Filed 2/11/21 P . v. Ashton CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ASHTON,

Defendant and Appellant. D077343

(Super. Ct. No. SCD284179 )

ORDER MODIFYING OPINION

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on February 8, 2021, be

modified as follows:

On page 4, the second sentence in the paragraph under the heading

DISPOSITION is deleted. The paragraph now reads as follows:

The portion of p robation condition No. 6n relating to electronic
devices is stricken. As modified, the judgment is affirmed.

BENKE, Acting P. J.

Copies to: All partiesFiled 2/8/21 P. v. Ashton CA4/1 (unmodified opi nion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ASHTON,

Defendant and Appellant. D077343

(Super. Ct. No. SCD284179 )

APPEAL from a judgment of the Superior Court of San Diego County,

Polly H. Shamoon, Judge. Affirmed in part, reversed in part

.

Neil Auwarter, 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 and Lise Jacobson, Deputy Attorneys General, for Plaintiff and

Respondent.

FACTUAL BACKGROUND

According to th e probation report filed in this case , a law enforcement

officer responded to a call of an intoxicated motorist at a Poway carwash2

after an employee of the carwash reported the motorist had driven his car

into a trash can. The responding officer found defendant

, Mark Ashton, who

appeared to be intoxicated , inside an automobile that had been reported

stolen. Defendant stated that he and a friend had been drinking when they

found the car at a troll e y station with the keys inside ; and that they drove the

car to the carwash and his friend left. A field sobriety test was administered

to defendant, which he failed. Two hours later, defendant’s blood reflected a n

alcohol level of .047 percent as well as the presence of benzodiazepines

. PROCEDURAL BACKGROUND

Defendant was charged by the San Diego County District Attorney

with felony taking or driving a vehicle without consent in violation of Vehicle

Code 1 section 10851, subd ivision (a) , c ount 1 ; with receiving a stolen vehicle

in violation of Penal Code se ction 496 d , count 2; and with driving under the

influence of alcohol in violation of section 23152, subd ivision ( a ) , count 3

, with

a prior conviction within the meaning of section 23540 ; and with driving with

his license suspended for driving under the inf luence, in violation of section

14601.2, subd ivision (a) , count 4

. Pursuant to a plea agreement, defendant pled guilty to counts 1 and 3,

which were amended to allege driving under the influence of alcohol and

drugs, in violation of section 23152, subd iv ision (g)

, and he admitted the prior

conviction for driving under the influence

. Probation was granted and the

remaining charges were dismissed.

At the sentencing hearing, the trial court granted defendant probation

with terms that included 365 days in custody against which he was awarded

a combined total of 100 actual and 100 conduct presentence custody credits.

1 Further unspecified statutory references are to the Vehicle Code.3

P robation No. 6n included a waiver of defendant’s Fourth A mendment

rights , allowing searches o f his person and property, including computers and

recordable media. Defense counsel objected that th e condition was too broad

under People v. Lent (1975) 15 Cal.3d 481

. The court denied the request to

strike the electronic searches but amended condition No. 6n to apply to all

electronic devices and passcodes to those devices.

DISCUSSION

Relying principally on In re Ricardo P . (2019) 7 Cal

. 5th 1113 ( Ricardo

P. ) , defendant contends probation condition No. 6n is too broad in extending

to all his electronic devices. We agree.

In setting the conditions of probation, the trial court noted defendant

was receiving substance abuse treatment and thus his future criminality

needed to benefit from the conditions set for probation. As noted by

defen dant, the trial court did not expressly state how condition No. 6n is

related to the offenses with which he was charged or convicted. He therefore

contends the entire electronic

- device condition should be stricken. The

People g enerally agree that search of all his electronic devices is too broad,

but argue the condition should be narrowed to the electronics search of his

phone and text and e

- mail messages. The basis on which they rely is that

such a narrow condition would respond to his general success o n parole, in

particular

, as it would address supervising his alcoholism and addiction.

The People do not argue that defendant used any electronic devi c e to steal

the vehicle in which defendant was found here.

The basis on which the People find condition No. 6n applicable and

helpful is nearly identical to the failed basis in Ricardo P

. ( Ricardo P

., supra , 7 Cal. 5th at p. 1115 [search of electronics not related to offense but added to

monitor compliance with drug prohibition].) L ike the situation in Ricardo P

.,4

the condition here is based on mere speculation defendant will use his

electronic devices to document or discuss alcohol or drug abuse. ( See i d . at

pp. 112 3

– 112 4 .) As such, there is nothing in this record that establishes a

connection between the search condition and defendant’s criminal conduct or

personal history. ( In re Alonzo M

. (2020) 40 Cal.App.5th 156, 166

. )

We conclude that the portion of probation condition No. 6n relating to

electronic devices must be stricken

. DISPOSITION

The por tion of p robation condition No. 6n relating to electronic devices

is stricken. The trial court should prepare an amended abstract of judgment

with this change and forward a certified copy of the amended abstract to the

Department of Corrections and Rehabi litation. As modified, the judgment is

affirmed.

BENKE, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.