People v. Ayon CA4/1

Filed 1/22/21 P. v. Ayon CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D076499

Plaintiff and Respondent,

v. (Super. Ct. No. SCD272999)

FERNANDO AYON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed. Karissa Adame, 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, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. In this appeal, appellant Fernando Ayon challenges only the probation condition, which makes his various electronic devices subject to search. He contends the condition in this case is overbroad and has no nexus with the

underlying convictions. Applying the reasoning of the controlling California Supreme Court opinion In re Ricardo P.(2019) 7 Cal.5th 1113 (Ricardo P.) and constitutional overbreadth principles, we will find the court appropriately balanced the intrusion into Ayon’s privacy against the desire to prevent Ayon’s future criminality and that the search condition was reasonably tailored to the need for oversight in this specific case. We therefore will affirm the judgment. PROCEDURAL BACKGROUND Ayon pleaded guilty to three offenses arising from his fraudulent use of a contractor’s license and misrepresentations to obtain money from an elderly victim. Specifically, Ayon pleaded guilty to fraudulent use of a contractor’s license (Bus. & Prof. Code, § 7027.3; count 5); failure to secure payment of compensation (Lab. Code, § 3700.5, subd. (a); count 6); and contracting without a license (Bus. & Prof. Code, § 7028, subd. (a); count 7). The remaining charges and allegations were dismissed as part of the plea agreement. Sentencing was delayed for almost a year to permit Ayon to make restitution and, thus, receive a lower sentence. By the time of sentencing, Ayon had not made any effort to obtain full-time employment and was only working part-time doing odd jobs. He claimed he suffered from stress and anxiety. The court granted Ayon formal probation subject to serving 180 days in work furlough and a number of other conditions. Ayon appeals challenging only the electronic search condition based on the argument the condition is constitutionally overbroad. Ayon does not raise a facial challenge to the condition.