Filed 11/25/19; Opinion following transfer from Supreme Court

                       CERTIFIED FOR PARTIAL PUBLICATION*

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                            DIVISION TWO



THE PEOPLE,
                                                                E067578
        Plaintiff and Respondent,
                                                                (Super.Ct.No. INF1501474)
v.
                                                                OPINION
SARA ARCELIA SALCIDO,

        Defendant and Appellant.




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

Affirmed as modified.

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

Appellant.

        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.


        *     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 and footnote 9.



                                                      1
       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.

       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 hold

that one of defendant’s probation conditions must be stricken. Accordingly, we will first

modify and then affirm the judgment.




                                              2
                                             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.

       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


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



                                             3
anything for Patricia F. because Patricia F. 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

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.



                                             4
      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.

      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.




                                            5
       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.

       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.



                                               6
                                             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

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



                                             7
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

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

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




                                             8
       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 Nov. 25, 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



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

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




                                             15
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.)

       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,



                                               16
the state seeks to penalize a nonlawyer for acts that, even if they were “representation,”

were not authorized by federal law.

       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




                                              17
federally unauthorized person. (8 C.F.R. § 292.3(b), incorporating 8 C.F.R.

§ 1003.102(m).)

       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 Nov. 25, 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 Nov. 25,

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

Nov. 25, 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




       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
Nov. 25, 2019, contains virtually identical provisions. (Id., §§ 2.7, 11.3(a))



                                              19
by federal law, there was no federal concern whatsoever about state regulation of her

conduct.

              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



                                               20
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

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



                                              21
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

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



                                               22
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

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.”




                                             23
        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.

        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 also argues, however, alternatively,

that her trial counsel’s failure to object constituted ineffective assistance of counsel.

       “To establish ineffective assistance of counsel, [defendant] must show that her

counsel’s performance was deficient and that she suffered prejudice from the deficient

performance. [Citation.] On direct appeal, if the record ‘“sheds no light on why counsel

acted or failed to act in the manner challenged,”’ we must reject the claim ‘“unless

counsel was asked for an explanation and failed to provide one, or unless there simply



       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.

       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.)



                                              25
could be no satisfactory explanation.”’ [Citation.]” (People v. Caro (2019) 7 Cal.5th

463, 488.)

       Here, assuming defendant’s contention is meritorious, her counsel’s failure to

object to the probation condition was objectively unreasonable. As of January 2017,

when defendant was sentenced, In re Ricardo P. (2015) 193 Cal.Rptr.3d 883, review

granted Feb. 17, 2016, had struck down an electronic search condition, and the case was

pending in the California Supreme Court. Thus, while the merits of the issue were

unsettled, it was clear that defense counsel needed to object to any electronic search

condition in order to preserve the issue.

       Moreover, we cannot imagine any satisfactory explanation for this failure. The

challenged condition substantially restricts defendant’s privacy. Perhaps, if defendant

were a Luddite who never used a computer, defense counsel might reasonably choose not

to object. The record shows, however, that she had multiple computers. (See fn. 8, post.)

       It follows that defense counsel’s performance was deficient. But was it

prejudicial? This turns on whether the challenged probation condition is valid.

       B.     Reasonableness.

       “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.)




                                            26
       “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.]” (People v. Lent (1975) 15 Cal.3d 481, 486.)

       “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.)

       While this appeal was pending, the Supreme Court decided In re Ricardo P.

(2019) 7 Cal.5th 1113. There, a juvenile probation condition required the minor to

submit to warrantless searches of his electronic devices and electronic accounts. (Id. at

pp. 1116-1117.) The court held that this condition was unreasonable and invalid, because

there was no evidence that the minor “had used or will use electronic devices in

connection with . . . any illegal activity,” and hence, “[t]he probation condition [wa]s not

reasonably related to future criminality . . . .” (Id. at p. 1116; see also id. at p. 1129.)

       It conceded that, “[i]n virtually every case, one could hypothesize that monitoring

a probationer’s electronic devices and social media might deter or prevent future criminal

conduct.” (In re Ricardo P., supra, 7 Cal.5th at p. 1123.) However, it noted “the

potentially greater breadth of searches of electronic devices compared to traditional

property or residence searches. [Citation.]” (Id. at p. 1127.) As a result, “[s]uch a



                                               27
condition significantly burdens privacy interests. [Citations.]” (Id. at p. 1123.) The

court concluded that “the burden it imposes on Ricardo’s privacy is substantially

disproportionate to the countervailing interests of furthering his rehabilitation and

protecting society.” (Id. at p. 1119; see also id. at p. 1120.)

       Except in one respect, this case is on all fours with Ricardo P. There was no

evidence that defendant’s crimes involved computers or the internet.8 There was no

evidence that she had used electronic devices in connection with any uncharged illegal

activity. And there was no evidence that she would use electronic devices in connection

with any illegal activity in the future.

       The only significant distinction is that defendant is an adult, whereas Ricardo P.

was a juvenile. However, adult probation conditions are, if anything, more narrowly

limited than juvenile probation conditions. (In re Tyrell J. (1994) 8 Cal.4th 68, 81-82

[“[A] condition of probation that would be unconstitutional or otherwise improper for an

adult probationer may be permissible for a minor under the supervision of the juvenile

court.”], overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.) A

fortiori, then, the challenged probation condition in this case is unreasonable and invalid.




       8     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.



                                              28
                                            V

                                     DISPOSITION

       The judgment is modified by striking probation condition 39. (See In re

Ricardo P., supra, 7 Cal.5th at p. 1129.) The judgment as thus modified is affirmed.9

       CERTIFIED FOR PARTIAL PUBLICATION
                                                               RAMIREZ
                                                                                        P. J.


We concur:

McKINSTER
                          J.

RAPHAEL
                          J.




       9    The clerk of this court is directed to send a copy of this opinion to the State
Bar immediately upon the issuance of the remittitur. (Bus. & Prof. Code, § 6086.7, subd.
(a)(2).)


                                            29
