Filed 9/16/20 P. v. Hartwell CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C089461
Plaintiff and Respondent, (Super. Ct. No. 19F767,
18F4334)
v.
RANDY SCOTT HARTWELL,
Defendant and Appellant.
Defendant Randy Scott Hartwell appeals a judgment following his no contest
pleas to driving or taking a vehicle without consent in case No. 19F767 and burglary and
driving on a suspended license (Veh. Code, § 14601.2) in case No. 18F4334, and grant of
formal probation for a term of three years. Defendant challenges the trial court’s
imposition of certain fines and fees in light of People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas), as well as the court’s imposition of an electronics search condition
providing for warrantless search.
We will strike the search condition and otherwise affirm the judgment.
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I. BACKGROUND
The People’s complaint in case No. 18F4334 charged defendant with burglary
(Penal Code § 4591—counts 1 & 2), grand theft (§ 487, subd. (a)—count 3), and driving
on a suspended license (Veh. Code, § 14601.2, subd. (a)—count 4). It also alleged
defendant had suffered a prior strike. On July 18, 2018, defendant pled guilty to count 1
and no contest to count 4 in exchange for dismissal of the remaining counts and
enhancement allegations and a grant of felony probation. The parties stipulated the
factual basis for the plea was found in Shasta County Sheriff’s Department Report No.
1823134, which described defendant and an accomplice breaking into a home through a
glass door in order to steal food. Defendant’s sentencing in this matter trailed into 2019
because he repeatedly failed to keep his appointments to be interviewed by the probation
department for the presentencing report.
Thereafter, the People’s February 5, 2019 complaint charged defendant with
driving or taking a vehicle without consent (Veh. Code, § 10851—count 1) and receiving
a stolen vehicle (§ 496a, subd. (a)–count 2). On February 19, 2019, defendant pled no
contest to count 1 in exchange for dismissal of count two. The stipulated factual basis for
the plea was contained in Redding Police Department Report No. 19R007191. The
complaint alleged defendant took and drove a 1998 airbus without the consent of the
owner.
The trial court sentenced defendant in both matters to three years of formal
probation and 364 days in jail with credit for 96 days. Included within his conditions of
probation as they were orally imposed was a warrantless search condition that provided
in relevant part: “You are ordered to provide passwords or combinations necessary to
access any iPhone or electronic device used in the possession or sale of stolen property.”
1 Undesignated statutory references are to the Penal Code.
2
The trial court imposed for each case a $300 restitution fine (§ 1202.4), a $300
suspended probation revocation fine (§ 1202.44), a $30 criminal conviction fee (Gov.
Code, § 70373), and a $40 court operations fee (§ 1465.8). The court also imposed a
$5,704 fine for vehicle theft (Veh. Code, § 10851, subd. (a)) and related penalty
assessments, one-half of which was stayed pending successful completion of probation.
The court determined defendant did not have the ability to pay either attorney fees for the
public defender or for probation services. Finally, defendant was ordered to pay $3,695
in restitution to one victim and $15,961.64 in victim restitution to the other.
Defendant timely appealed case No. 19F767 and received a certificate of probable
cause. This court later granted defendant’s request to construe that notice of appeal to
include case No. 18F4334.
II. DISCUSSION
A. Defendant’s Ability to Pay
Defendant challenges the trial court’s imposition of two $300 restitution fines
(§ 1202.4), two $30 criminal conviction fees (Gov. Code, § 70373), and two $40 court
operations fees (§ 1465.8), arguing their imposition violated the due process clause,
prohibition against excessive fines, and equal protection. We concur with the People that
defendant’s failure to object has forfeited his challenge. We also find defendant has
failed to show his counsel rendered ineffective assistance by not objecting.
The decision in Dueñas issued January 8, 2019. (Dueñas, supra, 30 Cal.App.5th
1157.) Defendant was sentenced March 5, 2019. Thus, defendant’s failure to object on
the basis of Dueñas forfeited this challenge. (See, e.g., People v. Avila (2009) 46 Cal.4th
680, 729 [rejecting argument that defendant was exempted from forfeiture because his
restitution fine amounted to an unauthorized sentence based upon his inability to pay].)
That defendant’s ability to pay claims are constitutional in character does not alter the
application of the forfeiture doctrine. (See People v. Trujillo (2015) 60 Cal.4th 850, 859
[constitutional exception to forfeiture rule did not apply to claim concerning failure to
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obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th
875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in
criminal proceedings by “ ‘ “failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it” ’ ”].)
Defendant argues that if these arguments were forfeited, his counsel was
ineffective for failing to object. In order to prevail on a claim of ineffective assistance,
defendant must show: (1) that “counsel’s performance was deficient, in that it fell below
an objective standard of reasonableness under prevailing professional norms,” and (2)
that he was prejudiced, “i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.)
“When examining an ineffective assistance claim, a reviewing court defers to
counsel’s reasonable tactical decisions, and there is a presumption counsel acted within
the wide range of reasonable professional assistance. It is particularly difficult to prevail
on an appellate claim of ineffective assistance.” (People v. Mai, supra, 57 Cal.4th at
p. 1009.) “ ‘ “[I]f the record on appeal sheds no light on why counsel acted or failed to
act in the manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation,” the
claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such
a case is more appropriately decided in a habeas corpus proceeding.” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
We find defendant has not met his burden of demonstrating there is no
satisfactory explanation for counsel’s failure to object, nor that he was prejudiced. While
he did not have a regular paycheck, he had been employed by a landscaping company for
four years and was working on a woodcutting project at the time of the presentence
report. His expenses were minimal, as he lived with his cousin, who paid for his housing
and food. Further, defendant informed probation, “ ‘there’s not a lot of money right now,
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but it’s coming.’ ” Thus, we cannot say there is no reasonable explanation for
defendant’s failure to object, and even if he had, it is not reasonably probable that the
court would have stayed these fines and fees.2
B. The Electronics Search Condition
Defendant requests that we strike the electronics search condition because it meets
the requirements of People v. Lent (1975) 15 Cal.3d 481 (Lent) for invalidating a
probation condition, and alternatively, because it is constitutionally overbroad.
Recognizing that his counsel did not object to this condition in the trial court, he argues
ineffective assistance of counsel in the alternative. Due to the alternative claim and also
in the interests of justice and judicial economy, we reach the merits of the challenge to
the search condition and strike the condition as unreasonable and unsupported by the
record.3
We begin by noting the discrepancy between the trial court’s oral imposition of
the challenged search term and written materials issued after sentencing. As set forth
above, the oral pronouncement required only that defendant “provide passwords or
combinations necessary to access any iPhone or electronic device used in the possession
or sale of stolen property.” The written materials require defendant to “submit his
person, property, vehicle and residence to warrantless search at any time, with or without
2 That the court found defendant unable to pay for the costs of his attorney and for
probation supervision does not establish he was unable to pay the $740 in fines and fees
challenged here. Nor do the court’s remarks regarding the astronomical nature of the
fines and fees associated with the offense of driving on a suspended license. Those
statements were made in the context of defendant’s plea hearing wherein the court
warned defendant to do what was necessary to get his license back.
3 See People v. Norwood (1972) 26 Cal.App.3d 148, 152 [appellate courts may address
issues not before raised if required to do justice]; People v. Alford (2010) 180
Cal.App.4th 1463, 1473 [correcting sentence rather than remanding where “the futility
and expense of such a course militates against it”].)
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probable cause, by any peace officer or probation officer and that he provide any
password or combination necessary to access any electronic device or service during the
warrantless search process.” As the People note in their briefing, the oral pronouncement
controls, an observation with which defendant appears to agree, and one that is supported
by law. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) We therefore
discuss only the oral pronouncement, requiring passwords (and presumably access) to
electronic devices, but apparently only those used in connection with stolen property.
“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. ([]§ 1203 et. seq.)” (Lent, supra, 15 Cal.3d at p. 486.) Consequently,
imposition of a probation condition is reviewed for abuse of discretion. (People v.
Olguin (2008) 45 Cal.4th 375, 379.) “A condition of probation will not be held invalid
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 to future criminality . . . .’ ” (Lent, supra, at p. 486.) The
Lent test “is conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term. [Citations.] As such, 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.” (Olguin, supra, at pp. 379-380.)
Here, the record contains no evidence suggesting that defendant used an electronic
device in the commission of any of his crimes, or even that he used or possessed any
electronic devices at any time, including at the time the condition was imposed. Because
the challenged electronics search condition neither relates to a crime for which defendant
was convicted, nor to conduct which is itself criminal, only the third Lent factor is
implicated in this case, whether the challenged electronics search condition was
“ ‘reasonably related to future criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486; see also
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In re Ricardo P. (2019) 7 Cal.5th 1113, 1123.) We conclude it was not. The imposition
of the challenged condition was not warranted in this case, and phrased in a manner that
would seem to render its enforcement unworkable. The condition as phrased ordered
disclosure of “passwords or combinations” as deemed necessary by the probation officer
“to access any iPhone or electronic device,” but there is no evidence in the record that
defendant possessed any such devices. Further, the devices were limited within the same
condition to only those “used in the possession or sale of stolen property.” This
additional condition strikes us as potentially circular. There is no indication how the
probation officer could limit a search to devices “used in the possession or sale of stolen
property” without first searching the devices to see if they were used in crimes that would
allow them to be searched without a warrant.
Although it is true, as the People note, that “a probation condition does not have to
have a specific connection to a defendant’s crime of conviction to be reasonably related
to preventing future criminality,” we do not agree that the relative narrowness of the
condition at issue here distinguishes this case from In re Ricardo P. As we have
described, the People’s assertion that the “trial court was aware that appellant had
committed various crimes involving stolen property, and the imposed electronic search
condition was narrowly tailored accordingly” is not supported by the record. The
condition included the search of an iPhone or electronic device without any evidence of
their existence, let alone their use in the manner set forth within that same condition.
While there may be circumstances where a defendant’s personal history could justify an
electronics search condition as a means of deterring future criminality (In re Ricardo P.,
supra, 7 Cal.5th at pp. 1128-1129), here, there is no evidence that defendant possessed an
electronic device or utilized one in any way, much less in a manner that would justify
imposition of this search condition. Accordingly, the electronics search provision cannot
withstand scrutiny under Lent and must be stricken. (Id. at p. 1129.)
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III. DISPOSITION
For the reasons explained herein, we strike the electronics search provision, in all
of its forms. The judgment is otherwise affirmed.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
DUARTE, J.
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