Filed 7/7/16 P. v. Davis CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D068375

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN342040)

DIONNE DAVIS,

         Defendant and Appellant.

THE PEOPLE,                                                         D068651

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN342040)

MICHAEL SAIA,

         Defendant and Appellant.


         CONSOLIDATED APPEALS from a judgment and order of the Superior Court of

San Diego County, Sim von Kalinowski, Judge. Judgment against Davis affirmed.

Order against Saia reversed with directions.


         Christopher Love, under appointment by the Court of Appeal, for Defendant and

Appellant Dionne Davis.
       Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant Michael J. Saia.

       Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., Ronald Jakob and Stacy Tyler, Deputy Attorneys General, for Plaintiff

and Respondent.

       A jury convicted Dionne Davis and Michael Saia of robbery. (Pen. Code, § 211.)1

In bifurcated proceedings, the trial court found that Davis had suffered four probation

denial priors under section 1203, subdivision (e)(4) and two prison priors under sections

667.5, subdivision (b) and 668. The court sentenced Davis to five years in prison. The

court suspended imposition of Saia's sentence for three years and granted him formal

probation conditioned on spending 365 days in local custody. The court prescribed

various additional terms and conditions of Saia's probation, including a search condition

encompassing Saia's electronic devices.

       Davis and Saia appeal. They contend the court erred by not instructing the jury on

the lesser included offenses of battery (Davis and Saia) and assault (Saia only). Saia

additionally contends his electronic search condition is invalid under People v. Lent

(1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad.

       We conclude any error in failing to instruct the jury on battery and assault was

harmless. We therefore affirm the judgment against Davis. However, we conclude the

electronic search condition imposed as part of Saia's probation is unconstitutionally



1      Further statutory references are to the Penal Code.
                                             2
overbroad. We will therefore direct the trial court to strike the condition and remand for

consideration of a more narrowly tailored condition.

                                            FACTS

         For purposes of this section, we state the evidence in the light most favorable to

the appealed judgment and order. (See People v. Osband (1996) 13 Cal.4th 622, 690;

People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed

where relevant in the following section.

         On President's Day, February 16, 2015, Scott Ackley drank approximately 12

beers and went for an afternoon walk near the beach in Oceanside, California. While he

was walking, Davis and Saia approached him. Saia asked if Ackley wanted to buy some

marijuana. When Ackley declined, either Davis or Saia struck Ackley in the left temple.

Davis then punched Ackley in the stomach, put him in a headlock, and dragged him

behind a parked truck. As Davis and Ackley struggled, Saia went through Ackley's

pockets and took his wallet.

         A passing driver, Javier Williams, witnessed Davis and Saia fight with Ackley.

Ackley looked afraid and surprised. Williams saw Saia ride away on a bicycle with

Ackley's wallet in his hand. Ackley exclaimed "he has my wallet" several times. Ackley

chased Saia, and Williams called police. Davis walked away and tried to blend into the

crowd.

         Police officers arrived and took statements from Ackley and Williams. While

talking with police, Ackley said he got his wallet back. Ackley could not explain



                                               3
precisely how he recovered his wallet; he believed someone handed it to him after police

arrived. Nothing was missing from the wallet.

       Police officers observed an injury to the side of Ackley's head. Ackley appeared

dazed and disoriented from the fight and was feeling the effects of the beers he drank

earlier. Ackley admitted his recollection of the day was "patchy."

       Police officers tracked Saia to a nearby apartment complex, where he was

changing his shirt. Saia ran away and hid in a stairwell. Police officers found Saia and

detained him. Police found Davis nearby and detained her as well. Ackley and Williams

positively identified Davis and Saia, and they were arrested.

       At trial, defense counsel argued that Ackley and Williams had been inconsistent in

their statements, which cast doubt on their testimony. They also pointed to evidence the

police asked Ackley whether he had solicited Davis for sex. (Ackley said he did not

recall.) They claimed this solicitation, not any motive for robbery, caused the altercation

between Ackley and Davis.

                                        DISCUSSION

                                               I

       On appeal, Davis and Saia contend the trial court erred by not instructing the jury

on battery and assault as lesser included offenses of robbery. " ' "It is settled that in

criminal cases, even in the absence of a request, the trial court must instruct on the

general principles of law relevant to the issues raised by the evidence. [Citations.] The

general principles of law governing the case are those principles closely and openly

connected with the facts before the court, and which are necessary for the jury's

                                               4
understanding of the case." [Citation.] That obligation has been held to include giving

instructions on lesser included offenses when the evidence raises a question as to whether

all of the elements of the charged offense were present [citation], but not when there is no

evidence that the offense was less than that charged.' " (People v. Breverman (1998) 19

Cal.4th 142, 154 (Breverman).) " 'On appeal, we review independently the question

whether the court failed to instruct on a lesser included offense.' " (People v. Avila

(2009) 46 Cal.4th 680, 705.)

       "To determine whether a lesser offense is necessarily included in the charged

offense, one of two tests (called the 'elements' test and the 'accusatory pleading' test) must

be met." (People v. Lopez (1998) 19 Cal.4th 282, 288.) Davis and Saia argue the

accusatory pleading test compels instructions on battery and assault as lesser included

offenses of robbery under the circumstances here.2 "Under the accusatory pleading test,

a lesser offense is included within the greater charged offense ' "if the charging

allegations of the accusatory pleading include language describing the offense in such a

way that if committed as specified the lesser offense is necessarily committed." ' " (Id. at

pp. 288-289.) In other words, "if the facts actually alleged in the accusatory pleading

include all of the elements of the lesser offense[,]" the trial court is required to instruct on

the lesser offense. (People v. Bailey (2012) 54 Cal.4th 740, 748.)



2      The Supreme Court has held that assault is not a lesser included offense of robbery
under the elements test. (See, e.g., People v. Parson (2008) 44 Cal.4th 332, 349
["Because a robbery can be committed strictly by means of fear, assault is not a lesser
included offense of robbery under the elements test."].) As Davis concedes in her
briefing, this logic leads to the same conclusion with respect to the crime of battery.
                                               5
       The accusatory pleading here contained the following allegation: "On or about

February 16, 2015, [Davis] and [Saia] did unlawfully and by means of force and fear take

personal property from the person, possession and immediate presence of Scott Ackley,

in violation of [section 211]." Davis and Saia contend that the allegation they used

"force" in connection with the robbery necessarily means they committed battery and

assault as well. This logic was considered and rejected in People v. Wright (1996) 52

Cal.App.4th 203 (Wright). Wright reasoned that "force" in the context of robbery did not

necessary mean physical force; it could be constructive force, i.e., fear. (Id. at pp. 210-

211.) Wright explained, " 'force' is not an element of robbery independent of 'fear'; there

is an equivalency between the two." (Id. at p. 211.) On that basis, Wright concluded that

an allegation of robbery encompassing both "force" and "fear" did not warrant an

instruction on assault as a lesser included offense: "Since the element of force can be

satisfied by evidence of fear, it is possible to commit a robbery by force without

necessarily committing an assault. Consequently, under the 'accusatory pleading' test,

assault is not necessarily included when the pleading alleges a robbery by force." (Ibid.)

       The Supreme Court has cited Wright twice on this issue, though it has not

commented on Wright's reasoning because it found in each case that no substantial

evidence supported an instruction on the lesser included offense, even assuming the

accusatory pleading test were satisfied. (People v. O'Malley (2016) 62 Cal.4th 944, 985;

People v. Parson, supra, 44 Cal.4th at p. 350.) We likewise have no occasion in this case

to consider the reasoning in Wright, though for a slightly different reason. We conclude

                                              6
that even if the accusatory pleading test were satisfied, and even if substantial evidence

supported a finding that Davis and Saia were guilty of battery or assault but not of

robbery (see People v. Casteneda (2011) 51 Cal.4th 1292, 1327-1328), any error in

failing to instruct the jury was harmless on the record presented here.

       "In noncapital cases, 'the rule requiring sua sponte instructions on all lesser

necessarily included offenses supported by the evidence derives exclusively from

California law.' [Citation.] As such, 'in a noncapital case, error in failing sua sponte to

instruct, or to instruct fully, on all lesser included offenses and theories thereof which are

supported by the evidence must be reviewed for prejudice exclusively under [People v.]

Watson [(1956) 46 Cal.2d 818, 836 (Watson)].' " (People v. Beltran (2013) 56 Cal.4th

935, 955 (Beltran).)3 " '[U]nder Watson, a defendant must show it is reasonably probable

a more favorable result would have been obtained absent the error.' " (Ibid.)



3       Davis agrees the Watson standard applies. Saia, however, contends the
instructional error here constitutes federal constitutional error, requiring a more stringent
review for prejudice. But, as the Supreme Court explained in Breverman, "the United
States Supreme Court has expressly refrained from recognizing a federal constitutional
right to instructions on lesser included offenses in noncapital cases." (Breverman, supra,
19 Cal.4th at p. 165.) The error assumed here is therefore one of California law only,
subject to the Watson standard of prejudice. (Beltran, supra, 56 Cal.4th at p. 955;
Breverman, at p. 169.) Relying on People v. Thomas (2013) 218 Cal.App.4th 630, 643-
644 (Thomas), Saia argues that the failure to instruct on lesser included offenses deprived
him of his federal constitutional right to have the jury decide all elements of the charged
offense. Thomas reasoned that the trial court's failure to instruct on voluntary
manslaughter effectively removed the element of malice from the jury because it
deprived the jury of instructions regarding the circumstances in which the element of
malice could be negated. (Id. at p. 644.) No similar situation is presented here. The
offenses of battery and assault do not represent exceptions to robbery, and the
instructions regarding their elements do not affect the prosecution's burden of proof with
respect to the elements of robbery. (See People v. Ngo (2014) 225 Cal.App.4th 126, 158,
                                              7
       As an initial matter, we note that the mere fact we assume substantial evidence

supported the lesser included offense instructions (i.e., a reasonable jury could have

found Davis and Saia guilty of battery or assault, but not of robbery) does not in and of

itself establish prejudice. "[T]he Watson test for harmless error 'focuses not on what a

reasonable jury could do, but what such a jury is likely to have done in the absence of the

error under consideration. In making that evaluation, an appellate court may consider,

among other things, whether the evidence supporting the existing judgment is so

relatively strong, and the evidence supporting a different outcome is so comparatively

weak, that there is no reasonable probability the error of which the defendant complains

affected the result.' " (Beltran, supra, 56 Cal.4th at p. 956.)

       Here, the evidence supporting the jury's verdict of robbery was overwhelming.

Ackley, the victim, told police immediately after the altercation that Saia took his wallet.

At trial, Ackley testified that he felt either Saia or Davis reach into his pocket and grab

his wallet. Williams, a disinterested witness, corroborated Ackley's testimony. Williams

told the jury he saw Saia going through Ackley's pockets and riding away on his bicycle

with Ackley's wallet in hand. Williams heard Ackley exclaim, "He has my wallet,"

several times. After Ackley's wallet was returned, he said, "I got my wallet back." After

hearing the evidence, the jury took only two hours to reach its verdict, showing that this

was not a close case.




fn. 20 [distinguishing Thomas in the context of a different offense].) The Watson
standard applies.
                                              8
       By contrast, the evidence supporting a finding that Saia and Davis committed only

battery or assault, and not robbery, is meager at best. Saia points to Ackley's testimony

that he was unsure who took his wallet and how he got it back. Saia also contends

Ackley's intoxication calls his testimony about the wallet into question. But, as we have

already noted, Ackley's testimony was in large part corroborated by Williams. The fact

that both Ackley and Williams testified that Ackley's pockets were searched, and both

Ackley and Williams testified that Ackley's wallet was taken, greatly reduces any doubt

based on Ackley's intoxication. This intoxication, rather than any motive to lie, explains

any gaps in Ackley's recollection of that day. Saia also claims there was evidence of a

motive other than robbery. (Davis similarly claims the jury could have found she was

unaware Saia planned to rob Ackley.) But such conclusions—based largely on the mere

fact that the police asked Ackley whether he solicited Davis for sex—would be

unwarranted given the other evidence in the record, which showed that Davis and Saia

intended to, and did, rob Ackley of his wallet. The other alleged inconsistences in

Ackley and Williams's statements are insignificant in light of the whole record.

       Given the overwhelming evidence in support of the jury's verdict of robbery, and

the comparatively meager evidence supporting a finding not of robbery but of battery or

assault, Davis and Saia have not shown they would have achieved a more favorable result

if the jury had been instructed on battery and assault. Any error was therefore harmless

under Watson.




                                             9
                                               II

       Saia argues the electronic search condition imposed as part of his formal probation

is invalid under the Supreme Court's Lent test and is unconstitutionally overbroad. The

condition requires Saia to "[s]ubmit [his] person, vehicle, residence, property, personal

effects, computers, and recordable media . . . to search at any time with or without a

warrant, and with or without reasonable cause, when required by [the probation officer]

or law enforcement officer." (Italics added.) Saia contends the inclusion of "computers"

and "recordable media" in the condition is improper. We conclude the court did not

abuse its discretion in imposing the condition under Lent but, as the Attorney General

concedes, the condition is unconstitutionally overbroad. We will therefore direct the trial

court to strike the challenged portions of the condition and remand for consideration of a

more narrowly tailored condition.

                                               A

       Under Lent, "[w]e review conditions of probation for abuse of discretion.

[Citations.] Generally, '[a] condition of probation will not be held invalid unless 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.]' [Citation.] This test is

conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a

probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting Lent,

supra, 15 Cal.3d at p. 486.)



                                               10
       The parties agree the first two prongs of the Lent test are satisfied in this case: (1)

the electronic search condition has no relationship to Saia's crime, and (2) it relates to

conduct that is not itself criminal. The dispositive issue here is therefore whether the

electronic search condition requires or forbids conduct that is reasonably related to future

criminality. The same issue, albeit involving a juvenile offender, is currently pending

before the Supreme Court. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted

Feb. 17, 2016, S230923.)

       The Supreme Court's opinion in Olguin is instructive. In that case, the Supreme

Court considered a probation condition requiring the probationer to notify his probation

officer of any pets in his residence and give 24 hours' notice prior to any changes.

(Olguin, supra, 45 Cal.4th at p. 380.) The Supreme Court explained that "conditions of

probation 'are meant to assure that the probation serves as a period of genuine

rehabilitation and that the community is not harmed by the probationer's being at large.

[Citation.] These same goals require and justify the exercise of supervision to assure that

the restrictions are in fact observed.' " (Ibid.) As a general rule, "[a] condition of

probation that enables a probation officer to supervise his or her charges effectively is,

therefore, 'reasonably related to future criminality.' " (Id. at pp. 380-381.)

       Against this backdrop, the Supreme Court found the probation condition at issue

reasonable: "The condition requiring notification of the presence of pets is reasonably

related to future criminality because it serves to inform and protect a probation officer

charged with supervising a probationer's compliance with specific conditions of

probation." (Olguin, supra, 45 Cal.4th at p. 381.) The Supreme Court reasoned that the

                                              11
probation condition ensured the probation officer's safety when making unannounced

visits to the probationer's residence. (Id. at pp. 381-382.) The Supreme Court concluded,

"Reporting the presence of pets to a probation officer is a simple task, imposes no undue

hardship or burden, and is a requirement that clearly falls within the bounds of reason."

(Id. at p. 382.)

       Pending guidance from the Supreme Court, the Courts of Appeal appear to be

divided on the reasonableness of electronic search conditions under Lent. In re J.B.

(2015) 242 Cal.App.4th 749 (J.B.) found, for example, that an electronic search condition

was unreasonable in the context of a juvenile offender. (Id. at p. 757.) J.B. distinguished

Olguin and questioned the breadth of its general rule: "The fact that a search condition

would facilitate general oversight of the individual's activities is insufficient to justify an

open-ended search condition permitting review of all information contained or accessible

on the minor's smart phone or other electronic device." (J.B., supra, 242 Cal.App.4th at

p. 758.) On the other hand, also in the juvenile context, In re P.O. (2016) 246

Cal.App.4th 288 (P.O.), held that such an electronic search condition was reasonable

under Lent. (Id. at p. 295.) Following Olguin, P.O. held that the electronic search

condition "reasonably relates to enabling the effective supervision of [the juvenile ward's]

compliance with other probation conditions. Specifically, the condition enables peace

officers to review [the ward's] electronic activity for indications that [the ward] has drugs

or is otherwise engaged in activity in violation of his probation." (Ibid.)

       We agree with P.O. and conclude that the trial court could reasonably impose the

electronic search probation condition here. The electronic search condition "enables a

                                              12
probation officer to supervise [Saia] effectively" by allowing the probation officer access

to Saia's electronic devices and recordable media. (See Olguin, supra, 45 Cal.4th at pp.

380-381; P.O., supra, 246 Cal.App.4th at p. 295.) By searching those devices and media,

the probation officer can more effectively determine whether Saia is complying with the

terms of his probation, including refraining from unlawful activity, not contacting the

victim, not possessing a firearm or deadly weapon, and not using drugs or alcohol (if

directed by the probation officer). In our view, the electronic search condition here is

analogous to the standard "three-way" search condition—of a defendant's person,

residence, and vehicles—routinely imposed as a condition of probation.4 Both the three-

way search condition and the electronic search condition allow for effective monitoring

of a probationer's activities. Indeed, given the current ubiquity of electronic

communications and interactions, an electronic search condition may well be the only

way for a probation officer to discover the bulk of the information relevant to a

probationer's compliance with probation conditions. A probationer engaged in illegal

activities, for example, is much more likely to have digital photographs or

communications relating to such activities stored on an electronic device than print

photographs and written correspondence stored at home. Saia has not shown the trial

court abused its discretion under Lent.




4      The trial court here imposed such a three-way search condition, along with a
condition allowing searches of Saia's personal effects. Saia does not challenge these
conditions.
                                             13
                                              B

       Saia further contends, and the Attorney General concedes, that the electronic

search condition is unconstitutionally overbroad. " '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 constitutionally overbroad.'

[Citation.] 'The essential question in an overbreadth challenge is the closeness of the fit

between the legitimate purpose of the restriction and the burden it imposes on the

defendant's constitutional rights—bearing in mind, of course, that perfection in such

matters is impossible, and that practical necessity will justify some infringement.' "

(People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We independently review

whether a probation condition is constitutionally overbroad. (People v. Appleton (2016)

245 Cal.App.4th 717, 723 (Appleton).)

       Courts have rejected similar electronic search conditions as unconstitutionally

overbroad. (Appleton, supra, 245 Cal.App.4th at p. 727; P.O., supra, 246 Cal.App.4th at

p. 298.) We therefore accept the Attorney General's concession and direct the trial court

to strike the challenged portions of the search condition. However, because we have

determined an electronic search condition may be permissible under Lent, we will

remand this matter to the trial court to consider whether and how the search condition

could be narrowed to eliminate overbreadth concerns. (See Appleton, at p. 727.)




                                              14
                                       DISPOSITION

       The judgment against Davis is affirmed. The order granting formal probation to

Saia is reversed, and the matter is remanded to the trial court with the following

instructions. The trial court shall strike the portion of Saia's probation condition

requiring him to submit his "computers" and "recordable media" to search. The trial

court shall consider fashioning an alternative probation condition consistent with this

opinion.


                                                                        McCONNELL, P. J.

WE CONCUR:



NARES, J.



PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                             15
