THE PEOPLE, Plaintiff and Respondent, v. FERNANDO L. COTA, Defendant and Appellant.
D074935
Court of Appeal, Fourth Appellate District, Division One, State of California
February 26, 2020
CERTIFIED FOR PUBLICATION. (Super. Ct. No. SCD277673). APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge.
APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed in part, reversed in part and remanded.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Fernando L. Cota pled guilty to the felony offense of carrying a concealed dirk or dagger in exchange for three years of probation and the possibility that the charge might be reduced to a misdemeanor at the end of one year. The trial court imposed various probation conditions that Cota objected to in the trial court and challenges on appeal. Based on the Supreme Court‘s recent decision in In re Ricardo P. (2019) 7 Cal.5th 1113, 1122 (Ricardo P.), we conclude that the electronics search condition that the court imposed is unreasonable, but remand for further consideration of a potentially appropriate electronics search condition. We uphold the remaining challenged conditions. Cota also challenges the trial court‘s imposition of various fees and a restitution fine, arguing that due process requires a finding of ability to pay before such charges may be imposed. He requests remand to the trial court for a hearing to consider his ability to pay the fines and fees assessed at sentencing. We conclude that due process does not bar the imposition of the assessments and fine that Cota challenges and that remand on this issue is therefore not required. In all other respects the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Cota was seen swinging a machete attached to a long stick in a San Diego public park. His clothes were visibly soiled. Someone who observed his
Cota was charged with a felony for unlawfully carrying a concealed weapon (dirk or dagger). (
The trial court accepted the recommendation and sentenced Cota to three years of probation with several conditions. Cota objected to a condition compelling him to submit electronic devices for search at any time when required by a probation or law enforcement officer. He also objected to conditions that he attend anger management counseling and refrain from alcohol use if directed by his probation officer. The trial court imposed these conditions over Cota‘s objections.
DISCUSSION
Cota argues that we should strike the electronics search condition, the anger management condition, and the alcohol use condition as unreasonable. We agree that permitting warrantless searches of Cota‘s electronic devices was an abuse of discretion based on the Supreme Court‘s recent Ricardo P. decision. We uphold the remaining conditions as reasonable.
1. Electronics Search Condition
Cota challenges the electronics search condition as unreasonable because it is unrelated to future criminal conduct. We review probation conditions for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
Trial courts have wide latitude to impose conditions consistent with the twin aims of probation: rehabilitation of the defendant with minimal risk to the community. (
The electronics search condition satisfies the first two Lent criteria. There was no relationship between electronic devices and the crime Cota pleaded guilty to—possession of a concealed weapon, and using electronic devices is not inherently criminal. Since the condition meets the first two prongs, it can survive review for abuse of discretion only if it regulates conduct that is reasonably related to future criminality.
The California Supreme Court recently clarified that the reasonableness inquiry of Lent‘s third prong “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.)2 When significant privacy interests are implicated by a probation condition (such as sweeping electronics searches without a warrant), the burden imposed on a defendant is a heavy one. Such a condition is unreasonable unless it is “proportional to achieving some legitimate end of probation.” (Id. at p. 1127.) Reasonableness necessitates “more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.) In other words, to justify a burdensome condition, there must be a specific relationship—grounded in the facts of the case—between the condition and preventing future criminality.
Ricardo P. involved a juvenile who admitted having committed a felony burglary and subsequently challenged a probation condition allowing warrantless searches of his electronic devices and accounts. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The trial court justified the search condition as useful in monitoring Ricardo‘s compliance with the terms of his probation because it allowed officers to look for electronic communications about drugs. Nothing on the record showed that the juvenile had in fact used his phone to purchase drugs. The trial court‘s reasoning was based on a generalization that juveniles use their phones to buy drugs and brag about drug use online. (Id. at p. 1119.) The Supreme Court struck the condition under Lent, finding that the condition was not reasonably related to Ricardo‘s future criminality because it disproportionately burdened his privacy interest without specific and substantial justification. (Id. at p. 1126.)
The Supreme Court made it clear that “requiring a probationer to surrender electronic devices and passwords to search at any time is . . . burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Ricardo P., supra, 7 Cal.5th at p. 1126.) There is no substantial and particularized justification in the record in this case. The electronics search condition thus meets all three Lent criteria and is therefore unreasonable.5
Indeed, the People concede in supplemental briefing that the electronics search condition is overly burdensome and request that we remand to permit the trial court to craft a more narrowly tailored search condition. We do not foreclose the possibility that a narrower electronics search condition might be appropriate in this case based on facts that are not reflected in the current record. We strike the condition, but do so without prejudice to the People, who may demonstrate to the trial court with additional facts that a more narrowly drawn electronics search condition is proportionate to the burden on Cota‘s privacy interest.
2. Other Challenged Probation Conditions
Cota argues that the imposition of alcohol-related probation conditions is unreasonable under Lent because it is not reasonably related to future criminality. We disagree.
As with Cota‘s challenge to the electronics search condition, the first two Lent criteria are met. Possessing or using alcohol is unrelated to Cota‘s offense and is legal for someone his age.6 This leaves the third criterion for our consideration—whether restricting Cota‘s use and possession of alcohol is reasonably related to his future criminality.
Cota relies on People v. Kiddoo (1990) 225 Cal.App.3d 922, in which the appellate court struck a probation condition restricting alcohol use because it was not related to the defendant‘s offense of possessing methamphetamine. (Id. at pp. 927–928.) However, alcohol is a drug—albeit a legal one. This court has previously made clear that “we disagree with the fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related and that alcohol use is unrelated to future criminality where the defendant has a history of substance abuse.” (Beal, supra, 60 Cal.App.4th at p. 87; accord People v. Balestra (1999) 76 Cal.App.4th 57, 69.)
Cota disclosed to the probation department that he is a habitual user of methamphetamine and a daily user of marijuana. He has prior convictions for being under the influence of a controlled substance, possession of marijuana for sale, possession of a controlled substance, and possession of drug paraphernalia. His history of substance abuse is well documented. In the past, in upholding alcohol conditions like the condition that the trial court imposed on Cota, we have noted that there is an empirical nexus between drugs and alcohol. (Beal, supra, 60 Cal.App.4th at p. 87.) It would make little sense to deprive Cota‘s probation officer of the power to direct Cota away from alcohol as a substitute mind-altering substance when his substance abuse history is so clearly demonstrated.
The Beal court noted that “alcohol use may lead to future criminality where the defendant has a history of substance abuse.”7 (Id. at p. 87.) We therefore conclude that the trial court‘s imposition of alcohol-related probation conditions was reasonably related to preventing future crimes, given Cota‘s history of drug use.
Cota next challenges the anger management condition as unreasonable under the third prong of Lent. We conclude that it, too, is reasonable under the circumstances.
Cota cites his lack of convictions for violent crimes and an unclear connection between his crime and displays of anger. But a history of violent crime and overt displays of anger are not necessary preconditions for giving a probation officer discretion to direct a probationer to an anger management program. Several facts in the record make the condition reasonable. Cota encountered the police because he was swinging a machete in a public park, and he frightened someone enough to prompt a call to law enforcement. The caller described Cota as violent and mentally ill. When the police arrived, Cota revealed another weapon—the six-inch knife that led to the charge of which he was ultimately convicted. He has a prior conviction for the manufacture of weapons and has been diagnosed with schizoaffective disorder.8 These facts could reasonably lead the trial court to conclude that Cota might benefit from anger management and that such a tool could help prevent future criminal activity.9
3. The trial court did not violate Cota‘s right to due process in imposing various fees and a restitution fine without first determining his ability to pay
At his sentencing in November 2018, Cota was assessed a $40 court operations fee (
Two months after Cota‘s sentencing hearing, the Court of Appeal decided People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), holding that criminal defendants have a due process right to an ability to pay hearing before fines and fees are imposed. (Id. at p. 1172.) Cota relies on Dueñas to argue that he is entitled to such a hearing.
The People‘s primary response to Cota‘s argument is that any ability to pay argument was forfeited because he did not object to the fines and fees at sentencing. We exercise our discretion to consider Cota‘s claim on the merits, notwithstanding any possible forfeiture. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [reviewing courts have discretion to excuse forfeiture].)
In Dueñas, supra, 30 Cal.App.5th 1157 at page 1167, 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
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. (People v. Hicks (2019) 40 Cal.App.5th 320, 327, review granted Nov. 26, 2019, S258946 (Hicks).) In considering the issue, the Hicks court noted that Dueñas rests on “two strands of due process precedent,” 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. 325–326.) 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, first italics added.)
DISPOSITION
We strike the electronics search condition and remand to the trial court to permit the court to attempt to fashion a more narrowly drawn electronics search condition, consistent with this opinion. We uphold all other probation conditions and the fine and fees that the trial court imposed. In all other respects the judgment is affirmed.
AARON, J.
I CONCUR:
HALLER, Acting P. J.
Dato, J., Concurring and Dissenting.
I join the majority opinion‘s conclusions as to each of Fernando Cota‘s challenges to the conditions of his probation, but depart from its determination that he is not entitled to remand for a hearing on his ability to pay the imposed fines and fees.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Velia Dueñas sought relief from a poverty-driven cycle of debt-to-incarceration. As a teenager, she incurred three citations and over $1000 in assessments. When she could not pay, the state suspended her driver‘s license. She could not afford the fees for reinstatement and accumulated misdemeanor convictions and further debt from driving on the suspended license. When given the choice, she opted for incarceration over incurring further debt for nonpayment. The court of appeal agreed with Dueñas that imposing fines and fees1 on defendants without consideration of their ability to pay violates due process. (Id. at pp. 1161, 1164.)
That Dueñas was a homeless mother of two with cerebral palsy undoubtedly highlighted the unfairness of her situation. But her appeal called attention to issues of broad and increasing significance: whether and to what extent is it appropriate to finance government services—in particular, the judicial system—with fines and fees assessed against convicted criminal
Fines have long been a part of criminal sentencing.2 But fees are a relatively recent addition, coinciding with the exponential growth of the American correctional population in the last 40 years.3 As criminal justice costs skyrocketed,4 states increasingly sought to offset expenditures without raising taxes.5 Between the early-1980‘s and the mid-2000‘s, the national percentage of prisoners who were assessed fees and fines rose from about 12 percent to over 65 percent,6 making monetary sanctions a fixture of the criminal justice system. California has been no exception to this national trend.7 Indeed, two of the three fees in Cota‘s case are authorized by statutes aimed at revenue generation that were passed in the 2000‘s. (
The problem has now captured the attention of key figures in the legal profession. The American Bar Association identified monetary sanctions as a primary factor in the erosion of public trust in the justice system and has
Echoing her concerns, the Administrative Director of California‘s Judicial Council has remarked that fines and fees create a “destitution pipeline.” Among other reforms, he suggests setting fees in accordance with individual ability to pay. (Levi et al., Fixing Fees, Fines & Bail: Toward a Fairer System of Justice (2019) vol. 103, No. 3, Judicature, at pp. 17–19 [comments of Martin Hoshino, Administrative Director of the Judicial Council of the California Courts]13.)
So there is a problem. But is it a constitutional problem? In summary fashion, and relying exclusively on People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks), the majority dismiss Cota‘s arguments as devoid of any legitimate constitutional concerns. Hicks, we are told, persuasively concluded that Dueñas got it wrong when it comes to a due process analysis. Cota wasn‘t denied access to the courts, and he wasn‘t incarcerated for failing to pay any fines or fees. That‘s the sum and substance of the due process guarantee. If there is a problem, it‘s the Legislature‘s to address.
But is there more to it?
In the year since its filing, the Dueñas decision has generated abundant discussion and debate. Outside of Hicks, however, the bulk of that discussion
The essence of Cota‘s argument is that certain fines and fees, even though they are “mandatory” by terms of the applicable statute, cannot be constitutionally imposed on him because he has no ability to pay them. Cota requests a hearing at which he can present evidence of his inability to pay. Because his opening brief was filed less than three months after Dueñas was decided, Cota‘s counsel understandably relied on a due process analysis, but the particular constitutional label he attaches to his argument is unimportant. (See City of Revere v. Massachusetts General Hosp. (1983) 463 U.S. 239, 243-244 [plaintiff‘s claim, mislabeled as an Eighth Amendment issue, properly found to be a violation of due process].) The critical question is whether a defendant‘s ability to pay is appropriately considered in determining whether there are constitutional limitations on the amounts of fines and fees imposed. If it is, Cota should be afforded a hearing at which he can attempt to make his case.
The United States Supreme Court “has long been sensitive to the treatment of indigents in our criminal justice system.” (Bearden v. Georgia (1983) 461 U.S. 660, 664.) The Due Process Clause provides a general framework to “analyze the fairness of relations between the criminal defendant and the State.” (Id. at p. 665; see id. at pp. 672-673 [revoking probation based on a failure to pay without finding such failure was willful “would be contrary to the fundamental fairness required by the
One of the flaws in Hicks, supra, 40 Cal.App.5th 320, review granted—and in the majority‘s reliance on it here—is its failure to even consider an
Given the procedural posture of this case—Cota has never had a hearing at which he could present evidence of his financial condition—it is unnecessary at this juncture to extensively analyze or definitively resolve how a defendant‘s ability to pay should affect the imposition of fines and fees. I am inclined to agree with those courts, including ours, that have preferred an Eighth Amendment analysis at least as to fines such as the restitution fine in this case. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 96, rev.gr. Nov. 13, 2019, S257844; People v. Aviles (2019) 39 Cal.App.5th 1055, 1071.) Fines are clearly punitive, and given an available Eighth Amendment analysis that considers ability to pay (along with other factors), the safety net provided by broader principles of due process seems unnecessary.15 Whether fees and assessments imposed on convicted defendants are sufficiently punitive to invoke the
We will have plenty of time to debate doctrinal nuances after Cota has been afforded the opportunity to make a complete record. At this point, however, it is sufficient to conclude that he should have the chance to prove the extent of his inability to pay the assessed fines and fees as well as to argue—based on either the
DATO, J.