People v. Fernandez CA6

Filed 7/24/14 P. v. Fernandez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039640 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1242453)

v.

MELISA LIZETTE FERNANDEZ,

Defendant and Appellant.

Defendant Melisa Lizette Fernandez was placed on probation after pleading no contest to felony sale of a person for immoral purposes (Pen. Code, § 266f)1 in exchange for the People’s dismissal of five felony counts of human trafficking (§ 236.1, subd. (a)). The charges were based on allegations that defendant and her boyfriend (her codefendant in the trial court) forced defendant’s cousin into prostitution. Defendant contends that the trial court erred in imposing a probation supervision fee without first determining her ability to pay and that certain probation conditions are unconstitutionally vague and overbroad. For the reasons stated here, we will modify the challenged conditions and remand for the trial court to determine defendant’s ability to pay the probation supervision fee.

1 Unspecified statutory references are to the Penal Code.

I. TRIAL COURT PROCEEDINGS The following factual summary is based on testimony by San Jose Police Officers Jonathon Levos and David Gonzales at defendant’s preliminary hearing based on statements to them from the victim. Defendant and her boyfriend picked up the victim from Stockton under the pretense of taking her to a party. Once the victim got into the car, however, defendant informed her that the victim’s father had allegedly paid defendant and her boyfriend $4,000 to have the victim raped “in retaliation for [the victim’s] sister being raped.” Defendant and her boyfriend eventually drove the victim to a motel in Concord, where defendant took photographs of the victim while the victim was “scantily clad” and posted them online to a website for the purpose of soliciting prostitution. The victim told the officers she was forced to have sex with several men in return for money in Concord as well as in motels in San Mateo, Vacaville, and San Jose. After each encounter, the victim turned the money over to defendant or her boyfriend. The victim managed to escape and call the police, who arrested defendant and her boyfriend. Defendant and her boyfriend were held to answer and defendant was charged by information with five counts of human trafficking (§ 236.1, subd. (a)) and one count of procuring the victim for the purpose of prostitution (§ 266i, subd. (a)). The section 266i count was later amended as part of a plea agreement to one count of sale of the victim for immoral purposes (§ 266f) because the section 266i count prohibited probation. Defendant pleaded no contest to the section 266f count. The trial court dismissed defendant’s five human trafficking counts, suspended imposition of sentence for three years, and placed defendant on formal probation with conditions, including one year in county jail, deemed satisfied by presentence custody credits. Defendant challenges three other probation conditions in this appeal: (1) defendant “shall have no contact with the victim or victims in this case”; (2) defendant “shall not access the Internet or any other online service through use of a computer or 2