Filed 5/16/23 P. v. Fahay CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOL RUIZ FAHAY,

Defendant and Appellant.

 D080167

 (Super. Ct. No. SCD293356)

APPEAL from an order of the Superior Court of San Diego County, 

Polly H. Shamoon, Judge. Affirmed in part, reversed in part, and remanded 

with directions.

Charles R. Khoury, Jr. and Leslie Rose, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Collette C. Cavalier and Kathryn 

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
2

Nichol Ruiz Fahay was placed on formal probation after pleading guilty 

to possessing the personal information of another with intent to defraud. 

(Pen. Code,1 § 530.5, subd. (c)(2).) Fahay challenges two conditions of her 

probation. First, she contends the electronic search condition is unreasonable 

under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally 

overbroad. Then, claiming she cannot pay the fines and assessments

imposed, she seeks their stay pending the Supreme Court’s resolution of 

People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844 (Kopp).2 The People concede invalidity of the electronic search 

condition under Lent and urge us to conform Fahay’s financial obligations to 

the court’s oral pronouncement. 

As we explain, the electronic search condition must be stricken under 

Lent, supra, 15 Cal.3d 481. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 1121 

(Ricardo P.).) But this is without prejudice to the trial court on remand 

considering whether a more narrowly drawn electronic search condition

would be consistent with Ricardo P. Given our remand, we need not dwell on 

Fahay’s claim that she lacked the ability to pay the punitive fines and 

nonpunitive assessments imposed. When the matter is returned to the trial 

court, Fahay can seek a hearing as to her ability to pay these amounts, and 

the trial court can apply relevant constitutional standards to evaluate her 

claim.

1 Unless otherwise indicated, statutory references are to the Penal Code.

2 The Supreme Court granted review in Kopp and related cases to decide

the following issues: “(1) Must a court consider a defendant's ability to pay 

before imposing or executing fines, fees, and assessments? (2) If so, which 

party bears the burden of proof regarding the defendant's inability to pay?”
3

FACTUAL AND PROCEDURAL BACKGROUND3

David G. was at the public library making photocopies of his DMV

paperwork. When he turned his back for a moment, Fahay quickly stole his 

documents and placed them in a white tote bag. David asked Fahay to 

return his papers, but she denied taking them and left. David followed her 

out the library, and police later apprehended Fahay in a nearby grocery store. 

After identifying her and learning of her active Fourth Amendment waiver, 

officers searched Fahay’s tote bag and located unopened mail belonging to 15 

different individuals. Arrested for possessing stolen mail, Fahay sought to 

explain by asserting that she could legally take mail once it had been placed 

in a recycling bin. Fahay had numerous prior convictions for identity theft. 

The San Diego County District Attorney charged Fahay with acquiring 

the personal identifying information of another while having a prior 

conviction for identity theft. (§ 530.5, subd. (c)(2).) Fahay pleaded guilty at 

her pretrial readiness, and the court found a factual basis for the plea. 

Suspending imposition of her sentence, the court placed Fahay on formal 

probation for two years subject to various terms and conditions. (§ 1203.1, 

subd. (a).) Specifically, Fahay was to serve 180 days in local custody with 

credit for the 45 days served and immediate eligibility for release to an 

approved program. As a separate condition of probation, Fahay was required 

to pay a total of $1,190 in fines and assessments, as we will later discuss.

She was subject to warrantless search at any time, with the Fourth 

3 Fahay pleaded guilty before preliminary hearing could take place, and 

she did not submit to an interview with the probation department. For 

context, facts about the incident are drawn from the police report cited in the 

probation report. 
4

Amendment waiver extending to her computers, recordable media, and 

electronic devices. 

Fahay appealed the probation order. (§ 1237, subd. (a).) She indicated 

that she challenged issues after the entry of the plea that did not question its 

validity. (Cal. Rules of Court, rule 8.304(b).) In waiving her right to appeal 

the sentence, Fahay did not waive the right to challenge particular conditions 

of probation that had yet to be determined at the time of the plea. (People v. 

Patton (2019) 41 Cal.App.5th 934, 942−943.)

DISCUSSION

Fahay challenges the portion of probation condition 6n that authorizes 

warrantless search of her electronic devices. She further requests a stay of 

all fines and fees pending the Supreme Court’s resolution of Kopp. We 

address these contentions in turn and provide additional background for 

proceedings on remand.

A. The electronic search condition must be stricken, but remand is 

necessary to determine whether a narrower condition could be imposed.

Defense counsel sought to strike the electronic search condition, 

questioning the nexus between electronic devices and this case. Opposing 

that request, the prosecutor noted that Fahay was caught with unopened

mail containing personal identifying information of several individuals. 

Accepting this reasoning, the trial court extended the Fourth Amendment 

waiver in condition 6n to “all electronic devices and pass codes to those 

devices with the exception of medical and financial records.” The probation 

order clarified that the waiver did not “extend to medical/legal information, 

financial accounts or transactions, or to any data created before the 

acceptance of this probation grant.” 
5

Fahay argues that the electronic search condition is unreasonable 

under state law and unconstitutionally overbroad. The People concede that 

the condition is invalid under state law but claim there is no constitutional 

concern. We agree with the parties that condition 6n is invalid under state 

law and must be stricken.4

Trial courts have broad latitude to impose reasonable conditions of 

probation (§ 1203.1, subd. (j)), and we review a challenged condition for abuse 

of discretion. (Ricardo P., supra, 7 Cal.5th at p. 1118.) Probation conditions 

will be upheld as reasonable unless they lack a relationship to the crime of 

conviction; relate to conduct that is not in itself criminal; and require or 

forbid conduct that is not reasonably related to future criminality. (Lent, 

supra, 15 Cal.3d at p. 486; accord Ricardo P., at pp. 1118−1119.) To satisfy 

the third prong under Lent, “more than just an abstract or hypothetical 

relationship between the probation condition and preventing future 

criminality” is required. (Ricardo P., at p. 1121.) Thus in Ricardo P., a 

generalized suspicion that minors use their phones and the internet to buy 

drugs and brag about drug use did not provide reasonable justification for an 

electronic search condition. Given the weighty privacy interests at stake, 

such a condition could only be imposed where there was a “substantial and 

particularized justification.” (Id. at p. 1126.)

As the People suggest, “[t]he same concerns involved in Ricardo P. exist 

in this case.” Using an electronic device is not itself criminal. On our sparse 

record, there is no basis to suggest Fahay used an electronic device in 

committing the offense or previously used electronic devices to engage in 

criminal activity. An abstract relationship between the electronic search 

condition and preventing future criminal activity is not enough under the 

4 This obviates the need to reach the constitutional question.
6

Supreme Court’s rubric in Ricardo P. Accordingly, the portion of condition 6n 

authorizing warrantless search of Fahay’s electronic devices meets all three 

criteria under Lent and must be stricken as unreasonable. Despite our 

conclusion, remand is appropriate to permit the People to demonstrate 

additional facts that would justify a more narrowly drawn electronic search 

condition. (See People v. Cota (2020) 45 Cal.App.5th 786, 791 (Cota) [“We do 

not foreclose the possibility that a narrower electronics search condition 

might be appropriate in this case based on facts that are not reflected in the 

current record.”].)

B. On remand, Fahay can challenge her ability to pay any fines, fees, or 

assessments.

Defense counsel requested “that the court stay all fines and fees, as 

Miss Fahay at the time of her arrest was unemployed and homeless and 

unable to have gainful employment.” Based on these factors, she asked “the 

Court to find an inability to pay whatever balance is owed.” Counsel further 

sought to reduce the monthly payment from $50 to $35 per month. 

The court required Fahay to pay the following amounts as a condition 

of probation: an $820 conviction fine (§ 530.5, subd. (c)(2)),5 a $300 

restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment 

(§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, 

5 Section 530.5, subdivision (c)(2) specifies punishment “by a fine, by 

imprisonment in a county jail not to exceed one year, or by both a fine and 

imprisonment, or by imprisonment pursuant to subdivision (h) of Section 

1170.” We infer that the court imposed an $820 conviction fine for this crime 

pursuant to the catchall provision found in section 672. (See generally, 

People v. Uffelman (2015) 240 Cal.App.4th 195, 197 [“Where the criminal 

statute does not prescribe the base fine, section 672 authorizes the trial court 

to impose a fine.”].) Section 672 in turn defines a $1,000 maximum fine for 

misdemeanors and $10,000 fine for felonies. 
7

§ 70373). Fahay was ordered to pay these amounts at a rate of $35 per 

month, with all “discretionary” amounts “stayed pending successful 

completion of probation.” Despite this ruling, the written probation order set 

monthly payment at $50 per month starting 60 days after Fahay’s release 

from custody and did not indicate that any amounts were stayed during the 

probationary term. 

In Dueñas, Division Seven of the Second Appellate District held that as 

a matter of due process, a trial court is required to conduct an ability-to-pay 

hearing before imposing assessments for court facilities and court operations. 

(People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 (Dueñas).) While section 

1202.4 requires courts to impose a $300 restitution fine without considering a 

defendant’s ability to pay, Dueñas reasoned that this fine could be imposed 

but stayed pending a determination on defendant’s ability to pay. (Dueñas, at 

p. 1172.) A panel of this court later accepted the due process framework in

Dueñas as to nonpunitive fees and assessments, but concluded that punitive 

fines and fees should instead be assessed under the excessive fines clause of 

the Eighth Amendment, which in turn considers a defendant’s ability to pay 

as one of several factors. (Kopp, supra, 38 Cal.App.5th at pp. 95−98, review

granted.) Division Four of the First Appellate similarly applied an Eighth 

Amendment analysis to evaluate a range of fines and fees. (People v. Cowan 

(2020) 47 Cal.App.5th 32, 50, review granted June 17, 2020, S261952 

(Cowan).) 

Review remains pending in Kopp as to whether a trial court must 

constitutionally consider a defendant’s ability to pay before imposing fines, 

fees, and assessments and, if it must, which party bears the burden to prove 

defendant’s inability to pay. (See note 2, ante.) The Supreme Court has also 

granted review in related cases, including Cowan, which expanded on Kopp’s 
8

Eighth Amendment analysis, and Hicks, which rejected Dueñas’s due process 

analysis outright. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, review

granted Nov. 26, 2019, S258946; accord Cota, supra, 45 Cal.App.5th at 

p. 795.)

We agree with Fahay that “[c]iting Dueñas was unnecessary” to 

preserve her claim that she lacked the ability to pay the fines and 

assessments imposed. In asking the court to “stay all fines and fees” based 

on Fahay’s employment and housing status and “find an inability to pay 

whatever balance is owed,” counsel presumably relied on language in Dueñas

directing the court to impose any mandatory fines but stay their execution

pending a determination of defendant’s ability to pay them. (Dueñas, supra, 

30 Cal.App.5th at p. 1172.) Subsequent cases have remanded for an abilityto-pay hearing to decide whether such fines could be imposed in the first 

place. (See Cowan, supra, 47 Cal.App.5th at p. 50, review granted.) That 

Fahay’s attorney appeared to rely on Dueñas rather than the Eighth 

Amendment does not forfeit her claim.

Fahay asks that we stay execution of the fines and fees pending the 

Supreme Court’s resolution of Kopp. The People by contrast urge us to 

conform the written order to the court’s oral pronouncement by staying the 

discretionary $820 conviction fine until Fahay completes probation, but 

otherwise requiring payment of the remaining fines and fees at $35 per 

month. We reject both proposed remedies to the issue raised.

Bearing in mind that this issue is pending Supreme Court review, and 

given our remand to permit evaluation of a narrower electronic search 

condition, we believe the appropriate course is to permit Fahay to request an 

ability-to-pay hearing on remand. If she does so, she will bear the burden of 

proving that she lacks the ability to pay the fines and assessments imposed. 
9

(Kopp, supra, 38 Cal.App.5th at p. 96, review granted.) We express no view 

as to the merits of such a claim if it is made, but note that the trial court may 

consider any relevant factors including her “housing status, mental illness or 

disability, receipt of government benefits, and realistic ability to earn 

. . . wages or obtain employment.” (People v. Santos (2019) 38 Cal.App.5th 

923, 934.)

The analytical framework on remand will differ slightly as to the 

punitive fines (the $820 conviction fine and $300 restitution fines) and 

nonpunitive assessments (the $40 court operations assessment and $30 

criminal conviction assessment). Any ability-to-pay challenge as to the 

nonpunitive assessments proceeds under the due process framework, which 

precludes imposition unless a defendant has a present ability to pay. (See 

Kopp, supra, 38 Cal.App.5th at pp. 95−96, review granted; Dueñas, supra, 30 

Cal.App.5th at p. 1164.) Because these fees are “collateral to a defendant’s 

crimes [they] may not be made a condition of probation unless specifically 

authorized by statute.” (In re David C. (2020) 47 Cal.App.5th 657, 671.) 

Instead, they may be imposed only by separate order as part of the judgment. 

(See generally, People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402−1403.)

By contrast, any ability-to-pay challenge as to the punitive fines should

be made under the Eighth Amendment’s excessive fines clause. (Kopp, supra, 

38 Cal.App.5th at pp. 96−97, review granted.) This framework considers a 

defendant’s ability to pay as one of four factors in determining whether a 

punitive fine is unconstitutionally excessive. (Id. at p. 97, citing United 

States v. Bajakajian (1998) 524 U.S. 321, 337−338 and People ex. rel. Lockyer 

v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) Other factors are 

Fahay’s culpability, the relationship between the harm suffered and the 

penalty imposed, and the penalties imposed in similar cases. (Kopp, at p. 97.)
10

To the extent any punitive fines and fees are imposed as a condition of 

probation, the court may indicate whether it intends to stay their execution 

during the probationary term as perhaps envisioned in the prior order. 

Argument as to the appropriate monthly payment can be directed to the trial 

court on remand.

DISPOSITION

We strike the portion of condition 6n of the probation order permitting 

warrantless searches of Fahay’s “computers, and recordable media including 

electronic devices” and remand to permit the trial court to consider whether a 

more narrowly drawn condition would be appropriate. On remand, Fahay 

may object to any fines, fees, and assessments imposed by the trial court

based on her ability to pay. Nonpunitive assessments shall not be imposed as 

a condition of probation, and the court may determine whether to stay any

punitive fines during the probationary term. In all other respects, the order 

is affirmed.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.