Filed 7/7/16 P. v. Davis CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DIONNE DAVIS,

Defendant and Appellant.

 D068375

 (Super. Ct. No. SCN342040)

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL SAIA,

Defendant and Appellant.

 D068651

 (Super. Ct. No. SCN342040)

CONSOLIDATED APPEALS from a judgment and order of the Superior Court of 

San Diego County, Sim von Kalinowski, Judge. Judgment against Davis affirmed. 

Order against Saia reversed with directions.

Christopher Love, under appointment by the Court of Appeal, for Defendant and 

Appellant Dionne Davis.
2

Robert Booher, under appointment by the Court of Appeal, for Defendant and 

Appellant Michael J. Saia.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Peter Quon, Jr., Ronald Jakob and Stacy Tyler, Deputy Attorneys General, for Plaintiff 

and Respondent.

A jury convicted Dionne Davis and Michael Saia of robbery. (Pen. Code, § 211.)1 

In bifurcated proceedings, the trial court found that Davis had suffered four probation 

denial priors under section 1203, subdivision (e)(4) and two prison priors under sections 

667.5, subdivision (b) and 668. The court sentenced Davis to five years in prison. The 

court suspended imposition of Saia's sentence for three years and granted him formal 

probation conditioned on spending 365 days in local custody. The court prescribed

various additional terms and conditions of Saia's probation, including a search condition

encompassing Saia's electronic devices.

Davis and Saia appeal. They contend the court erred by not instructing the jury on 

the lesser included offenses of battery (Davis and Saia) and assault (Saia only). Saia 

additionally contends his electronic search condition is invalid under People v. Lent

(1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad.

We conclude any error in failing to instruct the jury on battery and assault was 

harmless. We therefore affirm the judgment against Davis. However, we conclude the 

electronic search condition imposed as part of Saia's probation is unconstitutionally 

 

1 Further statutory references are to the Penal Code.
3

overbroad. We will therefore direct the trial court to strike the condition and remand for 

consideration of a more narrowly tailored condition.

FACTS

For purposes of this section, we state the evidence in the light most favorable to 

the appealed judgment and order. (See People v. Osband (1996) 13 Cal.4th 622, 690; 

People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed 

where relevant in the following section.

On President's Day, February 16, 2015, Scott Ackley drank approximately 12 

beers and went for an afternoon walk near the beach in Oceanside, California. While he

was walking, Davis and Saia approached him. Saia asked if Ackley wanted to buy some 

marijuana. When Ackley declined, either Davis or Saia struck Ackley in the left temple. 

Davis then punched Ackley in the stomach, put him in a headlock, and dragged him 

behind a parked truck. As Davis and Ackley struggled, Saia went through Ackley's 

pockets and took his wallet.

A passing driver, Javier Williams, witnessed Davis and Saia fight with Ackley. 

Ackley looked afraid and surprised. Williams saw Saia ride away on a bicycle with 

Ackley's wallet in his hand. Ackley exclaimed "he has my wallet" several times. Ackley 

chased Saia, and Williams called police. Davis walked away and tried to blend into the 

crowd.

Police officers arrived and took statements from Ackley and Williams. While 

talking with police, Ackley said he got his wallet back. Ackley could not explain 
4

precisely how he recovered his wallet; he believed someone handed it to him after police 

arrived. Nothing was missing from the wallet.

Police officers observed an injury to the side of Ackley's head. Ackley appeared

dazed and disoriented from the fight and was feeling the effects of the beers he drank 

earlier. Ackley admitted his recollection of the day was "patchy."

Police officers tracked Saia to a nearby apartment complex, where he was 

changing his shirt. Saia ran away and hid in a stairwell. Police officers found Saia and 

detained him. Police found Davis nearby and detained her as well. Ackley and Williams 

positively identified Davis and Saia, and they were arrested.

At trial, defense counsel argued that Ackley and Williams had been inconsistent in 

their statements, which cast doubt on their testimony. They also pointed to evidence the 

police asked Ackley whether he had solicited Davis for sex. (Ackley said he did not 

recall.) They claimed this solicitation, not any motive for robbery, caused the altercation 

between Ackley and Davis.

DISCUSSION

I

On appeal, Davis and Saia contend the trial court erred by not instructing the jury 

on battery and assault as lesser included offenses of robbery. " ' "It is settled that in 

criminal cases, even in the absence of a request, the trial court must instruct on the 

general principles of law relevant to the issues raised by the evidence. [Citations.] The 

general principles of law governing the case are those principles closely and openly 

connected with the facts before the court, and which are necessary for the jury's 
5

understanding of the case." [Citation.] That obligation has been held to include giving 

instructions on lesser included offenses when the evidence raises a question as to whether 

all of the elements of the charged offense were present [citation], but not when there is no 

evidence that the offense was less than that charged.' " (People v. Breverman (1998) 19 

Cal.4th 142, 154 (Breverman).) " 'On appeal, we review independently the question 

whether the court failed to instruct on a lesser included offense.' " (People v. Avila 

(2009) 46 Cal.4th 680, 705.)

"To determine whether a lesser offense is necessarily included in the charged 

offense, one of two tests (called the 'elements' test and the 'accusatory pleading' test) must 

be met." (People v. Lopez (1998) 19 Cal.4th 282, 288.) Davis and Saia argue the 

accusatory pleading test compels instructions on battery and assault as lesser included 

offenses of robbery under the circumstances here.2 "Under the accusatory pleading test, 

a lesser offense is included within the greater charged offense ' "if the charging 

allegations of the accusatory pleading include language describing the offense in such a 

way that if committed as specified the lesser offense is necessarily committed." ' " (Id. at 

pp. 288-289.) In other words, "if the facts actually alleged in the accusatory pleading 

include all of the elements of the lesser offense[,]" the trial court is required to instruct on 

the lesser offense. (People v. Bailey (2012) 54 Cal.4th 740, 748.)

 

2 The Supreme Court has held that assault is not a lesser included offense of robbery 

under the elements test. (See, e.g., People v. Parson (2008) 44 Cal.4th 332, 349

["Because a robbery can be committed strictly by means of fear, assault is not a lesser 

included offense of robbery under the elements test."].) As Davis concedes in her 

briefing, this logic leads to the same conclusion with respect to the crime of battery.
6

The accusatory pleading here contained the following allegation: "On or about 

February 16, 2015, [Davis] and [Saia] did unlawfully and by means of force and fear take 

personal property from the person, possession and immediate presence of Scott Ackley, 

in violation of [section 211]." Davis and Saia contend that the allegation they used 

"force" in connection with the robbery necessarily means they committed battery and 

assault as well. This logic was considered and rejected in People v. Wright (1996) 52

Cal.App.4th 203 (Wright). Wright reasoned that "force" in the context of robbery did not 

necessary mean physical force; it could be constructive force, i.e., fear. (Id. at pp. 210-

211.) Wright explained, " 'force' is not an element of robbery independent of 'fear'; there 

is an equivalency between the two." (Id. at p. 211.) On that basis, Wright concluded that 

an allegation of robbery encompassing both "force" and "fear" did not warrant an 

instruction on assault as a lesser included offense: "Since the element of force can be 

satisfied by evidence of fear, it is possible to commit a robbery by force without 

necessarily committing an assault. Consequently, under the 'accusatory pleading' test, 

assault is not necessarily included when the pleading alleges a robbery by force." (Ibid.)

The Supreme Court has cited Wright twice on this issue, though it has not 

commented on Wright's reasoning because it found in each case that no substantial 

evidence supported an instruction on the lesser included offense, even assuming the 

accusatory pleading test were satisfied. (People v. O'Malley (2016) 62 Cal.4th 944, 985; 

People v. Parson, supra, 44 Cal.4th at p. 350.) We likewise have no occasion in this case 

to consider the reasoning in Wright, though for a slightly different reason. We conclude 
7

that even if the accusatory pleading test were satisfied, and even if substantial evidence 

supported a finding that Davis and Saia were guilty of battery or assault but not of 

robbery (see People v. Casteneda (2011) 51 Cal.4th 1292, 1327-1328), any error in 

failing to instruct the jury was harmless on the record presented here.

"In noncapital cases, 'the rule requiring sua sponte instructions on all lesser 

necessarily included offenses supported by the evidence derives exclusively from 

California law.' [Citation.] As such, 'in a noncapital case, error in failing sua sponte to 

instruct, or to instruct fully, on all lesser included offenses and theories thereof which are 

supported by the evidence must be reviewed for prejudice exclusively under [People v.] 

Watson [(1956) 46 Cal.2d 818, 836 (Watson)].' " (People v. Beltran (2013) 56 Cal.4th 

935, 955 (Beltran).)3 " '[U]nder Watson, a defendant must show it is reasonably probable 

a more favorable result would have been obtained absent the error.' " (Ibid.)

 

3 Davis agrees the Watson standard applies. Saia, however, contends the 

instructional error here constitutes federal constitutional error, requiring a more stringent 

review for prejudice. But, as the Supreme Court explained in Breverman, "the United 

States Supreme Court has expressly refrained from recognizing a federal constitutional 

right to instructions on lesser included offenses in noncapital cases." (Breverman, supra, 

19 Cal.4th at p. 165.) The error assumed here is therefore one of California law only, 

subject to the Watson standard of prejudice. (Beltran, supra, 56 Cal.4th at p. 955; 

Breverman, at p. 169.) Relying on People v. Thomas (2013) 218 Cal.App.4th 630, 643-

644 (Thomas), Saia argues that the failure to instruct on lesser included offenses deprived 

him of his federal constitutional right to have the jury decide all elements of the charged 

offense. Thomas reasoned that the trial court's failure to instruct on voluntary 

manslaughter effectively removed the element of malice from the jury because it 

deprived the jury of instructions regarding the circumstances in which the element of 

malice could be negated. (Id. at p. 644.) No similar situation is presented here. The 

offenses of battery and assault do not represent exceptions to robbery, and the 

instructions regarding their elements do not affect the prosecution's burden of proof with 

respect to the elements of robbery. (See People v. Ngo (2014) 225 Cal.App.4th 126, 158, 
8

As an initial matter, we note that the mere fact we assume substantial evidence 

supported the lesser included offense instructions (i.e., a reasonable jury could have 

found Davis and Saia guilty of battery or assault, but not of robbery) does not in and of 

itself establish prejudice. "[T]he Watson test for harmless error 'focuses not on what a 

reasonable jury could do, but what such a jury is likely to have done in the absence of the 

error under consideration. In making that evaluation, an appellate court may consider, 

among other things, whether the evidence supporting the existing judgment is so 

relatively strong, and the evidence supporting a different outcome is so comparatively

weak, that there is no reasonable probability the error of which the defendant complains 

affected the result.' " (Beltran, supra, 56 Cal.4th at p. 956.)

Here, the evidence supporting the jury's verdict of robbery was overwhelming. 

Ackley, the victim, told police immediately after the altercation that Saia took his wallet. 

At trial, Ackley testified that he felt either Saia or Davis reach into his pocket and grab 

his wallet. Williams, a disinterested witness, corroborated Ackley's testimony. Williams 

told the jury he saw Saia going through Ackley's pockets and riding away on his bicycle 

with Ackley's wallet in hand. Williams heard Ackley exclaim, "He has my wallet,"

several times. After Ackley's wallet was returned, he said, "I got my wallet back." After 

hearing the evidence, the jury took only two hours to reach its verdict, showing that this 

was not a close case.

 

fn. 20 [distinguishing Thomas in the context of a different offense].) The Watson

standard applies.
9

By contrast, the evidence supporting a finding that Saia and Davis committed only 

battery or assault, and not robbery, is meager at best. Saia points to Ackley's testimony 

that he was unsure who took his wallet and how he got it back. Saia also contends 

Ackley's intoxication calls his testimony about the wallet into question. But, as we have 

already noted, Ackley's testimony was in large part corroborated by Williams. The fact 

that both Ackley and Williams testified that Ackley's pockets were searched, and both 

Ackley and Williams testified that Ackley's wallet was taken, greatly reduces any doubt 

based on Ackley's intoxication. This intoxication, rather than any motive to lie, explains 

any gaps in Ackley's recollection of that day. Saia also claims there was evidence of a 

motive other than robbery. (Davis similarly claims the jury could have found she was 

unaware Saia planned to rob Ackley.) But such conclusions—based largely on the mere 

fact that the police asked Ackley whether he solicited Davis for sex—would be 

unwarranted given the other evidence in the record, which showed that Davis and Saia 

intended to, and did, rob Ackley of his wallet. The other alleged inconsistences in 

Ackley and Williams's statements are insignificant in light of the whole record.

Given the overwhelming evidence in support of the jury's verdict of robbery, and 

the comparatively meager evidence supporting a finding not of robbery but of battery or 

assault, Davis and Saia have not shown they would have achieved a more favorable result 

if the jury had been instructed on battery and assault. Any error was therefore harmless 

under Watson.
10

II

Saia argues the electronic search condition imposed as part of his formal probation 

is invalid under the Supreme Court's Lent test and is unconstitutionally overbroad. The 

condition requires Saia to "[s]ubmit [his] person, vehicle, residence, property, personal 

effects, computers, and recordable media . . . to search at any time with or without a 

warrant, and with or without reasonable cause, when required by [the probation officer] 

or law enforcement officer." (Italics added.) Saia contends the inclusion of "computers"

and "recordable media" in the condition is improper. We conclude the court did not 

abuse its discretion in imposing the condition under Lent but, as the Attorney General 

concedes, the condition is unconstitutionally overbroad. We will therefore direct the trial 

court to strike the challenged portions of the condition and remand for consideration of a 

more narrowly tailored condition.

A

Under Lent, "[w]e review conditions of probation for abuse of discretion. 

[Citations.] Generally, '[a] condition of probation will not be held invalid unless it "(1) 

has no relationship to the crime of which the offender was convicted, (2) relates to 

conduct which is not in itself criminal, and (3) requires or forbids conduct which is not 

reasonably related to future criminality . . . ." [Citation.]' [Citation.] This test is 

conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a 

probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting Lent, 

supra, 15 Cal.3d at p. 486.)
11

The parties agree the first two prongs of the Lent test are satisfied in this case: (1) 

the electronic search condition has no relationship to Saia's crime, and (2) it relates to 

conduct that is not itself criminal. The dispositive issue here is therefore whether the 

electronic search condition requires or forbids conduct that is reasonably related to future 

criminality. The same issue, albeit involving a juvenile offender, is currently pending 

before the Supreme Court. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted 

Feb. 17, 2016, S230923.)

The Supreme Court's opinion in Olguin is instructive. In that case, the Supreme 

Court considered a probation condition requiring the probationer to notify his probation 

officer of any pets in his residence and give 24 hours' notice prior to any changes. 

(Olguin, supra, 45 Cal.4th at p. 380.) The Supreme Court explained that "conditions of 

probation 'are meant to assure that the probation serves as a period of genuine 

rehabilitation and that the community is not harmed by the probationer's being at large. 

[Citation.] These same goals require and justify the exercise of supervision to assure that 

the restrictions are in fact observed.' " (Ibid.) As a general rule, "[a] condition of 

probation that enables a probation officer to supervise his or her charges effectively is, 

therefore, 'reasonably related to future criminality.' " (Id. at pp. 380-381.)

Against this backdrop, the Supreme Court found the probation condition at issue 

reasonable: "The condition requiring notification of the presence of pets is reasonably 

related to future criminality because it serves to inform and protect a probation officer 

charged with supervising a probationer's compliance with specific conditions of 

probation." (Olguin, supra, 45 Cal.4th at p. 381.) The Supreme Court reasoned that the 
12

probation condition ensured the probation officer's safety when making unannounced 

visits to the probationer's residence. (Id. at pp. 381-382.) The Supreme Court concluded, 

"Reporting the presence of pets to a probation officer is a simple task, imposes no undue 

hardship or burden, and is a requirement that clearly falls within the bounds of reason." 

(Id. at p. 382.)

Pending guidance from the Supreme Court, the Courts of Appeal appear to be

divided on the reasonableness of electronic search conditions under Lent. In re J.B.

(2015) 242 Cal.App.4th 749 (J.B.) found, for example, that an electronic search condition 

was unreasonable in the context of a juvenile offender. (Id. at p. 757.) J.B. distinguished 

Olguin and questioned the breadth of its general rule: "The fact that a search condition 

would facilitate general oversight of the individual's activities is insufficient to justify an 

open-ended search condition permitting review of all information contained or accessible 

on the minor's smart phone or other electronic device." (J.B., supra, 242 Cal.App.4th at 

p. 758.) On the other hand, also in the juvenile context, In re P.O. (2016) 246 

Cal.App.4th 288 (P.O.), held that such an electronic search condition was reasonable 

under Lent. (Id. at p. 295.) Following Olguin, P.O. held that the electronic search 

condition "reasonably relates to enabling the effective supervision of [the juvenile ward's] 

compliance with other probation conditions. Specifically, the condition enables peace 

officers to review [the ward's] electronic activity for indications that [the ward] has drugs 

or is otherwise engaged in activity in violation of his probation." (Ibid.)

We agree with P.O. and conclude that the trial court could reasonably impose the 

electronic search probation condition here. The electronic search condition "enables a 
13

probation officer to supervise [Saia] effectively" by allowing the probation officer access 

to Saia's electronic devices and recordable media. (See Olguin, supra, 45 Cal.4th at pp. 

380-381; P.O., supra, 246 Cal.App.4th at p. 295.) By searching those devices and media, 

the probation officer can more effectively determine whether Saia is complying with the 

terms of his probation, including refraining from unlawful activity, not contacting the 

victim, not possessing a firearm or deadly weapon, and not using drugs or alcohol (if 

directed by the probation officer). In our view, the electronic search condition here is 

analogous to the standard "three-way" search condition—of a defendant's person, 

residence, and vehicles—routinely imposed as a condition of probation.4 Both the threeway search condition and the electronic search condition allow for effective monitoring 

of a probationer's activities. Indeed, given the current ubiquity of electronic 

communications and interactions, an electronic search condition may well be the only 

way for a probation officer to discover the bulk of the information relevant to a 

probationer's compliance with probation conditions. A probationer engaged in illegal 

activities, for example, is much more likely to have digital photographs or 

communications relating to such activities stored on an electronic device than print 

photographs and written correspondence stored at home. Saia has not shown the trial 

court abused its discretion under Lent.

 

4 The trial court here imposed such a three-way search condition, along with a 

condition allowing searches of Saia's personal effects. Saia does not challenge these 

conditions.
14

B

Saia further contends, and the Attorney General concedes, that the electronic 

search condition is unconstitutionally overbroad. " '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 constitutionally overbroad.' 

[Citation.] 'The essential 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.' " 

(People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We independently review 

whether a probation condition is constitutionally overbroad. (People v. Appleton (2016) 

245 Cal.App.4th 717, 723 (Appleton).)

Courts have rejected similar electronic search conditions as unconstitutionally 

overbroad. (Appleton, supra, 245 Cal.App.4th at p. 727; P.O., supra, 246 Cal.App.4th at 

p. 298.) We therefore accept the Attorney General's concession and direct the trial court 

to strike the challenged portions of the search condition. However, because we have 

determined an electronic search condition may be permissible under Lent, we will 

remand this matter to the trial court to consider whether and how the search condition 

could be narrowed to eliminate overbreadth concerns. (See Appleton, at p. 727.)
15

DISPOSITION

The judgment against Davis is affirmed. The order granting formal probation to

Saia is reversed, and the matter is remanded to the trial court with the following 

instructions. The trial court shall strike the portion of Saia's probation condition 

requiring him to submit his "computers" and "recordable media" to search. The trial 

court shall consider fashioning an alternative probation condition consistent with this 

opinion.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

PRAGER, J.*

 

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.