People v. Salcido ( 2019 )

Filed 11/25/19; Opinion following transfer from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
E067578
Plaintiff and Respondent,
(Super.Ct.No. INF1501474)
v.
OPINION
SARA ARCELIA SALCIDO,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.
Affirmed as modified.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and Michael Pulos, Britton B. Lacy, and Michael D. Butera, Deputy Attorneys
General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts III and IV and footnote 9.
1
Defendant Sara Salcido was in the business of providing immigration services —
typically, obtaining visas for her clients that would allow them to stay in the United
States legally. Under the Immigration Consultant Act (Bus. & Prof. Code, §§ 22440-
22449) (Act), with certain exceptions, it is illegal for a person to act as an “immigration
consultant” (as defined in the Act) unless he or she has complied with a host of consumer
protection requirements, such as passing a background check and filing a bond.
Defendant failed to comply with these.
As a result, in a bench trial, defendant was convicted on one count of unlawfully
engaging in the business of an immigration consultant, a misdemeanor. (Bus. & Prof.
Code, §§ 22440, 22441.) The People argued, however, that each time defendant took
money from a client in exchange for providing immigration services, she was committing
theft by false pretenses, because she was not a legally qualified immigration consultant
under state law. The trial court agreed; thus, it also convicted her on six counts of grand
theft (Pen. Code, §§ 484, 487, subd. (a)) and two counts of petty theft (Pen. Code,
§§ 484, 488). It dismissed two additional counts of grand theft as time-barred.
Defendant was placed on probation for five years.
In the published portion of this opinion, we will hold that federal law does not
preempt the application of the Act to defendant. In the unpublished portion, we will hold
that one of defendant’s probation conditions must be stricken. Accordingly, we will first
modify and then affirm the judgment.
2
I
FACTUAL BACKGROUND
A. Count 2: Rigoberto S.
In September 2012, Rigoberto S. paid defendant $4,480 to obtain a work permit
and some kind of visa. He had seen an ad saying that she provided immigration services.
He met with her in her office. However, he never received any documentation from the
United States Citizenship and Immigration Services (USCIS) or from defendant. He
contacted defendant, but she had no explanation, so he sued her in small claims court.
Defendant testified that she spent some 14 to 20 hours, across some six months, on
Rigoberto S.’s case. Nine months after he first contacted her, she discovered that he had
previously been deported. She did not file anything with the USCIS, because if she had,
he would have been deported automatically. If she had known he had previously been
deported, she would never have taken his case. She started paying back his money, in
installments; by the time of the preliminary hearing, she had repaid $1,800.
B. Count 3: Patricia F.
In October 2011, Patricia F. paid defendant $3,000 to obtain a U visa.1 They met
at defendant’s office.
Defendant testified that she put in 50 hours on the case. It took her over a year to
get the necessary signature from the relevant police department. She never actually filed
1 A U visa is available to victims of certain crimes.
3
anything for Patricia F. because Patricia F. saw “a lot of . . . bad comments on Facebook”
and fired her.
C. Count 4: Ivonne G.
In June or July 2013, Ivonne G. paid defendant $3,000 to obtain a U visa. She had
seen an ad for defendant’s immigration services. They met at defendant’s office.
Defendant testified that she had worked on Ivonne G.’s case for about a year and
had done “some forms” when she was arrested.
D. Count 6: Araceli C.
In April 2014, Araceli C. paid defendant a down payment to help her obtain a
green card based on marriage to a United States citizen. Over time, she paid defendant a
total of $9,265. On defendant’s advice, she divorced her husband and married her live-in
boyfriend; defendant handled this paperwork. She learned from the USCIS, however,
that defendant had done nothing about the green card.
Defendant testified that she spent 60 hours on the case before Araceli C. fired her.
E. Count 7: Sofia L.
In 2012, Sofia L. paid defendant a down payment to obtain U visas for herself and
her children. She met with defendant at defendant’s office. Over time, she paid
defendant a total of $5,760. The USCIS determined that she did not qualify and that it
was going to deny her petition; as of the preliminary hearing, however, it had not actually
done so, due to its backlog.
Defendant testified that she had spent 300 hours on the case.
4
F. Count 8: Javier O.
In 2014, Javier O. paid defendant $4,580 to assist him with obtaining a work
permit. He met with her at her office. He never received any documentation indicating
that she had done anything.
Defendant testified that she spent 30 hours on his case. She filed some paperwork
with the USCIS and spoke to a USCIS supervisor.
G. Count 9: Maria T.
In 2014, Maria T. paid defendant a down payment to assist her in obtaining a
U visa or similar permit. She had seen an ad for defendant’s immigration services. She
met with defendant at defendant’s office. Over time, she paid defendant a total of $800.
Defendant testified that she spent 20 hours on the case. She obtained the
necessary signature of the relevant police department and filed some papers with the
USCIS. The case was still pending. However, Maria T. fired her and sued her in small
claims court.
H. Count 10: Ilsia M.
At the end of 2014 or the beginning of 2015, Ilsia M. paid defendant $300 to assist
her in obtaining a U visa. She never received any documentation from the government.
Defendant testified that she spent four to six hours on the case. She prepared some
forms, but she could not send them in because she was arrested.
5
I. Additional Information Relevant to All Counts
Defendant maintained an office in Cathedral City. Signs outside advertised the
services that she provided, including immigration services.
Defendant admitted that she had been acting as an immigration consultant since
2007. She also admitted that she was not an attorney, though she was a paralegal. She
admitted knowing that she was required to have a background check and to post a bond,
but she had not done either.
Defendant testified that she learned in either September or November 2013 that
she was required to be registered with the state and to post a bond. (At the preliminary
hearing, however, she testified that she did not know about the background check until
2015.) She did not post a bond because she could not afford it.
It was stipulated that, at all relevant times, defendant engaged in the business or
acted in the capacity of an immigration consultant, for compensation, even though she
had not passed the required background check or posted the required bond. It was also
stipulated that, at all relevant times, defendant held herself out as legally authorized to act
as an immigration consultant. With respect to the last two victims — Maria T. and Ilsia
M. — it was additionally stipulated that defendant knew at the time that she had failed to
comply with the Act.
Finally, it was stipulated that defendant received compensation greater than $950
in connection with the grand theft counts, and less than $950 in connection with the petty
theft counts.
6
II
FEDERAL PREEMPTION
Defendant contends that the Act is preempted by federal law. She demurred to the
complaint on this ground. In any event, federal preemption can be raised for the first
time on appeal. (Town of Atherton v. California High-Speed Rail Authority (2014) 228
Cal. App. 4th 314, 331.)
“We apply a de novo standard of review . . . because federal preemption presents a
pure question of law [citation].” (Farm Raised Salmon Cases (2008) 42 Cal. 4th 1077,
1089, fn. 10.)
A. General Preemption Principles.
“‘“The supremacy clause of the United States Constitution . . . vests Congress with
the power to preempt state law.” [Citations.] Similarly, federal agencies, acting pursuant
to authorization from Congress, can issue regulations that override state requirements.
[Citations.] Preemption is foremost a question of congressional intent: did Congress,
expressly or implicitly, seek to displace state law?’ [Citation.]” (Solus Industrial
Innovations, LLC v. Superior Court (2018) 4 Cal.5th 316, 331.)
Our Supreme Court has “identified several species of preemption.” (Solus
Industrial Innovations, LLC v. Superior Court, supra, 4 Cal.5th at p. 332.) “Express
preemption occurs when Congress defines the extent to which its enactments preempt
state law. [Citation.] Conflict preemption is found when it is impossible to comply with
both state and federal law simultaneously. [Citation.] Obstacle preemption occurs when
7
state law stands as an obstacle to the full accomplishment and execution of congressional
objectives. [Citation.] Field preemption applies when federal regulation is
comprehensive and leaves no room for state regulation. [Citation.]” (People ex rel.
Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal. 4th 772, 777-778.)
Ordinarily, there is a presumption against preemption. (Solus Industrial
Innovations, LLC v. Superior Court, supra, 4 Cal.5th at p. 332.) “The presumption is
founded on ‘respect for the States as “independent sovereigns in our federal system”’;
that respect requires courts ‘to assume that “Congress does not cavalierly pre-empt state-
law causes of action.”’ [Citation.] The strength of the presumption is heightened in areas
where the subject matter has been the longstanding subject of state regulation in the first
instance; where federal law touches ‘a field that “‘has been traditionally occupied by the
States,’”’ the party seeking to show preemption ‘bear[s] the considerable burden of
overcoming “the starting presumption that Congress does not intend to supplant state
law.”’ [Citations.]” (Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal. 4th 298, 313.)
Defendant argues that this presumption does not apply here, because the Act
implicates foreign affairs — an area not traditionally occupied by the states. (See Viva!
International Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41
Cal. 4th 929, 938-939 & fn. 5 [declining to decide whether presumption applies when
state law “touch[es] on matters implicating foreign affairs”].)
8
We disagree, on the authority of In re Jose C. (2009) 45 Cal. 4th 534. There, our
Supreme Court said: “[T]he general presumption against preemption [citation] . . .
applies even in the context of immigration law [citation] . . . .” (Id. at p. 551.)
It explained: “The ‘[p]ower to regulate immigration is unquestionably exclusively
a federal power.’ [Citations.] . . .
“While the immigration power is exclusive, it does not follow that any and all
state regulations touching on aliens are preempted. [Citations.] Only if the state statute
is in fact a ‘regulation of immigration,’ i.e., ‘a determination of who should or should not
be admitted into the country, and the conditions under which a legal entrant may remain’
[citation], is preemption structural and automatic. Otherwise, the usual rules of statutory
preemption analysis apply; state law will be displaced only when affirmative
congressional action compels the conclusion it must be. [Citation.]” (In re Jose C.,
supra, 45 Cal.4th at p. 550; see also DeCanas v. Bica (1976) 424 U.S. 351, 354-355.)
Here, the specification of who may provide immigration-related services, while
undoubtedly a matter of federal interest and a proper subject of federal regulation, does
not “regulate[] who may enter or remain in the United States.” (See In re Jose C., supra,
45 Cal.4th at p. 550.) At the same time, “[t]he states’ historic police powers include the
regulation of consumer protection . . . . [Citations.]” (Gibson v. World Savings & Loan
9
Assn. (2002) 103 Cal. App. 4th 1291, 1300.) Accordingly, the presumption against
preemption applies fully here.2
B. Relevant Federal Law.
Congress has authorized the Secretary of Homeland Security to “establish such
regulations . . . as he deems necessary for carrying out his authority . . . .” (8 U.S.C.
§ 1103(a)(3).) Pursuant to this authorization, the Department of Homeland Security
(DHS) has adopted a set of regulations specifying who can provide representation before
the United States Citizen and Immigration Services (USCIS). (8 C.F.R. §§ 1.1, 1.2,
292.1 (2018).)3
Under these regulations, “representation” is defined as including both “practice”
and “preparation.” (8 C.F.R. § 1.2 (2018).)
2 We note, however, that the presumption is not crucial to our analysis; even
without it, we would come to the same conclusions, for the same reasons.
3 A virtually identical set of regulations specifies who can provide
representation before the Executive Office for Immigration Review (EOIR). (8 C.F.R.
§§ 1001.1(c), (e), (m), 1292.1; see generally Careen Shannon, Regulating Immigration
Legal Service Providers: Inadequate Representation and Notario Fraud (2009) 78
Fordham L. Rev. 577, 602, fn. 119.)
Generally speaking, representation before the USCIS relates to applications for
admission or continued presence, such as visas, whereas representation before the EOIR
relates to removal proceedings. (Lee, Congressional Research Service, Legal Ethics in
Immigration Matters (2009) at p. 1, fns. omitted, available at
, as of Nov. 25, 2019.)
As there is no evidence that defendant was involved in removal proceedings, we focus on
representation before the USCIS.
10
“Practice” means “appearing in any case, either in person or through the
preparation or filing of any brief or other document, paper, application, or petition on
behalf of another person or client before or with DHS.” (8 C.F.R. § 1.2 (2018).)
“Preparation,” as relevant here, means “the study of the facts of a case and the
applicable laws, coupled with the giving of advice and auxiliary activities, including the
incidental preparation of papers . . . .” (8 C.F.R. § 1.2 (2018).) However, preparation
does not include “service consisting solely of assistance in the completion of blank
spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who
does not hold himself or herself out as qualified in legal matters or in immigration and
naturalization procedure.” (Ibid.)
“Case” means “any proceeding arising under any immigration or naturalization
law, Executive Order, or Presidential proclamation, or preparation for or incident to such
proceeding, including preliminary steps by any private person or corporation preliminary
to the filing of the application or petition by which any proceeding under the jurisdiction
of the Service or the Board is initiated.” (8 C.F.R. § 1.2 (2018).)
In broad general outline, only five classes of people are authorized to provide
“representation”: (1) attorneys in good standing; (2) law students, provided they are
under the supervision of an attorney and do not receive compensation; (3) “reputable
individuals,” who are of good moral character, provided they have a preexisting
relationship with the client and do not receive compensation; (4) “accredited
representatives,” who have been authorized by the EOIR; and (5) “accredited officials” of
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the client’s foreign government. (8 C.F.R. § 292.1(a), (e); see also 8 C.F.R. § 1.2
[defining attorney].) We will refer to a member of any of these five classes as a
“federally authorized person” and to a nonmember as a “federally unauthorized person.”
C. Relevant State Law.
The Act provides: “It is unlawful for any person, for compensation, other than
persons authorized to practice law or authorized by federal law to represent persons
before the Board of Immigration Appeals or the United States Citizenship and
Immigration Services, to engage in the business or act in the capacity of an immigration
consultant within this state except as provided by this chapter.” (Bus. & Prof. Code,
§ 22440, italics added.)
“A person engages in the business or acts in the capacity of an immigration
consultant when that person gives nonlegal assistance or advice on an immigration
matter.” (Bus. & Prof. Code, § 22441, subd. (a).)
“Immigration matter,” as relevant here, means “any proceeding, filing, or action
affecting the immigration or citizenship status of any person which arises under
immigration and naturalization law, executive order or presidential proclamation, or
action of the United States Citizenship and Immigration Services . . . .” (Bus. & Prof.
Code, § 22441, subd. (b).)
“Nonlegal assistance or advice” includes:
“(1) Completing a form provided by a federal or state agency but not advising a
person as to their answers on those forms.
12
“(2) Translating a person’s answers to questions posed in those forms.
“(3) Securing for a person supporting documents, such as birth certificates, which
may be necessary to complete those forms.
“(4) Submitting completed forms on a person’s behalf and at their request to the
United States Citizenship and Immigration Services.
“(5) Making referrals to persons who could undertake legal representation
activities for a person in an immigration matter.” (Bus. & Prof. Code, § 22441, subd.
(a).)
We will use “immigration consultant” as shorthand for a person who engages in
the business or acts in the capacity of an immigration consultant, according to these
definitions.
An immigration consultant must pass a background check (Bus. & Prof. Code,
§§ 22441.1, subd. (a), 22442.4), provide clients with a written contract, in English and in
the client’s native language, containing specified terms (Bus. & Prof. Code, § 22442,
subds. (a)-(f)), give clients 72 hours to rescind the contract (Bus. & Prof. Code, § 22442,
subd. (f)), give clients signed receipts and regular account statements (Bus. & Prof. Code,
§ 22442.1), provide specified disclosures (Bus. & Prof. Code, §§ 22442.2, 22444, subd.
(d)), maintain a client trust account (Bus. & Prof. Code, § 22442.5), follow specified
document provision and retention procedures (Bus. & Prof. Code, § 22443), and file a
bond (Bus. & Prof. Code, § 22443.1, subds. (a)-(d)). A violation of the Act is subject to
13
both civil (Bus. & Prof. Code, §§ 22445, subd. (a), 22446.5) and criminal penalties.
(Bus. & Prof. Code, § 22445, subds. (b)-(c).)
The Act also makes it unlawful for an immigration consultant (defined, in part, as
one who gives nonlegal assistance or advice) to offer legal assistance or advice in an
immigration matter. (Bus. & Prof. Code, § 22441, subd. (d).)
D. Interaction of Federal and State Law.
1. Conflict preemption.
Salcido asserts that acting as an “immigration consultant” under California law
overlaps with “representation” under federal law. She concludes that California law
permits what federal law prohibits — namely, it permits federally unauthorized persons
(if they comply with California’s stringent requirements) to provide “representation”.
“Representation” under federal law largely involves the provision of legal
services. By contrast, acting as an “immigration consultant” under the Act largely
involves the provision of nonlegal services.4 Nevertheless, we may assume, without
4 At one point, we called for further briefing on whether there was sufficient
evidence that defendant provided any nonlegal assistance or advice. The testimony at
trial seemed to portray her as providing legal advice and assistance — for example, about
the particular visa that a client might be qualified for and about how to obtain that visa.
If that was all she did, it would seem that she was simply not guilty.
As the parties pointed out, however, defendant stipulated that she was an
immigration consultant. This necessarily meant that she provided nonlegal assistance and
advice (even if she also provided legal assistance and advice). Indeed, it is possible that
the People refrained from presenting additional evidence that she provided nonlegal
assistance and advice precisely because they were relying on this stipulation.
14
deciding, that there are some areas of overlap. (See Moore, Fraud, the Unauthorized
Practice of Law and Unmet Needs: A Look at State Laws Regulating Immigration
Assistants (2004) 19 Geo. Immig. L.J. 1, 18-19 [concluding that “preparation” includes
filling out forms by one who charges more than a nominal fee and/or holds him or herself
out as an immigration specialist, and therefore state laws permitting federally
unauthorized persons to fill out forms are preempted].)
This is essentially a conflict preemption argument. However, there is no conflict,
because it is possible to comply with both state and federal law simultaneously.
In Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977, Hawaiian state law prohibited a
convicted felon from possessing a firearm, but it carved out an exception for a state
employee acting in the course of his or her duties. (Id. at p. 980.) Federal law, however,
flatly prohibited a convicted felon from possessing a firearm under any circumstances.
(Id. at pp. 979-980.) The appellate court held that this raised no preemption issue,
because the state law merely “determines the legality of a certain act under state law, it
has no impact on the legality of the same act under federal law. Simply put, Congress
has chosen to prohibit an act which Hawaii has chosen not to prohibit . . . .” (Id. at
p. 981.)
Similarly, in Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal. App. 4th
734, state law generally prohibited the possession, sale, and transportation of marijuana,
but it created an exemption, under certain circumstances, when the marijuana was for
15
medical purposes. (Id. at pp. 742-746.) Federal law, however, flatly prohibited the
possession of marijuana, even if for medical purposes. (Id. at pp. 756-757.)
The appellate court held that there was no conflict preemption: “Conflict
preemption exists when ‘simultaneous compliance with both state and federal directives
is impossible.’ [Citation.] . . . A claim of positive conflict might gain more traction if the
state required, instead of merely exempting from state criminal prosecution, individuals
to possess, cultivate, transport, possess for sale, or sell medical marijuana in a manner
that violated federal law. But because [state law does not] require such conduct, there is
no ‘positive conflict’ with federal law . . . . [Citation.] In short, nothing in either state
enactment purports to make it impossible to comply simultaneously with both federal and
state law.” (Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.App.4th at
pp. 758-759.)
Here, California state law does not say that a person who has complied with all of
the requirements of the Act can fill out forms (which arguably constitutes
“representation,” at least in some circumstances). Rather, it says that a person who has
not complied with all of the requirements of the Act cannot fill out forms. Thus, the Act
does not purport to allow anyone to violate federal law. A person still must be federally
authorized in order to provide any kind of “representation.”
We accept that a state cannot penalize a nonlawyer who represents a client before
a federal agency for the unauthorized practice of law, when the representation is
authorized by federal law. (Sperry v. Florida (1963) 373 U.S. 379, 385.) Here, however,
16
the state seeks to penalize a nonlawyer for acts that, even if they were “representation,”
were not authorized by federal law.
There is no conflict, and thus there is no conflict preemption.
2. Obstacle preemption.
Defendant notes that the DHS has prescribed certain disciplinary penalties for “the
unauthorized representation of immigrants”; however, these do not include criminal
penalties. She argues that this reflects a federal choice not to make unauthorized
representation a crime, and therefore the Act is preempted. This is essentially an obstacle
preemption argument.
The flaw in this argument is that federal law provides disciplinary penalties only
against federally authorized persons, and not against federally unauthorized persons. It
leaves any penalties against the latter up to the states.
“An adjudicating official or the Board of Immigration Appeals . . . may impose
disciplinary sanctions against any practitioner . . . .” (8 C.F.R. § 292.3(a)(1).) A
“practitioner,” however, is defined as either an attorney or a federally authorized person.
(8 C.F.R. §§ 1.2, 292.3(a)(2); see also 8 C.F.R. § 292.3(a)(1) [providing for sanctions
against “a practitioner who is authorized to practice before DHS”].) Thus, the listed
grounds for discipline, while not exclusive, do not include representation by a federally
unauthorized person. (8 C.F.R. § 292.3(b), incorporating 8 C.F.R. § 1003.102.) The
omission is highlighted by the fact that they do include assisting representation by a
17
federally unauthorized person. (8 C.F.R. § 292.3(b), incorporating 8 C.F.R.
§ 1003.102(m).)
In 1992, a legal opinion of the Office of the General Counsel of the former
Immigration and Naturalization Service (the predecessor of the USCIS) concluded that a
state can penalize a federally unauthorized person for engaging in the unauthorized
practice of law. (Office of the General Counsel Opn. No. 92-29, Legal Opinion: Role of
Visa Consultants in the Practice of Immigration Law (June 9, 1992) 1992 WL 1369368 at
p. *2.) It added: “Whether or not representation by . . . a [federally unauthorized] person
in violation of federal immigration regulations also violates state laws can only be
determined by applying the statutes and regulations that govern the practice of law in
each particular state.” (Id. at p. *4.)
Consistent with our analysis, the EOIR’s Immigration Court Practice Manual
states that its “disciplinary procedures . . . do not apply to non-practitioners engaged in
the unauthorized practice of law. Anyone harmed by an individual practicing law
without authorization should contact the appropriate law enforcement or consumer
protection agency.” (EOIR, Immigration Court Practice Manual (rev. Aug. 2, 2018)
§ 10.3(e).5) The manual also states: “Immigration specialists — who include visa
consultants and ‘notarios’ — are not authorized to practice law or appear before the
5 Available at ,
as of Nov. 25, 2019.
18
Immigration Court. These individuals may be violating the law by practicing law without
a license.” (Id., § 2.7.) This is necessarily a reference to state law.6
Defendant also points to the EOIR’s Fraud and Abuse Prevention Program. (See
, as of Nov. 25,
2019.) “The Fraud Program investigates complaints of fraud, scams, and unauthorized
practitioners . . . .” (Ibid.) However, it also “supports fraud and unauthorized
practitioner investigations, prosecutions, and disciplinary proceedings initiated by local
[and] state . . . law enforcement and disciplinary authorities.” (Ibid.) Its website includes
a link entitled, “How Do I Report a Scam or an Unauthorized Practitioner to State or
Local Officials?” (ibid.); when clicked, on it leads to a page indicating that “the
unauthorized practice of immigration law” in California is governed by the “Immigration
Consultants Act” and should be reported to the state Attorney General or the State Bar.
(Report Immigration Scams, , as of
Nov. 25, 2019.)
In sum, then, there is a clear federal intent to allow the states to penalize federally
unauthorized persons for providing “representation” in immigration matters. And, of
course, to the extent that what defendant was doing was not “representation,” as defined
6 The EOIR’s Board of Immigration Appeals Practice Manual (rev. Oct. 16,
2018), available at , as of
Nov. 25, 2019, contains virtually identical provisions. (Id., §§ 2.7, 11.3(a))
19
by federal law, there was no federal concern whatsoever about state regulation of her
conduct.
3. Field preemption.
Although defendant mentions field preemption, we do not understand her to be
relying on it. All of her arguments turn on the state law being in conflict with, or an
obstacle to the accomplishment of the intention of, federal law. If only out of an excess
of caution, then, we note that, for the reasons already stated, field preemption also does
not apply. The federal regulation is not so comprehensive as to leave no room for state
regulation; while it specifies who may (and may not) provide representation before the
USCIS, it offers only an incomplete enforcement mechanism. Moreover, there are ample
indicia of a federal intent to allow for state regulation.
III
THE SUFFICIENCY OF THE EVIDENCE OF THEFT BY FALSE PRETENSES
Defendant contends that there was insufficient evidence, with respect to (1)
reliance by her clients and (2) fraudulent intent, to support her theft convictions.
A. General Legal Principles.
“In addressing a claim of insufficient evidence to support a conviction, this court
“‘reviews the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value, from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.’”
[Citation.] ‘We presume every fact in support of the judgment the trier of fact could have
20
reasonably deduced from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.’
[Citation.]” (People v. Jackson (2016) 1 Cal.5th 269, 345.) “[T]he relevant inquiry on
appeal is whether, in light of all the evidence, ‘any reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Zaragoza
(2016) 1 Cal.5th 21, 44.)
In California, the statutory crime of theft can be committed under three distinct
theories: (1) larceny, (2) embezzlement, and (3) obtaining property by false pretenses.
(People v. Gonzales (2017) 2 Cal.5th 858, 864-866.) Defendant did not commit larceny,
because she took her clients’ money with their consent. (See id. at p. 864.) She did not
commit embezzlement, because she did not misappropriate money that she lawfully
possessed. (Ibid.) Rather, the trial court found her guilty on a theory of theft by false
pretenses.
“[T]heft by false pretenses . . . requires . . . that ‘(1) the defendant made a false
pretense or representation to the owner of property; (2) with the intent to defraud the
owner of that property; and (3) the owner transferred the property to the defendant in
reliance on the representation.’ [Citation.]” (People v. Williams (2013) 57 Cal. 4th 776,
787, italics omitted.) Here, the trial court found that defendant made a false
representation “by holding herself out as an immigration consultant when she was not
qualified to be an immigration consultant.” It further found that she knew she was not
21
qualified to be an immigration consultant, and she had the specific intent to obtain money
from her clients by deceiving them. Finally, it found that each of the victims “paid
money to defendant . . . in reliance upon defendant’s representations. . . that she was an
immigration consultant.” Defendant challenges the latter two findings.
B. Reliance.
“‘“[T]he express testimony of a victim of false pretense that he was induced to
part with his money by the fraudulent statements of the accused is not essential. It is
sufficient if the inference of his reliance could have been drawn from all the evidence.”’
[Citations.]” (Perry v. Superior Court of Los Angeles County (1962) 57 Cal. 2d 276, 285-
286.)
For example, in People v. Frankfort (1952) 114 Cal. App. 2d 680, the defendants
sold parcels of real property, which came with membership in a country club, to various
buyers (id. at pp. 686-687, 689-691); in the course of doing so, they made false
representations about such matters as financing, maintenance fees, the supply of mineral
water, and their plans to build a health resort. (Id. at pp. 691-692.) Some but not all of
the buyers testified that they relied on the misrepresentations. Nevertheless, the appellate
court held that the trial court could justifiably infer reliance. (Id. at p. 699.) It reversed
the convictions on only two counts, in connection with which the particular victim
affirmatively testified that he or she did not rely. (Ibid.)
Here, likewise, the trial court could infer reliance. Defendant agreed to provide
specific immigration services to each of the victims; in return, the victims agreed to pay
22
her hundreds or thousands of dollars. Most of the victims met with her at her office,
where she had signs advertising her immigration services. Some of the victims had also
seen ads stating that she provided immigration services. The conclusion is not only
reasonable but compelling that, if the victims had known that she could not legally
provide the immigration services that she promised, they would not have paid her.
C. Fraudulent Intent.
The trial court could also reasonably find fraudulent intent. When an investigator
questioned defendant, she admitted knowing that she was required to have a background
check and to post a bond, but she had not done so.
In her training to become a paralegal, defendant had studied immigration law. She
also researched immigration law at the library, online, and by talking to immigration
officers. At the preliminary hearing, she testified:
“Q. . . . [Y]ou’re aware that the State of California requires you to pass a
background check, right?
“A. I didn’t know about that until 2015.
“Q. And you’re aware that you’re also required to have a $100,000 bond on file;
correct? [¶] . . .
“[A.] Yes, I read about that.
“Q. . . . You did know that?
“A. Yes.”
23
Because she carefully specified when she learned about the background check
requirement, but she did not specify when she learned about the bond requirement, it is
fairly inferable that she knew about the bond requirement at all relevant times.
At trial, she claimed that she did not learn that she needed a bond until September
or November 2013. However, this was contradicted by the fact that she apparently did not
tell the investigator this. It was further contradicted by her claim at the preliminary
hearing that she supposedly did not learn about the background check requirement until
2015.
Defendant nevertheless argues that she did not have fraudulent intent because she
could actually do the work that she promised to do for her clients — “the evidence was
she assisted many people over many years to legally obtain valid green cards, visas,
citizenship etc.” The People’s response is apt: “Appellant’s ability to evade law
enforcement prior to the instant case is immaterial . . . .” She may have hoped to get
away with acting as an immigration consultant, but at the same time, she knew she might
not. However, she did not share this fact with her clients. As a matter of fact, once
defendant was arrested, she was unable to complete her open cases.
IV
ELECTRONIC SEARCH CONDITION OF PROBATION
Probation condition 39 requires defendant to “[s]ubmit to immediate search and
seizure of computers, memory storage devices, electronic mail, internet accounts, and
data and information contained therein; with or without reasonable cause by the probation
24
officer or law enforcement.” Defendant contends that this condition is unreasonable and
unconstitutional. 7
A. Forfeiture.
Preliminarily, the People contend that defendant forfeited this contention by
failing to object at sentencing.
“As a rule, failure to object to a probation condition in the trial court on standard
state law or reasonableness grounds forfeits the claim for appeal. [Citation.]” (People v.
Moran (2016) 1 Cal.5th 398, 405, fn. 7.) Defendant also argues, however, alternatively,
that her trial counsel’s failure to object constituted ineffective assistance of counsel.
“To establish ineffective assistance of counsel, [defendant] must show that her
counsel’s performance was deficient and that she suffered prejudice from the deficient
performance. [Citation.] On direct appeal, if the record ‘“sheds no light on why counsel
acted or failed to act in the manner challenged,”’ we must reject the claim ‘“unless
counsel was asked for an explanation and failed to provide one, or unless there simply
7 In her opening brief, defendant similarly challenged probation conditions
37 and 38, which also related to electronic data. As she now concedes, however, the trial
court did not actually impose these conditions.
In a footnote, defendant also challenges a separate probation condition that
requires her to “[d]isclose your true identity, including residence address and telephone
number, in any advertisement, notice, or offer to sale and/or purchase on the internet.”
We deem this contention forfeited, because it is not within the scope of any of the
headings in her brief, and because it is not supported by any analysis or citation of
authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Nguyen (2013) 212
Cal. App. 4th 1311, 1325.)
25
could be no satisfactory explanation.”’ [Citation.]” (People v. Caro (2019) 7 Cal.5th
463, 488.)
Here, assuming defendant’s contention is meritorious, her counsel’s failure to
object to the probation condition was objectively unreasonable. As of January 2017,
when defendant was sentenced, In re Ricardo P. (2015) 193 Cal. Rptr. 3d 883, review
granted Feb. 17, 2016, had struck down an electronic search condition, and the case was
pending in the California Supreme Court. Thus, while the merits of the issue were
unsettled, it was clear that defense counsel needed to object to any electronic search
condition in order to preserve the issue.
Moreover, we cannot imagine any satisfactory explanation for this failure. The
challenged condition substantially restricts defendant’s privacy. Perhaps, if defendant
were a Luddite who never used a computer, defense counsel might reasonably choose not
to object. The record shows, however, that she had multiple computers. (See fn. 8, post.)
It follows that defense counsel’s performance was deficient. But was it
prejudicial? This turns on whether the challenged probation condition is valid.
B. Reasonableness.
“Consistent with established law, we first address whether the probation condition
was permissible under state law before turning to resolve any potential federal
constitutional issue posed in the case.” (People v. Moran, supra, 1 Cal.5th at pp. 401-
402, fn. omitted.)
26
“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.]” (People v. Lent (1975) 15 Cal. 3d 481, 486.)
“On appeal, ‘[w]e review conditions of probation for abuse of discretion.’
[Citation.] That is, a reviewing court will disturb the trial court’s decision to impose a
particular condition of probation only if, under all the circumstances, that choice is
arbitrary and capricious and is wholly unreasonable. [Citation.]” (People v. Moran,
supra, 1 Cal.5th at p. 403.)
While this appeal was pending, the Supreme Court decided In re Ricardo P.
(2019) 7 Cal.5th 1113. There, a juvenile probation condition required the minor to
submit to warrantless searches of his electronic devices and electronic accounts. (Id. at
pp. 1116-1117.) The court held that this condition was unreasonable and invalid, because
there was no evidence that the minor “had used or will use electronic devices in
connection with . . . any illegal activity,” and hence, “[t]he probation condition [wa]s not
reasonably related to future criminality . . . .” (Id. at p. 1116; see also id. at p. 1129.)
It conceded that, “[i]n virtually every case, one could hypothesize that monitoring
a probationer’s electronic devices and social media might deter or prevent future criminal
conduct.” (In re Ricardo P., supra, 7 Cal.5th at p. 1123.) However, it noted “the
potentially greater breadth of searches of electronic devices compared to traditional
property or residence searches. [Citation.]” (Id. at p. 1127.) As a result, “[s]uch a
27
condition significantly burdens privacy interests. [Citations.]” (Id. at p. 1123.) The
court concluded that “the burden it imposes on Ricardo’s privacy is substantially
disproportionate to the countervailing interests of furthering his rehabilitation and
protecting society.” (Id. at p. 1119; see also id. at p. 1120.)
Except in one respect, this case is on all fours with Ricardo P. There was no
evidence that defendant’s crimes involved computers or the internet.8 There was no
evidence that she had used electronic devices in connection with any uncharged illegal
activity. And there was no evidence that she would use electronic devices in connection
with any illegal activity in the future.
The only significant distinction is that defendant is an adult, whereas Ricardo P.
was a juvenile. However, adult probation conditions are, if anything, more narrowly
limited than juvenile probation conditions. (In re Tyrell J. (1994) 8 Cal. 4th 68, 81-82
[“[A] condition of probation that would be unconstitutional or otherwise improper for an
adult probationer may be permissible for a minor under the supervision of the juvenile
court.”], overruled on other grounds in In re Jaime P. (2006) 40 Cal. 4th 128, 130.) A
fortiori, then, the challenged probation condition in this case is unreasonable and invalid.
8 The police seized computers from defendant but never actually searched
them. According to the probation report, defendant obtained clients through television,
radio, magazine, and newspaper ads.
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V
DISPOSITION
The judgment is modified by striking probation condition 39. (See In re
Ricardo P., supra, 7 Cal.5th at p. 1129.) The judgment as thus modified is affirmed.9
CERTIFIED FOR PARTIAL PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RAPHAEL
J.
9 The clerk of this court is directed to send a copy of this opinion to the State
Bar immediately upon the issuance of the remittitur. (Bus. & Prof. Code, § 6086.7, subd.
(a)(2).)
29