Filed 4/7/22 P. v. Simpson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Fresno County. Francine Zepeda, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

In April 2021, defendant Dakota Wallace Simpson pled nolo contendere to committing an assault with the use of force likely to cause great bodily injury. Soon thereafter, the trial court suspended the imposition of the sentence and placed defendant on probation for three years. In this appeal, defendant challenges fines imposed under Penal Code[1] section 1203.1b, which were later repealed by the Legislature. Defendant also challenges a condition of probation that provides his probation officer with the unlimited ability to search all his electronic devices. Defendant believes the condition is overbroad and unconstitutional. The People acknowledge the repeal of the section 1203.1b fines, and further acknowledge a remand is necessary to allow the trial court to narrow the probation condition on searches of defendant’s electronic devices. We agree and remand this matter for further proceedings.

FACTUAL AND PROCEDURAL SUMMARY

In January 2020, defendant and his girlfriend (CV)[2] went to bed after watching a movie and enjoying some alcoholic beverages. When CV addressed “issues” in their relationship, defendant became angry and decided to leave. Fearing he might be too drunk to drive, CV tried to persuade defendant to stay and get sober. First, defendant grabbed CV by her shoulders while yelling. When defendant soon returned his attention to packing, CV again tried to convince him to stay. This time, defendant grabbed CV by the neck with his right hand, and her shoulder with his left. After applying pressure to her neck for about 15 seconds, defendant pushed CV to the ground, stated he did not want to live anymore, and left. After CV contacted the police two hours later, they observed a one-inch red mark on the left side of her neck.

On September 11, 2020, defendant was charged with willfully inflicting corporal injury (§ 273.5, subd. (a); count 1), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). On April 8, 2021, defendant pled nolo contendere to count 2. All other counts and allegations were dismissed. On May 20, 2021, defendant was sentenced to three years of probation. Of relevance to this appeal, the court imposed an electronic search condition, and two fees previously authorized by section 1203.1b.

DISCUSSION

1. The Section 1203.1b Fees

Again, when defendant was sentenced, the trial court imposed two separate fees authorized by section 1203.1b. This included a $296 fee for the preparation of a presentence report, and an annual fee of $360 for supervision during probation. Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill 1869) repealed section 1203.1b, effective July 1, 2021. (Stats. 2020, ch. 92, § 47.) Assembly Bill 1869 also resulted in the enactment of section 1465.9, subdivision (a), which provided “[t]he balance of any court-imposed costs” pursuant to section 1203.1b “shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62.)

Citing In re Estrada (1965) 63 Cal.2d 740, defendant contends he should be given the retroactive benefit of these changes. It is not entirely clear if defendant also believes he is entitled to a refund for the amounts already paid. We must consider basic rules of statutory construction when deciding how or whether section 1465.9 should be applied retroactively. When interpreting statutory language, we engage in a de novo review. (People v. Brackins (2019) 37 Cal.App.5th 56, 65.)

“ ‘Statutory construction begins with the plain, commonsense meaning of the words in the statute, “ ‘because it is generally the most reliable indicator of legislative intent and purpose.’ ” [Citation.] “When the language of a statute is clear, we need go no further.” ’ (People v. Manzo (2012) 53 Cal.4th 880, 885.) ‘Absent any indicia of a contrary legislative intent, the word “shall” is ordinarily construed as mandatory .… [Citation.]’ ” (People v. Greeley (2021) 70 Cal.App.5th 609, 626.)

There is no need to apply the presumptive retroactivity of Estrada because of the plain language of section 1465.9. The statute specifically states the balance of any assessments imposed pursuant to section 1203.1b on June 30, 2021, are now unenforceable and uncollectable as of July 1, 2021. Moreover, “any portion of a judgment imposing those costs shall be vacated.” (§ 1465.9, subd. (a).)

Section 1465.9 contains no language addressing or concluding defendants are entitled to a refund of any amounts paid before July 1, 2021. We believe the Legislature was fully aware of the impact of the changes given the fact Assembly Bill 1869 was passed during the 2020 calendar year, but the repeal of section 1203.1b and the operative date of section 1465.9 were not scheduled to occur until July 1, 2021. Most legislation passed in one calendar year typically goes into effect on January 1 of the following year. (Cal. Const., art. IV, § 8, subd. (c), par. (1); People v. Camba (1996) 50 Cal.App.4th 857, 865.) Given the careful wording of section 1465.9, and the delayed repeal of section 1203.1b, if the Legislature had intended there to be a retroactive impact on fees already collected, we believe that language would have been included in the statute.

The trial court may no longer enforce the fees imposed for the preparation of the presentence report if that remains unpaid, or for the annual cost of supervising defendant’s probation. As required by section 1465.9, the enforcement of any unpaid balances for those assessments must be vacated from the court order granting probation. (See People v. Greeley, supra, 70 Cal.App.5th at pp. 626–627.)

II. The Probation Condition on Electronic Searches

Defendant believes the electronic search condition imposed by the trial court is unconstitutionally overbroad, a violation of his Fourth Amendment rights prohibiting unreasonable searches and seizures, and unreasonable because it has no relationship to his criminal conduct. The People concede the condition is overbroad as currently stated, but insist the trial court should be given the opportunity to tailor the language on remand. We agree this matter must be remanded to allow the trial court the opportunity to tailor the electronic device search condition more narrowly.

A. Applicable Law

When granting probation, a trial court “may impose and require any or all of the terms of imprisonment, fine, and conditions” as it determines are fitting and appropriate. (§ 1203.1, subd. (j).) This includes conditions that require amends “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 .…” (Ibid.) 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 .…” ’ ” (People v. Bryant (2021) 11 Cal.5th 976, 983 (Bryant) [citing People v. Lent (1975) 15 Cal.3d 481, 486].) This requires a case‑by‑case assessment considering the relationship of the condition to the crime, the specific terms provided in the challenged condition, and the connection of that condition to the probationer’s future criminality. (Bryant, supra, at p. 983.)

Because a trial court has broad discretion when imposing conditions of probation, we generally review the decisions made surrounding probation using an abuse of discretion standard. (People v. Moran (2016) 1 Cal.5th 398, 403.) This court “will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.” (Ibid.) However, when significant privacy interests are impacted, such as allowing sweeping electronics searches without a warrant, the burden imposed on a defendant will be considered a heavy one, warranting our de novo review. (See People v. Cota (2020) 45 Cal.App.5th 786,790; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) Under these circumstances, to be considered reasonable, the probation condition must be based on more than an “ ‘abstract or hypothetical relationship’ ” between the condition and the goal of preventing future criminality—“there must be a specific relationship—grounded in the facts of the case—between the condition and preventing future criminality.” (People v. Cota, supra, at p. 790.) “ ‘[A] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 384.)

B. Analysis

When imposing conditions for probation here, the trial court stated the following on electronic searches:

“Submit your person, property, financial records, vehicles, computers, hand-held electronic and cellular devices, and place of residence to search and seizure at any time of the day or night by a police officer or probation officer with or without a search warrant or other process. By virtue of your open search and seizure, you will be deemed to have given specific consent to a law enforcement officer, including a probation officer, under the California Electronic Communication Privacy Act to search your electronic devices for electronic device information.”

The trial court identified, “computers, hand-held electronic and cellular devices … for electronic device information,” as items subject to this authority to search. At the time this condition was imposed, defendant’s attorney objected, stating there was no justification for the condition.

To resolve this issue, we apply the three-prong test discussed above. First, electronic devices played no part in defendant’s offense, which involved a physical altercation. In addition, the record contains no information defendant used his electronic devices in ways that could be considered illegal. Thus, we have no basis to conclude his use of these devices was, or is now, inappropriate. Our analysis of the third prong, which considers whether the forbidden activity is reasonably related to future criminality, will determine whether this condition is available as stated, or requires more definition to pass constitutional scrutiny. (See People v. Bryant, supra, 11 Cal.5th at p. 983, fn. 3.) Again, there must be more than an abstract or hypothetical relationship between the condition and the prevention of future criminality. (Id. at p. 984.)

Defendant asks this court to strike the condition completely, arguing it “virtually eliminates [his] right to privacy in his most intimate communications.” The People acknowledge the electronic search condition can impose a heavy burden on defendant’s privacy interests, but this should not render the condition entirely invalid. The People correctly note the condition could be connected to defendant’s future criminality because he is subject to a criminal protective order requiring him to have no contact with CV.

In these times, most contacts between individuals are made electronically. A condition allowing a probation officer to scan through various devices to verify defendant has not tried to contact CV is not unreasonable. However, common sense tells us these devices contain so much more than methods for contacting other individuals. “Mere convenience in monitoring a parolee’s conduct, coupled with generic descriptions of how some people use cell phones, are not sufficient to render this burden on […] privacy interests reasonable.” (People v. Cota, supra, 45 Cal.App.5th at p. 791.) For this reason, the trial court must more clearly define the limits for these “proportional” intrusions of defendant’s constitutionally protected privacy rights. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 1128–1129.) The burden imposed on defendant’s privacy cannot be “ ‘substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.’ ” (People v. Bryant, supra, 11 Cal.5th at pp. 984–985.) A closer “fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights” is required. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

DISPOSITION

We strike the electronics search condition and remand this case to permit the trial court to fashion a more narrowly drawn electronics search condition, consistent with this opinion. The trial court is also directed to amend the probation order to vacate the fees for the preparation of a presentence report and probation supervision that remained unpaid as of July 1, 2021. In all other respects, the probation order is affirmed.

* Before Poochigian, Acting P.J., Peña, J. and Snauffer, J.

[1] All further statutory references will be to the Penal Code, unless otherwise specified.

[2] The confidential victim.