People v. Hebert CA4/1

Filed 10/6/21 P. v. Hebert 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078750
Plaintiff and Respondent,
v. (Super. Ct. No. SCN415482)
THOMAS J. HEBERT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sim von Kalinowski, Judge. Affirmed as modified; remanded with directions.
Laura Vavakin, 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, Robin
Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and
Respondent.
In 2020, Thomas Hebert was arrested for transportation and possession
of methamphetamine and fentanyl for sale. He was released on bail. While
on bail, Hebert committed two more felonies. In this appeal, he challenges
only the sentence imposed on the possession for sale charge. Specifically, he
challenges an electronic search condition and various fines. The People agree
the fines have to be corrected but contend the search condition is valid on this
record.
We will find Hebert’s challenge to the search condition, which was
raised in the trial court, is not meritorious and that his newly raised claim
that the condition is overbroad has been forfeited by his failure to object on
that ground in the trial court. We will affirm the grant of probation but
remand to permit the trial court to correct those fines affected by Assembly
Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill 1869).
FACTUAL AND PROCEDURAL BACKGROUND
This appeal is from a guilty plea. We will utilize the testimony from
the preliminary hearing as well as the summary of facts from the probation
report to briefly describe the circumstances of the underlying crimes.
Responding to an emergency call on June 6, 2020, San Diego Sheriff’s
deputies found a woman lying on the ground. She was crying and bleeding.
The woman claimed that she got into an argument with Hebert, and Hebert
hit her on the head with a skateboard and then cut her with a knife. The
woman described Hebert and was taken to the hospital for evaluation. At
that time, the deputies could not locate Hebert.
On July 13, 2020, sheriff’s deputies received information that Hebert
was at Valley View Casino. Deputies arrived at the casino, found Hebert
playing slot machines inside the casino, and arrested him. Following his
arrest, deputies searched Hebert and his vehicle. They recovered multiple
different controlled substances (including fentanyl, methamphetamine, and
heroin) and numerous other items related to the sale of narcotics. At that
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time, deputies also recovered Hebert’s cell phone from his person and a hard
drive from inside his vehicle.
Hebert entered into a plea agreement in which he resolved this case
and two other cases that are not the subject of this appeal. In this case,
Hebert pled guilty to possession of fentanyl for sale (Health and Saf. Code,
§ 11351). The remaining charges and allegations in this case were dismissed.
The parties agreed to local custody as a condition of probation. Hebert
agreed to a Harvey1 waiver, allowing the court to consider dismissed charges
at sentencing. He also pled guilty to two felony charges, which were
committed, in separate cases, while this case was pending.2 Hebert was
sentenced to local prison for a term of five years eight months. The execution
of sentence was suspended, and Hebert was granted probation, subject to 365
days in local custody and various other conditions.
Hebert filed a timely notice of appeal.
DISCUSSION
I
THE ELECTRONIC SEARCH CONDITION
A. Hebert’s Contentions
Hebert contends the trial court erred when it imposed, as a condition of
probation, a requirement that he consent to warrantless searches of his
computer and recordable media devices. He asserts this electronic search
condition is unconstitutionally overbroad and that the condition is
1 People v. Harvey (1979) 25 Cal.3d 754.
2 In San Diego Superior Court case No. SCN420681, Hebert pled guilty
to unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)). In
San Diego Superior Court case No. SCS312647, he pled guilty to assault with
force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)).
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unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). The People
counter that Hebert forfeited his overbreadth challenge to the condition
because he did not object below. In addition, the People argue the electronic
search condition satisfies the requirements of Lent because it is reasonably
related to both Hebert’s underlying criminal conduct and the prevention of
future criminal conduct. The People have the better arguments.
B. Background
Before the grant of probation in this case, Hebert had been granted
summary probation six times and formal probation an additional three times.
In all prior attempts at probation, Hebert was unsuccessful, and probation
was ultimately terminated. During every previous probation term, Hebert
sustained multiple probation violations, revocations, and failures to appear.
Additionally, he consistently committed new crimes while on probation. As
part of the plea agreement here, Hebert entered a Harvey waiver that
provided as follows: “The sentencing judge may consider my prior criminal
history and the entire factual background of the case, including any unfiled,
dismissed or stricken charges or allegations or cases when granting
probation, ordering restitution or imposing sentence.”
Relevant here, in 2018, while officers executed a search warrant for the
home where Hebert was living, they found a “golf ball sized chunk of heroin”
in Hebert’s bedroom. In addition, they located two cell phones, a laptop
computer, and an iPad—all also in Hebert’s bedroom. After a search warrant
was obtained for the iPad, a search revealed incoming and outgoing Facebook
Messenger messages indicating Hebert was involved in the possession and
sale of narcotics.
Here, the probation officer recommended imposition of a “Fourth
Waiver” “to properly supervise [Hebert] and ensure his compliance on
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probation.” Paragraph 6(n) of the order granting probation provides that
Hebert shall, “[s]ubmit person, vehicle, residence, property, personal effects,
computers and recordable media to a search at any time with or without a
warrant, and with or without reasonable cause, when required by P.O. or law
enforcement officer.”
At the sentencing hearing, Hebert’s counsel objected to the waiver of
Hebert’s Fourth Amendment rights in paragraph 6(n), but only asking the
court to strike “computers and recordable media” under In re Ricardo P.
(2019) 7 Cal.5th 1113 (Ricardo P.). Counsel argued that portion of the
condition should be stricken because there was no logical nexus between it
and the facts of the underlying offense, noting that a cell phone or computer
was not used to commit the crime.
The prosecution argued the electronic search condition was necessary
in this matter, contending that “just because a phone wasn’t gathered and
used as evidence to support this charge . . . [does not] eliminate[ ] all nexus
between common sense of how drug deals are conducted in today’s world, and
compound that on [Hebert’s] other case, which involved fraudulent use of
personal identifying information of others, fraudulent applications to driver’s
license information.” The prosecutor further argued it was “not a leap to
think that he is using electronic means to facilitate” drug sales.
The court imposed the search condition as written, observing “in this
day and age, it is virtually impossible to believe that drugs are not sold by
anyone without the use of a cell phone.”
C. Analysis
A condition of probation or supervision will not be held invalid as
unreasonable “ ‘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,
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and (3) requires or forbids conduct which is not reasonably related to future
criminality.” ’ ” (Ricardo P., supra, 7 Cal.5th at p. 1118, quoting Lent, supra,
15 Cal.3d at p. 486.) All three prongs of the Lent test must be satisfied before
a reviewing court will invalidate a probation term. (Ricardo P., at p. 1118;
People v. Relkin (2016) 6 Cal.App.5th 1188, 1194.)
In the instant matter, Hebert argues the inclusion of computers and
recordable media was unreasonable because: (1) none of the criminal conduct
for which he was convicted implicated his use of electronics and (2) the court
had no reason to suspect that Hebert would use his computer or recordable
media to perpetrate criminal conduct. Put differently, Hebert maintains the
electronic search condition is neither reasonably related to the subject crime
nor future criminality. To this end, Hebert relies on Ricardo P., supra, 7
Cal.5th 1113.
In Ricardo P., a minor was placed on probation after admitting two
counts of felony burglary and the juvenile court required the minor submit to
warrantless searches of his electronic devices as a condition of probation.
(Ricardo P., supra, 7 Cal.5th at p. 1115.) Our high court concluded the
electronic search condition was invalid under the third prong of the Lent test
because the burden imposed on the juvenile probationer’s privacy was
substantially disproportionate to the interests of rehabilitation and
protecting society when there was no evidence an electronic device was
involved in the crime. (Id. at pp. 1119-1120.) The court noted there was no
suggestion in the record that the minor “ever used electronic devices to
commit, plan, discuss, or even consider unlawful use or possession of drugs or
any other criminal activity.” (Id. at p. 1119.)
The California Supreme Court explained that an appropriate probation
condition may be connected not only to the crime for which probation is
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granted, but also the probationer’s personal and criminal history.
(Ricardo P., supra, 7 Cal.5th at p. 1120.) The court reasoned “that ‘conditions
of probation aimed at rehabilitating the offender need not be so strictly tied
to the offender’s precise crime’ [citation] so long as they are ‘reasonably
directed at curbing [the defendant’s] future criminality’ [citation].” (Id. at
p. 1122.) Indeed, the court noted that “courts may properly base probation
conditions upon information in a probation report that raises concerns about
future criminality unrelated to a prior offense.” (Ibid.) Thus, Lent’s third
prong requirement that a probation condition be “ ‘ “reasonably related to
future criminality” ’ contemplates a degree of proportionality between the
burden imposed by a probation condition and the legitimate interests served
by the condition.” (Ibid.)
We conclude the electronic search condition here is valid under Lent
and Ricardo P. It is reasonably related to future criminality because it is
proportional to legitimate interests served by the condition.
According to the probation report, Hebert has a long history of drug
related offenses. In addition, he has a dismal record while on probation. He
has been granted summary probation on six occasions, and on all six
occasions he “sustained multiple revocations for his failure to abide by his
conditions of probation.” Moreover, he committed new crimes while on
summary probation in each of these six grants. Hebert has been convicted of
numerous drug related crimes, including in September 2018, where, upon
conducting a search in a house in which Hebert was staying, officers found “a
golf ball sized chunk of heroin, US currency, Xanax pills, two cellular phones,
a laptop, [and] an iPad” in Hebert’s room. When the iPad was later searched,
several Facebook messenger incoming and outgoing messages were located
indicating Hebert’s involvement in the possession and sale of narcotics.
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Therefore, this is not a case like Ricardo P., where the court noted there was
no suggestion in the record that the minor used electronic devices in any way
related to his criminal activity. (Ricardo P., supra, 7 Cal.5th at p. 1119.) To
the contrary, Hebert’s extensive criminal history includes his previous use of
computers and social media in connection with his possession and sale of
narcotics. In this instance, the trial court properly considered Hebert’s
personal and criminal history. (See id. at p. 1120.) Given his history and
Hebert’s consistent poor performance while on probation, the electronic
search condition is reasonably related to Hebert’s future criminality and
appropriately apportioned between the burden imposed and the legitimate
interests served by the condition. (See ibid.)
Having concluded that the electronic search condition is reasonable
under Lent and Ricardo P., we turn next to Hebert’s claim that the condition
is unconstitutionally overbroad. “ ‘ “The essential question in an overbreadth
challenge is the closeness of the fit between the legitimate purpose of the
restriction and the burden it imposes on the defendant’s constitutional
rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.” ’ ”
(People v. Patton (2019) 41 Cal.App.5th 934, 946.) Yet, Hebert did not raise
an overbreadth challenge to the electronic search condition below.
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 (1993) 5 Cal.4th 228, 234-235 (Welch) [extending
the forfeiture rule to a claim that probation conditions are unreasonable
when the probationer fails to object on that ground in the trial court].)
However, a defendant who did not object to a probation condition at
sentencing may raise a challenge to that condition on appeal if the
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defendant’s appellate claim “amount[s] to a ‘facial challenge,’ ” i.e., a
challenge that the “phrasing or language . . . is unconstitutionally vague and
overbroad,” and the determination whether the condition is constitutionally
defective “does not require scrutiny of individual facts and circumstances but
instead requires the review of abstract and generalized legal concepts—a
task that is well suited to the role of an appellate court.” (In re Sheena K.
(2007) 40 Cal.4th 875, 885 (Sheena K.).)
Because Hebert did not object on overbreadth grounds in the trial court
to the electronic search condition, he has forfeited any as-applied
constitutional objections on appeal to the remaining conditions. We therefore
address Hebert’s overbreadth constitutional challenge to the electronic search
condition only to the extent that it “ ‘present[s] [a] “pure question[ ] of law
that can be resolved without reference to the particular sentencing record
developed in the trial court.” ’ ” (Sheena K., supra, 40 Cal.4th at p. 889.)
Here, although Hebert claims to be making a facial constitutional challenge
of the electronic search condition, a closer reading of his argument belies this
assertion.
For example, Hebert claims the electronic search condition is overbroad
because “nothing in the record demonstrates electronic storage devices were
used in any current offense. Nor is there any evidence of any tendency for
[Hebert] to use electronic storage devices for criminal purposes.” Hebert also
insists the electronic search condition is too extensive “based on the facts of
this case.” These arguments do not present pure questions of law that we can
address despite Hebert’s failure to object below. Instead, Hebert is explicitly
referring us to the evidence in this case. As such, Hebert is not raising a
facial constitutional challenge to the electronic search condition and has
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forfeited his overbreadth argument.3 (See Sheena K, supra, 40 Cal.4th at
p. 889; Welch, supra, 5 Cal.4th at p. 230.)
II
THE IMPLEMENTATION OF CERTAIN FEES
Hebert next contends that, under Assembly Bill 1869 (2019-2020 Reg.
Sess.), we should modify the order granting probation by striking the
probation fees (Pen. Code, § 1203.1, subd. (b)), the court appointed attorney
fee (Gov. Code, §§ 27712, 27753; Pen. Code, §§ 987.4, 987.5, 987.8, 987.81),
and the criminal justice administration fee (Gov. Code, § 29550). To the
extent the trial court actually imposed these fees, the People concede they
should be stricken. In addition, Hebert argues the probation order and
minute order from the sentencing hearing do not accurately reflect the
entirety of the trial court’s pronouncement of judgment. The People agree
there is some confusion in the record regarding the pronouncement of
judgment and are amenable to the correcting the probation order to reflect
the oral pronouncement of the court.
Assembly Bill 1869 (2019-2020 Reg. Sess.) was signed into law in
September 2020 and became operative on July 1, 2021. The bill repeals the
authority to collect various fees contingent upon a criminal arrest,
prosecution, or conviction for the cost of administering the criminal justice
system. (See Stats. 2020, ch. 92, §§ 11, 62.) The bill makes the unpaid
balance of these court-imposed costs, including the fees at issue in this case,
unenforceable and uncollectible, and requires that any portion of a judgment
3 We acknowledge that Hebert claims there was “no basis for
authorizing” the electronic search condition . . . “on its face.” However,
Hebert does not sufficiently articulate this argument in his briefs. Rather, he
simply asserts that the probation condition is overbroad. He does not explain
why the electronic search condition is unconstitutionally overbroad on its
face.
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imposing such costs be vacated. (See Assembly Bill 1869; § 1465.9,
subds. (a) & (b) [operative July 1, 2021]; Gov. Code, § 6111, subds. (a) & (b)
[same].)
Specifically, as relevant to this appeal, the probation fee, the court
appointed attorney fee, and the criminal justice administration fee are now
unenforceable and uncollectable. (See Pen. Code, § 1465.9, subd. (a); Gov.
Code, § 6111, subd. (a).) The superior court appears to have explicitly waived
the probation fees and court appointed attorney fees. Yet, on the order
granting formal probation, the box for probation costs is checked, but so is the
box stating these costs were stayed. In addition, the boxes for the court
appointed attorney fees also were checked, but then they were crossed out.
As the court did not impose the probation fees or the court appointed attorney
fees, no action is needed under Assembly Bill 1869. That said, the criminal
justice fee imposed under Government Code section 29550 is no longer
enforceable or collectable. (See Gov. Code, § 6111, subd. (a).) Thus, that fee
should be stricken from the probation order.
In addition, the superior court stayed all fees pending an ability to pay
hearing. Hebert maintains the probation order and the March 24, 2021
minute order do not adequately reflect this portion of the court’s oral
pronouncement. “Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of
judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147
Cal.App.4th 380, 385.) To avoid any confusion, we direct the superior court
to ensure that the probation order accurately reflects the court’s oral
pronouncements at the sentencing hearing and is consistent with this
opinion. Such corrections include making clear that the probation fees and
court appointed attorney fees have been waived. (See People v. Mitchell
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(2001) 26 Cal.4th 181, 185 [“Courts may correct clerical errors at any time,
and appellate courts . . . that have properly assumed jurisdiction . . . [can]
[order] correction of abstracts of judgment that [do] not accurately reflect the
oral judgments of sentencing courts”].)
DISPOSITION
Any portion of the $154 criminal justice administration fee imposed
under Government Code section 29550 unpaid as of July 1, 2021 is stricken.
The matter is remanded to the superior court with directions to amend the
order granting formal probation to reflect the striking of any balance of the
fee imposed pursuant to former Government Code section 29550 that remains
unpaid as of July 1, 2021. In addition, the court is to ensure that the order
indicates that the probation fees and court appointed attorney fees have not
been imposed. Finally, the court is ordered to make sure the order granting
formal probation reflects that the remaining fees and fines have been stayed
pending an ability to pay hearing. The judgment is affirmed as modified.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
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