Opinion
A146792
01-13-2017
In re E.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.O., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ15025929901)
In this appeal from a disposition order declaring him a ward of the juvenile court, E.O. (Minor) challenges several conditions of his probation and also contends remand is required because the juvenile court failed to make necessary findings and orders about his educational needs and services. We shall order the probation conditions modified and otherwise affirm the disposition order.
I.
FACTUAL
BACKGROUND
The factual background is taken from the police report and dispositional report.
Early one morning in June 2015, two San Leandro police officers patrolling a residential neighborhood noticed two people sitting in a parked car. The car's interior light was on, and the officers could see Minor, then 17 years old, on the front passenger seat, rolling a marijuana joint. When the officers approached the car, it smelled strongly of marijuana.
The car's other occupant, also a minor, told the officers he and Minor were waiting for their friend, who owned the car, had a cannabis card, and was inside the house taking a shower. Minor told the police officers he would not move from the car until the friend returned. Although the officers directed him multiple times to get out, he did not do so, and they eventually had to assist him out of the car. While they were so engaged, a loaded handgun fell to the ground from the part of the car where Minor had been sitting. The officers arrested Minor.
Later, after he had been admonished about his rights, Minor told the officers he had discovered the gun in the car, did not know who was the owner, and had not been holding it. His two friends also disclaimed ownership or knowledge of the gun.
II.
PROCEDURAL
BACKGROUND
In July 2015, the prosecutor filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a) charging Minor with one felony count of unlawfully carrying a loaded firearm (Pen. Code, § 25850, subd. (a)), and a second felony count of unlawfully carrying a concealed firearm in a vehicle (id., § 25400, subd. (a)(3)). After the petition was amended and the first count was modified to a misdemeanor, in September, Minor admitted having unlawfully carried a loaded firearm, and the juvenile court granted the prosecutor's motion to dismiss the remaining count.
All further unspecified references to code sections are to the Welfare and Institutions Code.
In its October dispositional report, Alameda County Probation (Probation) advised that Minor lived with his mother, stepfather, and two younger siblings, visited his father on weekends, had no prior criminal history, and presented a low risk of recidivism. It recommended grief counseling for Minor because he had experienced "a lot of trauma," from witnessing one grandparent's death of a heart attack as a young boy and from the deaths of three other relatives (another grandparent, an uncle, and a baby cousin). Minor's marijuana usage and academic performance also were areas of concern, Probation reported. Minor had advised he was smoking marijuana three times a week by the time he was 16. He also had been diagnosed with attention deficit hyperactivity disorder (ADHD) and had an individualized education program (IEP) in high school, but lacked academic credits, had a low grade point average, and was "not on target to graduate."
At the October dispositional hearing, the juvenile court adjudged Minor to be a ward of the court, and placed him on supervised probation, allowing him to continue residing in his mother's home. The court imposed various "standard conditions of probation," including a requirement that Minor allow a probation officer or peace officer to search items retained in the memory of any "electronics" in his possession and control without a warrant (the electronic search condition). The court also imposed other probation conditions, including instructions that Minor (1) "not use or possess alcoholic beverages," (2) "not use or possess narcotics, drugs, other controlled substances, related paraphernalia or poisons unless prescribed by a physician," and (3) not "possess, own, or handle any firearm, knife, weapon, fireworks, explosives, or chemicals that can produce explosives.
The language quoted above is found in the minute order memorializing the dispositional hearing, which the juvenile court judge signed. At the hearing, on the topic of drugs and alcohol, the juvenile court told Minor that he "must not be in possession or under the influence of any [illegal or intoxicating] substances or possess any associated paraphernalia." The court also forbade Minor from possessing, owning, or handling weapons, offering a list that differed from that set forth above only in that it omitted "fireworks" but included the redundant catch all "any other deadly or dangerous weapon." (See In re Kevin F. (2015) 239 Cal.App.4th 351, 360 (Kevin F.) ["weapon" and "dangerous or deadly weapon" have the same meaning].) As the judge commenced his oral statements by telling Minor he would be subject to the "standard conditions of probation," some, but not all, of which the judge would recite to him, and the judge subsequently signed the more detailed written minute order, we give credence to the latter as stating the juvenile court's standard conditions of probation.
Minor's counsel followed up about the electronic search condition, and the juvenile court judge clarified, explaining searches would be limited to "electronic[] [devices] in [Minor's] possession and whatever he has stored in memory." "In other words," the judge added, "no Internet search. That's [what] the Malik,[] case indicated."
In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.).
The clarification did not satisfy Minor's counsel, who objected that the electronic search condition could be overbroad, might raise privacy concerns, and was unwarranted as there was no indication of future criminality on Minor's part. Counsel also observed there was no indication social media had been a factor in the case.
Unpersuaded, the juvenile court judge responded: "In my experience, minors of all ages primarily use electronics . . . with one another as far as getting together[.] [I]n a situation like this," the judge observed, Minor and his friends "didn't just . . . happen to be together." "[T]he communication would have been by electronics . . . . What I'm trying to do is keep [Minor] from getting together with . . . another similar group to illegally purchase [or] use marijuana, and be in possession of a firearm[]." "I'm relying on experience and common sense," the judge continued. Electronics are "the most widely[]used form of communication," and electronic searches are a common-sense tool "to rehabilitate successfully our minors."
The prosecution supported imposition of the electronic search condition, observing that Minor had been charged with a firearm offense, and that it was not uncommon for offenders to store photographs on their phones showing themselves in possession of firearms in violation of the terms of their probation. The juvenile court agreed, observing that photographs showing possession or use of drugs also were not uncommon. Although Minor's counsel noted "those facts" had not been present in Minor's case, the juvenile court declined to modify the electronic search condition.
III.
DISCUSSION
A. Electronic Search Condition
Minor contends the electronic search condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent). He also contends the condition should be stricken as unconstitutionally overbroad, and impermissibly vague. We disagree.
1. Validity Under Lent
The juvenile court "may impose and require any and all reasonable [probation] conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (Welf. & Inst. Code § 730, subd. (b).) "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.]" (Lent, supra, 15 Cal.3d at p. 486.) "This test is conjunctive—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 [an offender] was convicted and involves conduct that is not itself criminal, the condition is valid as long as [it] is reasonably related to preventing future criminality. [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); see also In re Erika R. (2015) 240 Cal.App.4th 907, 912 (Erika R.) ["Courts have 'consistently held that juvenile probation conditions must be judged by the [Lent] three-part standard' "].) "We review the juvenile court's probation conditions for abuse of discretion, and such discretion will not be disturbed in the absence of manifest abuse. [Citations]." (Erika R., at p. 912.)
Here, Minor contends the juvenile court abused its discretion in imposing the electronic search condition because the condition is unrelated to the underlying firearm offense, regulates conduct that is not illegal, and is not reasonably related to Minor's future criminality. The People dispute the last point, contending the electronic search condition was reasonably related to Minor's future criminality and, therefore, valid. Accordingly, we focus on the third prong of the Lent test.
As the parties acknowledge, this district has been called upon to resolve a number of appeals raising the same issue, and the topic currently is pending before the California Supreme Court. Minor relies on Erika R., (Division Two) and In re J.B. (2015) 242 Cal.App.4th 749 (J.B.) (Division Three), both of which held electronic search conditions to be invalid under Lent. The key question on that issue in both cases was whether the electronic search condition was reasonably related to the minors' future criminal activity. Because there was no specific evidence that the minors in those cases had used electronic devices in connection with criminal activity, both courts answered the question in the negative, concluding there was no reason to believe that monitoring the minors' electronic devices would deter them from future criminality. (Erika R., supra, 240 Cal.App.4th at p. 913; J.B., at p. 756.)
See, e.g., In re Ricardo P., review granted Feb. 17, 2016, S230923; In re Patrick F., review granted Feb. 17, 2016, S231428; In re Alejandro R. review granted Mar. 9, 2016, S232240; In re J.R., review granted Mar. 16, 2016, S232287; In re Mark C., review granted Apr. 13, 2016, S232849; In re A.S., review granted May 25, 2016, S233932; In re A.D., review granted June 29, 2016, S234829; In re J.E., review granted Oct. 12, 2016, S236628; see also People v. Vasquez, review granted May 25, 2016, S233855 (Sixth Dist.).
The People contend this approach improperly conflates the first and third prongs of the Lent inquiry, reducing it to a two-part test. They maintain that a direct nexus is not required between a minor's previous use of electronic devices and criminal conduct to support an electronic search condition. In other words, although there is no evidence Minor used a cell phone or other electronic device to facilitate or share his past criminal conduct—for example, by texting with friends to arrange the meeting on the night of his arrest, procure the firearm, or record his possession of it—the People contend the juvenile court reasonably concluded an electronic search condition would deter Minor from future criminality, helping to ensure he obeyed all laws going forward and complied with his other probation conditions.
The People cite the recent decision of our colleagues in Division One, in In re P.O. (2016) 246 Cal.App.4th 288 (P.O.) and our Supreme Court's decision in Olguin, on which P.O. relied. In Olguin, a case involving an adult probationer, the Supreme Court observed that "probation conditions authorizing searches 'aid in deterring further offenses . . . and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.' [Citation.] A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' [Citations.]" (Olguin, supra, 45 Cal.4th at pp. 380-381.) Applying this reasoning, the Supreme Court upheld a probation condition requiring notification of the presence of pets as reasonably related to future criminality because it facilitated a probation officer's unannounced searches of the probationer's residence, although the condition had no relationship to the crime of which the offender was convicted (driving under the influence of alcohol). (Id. at pp. 380-382.)
Extending this reasoning to the context of a juvenile offender, in P.O. the Court of Appeal concluded an electronic search condition was reasonably related to the minor's future criminality because it would enable peace officers to review the minor's electronic activity for indications he was engaged in conduct violating his probation. (P.O., supra, 246 Cal.App.4th at p. 295.) The court considered and rejected the argument that because probation conditions must be " 'tailored to fit [a] minor's particular rehabilitative needs,' " a juvenile court may only impose an electronic search condition on evidence that the minor previously had used electronic devices in connection with some criminal activity. (Id. at p. 296.) "If this reasoning were correct," P.O. observed, "juvenile courts would be unable to impose standard search conditions permitting warrantless searches of a minor's person, residence, vehicle, and other physical locations without a showing that those locations were all connected to past criminal conduct. In fact, such conditions are routinely imposed despite their potential to invade minors' privacy. [Citations.]" (Ibid.)
"Although 'a minor cannot be made subject to an automatic search condition' [citation]," P.O. reasoned, "this requires a court to consider whether a search condition is appropriate under the circumstances before imposing it, not to find a connection between the locations to be searched and the minor's past conduct." (P.O., supra, 246 Cal.App.4th at p. 296.) We concur and also observe that our Supreme Court generally has recognized "the very existence of a probation search condition, whether for adults or juveniles," is a deterrent to "further criminal acts." (In re Jaime P. (2006) 40 Cal.4th 128, 137.)
In this case, although the record contains no evidence regarding Minor's usage of electronic devices, we presume he does use such devices given his opposition to the probation condition. We also note that Minor appears to stand at a crossroads. On the one hand, he has no prior criminal record, he appears to live in a stable home, there is no past record of serious behavioral issues, Probation evaluated him as presenting a low risk for recidivism, and he reportedly was remorseful for his criminal conduct. On the other hand, Minor admitted to being in possession of a loaded firearm in the car of a friend in the middle of the night. There is no dispute he was in possession of marijuana at the time, and Minor admitted he had been smoking marijuana regularly (three times per week) for the past year. He also had failed most of his high school classes and was not on track to graduate.
On these facts, we cannot say the juvenile court abused its discretion by imposing an additional level of monitoring in the form of an electronic search condition to assist in deterring Minor from continuing down the path toward future criminality. Knowing that his probation officer may review text messages and photographs stored on his cell phone, for example, may assist Minor in avoiding conduct that otherwise would be recorded there and would violate conditions of his probation (e.g., requirements that he obey his parents, refrain from using controlled substances, and not handle firearms). Although Minor's privacy will be affected, his expectations in that regard, and the level of the intrusion, necessarily are reduced because he has notice of the monitoring. (People v. Ramos (2004) 34 Cal.4th 494, 506; see also American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 394 ["the right to privacy of an unemancipated minor is more limited than that of an adult"]; In re James R. (2007) 153 Cal.App.4th 413, 429, fn. 4 [" ' "The State's interest in protecting a young person from harm justifies the imposition of restraints on his or her freedom even though comparable restraints on adults would be constitutionally impermissible" ' "].)
2. Overbreadth and Vagueness
Minor also contends the electronic search condition should be stricken as unconstitutionally overbroad and impermissibly vague.
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes a limitation on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Citing Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473 (Riley) and People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), Minor argues that the electronic search condition implicates serious privacy concerns because it allows access to "a wealth of sensitive personal information" unrelated to criminal activity, such as financial or medical records, or intimate familial communications, and is therefore overbroad. In Riley, the Supreme Court held that the warrantless search of a suspect's cell phone implicated and violated the suspect's Fourth Amendment rights. (Riley, at p. 2493.) In so holding, the court rejected the government's argument that the search of a suspect's cell phone was " 'materially indistinguishable' " from the search of an arrestee's person or of personal items that an arrestee carries, such as a cigarette pack, explaining that modern cell phones, which may have the capacity to be used as minicomputers, can potentially contain sensitive information about a number of areas of a person's life. (Id. at pp. 2488-2488.) The court reversed and remanded the case but emphasized its holding was only that cell phone data is subject to Fourth Amendment protection, "not that the information on a cell phone is immune from search." (Id. at p. 2493.)
Riley, supra, 134 S.Ct. 2473, however, did not involve probation conditions and, as a result, is inapposite in this context. Unlike the defendant in Riley, who at the time of the search had not been convicted of a crime and was still protected by the presumption of innocence, Minor is a probationer. "Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citations.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (United States v. Knights (2001) 534 U.S. 112, 119.) For purposes of privacy, a search condition diminishes, albeit does not entirely preclude, a probationer's reasonable expectation of privacy. (In re Binh L. (1992) 5 Cal.App.4th 194, 203-205.) Additionally, as noted, because he is not an adult, Minor is deemed to need greater guidance and supervision and his constitutional rights are more circumscribed. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941 [When the state asserts jurisdiction over a minor, it stands in the shoes of the parents and may curtail the child's exercise of constitutional rights].) Search conditions also are " 'more common' " in cases, such as this one, involving weapons. (People v. Balestra (1999) 76 Cal.App.4th 57, 68.) Accordingly, although we agree with Minor that his right to privacy is implicated by the electronic search condition (Appleton, supra, 245 Cal.App.4th at p. 724 ["individuals retain a constitutionally protected expectation of privacy in the contents of their own [electronics]"]), we nevertheless disagree with his contention that the challenged condition is unconstitutionally overbroad.
Appleton does not compel a different conclusion. The offender in that matter was an adult (Appleton, supra, 245 Cal.App.4th at p. 719), so had qualitatively different privacy rights. (See, e.g., In re Carmen M. (2006) 141 Cal.App.4th 478, 492-493 [Even law-abiding children have a more limited right to privacy than adults have].) Additionally, the electronic search condition there at issue was broader, extending to devices not in the defendant's custody and to content not stored on the actual device itself, i.e., accessible only using an Internet or cellular connection. (Appleton, at pp. 719, 725-726.) The same is true of the conditions at issue in the juvenile offender cases on which Minor relies. (See P.O., supra, 246 Cal.App.4th at p. 292 [search provision extending to " 'electronics including passwords' " without limitation]; J.B., supra, 242 Cal.App.4th at p. 752, fn. 1 [same]; Malik J., supra, 240 Cal.App.4th at p. 900 [same].)
In contrast, in this case, as noted, at the dispositional hearing, the juvenile court judge limited the electronic search condition to items stored in the memory of devices in Minor's possession and control. After an inquiry from Minor's counsel, the judge responded, "[i]n other words, no Internet search," and cited Malik J., supra, 240 Cal.App.4th 896, adding that he hoped to deter Minor "from getting together with . . . a similar group to illegally purchase [or] use marijuana, and be in possession of a firearm[]."
Malik J. upheld an electronic search condition, modified to encompass only information stored on the actual device in the minor's possession, which the minor himself would be able to access. (Malik J., supra, 240 Cal.App.4th at pp. 902-905.) Information stored in a remote location accessible only using an Internet or cellular connection, or as part of a forensic examination requiring specialized equipment not readily accessible to device users, was not included within the permissible scope of the search condition. (Id. at pp. 903-904.) Malik J. reasoned that such information could not be considered "in the probationer's possession nor entirely within his or her control." (Id. at p. 903.)
The juvenile court's oral pronouncements indicate the intent was to follow Malik J., allowing searches of information—such as text and voice messages and photographs—stored on electronic devices in Minor's physical possession, which Minor himself would be able to access without Internet connection or specialized equipment. Although neither the minute order for the dispositional hearing nor the probation department form entitled "Probation Conditions and Court Orders," which Minor signed on the same date, expressly limited the electronic searches to information accessible without an Internet connection or specialized equipment, we give credence to the court's oral pronouncements on this issue and conclude that they control. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We also consider those pronouncements to be sufficiently precise and, therefore, reject the contention that the electronic search condition should be stricken as vague. To avoid any future confusion, however, the search condition in the minute order for the October 19, 2015 dispositional hearing must be modified to expressly preclude searches requiring an Internet connection or specialized equipment.
We refer to Internet generally, without limitation, depending on the means of access (e.g., cable, wireless, or cellular).
In upholding the electronic search condition, we note that courts historically have allowed general search conditions broadly applying to the "person and property" of adult and juvenile probationers alike, without limitation, presumably permitting access to large amounts of personal information. (See, e.g., People v. Balestra, supra, 76 Cal.App.4th at pp. 61, 66-68; In re Todd L. (1980) 113 Cal.App.3d 14, 18-20.) Although electronic devices might potentially contain more data than would be found in other types of property subject to search, there is nothing in the record suggesting this is true here. The record does not reveal whether Minor even has a cell phone or other type of electronic device, or if he does, whether any actual harm could occur if such a device were inspected. He does not contend, for example, that he stores private financial or medical information or intimate familial communications on any personal device in his possession. Thus, rather than speculate on how Minor's privacy might be impacted by the search condition, we leave Minor to exercise his remedy in the juvenile court should he have specific concerns about how the electronic search condition impacts his privacy. (Welf & Inst. Code § 775 [a juvenile court may modify any order at any time].)
B. Other Probation Conditions
Minor's other probation conditions included a prohibition against his using or possessing alcohol, drugs or associated paraphernalia, or poisons, and a prohibition against his possessing, owning, or handling weapons. Minor contends these conditions are facially and unconstitutionally vague and overbroad because they do not include express knowledge requirements. (See Sheena K., supra, 40 Cal.4th at pp. 889-892.) He asks us to modify them to clarify that only his knowing conduct is prohibited. Although Minor did not object to these conditions in the dispositional hearing before the juvenile court, we do not deem the issues forfeited on appeal, because they are constitutional challenges presenting pure questions of law, easily remediable on appeal. (Id. at p. 888.) As noted, we review constitutional challenges to probation conditions de novo. (In re Shaun R., supra, 188 Cal.App.4th at p. 1143.)
Minor also asks that we reconcile differences in the wording of these probation conditions as they appear in the transcript of the juvenile court's oral pronouncements, the minute order, and the probation department form that he signed. As indicated in footnote 3, ante, we give greatest credence to the minute order, which the judge signed. Our disposition modifies that order.
The People concede that Minor's claim is preserved despite his failure to raise the objection below.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) Fair warning means " ' preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections . . . 'embodied in the due process clauses of the federal and California Constitutions. [Citations.]' [Citation.]" (Ibid.) The notice component "is aimed at ensuring that a ' "person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that he may act accordingly." ' [Citations.]" (Kevin F., supra, 239 Cal.App.4th at pp. 357-358.)
" 'California appellate courts have found probation conditions to be unconstitutionally vague or overbroad when they do not require the probationer to have knowledge of the prohibited conduct or circumstances.' [Citation.]" (Kevin F., supra, 239 Cal.App.4th at p. 361.) For example, in In re Victor L. (2010) 182 Cal.App.4th 902, the court found unconstitutionally vague a condition of probation prohibiting a minor from remaining where weapons, firearms, or ammunition existed, because the condition did not limit its proscription to locations the minor knew contained such items. (Id. at pp. 912-913, 931.) "Where a probation condition suffers from this defect, the appellate court may modify the condition to include the missing knowledge requirement." (Kevin F., at p. 361; see, e.g., People v. Patel (2011) 196 Cal.App.4th 956, 959 [modifying a probation condition prohibiting the offender from using or possessing alcohol to "include a qualification that [the offender] must commit the proscribed conduct knowingly"].)
The People argue that an express scienter requirement is unnecessary to protect against unwitting violations because a trial court may not revoke probation unless the defendant willfully violated the terms of probation. They cite a line of cases, including People v. Moore (2012) 211 Cal.App.4th 1179, in which the court upheld a probation condition prohibiting an offender from owning, using, or possessing dangerous or deadly weapons despite its lack of an express knowledge requirement. (Id. at p. 1183; see also People v. Patel, supra, 196 Cal.App.4th at pp. 960-961 [stating that in future, the court would construe all probation conditions "proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly," without necessity for express scienter requirement].) As explained in Victor L., however, in modifying a weapon condition to include an express scienter requirement, "[w]hile the requirement of proof of willfulness may save [the minor] from an unconstitutional finding of guilty based on an unknowing probation violation, that is cold comfort to a probationer who suffers from an unfounded arrest and detention based on the whim or vengeance of an arbitrary or mean-spirited probation officer." (In re Victor L., supra, 182 Cal.App.4th at p. 913.)
The California Supreme Court is now considering whether an express scienter requirement is necessary. (See People v. Hall, review granted Sept. 9, 2015, S227193; People v. Gaines, review granted Feb. 17, 2016, S231723.) Until the court rules differently, we shall adhere to the practice of modifying probation conditions to add an express knowledge requirement where necessary to make "the scope of the prohibited conduct clear in advance to all who may be involved." (Kevin F., supra, 239 Cal.App.4th at p. 365.) "Particularly since there is a conditional liberty interest at stake, we think [this course] best comports with due process." (Ibid.) In this case, we conclude that the probation conditions discussed in this section are unconstitutionally vague and that modification to add an express scienter requirement is necessary.
Minor also contends the terms "poisons" and "paraphernalia" are vague as used in the probation condition prohibiting him from using or possessing drugs. Both may include ordinary household items, he observes. In In re Ana C. (2016) 2 Cal.App.5th 333, review granted Oct. 19, 2016, S237208, he points out, this court agreed that common household items needed for or associated with drug use arguably could fall within a probation condition prohibiting possession of drug paraphernalia, even if the minor in that case possessed the items for legitimate purpose and was ignorant of their potential for use as drug paraphernalia. (Id. at p. 349; see also In re Johnny O. (2003) 107 Cal.App.4th 888, 897 ["possession of a device for smoking marijuana, without more, is not a crime in California"].) In In re Ana, the court modified the condition to prohibit the minor from possessing any item that she knew was drug paraphernalia (In re Ana, supra, 2 Cal.App.5th at p. 349), and Minor submits we should do the same here, for the prohibitions against using or possessing both paraphernalia and poisons. We agree, adopting the reasoning in In re Ana C.
C. Educational Needs and Services
Finally, Minor contends the juvenile court failed to make findings and orders about his educational needs at the dispositional hearing as required under rule 5.651(b)(2) of the California Rules of Court and asks us to remand the matter with an order that the juvenile court "fully comply with the directives" of that rule provision. Rule 5.651 requires the juvenile court to consider information about a minor's educational needs and to address certain educational issues in its findings and orders at dispositional hearings for minors who are the subjects of petitions under section 602. (Rule 5.651(b)(2).)
All further references to rules are to the California Rules of Court.
Rule 5.651(b)(2) provides in pertinent part, that, at a dispositional hearing, "the court must: [¶] (A) Consider and determine whether the child's or youth's educational, physical, mental health, and developmental needs, including any need for special education and related services, are being met; [¶] (B) Identify the educational rights holder on form JV-535; and [¶] (C) Direct the rights holder to take all appropriate steps to ensure that the child's or youth's educational and developmental needs are met. [¶] The court's findings and orders must address the following: [¶] (D) Whether the child's or youth's educational, physical, mental health, and developmental-services needs are being met; [¶] (E) What services, assessments, or evaluations, including those for developmental services or for special education and related services, the child or youth may need; [¶] (F) Who must take the necessary steps for the child or youth to receive any necessary assessments, evaluations, or services; [¶] . . . . [¶] [and] (H) Whether the parent's or guardian's educational or developmental-services decisionmaking rights should be limited . . . . [¶] (i) If the court finds that the parent's or guardian's educational or developmental-services decisionmaking rights should not be limited or should be restored, the court must explain to the parent or guardian his or her rights and responsibilities in regard to the child's education and developmental services as provided in rule 5.650(e), (f), and (j); . . . ."
The People contend that Minor has forfeited this issue because he did not raise it in the juvenile court. Even if this were not the case, the People submit, the rule did not require additional findings because the dispositional hearing did not change or affect Minor's education or receipt of developmental services, and Minor was not being placed in out-of-home care. Probation's report also indicated Minor already was receiving the required services, the People contend, obviating the need for the juvenile court to investigate further at the time of the dispositional hearing. As we discuss below, we agree with the People.
We consider first whether Minor forfeited his claim of error under rule 5.651(b)(2). Minor does not contend that he raised any issue regarding rule 5.651 at any hearing in the juvenile court. The People cite People v. Scott (1994) 9 Cal.4th 331 (Scott) as support for their forfeiture argument. There, our Supreme Court ruled that a defendant may not, for the first time on appeal, challenge the trial court's statement of reasons supporting its discretionary sentencing choices. (Id. at pp. 348, 353.) It reasoned, "Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in a court's statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (Id. at p. 353.) The same reasoning applies equally to any errors that may occur during a dispositional hearing when a minor is adjudged a ward of the court. In that context also counsel must be prepared to call any alleged errors or omissions to the court's attention so they may be promptly corrected.
In a later case, the Supreme Court observed that "the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture' [not waiver] because a person who fails to preserve a claim forfeits that claim." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
Minor attempts to distinguish Scott, in its reference to a trial court's "discretionary sentencing choices," by contending that the juvenile court, in contrast, had a mandatory obligation to make educational findings on the record at the dispositional hearing. This is a distinction without a difference, however, because, as Scott acknowledged, although trial courts may have discretion in tailoring a sentence to the particular case, they generally are required to state their reasons on the record at sentencing. (Scott, supra, 9 Cal.4th at p. 349, citing Pen. Code, §§ 1170, subds. (b) & (c), 1170.1, subd. (h), 1202.4, subd. (a).) If a party fails to raise with the trial court a claim that it erred in making or articulating its sentencing choices, or in "fail[ing] to state any reasons," the argument is forfeited. (Scott, at p. 353.) Applying the same logic, in failing to raise with the juvenile court a claim that it had not stated required educational findings in the dispositional hearing, Minor forfeited the argument.
We are unpersuaded by Minor's argument that the juvenile court's claimed failure to comply with rule 5.561(b)(2) is analogous to a failure to comply with the juvenile court's duty under section 702 to "declare" whether a wobbler offense is a felony or a misdemeanor. The explicit declaration requirement set forth in section 702 is implemented by rules requiring that certain findings be "noted in the minutes of the court" (rule 5.778(f); see also rule 5.795) and that certain declarations be stated "on the record" (rules 5.778(f)(9) and 5.795(a)). Our Supreme Court has held that when a juvenile court does not comply with the explicit declaration requirements of section 702, remand may be appropriate. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209, superseded by statute on another ground as stated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) In In re Ricky H. (1981) 30 Cal.3d 176, for example, the Supreme Court remanded the case for the trial court to make the necessary declaration, even though neither party ever raised the issue. (Id. at pp. 191-192; but see Manzy W. [failure to make the formal declaration required under section 702 does not automatically require remand].)
We decline to extend any exception to the forfeiture rule to claims of failure to comply with rule 5.651(b)(2). The section 702 declaration is excepted from the forfeiture rule because that declaration—whether an offense is a felony or a misdemeanor—determines the maximum period of physical confinement, and "any prior felony conviction, whether adult or juvenile 'shall . . . be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.' " (In re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3, quoting Cal. Const., art. I, § 28, subd. (f).) Courts are "particularly" unwilling to ignore error "where the defendant might otherwise spend too much or too little time in custody." (People v. Welch (1993) 5 Cal.4th 228, 236; and see In re Ramon M. (2009) 178 Cal.App.4th 665, 675-676 [time bar does not apply to claim that juvenile court erred in failing to make required declaration under section 702].) These considerations do not apply to the findings and orders regarding the educational and developmental services decision-making rights that are described in rule 5.651(b)(2), and we therefore decline Minor's invitation to liken those of that rule to the requirements of section 702.
Even if Minor had not forfeited this issue, it is not clear that rule 5.651 applied to his dispositional hearing. In subdivision (a), titled "Applicability," rule 5.651 states that it applies "(1) [t]o any child . . . for whom a petition has been filed under section . . . 602, until the petition is dismissed or the court has terminated . . . delinquency . . .; and [¶] (2) [t]o every judicial hearing related to, or that might affect, the . . . youth's education or receipt of developmental services." (Italics added.) The People noted the italicized language in their respondent's brief, contending the dispositional hearing did not qualify because there was no suggestion the hearing might affect Minor's education, e.g., by requiring his placement in out-of-home care, or a resulting school change. In his reply brief, Minor's counsel simply repeats that the rule applies to all minors subject to petitions under section 602. While this is true, it does not address the People's argument. (See In re Ramone R. (2005) 132 Cal.App.4th 1339, 1351 [a failure to respond to an argument is an implicit concession].) If rule 5.651 applied to every hearing involving a minor for whom a petition has been filed under section 602, rule 5.651(a)(2) and particularly the italicized language would be superfluous. (See, e.g., Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1207 ["interpretations which render any part of a statute superfluous are to be avoided"]; Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902 [rules of statutory construction apply to the rules of court].)
Minor also relies on In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.) as support for his claim that remand is appropriate because the juvenile court failed to make express findings under rule 5.651. In that case, the juvenile court was on notice that the minor was suffering from bipolar disorder or attention deficit hyperactivity disorder (ADHD), and a court-appointed psychologist recommended she be evaluated for an IEP. (Id. at pp. 1395, 1398-1399.) Nonetheless, the juvenile court did not mention the minor's educational needs when committing her to the California Youth Authority (now the Division of Juvenile Justice of California's Department of Corrections and Rehabilitation). (Id. at pp. 1396, 1399.) The matter was remanded, therefore, to permit the juvenile court to determine whether an evaluation of the minor's special educational needs should be conducted. (Id. at p. 1399.)
Angela M., supra, 111 Cal.App.4th 1392 cited former rule 1493(e)(4) for the proposition that the juvenile court "must consider the educational needs of the child" when declaring a child a ward of the court. (Angela M., at p. 1398.) Rule 1493 subsequently was amended and renumbered as rule 5.790, and the latter no longer includes the quoted language. Thus the decision also is inapposite because it was based on a rule that no longer exists.
Although Minor in this case also has been diagnosed with ADHD, unlike in Angela M., supra, 111 Cal.App.4th 1392, Minor already has an IEP and is not being placed in out-of-home care. He remained able, therefore, to attend the same school without interruption. The juvenile court imposed standard probation conditions addressing Minor's education, i.e., instructing that he attend school regularly, obey school rules and regulations, and not leave school campus during school hours without permission. It also required Minor to participate in grief counseling, presumably to address his reported trauma stemming from several family deaths, possibly a factor contributing to Minor's poor school performance.
The juvenile court judge indicated he had read Minor's high school transcript, a copy of which was attached to the dispositional report, telling Minor, "I see your grades fluctuate dramatically. . . . [C]learly you have the ability to get very good grades. At this point, you need to focus on school. Very, very important. It's all about school and not using drugs." Emphasizing that he wanted to see "good performance [from Minor] at school," the juvenile court judge said he would be receiving Minor's latest grades before the next hearing and anticipated they would be at a level sufficient to justify terminating the probation condition requiring global positioning system (GPS) monitoring. Viewed as a whole, it is evident that the juvenile court was considering Minor's educational needs and would be revisiting the issue in future hearings. Thus, even if Minor had not forfeited his rule 5.651 claim, and even if the rule applied to the dispositional hearing although there was no showing it affected Minor's education, we do not find error warranting remand.
Although Minor had many failing grades, his transcript also reflected an A in English, a B in United States History, and a B in Algebra in Minor's junior year. --------
IV.
DISPOSITION
The search probation condition stated in the minute order for the October 19, 2015 dispositional hearing is modified to read: "Submit the following to search by Probation Officer or peace officer with or without a search warrant at any time of the day or night: (1) your person, (2) any vehicle, room or property under your control, and (3) material stored in the memory of electronics in your possession that is accessible without connection to the Internet or specialized equipment."
In addition, the alcohol, drugs, and weapons probation conditions in the minute order are modified to read: "Do not knowingly use or possess alcoholic beverages"; "Do not knowingly use or possess narcotics, drugs, or other controlled substances unless prescribed by a physician, or items that you know are drug paraphernalia or poison"; "Do not knowingly possess, own, or handle any firearm, knife, weapon, fireworks, explosives, or chemicals that can produce explosives." Except as modified, the October 19, 2015 minute order is affirmed. Copies of the modified minute order must be provided to Minor and Probation.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.