Filed 2/25/21 P. v. Jackson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077341
Plaintiff and Respondent,
v. (Super. Ct. No. SCD284719)
LADAWN MARIE JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Reversed in part and remanded for resentencing.
Shay Dinata-Hanson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers, Kristen Chenelia, Michael D. Butera and Christopher P. Beesley,
Deputy Attorneys General, for Plaintiff and Respondent.
Ladawn Marie Jackson pled guilty to one count of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1))1 and admitted that she personally
used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)). The trial court
placed Jackson on formal probation for four years.
Jackson challenges two of the conditions of probation ordered by the
trial court: (1) the condition that she report her contacts with law
enforcement; and (2) the condition requiring that she submit to a search of
her computers, recordable media and electronic devices. Further, in
supplemental briefing, Jackson contends that under newly enacted Assembly
Bill No. 1950 (Stats. 2020, ch. 328, § 2) (amending § 1203.1), she is entitled to
have the term of her formal probation reduced from four years to two years.
We conclude that Jackson’s first challenge to the probation conditions
fails, but the second challenge has merit. In addition, we conclude that
Jackson is entitled to a reduction of her term of probation pursuant to
Assembly Bill No. 1950. Accordingly, we reverse the sentence and remand
for resentencing with directions that the trial court (1) strike the condition of
probation requiring that Jackson submit to a search of her electronic devices,
and (2) resentence Jackson to a term of probation consistent with Assembly
Bill No. 1950.
I.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation officer’s report, on the morning of December
26, 2019, Jackson summoned an Uber to pick her up at the Residence Inn
hotel on Pacific Highway in San Diego, and she requested to be driven to the
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
St. Vincent De Paul facility on Imperial Avenue in San Diego.2 As described
by the probation officer, “While on Park Avenue, [Jackson] directed [the Uber
driver] to make a left turn. He replied he was unable to because the trolley
was passing. She placed a knife to his neck and stated, ‘Okay, mother fucker.
Go wherever I tell you to go.’ The knife was a purple folding-knife, about
nine inches in length with about a 4-inch blade. [¶] Around the same time,
[the Uber driver] received a notification on his cellphone. When he touched
the phone, [Jackson] told him, ‘Don't fucking touch the cellphone or I will hit
you.’ As he continued driving, she touched the blade to his neck about three
times and told him he was making a lot of wrong turns. She also forced him
to make an illegal U-turn and drive through a red light. [The Uber driver]
eventually dropped [Jackson] off at her destination. She was laughing as she
exited the vehicle.”
During her arrest, Jackson explained that she thought the Uber driver
“was trying to take me somewhere so these Asians could hurt me.”
Jackson told the probation officer, “I thought somebody was chasing me and I
was high as hell. . . . The Uber was driving where they wanted to go and I
wanted him to take me where I wanted to go. . . . He scared me because he
was taking me behind the ballpark, so I pulled out the knife and held it
in the mirror.”
Jackson was charged with four counts: kidnapping (§ 207, subd. (a));
assault with a deadly weapon (§ 245, subd. (a)(1)); making a criminal threat
(§ 422); and false imprisonment by violence, menace, fraud, or deceit (§§ 236,
237, subd. (a)). Each count also included weapons allegations. (§§ 12022,
subd. (b)(1), 1192.7, subd. (c)(23).)
2 As Jackson pled guilty before any testimony was given, we base our
statement of facts on the probation officer’s report.
3
On January 22, 2020, Jackson pled guilty to one count of assault with a
deadly weapon (§ 245, subd. (a)(1)) and admitted that she personally used a
dangerous and deadly weapon (§ 1192.7, subd. (c)(23)). The People dismissed
the remaining charges.
The trial court placed Jackson on formal probation for four years. The
order granting formal probation set forth numerous conditions with which
Jackson was required to comply.
II.
DISCUSSION
A. Jackson’s Challenges to the Conditions of Probation
We first consider Jackson’s challenges to two of the conditions of
probation imposed by the trial court.
1. The Conditions of Probation at Issue
Jackson challenges two of the conditions of probation imposed by the
trial court: conditions 6.k and 6.n. Both conditions are standard conditions
that appear on the form used by the San Diego County Superior Court.
Condition 6.k states that Jackson shall “[p]rovide true name, address,
and date of birth if contacted by law enforcement. Report contact or arrest in
writing to the [probation officer] within 7 days. Include the date of
contact/arrest, charges, if any, and the name of the law enforcement agency”
(the report-contact condition).
Condition 6.n states that Jackson shall “[s]ubmit person, vehicle,
residence, property, personal effects, computers, and recordable media
including electronic devices to search at any time with or without a warrant,
and with or without reasonable cause, when required by [probation officer] or
law enforcement officer.” The trial court modified condition 6.n by stating
that it was “with the exception of Medical/Financial Records.” With respect
4
to condition 6.n, Jackson challenges only the portion relating to her electronic
devices, namely, “computers, and recordable media including electronic
devices” (the electronics search condition).
2. Applicable Legal Standards
When imposing probation, “a sentencing court has ‘broad discretion to
impose conditions to foster rehabilitation and to protect public safety.’ ”
(People v. Moran (2016) 1 Cal.5th 398, 403.) “But such discretion is not
unlimited: ‘[A] condition of probation must serve a purpose specified in the
statute,’ and conditions regulating noncriminal conduct must be ‘ “reasonably
related to the crime of which the defendant was convicted or to future
criminality.” ’ ” (Ibid.)
A condition of probation may be challenged on state-law grounds
pursuant to the standards set forth in People v. Lent (1975) 15 Cal.3d 481,
486 (Lent). Under Lent, a condition of probation is invalid if it imposes a
term or condition that “ ‘(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.’ ” (Ibid.) “This test is conjunctive—all three prongs must be
satisfied before a reviewing court will invalidate a . . . term. [Citations.] As
such, even if a condition of probation has no relationship to the crime of
which a defendant was convicted and involves conduct that is not itself
criminal, the condition is valid as long as the condition is reasonably related
to preventing future criminality.” (People v. Olguin (2008) 45 Cal.4th 375,
379-380.) A trial court’s application of the Lent test is reviewed for abuse of
discretion. (Id. at p. 379.)
A condition of probation may also be challenged on constitutional
grounds, including principles prohibiting vagueness and overbreadth. “A
probation condition ‘must be sufficiently precise for the probationer to know
5
what is required of him, and for the court to determine whether the condition
has been violated,’ if it is to withstand a challenge on the ground of
vagueness. [Citation.] 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 (Sheena K).) When a
condition of probation is challenged on constitutional grounds as facially
invalid, a pure question of law arises, to which we apply a de novo standard
of review. (Sheena K., at pp. 888-889; People v. Arevalo (2018) 19 Cal.App.5th
652, 656.)
Challenges to conditions of probation ordinarily must be raised in the
trial court, and if they are not, appellate review of those conditions is
forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) The one exception
to this rule involves facial constitutional challenges. (Sheena K., supra, 40
Cal.4th at pp. 887-889.) The forfeiture rule does not apply in such a case
because a facial constitutional challenge “ ‘present[s] [a] “pure question[ ] of
law that can be resolved without reference to the particular sentencing record
developed in the trial court” ’ ” (id. at p. 889) and “does not require scrutiny of
individual facts and circumstances but instead requires the review of
abstract and generalized legal concepts—a task that is well suited to the role
of an appellate court.” (Id. at p. 885.)
3. The Challenge to the Report-Contact Condition Is Not Forfeited,
But Lacks Merit
We first consider Jackson’s challenge to the report-contact condition.
Jackson argues that the condition is unconstitutionally vague and overbroad
because in describing the type of law enforcement contact that Jackson must
report, it “does not differentiate between casual contact unrelated to any
6
criminality, or even suspicion of criminality, and contact which might
warrant some further investigation by a probation officer.”
Jackson contends that the report-contact condition is
unconstitutionally vague because it is not “ ‘sufficiently precise for the
[defendant] to know what is required of [her], and for the court to determine
whether the condition has been violated.’ ” (Sheena K., supra, 40 Cal.4th at
p. 890.) Further, Jackson argues that the condition is unconstitutionally
overbroad because “not all non-arrest contacts between police officers and
citizens are related to criminal activity,” and she could be required to report
contacts “based on benign community interaction.” In that case, the
condition would infringe the rule that “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.”
(Sheena K., at p. 890.)
Jackson’s challenge to the report-contact condition does not depend on
the specific facts of Jackson’s case. Instead, the challenge is based on the
language of the condition itself. Accordingly, Jackson makes a facial
constitutional challenge that is not forfeited by her failure to raise it in the
trial court. (See In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.) [when
appellant argued that the word “property” in a search condition was
unconstitutionally vague, the challenge was not subject to forfeiture because
it could be addressed without examining the record].)
In People v. Brand (2021) 59 Cal.App.5th 861, we recently considered
and rejected a challenge, based on both vagueness and overbreadth, to a
report-contact condition in an order for mandatory supervision. The report-
contact condition in Brand was identical to the report-contact condition in
Jackson’s case. Both conditions stated that the defendant shall “[p]rovide
7
true name, address, and date of birth if contacted by law enforcement.
Report contact or arrest in writing to the [probation officer] within 7 days.
Include the date of contact/arrest, charges, if any, and the name of the law
enforcement agency.” (Id. at p. 870.) As we explained in Brand,
“Taking the first and second sentences together, a
reasonably objective person would conclude that [defendant] is
required to report only those contacts in which a law enforcement
officer requests identifying information from [defendant]. This
meaning arises because the requirement that [defendant]
‘[r]eport contact or arrest in writing to the [probation officer]
within 7 days’ directly follows the statement that [defendant]
must ‘[p]rovide true name, address, and date of birth if contacted
by law enforcement.’ When read together, these two sentences
make clear to a reasonable reader that the law enforcement
contact that [defendant] must report is any contact in which
[defendant] is required to provide his name, address, and date of
birth to law enforcement. Further, because the last sentence of
the report-contact condition provides that [defendant] must
‘[i]nclude the date of contact/arrest, charges, if any, and the name
of the law enforcement agency,’ a reasonable person would
understand that [defendant] does not have to report contact with
a law enforcement officer that is not meaningful enough for the
officer to provide [defendant] with information about the relevant
law enforcement agency.
“In sum, the report-contact condition, when read in its
entirety, would indicate to a reasonable person that [defendant]
is not required to report casual, random interactions with law
enforcement officers. Instead, the type of law enforcement
contacts that must be reported are those in which [defendant] is
questioned by law enforcement officers and is required to give
identifying information, such as when he has been a witness to a
crime or is suspected of possible involvement in a crime.
Accordingly, we reject [defendant’s] contention that the report-
contact condition is unconstitutionally vague and overbroad.”
(Brand, supra, 59 Cal.App.5th at pp. 870-871.)
8
We rely on our analysis in Brand to conclude that Jackson’s challenge
to the report-contact condition lacks merit.
4. The Trial Court Abused Its Discretion in Imposing the Electronics
Search Condition
We next consider Jackson’s challenge to the electronics search
condition.
a. The Trial Court’s Imposition of the Electronics Search
Condition Over Jackson’s Objection
At the sentencing hearing, the trial court stated it would impose the
electronics search condition, which provided that Jackson shall “[s]ubmit
person, vehicle, residence, property, personal effects, computers, and
recordable media including electronic devices to search at any time with or
without a warrant, and with or without reasonable cause, when required by
[probation officer] or law enforcement officer.” However, the trial court
expressly modified condition 6.n by stating that it was “with the exception of
Medical/Financial Records.”
Defense counsel objected to the imposition of the electronics search
condition, even with the modification, citing two prongs of the Lent test.
(Lent, supra, 15 Cal.3d at p. 486.)3 On the first prong, counsel argued there
was no nexus between Jackson’s crime and any electronic device, except that
she used a cell phone to arrange the ride with Uber. Defense counsel pointed
out, however, that “it wasn’t like she called the Uber with the intent to pull
this knife out on this man. I wouldn’t go so far as to say she used a cell phone
3 As we have explained, Lent states that a condition of probation is
improper if all of the following factors are present: the condition “ ‘(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.’ ” (Lent, supra, 15
Cal.3d at p. 486.)
9
to accomplish a crime.” On the third prong, counsel argued that the
imposition of the electronics search condition would not “help Probation
supervise her in any way as there’s no information that she’s committing any
crimes that deal with cell phones or electronic devices.”
The trial court overruled the objection, with the following explanation:
“Okay. In this matter, the defendant asked the Uber
driver, it looks like almost immediately upon getting into the car,
where she wanted to go, and then pulled out the knife. She used
her phone to call the Uber driver, and then threatened that if he
didn’t follow her directions, she threatened him with a knife.
“Separate and apart from the connection with this case, in
the third factor of Lent, we look at future criminality and the
Fourth Waiver extension in a way to deter that. The defendant’s
criminal record started in 1995 as an adult, and she has had
several convictions that deal with theft and drug use. And
almost each and every time she’s on probation, she violates
picking up a new case.
“Given that this case deals with mental health issues that
are exacerbated by drug and/or alcohol issues, and that she has
previously tried and struggled and failed with drug treatment, I
want Probation to have all the tools that it needs to make sure
that she is not using, obtaining any drugs, so they can generally
make sure she is where she’s supposed to be, and that she’s had
no contact with the victim.
“Frankly, if they don’t think she should be using Uber or
any sort of ride share because of this case, I want them to have
the ability to monitor that, given that she’s had this serious
offense.
“Given not only the direct nexus to this case but the third
factor of Lent, weighing public safety against her private interest,
I think that the public safety is compromised if that extension
does not exist, and I will therefore order it.”
10
After the court delivered its ruling, defense counsel pointed out that,
despite the trial court’s statement that Jackson pulled out the knife “almost
immediately” after getting into the car, the record showed that during the
drive between the Residence Inn and the St. Vincent De Paul facility, “the
knife did not come out the first half of the trip.”4
b. Application of the Lent Test to the Instant Case
On appeal, Jackson argues that the trial court abused its discretion in
imposing the electronics search condition because all three prongs of the Lent
test are satisfied.
i. The First Prong
Jackson contends that the first prong of Lent is satisfied because the
electronics search condition “ ‘has no relationship to the crime of which [she]
was convicted.’ ” (Lent, supra, 15 Cal.3d at p. 486.) Specifically, Jackson
argues that the crime of assault with a deadly weapon did not involve the use
of electronic devices. Although recognizing that she was in the Uber when
the assault occurred because she used a cell phone application to arrange the
ride, Jackson argues that her “use of her cell phone was merely incidental to
her crime” and “did not relate to the crime she committed.” In support of this
argument, Jackson points to the uncontradicted information in the probation
officer’s report, which shows that “the knife came out halfway through the
ride due to an independent trigger,” and not “as a part of a pre-planned crime
to call and then kidnap or assault the Uber driver.” The People make only a
cursory attempt to argue otherwise. In a footnote, they observe that although
4 On our own motion, we take judicial notice that the distance from the
Residence Inn on Pacific Highway to the St. Vincent De Paul facility on
Imperial Avenue is over two and a half miles, and the distance to Park
Boulevard, where Jackson pulled the knife, from the Residence Inn is at least
approximately one and half miles.
11
the trial court “also noted that Jackson used an electronic device when she
scheduled the Uber driver and shortly thereafter attacked him,” the point
was “admittedly a somewhat weak argument in support of the first Lent
factor.”
We conclude that Jackson’s argument on the first prong of the Lent test
has merit. Although Jackson used a cell phone application to call for an
Uber, the assault itself occurred after she had been in the car for a period of
time, and appears to have taken place because of a mental health trigger
unrelated to Jackson’s use of the cell phone to arrange for the Uber ride.
Jackson could have committed the same sort of assault had she arranged a
ride by walking up to a waiting taxi rather than by using her cell phone.
Therefore, the use of the cell phone was merely coincidental to Jackson’s
offense.
ii. The Second Prong
As for the second prong of the Lent test, the issue is whether the
electronics search condition “ ‘relates to conduct which is not in itself
criminal.’ ” (Lent, supra, 15 Cal.3d at p. 486.) The parties do not dispute that
the second prong of the Lent test is satisfied, as the use of electronic devices
is not in itself criminal.
iii. The Third Prong
The inquiry under the third prong is whether the probation condition
“ ‘requires or forbids conduct which is not reasonably related to future
criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486.)
The leading case on how Lent’s third prong applies to electronic search
conditions is In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), in which our
Supreme Court concluded that, under the facts of the case before it, the
electronics search condition failed the third prong of the Lent test. (Id. at p.
12
1116.) Specifically, in Ricardo P., the juvenile probationer, who had
committed two burglaries (id. at p. 1115), was ordered by the juvenile court to
“ ‘[s]ubmit . . . electronics including passwords under [his] control to search by
Probation Officer or peace office[r] with or without a search warrant at any
time of day or night.’ ” (Id. at pp. 1116-1117.) Even though there was no
basis for inferring that electronic devices were connected to the juvenile’s
commission of the burglaries, the juvenile court imposed the electronics
search condition to enable probation officers to monitor whether the juvenile
was communicating about drugs or with people associated with drugs. (Id. at
p. 1119.) To support its reasoning, the juvenile court pointed to evidence that
the juvenile had previously used marijuana, which the juvenile stated “ ‘did
not allow him to think clearly.’ ” (Ibid.)
Explaining that “Lent’s requirement that a probation condition must be
‘ “reasonably related to future criminality” ’ contemplates a degree of
proportionality between the burden imposed by a probation condition and the
legitimate interests served by the condition” (Ricardo P., supra, 7 Cal.5th at
p. 1122), our Supreme Court concluded that “[s]uch proportionality is lacking
here” because, among other things, “nothing in the record suggests that [the
juvenile] has ever used an electronic device or social media in connection with
criminal conduct.” (Ibid.) Our Supreme Court explained that because an
electronics search condition is “burdensome and intrusive,” it “requires
. . . substantial and particularized justification,” which was lacking.
(Ricardo P., at p. 1126.)
In the course of explaining its holding, Ricardo P. observed that Lent
would be “ ‘render[ed] . . . meaningless by broadening the third prong to allow
any probation condition that enhances surveillance of the probationer”
(Ricardo P., supra, 7 Cal.5th at p. 1125), and thus declined to “categorically
13
permit any probation conditions reasonably related to enhancing the effective
supervision of a probationer.” (Id. at p. 1127.) Doing so “would effectively
eliminate the reasonableness requirement in Lent’s third prong, for almost
any condition can be described as ‘enhancing the effective supervision of a
probationer.’ ” (Id. at p. 1127.) Ricardo P. favorably cited a case holding that
“ ‘[t]he fact that a search of [the probationer’s] cellular phone records might
aid a probation officer in ascertaining . . . compliance with other conditions of
supervision is, without more, an insufficient rationale to justify the
impairment of [the probationer’s] constitutionally protected interest in
privacy.’ ” (Id. at p. 1126, quoting People v. Bryant (2017) 10 Cal.App.5th
396, 404, judg. vacated and cause remanded, sub. opn. People v. Bryant
(2019) 42 Cal.App.5th 839, review granted Feb. 19, 2020, S259956.)
In summarizing its holding, Ricardo P. clarified that it did not intend
to “categorically invalidate electronics search conditions” and “[i]n certain
cases, the probationer’s offense or personal history may provide the juvenile
court with a sufficient factual basis from which it can determine that an
electronics search condition is a proportional means of deterring the
probationer from future criminality.” (Ricardo P., supra, 7 Cal.5th at pp.
1128-1129.)5 However, as our Supreme Court explained, “[u]nder the rule we
set forth today, a juvenile court imposing such a condition must consider
whether, in light of ‘the facts and circumstances in each case’ . . . , the
5 Ricardo P. cited examples of the type of case where an electronics
search condition could be a proportional means to deterring future
criminality, such as where the “defendant lured [the] victim using ‘ “either
social media or some kind of computer software,” ’ ” the defendant had a
“ ‘history of robbing people of their cell phones,’ ” or the defendant “had
previously used social media sites to promote his gang.” (Ricardo P., supra, 7
Cal.5th at p. 1129.)
14
burdens imposed by the condition are proportional to achieving some
legitimate end of probation.” (Ricardo P., at p. 1127, citation omitted.)
In this case, the probation officer’s report indicates that, as an adult,
Jackson incurred misdemeanor convictions for petty theft and prostitution,
and felony convictions for possessing marijuana for sale and possession of a
controlled substance. The probation officer’s report also indicates that
Jackson suffers from mental illness and substance abuse.
Pointing to Jackson’s history of drug use and her drug-related
convictions, the People argue that the electronics search condition does not
violate the third prong of the Lent test because it is “an effective way to
monitor whether she was trying to procure drugs.” Under the People’s
reasoning, the electronics search condition is permissible because it allows
probation officers to assess whether Jackson is complying with the probation
condition under which she must not “knowingly use or possess any controlled
substance without a valid prescription,” including “[n]o marijuana use at all.”
We reject the argument. As in Ricardo P., “nothing in the record
suggests that [Jackson] has ever used an electronic device or social media in
connection with criminal conduct” (Ricardo P., supra, 7 Cal.5th at p. 1122),
and in particular, there is no indication in the record that Jackson ever used
an electronic device to procure or sell drugs. The trial court stated that it
wanted the probation officers “to have all the tools that [they] need[ ] to make
sure that she is not using, obtaining any drugs, so they can generally make
sure she is where she’s supposed to be, and that she’s had no contact with the
victim.” However, Ricardo P. establishes that an electronics search condition
is not warranted merely to “enhanc[e] the effective supervision of a
15
probationer” when there is no nexus between a defendant’s use of electronic
devices and her past or future criminality. (Ricardo P., at p. 1127.)6
Although the trial court narrowed the electronics search condition by
excluding financial and medical records, the intrusion on Jackson’s privacy is
still significant, as any item not falling into those two categories remains
subject to search. As noted in Riley v. California (2014) 573 U.S. 373, a cell
phone has an “immense storage capacity” that “collects in one place many
distinct types of information . . . that reveal much more in combination than
any isolated record,” and comprises “a digital record of nearly every aspect of
[the defendants’] lives—from the mundane to the intimate.” (Id. at pp. 393,
395.) For example, solely from photographs stored on an electronic device,
“[t]he sum of an individual’s private life can be reconstructed through a
thousand photographs labeled with dates, locations, and descriptions” (id. at
p. 394), and “[d]ata on a cell phone can also reveal where a person has been,”
allowing law enforcement to “reconstruct someone’s specific movements down
to the minute, not only around town but also within a particular building.”
(Id. at p. 396.) In a case, such as this, where there is no nexus between the
use of electronic devices and Jackson’s past or future criminality, even an
6 Although the People do not advance the argument, the trial court also
supported its imposition of the electronics search condition, in part, by
stating that “if [the probation officers] don’t think she should be using Uber
or any sort of ride share because of this case, I want them to have the ability
to monitor that.” However, because the trial court did not issue any order
specifically giving probation officers the authority to prevent Jackson from
using rideshare applications, this consideration does not provide a rational
relationship between the electronics search condition and a legitimate end of
probation. Moreover, allowing probation officers to search all of Jackson’s
electronic devices is far broader of an intrusion than would be justified by the
goal of allowing probation officers to check whether Jackson used rideshare
applications on her cell phone.
16
electronics search condition that excludes financial and medical records is too
intrusive to make “the burdens imposed by the condition . . . proportional to
achieving some legitimate end of probation.” (Ricardo P., supra, 7 Cal.5th at
p. 1127.) The electronics search condition is therefore not reasonable
under Lent’s third prong.
As all three prongs of the Lent test are satisfied, we conclude that the
trial court abused its discretion in imposing the electronics search condition.
The order granting formal probation must therefore be modified by striking
the electronics search condition.
B. Jackson Is Entitled to a Reduction of the Term of Her Probation Due to
Recent Legislation Generally Limiting Felony Probation to a Period of
No More than Two Years
The final issue is the impact of the Legislature’s recent enactment of
Assembly Bill No. 1950 on the term of Jackson’s probation.
At the time the Jackson was sentenced, section 1203.1, subdivision (a)
provided that a court may impose felony probation “for a period of time not
exceeding the maximum possible term of the sentence.” It further provided
that “where the maximum possible term of the sentence is five years or less,
then the period of suspension of imposition or execution of sentence may, in
the discretion of the court, continue for not over five years.” (Former
§ 1203.1, subd. (a).) Accordingly, the trial court ordered a four-year term of
formal probation for Jackson.
During the pendency of this appeal, the Legislature enacted Assembly
Bill No. 1950, which amended section 1203.1. (Stats. 2020, ch. 328, § 2.)
Subject to exceptions not applicable here, section 1203.1, subdivision (a), as
amended, provides that a felony probation term cannot exceed two years.
The provision now provides, “The court, or judge thereof, in the order
granting probation, may suspend the imposing or the execution of the
17
sentence and may direct that the suspension may continue for a period of
time not exceeding two years, and upon those terms and conditions as it shall
determine.” (§ 1203.1, subd. (a).)
Jackson argues in her supplemental briefing that because her case is
not yet final, under the principles of retroactivity applicable to ameliorative
changes to the criminal law as set forth in In re Estrada (1965) 63 Cal.2d 740
(Estrada), she is entitled under Assembly Bill No. 1950 to have her term of
probation reduced from four years to two years. In their supplemental
briefing, the People agree that the statutory amendment implemented by
Assembly Bill No. 1950 is retroactively applicable to cases, like Jackson’s,
that are not yet final.
Based on this court’s recent opinion in People v. Sims (2021) 59
Cal.App.5th 943, the parties are correct regarding the retroactivity of
Assembly Bill No. 1950. As we stated in Sims, “the two-year limitation on
felony probation set forth in Assembly Bill No. 1950 is an ameliorative
change to the criminal law that is subject to the Estrada presumption of
retroactivity,” and “[t]herefore . . . the two-year limitation applies
retroactively to all cases not reduced to final judgment as of the new law’s
effective date.” (Sims, at p. 964.)
The parties disagree on whether we should issue an order modifying
Jackson’s term of probation to two years, or whether we should remand with
directions to the trial court to resentence Jackson based on the change in the
law. In Sims, instead of modifying the term of probation, we remanded for
resentencing, stating that “defendant is entitled to seek a reduced probation
term on remand under Assembly Bill No. 1950.” (Sims, supra, 59
Cal.App.5th at p. 964.) We will follow the procedure employed in Sims, and
we will therefore remand to the trial court with directions that Jackson be
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resentenced based on the current state of the law, as enacted by Assembly
Bill No. 1950.7
7 The People argue that a remand is appropriate because (1) the People
may want to withdraw from the plea agreement based on the change in law
enacted by Assembly Bill No. 1950; or (2) the trial court may want to impose
different conditions of probation in light of the shortened probation term. As
the possibility that the People will seek to withdraw from the plea agreement
is, at this point, only hypothetical, we need not, and do not, express any view
as to whether the change in law enacted by Assembly Bill No. 1950 would
present a valid ground for the People to do so. With respect to the possibility
that the trial court may choose to impose different conditions of probation,
that course of action is available regardless of whether the matter is
remanded for resentencing. As we stated in Sims, “We are confident that to
the extent current probationers face difficulties timely completing their
probation conditions through no fault of their own, those conditions can be
modified as needed to account for the two-year felony probation limitation our
Legislature has imposed. (§ 1203.3, subd. (a); see People v. Killion (2018) 24
Cal.App.5th 337, 340 [‘Generally, a trial court has the authority and
discretion to modify a probation term during the probationary period,
including the power to terminate probation early.’].)” (Sims, supra, 59
Cal.App.5th at p. 963.)
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DISPOSITION
We reverse the judgment in part as to Jackson’s sentence. The matter
is remanded for resentencing, with directions that the trial court (1) strike
the words “computers, and recordable media including electronic devices”
from condition 6.n in the order granting formal probation; and (2) resentence
Jackson consistent with the amendment to Penal Code section 1203.1,
subdivision (a) effective on January 1, 2021, which generally limits a term of
felony probation to no more than two years. In all other respects the
judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
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