People v. Cota

• Decision Date: 26 February 2020
• Docket Number: D074935
• Citation: 45 Cal.App.5th 786,259 Cal.Rptr.3d 419
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fernando L. COTA, Defendant and Appellant.

45 Cal.App.5th 786

259 Cal.Rptr.3d 419

The PEOPLE, Plaintiff and Respondent,

v.Fernando L. COTA, Defendant and Appellant.

D074935

Court of Appeal, Fourth District, Division 1, California.

Filed February 26, 2020

As Modified March 20, 2020

Justin A. Behravesh, Kings Beach, under appointment by the Court of Appeal, for Defendant and Appellant.

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.

AARON, J.

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, 251 Cal.Rptr.3d 104, 446 P.3d 747 ( 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 behavior called the police, describing Cota as a violent mentally ill man. When police arrived, they found Cota standing near a water fountain with the machete balanced on top of the fountain. In view of the officers, Cota sat down and pulled a six-inch drywall knife from his waistband, placing it next to him. The officers arrested Cota for an outstanding misdemeanor warrant after running a records check.

Cota was charged with a felony for unlawfully carrying a concealed weapon (dirk or dagger). ( Pen. Code, § 21310.)¹ He pled guilty to the charge in exchange for a recommendation of three years formal probation and the anticipated reduction of his felony conviction to a misdemeanor once he completed drug treatment and mental health counseling.

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, 87 Cal.Rptr.3d 199, 198 P.3d 1 ( 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. (§ 1202.7; People v. Carbajal (1995) 10 Cal.4th 1114, 1120, 43 Cal.Rptr.2d 681, 899 P.2d 67.) Nonetheless, any conditions must be reasonable. (§ 1203.1; see also People v. Beal (1997) 60 Cal.App.4th 84, 86, 70 Cal.Rptr.2d 80 ( Beal ).) A condition of probation will be upheld as reasonable unless it meets all three criteria outlined in People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 ( Lent ): the condition " ‘ "(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." ’ "( Ricardo P., supra , 7 Cal.5th at p. 1118, 251 Cal.Rptr.3d 104, 446 P.3d 747 ; Olguin, supra , 45 Cal.4th at p. 379, 87 Cal.Rptr.3d 199, 198 P.3d 1.)

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, 251 Cal.Rptr.3d 104, 446 P.3d 747.)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, 251 Cal.Rptr.3d 104, 446 P.3d 747.) Reasonableness necessitates "more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." ( Id. at p. 1121, 251 Cal.Rptr.3d 104, 446 P.3d 747.) 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, 251 Cal.Rptr.3d 104, 446 P.3d 747.) 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, 251 Cal.Rptr.3d 104, 446 P.3d 747.) 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, 251 Cal.Rptr.3d 104, 446 P.3d 747.)

The same issues that were of concern to the Supreme Court in Ricardo P. are present in this case. Under the terms of his probation, Cota's electronic devices can be searched at any time without a warrant. This implicates a significant privacy interest. As in Ricardo P. , the trial court imposed the condition to make it easier to monitor Cota's compliance with other probation terms.³ In both cases, the condition was premised on a general assumption that drug users routinely negotiate drug purchases with their phones. There was no reference to Cota's specific actions.⁴ A case-specific rationale that would make this burden proportional is no more present here than it was in Ricardo P. 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 Cota's privacy interests reasonable.

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, 251 Cal.Rptr.3d 104, 446 P.3d 747.) 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.

Defense counsel challenged only one of four alcohol-related conditions at sentencing—8.b.—which requires that Cota not knowingly use or possess alcohol if so directed by his probation officer. As Cota concedes, any challenge to alcohol-related conditions other than 8.b. is forfeited. ( People v. Welch (19...