The opinion
Filed 5/13/19 (unmodified opinion attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E067578
v. (Super.Ct.No. INF1501474)
SARA ARCELIA SALCIDO, ORDER MODIFYING OPINION
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
The opinion filed in this matter on May 2, 2019 is modified as follows:
Footnote * at the bottom of page one is modified to state,
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III.
Except for this modification, the opinion remains unchanged. This modification does not
effect a change in the judgment.
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
1
Filed 5/2/19 (unmodified opinion)
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
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‘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
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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.
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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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