Opinion
C087923
09-28-2020
THE PEOPLE, Plaintiff and Respondent, v. JORDAN JAMES HOWELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR58941-1)
After defendant Jordan James Howell pleaded no contest to possession for sale of methamphetamine and/or methylenedioxy-methamphetamine (MDMA), the trial court sentenced him to serve two years, including one year in jail and one year of mandatory supervision. The court imposed an electronics search condition as one of the conditions of mandatory supervision. Additionally, the court imposed a court operations assessment and court facilities assessment. On appeal, defendant contends: (1) the trial court abused its discretion in imposing an unreasonable electronics search condition and the condition is unconstitutionally overbroad; (2) the imposition of the court assessments violates his constitutional rights because there was no determination of his ability to pay them; (3) the transcript of the trial court's oral pronouncement of judgment must be corrected to reflect the court sentenced him to serve the sentence in county jail, not the Department of Corrections and Rehabilitation (CDCR); and (4) the calculation of custody credits must be corrected.
We will direct the trial court to correct the abstract of judgment to accurately reflect defendant's custody credits. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
During a traffic stop, defendant was found in possession of various controlled substances, including MDMA, as well as a digital scale, multiple cellular phones, and $750 in cash. Pursuant to a negotiated agreement, defendant pleaded no contest to possession for sale of methamphetamine and/or MDMA (Health & Saf. Code, § 11378), and the remaining charges were dismissed. The trial court sentenced defendant to serve the middle term of two years pursuant to Penal Code section 1170, subdivision (h), comprised of one year in custody and one year on mandatory supervision. Among the conditions of mandatory supervision, the court imposed an electronics search condition, as follows: "You shall be required to make available for inspection, including providing passwords or unlock codes, any data storage device, including cellular telephones and computers, and any network applications associated with those devices, including social media and remote storage services." Defendant made no objection to the electronics search condition.
Undesignated statutory references are to the Penal Code.
The trial court awarded defendant a total of 100 days of custody credit, including 50 actual days and 50 conduct days. The court imposed various fines and fees, including a restitution fine in the amount of $300, a stayed $300 mandatory supervision revocation fine, a $40 court operations assessment, and a $30 court facilities assessment.
DISCUSSION
I
Electronics Search Condition
Defendant contends the trial court erred in imposing the electronics search condition because it is not reasonably related to future criminality. Defendant further contends the electronics search condition is facially overbroad. He argues there were narrower means to ensure he did not violate the terms of his mandatory supervision. Finally, defendant argues the condition violated his right against self-incrimination under the Fifth Amendment. While he concedes he did not object in the trial court, he asserts his claim is not forfeited and if it is deemed forfeited, then he received ineffective assistance of counsel. We reject defendant's contentions.
The trial court sentenced defendant pursuant to subdivision (h) of section 1170, imposing a period of mandatory supervision. (§ 1170, subd. (h)(5).) During mandatory supervision, "the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation." (§ 1170, subd. (h)(5)(B).) Courts generally have "broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety." (People v. Martinez (2014) 226 Cal.App.4th 759, 764.)
A.
The Lent Test
Defendant contends the electronics search condition imposed by the court as a condition of his mandatory supervision is improper under People v. Lent (1975) 15 Cal.3d 481. Defendant did not, however, object to the electronics search condition in the trial court on the ground it violated Lent. Accordingly, that claim is forfeited. (See People v. Welch (1993) 5 Cal.4th 228, 234-235, 237.)
B.
Overbreadth
Defendant contends the electronics search condition is unconstitutionally overbroad. Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited. (People v. Welch, supra, 5 Cal.4th at pp. 234-235.) Because defendant did not object to the electronics condition in the trial court, he has forfeited his ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to him. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if that claim "amount[s] to a 'facial challenge,' " i.e., a challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad," (id. at p. 885) that is, a " ' "pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court" ' " (id. at p. 889). Such a claim "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts . . . ." (Id. at p. 885.)
A review of defendant's overbreadth claim shows it is not a facial challenge presenting a pure question of law. Defendant distinguishes his case from cases upholding electronics search conditions, arguing that in his case, there is "zero evidence involving electronic devices" and "no connection with the use of cell phones or electronic devices in relation to the offense committed." The implication of these arguments is that these circumstances could not support the application of the electronics search condition. To assess whether such circumstances exist in this case, we would have to look at the record, particularly as it relates to defendant's history and the circumstances of this crime. Since the alleged constitutional defect is correctable only by reference to the factual record, it is not a facial constitutional challenge, and the claim it is overbroad has been forfeited by not objecting in the trial court. (In re I.V. (2017) 11 Cal.App.5th 249, 260-261; People v. Kendrick (2014) 226 Cal.App.4th 769, 777-778.)
To the extent there remains a portion of defendant's claim that is a pure legal question and properly raises the claim that the condition is facially overbroad, we reject that contention. In a facial overbreadth challenge to an electronics search condition, the issue is whether the search condition, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (In re Sheena K., supra, 40 Cal.4th at pp. 885-889.) The answer here is no. Electronics search conditions are not categorically invalid. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128.) Thus, although application of this search condition could be constitutionally overbroad as applied to certain probationers, in other circumstances it may be entirely appropriate and constitutional. The criminal offense or defendant's personal history may provide a sufficient basis on which to conclude the condition is a proportional means of deterring future criminality. (Id. at pp. 1128-1129.) In those cases, the imposition of such probation conditions would be constitutional.
Defendant relies on the United States Supreme Court's decision in Riley v. California (2014) 573 U.S. 373 to contend the electronics search condition is unconstitutionally overbroad on its face. In Riley, the Supreme Court held that a warrant is generally required prior to the search of a cell phone incident to arrest. (Id. at p. 403.) However, the Riley case did not address any issues regarding mandatory supervision or probation search conditions. The privacy expectation of an arrestee is significantly different than that of a supervisee or probationer. (See United States v. Knights (2001) 534 U.S. 112, 119 [151 L.Ed.2d 497, 505] ["Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled" ' "].) Defendant also relies extensively on People v. Appleton (2016) 245 Cal.App.4th 717, to support his argument this condition is facially overbroad. Appleton, however, did not involve a facial challenge to an electronic device search condition and therefore does not assist defendant. (Id. at pp. 721, 727.) Both of these authorities are distinguishable.
We reject the claim that the electronics search condition is facially overbroad.
C.
Fifth Amendment Privilege Against Self-incrimination
Defendant claims the electronics search condition requiring him to provide access to passwords and electronic data violates his Fifth Amendment privilege against self-incrimination because it requires him to provide information that may be incriminating.
We review defendant's Fifth Amendment challenge to the passwords condition de novo. (People v. Appleton, supra, 245 Cal.App.4th at p. 723.) "The Fifth Amendment to the United States Constitution states that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself [or herself] . . . .' The high court has made clear that the meaning of this language cannot be divorced from the historical practices at which it was aimed, namely, the brutal inquisitorial methods of ' "putting the accused upon his [or her] oath and compelling him [or her] to answer questions designed to uncover uncharged offenses, without evidence from another source." ' [Citations.] . . . [T]he amendment prohibits the direct or derivative criminal use against an individual of 'testimonial' communications of an incriminatory nature, obtained from the person under official compulsion." (People v. Low (2010) 49 Cal.4th 372, 389-390.)
Here, the electronics search condition requiring defendant to provide access to his electronic devices does not implicate his Fifth Amendment rights. It is a "settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not 'compelled' within the meaning of the privilege [against self-incrimination]." (United States v. Hubbell (2000) 530 U.S. 27, 35-36 [147 L.Ed.2d 24, 35-36].) Even assuming arguendo the electronics search condition, by requiring the disclosure of defendant's passwords, amounts to "compelled testimonial communications" (Fisher v. United States (1976) 425 U.S. 391, 409 [48 L.Ed.2d 39, 55]), the condition does not violate defendant's Fifth Amendment right against self-incrimination because it does not authorize the use of any compelled statements in a criminal proceeding. As our Supreme Court has explained, "the Fifth Amendment does not provide a privilege against the compelled 'disclosure' of self-incriminating materials or information, but only precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled." (Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1134.) There is no such use contemplated here. Because the electronics search condition does not purport to authorize the use of any compelled testimonial communication against defendant in a criminal proceeding, it does not violate the Fifth Amendment.
D.
Ineffective Assistance of Counsel
Defendant alternatively claims trial counsel rendered ineffective assistance in failing to object to the electronics search condition of mandatory supervision as overbroad.
" ' "To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant." ' " (People v. Rices (2017) 4 Cal.5th 49, 80.) A reviewing court will not find ineffective assistance of counsel on direct appeal where the record does not disclose the reason for counsel's conduct, unless counsel was asked for an explanation and failed to give one, or there could have been no good reason. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) "Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
Here, counsel did not explain, and was not asked to explain, the failure to object to the electronics search condition. Defendant quotes boilerplate law and makes no argument to demonstrate how trial counsel's failure to object to the electronics search condition of his mandatory supervision was a violation of professional norms. Indeed, it may have been a tactical decision. Defendant pleaded no contest to the possession of drugs for sale. The factual basis for the plea is limited but shows defendant was found in possession of a number of different drugs, indicia of sales, and multiple cellular phones that could have been used to communicate with defendant's customers. Further, the record indicates the court declined to grant defendant probation because it was concerned about defendant's lengthy history of "fugitive status" but agreed to allow defendant to serve a portion of his sentence under mandatory supervision, contingent upon defendant's agreement to the terms of supervision including the electronics search condition. On the record before us, we cannot say there is no satisfactory explanation for defense counsel's failure to object to the electronics search condition.
II
Imposition of Mandatory Court Assessments
Defendant argues the trial court's imposition of the court operations assessment and court facilities assessment violated his constitutional rights because the trial court did not determine his ability to pay before imposing them. He asks this court to either remand to the trial court for a hearing on his ability to pay or to stay each of these assessments.
Defendant does not challenge the imposition of the restitution fine under section 1202.4, subdivision (b). --------
This argument relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which 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 court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held "that although . . . section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Attorney General responds by arguing this claim is forfeited by defendant's failure to raise the issue of his ability to pay in the trial court. Assuming, without deciding, defendant's challenges to these assessments have not been forfeited, we conclude Dueñas, supra, 30 Cal.App.5th 1157 was wrongly decided and therefore reject defendant's claim on that basis.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, that agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, at pp. 95-96.)
In the meantime, we join several other courts in concluding the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas, supra, 30 Cal.App.5th 1157 and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the mandatory assessments.
III
Sentencing Error
Defendant contends, and the Attorney General concedes, that the trial court misspoke during the sentencing hearing in sentencing defendant to the CDCR. The trial court imposed a split sentence including a period of mandatory supervision that may only be imposed pursuant to Penal Code section 1170, subdivision (h), not when a defendant is sentenced to state prison and committed to CDCR. The minute order of the sentencing hearing reflects that defendant's sentence was "to be served under provisions of 1170(h)(5)(B) PC" and defendant was "remanded into the custody of the Colusa County Sheriff to be delivered forthwith Colusa County Jail." The amended abstract of judgment reflects a county jail commitment pursuant to section 1170, subdivision (h), rather than a state prison commitment. It is clear from the record that the trial court misspoke when it pronounced sentence. We therefore deem the minute order and the abstract of judgment to prevail over the reporter's transcript, and the trial court's misstatement regarding defendant's remand in the reporter's transcript is of no effect. (See People v. Thompson (2009) 180 Cal.App.4th 974, 978 [declaring that erroneous statement in the reporter's transcript was of no effect].)
IV
Custody Credits Calculation Error
Defendant contends, and the Attorney General concedes, he is entitled to one additional day of custody credit. Defendant was awarded 100 days of custody credit at sentencing, based on one day in custody in May 2017, four days in custody in July 2018, and 45 days in custody in July and August 2018, together with corresponding conduct credits. However, the 2016 preplea report indicates defendant was also in custody in this case for one day in February 2016 that was not reflected in the 2018 probation report. Accordingly, we will direct the trial court to correct the abstract of judgment to reflect one additional day of credit for time served to reflect 51 actual days and 50 conduct days for a total of 101 days.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect defendant has 101 days in total prejudgment custody credits, including 51 actual days and 50 conduct days. A certified copy of the corrected abstract of judgment shall be forwarded to the county jail.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
KRAUSE, J.