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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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 probation condition No. 6n relating to electronic 

devices is stricken. As modified, the judgment is affirmed.

BENKE, Acting P. J.

Copies to: All parties
Filed 2/8/21 P. v. Ashton CA4/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

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 the probation report filed in this case, a law enforcement

officer responded to a call of an intoxicated motorist at a Poway carwash 
2

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 trolley 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 an

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 

Code1 section 10851, subdivision (a), count 1; with receiving a stolen vehicle 

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

influence of alcohol in violation of section 23152, subdivision (a), count 3, with 

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

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

14601.2, subdivision (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, subdivision (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

Probation No. 6n included a waiver of defendant’s Fourth Amendment 

rights, allowing searches of his person and property, including computers and 

recordable media. Defense counsel objected that the 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 

defendant, 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 generally 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 on parole, in 

particular, as it would address supervising his alcoholism and addiction. 

The People do not argue that defendant used any electronic device 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].) Like 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 id. at 

pp. 1123–1124.) 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 portion of probation 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 Rehabilitation. As modified, the judgment is 

affirmed.

BENKE, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.