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Filed 2/23/21 P. v. Wright CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v. TRACI RENAE WRIGHT,

Defendant and Appellant. C087233 (Super. Ct. No. 17CF06642)

Defendant appeals a judgment entered following her guilty plea to grand theft (Pen. Code, § 4 87, subd. (a) ) 1 and sentence of three years in county prison with 731 days suspended for mandatory supervision ( § 1170, subd. (h)(5))

. She argues: (1) two special
conditions of mandatory supervision are unconstitutionally overbroad such that they must be modified or stricken and (2) certain fees imposed at sentencing violate due process in

1 Undesignated statutory references are to the Penal Code.2

light of People v. Dueñas (2019) 30 Cal. App.5th 1157 ( Dueñas ) requiring remand for an ability to pay hearing. W hile defendant has forfeited any as

- applied constituti onal challenge because s he did not object to the se special condition s at sentencing , we conclude the two special condi tions are not facially overbroad. As to the mandatory fines, we disagree with Dueñas and conclude no ability to pay hearing was required prior to imposing th e se fees. The judgment is affirm ed

.

FACTUAL AND PROCEDURAL HISTORY Defendant pleaded guilty to grand theft in excess of $950 ( § 487, subd. (a); count
2 ) in exchange for dismissal of the remaining burglary count ( § 459; count 1 ) and
dis missal with a Harvey 2 waiver of at least one o ther misdemeanor case. The parties stipulated the factual basis for her pl ea would be represented in the probation report, which relayed that defendant was found in possession of several items belonging to her former roommate, who had been arrested a few days before

. Defendant took this property while the former roommate was incarcerated and after defendant’s permission to
be at the former roommate’ s house was revoked. In the dismissed misdeme anor case, defendant was charged with possession drug paraphernalia (Health & Saf. Code, § 11364) and petty theft of lost property ( § 485) based upon her taking of a wallet left in a dressing room and possession of a methamphetamine pipe and 13 syringes.
D efendant was sentenced on May 10, 2018 . The court denied defendant’s request for probation finding she did not meet the required unusual case criteria for eligibility

. Instead, the court sentenced defendant to serve three years in county prison with 731 days suspended for mandatory supervision ( § 1170, subd. (h)(5)). Included within the terms of mandatory supervision were two challenged special conditions requiring defendant waive her right to confidentiality for certain records, which we will discuss in greater detail ,

2 People v. Harvey (1979) 25 Cal. 3d 754

.3

post

. The court further ordered defendant participate in drug and alcohol counseling, as well as testing. The court also imposed a $300 restitution fine ( § 1202.4, subd. (b)) , a $300 suspended mandatory supervision revocation fine ( § 1202.45 , subd. (b ) ), a $40 court operations assessment fee ( § 1465.8) , and a $30 conviction assessment fee (Gov. Code, § 70373)

. Finally, the court imposed a $39 theft fine (§ 12 0 2.5), but did not require that defendant pay the cost of her presentence inv estigation report and found she was unable to reimburse the county for her defense

. Defendant timely appealed

. DISCUSSION
I The Special Conditions of Mandatory Supervision
Defendant challenges two special conditions of mandatory supervision on the grounds that they are overbroad under the Fourteenth Amendment to the federal
C onstitution

. Defendant did not object to these conditions in the trial court, and thus, her arguments must be limited to a facial challenge of the conditions. ( In re Sheena K

. (2007) 40 Cal. 4th 875, 881, 888

- 889. ) Accordingly, t hese conditions are facially
overbroad only if they could never be constitutionally applied to a ny person on mandatory supervision. ( See i d . at pp. 885

- 889 [forfeiture for nonobjection does not apply if the constitutional challenge presents a pure question of law that may be resolved without resorting to the appellate record]

. ) Having completed our de novo review for facial overbreadth ( People v. Stapleton (2017) 9 Cal. App.5th 989, 993), w e reject
defend ant’s challenge. Mandatory supervision is “ akin to a state prison commitment, ” and more similar to parole than to probation. ( People v. Fandinola (2013) 221 Cal. App.4th 1415, 1422

- 1423.) Accordingly, courts review the terms of supervised release “ under s tandards

‘ parallel to those applied to terms of parole. ’ ” ( People v. Malago (2017) 8 Cal. App.5th 1301, 1306.)4

“ ‘ In California, parolee status carries distinct disadvantages when compared to the
situation of the law

- abiding citizen. Even when released f rom actual confinement, a parolee is still constructively a prisoner subject to correctional authorities. [Citations.] The United States Supreme Court has characterized parole as “ an established variation on imprisonment ” and a parolee as possessing “ not

. . . the absolute liberty to which every citizen is entitled, but only

. . . the conditional liberty properly dependent on observance of special parole restrictions. ” [Citations.] Our own Supreme Court holds a like opinion:

“ Although a parolee is no longer confined in prison his custody status is one which requires

. . . restrictions which may not be imposed on members of the public generally. ” [Citations.] ’ [Citation.] ” ( People v. Martinez (2014) 226 Cal. App.4th 759, 763 .) The fundamental goals of parole are “ ‘to help individuals reintegrate into society as constructive individuals’ [citation], ‘ “to end criminal careers through the rehabilitation of those convicted of crime” ’ [citation] and to [help them] become self

- supporting.” ( In
re Stevens (2004) 119 Cal. App.4th 1228, 1233.) In furtherance of these goals, “[t]he state may impose any condition reasonably related to parole supervision.” ( Ibid. ) These conditions “must be reasonably related to the compelling state interest of fostering a law

abiding lifestyle in the parolee.” ( Id . at p. 1234.) “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.” ( In re
E.O . (2010) 188 Cal. App.4th 1149, 1153.)
Her e, d efendant challenges s pecial c ondition Nos. 40 and 56. These conditions

state: “40. Within 72 hours of being granted probation or your release from jail (either time served or when placed on a jail program i.e. SWAP, ESP) report to the Butte County Be havioral Health Department and cooperate in any psychiatric or5

psychological treatment, testing, or counseling which may be suggested or recommended by Butte County Behavioral Health Department . You must authorize the release of any type of reports or rec ords (written or oral) from any psychiatrist, physician, psychologist, or counselor to the Court, Probation Department, and District Attorney’s Office. Do not terminate your participation in counseling or treatment, unless approved by your Probation Offic er and Butte County Behavioral Health Department staff. [¶]

. . . [¶] “56. Waive any confidentiality regarding your participation in ordered program(s) so that information regarding your performance and progress of any court ordered

treatment or medical program(s) can be provided to the Court, your attorney, the District Attorney and any treatment or healthcare providers. Sign any documents necessary to waive confidentiality; it being understood, however, that by signing your name below,
you are authorizing your treatment provider or program staff to release information as may be requested by the Court or the Probation Department.” Defendant objects to the temporal breadth of the release in s pecial c ondition No.
40 and that the information to be r eleased is to be provided to the d istrict a ttorney and also p rospective treatment providers as set forth in s pecial c ondition No s

. 40 and 56 . We
are unconvinced.
T hese conditions are not overbroad in reference to any person placed on mandatory supervision. On the contrary, they are appropriate for this particular defendant, who suffers from untreated borderline personality disorder, posttraumatic stress disorder, a nd drug

- induced schizoaffective disorder , and has unchallenged mandatory conditions requiring her t o participate in mental health assessments and associated counseling, refrain from using drugs or alcohol , submit to drug testing, enter and complete a resid ential drug treatment program, and refrain from living in an place
that has not been approved as a “clean and sober living environment.” Thus, clearly it6

cannot be said the conditions would not appropriate for any individual subject to mandatory supervision. Further, a ssuming without deciding that a n individual on mandatory supervision
has a federal constitutional right to privacy in these records ( see People v. Garcia (2017)
2 Cal. 5th 792, 809

- 810 ( Garcia ) ; People v. Gonzale s (2013) 56 Cal. 4th 353, 385 ( Gonzales ) ), access to that person’s complete health history would be a n essential part of determining the appropriateness of any treatment while on mandatory supervision. This includes not only what treatment to se ek, but whether an individual treatment provider or program is matched to meet those treatment needs. In order to assess that match, a ccess to these records by all parties involved is a practical necessity. Finally, a ccess to these records is similarly required in order to weigh an individual on mandatory supervision ’s compliance with and progress through any mandated treatment. (See In re Christopher M. (2005) 127 Cal. App.4th 684, 695 [ upholding condition requiring disclosure of all recor ds concerning court

- ordered medical and psychological treatment to probation officer and court ], disapproved on other grounds in Gonzales , supra , 56 Cal.4th at p. 375, fn. 6. ; Id. at p p

. 357, 388 [ no violation of defendant’s assumed federal right to privac y resulting from government introduction of psychotherapist information at sexually violent predator proceeding ]; Garcia , supra , 2 Cal.5th at p. 811 [ upholding condition allowing essential communication of psychotherapist , probation officer, and polygraph examiner]

. ) T herefore , defendant has
not shown the disclosure required by s pecial c ondition No s . 40 and 56 “ [are] not ‘ tailored carefully and reasonably related to the compelling state interest in reformation and
rehabilitation. ’ [Citation s .] ” ( In re E.O. , supra , 188 Cal. App.4th at p. 1153

. )
I I The Requested Ability to Pay Hearing
D efendant challenges imposition of the $30 conviction assessment fee (Gov. Code, § 70373) and the $40 court operations assessment fee (§ 1465.8) without an ability7

to pay h earing and requests remand for such a hearing in light of Dueñas , supra , 30 Cal. App.5th 1157. In the event this court finds this argument was not forfeited, t he People concur. We agree with defendant that the Dueñas claim is not forfeited , as an objection based on the due process argument accepted in Dueñas would be “ based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, ” and thus the failure to objec t on that basis doe s not result in forfeiture. ( People v. Castellano (2019) 33 Cal. App.5th 485, 489; contra , People v. Bipialaka (2019) 34 Cal. App.5th 455, 464; People v. Frandsen (2019) 33 Cal. App.5th 1126, 1154

- 1155

. ) However, we cannot accept the Peop le’s concession as we shall explain.
The Dueñas court held that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fi nes unless it ascertains by hearing the
defendant ’ s ability to pay those assessments and fines. ( Dueñas, supra , 30 Cal. App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addr essing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant ’ s indigence and inability to pay a fine or fee. ( Id. at pp. 1 165

- 1166, 1168.) The court also concluded that imposing costs on indigent defendants “ blamelessly ” unable to pay them transformed a “ funding mechanism for the courts into additional punishment. ” ( Id . at p. 1168.) People v. Hicks (2019) 40 Cal. App.5th 320, review granted November 26, 2019, S258946 ( Hicks ) rejected the reasoning of Dueñas , under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant ’ s access t o the courts and does not interfere with a defendant ’ s right to present a defense or challenge a trial court ’ s rulings on appeal. ( Id . at p. 326.) Further, imposition of fees, without more, does not result in incarceration for nonpayment8

of fines and fee s due to indigence; thus, it does not infringe on a fundamental liberty
interest. ( Ibid .)
Our Supreme Court is now poised to resolve this question , having granted review
in People v. Kopp (2019) 38 Cal. App.5th 47 , review granted November 13, 2019,
S257844 , which agreed with the court ’ s conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant ’ s ability to pay before it imposes court facilities and court operations assessment fees under sec tion
1465.8 and Government Code section 70373 . ( Kopp, at pp. 95

- 96.) In the meantime, w e join several other courts in concluding that the principles of due process do not require determination of a defendant’s present ability to pay before imposing the f

ees at issue in Dueñas and in this proceeding. ( People v. Kingston (2019)
41 Cal. App.5th 272, 279; Hicks , supra , 40 Cal.App.5th at p. 329 , review granted ; People
v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant’s Dueñas challenge

. DISPOSITION The judgment is affirmed.

/s/ HOCH , J.

We concur:

/s/ HULL, Acting P. J.

/s/ DUARTE , J.