People v. Yale CA1/3 ( 2022 )

Filed 2/28/22 P. v. Yale CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A162470
v.
KIMBERLY ANN YALE, (Humboldt County
Super. Ct. No. CR2002989C)
Defendant and Appellant.
MEMORANDUM OPINION*
Defendant Kimberly Ann Yale was convicted on her plea of guilty to
being an accessory after the fact to a felony robbery and was placed on
probation. (Pen. Code, § 32.) One of the probation conditions required her to
submit to warrantless searches of her electronic devices.
As the factual basis for the plea, the parties stipulated that Yale drove
with two other people to a residence in Arcata, where her two companions,
Michelle Odjick and Jason Smith, demanded money from the victim. When
the victim refused, Smith fired a pistol, striking the victim in the arm. Yale,
Smith, and Odjick ran to Yale’s car, and she drove them away.
We resolve this case by memorandum opinion pursuant to California
*
Standards of Judicial Administration, Title 8, Standard 8.1.
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Yale contends, and the Attorney General concedes, that on this record
the electronics search condition was invalid and that her counsel rendered
ineffective assistance in failing to object to it. We agree.
“[A] condition of probation which requires or forbids conduct which is
not itself criminal is valid if that condition is reasonably related to the crime
of which the defendant was convicted or to future criminality.” (People v.
Lent (1975) 15 Cal.3d 481, 486.) Our high court applied this rule to
electronics search conditions in In re Ricardo P. (2019) 7 Cal.5th 1113. The
appellate court there had concluded, and our Supreme Court presupposed,
that the condition did not relate to conduct that was itself criminal and that
no electronic device was involved in the crime at issue. The only issue before
the high court was whether the condition was reasonably related to future
criminality. (Id. at pp. 1116, 1119.) Since there was no indication the
probationer had used or would use electronic devices in connection with
illegal activity, the condition was held invalid because the burden it imposed
on the probationer’s privacy was substantially disproportionate to the
legitimate goals of rehabilitation and public safety. (Id. at pp. 1116, 1119,
1128–1129.)
The condition here must fall under these standards. Possession of
electronics is not criminal in itself. We have reviewed the transcript of the
preliminary hearing and, while it shows Odjick used electronic devices in
connection with the crime, there is no indication Yale herself participated in
any such electronic communications or used devices in any manner related to
the crime. Nor is there any indication she has used or will use electronic
devices in connection with any other criminal activity. The condition is
therefore invalid under the standards enunciated in Lent and Ricardo P.
2
We also agree with the parties that Yale’s counsel could have had no
tactical reason for failing to object to the invalid probation condition, that the
failure to object prejudiced her, and that counsel therefore rendered
ineffective assistance. (See People v. Majors (1998) 18 Cal.4th 385, 403;
People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Rather than treating
the error as forfeited by Yale’s failure to object (see People v. Welch (1993)
5 Cal.4th 228, 234–235), we shall order the condition stricken.
DISPOSITION
The electronic search condition (Condition 12) is stricken. In all other
respects, the judgment is affirmed.
TUCHER, P.J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
People v. Yale (A162470)
3