration that defendant was not an employee of Precision Craft Boat Works, and the company was going out of business. The prosecutor opined that defendant earned his livelihood selling vehicles, “whether it was boats or vehicles,” and that was “how the fraud [was] so freely perpetrated.”

The trial court agreed to eliminate the exception stating: “It doesn’t mean you can’t work on cars, you can’t be involved in the sale, auction or trade of motor vehicles, and you can’t do that through a third party either.” Defense counsel did not object to condition No. 68, did not dispute the prosecutor’s statements, and did not object to the elimination of the exception for boats and watercraft.

b. Analysis

Relying on People v. Burden (1988) 205 Cal.App.3d 1277 (Burden), defendant argues condition No. 68, without the exception for boats and watercraft, violates his constitutional right to employment. Burden illustrates why defendant’s challenge to condition No. 68 must be deemed forfeited. There, the defendant, who worked as a salesperson, pleaded guilty to writing bad checks and the trial court imposed a probation condition barring him from “ ‘working in a position of outside or commissioned sales.’ ” (Id. at p. 1279.) The appellate court struck the condition, explaining that a condition relating to employment “must be ‘necessary to serve the dual purpose of rehabilitation and public safety’ ” and the condition there was an “unnecessary infringement upon [the defendant’s] right to work.” (Id. at p. 1281.) The court acknowledged that a trial court could impose a probation condition “imping[ing] upon the defendant’s scope of employment” where “the defendant perpetrated the crime in the course of his business,” but found the defendant “was not acting in the capacity of a salesperson when he wrote the bad checks.” (Id. at p. 1280.)

Here, unlike Burden, the record does not reveal whether defendant committed the present offense in the course of his business or employment. We cannot discern, from the record before us, whether defendant sold the truck in his personal capacity or in his capacity as the owner or employee of a business having some connection to boats and watercraft. The record raises substantial questions about defendant’s line of work, offers scant information about the nature of defendant’s business, and suggests that Precision Craft Boat Works, the entity presumably most affected by the exception for boats and watercraft, may not have an employment relationship with defendant at all, and may not even be a going concern. Under the circumstances, defendant’s challenge to condition No. 68 cannot be said to raise a pure question of law, but rather, requires additional factual development in the trial court. To preserve that sort of argument, defendant was required to raise his challenge in the trial court so the court could consider defendant’s personal circumstances in the first instance, rather than ask this court to resolve the claim on an undeveloped record. (See Sheena K., supra, 40 Cal.4th at pp. 888-889.) We therefore conclude defendant’s challenge to condition No. 68 has been forfeited.

c. Ineffective Assistance of Counsel

Anticipating forfeiture, defendant argues his trial counsel rendered ineffective assistance of counsel in failing to object to condition No. 68. The People respond that any objection to condition No. 68 would have been futile on the merits. We conclude defense counsel may have reasonably elected to withhold objection.

“Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result.” (People v. Dennis (1998) 17 Cal.4th 468, 540.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) “If, as here, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate court must reject the claim of ineffective assistance unless there can be no satisfactory explanation for counsel’s conduct.” (People v. Kendrick (2014) 226 Cal.App.4th 769, 778.)

On the record before us, we conclude there was a satisfactory explanation for trial counsel’s conduct. According to the probation report, defendant was presumptively ineligible for probation under section 1203, subdivision (e)(4), unless the trial court found the case to be an “unusual” one in which the interests of justice would best be served by granting probation. The prosecutor requested defendant be sentenced to county prison. The trial court acknowledged having “mixed feelings” about the case, adding that, “The first reason that I might not grant probation is the reprehensible conduct that I saw at the trial in this matter.” The trial court repeatedly alluded to defendant’s past and reputation in the community, referring, evidently, to previous brushes with the judicial system. In this context, it was reasonable for defendant’s trial counsel to avoid arguments that might have suggested that defendant was not fully committed to obeying all of the conditions of probation, including condition No. 68, particularly inasmuch as defendant had apparently represented that Precision Craft Boat Works was no longer a going concern. As there is more than one reasonable explanation for counsel’s failure to object to condition No. 68, we reject defendant’s contention that the omission constituted ineffective assistance.

B. Fines, Fees, and Assessments

As noted, the trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), and other fees, fines, and assessments amounting to more than $850. The trial court also ordered defendant to reimburse the probation department for the cost of the presentence report ($1,077), and pay a probation supervision fee of $164 per month, for 36 months. (§ 1203.1b.) Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant requests that we reverse these fees, fines, and assessments and remand to the trial court for an ability to pay hearing. The People respond that defendant forfeited his Dueñas challenge by failing to object to any of the challenged fines, fees, or assessments in the trial court.

Appellate courts are divided on the question of forfeiture in these circumstances. (Compare People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 [no forfeiture] and People v. Castellano (2019) 33 Cal.App.5th 485, 489 [same], with People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [forfeiture] and People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [same].) We need not enter the fray, as we join several other courts in concluding that Dueñas was wrongly decided. (See People v. Hicks (2019) 40 Cal.App.5th 320, 325-326, review granted Nov. 26, 2019, S258946 (Hicks) [holding that, contrary to Dueñas, due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant’s incarceration]; see also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [following Hicks] and see People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [concluding “the due process analysis in Dueñas does not justify extending its holding beyond” the “extreme facts” presented in that case].)

We agree with the reasoning in Hicks and adopt it as our own. (See Hicks, supra, 40 Cal.App.5th at p. 328, rev. granted [noting that Dueñas is “inconsistent with the operation of probation, which typically lasts a number of years [citation] and thus gives probationers a significant period of time to repay their financial obligations—either due to their bona fide efforts or to other changes in their financial circumstances”].) Having done so, we reject defendant’s Dueñas challenge to the above-referenced fines, fees, and assessments.

C. Victim Restitution

Finally, defendant urges us to remand for a restitution hearing on the direct victim restitution award of $16,457 which, he says, was not supported by substantial evidence. The People respond that defendant forfeited this issue by failing to object at sentencing. We agree. (See People v. Brasure (2008) 42 Cal.4th 1037, 1074-1075 [defendant forfeited claim that victim restitution order was unwarranted where he failed to object at sentencing].)

Defendant had the right to contest the amount of victim restitution and to present evidence that the trial court’s calculation was erroneous. (People v. Brasure, supra, 42 Cal.4th at p. 1075; see also § 1202.4, subd. (f)(1).) If defendant believed the trial court erroneously calculated the amount of victim restitution, he should have brought the alleged errors to the court’s attention at the time of sentencing. (People v. McCullough (2013) 56 Cal.4th 589, 594.) Having failed to do so, defendant has forfeited the contention on appeal.

III. DISPOSITION

We strike conditions requiring defendant to refrain from using or possessing alcohol (special condition No. 5), refrain from residing in a living environment that has not been approved as a clean and sober living environment (special condition No. 38), cooperate in psychological or psychiatric testing or counseling (general condition No. 9), and pay a drug testing fee (special condition No. 7). We direct the trial court to clarify the scope of special condition No. 49, requiring defendant to refrain from participating as an owner, partner, or employee in “any related sales or service business.” In all other respects, the judgment is affirmed.

/S/

RENNER, J.

I concur:

/S/

HULL, Acting P. J.

Mauro, J., Concurring and Dissenting.

I fully concur in the majority opinion except for part II.B., pertaining to the imposed fines, fees and assessments, as to which I dissent.

In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court held it is improper to impose certain fines or assessments without determining defendant’s ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas’s legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would conclude that Dueñas presented a new approach to considering fines, fees and assessments, an approach that was not sufficiently foreseeable. (People v. Johnson (2019) 35 Cal.App.5th 134, 137-138.) Accordingly, I would remand the matter to give the trial court an opportunity to consider defendant’s ability to pay the fines, fees and assessments.

/S/

_________________________

MAURO, J.