People v. Fahay CA4/1 ( 2023 )

Filed 5/16/23 P. v. Fahay CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080167
Plaintiff and Respondent,
v. (Super. Ct. No. SCD293356)
NICHOL RUIZ FAHAY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Affirmed in part, reversed in part, and remanded
with directions.
Charles R. Khoury, Jr. and Leslie Rose, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Collette C. Cavalier and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Nichol Ruiz Fahay was placed on formal probation after pleading guilty
to possessing the personal information of another with intent to defraud.
(Pen. Code,1 § 530.5, subd. (c)(2).) Fahay challenges two conditions of her
probation. First, she contends the electronic search condition is unreasonable
under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally
overbroad. Then, claiming she cannot pay the fines and assessments
imposed, she seeks their stay pending the Supreme Court’s resolution of
People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019,
S257844 (Kopp).2 The People concede invalidity of the electronic search
condition under Lent and urge us to conform Fahay’s financial obligations to
the court’s oral pronouncement.
As we explain, the electronic search condition must be stricken under
Lent, supra, 15 Cal.3d 481. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 1121
(Ricardo P.).) But this is without prejudice to the trial court on remand
considering whether a more narrowly drawn electronic search condition
would be consistent with Ricardo P. Given our remand, we need not dwell on
Fahay’s claim that she lacked the ability to pay the punitive fines and
nonpunitive assessments imposed. When the matter is returned to the trial
court, Fahay can seek a hearing as to her ability to pay these amounts, and
the trial court can apply relevant constitutional standards to evaluate her
claim.
1 Unless otherwise indicated, statutory references are to the Penal Code.
2 The Supreme Court granted review in Kopp and related cases to decide
the following issues: “(1) Must a court consider a defendant's ability to pay
before imposing or executing fines, fees, and assessments? (2) If so, which
party bears the burden of proof regarding the defendant's inability to pay?”
2
FACTUAL AND PROCEDURAL BACKGROUND3
David G. was at the public library making photocopies of his DMV
paperwork. When he turned his back for a moment, Fahay quickly stole his
documents and placed them in a white tote bag. David asked Fahay to
return his papers, but she denied taking them and left. David followed her
out the library, and police later apprehended Fahay in a nearby grocery store.
After identifying her and learning of her active Fourth Amendment waiver,
officers searched Fahay’s tote bag and located unopened mail belonging to 15
different individuals. Arrested for possessing stolen mail, Fahay sought to
explain by asserting that she could legally take mail once it had been placed
in a recycling bin. Fahay had numerous prior convictions for identity theft.
The San Diego County District Attorney charged Fahay with acquiring
the personal identifying information of another while having a prior
conviction for identity theft. (§ 530.5, subd. (c)(2).) Fahay pleaded guilty at
her pretrial readiness, and the court found a factual basis for the plea.
Suspending imposition of her sentence, the court placed Fahay on formal
probation for two years subject to various terms and conditions. (§ 1203.1,
subd. (a).) Specifically, Fahay was to serve 180 days in local custody with
credit for the 45 days served and immediate eligibility for release to an
approved program. As a separate condition of probation, Fahay was required
to pay a total of $1,190 in fines and assessments, as we will later discuss.
She was subject to warrantless search at any time, with the Fourth
3 Fahay pleaded guilty before preliminary hearing could take place, and
she did not submit to an interview with the probation department. For
context, facts about the incident are drawn from the police report cited in the
probation report.
3
Amendment waiver extending to her computers, recordable media, and
electronic devices.
Fahay appealed the probation order. (§ 1237, subd. (a).) She indicated
that she challenged issues after the entry of the plea that did not question its
validity. (Cal. Rules of Court, rule 8.304(b).) In waiving her right to appeal
the sentence, Fahay did not waive the right to challenge particular conditions
of probation that had yet to be determined at the time of the plea. (People v.
Patton (2019) 41 Cal.App.5th 934, 942−943.)
DISCUSSION
Fahay challenges the portion of probation condition 6n that authorizes
warrantless search of her electronic devices. She further requests a stay of
all fines and fees pending the Supreme Court’s resolution of Kopp. We
address these contentions in turn and provide additional background for
proceedings on remand.
A. The electronic search condition must be stricken, but remand is
necessary to determine whether a narrower condition could be imposed.
Defense counsel sought to strike the electronic search condition,
questioning the nexus between electronic devices and this case. Opposing
that request, the prosecutor noted that Fahay was caught with unopened
mail containing personal identifying information of several individuals.
Accepting this reasoning, the trial court extended the Fourth Amendment
waiver in condition 6n to “all electronic devices and pass codes to those
devices with the exception of medical and financial records.” The probation
order clarified that the waiver did not “extend to medical/legal information,
financial accounts or transactions, or to any data created before the
acceptance of this probation grant.”
4
Fahay argues that the electronic search condition is unreasonable
under state law and unconstitutionally overbroad. The People concede that
the condition is invalid under state law but claim there is no constitutional
concern. We agree with the parties that condition 6n is invalid under state
law and must be stricken.4
Trial courts have broad latitude to impose reasonable conditions of
probation (§ 1203.1, subd. (j)), and we review a challenged condition for abuse
of discretion. (Ricardo P., supra, 7 Cal.5th at p. 1118.) Probation conditions
will be upheld as reasonable unless they lack a relationship to the crime of
conviction; relate to conduct that is not in itself criminal; and require or
forbid conduct that is not reasonably related to future criminality. (Lent,
supra, 15 Cal.3d at p. 486; accord Ricardo P., at pp. 1118−1119.) To satisfy
the third prong under Lent, “more than just an abstract or hypothetical
relationship between the probation condition and preventing future
criminality” is required. (Ricardo P., at p. 1121.) Thus in Ricardo P., a
generalized suspicion that minors use their phones and the internet to buy
drugs and brag about drug use did not provide reasonable justification for an
electronic search condition. Given the weighty privacy interests at stake,
such a condition could only be imposed where there was a “substantial and
particularized justification.” (Id. at p. 1126.)
As the People suggest, “[t]he same concerns involved in Ricardo P. exist
in this case.” Using an electronic device is not itself criminal. On our sparse
record, there is no basis to suggest Fahay used an electronic device in
committing the offense or previously used electronic devices to engage in
criminal activity. An abstract relationship between the electronic search
condition and preventing future criminal activity is not enough under the
4 This obviates the need to reach the constitutional question.
5
Supreme Court’s rubric in Ricardo P. Accordingly, the portion of condition 6n
authorizing warrantless search of Fahay’s electronic devices meets all three
criteria under Lent and must be stricken as unreasonable. Despite our
conclusion, remand is appropriate to permit the People to demonstrate
additional facts that would justify a more narrowly drawn electronic search
condition. (See People v. Cota (2020) 45 Cal.App.5th 786, 791 (Cota) [“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.”].)
B. On remand, Fahay can challenge her ability to pay any fines, fees, or
assessments.
Defense counsel requested “that the court stay all fines and fees, as
Miss Fahay at the time of her arrest was unemployed and homeless and
unable to have gainful employment.” Based on these factors, she asked “the
Court to find an inability to pay whatever balance is owed.” Counsel further
sought to reduce the monthly payment from $50 to $35 per month.
The court required Fahay to pay the following amounts as a condition
of probation: an $820 conviction fine (§ 530.5, subd. (c)(2)),5 a $300
restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment
(§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code,
5 Section 530.5, subdivision (c)(2) specifies punishment “by a fine, by
imprisonment in a county jail not to exceed one year, or by both a fine and
imprisonment, or by imprisonment pursuant to subdivision (h) of Section
1170.” We infer that the court imposed an $820 conviction fine for this crime
pursuant to the catchall provision found in section 672. (See generally,
People v. Uffelman (2015) 240 Cal.App.4th 195, 197 [“Where the criminal
statute does not prescribe the base fine, section 672 authorizes the trial court
to impose a fine.”].) Section 672 in turn defines a $1,000 maximum fine for
misdemeanors and $10,000 fine for felonies.
6
§ 70373). Fahay was ordered to pay these amounts at a rate of $35 per
month, with all “discretionary” amounts “stayed pending successful
completion of probation.” Despite this ruling, the written probation order set
monthly payment at $50 per month starting 60 days after Fahay’s release
from custody and did not indicate that any amounts were stayed during the
probationary term.
In Dueñas, Division Seven of the Second Appellate District held that as
a matter of due process, a trial court is required to conduct an ability-to-pay
hearing before imposing assessments for court facilities and court operations.
(People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 (Dueñas).) While section
1202.4 requires courts to impose a $300 restitution fine without considering a
defendant’s ability to pay, Dueñas reasoned that this fine could be imposed
but stayed pending a determination on defendant’s ability to pay. (Dueñas, at
p. 1172.) A panel of this court later accepted the due process framework in
Dueñas as to nonpunitive fees and assessments, but concluded that punitive
fines and fees should instead be assessed under the excessive fines clause of
the Eighth Amendment, which in turn considers a defendant’s ability to pay
as one of several factors. (Kopp, supra, 38 Cal.App.5th at pp. 95−98, review
granted.) Division Four of the First Appellate similarly applied an Eighth
Amendment analysis to evaluate a range of fines and fees. (People v. Cowan
(2020) 47 Cal.App.5th 32, 50, review granted June 17, 2020, S261952
(Cowan).)
Review remains pending in Kopp as to whether a trial court must
constitutionally consider a defendant’s ability to pay before imposing fines,
fees, and assessments and, if it must, which party bears the burden to prove
defendant’s inability to pay. (See note 2, ante.) The Supreme Court has also
granted review in related cases, including Cowan, which expanded on Kopp’s
7
Eighth Amendment analysis, and Hicks, which rejected Dueñas’s due process
analysis outright. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, review
granted Nov. 26, 2019, S258946; accord Cota, supra, 45 Cal.App.5th at
p. 795.)
We agree with Fahay that “[c]iting Dueñas was unnecessary” to
preserve her claim that she lacked the ability to pay the fines and
assessments imposed. In asking the court to “stay all fines and fees” based
on Fahay’s employment and housing status and “find an inability to pay
whatever balance is owed,” counsel presumably relied on language in Dueñas
directing the court to impose any mandatory fines but stay their execution
pending a determination of defendant’s ability to pay them. (Dueñas, supra,
30 Cal.App.5th at p. 1172.) Subsequent cases have remanded for an ability-
to-pay hearing to decide whether such fines could be imposed in the first
place. (See Cowan, supra, 47 Cal.App.5th at p. 50, review granted.) That
Fahay’s attorney appeared to rely on Dueñas rather than the Eighth
Amendment does not forfeit her claim.
Fahay asks that we stay execution of the fines and fees pending the
Supreme Court’s resolution of Kopp. The People by contrast urge us to
conform the written order to the court’s oral pronouncement by staying the
discretionary $820 conviction fine until Fahay completes probation, but
otherwise requiring payment of the remaining fines and fees at $35 per
month. We reject both proposed remedies to the issue raised.
Bearing in mind that this issue is pending Supreme Court review, and
given our remand to permit evaluation of a narrower electronic search
condition, we believe the appropriate course is to permit Fahay to request an
ability-to-pay hearing on remand. If she does so, she will bear the burden of
proving that she lacks the ability to pay the fines and assessments imposed.
8
(Kopp, supra, 38 Cal.App.5th at p. 96, review granted.) We express no view
as to the merits of such a claim if it is made, but note that the trial court may
consider any relevant factors including her “housing status, mental illness or
disability, receipt of government benefits, and realistic ability to earn
. . . wages or obtain employment.” (People v. Santos (2019) 38 Cal.App.5th
923, 934.)
The analytical framework on remand will differ slightly as to the
punitive fines (the $820 conviction fine and $300 restitution fines) and
nonpunitive assessments (the $40 court operations assessment and $30
criminal conviction assessment). Any ability-to-pay challenge as to the
nonpunitive assessments proceeds under the due process framework, which
precludes imposition unless a defendant has a present ability to pay. (See
Kopp, supra, 38 Cal.App.5th at pp. 95−96, review granted; Dueñas, supra, 30
Cal.App.5th at p. 1164.) Because these fees are “collateral to a defendant’s
crimes [they] may not be made a condition of probation unless specifically
authorized by statute.” (In re David C. (2020) 47 Cal.App.5th 657, 671.)
Instead, they may be imposed only by separate order as part of the judgment.
(See generally, People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402−1403.)
By contrast, any ability-to-pay challenge as to the punitive fines should
be made under the Eighth Amendment’s excessive fines clause. (Kopp, supra,
38 Cal.App.5th at pp. 96−97, review granted.) This framework considers a
defendant’s ability to pay as one of four factors in determining whether a
punitive fine is unconstitutionally excessive. (Id. at p. 97, citing United
States v. Bajakajian (1998) 524 U.S. 321, 337−338 and People ex. rel. Lockyer
v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) Other factors are
Fahay’s culpability, the relationship between the harm suffered and the
penalty imposed, and the penalties imposed in similar cases. (Kopp, at p. 97.)
9
To the extent any punitive fines and fees are imposed as a condition of
probation, the court may indicate whether it intends to stay their execution
during the probationary term as perhaps envisioned in the prior order.
Argument as to the appropriate monthly payment can be directed to the trial
court on remand.
DISPOSITION
We strike the portion of condition 6n of the probation order permitting
warrantless searches of Fahay’s “computers, and recordable media including
electronic devices” and remand to permit the trial court to consider whether a
more narrowly drawn condition would be appropriate. On remand, Fahay
may object to any fines, fees, and assessments imposed by the trial court
based on her ability to pay. Nonpunitive assessments shall not be imposed as
a condition of probation, and the court may determine whether to stay any
punitive fines during the probationary term. In all other respects, the order
is affirmed.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
IRION, J.
10