Unpublished opinion on electronic search probation condition

In an unpublished opinion filed yesterday (Salcido, E067578), the Fourth District held that trial counsel was ineffective for failing to object to an electronic search probation condition.

People. Object. Object to all kinds of probation conditions. Object to regular search clauses that are unrelated to the crime. Object to the vagueness and overbreadth of the bar on possessing “intoxicating substances.” Object to the vagueness and overbreadth of barring someone from frequenting places with alcohol is the primary item of sale. Object to conditions where the defendant has to obtain permission of the court to take a prescription medication/controlled substance. Object. Object. Object. Below are cases supporting probation challenges. Please email me at juicejusticeandcorgis@gmail.com for sample briefing.

General principles: probation condition that is vague or overbroad violates the Due Process Clause of article 1, section 7 of California Constitution and the Due Process Clause of the 5th and 14th Amendments of the United States Constitution. (In re Sheena K. (2007) 40 Cal.4th 875, 889-890.)  A probation condition is vague or overbroad if it delegates its terms to be defined by the government “on an ad hoc and subjective basis.” (In re Sheena K., supra, at p. 890.)  This Court reviews constitutional challenges to the probation condition de novo. (In re Sheena K., supra, at p. 878.) A condition is void-for-vagueness unless it is “‘sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.’” (Id. at p. 890 [quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325].)  A condition is unconstitutionally overbroad if it implicates a probationer’s constitutional rights and it is not narrowly tailored to achieving rehabilitation or public safety. (In re Sheena K., supra, at p. 890; In re White (1979) 97 Cal.App.3d 149-150.)

Probation conditions are not valid just because they can generally deter crime. (People v. Keller (1978) 76 Cal.App.3d 827, 838-839[2] [disapproved of on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237]; People v. Perez (2009) 176 Cal.App.4th 380, 384; In re White, supra, 97 Cal.App.3d at p. 148.)

Search conditions invalid under Lent: People v. Burton (1981) 117 Cal.App.3d 283, 391; In re Martinez (1978) 86 Cal.App.3d 577, 584; People v. Kay (1973) 36 Cal.App.3d 759, 761-762; contra People v. Balestra, supra, 76 Cal.App.4th at pp. 66-67.)

A law is unconstitutional if it is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[.]” (Connally v. General Cons. Co.(1926) 269 U.S. 385, 391.) A law “violates the first essential of due process of law” if it fails to afford persons notice of what conduct is prohibited. (Ibid.) Probation conditions that leave the the scope of the term to be defined on an ad hoc basis by whichever government actor seeks to enforce it are unconstitutional. (In re Sheena K., supra,40 Cal.4th at p. 890.)   

Probation conditions infringing on medical rights/choice of medical treatment:

All persons have the right under the Fourteenth Amendment to the United States constitution to obtain medical treatment of one’s choice. (Whalen v. Roe (1977) 429 U.S. 589, 603.)  Any restriction on this right must pass the strict scrutiny test which assesses whether the restriction is narrowly tailored to a compelling governmental interest. (See, e.g. Roe v. Wade (1973) 410 U.S. 113, 155.) Additionally, all persons have a right to privacy to medical records under the United States and California Constitution. (See, e.g. Gross v. Recabaren (1988) 206 Cal.App.3d 771, 782-783  [substantial privacy concerns are raised whenever there is an intrusion into a patient’s confidential relationship with a physician.];  Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 [the same with respect to disclosure of confidential medical information regarding the condition a patient seeks to treat]; Yin v. State of Cal. (9th Cir. 1996) 95 F.3d 864, 870 [all persons have the Fifth and Fourteenth Amendment rights in the privacy of personal medical information and records]; Doe v. Attorney General of U.S. (9th Cir. 1991) 941 F.2d 780, 795-796 [same]; see also Whalen v. Roe (1977) 429 U.S. 589, 604 n. 32 [assuming, but not deciding, that persons have a federal constitutional right to the privacy of medical information and records].) 

The California and United States Constitutions afford a person the basic privacy right of making medical decisions. (U.S. Const., Amend XIV; Cal. Const., art. I, § 1.) The probation condition here infringes on that right by requiring that the court permit appellant to take medications which a doctor has deemed medically necessary.  Because the condition is not narrowly tailored to a compelling governmental interest as less restrictive measures could be taken to achieve the same goal, the condition is unconstitutionally overbroad.

A defendant has the right to privacy and to confidentiality in medical records. (See factors set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)

(Board of Medical Quality Assutance v. Gherardini (1979) 93 Cal.App.3d 669, 679.)

Breaking: California Supreme Court holds police cannot search a car solely to find identification!

The California Supreme Court today in People v. Lopez (will update soon with WL cite) overturned existing authority and held that “the desire to obtain a driver’s identification following a traffic stop does not constitute an independent, categorical exception to the Fourth Amendment’s warrant requirement.” AMAZING.

Prejudicial error from defendant’s absence at sentencing.

It is not controversial that a defendant has a federal constitutional right to be present at a sentencing hearing.

The Second District just held in People v Cutting 2019 WL 6163797, though, the the more stringent Chapman standard of prejudice applies when a defendant is unjustifiably absent from sentencing. They went on to hold that the error was prejudicial because the defendant could have presented mitigating facts or expressed remorse. This is one of those situations where it seems impossible to show prejudice. Who knows what he would have said and how it could have changed the outcome? This case will be super helpful for any cases where judges rule on SB 1393 / SB 620 issues on demand without holding a hearing.

First SB 136 case–TLDR: it applies retroactively

SB 136 abolished the one-year prison prior enhancement codified at Penal Code section 667.5.

The Fifth District Court of Appeal held yesterday, in People v. Lopez (WL cite not yet available), that SB 136 applies retroactively to any case not yet final on appeal. A case is final 90 days after the California Supreme Court denies review. Supplemental brief the shit out of this!

I have several pending appeals where the AG has conceded the issue. Although I hesitate to say this about anything in the criminal justice system, it is a slam dunk assuming your client’s case is not yet final.

If his or her case is final, you can always argue that it violates the Equal Protection Clause to deny him/her relief. This argument is kind of a loser. Here is some sample language you can use which I drafted for a similar bill, SB 1393:

Appellant is entitled to relief because otherwise his right to equal protection under the 14th amendment to the United States constitution and Article I, section 7 of the California constitution would be violated, as appellant argued in his motion. This is because, appellant is similarly situated to persons whose cases are not yet final on appeal, and there is no compelling state interest, or rational basis, to treat appellant differently from those individuals.


The equal protection clauses of the Fourteenth Amendment to the United States constitution and Article I, section 7 of the California constitution require that similarly situated defendants be treated alike.  “[N]o State shall . . . deprive any person of . . . liberty . . . without due process of law nor shall any person be denied equal protection of the laws.”  (U.S. Const., Amend XIV; see also Cal. Const., art. I, § 7 [“A person may not be . . . denied equal protection of the laws.”].)  Laws must “affect alike all persons similarly situated”, and any classifications imposing different treatment on selected groups of persons must serve legitimate legislative objectives.  (Truax v. Corriginan (1921) 257 U.S. 312, 332-333.)

Where a law affects a fundamental interest or right, a reviewing court evaluates whether the law violates the equal protection clause under the strict scrutiny test.  (People v. Olivas, supra, 17 Cal.3d at p. 251.)  Under the strict scrutiny test, “the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.”  (Ibid. [emphasis in original].)   

If the law at issue does not implicate a fundamental right, then it is subject to the rational review test.  (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)  Under that test, the law violates the equal protection clause if there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.”  (Ibid.)

The law at issue here implicates appellant’s fundamental right to liberty because the law governs whether appellant will be deprived of his liberty for an additional five years.  (See People v. Olivas, supra, 17 Cal.3d at p. 251 [applying strict scrutiny to evaluate criminal sentencing issue because liberty is a fundamental right]; see also In re Maurice S. (1979) 90 Cal.App.3d 190, 193 [“Classifications that deal with restraints on liberty are subject to the strict scrutiny test”].)  Even if the rational basis test applies—which provides that a law violates the equal protection clause if it treats similarly situated persons differently without a rational basis—appellant is entitled to relief.


“‘The first prerequisite to a meritorious claim under the equal protection clause is showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 [emphasis in original] [overruled on other grounds by Johnson v. Department of Justice, supra, 60 Cal.4th at p. 888].) This concept “compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” [Citation.]” (In re Eric J. (1979) 25 Cal.3d 522, 531 [internal quotations omitted].) “This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438].)       

Appellant is similarly situated to persons whose convictions are not yet final and therefore eligible for a resentencing hearing under SB 1393.  Both appellant and these persons are in identical positions—they were deprived of the opportunity to have the trial court strike the five-year enhancements imposed because of the law that existed at the time they were sentenced.

People v. Brown (2012) 54 Cal.4th 314, makes clear that appellant is similarly situated with persons whose convictions are not yet final.  In Brown, the California Supreme Court held that a defendant was not similarly situated with persons whose convictions occurred after the effective date of a statute that gave inmates more credits for good behavior.  (Id. at p. 329.) This fact sufficiently distinguished the defendant from those eligible for credits because “the important corrections purposes of a statute authorizing incentives for good behavior [citation] are not served by rewarding prisoners who served time before the incentives took effect and thus could not have modified their behavior in response.”  (Id. at pp. 328-329.)  Important to the issue here is the Court’s reasoning for distinguishing Brown’s case from In re Kapperman (1974) 11 Cal.3d 542.  In Kapperman, the California Supreme Court held that the equal protection clause required retroactive application of an expressly prospective statute granting credit to felons for time served in local custody before sentencing and commitment to state prison.  (Id. at p. 550.).  The Court in Brown explained that this differed from Brown’s case because credit for time served “is given without regard to behavior, and thus does not entail the paradoxical consequences of applying retroactively a statute intended to create incentives for good behavior.”  (Brown, supra, at p. 330.)

Thus, the critical difference for ascertaining whether a defendant is similarly situated with a group who has received an ameliorative benefit under a new law is whether there would be any incentive for the defendant to adjust his conduct after the enactment of the new law, which would not have existed at the time of the old law.  Here, there is no such incentive for several reasons.  First, under both the old and new versions of Penal Code sections 667 and 1385, a defendant would be subject to a five-year enhancement for suffering a prior serious or violent felony.  This means that the deterrent value at play when the defendant committed the prior offense was identical under the new and old law.  That is because the enhancement would only be triggered in the new case if the offense had already been committed. Thus, the incentive for not committing the prior offense would be identical prior to, and after, the law was enacted.

Second, the new law only affords the defendant the opportunity to have his five-year enhancement stricken.  Thus, the circumstances are unlike the situation where a defendant would automatically have his sentence reduced (as in Brown) if he modified his behavior.  Accordingly, appellant is similarly situated with those persons whose convictions are not yet final.


There is no compelling interest or rational basis to treat appellant differently from persons whose appeals are not yet final and who are therefore entitled to a resentencing hearing under SB 1393.  As stated above, there is no difference between a defendant who suffered a prior conviction triggering the five-year enhancement, but whose case was final, and a defendant who suffered a prior conviction triggering the five-year enhancement, but whose case was not final.  Typically, as stated in Brown, a compelling or rational reason for distinguishing between two groups deprived of their liberty would be if there is some deterrent value in applying the law only to those persons whose crimes were committed after the effective date of the new law.  Here, there would be no deterrent value.  That is because, as stated above, a five-year enhancement is only triggered if the person already committed the offense for the serious or violent felony.  Thus, there could be no deterrent value because the law only applies to people who have not been deterred from committing the prior offense.  Because there is no compelling or rational reason to treat appellant differently from those whose cases are final, appellant’s right to Equal Protection would be violated if he is denied a resentencing hearing.

New primary caregiver diversion law SB 394

Newsom signed SB 394 into law and it is amazing. It allows for diversion for misdemeanors AND/OR non serious/nonviolent felonies if your client is a primary caregiver of a child.

There is a strong argument that this law should apply to people already convicted/who have already pled.

The law is similar, but not identical, to the mental health diversion law (PC 1001.36.) The California Supreme Court (in the lead case Frahs) is currently reviewing whether that law would apply to people who are already convicted of a crime, and a number of appellate courts have held that 1001.36 applies to people who have already pled. (Although there is a split in authority.)

Presumably, if the Supremes hold that people already convicted are eligible for mental health diversion, we have a fair shot at getting people diversion under SB 394 even if they have already pled. (Note, this would not apply to anyone whose cases/appeals are long over.)

There is some ambiguity over when and where this diversion program will begin. The law should be effective Jan 1, 2020.. But the statute says that the court, the DA and the criminal defense bar may create a primary caregiver diversion program. (PC 1001.83(a.)) So does that mean that a county can just say “we don’t do that here?” (True story: a court who shall remain nameless told me that their branch “did not do” PC 1000, even though all other courts in the county did it. 🤔). Remains to be seen.

See SB 394.

cartel crew

Apparently there has been a reality show on VH1 called “cartel crew“,  which is news to me. It’s about family members of people in the cartel.  I found out about it after I saw an LA Times opinion re El Chapo’s wife’s appearance on the show. Here’s a clip which makes it look interesting, but then I saw another preview on vh1.com and it looks like kind of a snoozefest, which is shocking because historically vh1 has quality reality tv content, including such favorites as rock of love and i love new york 2. And who could forget “Megan wants a millionaire” which had to go off air mid-season because one of the contestants murdered his ex while the show was airing.