Filed 3/15/22 P. v. Guerrero CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Michael G. Idiart, Judge.

Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Morgan Guerrero pled no contest to burglary. The trial court granted her probation and imposed various fines and fees, including a restitution fine (Pen. Code, § 1202.4, subd. (b)),[1] a court operations fee (§ 1465.8), and a court facilities assessment (Gov. Code, § 70373). On appeal, defendant contends that (1) the condition of probation requiring her to submit to a search of her electronic devices is unconstitutionally overbroad and (2) the trial court erred in ordering her to pay fines and fees without conducting a hearing on her ability to pay those amounts as set forth in People v. Dueñas (2019) 30 Cal.App.5th 1157.

We permitted the parties to submit supplemental briefing on the issue of whether defendant’s first contention is moot because her term of probation has been reduced to two years pursuant to Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950). Defendant objects to this court taking judicial notice of the trial court’s online docket. We dismiss the portion of defendant’s appeal challenging the search condition of her probation. We affirm.

PROCEDURAL SUMMARY

On July 18, 2019, the Fresno County District Attorney filed a complaint, charging defendant with first degree residential burglary (§§ 459, 460, subd. (a); count 1).

On October 16, 2019, defendant pled no contest to count 1. The trial court indicated that it would impose no initial state prison.

On November 14, 2019, the trial court suspended imposition of sentence and granted defendant probation for three years. As a term of probation, defendant was required to submit to a search of her person and property, including financial records, vehicles, computers, electronic devices, and residences at any time without a warrant, and serve 320 days in custody with credit for 244 days served.

On January 13, 2020, defendant filed a notice of appeal.

FACTUAL SUMMARY

The probation officer provided the following summary of the facts of the offense in their report:

“On July 16, 2019, at approximately 2:41 p.m., Elizabeth (reporting party) arrived to her mother, Eugenia’s (victim, age 81), residence to check on the mail. While she was on the front porch, she made contact with an unknown female, later identified as [defendant], who asked who she was. Elizabeth then stated, ‘Who are you, this is my mom’s house?’ Elizabeth then observed [defendant] with her mother’s white plastic trash can (valued at $5) that she had bought her and as [defendant] was leaving, she stated it was for her dog. Elizabeth walked to the rear of the residence and observed a Chevy truck in the alley occupied by three unknown individuals. She asked them who they were and they drove northbound in the alley. Elizabeth followed [defendant] and contacted law enforcement.

“When officers arrived, they made contact with [defendant] and she was detained. Officers noted the front metal security door was damaged near the deadbolt and the inner wooden door frame was splintered near the lock. Officers also observed the rear door had similar damage and was in the open position. An air conditioner (valued at $150) that was previously outside of the dining room window, secured by a metal frame, and an Amana washer and dryer set (valued at $851.95) were missing from the residence. Officers noted the rear bedroom was ransacked with personal items on the floor. Elizabeth informed officers Eugenia had been in the hospital and the residence was vacant since July 9, 2019. She was going through rehabilitation due to an injury and they had left the residence undisturbed and nothing was missing prior to the incident. She stated the residence had since been decorated with new curtains and a bed was made. A 13-inch Sony Television (valued at $160) was also discovered missing and so was Eugenia’s medication.

“[Defendant] was advised of her Miranda[2] rights and she stated her friend ‘Short’ took her to the residence and provided her with the keys to the residence. She had been occupying the residence since July 12, 2019, and Shorty had people working there, cleaning out the residence. She advised the chain on the rear gate was already cut and the damage to the doors was already present. She and her boyfriend ‘Fernando Sanchez Marciel’ had been staying at the residence for a week. She never observed the new washer and dryer or the television on the dining table. She stated she threw out the medications she found in the residence. [Defendant] stated Shorty gave her and Fernando the house, but was unable to recall how it happened. She informed officers Shorty’s name was ‘Jesse Silva Watson’ and she and Fernando were only staying at the residence temporarily. [Defendant] was consequently transported and booked into the Fresno County Jail.”

DISCUSSION

A. Electronic Device Search Condition of Probation

Defendant challenges the condition of her probation subjecting her to a search of her electronic devices without a warrant at any time. Because defendant’s term of probation has terminated, this issue is moot.

We permitted the parties to submit supplemental briefing regarding whether we should take judicial notice of the trial court’s online docket, reflecting that the probation department had reduced defendant’s term of probation to two years pursuant to Assembly Bill 1950. (See People v. Mendoza (2015) 241 Cal.App.4th 764, 773, fn. 1; Truong v. Nguyen (2007) 156 Cal.App.4th 865, 872, fn. 3.) Defendant objects to our taking judicial notice and contends that the courts in Mendoza and Truong erred in taking judicial notice of a trial court’s online docket. We disagree. The reduction in defendant’s term of probation is not subject to reasonable dispute. (Evid. Code, § 452, subd. (h); Truong, at p. 872, fn.3.) We take judicial notice that defendant’s term of probation has already been reduced to two years pursuant to Assembly Bill 1950.

Regardless, even if defendant’s term of probation had not already been reduced pursuant to Assembly Bill 1950, there is no question that such a reduction would now be required. Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1 (Stats. 2020, ch. 328, § 2) to limit the maximum probation term a trial court is authorized to impose for most felony offenses to two years. (§ 1203.1, subds. (a) & (m).) “[T]he … limitation[s] on … probation set forth in Assembly Bill … 1950 [are] ameliorative change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965) 63 Cal.2d 740] presumption of retroactivity.” (People v. Sims (2021) 59 Cal.App.5th 943, 964; accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883–885.) Therefore, the amendment to section 1203.1 applies to all cases not final on Assembly Bill 1950’s effective date. (In re Estrada, at p. 742.)

Defendant’s case was not final on January 1, 2021, and she was sentenced to a term of felony probation exceeding two years for a crime of conviction that is not a violent felony exempted from the two-year limit on felony probation. (§§ 1203.1, subd. (m), 667.5, subd. (c).)[3] Defendant is therefore entitled to the benefit of Assembly Bill 1950. As already noted in the lower court’s docket, defendant’s term of probation terminated on November 14, 2021.

Because defendant’s term of probation terminated on November 14, 2021, we need not determine whether the condition of her probation permitting a search of her electronic devices was unconstitutionally overbroad. That portion of defendant’s appeal is dismissed as moot.[4]

Restitution, Fines and Fees

Defendant contends the court improperly imposed the fines and fees without conducting a hearing on her ability to pay those amounts based on Dueñas, that held “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 any fines or fees. (People v. Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)[5] The People respond that defendant forfeited her claim by failing to raise it at sentencing and because more than a year had passed since the issuance of the Dueñas opinion. In turn, defendant contends that, to the extent her claim was forfeited, her counsel provided ineffective assistance. We conclude that defendant’s claim is without merit.

We disagree with the holding in Dueñas. As explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068–1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to defendant’s level of culpability and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)

Next, to the extent Dueñas applies to this case, defendant did not forfeit review of the issue under the statutory law at the time of her sentencing hearing. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. Here, the court imposed the minimum restitution fine of $300, and thus defendant lacked the statutory authority to object at that time. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154.) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a defendant to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)

However, at the time of defendant’s sentencing hearing, Dueñas had been published law for over a year.

Even if we agreed with Dueñas, we would reject defendant’s constitutional claims and find any error arising from the trial court’s failure to make an ability to pay finding harmless beyond a reasonable doubt because defendant had the ability to pay the fines, fees, and assessments over the course of her term of probation. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031; Aviles, supra, 39 Cal.App.5th at pp. 1075–1077.) “ ‘ “Ability to pay does not necessarily require existing employment or cash on hand.” [Citation.] “n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s [i]present ability but may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the defendant’s ability to … earn money after his release from custody. [Citation.]’ ” (Aviles, at p. 1076.)

We can infer from the instant record that defendant had the ability to pay the aggregate amount of fines and fees from probable future wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) In addition, there is nothing in the record to show that defendant was unable to satisfy the fines and fees imposed by the court during probationary term. On the date of her sentencing, defendant was 33 years of age, had technical school and community college education, and the probation officer’s report did not indicate that defendant was unable to work. Indeed, one of the terms of defendant’s probation was to seek and maintain gainful employment during the probationary period. While defendant may not have immediately had the means to pay the amounts imposed in this case, that circumstance does not support her inability to make payments on these amounts. (See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1055–1057; People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)

We thus conclude that based on the record before this court, defendant had the ability to pay the fines and fees, and any error arising from the court’s failure to make an ability to pay finding was harmless beyond a reasonable doubt.

For the same reason that defendant’s Dueñas claim fails on its merits, her ineffective assistance of counsel claim would fail for lack of prejudice. “To show ineffective assistance, defendant must show that ‘counsel’s performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.’ [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 761–762.) Here, defendant suffered no prejudice for her counsel’s failure to object to imposition of fines and fees because the fines and fees are not grossly disproportionate to defendant’s level of culpability and defendant had the ability to pay the aggregate amount of fines and fees from probable future wages. The outcome would therefore have been no different if her counsel had objected to the imposition of the fines and fees.

DISPOSITION

The portion of defendant’s appeal challenging the search term of her probation is dismissed as moot. The judgment is affirmed.

* Before Hill, P. J., Poochigian, J. and Detjen, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] Miranda v. Arizona (1966) 384 U.S. 436.

[3] Residential burglary is not a violent felony offense excluded from section 1203.1, subdivision (a)’s two-year limit on duration of felony probation by section 1203.1, subdivision (m).

[4] Defendant correctly notes that we possess the discretion to hear mooted issues. (See People v. Moran (2016) 1 Cal.5th 398, 408, fn.8; People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715–716 [“If an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue ….”].) We decline to hear the mooted issue in this case. This issue will not necessarily evade review in other cases and it will not recur here.

[5] The Supreme Court is currently considering whether trial courts must consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94–98, review granted Nov. 13, 2019, S257844.)