People v. Ailshire CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD282550
- Trial judge
- Polly H. Shamoon
- Outcome
- modified — Affirmed as modified and remanded with directions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Patricia Guerrero
Analysis
The trial court imposed an electronic search probation condition and reduced fines/fees based on the defendant's employment status, but the appellate court found the search condition lacked a sufficient basis under *Lent* and *Ricardo P.*. On appeal, the court modified the judgment to strike the electronic search condition and affirmed the remainder of the judgment regarding the fines and fees.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of probation condition 6n requiring electronic device searches“Such justification does not satisfy the requirement of Lent as interpreted by Ricardo P. We will direct the trial court to strike condition 6n.” | abuse of discretion | error | agree with court The appellate court correctly applied the *Lent* test as refined by *Ricardo P.*, noting that the trial court's generalized justification for monitoring a no-contact order did not establish a reasonable relationship to future criminality or proportionality of intrusion given the lack of electronic device involvement in the offense. The reasoning is supported by the cited authorities and the specific facts of the record. |
Imposition of fines, fees, and assessments without an explicit finding of ability to pay“The court’s action clearly shows it considered the request and made arrangements for the defendant, over a three-year period to pay the modest amounts assessed.” | abuse of discretion | correct | agree with court The appellate court found that the trial court implicitly considered ability to pay by reducing the amounts, modifying the payment schedule, and ordering work furlough to facilitate employment. The court concluded that the defendant failed to demonstrate an inability to pay the reduced amounts, making the trial court's actions within its discretion. |
Authorities
- relied: People v. Lent (1975) 15 Cal.3d 481 — A probation condition is invalid if it has no relationship to the crime, relates to non-criminal conduct, or requires conduct not reasonably related to future criminality.
- relied: In re Ricardo P. (2019) 7 Cal.5th 1113 — Courts must determine if the intrusion into lawful activity via electronic searches is proportional to the benefit of probation supervision.
- relied: People v. Appleton (2016) 245 Cal.App.4th 717 — The abuse of discretion standard of review applies to the analysis of probation conditions.
- relied: People v. Carbajal (1995) 10 Cal.4th 1114 — The abuse of discretion standard of review applies to the analysis of probation conditions.
The appellate opinion: sound — The opinion is sound because it correctly applies the specific legal standards from *Lent* and *Ricardo P.* to the facts of the case, distinguishing between generalized supervision justifications and specific relationships to criminality. It also adequately addresses the due process claim by pointing to the trial court's implicit consideration of ability to pay through reduced amounts and work furlough orders.
How this analysis was made · dispute it
unusual dispositionThe trial court placed Ailshire on three years' probation after his guilty plea to assault with a deadly weapon, imposing over objection an electronic device search condition and, after reducing the amounts, $954 in fines, fees, and assessments payable at $35 per month. The Court of Appeal struck the electronic search condition as unsupported under Lent and Ricardo P., rejected the ability-to-pay due process claim, and affirmed the judgment as modified with directions.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of probation condition 6n requiring submission of electronic devices and passcodes to warrantless search“Such justification does not satisfy the requirement of Lent as interpreted by Ricardo P. We will direct the trial court to strike condition 6n.” | abuse of discretion | error (discretion) | agree with court The record showed no use of electronic devices in the offense and nothing suggesting Ailshire would use them in future criminality; the only stated justification was generalized aid in monitoring a no-contact order. Under Ricardo P., a burdensome electronics search condition requires proportionality between the privacy intrusion and the supervisory benefit, and a bare supervision rationale untethered to the record does not suffice. The appellate court applied the correct framework to the facts it quoted. |
Imposition of $954 in fines, fees, and assessments without an express ability-to-pay hearing or finding“Although the court did not state a finding of ability to pay, it reduced the amounts, modified the payment plan, and ordered the defendant released to work furlough to facilitate employment.” | abuse of discretion | correct | agree with court The defense raised a cost-related objection, the trial court responded by reducing the restitution fine, striking assessments, setting $35 monthly payments, and ordering release to work furlough, and the defendant was employed with a long work history. The defendant made no showing of inability to pay in either court, which under the Dueñas-line cases is his burden. The result is defensible, though the appellate court cited no authority at all on this issue and never named Dueñas, the basis of the claim. |
Authorities
- relied: People v. Lent (1975) 15 Cal.3d 481 — A probation condition is invalid if it has no relationship to the crime, relates to conduct not itself criminal, and is not reasonably related to future criminality.
- relied: In re Ricardo P. (2019) 7 Cal.5th 1113 — An electronics search condition must be proportional; a substantial privacy burden is not reasonably related to future criminality where the record shows no nexus to electronic devices and only a generalized supervision rationale.
- relied: People v. Appleton (2016) 245 Cal.App.4th 717 — Probation conditions are reviewed for abuse of discretion.
- relied: People v. Carbajal (1995) 10 Cal.4th 1114 — Trial courts have broad discretion in setting probation conditions, reviewed for abuse of discretion.
- missed: People v. Dueñas (2019) 30 Cal.App.5th 1157 — Due process requires an ability-to-pay determination before imposing court facilities and operations assessments and executing a restitution fine; this was the foundation of the defendant's fines claim and the opinion never cites it or any other authority on the issue.
The appellate opinion: sound with gaps — The electronic search ruling correctly applies Lent and Ricardo P. to a record showing no connection between the offense and electronic devices and only a generic supervision rationale. The fines ruling reaches a defensible result given the trial court's reductions and the defendant's failure to show inability to pay, but it cites no authority and does not engage Dueñas or the burden-allocation cases on which the analysis implicitly rests.
Opinion
Filed 9/23/20 P. v. Ailshire CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076631
Plaintiff and Respondent, v. (Super. Ct. No. SCD282550)
JERRY A. AILSHIRE, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed as modified and remanded with directions. Patrick Dudley, 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, Charles C. Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent. Jerry A. Ailshire pleaded guilty to assault with a deadly weapon (Pen.
Code,1 § 245, subd. (a)(1)) and admitted he personally used a deadly or dangerous weapon (§ 1192.7, subd. (c)(23)). Ailshire was granted probation for three years subject to various conditions. Ailshire appeals, challenging two parts of the probation order. First, he contends the court improperly imposed an electronic search condition in violation of People v. Lent (1975) 15 Cal.3d 481 (Lent) and In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). Ailshire also contends the court denied him due process by imposing fines, fees, and assessments without a hearing on ability to pay the amounts imposed. We will agree with Ailshire that the court did not have a sufficient basis for imposing the electronic search condition. We will direct the court to strike that condition of probation. We will disagree with Ailshire’s contention regarding the fines, fees, and assessments imposed by the court. The issue was addressed by the court. The court reduced the amounts due down to a total of $954, reduced the payments to $35 per month, and ordered Ailshire to be promptly released to work furlough. As we will explain, the court’s response to the objection considered ability to pay and acted well within its discretion in setting the amounts due. STATEMENT OF FACTS This appeal arises from a guilty plea. The factual statement supporting the plea stated that Ailshire “unlawfully committed an assault [with] a deadly weapon against another and personally used the weapon in the commission.”
1 All further statutory references are to the Penal Code. 2 DISCUSSION I The Electronic Search Condition Over defense objection, the court imposed probation condition 6n, which requires Ailshire to submit his “person, vehicle, residence, property, personal effects, computers, and recordable media, including electronic devices [and including passcodes] to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O., or law enforcement officer.” The court explained that it was imposing a no- contact order on the defendant with regard to the victim and that the search condition would assist in monitoring the defendant’s compliance with the order. There is nothing in the record that would show the defendant has or used electronic devices in any fashion in the commission of the current offense. Ailshire contends the search condition regarding electronic devices violates Lent, supra, 15 Cal.3d at p. 486. He also argues the condition as applied to this case is overbroad under the rule established by Ricardo P., supra, 7 Cal.5th at p. 1118, in that the intrusion into otherwise lawful activity is not proportional to the benefit it would provide to probation supervision. Ordinarily, we apply the abuse of discretion standard of review to the analysis of probation conditions. (People v. Appleton (2016) 245 Cal.App.4th 717, 723; People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) The analysis of probation conditions requiring search of electronic communication also must comply with Lent and Ricardo P. In Lent, the court held that a probation condition “will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender 3 was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (Lent, supra, 15 Cal.3d at p. 486.) As applied to electronic searches, the court in Ricardo P. held that the courts must determine if the intrusion into lawful activity is proportional to the benefit of the probation supervision process. (Ricardo P., supra, 7 Cal.5th at pp. 1119-1122.) As we have noted, this case does not involve any use or possession of electronic devices or show that Ailshire will likely use such devices in future criminal behavior. The generalized reference by the court to aiding in monitoring compliance with the no-contact order is nothing more than a statement that such searches will aid in probation supervision. Such justification does not satisfy the requirement of Lent as interpreted by Ricardo P. We will direct the trial court to strike condition 6n. II Fines, Fees, and Assessments Ailshire contends the trial court imposed $954 in fines, fees, and assessments without determining if he had the ability to pay. That simply did not happen. The defense had notice of proposed sums the probation officer recommended. At sentencing, the defense asked the court to stay the amounts pending completion of probation as it was possible the defendant could lose his job if more custody was imposed. The court quickly responded by reducing the restitution fine and striking several assessments leaving the total of $954 as a reduced amount. Further, the court ordered payment at $35 per moth starting 60 days after release from custody and ordered Ailshire to be promptly released to work furlough or alternate program so he could keep his job.
4 The court was aware the defendant had a long and continuous history of employment. He was in good health and was employed when he was sentenced. The defense made no further objections and did not attempt to show the defendant could not pay $35 per month on his fines and assessments. Although the court did not state a finding of ability to pay, it reduced the amounts, modified the payment plan, and ordered the defendant released to work furlough to facilitate employment. The court’s action clearly shows it considered the request and made arrangements for the defendant, over a three-year period to pay the modest amounts assessed. Ailshire has made no showing either here or in the trial court that he lacked the ability to pay the reduced amounts. DISPOSITION The judgment is modified to strike probation condition 6n. The matter is remanded to the trial court with directions to strike condition 6n and to amend the judgment accordingly. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
Cites, in this corpus
- People v. Ricardo P. (In Re Ricardo P.) S230923 · 2019-08-15
- People v. Appleton H041332 · 2016-03-15
- People v. Carbajal S036146 · 1995-08-14
- People v. Lent Crim. 17984 · 1975-10-30