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Filed 3/18/21 P. v. Harris CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

CLARENCE EDWARD HARRIS,

Defendant and Appellant.

C088730

(Super. Ct. No. 17CF02288)

OPINION ON TRANSFER

Defendant Clarence Edward Harris pleaded no contest to possession of a 

controlled substance with a firearm and was placed on three years’ probation. On appeal, 

he challenges the electronics search term imposed for probation, contending the condition 

is facially overbroad. He also asserts court-imposed fines and fees should be stricken 

because he has no ability to pay them, relying on People v. Dueñas (2019) 

30 Cal.App.5th 1157 (Dueñas). In our original opinion, we rejected both contentions and 

affirmed. Thereafter, the Supreme Court granted defendant’s petition for review and 
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ultimately transferred the matter to this court with directions to vacate our prior decision 

and reconsider the cause in light of Assembly Bill No. 1950 (2019-2020 Reg. Sess.). In 

light of Assembly Bill No. 1950, we shall reverse the three-year term of probation and 

the court on remand must impose a term of probation not to exceed two years.

BACKGROUND

Narcotics investigators searched defendant, his vehicle, and a passenger during a 

traffic stop while defendant was on probation. The investigators found heroin, 

counterfeit and real cash, pills, a firearm, ammunition, and drug paraphernalia. 

Investigators also found several cell phones which were later shown to have text 

messages indicative of drug sales.

Defendant was charged with four felony counts: concealed firearm in a vehicle 

(Pen. Code, § 25400, subd. (a)(3)), possession for sale of a controlled substance (Health 

& Saf. Code, § 11351), sale/transportation/offering to sell a controlled substance (Health 

& Saf. Code, § 11352, subd. (a)), and possession of a controlled substance with a firearm 

(Health & Saf. Code, § 11370.1, subd. (a)). Defendant pleaded no contest to possession 

with a firearm and the prosecution dismissed the three remaining counts.

At sentencing, the court suspended imposition of sentence and granted three years’ 

probation. Under special conditions of probation No. 65 (Probation Condition 65), 

defendant provided consent for any law enforcement agency to seize and examine 

electronic data stored in devices owned, operated, or controlled by defendant.1 The court 

1 Probation Condition 65 stated in full: “The defendant provides specific consent within 

the meaning of P.C. § 1546 to any law enforcement agency seeking information provided 

by the California Electronic Communication Protection Act. This includes consent to 

seize and examine call logs, texts and voicemail messages, photographs and emails, 

contained on any device or cloud or internet connected storage owned, operated, or 

controlled by the defendant, including but not limited to cell phones, computers, 

computer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media 

devices, thumb drives, Micro SD cards, external hard drives, or any other electronic 
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imposed mandatory fines and fees: a $300 restitution fine (Pen. Code, § 1202.4, subd. 

(b)), a $30 conviction assessment fee (Gov. Code, § 70373), and a $40 court operations 

assessment (Pen. Code, § 1465.8). It also imposed probation supervision fees of $164 per 

month for the three-year probation term. But it found defendant had no ability to pay the 

drug program fee, presentence investigation report, or the public defender fees. 

Defendant objected to the imposition of any fines and fees on the basis of his inability to 

pay. The court noted the objection but also noted it imposed only the mandatory 

minimum set by the Legislature. Defendant did not make any other objections.

DISCUSSION

I

Electronics Search Condition

Defendant first argues using text messages for narcotics transactions cannot justify 

the broad electronics search probation condition allowing a search of all applications on 

all electronic devices under defendant’s control. He asserts Probation Condition 65 must 

be modified or stricken because it is facially overbroad and unconstitutional when applied 

to his case. This condition also violates the privacy rights of third parties who may 

interact with defendant and therefore be subject to warrantless searches. We disagree and 

conclude he forfeited these claims by failing to raise the issues at sentencing.

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.) Because defendant did not object to Probation 

Condition 65 in the trial court, he has forfeited his ability to challenge both the probation 

storage devices, by whatever law enforcement agency is seeking the information. The 

defendant shall also disclose any and all passwords, passcodes, password patterns, 

fingerprints, or other information required to gain access into any of the aforementioned 

devices.”
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condition’s reasonableness and any claim concerning its constitutionality as applied to 

him. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) However, a defendant 

who did not object to a probation condition at sentencing may raise a challenge to that 

condition on appeal if that claim “amount[s] to a ‘facial challenge,’ ” i.e., a challenge that 

the “phrasing or language . . . is unconstitutionally vague and overbroad” (id. at p. 885), 

that is, a “ ‘ “pure question[] of law that can be resolved without reference to the 

particular sentencing record developed in the trial court.” ’ ” (Id. at p. 889.) Such a 

claim “does not require scrutiny of individual facts and circumstances but instead 

requires the review of abstract and generalized legal concepts.” (Id. at p. 885.)

Defendant’s facial overbreadth challenge does not overcome his failure to 

challenge the search term at sentencing. In a facial overbreadth challenge to an 

electronics search condition, the issue is whether the search condition, in the abstract, and 

not as applied to the particular probationer, is insufficiently narrowly tailored to the 

state’s legitimate interest in reformation and rehabilitation of probationers in all possible 

applications. (Sheena K., supra, 40 Cal.4th at p. 885.) The answer here is “no.” 

Electronics search conditions are not categorically invalid. (In re Ricardo P. (2019) 

7 Cal.5th 1113, 1128.) Thus, although application of this search condition could be 

constitutionally overbroad as applied to certain probationers, in other circumstances it 

may be entirely appropriate and constitutional. The criminal offense or the defendant’s 

personal history may provide a sufficient basis on which to conclude the condition is a 

proportional means of deterring future criminality. (Id. at pp. 1128-1129.) In those 

cases, the imposition of such probation conditions would be constitutional. Because there 

could be circumstances in which such a condition was appropriate, we reject any claim 

that Probation Condition 65 is facially overbroad.

Defendant also contends a search of his electronic devices is significantly 

overbroad because it can implicate the privacy interests of third parties. Defendant also 

failed to raise this issue in the trial court and has therefore forfeited the argument on 
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appeal. (Sheena K., supra, 40 Cal.4th at p. 881; see People v. Trujillo (2015) 60 Cal.4th 

850, 856.) Defendant has not developed any record that would demonstrate a burden on

third parties based on the electronics search condition at issue here.

II

Fines and Fees

Defendant next argues we must strike all fines and fees in light of Dueñas, supra, 

30 Cal.App.5th 1157. Though the court waived some of the fines and fees because it 

found he had no ability to pay them, defendant asserts this should have been extended to 

all fees. We again disagree and affirm.

Defendant’s argument is based on the recent Dueñas decision. In Dueñas, supra, 

30 Cal.App.5th 1157, an indigent and homeless mother of young children was trapped in 

a cycle where she could not pay the fees to reinstate a suspended driver’s license and 

incurred additional fines and fees associated with misdemeanor convictions for driving 

with a suspended license that she could not afford to pay. (Id. at p. 1161.) After pleading 

no contest to another misdemeanor charge of driving with a suspended license, Dueñas 

requested the trial court conduct an ability to pay hearing, at which the court determined 

that she lacked the ability to pay attorney fees for representation by a public defender 

(Pen. Code, § 987.8, subd. (b)) and waived these fees. (Dueñas, at p. 1163.) 

Nonetheless, the court imposed assessments and a minimum restitution fine. (Ibid.)

The appellate court held “the assessment provisions of Government Code section 

70373 and Penal Code section 1465.8, if imposed without a determination that the 

defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon 

indigent defendants without a determination that they have the present ability to pay 
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violates due process under both the United States Constitution and the California 

Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168.)2

As for the restitution fine under Penal Code section 1202.4, the statute prohibits a 

trial court from considering a defendant’s ability to pay unless the fine exceeds the 

statutory minimum amount. (Pen. Code, § 1202.4, subds. (b)(1), (c).) The court in 

Dueñas held that the statute violates due process. (Dueñas, supra, 30 Cal.App.5th at 

p. 1171.)3

We also lament the plight of indigent defendants who, like Dueñas, find 

themselves trapped in a set of unfortunate circumstances created by the imposition of 

fines and fees they cannot afford to pay. Though the seeds of their predicament were 

sowed by their own misconduct, it may nonetheless seem unfair that those with money 

can avail themselves of opportunities and avoid consequences that the poor cannot. But 

the constitutionality of a fine or fee does not rest on whether it seems unfair. As pointed 

out in People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, 

S258946, the Constitution has been held to bar the imposition of financial exactions on 

the impecunious only in limited circumstances when to do so “would otherwise preclude 

criminal and civil litigants from prosecuting or defending lawsuits or from having an 

appellate court review the propriety of any judgment,” or when the failure to pay would 

result in the incarceration of persons lacking the ability to pay. (Hicks, at p. 325.)

We agree with Hicks’ explication of the constitutional principles on which Dueñas

relies and therefore disagree with the holding in Dueñas. The imposition of fines and 

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 The court acknowledged “case law in this area historically has drawn on both due 

process and equal protection principles.” (Dueñas, supra, 30 Cal.App.5th at p. 1168,

fn. 4.)

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 The court also acknowledged that in this context due process and the constitutional ban 

on excessive fines are similar in application. (Dueñas, supra, 30 Cal.App.5th at p. 1171,

fn. 8.)
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fees in this case does not compromise defendant’s constitutional right of access to the 

courts nor will it result in any additional incarceration, and thus no liberty interest 

protected by due process is implicated. Indigency is not a defense to criminal sanctions 

and does not warrant the relief sought here.

III

Assembly Bill No. 1950

While this appeal was pending, Assembly Bill No. 1950 (Stats. 2020, ch. 328) 

went into effect. That bill changed the permissible length of probation under Penal Code 

section 1203.1 for felony cases to a maximum of two years and under Penal Code section 

1203a in misdemeanor cases to a maximum of one year. The two-year limit for felony 

cases does not apply to certain offenses not applicable here. (Pen. Code, § 1203.1, subd. 

(m).)

Defendant contends remand is necessary for the trial court to modify his probation 

and the People do not contest Assembly Bill No. 1950’s modifications apply to cases not 

yet final on appeal. Because the new law mitigates punishment and there is no savings

clause, it operates retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 748; People v. 

Sims (2021) 59 Cal.App.5th 943, 955-964 [finding Assem. Bill No. 1950 is “an 

ameliorative change . . . that is subject to the Estrada presumption of retroactivity. The 

Legislature did not include a savings clause or other clear indication that the two-year 

limitation applies on a prospective-only basis”]; People v. Quinn (2021) 59 Cal.App.5th 

874, 879-885 [same].) “Accordingly, defendant is entitled to seek a reduced probation 

term on remand under Assembly Bill No. 1950.” (Sims, at p. 964.)
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DISPOSITION

The judgment, to the extent it imposes a three-year grant of probation, is reversed, 

and the court is ordered on remand to resentence defendant to no more than two years of 

probation. The judgment is otherwise affirmed.

 /s/

RAYE, P. J.

We concur:

 /s/

BLEASE, J.

 /s/

KRAUSE, J.