People v. Jaco CA3

Filed 4/22/21 P. v. Jaco CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C082738

Plaintiff and Respondent, (Super. Ct. No. 16FE007246)

v.

DANIELLE LEE JACO,

Defendant and Appellant.

After defendant Danielle Lee Jaco pleaded no contest to identity theft (Pen. Code, § 530.5),1 the trial court granted her five years’ probation. On appeal defendant contends the imposition of an electronics search condition as a condition of her probation is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent). We agree. In supplemental briefing, defendant challenges the trial court’s order imposing a $300 restitution fine (§ 1202.4), a

1 Undesignated statutory references are to the Penal Code.

1

$40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172 (Dueñas), defendant argues these fines and fees should be stayed until the trial court holds an ability to pay hearing. We disagree with Dueñas and its reasoning. Accordingly, we strike the electronics search condition from the probation order. As modified, the judgment is affirmed. BACKGROUND Defendant pleaded no contest prior to a preliminary hearing, the parties stipulated to a factual basis for the plea without actually stating facts, and defendant waived preparation of a probation report; accordingly, the record contains few facts related to the commission of this offense. In short, defendant acquired and retained the personal identifying information of more than 10 people with the intent to defraud. She pleaded no contest to identity theft. The trial court granted her five years’ probation, conditioned on serving 90 days in jail, with 20 days of custody credit. The trial court recommended defendant participate in the CalWORKs program, a welfare-to-work program, subject to the approval of the sheriff’s department. The trial court also waived the costs of probation, struck the booking and classification fees, and imposed the minimum mandatory fees and fines. At the plea hearing, defense counsel objected to the imposition of the electronics search condition under Lent. He argued, in this particular case, there was no evidence any electronic devices were used in committing the offense, or would be used in the future. At the time of her arrest, officers did not find a cell phone or any other electronic devices, such as computers or tablets. The prosecution countered that in a search of defendant’s residence, officers found a backpack with a manila envelope containing other people’s financial information, some of it handwritten on pieces of paper. They did not know how she came to possess the information, but “generally this type of information is provided through some electronic means.” Defense counsel answered that he had also