People v. Moore-Grant

• Decision Date: 15 May 2020
• Docket Number: C084041
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JASMIN CHIMERE MOORE-GRANT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. JASMIN CHIMERE MOORE-GRANT, Defendant and Appellant.

C084041

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

May 15, 2020

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15F04710, 15F05478, & 15F06495)

Defendant Jasmin Chimere Moore-Grant pleaded no contest to numerous counts of identity theft after she entered various workplaces and took credit cards from employees, later using them to purchase merchandise at several businesses. She was sentenced to an aggregate split term of 21 years with 13 years in custody and eight years on mandatory supervision. As conditions of mandatory supervision, the trial court imposed two conditions requiring defendant to allow probation officers warrantless access to her electronic storage devices, including cell phones and computers, and requiring her to give officers her passwords and access codes to her electronic mail and other internet accounts.

On appeal, defendant contends the electronics search conditions (1) violate People v. Lent (1975) 15 Cal.3d 481 (Lent), and (2) are unconstitutionally overbroad. In supplemental briefing, defendant argues (3) the court operations assessment, criminal conviction assessment, minimum restitution fine, and direct restitution must be stayed pending a determination of her ability to pay; (4) to the extent trial counsel failed to object to the restitution fine based on an inability to pay, she received ineffective assistance of counsel; (5) the 10 percent annual interest amount imposed on the direct victim restitution order was unauthorized; (6) the criminal impact fee imposed under Penal Code section 1465.7¹ should be stricken because the court did not impose a required underlying section 1464 assessment; and (7) the one-year terms for each of the prior prison term enhancements must be stricken based on statutory amendments effected by Senate Bill No. 136.

We conclude defendant's challenges to the electronics search conditions were properly preserved and that the conditions are invalid under Lent. We further conclude the trial court did not err in imposing the fees, fines, and assessments without determining defendant's ability to pay. We shall remand the matter for resentencing for the trial court to strike the prior prison term enhancements, and to impose various fees, fines, and assessments applicable to defendant's offense, and shall order the clerk to prepare an amended abstract of judgment that reflects all of the fees, fines, and assessments imposed.

FACTUAL AND PROCEDURAL BACKGROUND

Over the course of several months in 2015, defendant entered various workplaces on different days and stole employees' credit cards while they were away from their cubicles. She later used the credit cards to make purchases at several local businesses.

On August 13, 2015, defendant was charged in Sacramento County case No. 15F04710 with second degree burglary (§ 459), two counts of identity theft (§ 530.5, subd. (a)), and possession of personal identifying information with intent to defraud (§ 530.5, subd. (c)(2)). Two prior prison terms (§ 667.5, former subd. (b)) were also alleged. That same day, defendant pleaded no contest to the charges and prior prison term allegations in exchange for seven years in state prison; if she returned to court on September 10, 2015, her sentence would be reduced to three years for the second degree burglary offense and concurrent terms of 16 months each for the remaining convictions.

Six days before her surrender date, the People filed another case (case No. 15F05478) charging defendant with four counts of second degree burglary and 32 counts of identity theft. A month later, in October 2015, the People filed a third case (case No. 15F06495), charging defendant with 29 counts of identity theft.

In November 2016, defendant entered a global plea to 10 counts of identity theft in case No. 15F05478, 11 counts of identity theft in case No. 15F06495, in addition to her previous plea in case No. 15F04710.² Under the terms of the plea agreement, defendant would be sentenced to a split sentence of 13 years in custody and eight years on mandatory supervision.

In January 2017, the court sentenced defendant to an aggregate term of 21 years in county jail (§ 1170, subd. (h)(5)(b)), with the final eight years of her sentence suspendedand subject to mandatory supervision. The probation report recommended that the court impose various terms of mandatory supervision including an electronics search condition (Probation Condition No. 2) that stated: "P.C. 1546 searchable - Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storages devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search."

The probation report further recommended Probation Condition No. 15, which required defendant to "disclose all e-mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such e-mail and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause."

At the sentencing hearing, defense counsel objected "to the terms of probation that will allow probation to go into [defendant's] cell phone whenever they want to." Counsel objected to the electronics search conditions given the nature of modern cell phones and special information available on those phones.

The court responded by noting on the record that the court and counsel had an earlier chambers conference specifically regarding the electronics search terms. In the court's opinion, "given the nature of these charges . . . where she personally used personal identifying information of other individuals, that it is not uncommon to have useof a cell phone to perpetuate that particular crime." Citing Lent, the trial court found that the electronics search conditions were appropriate to monitor defendant on mandatory supervision.

The court imposed a $300 restitution fine (§ 1202.4), with the same amount imposed and suspended pending revocation of mandatory supervision (§ 1202.45, subd. (b)), a $1,000 court operations assessment (§ 1465.8), and a $750 court facilities assessment (Gov. Code, § 70373). The court also imposed a criminal impact fee pursuant to section 1465.7, subdivision (a), and direct victim restitution of $7,235.52 (§ 1202.4, subd. (f)). Defendant timely appealed.

DISCUSSION

1.0 Electronics Search Conditions

Defendant challenges the electronics search conditions on several grounds, including that the conditions are unreasonable under Lent. The People argue defendant forfeited the issue by failing to object on the record based on Lent, or, alternatively, that the conditions are valid under Lent.

Initially, we reject the People's forfeiture argument. The record shows defendant twice objected to the conditions -- during the sentencing hearing and before the hearing in a chambers conference with the judge and opposing counsel. The trial court, moreover, specifically cited Lent in denying defendant's objection and finding the conditions valid. Defendant's objections were therefore sufficient to preserve her appellate claim.

Turning to the merits of defendant's challenge, we agree the conditions as written are unreasonable. Given this conclusion, we do not reach defendant's alternative challenges to the conditions.

A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer and to protect public safety. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 [" 'The sentencing court has broad discretion to determine whether an eligible defendant is suitable forprobation and, if so, under what conditions.' "].) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or " ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Welch (1993) 5 Cal.4th 228, 234.)

Under Lent, a probation condition is invalid if 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 . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be met to invalidate a probation condition. (People v. Olguin, supra, 45 Cal.4th at p. 379.) Thus, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.)

Communicating electronically is not itself criminal. And nothing in the sparse record suggests any electronic device played a role in defendant's current offense. The question, then, is whether the electronics...