Opinion
A155561
11-25-2019
In re A.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1800793)
In a nonpublished decision filed June 25, 2019, we affirmed the juvenile court's dispositional order that placed A.A. on probation subject to various terms and conditions, including a condition that he submit to warrantless searches of his electronic devices. In rejecting A.A.'s challenge to the search condition, we held that: (1) the electronics search condition did not run afoul of the standard for reasonableness set forth in People v. Lent (1975) 15 Cal.3d 481 (Lent), (2) A.A. forfeited his overbreadth challenge by failing to initially raise it in the trial court, and (3) A.A.'s counsel did not render ineffective assistance by failing to preserve the overbreadth issue for appellate review. (In re A.A. (June 25, 2019, A155561) [nonpub. opn.]) 9-11, 12-13, 14-15.)
The challenged probation condition (the electronics search condition) requires A.A. to " 'submit your cell phone or any other electronic device under your control to a search of any medium of communication reasonably likely to reveal whether you are complying with the terms of your probation, with or without a search warrant at any time of day or night. Such medium of communication includes text messages, voicemail messages, photographs, e-mail accounts and other social media accounts and applications such as Snapchat, Instagram, Facebook and Kik. You must provide access codes to probation or any other peace officer upon request to effectuate the search.' "
The California Supreme Court granted A.A.'s petition for review on September 25, 2019, S257094. The Court transferred this case back to us with directions to vacate our decision and reconsider A.A.'s challenge in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), decided on August 15, 2019, S257094.
Justice Liu wrote the majority opinion, with Justices Cuellar, Kruger and Groban concurring, holding that the electronics search condition failed to meet the Lent test for reasonableness. (Ricardo P., supra, at pp. 1128-1129.) Chief Justice Cantil-Sakauye wrote a separate dissent/concurrence, with Justices Chin and Corrigan concurring, in which she opined the challenged probation condition met the Lent test given the juvenile court's "particularly broad latitude in crafting appropriate conditions of probation," while also agreeing with the majority that the condition must be stricken because, as drafted, it was constitutionally overbroad. (Ricardo P., supra, at pp. 1129-1131 (conc. & dis. opn. of Cantil-Sakauye, C.J.)
In Ricardo P., the California Supreme Court struck down a probation condition permitting searches of a juvenile's electronic devices and social media accounts with or without a warrant, imposed after the juvenile admitted two felony burglary counts. The majority reasoned that "the record here, which contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity, is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid under Lent." (Id. at p. 1116.)
The parties filed supplemental briefs on remand. In light of Ricardo P., we now remand this case to the juvenile court with instructions to strike the electronics search condition and, if appropriate, to recraft it more narrowly in a manner consistent with our high court's recent opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The following is a brief recitation of the relevant facts that are set forth more fully in our previous opinion. City of Tracy police officers responded to a report of a theft and assault with a deadly weapon at the local Home Depot store. A.A. and another individual had left the store with a shopping cart full of power tools and were approaching a white Chevy Impala when A.A. was tackled and detained by a customer. Another customer attempted to apprehend the second suspect but was not successful. This suspect was able to enter the Impala and drive away, nearly striking the second customer. (In re A.A., A155561, supra, at p. 2.)
A.A. admitted a count of grand theft, and two remaining counts of shoplifting and receiving stolen property were dismissed. The case was transferred to Contra Costa County for disposition. On August 24, 2018, the Contra Costa Juvenile Court accepted the transfer and, on the same day, issued a bench warrant for A.A. due to his failure to appear. (In re A.A., A155561, supra, at p. 2.)
The probation department filed a disposition report that recommended A.A. receive home supervision and formal probation, noting his poor school performance, truancy and marijuana use. The report also summarized A.A.'s involvement in another recent incident in which he was detained with three other minors after attempting to flee in a vehicle with two firearms with high-capacity magazines. One of the firearms appeared to have been stolen. These charges were pending at the time the disposition report was written. (In re A.A., A155561, supra, at p. 2.)
On October 2, 2018, the juvenile court declared A.A. a ward of the court and placed him on probation with home supervision for 90 days and service of 10 weekends in juvenile hall. Expressing concerns about A.A.'s conduct, including his " 'escalating' " criminal behavior, his poor school attendance and academic performance, and the lack of control in his home, the juvenile court imposed numerous probation conditions, including the electronics search condition at the heart of this appeal. (In re A.A., A155561, supra, at pp. 2-3.)
DISCUSSION
A.A. contends that under the holding of Ricardo P., the electronics search condition imposed here fails to meet the standard of reasonableness set forth in Lent. Alternatively, he argues that, even if this condition is found reasonable under Lent, it is nonetheless too broad to withstand constitutional scrutiny and therefore must be narrowed.
A juvenile court has broad discretion to impose appropriate probation conditions in a particular case based not only on the circumstances of the crime at issue, but also on the minor's entire social history. (In re J.B. (2015) 242 Cal.App.4th 749, 753-754; In re R.V. (2009) 171 Cal.App.4th 239, 246.) This broad discretion reflects the unique role the juvenile court serves in both rehabilitating juvenile delinquents and protecting public safety. (In re Carlos J. (2018) 22 Cal.App.5th 1, 5-6.) As such, "[a] condition of probation which is [legally] impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." (In re Todd L. (1980) 113 Cal.App.3d 14, 19-20.)
"[A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at p. 486.) Thus, the California Supreme Court adopted a three-prong test to determine whether a particular condition meets this standard: "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.' " (Ibid.) The Lent test is conjunctive such that " 'all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.' [Citations.]" (People v. Moran (2016) 1 Cal.5th 398, 403.)
Applying these legal standards, we agree with A.A. that the electronics search condition fails to meet the Lent test for reasonableness as informed by Ricardo P. because, on this record, the condition cannot be deemed " ' "reasonably related to [A.A.'s] future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1116, citing Lent, supra, 15 Cal.3d at p. 486.) Accordingly, we conclude the electronics search condition must be stricken and, if the People request a modified electronics search condition on remand, we leave it for the juvenile court to determine in the first instance whether a narrower condition may be crafted consistent with Ricardo P. (Ibid.)
In our previous opinion, we focused on the third prong of the Lent standard, under which a condition is invalid if it " 'requires or forbids conduct which is not reasonably related to future criminality . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) Based on the record, we held: "The juvenile court could have properly found based on the circumstances of minor's offense and his overall social history that the electronics search condition 'reasonably relates to enabling the effective supervision of [his] compliance with other probation conditions.' ([In re] P.O. [2016] 246 Cal.App.4th [288,] 295; accord, [In re] Juan R. [2018] 22 Cal.App.5th [1083,] 1089-1090, rev. granted.) In particular, the juvenile court could have reasonably understood, based on the seriousness and escalating nature of minor's criminal conduct, his abysmal school performance, the apparent inability of his mother to command obedience, and the significant risk he therefore posed to public safety, that a broad search condition was needed to ensure his rehabilitation and to deter his involvement in future criminal activity." (In re A.A., A155561, supra, at pp. 6-7.)
In Ricardo P., the juvenile court had likewise approved an electronics search condition. It did so because it reasonably facilitated law enforcement's ability to monitor the juvenile and his potential drug use following his admission to two counts of felony burglary with two adult accomplices and his prior use of marijuana. (Ricardo P., supra, 7 Cal.5th at p. 1116.) The Court of Appeal in Ricardo P. determined the juvenile court's electronics search condition was valid under Lent, but struck it as overbroad and remanded for the purpose of "impos[ing] 'a narrower condition if [the juvenile court] wishes.' " (Id. at p. 1117.) However, on review the California Supreme Court held the condition was invalid. (Id. at 1120.)
In Ricardo P., the probation condition under challenge required the juvenile to " '[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.' " (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) The Court of Appeal, in remanding the case to the juvenile court to impose " 'a narrower condition if it wishes[,]' " suggested that a condition would be constitutional if it " 'limit[ed] searches of Ricardo's cell phone and other devices to electronic information that is reasonably likely to reveal whether [he] is boasting about his drug use or activity . . . .' " (Id. at p. 1117.) --------
Specifically, the Court concluded the electronics search condition failed to satisfy Lent's third prong because the burden it imposed on the juvenile's privacy was "substantially disproportionate to the condition's goal of monitoring and deterring drug use" and, as such, was not reasonably related to preventing future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1120.) In so holding, the majority relied upon the fact that the juvenile court imposed the electronics search condition solely to enable probation officers to monitor whether the juvenile was communicating about drugs or with people associated with drugs and, yet, "there [wa]s no suggestion in the record or by the Attorney General that Ricardo ha[d] ever used electronic devices to commit, plan, discuss, or even consider unlawful use or possession of drugs or any other criminal activity." (Id. at p. 1119.) Because "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality" (id. at p. 1121), the Ricardo P. court opined that, if "the juvenile court's observation that 'minors typically will brag about their marijuana usage or drug usage' online were sufficient to justify the substantial burdens [on privacy] the condition imposes, it is hard to see what would be left of Lent's third prong." (Id. at pp. 1123-1124.)
Rather than simply strike the electronics search condition, the Ricardo P. court remanded the case for further proceedings consistent with its opinion, stating: "We do not decide whether there is sufficient basis in the present record to support the Court of Appeal's suggestion that the juvenile court, on remand, may restrict the condition to search of 'electronic information that is reasonably likely to reveal whether Ricardo is boasting about his drug use or activity, such as text and voicemail messages, photographs, e-mails, and social-media accounts.' Nor do we address how the parameters of such a condition might be delineated." (Ricardo P., supra, 7 Cal.5th at pp. 1124, 1129.) In doing so, the high court confirmed that its holding did not categorically invalidate electronic search conditions, noting that "[i]n certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Id. at pp. 1128-1129.)
Applying the teachings of Ricardo P., we agree with A.A. that the electronics search condition before us runs afoul of Lent's third prong. While the juvenile court here was undoubtedly focused on valid concerns relating to A.A.'s risk to public safety and lack of discipline, the circumstances relied upon by the Ricardo P. court as insufficient to support an electronics search condition under Lent are also present here—the record does not reflect that minor has used electronic devices or social media to "commit, plan, discuss, or even consider . . . criminal activity." (See Ricardo P., supra, 7 Cal.5th at p. 1117.) Accordingly, under Ricardo P., we conclude the electronics search condition must be stricken. (See id. at p. 1129.)
We reject the People's argument that, notwithstanding Ricardo P., the electronics search condition in this case is valid because "search of [A.A.'s] electronic devices [is] limited to areas where evidence [is] likely to reveal criminal activity or probation violations[,] [which] will enable the probation department to monitor his compliance with other probation conditions." The People misread the electronics search condition—it requires A.A. to submit any electronic device under his control to a search of any medium of communication so long as it is "reasonably likely to reveal whether [A.A. is] complying with the terms of [his] probation." (At p. 2, ante.) The condition does not limit searches to devices or circumstances reasonably likely to reveal whether he is involved in criminal activity. In Ricardo P., the majority specifically declined to "categorically permit" a probation condition reasonably related to monitoring a probationer's compliance with the terms of his or her probation, explaining " 'almost any condition can be described as 'enhancing the effective supervision of a probationer.' " (See Ricardo P., supra, 7 Cal.5th at p. 1127.)
It may well be possible in this case for the juvenile court to craft an electronics search condition more narrowly tailored to its specific concerns regarding A.A.'s escalating and serious criminal conduct and his mother's apparent inability to control him. This assumes, of course, the People request such a condition on remand. Significant public safety concerns such as these do not appear to have been a material consideration in the juvenile court's decision-making in Ricardo P. (See Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) "[C]ourts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense." (Ricardo P., supra, 7 Cal.5th at p. 1122.) Here, there was indeed such information in the probation report raising concerns about A.A.'s future criminality.
Under the circumstances of this case, we strike the electronics search condition. We further remand the matter to the juvenile court to permit the People, if they so choose, to request a modified electronics search condition. It will then be for the juvenile court to determine in the first instance whether an electronics search condition can be imposed that ensures any search of minor's electronic information is reasonably likely to reveal his commission, planning or involvement in criminal activity, as Ricardo P. requires. (See Ricardo P., supra, 7 Cal.5th at p. 1121; see also In re Alonzo M. (2019) 40 Cal.App.5th 156, 168 [instructing the juvenile court with respect to any new electronics search condition that "[t]he burden on [the juvenile's] privacy must be substantially proportionate to the probation department's legitimate interest in preventing him from communicating with his co-responsibles or other identified peers who might draw him in to criminal conduct"].)
In light of our conclusion, we need not consider A.A.'s alternative argument that, even if valid under Lent, the electronics search condition nonetheless must be stricken as constitutionally overbroad.
DISPOSITION
The juvenile court's dispositional order is affirmed with the exception of the condition of minor's probation requiring him to submit to searches of his electronic devices and communication, which is stricken. The case is remanded to permit the People, if they so choose, to request another electronics search condition, which would then be considered by the juvenile court in light of Ricardo P.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.