People v. Awwad

THE PEOPLE, Plaintiff and Respondent, v. VIVIAN MARIE AWWAD, Defendant and Appellant.

A162622

California Court of Appeals, First District, Second Division

February 23, 2022

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 20CR002854

MAYFIELD, J. ^[*]

Vivian Marie Awwad appeals from convictions of possession for sale of methamphetamine and fraudulent possession of personal information. She contends the trial court improperly imposed a probation condition requiring her to submit to warrantless searches of her electronic devices. She also maintains she received ineffective assistance of counsel due to her attorney's failure to object to the fees, fines, and assessments imposed by the court, and failure to request an ability to pay hearing. In supplemental briefing, she further contends two fees imposed under former Penal Code^[1] section 1203.1ab must be vacated pursuant to recently effective legislation. We conclude the challenged probation condition must be stricken and any balance owed on the section 1203.1ab fees must be vacated and the probation conditions requiring payment of such fees must be stricken.

BACKGROUND

On February 16, 2020, Awwad was stopped by a police officer who observed the vehicle she was driving lacked a front license plate. Her passenger had a probation search condition and a felony warrant. A search of the passenger compartment revealed a glass methamphetamine pipe, a digital scale, 7.6 ounces of methamphetamine in a bag containing indicia belonging to Awwad, multiple wallets with credit cards belonging to different people, mail copies of social security cards, drivers' licenses, credit card statements temporary checks and identification cards that did not belong to Awwad, and at least 50 keys on multiple key rings that appeared to belong to USPS mailboxes. The officer also found a driver's license, later determined to be fraudulent, with Awwad's picture, but a different name. Awwad spontaneously told the officer that she had been involved in identity theft and told a female officer she had 0.5 grams of methamphetamine in her bra. She denied the large amount of methamphetamine was hers.

Awwad was charged by a complaint filed on February 19, 2020, with three felonies-possession for sale of methamphetamine (Health & Saf. Code, § 11378), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and forgery (§ 470, subd. (b))-and six misdemeanors- three counts of fraudulent possession of personal information (§ 530.5, subd. (c)(1)), and one count each of receiving stolen property (§ 496, subd. (a)), possession of burglary tools (§ 466), and possession of an injection/ingestion device (Health & Saf. Code, § 11364, subd. (a)). It was further alleged that Awwad had previously been convicted of possession for sale of a controlled substance (Health & Saf. Code, § 11378), for which she received probation.

On January 19, 2021, Awwad entered a plea of no contest to counts 1 and 5, felony possession for sale of methamphetamine and one count of misdemeanor fraudulent possession of personal information, with all other charges and special allegations dismissed. The negotiated disposition provided for Awwad to be placed on two years felony probation with no state prison and a four-month ceiling on jail time as long as she did not violate probation. The terms of the plea deal included that Awwad would be subject to a "four-way search clause" (vehicle, residence, person, property) and would be ordered to pay a restitution fund fine.

On April 14, 2021, Awwad was placed on probation for two years in accordance with the negotiated plea agreement, except that the court added-over defense objection-an electronic search condition requiring her to "provide all passwords upon request." The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)(1)), drug program fee of $100 (Health & Saf. Code, § 11372.7), criminal lab analysis fee of $50 (Health & Saf. Code, § 11372.5), court operations assessment of $80 (§ 1465.8, subd. (a)(1)), and criminal conviction assessment of $60 (Gov. Code, § 70373). The court also ordered Awwad to pay a drug test fee of $7.17 and drug lab analysis fee of $21.51 (former § 1203.lab). A $300 probation revocation restitution fine was stayed pending successful completion of probation.

This appeal followed.

DISCUSSION

I.

Awwad contends the electronic search condition was invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. We review the former claim for abuse of discretion (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.)) and the latter de novo (In re J.B. (2015) 242 Cal.App.4th 749, 754).

" '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, 15 Cal.3d at p. 486, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Lent contemplates a case-by-case assessment taking into account the relationship between the offender's crime, the terms of the challenged condition, and its relation to the probationer's future criminality. A condition will not be invalidated as unreasonable unless all three of Lent's criteria are satisfied. (People v. Olguin (2008) 45 Cal.4th 375, 379.)" (People v. Bryant (2021) 11 Cal.5th 976, 983-984 (Bryant).)

When the trial court stated its intention to impose the electronic search because Awwad's conviction was for fraudulent possession of personal identifying information of another person, defense counsel objected that the plea agreement called for only a "four-way" search and that the condition was not related to the offense, which was based on items found in her possession, with no indication she used any electronic devices. The prosecutor stated that electronic devices were used, pointing to the fraudulent driver's license bearing Awwad's photograph, but someone else's name. The trial court responded, "During the stop, the following was found, besides the methamphetamine and scales: Multiple wallets, different credit cards, checks, ID cards, credit card statements, driver's license, social security cards belonging to different individuals. [¶] Those are often used through the Internet to purchase items. The court believes it's appropriate and reasonably related to the overall offense of a 530.5(c)(1), and I do intend to impose it."

The Attorney General's brief on this appeal does not argue the electronic search condition is reasonably related to Awwad's offense under the second prong of the Lent test. The first prong of the test is obviously satisfied, as the electronic search condition relates to conduct that is not in itself criminal. Accordingly, the only issue presented is whether the condition is valid because it is reasonably related to future criminality.

Our Supreme Court summarized the requirements of this third prong of the test in Bryant, supra, 11 Cal.5th at pages 984-985:" 'Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.' (Ricardo P., supra, 7 Cal.5th at p. 1121.) Specifically, a probation condition cannot be justified solely on the basis that it enhances the effective supervision of the probationer without regard for the burden it places on the probationer. (Id. at pp. 1122, 1125.) Rather, the 'requirement that a probation condition must be" 'reasonably related to future criminality'" contemplates a degree of proportionality' between the burden imposed by the condition and the legitimate interests the condition serves. (Id. at p. 1122.) We concluded that '[s]uch proportionality [was] lacking' based on the record. (Ibid.) Ricardo P.'s electronics search condition 'impose[d] a very heavy burden on privacy with a very limited justification.' (Id. at p. 1124.) '[N]othing in the record suggest[ed] that Ricardo ha[d] ever used an electronic device or social media in connection with criminal conduct.' (Id. at p. 1122.) Because the burden imposed on Ricardo's privacy was 'substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society' (id. at p. 1119), and because the first two Lent criteria were also satisfied, the condition was held invalid ([Ricardo P., ] at p. 1124). We cautioned, however, that '[o]ur holding does not categorically invalidate electronics search conditions. In certain cases, the [defendant's] offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the [defendant] from future criminality.' (Id. at pp. 1128- 1129.)" (Bryant, at pp. 984-985.)

Nothing in the record indicates that Awwad's current or past offenses involved use of electronic devices. The trial court imposed the electronic search condition not because of any conduct specific to Awwad, but because, in the court's view, the nature of her offenses made it likely that she had or would use stolen personal identifying information online. Logical as this assumption may be, it is speculative in this case. For an electronic search condition to survive the third prong of the Lent analysis, "there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history-an actual connection apparent in the evidence, not one that is just abstract or hypothetical. (Ricardo P., [supra, 7 Cal.5th] at pp 1120-1121.)" (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.) Electronic search...