Filed 5/2/19


See Concurring and Dissenting Opinion


                       CERTIFIED FOR PARTIAL PUBLICATION*

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION TWO



 THE PEOPLE,

            Plaintiff and Respondent,

 v.                                                   E067578

 SARA ARCELIA SALCIDO,                                (Super.Ct.No. INF1501474)

            Defendant and Appellant.                  OPINION




        APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.

Affirmed.

        Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and

Appellant.




        *     Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts III and IV.

                                             1
       Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, and Michael Pulos, Britton B. Lacy, and Michael D. Butera, Deputy Attorneys

General, for Plaintiff and Respondent.

       Defendant Sara Salcido was in the business of providing immigration services —

typically, obtaining visas for her clients that would allow them to stay in the United

States legally. Under the Immigration Consultant Act (Bus. & Prof. Code, §§ 22440-

22449) (Act), with certain exceptions, it is illegal for a person to act as an “immigration

consultant” (as defined in the Act) unless he or she has complied with a host of consumer

protection requirements, such as passing a background check and filing a bond.

Defendant failed to comply with these.

       As a result, in a bench trial, defendant was convicted on one count of unlawfully

engaging in the business of an immigration consultant, a misdemeanor. (Bus. & Prof.

Code, §§ 22440, 22441.) The People argued, however, that each time defendant took

money from a client in exchange for providing immigration services, she was committing

theft by false pretenses, because she was not a legally qualified immigration consultant

under state law. The trial court agreed; thus, it also convicted her on six counts of grand

theft (Pen. Code, §§ 484, 487, subd. (a)) and two counts of petty theft (Pen. Code,

§§ 484, 488). It dismissed two additional counts of grand theft as time-barred.

Defendant was placed on probation for five years.




                                              2
       In the published portion of this opinion, we will hold that federal law does not

preempt the application of the Act to defendant. In the unpublished portion, we will

reject defendant’s other contentions. Accordingly, we will affirm.

                                             I

                              FACTUAL BACKGROUND

       A.     Count 2: Rigoberto S.

       In September 2012, Rigoberto S. paid defendant $4,480 to obtain a work permit

and some kind of visa. He had seen an ad saying that she provided immigration services.

He met with her in her office. However, he never received any documentation from the

United States Citizenship and Immigration Services (USCIS) or from defendant. He

contacted defendant, but she had no explanation, so he sued her in small claims court.

       Defendant testified that she spent some 14 to 20 hours, across some six months, on

Rigoberto S.’s case. Nine months after he first contacted her, she discovered that he had

previously been deported. She did not file anything with the USCIS, because if she had,

he would have been deported automatically. If she had known he had previously been

deported, she would never have taken his case. She started paying back his money, in

installments; by the time of the preliminary hearing, she had repaid $1,800.

       B.     Count 3: Patricia F.

       In October 2011, Patricia F. paid defendant $3,000 to obtain a U visa.1 They met

at defendant’s office.

       1      A U visa is available to victims of certain crimes.

                                             3
       Defendant testified that she put in 50 hours on the case. It took her over a year to

get the necessary signature from the relevant police department. She never actually filed

anything for Flores because Flores saw “a lot of . . . bad comments on Facebook” and

fired her.

       C.     Count 4: Ivonne G.

       In June or July 2013, Ivonne G. paid defendant $3,000 to obtain a U visa. She had

seen an ad for defendant’s immigration services. They met at defendant’s office.

       Defendant testified that she had worked on Ivonne G.’s case for about a year and

had done “some forms” when she was arrested.

       D.     Count 6: Araceli C.

       In April 2014, Araceli C. paid defendant a down payment to help her obtain a

green card based on marriage to a United States citizen. Over time, she paid defendant a

total of $9,265. On defendant’s advice, she divorced her husband and married her live-in

boyfriend; defendant handled this paperwork. She learned from the USCIS, however,

that defendant had done nothing about the green card.

       Defendant testified that she spent 60 hours on the case before Araceli C. fired her.

       E.     Count 7: Sofia L.

       In 2012, Sofia L. paid defendant a down payment to obtain U visas for herself and

her children. She met with defendant at defendant’s office. Over time, she paid

defendant a total of $5,760. The USCIS determined that she did not qualify and that it




                                             4
was going to deny her petition; as of the preliminary hearing, however, it had not actually

done so, due to its backlog.

       Defendant testified that she had spent 300 hours on the case.

       F.       Count 8: Javier O.

       In 2014, Javier O. paid defendant $4,580 to assist him with obtaining a work

permit. He met with her at her office. He never received any documentation indicating

that she had done anything.

       Defendant testified that she spent 30 hours on his case. She filed some paperwork

with the USCIS and spoke to a USCIS supervisor.

       G.       Count 9: Maria T.

       In 2014, Maria T. paid defendant a down payment to assist her in obtaining a

U visa or similar permit. She had seen an ad for defendant’s immigration services. She

met with defendant at defendant’s office. Over time, she paid defendant a total of $800.

       Defendant testified that she spent 20 hours on the case. She obtained the

necessary signature of the relevant police department and filed some papers with the

USCIS. The case was still pending. However, Maria T. fired her and sued her in small

claims court.

       H.       Count 10: Ilsia M.

       At the end of 2014 or the beginning of 2015, Ilsia M. paid defendant $300 to assist

her in obtaining a U visa. She never received any documentation from the government.




                                             5
       Defendant testified that she spent four to six hours on the case. She prepared some

forms, but she could not send them in because she was arrested.

       I.     Additional Information Relevant to All Counts

       Defendant maintained an office in Cathedral City. Signs outside advertised the

services that she provided, including immigration services.

       Defendant admitted that she had been acting as an immigration consultant since

2007. She also admitted that she was not an attorney, though she was a paralegal. She

admitted knowing that she was required to have a background check and to post a bond,

but she had not done either.

       Defendant testified that she learned in either September or November 2013 that

she was required to be registered with the state and to post a bond. (At the preliminary

hearing, however, she testified that she did not know about the background check until

2015.) She did not post a bond because she could not afford it.

       It was stipulated that, at all relevant times, defendant engaged in the business or

acted in the capacity of an immigration consultant, for compensation, even though she

had not passed the required background check or posted the required bond. It was also

stipulated that, at all relevant times, defendant held herself out as legally authorized to act

as an immigration consultant. With respect to the last two victims — Maria T. and Ilsia

M. — it was additionally stipulated that defendant knew at the time that she had failed to

comply with the Act.




                                               6
       Finally, it was stipulated that defendant received compensation greater than $950

in connection with the grand theft counts, and less than $950 in connection with the petty

theft counts.

                                             II

                                 FEDERAL PREEMPTION

       Defendant contends that the Act is preempted by federal law. She demurred to the

complaint on this ground. In any event, federal preemption can be raised for the first

time on appeal. (Town of Atherton v. California High-Speed Rail Authority (2014) 228

Cal.App.4th 314, 331.)

       “We apply a de novo standard of review . . . because federal preemption presents a

pure question of law [citation].” (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077,

1089, fn. 10.)

       A.        General Preemption Principles.

       “‘“The supremacy clause of the United States Constitution . . . vests Congress with

the power to preempt state law.” [Citations.] Similarly, federal agencies, acting pursuant

to authorization from Congress, can issue regulations that override state requirements.

[Citations.] Preemption is foremost a question of congressional intent: did Congress,

expressly or implicitly, seek to displace state law?’ [Citation.]” (Solus Industrial

Innovations, LLC v. Superior Court (2018) 4 Cal.5th 316, 331.)

       Our Supreme Court has “identified several species of preemption.” (Solus

Industrial Innovations, LLC v. Superior Court, supra, 4 Cal.5th at p. 332.) “Express


                                             7
preemption occurs when Congress defines the extent to which its enactments preempt

state law. [Citation.] Conflict preemption is found when it is impossible to comply with

both state and federal law simultaneously. [Citation.] Obstacle preemption occurs when

state law stands as an obstacle to the full accomplishment and execution of congressional

objectives. [Citation.] Field preemption applies when federal regulation is

comprehensive and leaves no room for state regulation. [Citation.]” (People ex rel.

Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal.4th 772, 777-778.)

       Ordinarily, there is a presumption against preemption. (Solus Industrial

Innovations, LLC v. Superior Court, supra, 4 Cal.5th at p. 332.) “The presumption is

founded on ‘respect for the States as “independent sovereigns in our federal system”’;

that respect requires courts ‘to assume that “Congress does not cavalierly pre-empt state-

law causes of action.”’ [Citation.] The strength of the presumption is heightened in areas

where the subject matter has been the longstanding subject of state regulation in the first

instance; where federal law touches ‘a field that “‘has been traditionally occupied by the

States,’”’ the party seeking to show preemption ‘bear[s] the considerable burden of

overcoming “the starting presumption that Congress does not intend to supplant state

law.”’ [Citations.]” (Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 313.)

       Defendant argues that this presumption does not apply here, because the Act

implicates foreign affairs — an area not traditionally occupied by the states. (See Viva!

International Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41




                                             8
Cal.4th 929, 938-939 & fn. 5 [declining to decide whether presumption applies when

state law “touch[es] on matters implicating foreign affairs”].)

       We disagree, on the authority of In re Jose C. (2009) 45 Cal.4th 534. There, our

Supreme Court said: “[T]he general presumption against preemption [citation] . . .

applies even in the context of immigration law [citation] . . . .” (Id. at p. 551.)

       It explained: “The ‘[p]ower to regulate immigration is unquestionably exclusively

a federal power.’ [Citations.] . . .

       “While the immigration power is exclusive, it does not follow that any and all

state regulations touching on aliens are preempted. [Citations.] Only if the state statute

is in fact a ‘regulation of immigration,’ i.e., ‘a determination of who should or should not

be admitted into the country, and the conditions under which a legal entrant may remain’

[citation], is preemption structural and automatic. Otherwise, the usual rules of statutory

preemption analysis apply; state law will be displaced only when affirmative

congressional action compels the conclusion it must be. [Citation.]” (In re Jose C.,

supra, 45 Cal.4th at p. 550; see also DeCanas v. Bica (1976) 424 U.S. 351, 354-355.)

       Here, the specification of who may provide immigration-related services, while

undoubtedly a matter of federal interest and a proper subject of federal regulation, does

not “regulate[] who may enter or remain in the United States.” (See In re Jose C., supra,

45 Cal.4th at p. 550.) At the same time, “[t]he states’ historic police powers include the

regulation of consumer protection . . . . [Citations.]” (Gibson v. World Savings & Loan




                                               9
Assn. (2002) 103 Cal.App.4th 1291, 1300.) Accordingly, the presumption against

preemption applies fully here.2

       B.     Relevant Federal Law.

       Congress has authorized the Secretary of Homeland Security to “establish such

regulations . . . as he deems necessary for carrying out his authority . . . .” (8 U.S.C.

§ 1103(a)(3).) Pursuant to this authorization, the Department of Homeland Security

(DHS) has adopted a set of regulations specifying who can provide representation before

the United States Citizen and Immigration Services (USCIS). (8 C.F.R. §§ 1.1, 1.2,

292.1 (2018).)3

       Under these regulations, “representation” is defined as including both “practice”

and “preparation.” (8 C.F.R. § 1.2 (2018).)




       2      We note, however, that the presumption is not crucial to our analysis; even
without it, we would come to the same conclusions, for the same reasons.
       3      A virtually identical set of regulations specifies who can provide
representation before the Executive Office for Immigration Review (EOIR). (8 C.F.R.
§§ 1001.1(c), (e), (m), 1292.1; see generally Careen Shannon, Regulating Immigration
Legal Service Providers: Inadequate Representation and Notario Fraud (2009) 78
Fordham L. Rev. 577, 602, fn. 119.)

        Generally speaking, representation before the USCIS relates to applications for
admission or continued presence, such as visas, whereas representation before the EOIR
relates to removal proceedings. (Lee, Congressional Research Service, Legal Ethics in
Immigration Matters (2009) at p. 1, fns. omitted, available at
<https://www.americanbar.org/content/dam/aba/administrative/immigration/fightnotariof
raud/crs_lega_ethics_in_immigration_matters.authcheckdam.pdf>, as of May 1, 2019.)
As there is no evidence that defendant was involved in removal proceedings, we focus on
representation before the USCIS.

                                              10
       “Practice” means “appearing in any case, either in person or through the

preparation or filing of any brief or other document, paper, application, or petition on

behalf of another person or client before or with DHS.” (8 C.F.R. § 1.2 (2018).)

       “Preparation,” as relevant here, means “the study of the facts of a case and the

applicable laws, coupled with the giving of advice and auxiliary activities, including the

incidental preparation of papers . . . .” (8 C.F.R. § 1.2 (2018).) However, preparation

does not include “service consisting solely of assistance in the completion of blank

spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who

does not hold himself or herself out as qualified in legal matters or in immigration and

naturalization procedure.” (Ibid.)

       “Case” means “any proceeding arising under any immigration or naturalization

law, Executive Order, or Presidential proclamation, or preparation for or incident to such

proceeding, including preliminary steps by any private person or corporation preliminary

to the filing of the application or petition by which any proceeding under the jurisdiction

of the Service or the Board is initiated.” (8 C.F.R. § 1.2 (2018).)

       In broad general outline, only five classes of people are authorized to provide

“representation”: (1) attorneys in good standing; (2) law students, provided they are

under the supervision of an attorney and do not receive compensation; (3) “reputable

individuals,” who are of good moral character, provided they have a preexisting

relationship with the client and do not receive compensation; (4) “accredited

representatives,” who have been authorized by the EOIR; and (5) “accredited officials” of


                                             11
the client’s foreign government. (8 C.F.R. § 292.1(a), (e); see also 8 C.F.R. § 1.2

[defining attorney].) We will refer to a member of any of these five classes as a

“federally authorized person” and to a nonmember as a “federally unauthorized person.”

       C.     Relevant State Law.

       The Act provides: “It is unlawful for any person, for compensation, other than

persons authorized to practice law or authorized by federal law to represent persons

before the Board of Immigration Appeals or the United States Citizenship and

Immigration Services, to engage in the business or act in the capacity of an immigration

consultant within this state except as provided by this chapter.” (Bus. & Prof. Code,

§ 22440, italics added.)

       “A person engages in the business or acts in the capacity of an immigration

consultant when that person gives nonlegal assistance or advice on an immigration

matter.” (Bus. & Prof. Code, § 22441, subd. (a).)

       “Immigration matter,” as relevant here, means “any proceeding, filing, or action

affecting the immigration or citizenship status of any person which arises under

immigration and naturalization law, executive order or presidential proclamation, or

action of the United States Citizenship and Immigration Services . . . .” (Bus. & Prof.

Code, § 22441, subd. (b).)

       “Nonlegal assistance or advice” includes:

       “(1) Completing a form provided by a federal or state agency but not advising a

person as to their answers on those forms.


                                             12
        “(2) Translating a person’s answers to questions posed in those forms.

        “(3) Securing for a person supporting documents, such as birth certificates, which

may be necessary to complete those forms.

        “(4) Submitting completed forms on a person’s behalf and at their request to the

United States Citizenship and Immigration Services.

        “(5) Making referrals to persons who could undertake legal representation

activities for a person in an immigration matter.” (Bus. & Prof. Code, § 22441, subd.

(a).)

        We will use “immigration consultant” as shorthand for a person who engages in

the business or acts in the capacity of an immigration consultant, according to these

definitions.

        An immigration consultant must pass a background check (Bus. & Prof. Code,

§§ 22441.1, subd. (a), 22442.4), provide clients with a written contract, in English and in

the client’s native language, containing specified terms (Bus. & Prof. Code, § 22442,

subds. (a)-(f)), give clients 72 hours to rescind the contract (Bus. & Prof. Code, § 22442,

subd. (f)), give clients signed receipts and regular account statements (Bus. & Prof. Code,

§ 22442.1), provide specified disclosures (Bus. & Prof. Code, §§ 22442.2, 22444, subd.

(d)), maintain a client trust account (Bus. & Prof. Code, § 22442.5), follow specified

document provision and retention procedures (Bus. & Prof. Code, § 22443), and file a

bond (Bus. & Prof. Code, § 22443.1, subds. (a)-(d)). A violation of the Act is subject to




                                            13
both civil (Bus. & Prof. Code, §§ 22445, subd. (a), 22446.5) and criminal penalties.

(Bus. & Prof. Code, § 22445, subds. (b)-(c).)

       The Act also makes it unlawful for an immigration consultant (defined, in part, as

one who gives nonlegal assistance or advice) to offer legal assistance or advice in an

immigration matter. (Bus. & Prof. Code, § 22441, subd. (d).)

       D.     Interaction of Federal and State Law.

              1.     Conflict preemption.

       Salcido asserts that acting as an “immigration consultant” under California law

overlaps with “representation” under federal law. She concludes that California law

permits what federal law prohibits — namely, it permits federally unauthorized persons

(if they comply with California’s stringent requirements) to provide “representation”.

       “Representation” under federal law largely involves the provision of legal

services. By contrast, acting as an “immigration consultant” under the Act largely

involves the provision of nonlegal services.4 Nevertheless, we may assume, without

deciding, that there are some areas of overlap. (See Moore, Fraud, the Unauthorized

       4       At one point, we called for further briefing on whether there was sufficient
evidence that defendant provided any nonlegal assistance or advice. The testimony at
trial seemed to portray her as providing legal advice and assistance — for example, about
the particular visa that a client might be qualified for and about how to obtain that visa.
If that was all she did, it would seem that she was simply not guilty.

       As the parties pointed out, however, defendant stipulated that she was an
immigration consultant. This necessarily meant that she provided nonlegal assistance and
advice (even if she also provided legal assistance and advice). Indeed, it is possible that
the People refrained from presenting additional evidence that she provided nonlegal
assistance and advice precisely because they were relying on this stipulation.

                                            14
Practice of Law and Unmet Needs: A Look at State Laws Regulating Immigration

Assistants (2004) 19 Geo. Immig. L.J. 1, 18-19 [concluding that “preparation” includes

filling out forms by one who charges more than a nominal fee and/or holds him or herself

out as an immigration specialist, and therefore state laws permitting federally

unauthorized persons to fill out forms are preempted].)

       This is essentially a conflict preemption argument. However, there is no conflict,

because it is possible to comply with both state and federal law simultaneously.

       In Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977, Hawaiian state law prohibited a

convicted felon from possessing a firearm, but it carved out an exception for a state

employee acting in the course of his or her duties. (Id. at p. 980.) Federal law, however,

flatly prohibited a convicted felon from possessing a firearm under any circumstances.

(Id. at pp. 979-980.) The appellate court held that this raised no preemption issue,

because the state law merely “determines the legality of a certain act under state law, it

has no impact on the legality of the same act under federal law. Simply put, Congress

has chosen to prohibit an act which Hawaii has chosen not to prohibit . . . .” (Id. at

p. 981.)

       Similarly, in Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th

734, state law generally prohibited the possession, sale, and transportation of marijuana,

but it created an exemption, under certain circumstances, when the marijuana was for

medical purposes. (Id. at pp. 742-746.) Federal law, however, flatly prohibited the

possession of marijuana, even if for medical purposes. (Id. at pp. 756-757.)


                                             15
       The appellate court held that there was no conflict preemption: “Conflict

preemption exists when ‘simultaneous compliance with both state and federal directives

is impossible.’ [Citation.] . . . A claim of positive conflict might gain more traction if the

state required, instead of merely exempting from state criminal prosecution, individuals

to possess, cultivate, transport, possess for sale, or sell medical marijuana in a manner

that violated federal law. But because [state law does not] require such conduct, there is

no ‘positive conflict’ with federal law . . . . [Citation.] In short, nothing in either state

enactment purports to make it impossible to comply simultaneously with both federal and

state law.” (Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at

pp. 758-759.)

       Here, California state law does not say that a person who has complied with all of

the requirements of the Act can fill out forms (which arguably constitutes

“representation,” at least in some circumstances). Rather, it says that a person who has

not complied with all of the requirements of the Act cannot fill out forms. Thus, the Act

does not purport to allow anyone to violate federal law. A person still must be federally

authorized in order to provide any kind of “representation.”

       We accept that a state cannot penalize a nonlawyer who represents a client before

a federal agency for the unauthorized practice of law, when the representation is

authorized by federal law. (Sperry v. Florida (1963) 373 U.S. 379, 385.) Here, however,

the state seeks to penalize a nonlawyer for acts that, even if they were “representation,”

were not authorized by federal law.


                                               16
       There is no conflict, and thus there is no conflict preemption.

              2.      Obstacle preemption.

       Defendant notes that the DHS has prescribed certain disciplinary penalties for “the

unauthorized representation of immigrants”; however, these do not include criminal

penalties. She argues that this reflects a federal choice not to make unauthorized

representation a crime, and therefore the Act is preempted. This is essentially an obstacle

preemption argument.

       The flaw in this argument is that federal law provides disciplinary penalties only

against federally authorized persons, and not against federally unauthorized persons. It

leaves any penalties against the latter up to the states.

       “An adjudicating official or the Board of Immigration Appeals . . . may impose

disciplinary sanctions against any practitioner . . . .” (8 C.F.R. § 292.3(a)(1).) A

“practitioner,” however, is defined as either an attorney or a federally authorized person.

(8 C.F.R. §§ 1.2, 292.3(a)(2); see also 8 C.F.R. § 292.3(a)(1) [providing for sanctions

against “a practitioner who is authorized to practice before DHS”].) Thus, the listed

grounds for discipline, while not exclusive, do not include representation by a federally

unauthorized person. (8 C.F.R. § 292.3(b), incorporating 8 C.F.R. § 1003.102.) The

omission is highlighted by the fact that they do include assisting representation by a

federally unauthorized person. (8 C.F.R. § 292.3(b), incorporating 8 C.F.R.

§ 1003.102(m).)




                                              17
       In 1992, a legal opinion of the Office of the General Counsel of the former

Immigration and Naturalization Service (the predecessor of the USCIS) concluded that a

state can penalize a federally unauthorized person for engaging in the unauthorized

practice of law. (Office of the General Counsel Opn. No. 92-29, Legal Opinion: Role of

Visa Consultants in the Practice of Immigration Law (June 9, 1992) 1992 WL 1369368 at

p. *2.) It added: “Whether or not representation by . . . a [federally unauthorized] person

in violation of federal immigration regulations also violates state laws can only be

determined by applying the statutes and regulations that govern the practice of law in

each particular state.” (Id. at p. *4.)

       Consistent with our analysis, the EOIR’s Immigration Court Practice Manual

states that its “disciplinary procedures . . . do not apply to non-practitioners engaged in

the unauthorized practice of law. Anyone harmed by an individual practicing law

without authorization should contact the appropriate law enforcement or consumer

protection agency.” (EOIR, Immigration Court Practice Manual (rev. Aug. 2, 2018)

§ 10.3(e).5) The manual also states: “Immigration specialists — who include visa

consultants and ‘notarios’ — are not authorized to practice law or appear before the




       5      Available at <https://www.justice.gov/eoir/page/file/1084851/download>,
as of May 1, 2019.


                                             18
Immigration Court. These individuals may be violating the law by practicing law without

a license.” (Id., § 2.7.) This is necessarily a reference to state law.6

       Defendant also points to the EOIR’s Fraud and Abuse Prevention Program. (See

<https://www.justice.gov/eoir/fraud-and-abuse-prevention-program>, as of May 1, 2019.)

“The Fraud Program investigates complaints of fraud, scams, and unauthorized

practitioners . . . .” (Ibid.) However, it also “supports fraud and unauthorized

practitioner investigations, prosecutions, and disciplinary proceedings initiated by local

[and] state . . . law enforcement and disciplinary authorities.” (Ibid.) Its website includes

a link entitled, “How Do I Report a Scam or an Unauthorized Practitioner to State or

Local Officials?” (ibid.); when clicked, on it leads to a page indicating that “the

unauthorized practice of immigration law” in California is governed by the “Immigration

Consultants Act” and should be reported to the state Attorney General or the State Bar.

(Report Immigration Scams, <https://www.uscis.gov/avoid-scams/report-scams>, as of

May 1, 2019.)

       In sum, then, there is a clear federal intent to allow the states to penalize federally

unauthorized persons for providing “representation” in immigration matters. And, of

course, to the extent that what defendant was doing was not “representation,” as defined

by federal law, there was no federal concern whatsoever about state regulation of her

conduct.

       6      The EOIR’s Board of Immigration Appeals Practice Manual (rev. Oct. 16,
2018), available at <https://www.justice.gov/eoir/page/file/1103051/download>, as of
May 1, 2019, contains virtually identical provisions. (Id., §§ 2.7, 11.3(a))

                                              19
              3.      Field preemption.

       Although defendant mentions field preemption, we do not understand her to be

relying on it. All of her arguments turn on the state law being in conflict with, or an

obstacle to the accomplishment of the intention of, federal law. If only out of an excess

of caution, then, we note that, for the reasons already stated, field preemption also does

not apply. The federal regulation is not so comprehensive as to leave no room for state

regulation; while it specifies who may (and may not) provide representation before the

USCIS, it offers only an incomplete enforcement mechanism. Moreover, there are ample

indicia of a federal intent to allow for state regulation.

                                               III

   THE SUFFICIENCY OF THE EVIDENCE OF THEFT BY FALSE PRETENSES

       Defendant contends that there was insufficient evidence, with respect to (1)

reliance by her clients and (2) fraudulent intent, to support her theft convictions.

       A.     General Legal Principles.

       “In addressing a claim of insufficient evidence to support a conviction, this court

“‘reviews the entire record in the light most favorable to the prosecution to determine

whether it contains evidence that is reasonable, credible, and of solid value, from which a

rational trier of fact could find the defendant guilty beyond a reasonable doubt.’”

[Citation.] ‘We presume every fact in support of the judgment the trier of fact could have

reasonably deduced from the evidence. [Citation.] If the circumstances reasonably

justify the trier of fact’s findings, reversal of the judgment is not warranted simply


                                               20
because the circumstances might also reasonably be reconciled with a contrary finding.’

[Citation.]” (People v. Jackson (2016) 1 Cal.5th 269, 345.) “[T]he relevant inquiry on

appeal is whether, in light of all the evidence, ‘any reasonable trier of fact could have

found the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Zaragoza

(2016) 1 Cal.5th 21, 44.)

       In California, the statutory crime of theft can be committed under three distinct

theories: (1) larceny, (2) embezzlement, and (3) obtaining property by false pretenses.

(People v. Gonzales (2017) 2 Cal.5th 858, 864-866.) Defendant did not commit larceny,

because she took her clients’ money with their consent. (See id. at p. 864.) She did not

commit embezzlement, because she did not misappropriate money that she lawfully

possessed. (Ibid.) Rather, the trial court found her guilty on a theory of theft by false

pretenses.

       “[T]heft by false pretenses . . . requires . . . that ‘(1) the defendant made a false

pretense or representation to the owner of property; (2) with the intent to defraud the

owner of that property; and (3) the owner transferred the property to the defendant in

reliance on the representation.’ [Citation.]” (People v. Williams (2013) 57 Cal.4th 776,

787, italics omitted.) Here, the trial court found that defendant made a false

representation “by holding herself out as an immigration consultant when she was not

qualified to be an immigration consultant.” It further found that she knew she was not

qualified to be an immigration consultant, and she had the specific intent to obtain money

from her clients by deceiving them. Finally, it found that each of the victims “paid


                                              21
money to defendant . . . in reliance upon defendant’s representations. . . that she was an

immigration consultant.” Defendant challenges the latter two findings.

        B.     Reliance.

        “‘“[T]he express testimony of a victim of false pretense that he was induced to

part with his money by the fraudulent statements of the accused is not essential. It is

sufficient if the inference of his reliance could have been drawn from all the evidence.”’

[Citations.]” (Perry v. Superior Court of Los Angeles County (1962) 57 Cal.2d 276, 285-

286.)

        For example, in People v. Frankfort (1952) 114 Cal.App.2d 680, the defendants

sold parcels of real property, which came with membership in a country club, to various

buyers (id. at pp. 686-687, 689-691); in the course of doing so, they made false

representations about such matters as financing, maintenance fees, the supply of mineral

water, and their plans to build a health resort. (Id. at pp. 691-692.) Some but not all of

the buyers testified that they relied on the misrepresentations. Nevertheless, the appellate

court held that the trial court could justifiably infer reliance. (Id. at p. 699.) It reversed

the convictions on only two counts, in connection with which the particular victim

affirmatively testified that he or she did not rely. (Ibid.)

        Here, likewise, the trial court could infer reliance. Defendant agreed to provide

specific immigration services to each of the victims; in return, the victims agreed to pay

her hundreds or thousands of dollars. Most of the victims met with her at her office,

where she had signs advertising her immigration services. Some of the victims had also


                                               22
seen ads stating that she provided immigration services. The conclusion is not only

reasonable but compelling that, if the victims had known that she could not legally

provide the immigration services that she promised, they would not have paid her.

       C.      Fraudulent Intent.

       The trial court could also reasonably find fraudulent intent. When an investigator

questioned defendant, she admitted knowing that she was required to have a background

check and to post a bond, but she had not done so.

       In her training to become a paralegal, defendant had studied immigration law. She

also researched immigration law at the library, online, and by talking to immigration

officers. At the preliminary hearing, she testified:

       “Q. . . . [Y]ou’re aware that the State of California requires you to pass a

background check, right?

       “A. I didn’t know about that until 2015.

       “Q. And you’re aware that you’re also required to have a $100,000 bond on file;

correct? [¶] . . .

       “[A.] Yes, I read about that.

       “Q. . . . You did know that?

       “A. Yes.”

       Because she carefully specified when she learned about the background check

requirement, but she did not specify when she learned about the bond requirement, it is

fairly inferable that she knew about the bond requirement at all relevant times.


                                             23
        At trial, she claimed that she did not learn that she needed a bond until September

or November 2013. However, this was contradicted by the fact that she apparently did not

tell the investigator this. It was further contradicted by her claim at the preliminary

hearing that she supposedly did not learn about the background check requirement until

2015.

        Defendant nevertheless argues that she did not have fraudulent intent because she

could actually do the work that she promised to do for her clients — “the evidence was

she assisted many people over many years to legally obtain valid green cards, visas,

citizenship etc.” The People’s response is apt: “Appellant’s ability to evade law

enforcement prior to the instant case is immaterial . . . .” She may have hoped to get

away with acting as an immigration consultant, but at the same time, she knew she might

not. However, she did not share this fact with her clients. As a matter of fact, once

defendant was arrested, she was unable to complete her open cases.

                                             IV

                ELECTRONIC SEARCH CONDITION OF PROBATION

        Probation condition 39 requires defendant to “[s]ubmit to immediate search and

seizure of computers, memory storage devices, electronic mail, internet accounts, and

data and information contained therein; with or without reasonable cause by the probation




                                             24
officer or law enforcement.” Defendant contends that this condition is unreasonable and

unconstitutional.7

        A.     Forfeiture.

        Preliminarily, the People contend that defendant forfeited this contention by

failing to object at sentencing.

        “As a rule, failure to object to a probation condition in the trial court on standard

state law or reasonableness grounds forfeits the claim for appeal. [Citation.]” (People v.

Moran (2016) 1 Cal.5th 398, 405, fn. 7.) Defendant argues, however, that if so, her trial

counsel’s failure to object constituted ineffective assistance of counsel. We exercise our

discretion to decide the issue on the merits to obviate the need to address her alternative

ineffective assistance of counsel claim. (In re Victor L. (2010) 182 Cal.App.4th 902,

928.)

        B.     Reasonableness.8

        “Consistent with established law, we first address whether the probation condition

was permissible under state law before turning to resolve any potential federal

constitutional issue posed in the case.” (People v. Moran, supra, 1 Cal.5th at pp. 401-

402, fn. omitted.)

        7     In her opening brief, defendant similarly challenged probation conditions
37 and 38, which also related to electronic data. As she now concedes, however, the trial
court did not actually impose these conditions.
        8     The question of whether an electronic search condition is unreasonable
under state law is currently pending before the Supreme Court in In re Ricardo P. (2015)
241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.

                                              25
       A probation condition is unreasonable if 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

. . . .”’ [Citation.]” (People v. Anderson (2010) 50 Cal.4th 19, 32.)

       “On appeal, ‘[w]e review conditions of probation for abuse of discretion.’

[Citation.] That is, a reviewing court will disturb the trial court’s decision to impose a

particular condition of probation only if, under all the circumstances, that choice is

arbitrary and capricious and is wholly unreasonable. [Citation.]” (People v. Moran,

supra, 1 Cal.5th at p. 403.)

       There is no evidence that defendant’s crimes involved computers or the internet.9

And using computers or the internet is not, in itself, criminal. Accordingly, the key

question is whether this condition relates to future criminality.

       “‘A condition of probation that enables a probation officer to supervise his or her

charges effectively is, therefore, ‘reasonably related to future criminality.’ [Citations.]”

(People v. Olguin (2008) 45 Cal.4th 375, 380-381.)

       “‘[P]robation conditions authorizing searches ‘aid in deterring further offenses . . .

and in monitoring compliance with the terms of probation. [Citations.] By allowing

close supervision of probationers, probation search conditions serve to promote

rehabilitation and reduce recidivism while helping to protect the community from

       9     The police seized computers from defendant but never actually searched
them. According to the probation report, defendant obtained clients through television,
radio, magazine, and newspaper ads.

                                             26
potential harm by probationers.’ [Citation.]” (People v. Olguin, supra, 45 Cal.4th at

p. 380.) In particular, “a warrantless search condition is intended to ensure that the

subject thereof is obeying the fundamental condition of all grants of probation, that is, the

usual requirement (as here) that a probationer ‘obey all laws.’” (People v. Balestra

(1999) 76 Cal.App.4th 57, 67.)

       In this respect, we see no relevant difference between an electronic search

condition and any other search condition. We recognize that a computer (or similar

memory storage device) is qualitatively different from the home or the person, because it

makes some information available that was unavailable before — e.g., a list of person’s

Google searches. (See Riley v. California (2014) ___ U.S. ___, ___ [134 S.Ct. 2473,

2491].) At the same time, however, it makes new crimes possible that were impossible

before, such as ransomware installation, and it facilitates existing crimes, such as identity

theft. Therefore, an electronic search condition is reasonably related to supervising a

probationer’s rehabilitation and compliance with the law. (In re P.O. (2016) 246

Cal.App.4th 288, 295-296.)

       Defendant relies on In re Erica R. (2015) 240 Cal.App.4th 907, which held an

electronic search condition invalid as applied to a juvenile who had committed possession

of Ecstasy. (Id. at pp. 911-915.) The court, however, distinguished a case upholding a

general search condition, on the ground that it “involved an adult probationer, not a

juvenile probationer . . . . Courts have recognized that a ‘minor cannot be made subject

to an automatic search condition; instead, such condition must be tailored to fit the


                                             27
circumstances of the case and the minor.’ [Citations.]” (Id. at p. 914.) Thus, it implied

that an electronic search condition, as applied to an adult, would have to be upheld.

       In a footnote, defendant also challenges a separate probation condition that

requires her to “[d]isclose your true identity, including residence address and telephone

number, in any advertisement, notice, or offer to sale and/or purchase on the internet.”

We deem this contention forfeited, because it is not within the scope of any of the

headings in her brief, and because it is not supported by any analysis or citation of

authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Nguyen (2013) 212

Cal.App.4th 1311, 1325.) However, we do note that, assuming this condition was valid,

the challenged electronic search condition was necessary to monitor defendant’s

compliance with it.

       We therefore conclude that the challenged search condition was reasonable as a

matter of state law.

       C.     Constitutionality.

       “If a probation condition serves to rehabilitate and protect public safety, the

condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer,

who is “not entitled to the same degree of constitutional protection as other citizens.”’

[Citation.]” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355.)

       Nevertheless, “‘“[a] probation condition that imposes limitations on a person’s

constitutional rights must closely tailor those limitations to the purpose of the condition

to avoid being invalidated as unconstitutionally overbroad.” [Citation.] “The essential


                                             28
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.” [Citation.]’ [Citations.]”

(People v. Guzman (2018) 23 Cal.App.5th 53, 64.)

          “We review ‘constitutional challenges to probation conditions de novo.’

[Citation.]” (People v. Guzman, supra, 23 Cal.App.5th at p. 64.)

                 1.     Self-incrimination.

          Defendant contends that the challenged condition implicitly requires her to

disclose her passwords, and hence it requires her to incriminate herself.

          “[I]t would raise serious constitutional questions to require defendants to waive

their privilege against self-incrimination as a condition of probation.” (People v. Garcia

(2017) 2 Cal.5th 792, 803.) However, “a [s]tate may validly insist on answers to even

incriminating questions and hence sensibly administer its probation system, as long as it

recognizes that the required answers may not be used in a criminal proceeding and thus

eliminates the threat of incrimination.” (Minnesota v. Murphy (1984) 465 U.S. 420, 435,

fn. 7.)

          The California Supreme Court’s decision in People v. Garcia, supra, 2 Cal.5th

792 is all but on point. There, the defendant was convicted of sex offenses and placed on

probation. (Id. at p. 799.) As required by Penal Code section 1203.067, subdivision




                                               29
(b)(3), the trial court made it a condition of probation that he had to waive the privilege

against self-incrimination and submit to polygraph examinations. (Ibid.)

       The Supreme Court held that, in order to avoid any constitutional question, the

probation condition had to be construed to mean that “a probationer is required to answer

the questions posed by the containment team, on pain of probation revocation should the

probationer refuse. In turn, the probationer’s compelled responses may not be used

against the probationer in a subsequent criminal prosecution. [Citation.]” (People v.

Garcia, supra, 2 Cal.5th at p. 807.) It then upheld the constitutionality of the condition,

as so construed: “As this court has previously explained, the Fifth Amendment does not

establish a privilege against the compelled disclosure of information; rather, it ‘precludes

the use of such evidence in a criminal prosecution against the person from whom it was

compelled.’ [Citation.]” (Ibid.)

       Defendant relies on United States v. Kirschner (E.D. Mich. 2010) 823 F.Supp.2d

665. There, however, the prosecution subpoenaed the defendant to testify before a grand

jury; the subpoena required him to disclose computer passwords. (Id. at p. 666.) Thus,

there was no question that the government was seeking to compel the disclosure of the

passwords for use as evidence in a criminal prosecution. Kirschner does not apply when

(1) the government is seeking to compel the disclosure of passwords for purposes of

probation supervision, and (2) the defendant can still prevent their use in evidence.

       Accordingly, if and to the extent that the challenged condition requires defendant

to disclose passwords, it does not preclude her from invoking her right against self-


                                             30
incrimination, after such a disclosure, to preclude the use of the disclosure against her in

a criminal prosecution. The condition, as thus construed, does not violate that

constitutional right.

              2.        Other constitutional rights.

       Defendant also contends that the challenged condition violates her First

Amendment, Fourth Amendment, and privacy rights.

       The Supreme Court has granted review in a number of recently published cases

involving this issue. (E.g., People v. Maldonado (2018) 22 Cal.App.5th 138 [electronic

search condition not overbroad], review granted June 20, 2018, S248800; People v.

Valdivia (2017) 16 Cal.App.5th 1130 [electronic search condition overbroad], review

granted Feb. 14, 2018, S245893.) The grants of review, however, were limited to the

issue of reasonableness under state law, not constitutional overbreadth. Thus, the

Supreme Court is not likely to decide the present issue. Moreover, while these cases are

citable (Cal. Rules of Court, rule 8.1115(e)(1)), they are in conflict; they do not point in

any clear direction. Hence, we analyze the issue afresh.

       As discussed in part IV.B, ante, we see no relevant difference between an

electronic search condition and any other search condition. Once again, defendant relies

on Riley v. California, supra, 134 S.Ct. 2473, which held that a search of an arrestee’s

cell phone requires a warrant. In the course of doing so, the court observed that “[c]ell

phones differ in both a quantitative and a qualitative sense from other objects that might

be kept on an arrestee’s person” (id. at p. 2489), so that a search of cell phone data is


                                               31
more intrusive and more violative of privacy than a conventional search incident to arrest.

(Id. at pp. 2489-2491.) The court cautioned, however: “Our holding, of course, is not

that the information on a cell phone is immune from search . . . .” (Id. at p. 2493.)

“[E]ven though the search incident to arrest exception does not apply to cell phones,

other case-specific exceptions may still justify a warrantless search of a particular

phone.” (Id. at p. 2494.)

       Defendant, as a probationer, is in a materially different position that the arrestee in

Riley. She has been tried and found guilty of crimes. As a result, she has a lesser

expectation of privacy. “Inherent in the very nature of probation is that probationers ‘do

not enjoy “the absolute liberty to which every citizen is entitled.”’ [Citation.] Just as

other punishments for criminal convictions curtail an offender’s freedoms, a court

granting probation may impose reasonable conditions that deprive the offender of some

freedoms enjoyed by law-abiding citizens.” (United States v. Knights (2001) 534 U.S.

112, 119.) As already discussed, the unique qualities of cell phones (and similar

electronic devices) may make a search more intrusive; however, they also open up new

avenues to crime and necessitate new methods of supervision.

       Significantly, defendant does not suggest how the challenged condition could be

made narrower and yet still be effective.10 She argues that “the condition[] intrude[s]


       10      At oral argument, defendant’s counsel suggested that the search condition
could be limited to defendant’s business-related files. But how is a probation officer to
know which files are business-related without searching them? And for obvious reasons,
it cannot be left up to defendant to designate which of her files are business-related.

                                             32
broadly and indiscriminately on the most intimate details of [her] private life — her

movement, associations, political and religious beliefs, and her personal, romantic, and

sexual expression and thought. The condition[] chill[s] her ability to have frank and open

conversations with partners, friends, family members, and acquaintances.” However, due

to her counsel’s failure to object below, as well as the resulting failure to develop an

evidentiary record, we can only consider the impact of the challenged electronic search

condition on its face; we cannot consider any particularized impact it may have on

defendant. In any event, defendant’s concerns are overblown, given that a probation

search “must be reasonably related to the purposes of probation” (People v. Robles

(2000) 23 Cal.4th 789, 797) and not harassing, arbitrary, or capricious. (People v. Bravo

(1987) 43 Cal.3d 600, 610.)

       In re P.O., supra, 246 Cal.App.4th at pp. 297-298 and In re Malik J. (2015) 240

Cal.App.4th 896, 901-904 held that, at least in most cases, an electronic search condition

is overbroad. These cases are distinguishable, however, because they involved juveniles.

Unlike an adult, “a minor cannot be made subject to an automatic search condition;

instead, such condition must be tailored to fit the circumstances of the case and the

minor. [Citations.]” (People v. Rios (2011) 193 Cal.App.4th 584, 597.)

       In addition, People v. Appleton (2016) 245 Cal.App.4th 717 held an electronic

search condition overbroad in the case of an adult. (Id. at pp. 724-727.) However, we

respectfully disagree with the reasoning in Appleton.




                                             33
       First, the court rejected the analogy to a general search condition, reasoning that

the cases upholding a general search condition had not been decided in the context of the

original imposition of the condition at sentencing, but rather in the context of a challenge

to the resulting search. (People v. Appleton, supra, 245 Cal.App.4th at pp. 724-725.)

While that may be true of the cases that Appleton cited, this court has upheld a general

search condition in the context of the original imposition of the condition at sentencing.

(People v. Adams (1990) 224 Cal.App.3d 705, 711-712.) We noted that “a warrantless

search condition is intended [to] and does enable a probation officer ‘“to ascertain

whether [the defendant] is complying with the terms of probation; to determine not only

whether [the defendant] disobeys the law, but also whether he obeys the law.

Information obtained . . . would afford a valuable measure of the effectiveness of the

supervision given the defendant and his amenability to rehabilitation.”’ [Citation.]” (Id.

at p. 712.)11

       Second, Appleton reasoned, citing Riley, that an electronic search condition is

more “invasive” than a general search condition. (People v. Appleton, supra, 245

Cal.App.4th at p. 725.) For the reasons already stated, we do not find Riley particularly

relevant to the validity of a probation condition.

       11       Our Supreme Court has similarly endorsed the effectiveness of a general
search condition: “[P]robation conditions authorizing searches ‘aid in deterring further
offenses . . . and in monitoring compliance with the terms of probation. [Citations.] By
allowing close supervision of probationers, probation search conditions serve to promote
rehabilitation and reduce recidivism while helping to protect the community from
potential harm by probationers.’ [Citation.]” (People v. Olguin, supra, 45 Cal.4th at
p. 380.)

                                             34
       We look instead to People v. Ebertowski (2014) 228 Cal.App.4th 1170, which,

while not perfectly on point, is persuasive. It held that probation conditions requiring the

defendant to provide the passwords to his electronic devices and social media accounts

were not overbroad so as to unduly impinge on his constitutional rights to privacy,

speech, and association (id. at pp. 1175-1176): “‘Defendant’s constitutional privacy

rights are not improperly abridged by the password conditions any more than they are by

the search condition. Even where there is ‘(1) a legally protected privacy interest; (2) a

reasonable expectation of privacy under the circumstances; and (3) conduct constituting a

serious invasion of the privacy interest,’ the constitutional right to privacy is not violated

if ‘the invasion of the privacy interest is justified because it substantially furthers one or

more legitimate competing or countervailing privacy or non-privacy interests.’

[Citation.] Here, the competing interest is the state’s interest in preventing defendant

from continuing his violent gang associations and activities. . . . The minimal invasion of

his privacy that is involved in the probation officer monitoring defendant’s use of his

devices and his social media accounts while defendant is on probation is outweighed by

the state’s interest in protecting the public from a dangerous criminal who has been

granted the privilege of probation.” (Id. at p. 1176, fn. omitted.)

       Defendant may not be a violent gang member, but she is a convicted thief who

victimized eight people (or more, if you include the counts that were dismissed as time-

barred) by taking money that they could ill afford to lose. The state has the same interest

in monitoring her probation as it had in monitoring Ebertkowski’s — namely, promoting


                                              35
the defendant’s rehabilitation while protecting the public. The challenged electronic

search condition serves this purpose. Defendant has not shown that a narrower search

condition would do the same.

                                            V

                                     DISPOSITION

      The judgment is affirmed.

      CERTIFIED FOR PARTIAL PUBLICATION
                                                              RAMIREZ
                                                                                        P. J.


I concur:

McKINSTER
                          J.




                                            36
       RAPHAEL, J., Concurring and Dissenting.

       Can the State subject a probationer whose crime did not involve computers or the

internet to warrantless, suspicionless searches of her cell phone and other electronic

storage devices? Because United States Supreme Court precedent suggests that the

Fourth Amendment requires reasonable suspicion for such searches, I dissent from

Section IV of today’s opinion. I join the other sections.

                                              I.

       The majority recognizes that “[t]here is no evidence that defendant’s crimes

involved computers or the internet.” (Maj. opn., ante, at p. 26.) Nevertheless, the

majority permits probation condition 39, which authorizes warrantless, suspicionless

searches for digital information on defendant’s cell phone or other electronic storage

devices whenever requested by a probation officer or law enforcement. (Maj. opn. ante,

at pp. 24-36.)

       In general, “[a] probation condition that imposes limitations on a person’s

constitutional rights must closely tailor those limitations to the purpose of the condition

to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40

Cal.4th 875, 890; see People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [“Where a

condition of probation requires a waiver of constitutional rights, the condition must be

narrowly drawn.”].)

       The United States Supreme Court is the final arbiter of the scope of the rights

under the Fourth Amendment to the United States Constitution. Three aspects of its case


                                              1
law, taken together, persuade me that the Fourth Amendment requires reasonable

suspicion for a blanket condition authorizing electronic searches of a probationer’s digital

devices, at least where the probationer’s crime did not involve computers or the internet.

These are (1) the special protection afforded an individual’s digital data, (2) the Court’s

application of the reasonable suspicion standard to probation searches, and (3) the

Court’s confirmation that probationers retain Fourth Amendment rights. Considering

these together, I conclude that the condition authorizing suspicionless searches of

defendant Sara Salcido’s digital evidence is not narrowly drawn.

                                              A.

       First, in a landmark opinion interpreting the Fourth Amendment, the Supreme

Court held that digital evidence from a cell phone receives categorically greater

constitutional protection than does ordinary physical evidence. In Riley v. California

(2014) 573 U.S. 373 (Riley), the Court established that “[m]odern cell phones, as a

category, implicate privacy concerns far beyond those implicated by the search of a

cigarette pack, a wallet, or a purse.” (Riley, supra, at p. 393; see id. [“[c]ell phones differ

in both a quantitative and a qualitative sense from other objects that might be kept on an

arrestee’s person. . . . . . . [M]any of these devices are in fact minicomputers that also

happen to have the capacity to be used as a telephone. They could just as easily be called

cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums,

televisions, maps, or newspapers.”].)




                                               2
       Whereas the interior of a citizen’s home has long been the “prototyptical” area of

Fourth Amendment protection (Kyllo v. United States (2001) 533 U.S. 27, 34), the Court

in Riley observed that “a cell phone search would typically expose to the government far

more than the most exhaustive search of a house . . . .” (Riley, supra, 571 U.S. at p. 396.)

Consequently, the court held that cell phones were an exception to the general rule that

property on an arrestee’s person may be searched incident to arrest without suspicion.

That is, as to the digital evidence on a cell phone, the Supreme Court held that the search-

incident-to-arrest exception to the warrant requirement does not apply. Before police can

search a cell phone on an arrestee’s person, they must “get a warrant.” (Id. at p. 403.)

       Today’s majority “see[s] no relevant difference between an electronic search

condition and any other search condition.” (Maj. opn., ante, at p. 27.) This is a

misunderstanding of Riley’s central point: an electronic search condition is far more

invasive to a subject’s privacy than a search of an ordinary object. To be sure, a court

may consider the invasiveness of a suspicionless electronic search and determine that the

invasion is permissible in a particular context. But we must take seriously Riley’s special

treatment of electronic search conditions. After Riley, I believe that a court cannot

simply dismiss an electronic search condition as no different than other search conditions.

       After recognizing Riley’s holding that electronic search conditions are particularly

invasive, we must carefully consider whether it is the case that, as the majority concludes,

defendant Sara Salcido “as a probationer, is in a materially different position than the

arrestee in Riley.” (Maj. opn., ante, at p. 32.) Both a probationer and an arrestee have


                                             3
diminished Fourth Amendment interests. That is, Riley rejected a suspicionless search of

an arrestee’s phone even though an arrestee has “reduced privacy interests upon being

taken into police custody.” (Riley, supra, 573 U.S. at p. 391.) The Court nevertheless

held that those “diminished privacy interests” did not mean “that the Fourth Amendment

falls out of the picture entirely.” (Id. at p. 392.) Like arrestees, probationers have lesser

expectation of privacy than do other citizens, but it does not necessarily follow that the

Fourth Amendment vanishes as to them. Riley’s heightened protection for digital

searches may apply differently in different contexts, yet it still must be considered in each

context rather than simply dismissing Riley as only a search-incident-to-arrest case. (See,

e.g., Carpenter v. United States (2018) 138 S. Ct. 2206, 2219-2220 [citing Riley in

holding that the Fourth Amendment requires a warrant for the government to acquire a

suspect’s cell phone site information from third parties, despite no such requirement for

standard business records]; United States v. Kolsuz (4th Cir. 2018) 890 F.3d 133, 144

[though routine border searches do not require suspicion, Riley requires that a border

search of a cell phone is “permissible only on a showing of individualized suspicion”].)1


       1   The majority relies on Riley’s statement that there may be “case-specific
exceptions [that] justify a warrantless search of a particular phone” (Riley, supra, 573
U.S. at pp. 401-402; see maj. opn., ante, at p. 33). That statement in Riley refers to
exigencies such as a “fleeing suspect” (Riley, supra, at p. 402) and does not apply to our
consideration of whether a blanket suspicionless search condition of a probationer’s
electronic data is permissible. That is, the condition in this case is not a “case-specific
exception” but a complete authorization to examine without limitation any electronic
record, and an authorization that the prosecution apparently believes it could seek for any
probationer. On a different record than this one, the Supreme Court’s “case-specific
exception” language and analysis may allow a suspicionless electronic search condition
that is tailored to a particular defendant based on his or her crime or history.
                                              4
       The second important aspect of Supreme Court law is that the Court has never

upheld a probation search or condition that permits authorities to search without any

suspicion or cause. Rather, when it has upheld probation searches, the Court has relied

on the fact that they have been supported by reasonable suspicion. (Griffin v. Wisconsin

(1987) 483 U.S. 868, 876 [upholding probation search where “the special needs of

Wisconsin’s probation system make the warrant requirement impracticable and justify

replacement of the standard of probable cause by ‘reasonable grounds’ as defined by the

Wisconsin Supreme Court”]; United States v. Knights (2001) 534 U.S. 112, 121 & fn. 6

(Knights) [holding that “no more than reasonable suspicion” of criminal activity is

required to search particular probationer’s house and not reaching constitutionality of

suspicionless search].) It is one thing to hold that probationers lose the protections of the

Fourth Amendment’s warrant and probable cause requirements; it is a further step to hold

that—based solely on the fact that they are probationers—they may be subject to searches

absent any suspicion. The Supreme Court has thus far not authorized that step in any

context, much less with regard to digital evidence that it specially protected in Riley.

       Finally, when the Supreme Court upheld a suspicionless search of a cigarette box

in a parolee’s pocket in Samson v. California (2006) 547 U.S. 843 (Samson), it relied on

a distinction between probation and parole. The Court held that on the “continuum” of

state-imposed punishments, “parolees have fewer expectations of privacy than

probationers.” (Id. at 850.) Parole is additional punishment for a defendant who




                                              5
warranted incarceration making it “more akin to imprisonment than probation is to

imprisonment.” (Ibid.)

       Samson thereby suggested, without deciding, that a suspicionless search of even

an ordinary object carried by a probationer, rather than a parolee, might not be

permissible. That question is not at issue here, because this case presents yet a deeper

intrusion into a probationer’s Fourth Amendment rights, as the majority today holds that

a suspicionless search of the contents of a probationer’s digital storage devices is

permissible as a blanket matter. Such data receives heightened protection under Riley. If

every probationer can be made subject to such suspicionless searches for digital evidence

on their cell phones and home computers, it is hard to see what would remain of the

greater protection on the Fourth Amendment “continuum” that Samson afforded

probationers. Consequently, it seems to me that current Supreme Court precedent

indicates that probation condition 39 is unconstitutionally overbroad under the Fourth

Amendment, insofar as it authorizes suspicionless searches rather than those based on

reasonable suspicion.

                                             B.

       We are not bound by the constitutional law applied by federal courts of appeals,

yet those courts also persuasively support the conclusion that the Fourth Amendment

requires reasonable suspicion for a blanket digital search condition of a probationer.

       Under federal law, “warrantless, suspicionless search conditions . . . should not be

routinely imposed.” (United States v. Cervantes (9th Cir. 2017) 859 F.3d 1175, 1184.)


                                             6
They may be imposed where particular facts justify the suspicionless search condition.

(Ibid.) Accordingly, federal statutes do not contain a generally applicable condition

authorizing suspicionless searches of federal probationers. (See 18 U.S.C. § 3563; 18

U.S.C. § 3583 [supervised release].)

       There is, however, one way to see how the federal appellate courts may approach a

probation condition authorizing suspicionless digital searches. For federal sex offenders

only, the United States Code contains a discretionary probation condition requiring that

the defendant submit his person and property, including electronics, to a search at any

time by law enforcement or probation officers. (See 18 U.S.C. § 3563(b)(23); 18 U.S.C.

§ 3583(d)(3) [supervised release].) That search condition, however, contains a

reasonable suspicion requirement. (Ibid.)

       When federal appellate courts across the nation have approved the imposition of

the sex-offender electronic search condition post-Riley, they have expressly relied on the

requirement of reasonable suspicion. (United States v. Winston (8th Cir. 2017) 850 F.3d

377, 382 [“The search condition also is not excessive . . . because it is limited to searches

conducted in a reasonable manner at a reasonable time and only upon reasonable

suspicion.”]; United States v. Parisi (2d Cir. 2016) 821 F.3d 343, 348 [“the new search

condition includes an outside constraint—Probation Services must have a reasonable

suspicion that Parisi has violated a condition of his release or engaged in unlawful

conduct before it engages in a search”]; United States v. Winding (5th Cir. 2016) 817

F.3d 910, 917 [“A warrantless search of Winding’s electronic devices is permitted only


                                              7
‘upon reasonable suspicion’ of lawbreaking, thereby subjecting Winding at most to

intermittent searches (and perhaps none at all if there is never reasonable suspicion)”];

United States v. Kappes (7th Cir. 2015) 782 F.3d 828, 862 [relying on understanding that

digital search “may only be done if the probation officer has reasonable suspicion to

believe that Jurgens is in violation of a condition of supervised release”].)

       Furthermore, in a post-Riley federal case, the Ninth Circuit Court of Appeals

invalidated a suspicionless search of a California probationer’s cell phone. (United States

v. Lara (9th Cir. 2016) 815 F.3d 605, 612.) In balancing the probationer’s privacy

interests against the government’s interests, that court considered the principles

articulated in Knights, Samson, and Riley. (United States v. Lara, supra, at pp. 610-612.)

On the particular facts, the court held that that although the defendant’s Fourth

Amendment privacy interest was “somewhat diminished,” the interest “was nonetheless

sufficiently substantial to protect him from the two cell phone searches at issue here.”

(Id. at p. 612.) Although Lara involved a challenge to a particular search rather than a

blanket condition, the fact that the search was held unconstitutional counsels against

approving carte blanche to search, rather than requiring conditions tailored to a

defendant’s crimes or requiring reasonable suspicion.2

       2 The majority mixes the question of the reasonableness of the scope of a valid
computer search with the question of whether a search is reasonable in the first place.
(Maj. opn., ante, at p. 32, fn. 10.) As to the execution of search warrants for computers,
cases have held warrants overbroad if they lack an affidavit presenting a “reasonable
explanation” for the extent of the seizure of data. (See United States v. Hill (9th Cir.
2006) 459 F.3d 966, 975-977 [discussing cases].) Likewise, if a law enforcement officer
has reasonable suspicion that particular evidence might be found on a probationer’s

                                              8
       In my view, this federal appellate case authority supports the conclusion that

blanket probation conditions authorizing suspicionless digital searches are unreasonable

under the Fourth Amendment, at least where the probationer’s offense does not involve

the use of the internet or computers.

                                             C.

       Our Court of Appeal’s case law is split as to the constitutionality of probation

conditions that authorize digital searches. Because of the United States Supreme Court

law discussed above, I would follow those authorities that find such conditions

overbroad. (See People v. Valdivia (2017) 16 Cal.App.5th 1130, 1141-1147, review

granted Feb. 14, 2018, S245893; In re P.O. (2016) 246 Cal.App.4th 288, 297-298;3

computer or cell phone, the officer must merely act reasonably in pursuing that evidence.
But a search would be unreasonable if there was no reasonable explanation for the extent
of the officer’s search. For instance, if an officer had suspicion that warranted reviewing
the location history on a probationer’s cell phone, it would not be reasonable to (for
example) read personal text messages. If an officer had suspicion that a probationer set
up a drug deal by text message the previous day, it would not be reasonable to read all his
personal email, or to review his tax returns housed on his computer.

       3   Cases involving minors subject to suspicionless probation search conditions are
applicable here, in my view. The majority distinguishes such cases on the ground that a
special rule requires tailoring of conditions imposed on minors. (Maj. opn., ante, at p.
34.) But when the Court of Appeal decided In re P.O., for example, it did not rely on
such a special rule but on the same privacy and overbreadth principles that would apply
to an adult. (In re P.O., supra, 246 Cal.App.4th at pp. 297-298.) Generally speaking,
courts have greater authority to impose probation conditions on minors, because minors
lack the full constitutional rights of adults and are more in need of guidance. (E.g., In re
Sheena K., supra, 40 Cal.4th at p. 889.) A case now under review by our Supreme
Court—the lead case of several dealing with probationary digital search conditions—
involves a minor, and the Court of Appeal there struck down the search condition even
after articulating the principle that a condition not permitted for an adult may be
permitted for a minor. (In re Ricardo P. (2016) 241 Cal.App.4th 676, review granted

                                              9
People v. Appleton (2016) 245 Cal.App.4th 717, 723-727 [condition overbroad even

where crime involved internet]; but see, e.g., People v. Nachbar (2016) 3 Cal.App.5th

1122, 1128-1130, review granted Dec. 14, 2016, S238210 [electronic search condition

not overbroad].) Having reached this conclusion, I would not reach the other challenges

to the probation condition that Salcido raises.

                                             II.

       The majority appropriately recognizes that a probation search must not be

“harassing, arbitrary, or capricious.” (Maj. opn, ante, at p. 33.) But constitutional rights

are not protected by an abstract principle. Once we have authorized warrantless,

suspicionless searches of a probationer’s cell phone and other digital devices, we have, at

least as a practical matter, insulated harassing and arbitrary searches from review. And

we have done so in an area—an individual’s potentially vast reservoir of digital

information—that the United States Supreme Court has instructed merits heightened

protection from intrusion. Under the condition we affirm today, a probation officer (or a

police officer) may thoroughly search defendant Salcido’s cell phone and computers at

any time for no articulable reason at all. That condition is not “closely tailor[ed]” to the

legitimate purposes of monitoring her on probation or preventing her future crimes. (In

re Sheena K., supra, 40 Cal.4th at p. 890.) It is overbroad.




Feb. 17, 2016, S230923.) The majority’s view here articulates an odd state of affairs that
is the opposite of that principle: an adult probationer can be subject to a condition
authorizing a suspicionless search of her cell phone at any time; a juvenile probationer is
protected from such a condition.
                                             10
       A citizen not on probation cannot have her cell phone or computer searched absent

probable cause and a warrant. It is reasonable to treat probationers differently due to

their diminished rights. The U.S. Supreme Court has held that when an officer has

“reasonable suspicion that a probationer . . . is engaged in criminal activity, . . . an

intrusion on the probationer’s significantly diminished privacy interests is reasonable.”

(Knights, supra, 534 U.S. at p. 121.) Under what I think is the most appropriate

application of the Fourth Amendment authorities we have, I would require that

reasonable suspicion standard of blanket electronic search conditions, at least where the

probationer’s crime did not involve the internet or computers. A warrantless and

suspicionless digital search could be based on some ground that is tailored to the

probationer in advance, as part of the conditions of probation, or it could be based on

reasonable suspicion that the probationer has committed a crime or other probation

violation. But it should have some such articulable basis. Where digital evidence is

concerned, we should ensure that “the Fourth Amendment [does not] fall[] out of the

picture entirely.” (Riley, supra, 573 U.S. at 392.)


                                                                  RAPHAEL
                                                                                           J.




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