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Filed 5/7/21 P. v. Maynard CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JACOB RYAN MAYNARD,

Defendant and Appellant.

C092175

(Super. Ct. No. 62162820)

Defendant Jacob Ryan Maynard appeals from a June 2020 order reinstating all 

prior terms and conditions of probation, claiming an electronic search condition imposed 

in 2019 is unconstitutional. We affirm, because we agree with the People that defendant 

cannot challenge the probation condition in this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

We do not discuss the underlying facts of defendant’s crime of conviction, as it is

irrelevant to our resolution of this appeal.

Pursuant to a negotiated disposition in May 2019, defendant pled no contest to one 

count of assault with a deadly weapon, and the trial court placed him on formal probation 
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for five years with various conditions, including that he obey all laws and “submit his/her 

person, place[,] property, automobile, electronic storage devices . . . to search and seizure 

by an [sic] law enforcement officer or probation officer, any time of the day or night, 

with or without a warrant . . . .” 

The trial court asked defendant if he accepted the terms and conditions of 

probation. Defendant replied, “Yes, sir,” and did not file a direct appeal challenging the 

general search condition. 

In May 2020, after a contested hearing, the trial court concluded defendant 

violated the “obey all laws” condition of probation, and revoked probation. 

Later, after the prosecution urged the trial court not to reinstate probation, but 

instead to sentence defendant to an aggravated term of incarceration for the assault, the 

trial court explained that it “would be willing to reinstate probation” if defendant were to 

waive some custody credits and accept the trial court’s “add[ing] drug, narcotic and 

alcohol testing by probation.” 

After conferring with defendant, counsel for defendant told the trial court that 

defendant “accept[ed] the modified terms of probation.” The trial court asked defendant 

if he had any questions before the hearing continued. Defendant said he did not have any 

questions “that [he] car[ed] to mention.” 

After more discussion, the trial court said it would “reinstate probation on all prior 

terms and conditions. We are adding terms and conditions of probation. They will 

include that you submit to drug, narcotic and alcohol testing . . . .” (RT 119) The trial 

court explained other aspects of new terms and conditions (RT 119-122), and then the 

following colloquy occurred between the trial court and defendant:

“[The trial court]: So sir, will you accept those additional terms and conditions of 

probation as I’ve indicated them to you?

“[Defendant]: Yes, Your Honor.
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“[The trial court]: And I should note that the prior order to stay away from the 

victim in this matter remains the [c]ourt’s order. Do you understand that . . . ?

“[Defendant]: I understand that.

“[The trial court]: Give me just a moment. That includes -- so your prior orders 

are to submit to search and seizure. That includes electronic devices. And . . . including 

providing passwords. Do you understand that?” 

Defendant told the trial court he understood. 

Defendant timely appealed. 

DISCUSSION

On appeal, defendant challenges the constitutionality of the electronic search 

condition of his probation. He argues it is facially overbroad. The People argue 

defendant’s claim is “barred by his failure to appeal the original 2019 order in which the 

condition was imposed and is forfeited by his failure to object at any time.” 

(Capitalization and bolding omitted.)

We agree defendant may not now challenge the electronic search condition.

Even assuming that defendant’s challenge to the constitutionality of the probation 

condition raises a purely legal issue not requiring any scrutiny of the individual facts of 

his case, which ordinarily does not forfeit the issue (In re Sheena K. (2007) 40 Cal.4th 

875, 885, 889), we reject his challenge, because he did not appeal from the initial order 

granting probation.

In general, an appealable order from which a litigant does not take direct appellate 

review becomes final and binding and may not be attacked subsequently on an appeal 

from a later appealable order or judgment. (People v. Ramirez (2008) 159 Cal.App.4th 

1412, 1421.) An order granting probation is appealable (whether it is the imposition or 

execution of sentence being suspended). (Id. at p. 1421.) “Thus, a defendant who elects 

not to appeal an order granting . . . probation cannot raise claims of error with respect to 
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the grant . . . of probation in a later appeal from a judgment following revocation of 

probation.” (Ibid.)

Here, as there is no dispute that defendant did not appeal the order granting 

probation, though he could have, he cannot now challenge that order in the instant appeal.

Defendant’s invocation of In re Sheena K. for the proposition that we have 

discretion to consider his claim is unpersuasive. In that case, the juvenile did challenge 

the relevant probation condition in her first opportunity to appeal from the order. (In re 

Sheena K., supra, 40 Cal.4th at p. 878.) In that context, our Supreme Court explained “a 

challenge to a term of probation on the ground of unconstitutional vagueness or 

overbreadth that is capable of correction without reference to the particular sentencing 

record developed in the trial court can be said to present a pure question of law” and thus 

may be reviewed on appeal despite the failure to object in the trial court. (Id. at p. 887, 

italics omitted.) Here, the different procedural posture of this case is dispositive.

Given our preceding holding, we need not decide whether defendant forfeited 

appellate review of the electronic search condition by failing to object to it.

DISPOSITION

The judgment (order reinstating probation) is affirmed.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Hoch, J.

/s/ 

Renner, J.