People v. Allen CA4/1

Filed 1/18/22 P. v. Allen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or
ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or or dered published f or
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077563
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282882)
SAMMY VANJEWEL ALLEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Melinda J. Lasater and Runston G. Maino, Judges. Affirmed in part,
reversed in part, and remanded for resentencing.
Justin Behravesh, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Stephanie H. Chow, Deputy Attorneys General, for
Plaintiff and Respondent.
I
INTRODUCTION
Defendant Sammy Vanjewel Allen appeals a judgment of conviction
after he pleaded guilty to unlawful possession of a firearm (Pen. Code, 1
§ 29820; count 1) and unlawful possession of ammunition (§ 30305,
subd. (a)(1); count 2). The trial court placed the defendant on formal
probation for a period of three years with 270 days of local custody.
The defendant claims the trial court erred by: (1) denying a motion to
suppress evidence obtained in violation of his Fourth Amendment rights; and
(2) imposing a probation condition requiring him to submit his cell phones
and electronic devices to warrantless searches at any time. He also argues he
is entitled to a remand and resentencing based on the recent enactment of
Assembly Bill No. 1950 (2019–2020 Reg. Sess.), which limits felony probation
terms to a maximum of two years. Further, he claims a $154 criminal justice
administration fee (Gov. Code, § 29550.1) should be stricken from the
sentence due to the recent passage of Assembly Bill No. 1869 (2019–2020
Reg. Sess.).
We agree with the defendant that the trial court erred by imposing a
probation condition requiring him to submit his cell phones and electronic
devices to warrantless searches. We also agree with the defendant that he is
entitled to remand and resentencing in light of Assembly Bill No. 1950.
Additionally, we conclude the judgment must be vacated, in part, as to any
criminal justice administration fee that was unpaid as of July 1, 2021.
However, we reject the defendant’s argument concerning the motion to
suppress, and affirm the judgment in all other respects.
1 Further undesignated statutory references are to the Penal Code.
2
II
BACKGROUND
A
Factual Background
The following factual background section is drawn from the trial court’s
factual findings and the evidence elicited at the preliminary hearing. (See
People v. Turner (2017) 13 Cal.App.5th 397, 400.)
Late one afternoon, police officers Timothy Arreola and Kyle Fitzgerald
were on patrol in a residential neighborhood. They were monitoring a pool
party where known gang members were present.
The officers drove in a marked patrol unit near the pool party and
spotted the defendant approximately 20 to 30 yards in front of them. They
observed the defendant peering into the driver side window of a parked
vehicle. He was using both his hands to shield his eyes from the sun as he
peered into the vehicle. The vehicle was not running, there was nobody
inside the vehicle, and there were no keys visible in the defendant’s hands.
When the defendant saw the patrol unit, he stepped away from the
vehicle and walked in the middle of the street towards the patrol unit. As he
did so, officer Arreola noticed the defendant had several tattoos. One tattoo
on the defendant’s neck read “Park Boy,” which officer Arreola believed was a
reference to the Lincoln Park criminal street gang. Officer Arreola also
noticed the defendant had a black satchel in his hand. Officer Arreola knew
from his eight years of experience as a peace officer that criminals sometimes
conceal firearms in satchels. He personally had seized several firearms from
satchels resembling the one carried by the defendant.
When the defendant was parallel to the patrol unit, officer Arreola
parked and exited the patrol unit, and told the defendant, “Come over here.”
3
He then asked the defendant whether the parked vehicle was his car. The
defendant responded that it was his mother’s car. The defendant was within
three feet of officer Arreola when the encounter was initiated.
Officer Arreola took the satchel and a cell phone from the defendant
and told him to put his hands behind his back and separate his legs. He held
the defendant’s wrists behind his back and asked the defendant for his name,
which he provided. Officer Arreola recognized the defendant’s name and
believed he was a member of the Lincoln Park gang.
Officer Arreola placed the satchel and cell phone on the hood of the
patrol unit and handcuffed the defendant. As he held the satchel, he noticed
the satchel was heavy. According to officer Arreola, it felt like a firearm was
inside the satchel. One minute and 29 seconds elapsed from the start of the
encounter to the point officer Arreola formed a belief that a gun was inside
the satchel.
Officer Arreola obtained the defendant’s identification card with his
consent and handed it to officer Fitzgerald to run an electronic record check
on the defendant’s name. He then reported the contact with the defendant to
police dispatch.
Officer Arreola asked the defendant whether there was anything illegal
in the satchel and the defendant replied no. The defendant asked officer
Arreola: “Y’all thought I stole that car or something?” In response, officer
Arreola said the defendant “looked kinda’ weird” peering into the vehicle.
The defendant stated he was looking to see if he left his sweater inside.
Officer Arreola asked the defendant what was in the satchel and he
responded there was a “weed roller” inside. Officer Arreola asked the
defendant for permission to open the satchel and the defendant refused.
Officer Arreola manipulated the satchel from the outside, felt a hard, L-
4
shaped object inside the satchel, and confirmed his belief that the satchel
contained a gun.
Officer Arreola performed a pat-down search of the defendant and
completed a field interview to document the stop. Soon after, backup officers
arrived and ran an electronic search for the license plate of the vehicle into
which the defendant had been peering.
Officer Arreola unzipped the satchel and seized a loaded firearm and a
laser aiming scope. The record check on the defendant’s name revealed he
was a felon. The license plate search revealed the parked vehicle belonged to
someone who lived at the address shown on the defendant’s identification
card.
B
Procedural Background
The defendant was charged with one count of unlawful possession of a
firearm and one count of unlawful possession of ammunition.
Prior to the preliminary hearing, the defendant moved to suppress the
evidence obtained during his encounter with the officers. He argued the
evidence was the result of an unreasonable search and seizure that violated
his Fourth Amendment rights.
At the preliminary hearing, the defendant argued the officers violated
his Fourth Amendment rights by unreasonably prolonging their detention of
him. Alternatively, he claimed the officers’ conduct converted the detention
into a de facto arrest—specifically, their act of handcuffing him. He asserted
the officers did not have probable cause to justify a de facto arrest.
The trial court denied the suppression motion. It found the defendant
was not subject to a de facto arrest and, furthermore, the detention was
reasonable and not prolonged. Based on officer Arreola’s preliminary hearing
5
testimony as well as body worn camera footage of the encounter, the court
held the defendant to answer.
The defendant moved to set aside the information under section 995
and renewed his challenge to the constitutionality of the search and seizure.
The court found there were no constitutional violations and denied the
motion to set aside the information.
Subsequently, the defendant pleaded guilty to the charged offenses and
was placed on formal probation for three years with 270 days of local custody.
III
DISCUSSION
A
Motion to Suppress
1
The defendant claims the court erred in denying his motion to suppress
because officers Arreola and Fitzgerald detained him without reasonable
suspicion that he was involved in any criminal conduct. 2
The People concede the officers detained the defendant “within seconds
of making contact” with him. However, they argue the court correctly denied
the suppression motion because the officers had reasonable suspicion the
defendant was engaged in criminal conduct.
For the reasons discussed below, we agree with the People.
2
The Fourth Amendment guarantees the right to be free from
unreasonable searches and seizures. (U.S. Const., 4th Amend.; U.S. Const.,
2 The defendant no longer asserts the detaining officers subjected him to
a de facto arrest without probable cause, or that the detention was
excessively and unreasonably prolonged.
6
14th Amend.) Evidence obtained in violation of the Fourth Amendment is
inadmissible in a criminal trial. (People v. Boulter (2011) 199 Cal.App.4th
761, 768.) “ ‘A criminal defendant is permitted to challenge the
reasonableness of a search or seizure by making a motion to suppress at the
preliminary hearing.’ ” (People v. Tacardon (2020) 53 Cal.App.5th 89, 96; see
§ 1538.5.) “ ‘If the defendant is unsuccessful at the preliminary hearing, he
or she may raise the search and seizure matter before the superior court
under the standards governing a section 995 motion.’ ” (Tacardon, at p. 96.)
“A seizure within the meaning of the Fourth Amendment occurs
whenever an individual’s liberty is restrained by the police, either by physical
force or an assertion of authority, to which the individual submits, in
circumstances in which a reasonable person would have believed he or she
was not free to leave. [Citation.] Distinctions are drawn between ‘detentions’
and ‘arrests,’ since, although both are seizures under the Fourth Amendment,
the constitutional standard for permissible detentions ‘is of lesser degree
than that applicable to an arrest.’ [Citation.] A detention may be undertaken
‘ “if there is an articulable suspicion that a person has committed or is about
to commit a crime” ’ [citation], while probable cause for an arrest exists only
‘when the facts known to the arresting officer would lead a person of ordinary
care and prudence to entertain an honest and strong suspicion that the
person arrested is guilty of a crime.’ ” (People v. Hester (2004) 119
Cal.App.4th 376, 385–386 (Hester).)
Both parties agree the officers detained the defendant. However, they
disagree whether the detention was constitutionally valid—i.e., whether the
officers had a “ ‘reasonable, articulable suspicion that criminal activity [was]
afoot,’ implicating the suspect.” (Cornell v. City & County of San Francisco
(2017) 17 Cal.App.5th 766, 779–780; see People v. Souza (1994) 9 Cal.4th 224,
7
231 [a detention requires “specific articulable facts that, considered in light of
the totality of the circumstances, provide some objective manifestation that
the person detained may be involved in criminal activity”].)
“Reasonable suspicion is a less demanding standard than probable
cause and is determined in light of the totality of the circumstances.” (People
v. Fews (2018) 27 Cal.App.5th 553, 560 (Fews).) “ ‘Because it is a “less
demanding” standard, “reasonable suspicion can be established with
information that is different in quantity or content than that required to
establish probable cause.” [Citation.] The standard “depends on the factual
and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.” [Citation.] Courts “cannot reasonably
demand scientific certainty ... where none exists.” [Citation.] Rather, they
must permit officers to make “commonsense judgments and inferences about
human behavior.” ’ ” (People v. Silveria (2020) 10 Cal.5th 195, 236.)
“In reviewing an order on a motion to suppress, we defer to the trial
court’s factual findings, express or implied, if substantial evidence supports
them. We exercise independent judgment in determining whether, on those
facts, the police action was reasonable under the Fourth Amendment.
[Citation.] We view the evidence in the light most favorable to the order
denying suppression, as the familiar rule governing appellate review
requires.” (People v. Flores (2021) 60 Cal.App.5th 978, 988.)
3
Applying these standards, we conclude the trial court properly found
there was reasonable suspicion justifying the detention.
The circumstances giving rise to a reasonable suspicion are as follows:
(1) the officers spotted the defendant peering into a parked vehicle in a
manner consistent with “casing,” or car burglary; (2) the vehicle was not
8
running, there was nobody inside the vehicle, and there were no keys visible
in the defendant’s hands, which could reasonably suggest the defendant was
not talking with a companion in the vehicle or entering or exiting the vehicle;
(3) the defendant stopped peering into the vehicle when he observed the
patrol unit, which could reasonably suggest a guilty conscience; (4) the
defendant was in an area where gang members were congregating; (5) the
defendant had a tattoo that officer Arreola believed was related to a criminal
street gang; (6) officer Arreola observed the defendant carrying a satchel in
his hand as he walked in the street towards the patrol unit; and (7) officer
Arreola knew some criminals conceal firearms in satchels and he personally
had seized several firearms from such satchels. All of these circumstances
were known before the officers detained the defendant. Collectively, they
gave rise to a reasonable suspicion that the defendant was perpetrating or
planning to perpetrate criminal conduct—most likely a car burglary.
The defendant cites case law suggesting that certain of the
circumstances just discussed are insufficient, standing alone, to support a
finding of reasonable suspicion. (See, e.g., People v. Bower (1979) 24 Cal.3d
638, 645 [an area’s high-crime rate does not transform “otherwise innocent-
appearing circumstances into circumstances justifying the seizure of an
individual”]; Hester, supra, 119 Cal.App.4th at p. 392 [“Mere membership in a
criminal street gang, without additional facts supporting an inference of
criminal activity, does not permit a detention.”].) We do not quarrel with
these well-established principles. On the contrary, we agree with them to the
extent they suggest some of the circumstances in this case likely would be
insufficient, in isolation, to support a reasonable suspicion finding—
specifically, the defendant’s possible gang membership or affiliation, as well
as the fact the encounter took place in a gang-populated area.
9
But we are not considering these circumstances in isolation. Rather,
we are considering them with many other pertinent circumstances—most
critically, the officers’ firsthand observation of the defendant peering into the
window of a parked vehicle; the defendant’s decision to stop peering into the
vehicle immediately upon viewing the patrol unit; and the defendant’s
clutching of a satchel that, in the detaining officers’ experience, was
sometimes used to conceal firearms. Further, there is no dispute that the
circumstances of a high-crime or high-gang activity area, and the defendant’s
potential gang membership or affiliation—while not dispositive—are
certainly probative of whether the detaining officers had a reasonable
suspicion the defendant was involved in criminal activity. (See People v.
Flores (2019) 38 Cal.App.5th 617, 630 [“presence in a ‘high crime area’ is
probative, but not sufficient on its own to justify a detention”]; Fews, supra,
27 Cal.App.5th at p. 560 [reasonable suspicion existed in part due to the fact
the detention occurred in an area known for violent drug-related crime];
accord In re H.M. (2008) 167 Cal.App.4th 136, 146 [it is “common knowledge
that members of criminal street gangs often carry guns and other weapon”].)
The defendant also argues the officers lacked reasonable suspicion for
the detention because there were innocent explanations for his behavior;
indeed, he maintains that the parked vehicle at issue belonged to his mother.
“However, ‘ “[t]he possibility of an innocent explanation does not deprive the
officer of the capacity to entertain a reasonable suspicion of criminal
conduct.” ’ [Citations.] ‘What is required is not the absence of innocent
explanation, but the existence of “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that
intrusion.” ’ ” (People v. Brown (2015) 61 Cal.4th 968, 985–986, People v.
Daugherty (1996) 50 Cal.App.4th 275, 287 [“Even if the circumstances are
10
also consistent with innocent activity, a detention will be justified if the
combination of circumstances also supports a reasonable suspicion of
criminal activity.”].) The very “purpose of the detention is to resolve the
ambiguity by allowing the officer to briefly investigate further.” (Brown, at
p. 986.) Thus, the existence of an innocent explanation did not preclude a
finding that the detaining officers had a reasonable suspicion.
Under the totality of the circumstances, the officers had a reasonable
suspicion that the defendant was involved in criminal activity. Therefore, the
detention of the defendant was constitutionally permissible, and the trial
court correctly denied the motion to suppress. 3
B
Assembly Bill No. 1950
At the time of sentencing, section 1203.1, subdivision (a) provided that
a court may impose felony probation “for a period of time not exceeding the
maximum possible term of the sentence.” It further provided that “where the
maximum possible term of the sentence is five years or less, then the period
of suspension of imposition or execution of sentence may, in the discretion of
the court, continue for not over five years.” (Former § 1203.1, subd. (a).)
During the pendency of this appeal, the Legislature enacted Assembly
Bill No. 1950, which amended section 1203.1. (Stats. 2020, ch. 328, § 2.)
Subject to certain exceptions not applicable here, section 1203.1,
3 The trial court made a finding that officer Arreola did not physically
touch the defendant until he held his wrists behind his back. The defendant
challenges the sufficiency of the evidence to support this finding and claims
the body worn camera footage shows officer Arreola grabbing the defendant’s
arm at the beginning of the encounter. We do not decide whether the
evidence was sufficient to support the finding because, as the defendant
admits, the issue is immaterial to whether the officers had a reasonable
suspicion justifying the detention.
11
subdivision (a), as amended, provides that a felony probation term cannot
exceed two years. The new law went into effect on January 1, 2021.
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), the defendant
claims Assembly Bill No. 1950’s limitation on the maximum duration of
felony probation terms constitutes an ameliorative change to the criminal law
that applies retroactively to cases like his own that were not reduced to final
judgment as of the new law’s effective date. The People agree Assembly Bill
No. 1950 applies to non-final cases on appeal.
The parties are correct. The two-year limitation on felony probation is
an ameliorative change to the criminal law that applies retroactively to non-
final cases including the defendant’s case. (See People v. Czirban (2021) 67
Cal.App.5th 1073, 1095 (Czirban); People v. Schulz (2021) 66 Cal.App.5th
887, 892–895; People v. Lord (2021) 64 Cal.App.5th 241, 244–246 (Lord);
People v. Stewart (2021) 62 Cal.App.5th 1065, 1070–1074, review granted
June 30, 2021, S268787; People v. Sims (2021) 59 Cal.App.5th 943, 955–964;
People v. Quinn (2021) 59 Cal.App.5th 874, 880–885.)
Both parties contend the proper remedy is to remand the matter for
resentencing. Once again, we agree. (See Czirban, supra, 67 Cal.App.5th at
p. 1095; Lord, supra, 64 Cal.App.5th at p. 246; Sims, supra, 59 Cal.App.5th at
p. 964.) Accordingly, we reverse the judgment in relevant part and remand
the matter so the trial court may resentence the defendant in accordance
with amended section 1203.1, subdivision (a).
C
Electronics Search Condition
1
The trial court imposed various conditions of probation including a
condition requiring the defendant to submit his cell phones and electronic
12
devices to search at any time, with or without a warrant, and with or without
reasonable cause, when requested by a probation officer or law enforcement
officer (hereafter, the electronics search condition). The defendant contends
the electronics search condition is invalid under People v. Lent (1975) 15
Cal.3d 481 (Lent), and unconstitutionally overbroad.
Although we are remanding the matter for resentencing, we address
the defendant’s challenge to the electronics search condition to provide the
trial court with guidance in the interests of judicial economy.
2
“The Legislature has placed in trial judges a broad discretion in the
sentencing process, including the determination as to whether probation is
appropriate and, if so, the conditions thereof.” (Lent, supra, 15 Cal.3d at
p. 486.) A court may impose any “reasonable conditions, as it may determine
are fitting and proper to the end that justice may be done, that amends may
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.” (§ 1203.1, subd. (j).) “[W]e ‘ “review
conditions of probation for abuse of discretion.” ’ [Citation.] Specifically, we
review a probation condition ‘for an indication that the condition is “arbitrary
or capricious” or otherwise exceeds the bounds of reason under the
circumstances.’ ” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).)
In Lent, the Supreme Court adopted a three-part test to determine
whether a probation condition is reasonable—i.e., whether it is valid under
section 1203.1, subdivision (j). Pursuant to Lent, a probation condition is
reasonable, and thus valid, 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
13
to future criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486.) “This test is
conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.)
In Ricardo P., supra, 7 Cal.5th 1113, the Supreme Court applied the
Lent test while assessing the validity of an electronics search condition
similar to the one imposed here. In that case, a juvenile defendant admitted
two counts of felony burglary and the juvenile court imposed probation
conditions including a prohibition against illegal drugs and alcohol, and a
condition requiring the defendant to submit to warrantless searches of his
electronic devices including his electronic accounts. (Id. at pp. 1116–1117.)
The defendant objected to the electronics search condition on grounds that it
was not reasonably related to future criminality. (Id. at p. 1117.) The court
overruled the defense objection, reasoning that “ ‘minors typically will brag
about their marijuana usage or drug usage, particularly about their
marijuana usage, by posting on the Internet, showing pictures of themselves
with paraphernalia, or smoking marijuana. It’s a very important part of
being able to monitor drug usage and particularly marijuana usage.’ ” (Ibid.)
On appeal, the Supreme Court ruled the electronics search condition
was not reasonably related to future criminality because “the burden it
impose[d] on [the juvenile defendant’s] privacy [was] substantially
disproportionate to the countervailing interests of furthering his
rehabilitation and protecting society.” (Ricardo P., supra, 7 Cal.5th at
p. 1119.) The Court determined the “sweeping” condition imposed a “very
heavy burden on [the] privacy” interests of the juvenile defendant, requiring
him to provide officers “full access, day or night, not only to his social media
accounts but also to the contents of his e-mails, text messages, and search
14
histories, all photographs and videos stored on his devices, as well as any
other data accessible using electronic devices.” (Id. at pp. 1123, 1124.)
According to the Court, the interests served by the condition were not
sufficiently proportionate to the heavy burden the condition imposed. The
Court noted, in particular, that “nothing in the record suggest[ed] that [the
juvenile defendant] ha[d] ever used an electronic device or social media in
connection with criminal conduct.” (Ricardo P., supra, 7 Cal.5th at p. 1122;
see also id. at p. 1119 [“there is no suggestion in the record or by the Attorney
General that [the juvenile defendant] has ever used electronic devices to
commit, plan, discuss, or even consider unlawful use or possession of drugs or
any other criminal activity”].) Further, the Court reasoned the state’s
interest in facilitating supervision of the juvenile defendant did not alone
justify the electronics search condition, given the disproportionately
“burdensome and intrusive” nature of the condition. (Id. at p. 1126.)
Because the electronics search condition was not reasonably related to
future criminality, and the remainder of the Lent test was presumed to be
satisfied, the Supreme Court struck the electronics search condition.
(Ricardo P., supra, 7 Cal.5th at p. 1129.)
3
Here, the trial court imposed an electronics search condition similar to
the one at issue in Ricardo P. At sentencing, the court stated it was a “close”
call, but nonetheless imposed the condition and opined that “people who are
involved with gang activity seem to have a great desire to put this stuff on
electronic media.” Defense counsel objected based on Lent and the court
overruled the objection, reasoning that “many gang-involved people post stuff
on social media.”
15
On appeal, the defendant contends the electronics search condition is
impermissible because it satisfies all three prongs of the Lent test. The
People concede the electronics search condition satisfies the first two prongs,
but claim it does not satisfy the third prong. Therefore, the validity of the
condition turns on the third prong—i.e., whether the condition is reasonably
related to future criminality.
We conclude the electronics search condition is not reasonably related
to future criminality and, therefore, it is invalid under the Lent test. Like the
probation condition in Ricardo P., the electronics search condition at issue
here imposes a weighty burden on privacy interests. It requires the
defendant to submit his cell phones and electronic devices to warrantless
searches, with or without probable cause, at any time, whenever requested by
a probation officer or law enforcement officer. Such a condition “significantly
burdens privacy interests.” (Ricardo P., supra, 7 Cal.5th at p. 1123; accord
Riley v. California (2014) 573 U.S. 373, 393, 394 [the “immense storage
capacity” of cell phones means they “collect[] in one place many distinct types
of information—an address, a note, a prescription, a bank statement, a
video—that reveal much more in combination than any isolated record”].)
These heavy burdens are substantially disproportionate to any
legitimate interest the state may have in supervising the defendant or
ensuring he remains free of gang involvement. There is no indication in the
record or the People’s brief that the defendant used a cell phone or electronic
device in connection with the firearm and ammunition offenses to which he
pleaded guilty, or in connection with any other criminal conduct for that
matter. Nor is there any indication in the record or the People’s brief that
the defendant has ever used a cell phone or electronic device in furtherance of
any gang-related activities. On this bare record, the trial court’s general
16
observation that some gang members “post stuff on social media” is plainly
insufficient to justify the heavy burden the electronics search condition
imposes on the defendant’s privacy interests.
Because there is no evidence supporting a finding that the electronics
search condition is reasonably related to the defendant’s future criminality, it
is invalid under Lent, supra, 15 Cal.3d 481, and Ricardo P., supra, 7 Cal.5th
1113, and must be stricken. Given this determination, it is unnecessary for
us to consider whether the electronics search condition is unconstitutionally
overbroad.
D
Assembly Bill No. 1869
At the time of sentencing, Government Code section 29550.1,
subdivision (a) required courts to order any convicted person who was
arrested by a local arresting agency to pay a criminal justice administration
fee as a condition of probation. (Former Gov. Code, § 29550.1, subd. (a).)
Pursuant to this statutory mandate, the trial court ordered the defendant to
pay a criminal justice administration fee of $154.
While the appeal was pending, the Legislature enacted Assembly Bill
No. 1869. The stated purpose of the law was to “eliminate the range of
administrative fees that agencies and courts are authorized to impose to fund
elements of the criminal legal system and to eliminate all outstanding debt
incurred as a result of the imposition of administrative fees.” (Stats. 2020,
ch. 92, § 2; see id., § 1(h) [“Criminal justice fees have no formal punitive or
public safety function. Instead, they undermine public safety because the
debt they cause can limit access to employment, housing, education, and
public benefits, which creates additional barriers to successful reentry.”].)
17
Assembly Bill No. 1869 repealed the statute mandating imposition of a
criminal justice administration fee as of July 1, 2021. (Stats. 2020, ch. 92,
§ 24 [Gov. Code, § 29550.1 “shall remain in effect only until July 1, 2021, and
as of that date is repealed, unless a later enacted statute that is enacted
before July 1, 2021, deletes or extends that date.”].) Additionally, it added
section 6111 to the Government Code, effective July 1, 2021. (Id., § 11.)
Section 6111 states: “On and after July 1, 2021, the unpaid balance of any
court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section
29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on
June 30, 2021, is unenforceable and uncollectible and any portion of a
judgment imposing those costs shall be vacated.” (Gov. Code, § 6111,
subd. (a).)
After briefing was complete, the defendant requested permission to file
a supplemental brief concerning Assembly Bill No. 1869. We granted the
request and permitted both parties to file supplemental briefs regarding the
application of Assembly Bill No. 1869.
In his supplemental brief, the defendant argues Assembly Bill No. 1869
is an ameliorative change to the criminal law, which is subject to the Estrada
presumption of retroactivity. He asserts the law applies retroactively to his
case and, therefore, we should strike the $154 criminal justice administration
fee in its entirety.
We decline the defendant’s request to strike the criminal justice
administration fee in whole. As this court recently determined, Government
Code “section 6111 indicates a legislative intent to extend the ameliorative
changes in the law regarding the imposition of administrative fees to
individuals serving both final and nonfinal sentences, but only to the extent of
relieving those individuals of the burden of any debt that remains unpaid on
18
and after July 1, 2021.” (People v. Lopez-Vinck (2021) 68 Cal.App.5th 945,
953, (Lopez-Vinck) italics added.) “By specifying the precise date on which
the costs that have been imposed on defendants … become unenforceable and
uncollectible, the Legislature made clear that any amounts paid prior to that
time need not be vacated, regardless of whether the sentence of the person on
whom the costs were imposed is final.” (Ibid.) Thus, it would be improper for
us to strike the criminal justice administration fee in full. (Ibid.)
On the other hand, Government Code section 6111 requires us to
vacate any portion of a judgment imposing a criminal justice administration
fee that was unpaid by July 1, 2021. (Gov. Code, § 6111, subd. (a); Lopez-
Vinck, supra, 68 Cal.App.5th at p. 953.) Accordingly, we vacate the portion of
the defendant’s judgment concerning the $154 criminal justice
administration fee, but only to the extent the criminal justice administration
fee was unpaid as of July 1, 2021.
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IV
DISPOSITION
The judgment is reversed to the extent it imposes: (1) a term of
probation exceeding two years; and (2) a probation condition requiring the
defendant to submit to warrantless searches of his cell phones and electronic
devices. The portion of the judgment imposing a criminal justice
administration fee pursuant to Government Code section 29550.1 is vacated
to the extent the fee was unpaid on July 1, 2021. In all other respects, the
judgment is affirmed. The matter is remanded for resentencing consistent
with the legislative amendments to Penal Code section 1203.1 and
Government Code sections 6111 and 29550.1.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
AARON, J.
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