Opinion
H048508
05-09-2022
In re I.E., a Person Coming Under the Juvenile Court Law. v. I.E., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 19JV000753
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
The minor, I.E., appeals from a dispositional order placing him on probation with various terms and conditions, following findings by the juvenile court that he committed four counts of lewd conduct on two children under the age of 14 (Pen. Code, § 288, subd. (a)). Regarding one of the counts, the juvenile court found that the minor and the victim, who was his girlfriend at the time, were both 13 years old at the time of the conduct, and that the minor knew the wrongfulness of his conduct (see § 26, subd. One).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, the minor contends: (a) the juvenile court violated his right to due process by failing to consider the issue of consent in determining whether he understood the wrongfulness of his conduct regarding the count involving his girlfriend; (b) there is not substantial evidence to support the court's finding that he understood the wrongfulness of his conduct; and (c) five probation conditions imposed by the court - prohibiting association with people who are a "threat" to his successful completion of probation (No. 10), prohibiting contact with the two victims' families (Nos. 16 & 17), prohibiting possession of "pornographic materials" (No. 25), and authorizing a search of electronic devices (No. 27) - are unconstitutionally vague, unconstitutionally overbroad, and/or are unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). The minor also argues that to the extent these claims are forfeited due to the failure to object below, his trial counsel rendered ineffective assistance of counsel.
For reasons that we will explain, we will reverse the judgment and remand the matter to the juvenile court with instructions: (a) to strike the condition prohibiting contact with the family of one of the victims, who is the minor's stepsister (condition No. 16), and to consider whether to impose a more tailored condition regarding the minor having contact with his close family members with whom he resides, including his mother, sister, and stepfather; and (b) to strike the condition prohibiting possession of pornography (condition No. 25) and to consider whether to impose a condition more specifically describing the prohibited materials.
II. BACKGROUND
A. The Petition
On February 13, 2020, an amended Welfare and Institutions Code section 602 petition was filed against the minor, who was almost 17 years old when the petition was filed. Regarding Jane Doe 1, who was the minor's stepsister, the amended petition alleged that the minor committed a forcible lewd act on a child under the age of 14 (§ 288, subd. (b)(1); count 1), four counts of a lewd act on a child under the age of 14 (§ 288, subd. (a); counts 2, 6, 7, & 8), assault with intent to commit a specified offense (§ 220, subd. (a)(2); count 3), and continuous sexual abuse of a child (§ 288.5, subd. (a); count 5).Regarding Jane Doe 2, who was the minor's girlfriend at the time of the conduct, the amended petition alleged that the minor committed a lewd act on a child under the age of 14 (§ 288, subd. (a); count 4).
Counts 1 through 3 were alleged in the alternative regarding a single incident.
On motion of the prosecutor, the petition was further amended to expand the timeframe during which the minor allegedly committed the conduct against Doe 1. In addition, on motion of the prosecutor, count 5 (§ 288.5, subd. (a) [continuous sexual abuse of a child]) was dismissed.
B. The Jurisdictional Hearing
Relevant to this appeal, the evidence at the jurisdictional hearing included the following testimony:
1. The Prosecution's Case
The minor's mother testified that when the minor was "between the ages of 12 and 14," she talked to him about "sexual education," including "what a good touch is versus a bad touch." The discussion covered not only "if someone touched him" but also "in relation" to him touching "another person." The discussion also covered "possible . . . legal consequences[] related to things of a sexual nature" regarding the minor "coming into contact with other people," rather than "someone coming into contact with [the minor]."
a. Jane Doe 1
Doe 1's parents separated when she was four years old. Doe 1 alternated between living with her mother and her father either daily or weekly. The charged conduct occurred while Doe 1 was living with her father, stepmother, older stepsister, and the minor who was her older stepbrother. Doe 1 shared a bedroom with her stepsister and shared a bathroom with both stepsiblings.
At the time of the jurisdictional hearing, Doe 1 was a few months from turning 14 years old and had just finished eighth grade. She testified that the minor touched her several times during an approximately two-month period when she was 9 to 10 years old and in the fourth grade. Doe 1 testified that during one incident, the minor came into her room and closed the door. She testified that on another occasion, the minor asked her "[i]f it felt good." Relevant to the juvenile court's true findings, the incidents included the following:
i. Bathroom incident (count 2)
Doe 1 testified that when she was in the bathroom, the minor touched her with his "private part," meaning his part that "[u]se[d] the restroom." The minor got her on the floor and tried to put his private part in her mouth. His private part touched her face. Doe 1 looked away and eventually escaped.
ii. Bedroom incident (count 6)
In another incident, when Doe 1 was clothed, the minor removed her underwear. While she was sitting on the minor's bed, he put his hands on her knees and used his tongue to touch her "private part," meaning her "front" part that "[u]ses the restroom."
iii. Kissing incident (count 7)
Doe 1 testified that the minor kissed her lips while they were in his room. During the incident, the minor's mouth was open. Doe 1 felt something in her mouth and could not breathe.
iv. Doe 1's reporting of the incidents
Doe felt uncomfortable when the incidents occurred but did not "realize" what was occurring until she was older. She first reported the minor's conduct in 2019 when she was in the seventh grade. Her mother had gone through Doe 1's phone, and at some point thereafter, Doe 1 "ended up talking to a police officer." When Doe 1 talked to the police about the bathroom incident, she did not report that the minor had touched her face with his penis. She also indicated that no other incidents happened besides the bathroom incident. She was embarrassed and uncomfortable talking about it and "didn't want to talk about anything else." Doe 1 eventually disclosed the other incidents "[b]ecause it made [her] stressed out not having said anything about it, and it made [her] . . . feel like [she] was lying."
Prior to Doe 1 reporting the minor's conduct, Doe 1's parents had gone to court several times regarding whether the mother could move away with Doe 1. The mother had not been permitted to do so. Doe "couldn't really decide" whether she wanted to stay with her mother over her father, but she did want to stay in the area and be able to live with her father. This did not make her mother very happy. After Doe 1 reported the minor's conduct to the police, she did not want to stay in the same house with the minor anymore, and Doe 1's mother was allowed to move away with Doe 1.
Doe 1 denied that her mother told her what to say or to lie about what happened regarding the minor. She also testified that she would not lie in order to be able to live with her mother.
b. Jane Doe 2 (count 4)
At the time of the jurisdictional hearing, Doe 2 was 17 years old and had recently completed her junior year of high school. The minor was her ex-boyfriend. They met and started dating when she was about 13 years old and in the seventh grade.
Doe 2 had her own "space" in a "shed" behind her grandmother's house. Doe 2 testified that in the fall of eighth grade, when she was 13 years old, the minor came over about 1:00 a.m. Doe 2 had the minor sneak in. For about an hour, they were talking, and they also kissed. While they were in her bed, the minor took off her pants and underwear without her permission and removed his own pants. He got on top of her and put his penis in her vagina. Doe 2 did not want it to happen. She was in shock and stayed silent because she "couldn't build up enough inside of [herself] to actually say anything." She "had already been going through a lot" and felt "empty and just used." After the incident, the minor asked if she "liked it." Doe 2 did not respond.
Months before the incident, the pair had talked about sex, and Doe 2 indicated it was "something [she was] interested in doing." Doe 2 testified that they had not had intercourse before the incident. During some of the prior instances when they were alone, they had kissed but they did not otherwise have a physical relationship.
After the incident, the minor acted "[l]ike nothing happened." When the topic of sex came up during arguments, Doe 2 told him, apparently in reference to the incident, "[t]hat it was rape." Although the minor gave "different answers on different days" during those arguments, at some point he acknowledged "[t]hat he fucked up."
The pair continued to date off and on for approximately two and a half years until part way through sophomore year. Doe 2 testified that during the relationship, they continued to have "sexual relations," "[s]ome" of which was consensual. She testified that about a dozen times "something like what happened at [her] grandma's house happened." Doe 2 also indicated that they sometimes had sex at the minor's house, and that one time his mother came in.
When asked why she did not report the incident, Doe 2 testified, "Because I felt like since we had stayed together, that I would just look stupid, and no one would believe me."
Doe 2 described her relationship with the minor as "[a]busive" and "mutually toxic." Doe 2 did not want the minor playing certain sports, did not want him to wear certain things or hang out with certain people, and wanted to know who he was contacting on social media. The minor similarly told Doe 2 that she could not wear certain things, could not hang out or talk with certain people, and "could only post certain things."
In one incident at school, Doe 2 got angry with the minor and got physical with him. She kicked him in the face because he had called her names.
Doe 2 contacted Doe 1 for the latter's birthday. They had a discussion in which Doe 2 stated," 'Oh, he did something to me, too.'" Doe 2 stated that she was testifying at the jurisdictional hearing because the prosecutor's office had "reached out to [her]." She denied being mad at the hearing at the minor.
2. The Defense Case
Doe 1's father testified that Doe 1 was about four or five years old when he separated from her mother. He later married the minor's mother and became the minor's stepfather. When Doe 1 was around nine or 10 years old, her father did not notice any change in her behavior or demeanor toward the minor. Doe 1's father and mother had been involved in ongoing family court proceedings, including regarding custody, essentially since the time they had separated. The mother's desire to move out of the county had been addressed by the family court multiple times. The mother raised the issue most recently in a petition in 2019. Doe 1's father always told Doe 1 that he would be supportive of whatever decision she made about moving away. After the allegations against the minor arose, Doe 1 finally indicated to her father that she wanted to move with her mother. Her father allowed the move, and the mother was granted a move-away order.
A former friend of Doe 1's mother testified that sometime prior to 2017, the mother was very upset with Doe 1 after a family court proceeding because Doe 1 failed to say in court that she did not want to visit her father. The mother locked Doe 1 out of the residence.
Doe 1's stepsister testified that she was "very close" to Doe 1. The stepsister never saw the minor put his hands on Doe 1's private parts. Doe 1 also never told her stepsister any concerns about the minor and never indicated that she did not want to be around him.
A friend of the minor who attended the same school testified that the minor had been respectful, caring, and nice to Doe 2. Doe 2, however, was demanding and controlling and did not let the minor hang out with the friend. During high school, Doe 2 exchanged words with the minor after class. Doe 2 started hitting the minor. When the minor bent down to try to push her off, she kicked him in the face, causing him to bleed from the mouth.
Another friend of the minor who attended the same school testified that the minor was caring and attentive to Doe 2 when they were dating. Doe 2 was controlling and would not let the minor hang out with the friend as frequently unless she was mad at the minor.
The minor testified in his own behalf that Doe 2 sometimes asked him to come over to her grandmother's house during the daytime, but that the "majority" of the time it was at night. During the daytime, she invited him inside where her grandmother was, but at night, she invited him to the shed in the back. When he was going directly into the shed at night, he knew that he might not otherwise be allowed over.
The minor testified that the first time that they had intercourse was in the shed after Doe 2 "had [him] sneak through the window." The minor testified that if he had asked his parents, they would not have let him go over there. The minor and Doe 2 subsequently had intercourse at the shed on other instances with the same "pattern" of him sneaking in.
Prior to that night, the minor's mother, father, or stepfather had talked to the minor about "the consequences of having sex" and "about what a big responsibility and what happens when you have sexual intercourse."
The minor testified that, during the months in the relationship before they had intercourse, they engaged in the touching of each other's private parts. According to the minor, they both asked each other whether the other person felt comfortable and agreed with it.
The minor testified that prior to being together at the grandmother's house, he and Doe 2 had discussed having a sexual relationship. He testified, "We both made sure we were comfortable, and that we had agreed to terms."
Regarding the incident, the minor testified that they started touching each other's private parts, and that they each removed their own clothes. He testified that he asked Doe 2 if she wanted to move forward, and "[s]he said 'yes.' "
The minor testified that before they had sex on subsequent occasions, he would ask whether she wanted to do it. If she indicated she did not want to, then he would not have intercourse with her. The minor testified that he was "taught" to "ask a girl if she's okay, or if she would like to stop."
The minor testified that his dating relationship with Doe 2 was "toxic," and that she always wanted him around, did not want him to talk to friends, and did not want him participating in sports. The minor denied that he told her how to dress, or that she could not talk to certain friends.
The minor testified that the incident in which Doe 2 kicked his face was around sophomore year after they had broken up. He testified that Doe 2 had texted him recently, but that he did not respond.
The minor denied touching Doe 1's butt, kissing her, removing her underwear and putting his tongue on her vagina, exposing his private part to her in the bathroom, or touching her with his penis.
3. The Juvenile Court's Findings
The juvenile court determined that the minor had knowledge of the wrongfulness of his conduct. Regarding Jane Doe 1, the court found true the allegations in counts 2, 6, and 7 regarding the minor committing lewd acts on a child under the age of 14 (§ 288, subd. (a)). The court found not true the allegations in counts 1, 3, and 8. (§§ 288, subd. (b)(1), 220, subd. (a)(2), 288, subd. (a).) Regarding Jane Doe 2, the juvenile court found true the allegation in count 4 regarding the minor committing a lewd act on a child under the age of 14 (§ 288, subd. (a)).
C. The Dispositional Hearing
The dispositional hearing was held on September 9, 2020. The juvenile court stated that it had reviewed reports by the probation officer and by "JSORT" ("Juvenile Sex Offender Response Team"). The probation officer's report included a recommendation that the minor remain in the custody of his parents and under the supervision of the probation officer with various terms and conditions, including completing the JSORT program. At the dispositional hearing, the minor's counsel stated, "[W]e do think this is an appropriate recommendation," and "we are hopeful that the Court follows this recommendation." The only objection expressed by the minor's counsel to any of the probation officer's recommendations pertained to the amount of restitution to be paid to one of the victims. The court indicated that a restitution hearing would be set as a result. The juvenile court declared the minor a ward of the court and placed him on probation with all of the recommended terms and conditions, except regarding the amount of victim restitution. Relevant to this appeal, the probation conditions prohibited the minor from associating with individuals identified by the probation officer to be a "threat" to the minor's successful completion of probation (No. 10), prohibited contact with Doe 1's "family" (No. 16), prohibited contact with Doe 2's "family" (No. 17), prohibited possession of "pornographic materials" (No. 25), and authorized the search of electronic devices (No. 27).
III. DISCUSSION
A. Knowledge of Wrongfulness
The minor raises several contentions regarding the juvenile court's finding that he knew the wrongfulness of his conduct in relation to Doe 2, his former girlfriend. First, the minor contends that when a juvenile court assesses whether a minor under the age of 14 has knowledge of the wrongfulness of the minor's conduct, the court must find that the minor understood that the conduct was both "legally and morally wrong." Second, the minor contends that evidence of consent is relevant to whether a minor understands the wrongfulness of the minor's conduct. The minor argues that in this case, the court violated his right to due process by refusing or failing to consider evidence of Doe 2's consent when determining whether he understood the wrongfulness of his conduct. According to the minor, the record reflects that the court did not consider consent in determining his knowledge of wrongfulness because: (1) the court specifically stated that it was not making a finding regarding consent, and (2) in making its finding regarding knowledge of wrongfulness the court made no mention of consent. The minor argues that the court's failure to consider consent constituted reversible error. To the extent an objection below was required to preserve the claim, the minor contends that his trial counsel rendered ineffective assistance of counsel. Third, the minor contends that, in the absence of consideration of consent, there is not substantial evidence to support a finding that he understood the wrongfulness of his conduct with respect to Doe 2.
The Attorney General does not specifically address whether a juvenile court must find that the minor knew his conduct was both morally and legally wrong. The Attorney General contends that, even if that were the standard, the minor's argument regarding the juvenile court's purported failure to consider consent has been forfeited because the minor failed to object below. The Attorney General further contends that the claim is without merit because the record does not support the minor's argument that the court did not consider consent. The Attorney General also argues that any error was harmless. The Attorney General further contends that there is substantial evidence that the minor knew the wrongfulness of his conduct.
1. The Trial Court's Ruling
Regarding the minor's knowledge of wrongfulness, the juvenile court ruled as follows: "[B]ecause all the alleged incidents are alleged to have occurred when [the minor] was under the age of 14, the Court does find that he did have a knowledge of the wrongfulness of such conduct. The Court takes that from the testimony, in part, of [the minor's mother], who indicated, through her testimony, that she had spoken to [the minor] about things like 'good touch' and 'bad touch,' prior to the relevant time; also, including the legal ramifications of good touch and bad touch, and the implications of his conduct towards others. [Minor's counsel] asked [the minor's mother] to clarify that. It wasn't just necessarily the conduct of others touching him.
"Additionally, [Doe 1] testified that she did tell the minor 'no,' when he asked her 'if it felt good,' so that would suggest that he knew the wrongfulness. According to her testimony, he would shut the door to the bedroom, as well, during at least one or two of the incidents.
"[Doe 2] indicated that -- actually, the minor testified, as well, that when he snuck out of his house, in the middle of the night, to go to the area where she was living -- it seems as if it was a detached area or attached area. In any event, she had a private living area that was not the same area that her grandmother lived in. He would sneak into [Doe 2's] living space, through a window, late at night, without the permission of her grandmother and without the permission of his parents, to the end of the house, which also suggests that he knew of the wrongfulness of that conduct. Apparently, he was not, otherwise, being let in."
The juvenile court then proceeded to rule on each of the counts alleged against the minor. In determining that the minor committed a violation of section 288, subdivision (a) [lewd act] against Doe 2, the juvenile court found that the minor and Doe 2 were 13 years old when they had sexual intercourse, and that they also engaged in "mutual touching" on dates prior to the intercourse. The court further stated as follows: "The Court notes that . . . consent is not a defense, because the victim, or a child under the age of 14, is considered not to have the ability to consent to such activity. The Court does not make a finding as to whether there was consent, or whether there was lack of consent, because it is not relevant to this particular charge." The court further stated that it was "not a defense" that the minor was also under the age of 14 at the time, or that, as the minor's counsel argued, Doe 2 "would have been responsible for the same crime." The court explained that it was "not here . . . to evaluate evidence on some other cases that could be brought before the Court, but the Court must follow the law, according to the evidence that is brought in any particular case."
2. Legal Principles
"[A] finding of capacity is a prerequisite to an adjudication of wardship for a minor under 14. [Citation.]" (People v. Cottone (2013) 57 Cal.4th 269, 280 (Cottone).) Section 26, paragraph One (section 26(One)) "creates a rebuttable presumption that a child under 14 is incapable of committing a crime." (Cottone, supra, at p. 280.) "The prosecution may rebut Penal Code section 26(One)'s presumption of incapacity by producing' "clear proof"' that the minor appreciated the wrongfulness of the conduct when it was committed . . . . [Citation.] 'Clear proof' in this context means clear and convincing evidence. [Citation.]" (Ibid.)" 'Where clear and convincing proof is required, the proponent must convince the . . . judge . . . that it is highly probable that the facts which he [or she] asserts are true.'" (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998 (O.B.); see id. at p. 995.)
"Penal Code section 26 provides in relevant part: 'All persons are capable of committing crimes except those belonging to the following classes: [¶] One-Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.' "
A minor's knowledge of wrongfulness may be" 'demonstrated by [the child's] age, experience, conduct, and knowledge.' [Citation.]" (Cottone, supra, 57 Cal.4th at p. 280.) Regarding age,"' "it is only reasonable to expect that generally the older a child gets and the closer [the child] approaches the age of 14, the more likely it is that [the child] appreciates the wrongfulness of [the child's] acts." [Citation.]' [Citation.]" (Id. at p. 281.) Regarding knowledge, "[w]hile knowledge of wrongfulness may not be inferred from the act alone,' "the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment" may be considered. [Citation.]'" (Id. at pp. 280-281.)" 'Reliance on circumstantial evidence is often inevitable when, as here, the issue is a state of mind such as knowledge.' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 379.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (O.B., supra, 9 Cal.5th at p. 1011.) "In assessing how the evidence reasonably could have been evaluated by the trier of fact, an appellate court reviewing such a finding is to view the record in the light most favorable to the judgment below; it must indulge reasonable inferences that the trier of fact might have drawn from the evidence; it must accept the fact finder's resolution of conflicting evidence; and it may not insert its own views regarding the credibility of witnesses in place of the assessments conveyed by the judgment. [Citations.]" (Id. at pp. 1008-1009.)
3. Analysis
First, regarding the minor's contention that a juvenile court must find that a minor under the age of 14 understood that his or her conduct was both "legally and morally wrong," we need not determine whether this is the correct standard for knowledge of wrongfulness under section 26(One). The minor makes no argument regarding whether the court in this case used that standard and has otherwise failed to demonstrate error by the court in this regard.
Second, assuming the minor's due process claim has not been forfeited, the minor fails to demonstrate that the juvenile court refused or failed to consider evidence of Doe 2's consent in determining whether the minor understood the wrongfulness of his conduct. To the extent the court specifically stated that it was "not mak[ing] a finding as to whether there was consent, or whether there was lack of consent, because it is not relevant to this particular charge," the court's statement was made in the context of its later ruling regarding whether the minor had committed a violation of section 288, subdivision (a). No similar statement was made during its earlier ruling regarding the minor's knowledge of wrongfulness.
Further, although the juvenile court did not expressly mention evidence of consent (or lack of consent) during its ruling regarding the minor's knowledge of wrongfulness in relation to his conduct with Doe 2, the minor acknowledges that "the juvenile court had no affirmative obligation to describe its . . . reasoning on the record" when making its finding regarding the minor's knowledge of wrongfulness. In addition, nothing in the court's ruling indicated that it failed to consider such evidence. To the contrary, in ruling on knowledge of wrongfulness, the court expressly referred to the lack of consent with respect to Doe 1, and therefore the court presumably also considered the issue of consent in relation to Doe 2. Indeed, it is possible that the court considered the evidence of consent regarding Doe 2 and determined that, because the evidence was conflicting on whether there was consent, the conflicting evidence was not helpful in resolving the issue of knowledge of wrongfulness and therefore the court did not recite such evidence in its ruling as a result. Indeed, it is possible that the court intended to recite only the evidence it found to support its ruling rather than to recite all the evidence it considered, such as conflicting evidence regarding consent. In sum, with respect to the minor's contention on appeal that the court failed to consider evidence of consent, the record is ambiguous at best. The minor accordingly fails to meet his burden on appeal to show error. (People v. Garza (2005) 35 Cal.4th 866, 881 ["a judgment is presumed correct," and appellant "must affirmatively demonstrate prejudicial error"]; accord, People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Third, we determine that there is substantial evidence to support the juvenile court's finding that the minor understood the wrongfulness of his conduct with respect to Doe 2. The minor acknowledges that "there was sufficient evidence from which the juvenile court could have found that the sex was not consensual and that [the] minor knew that forcing sex on Doe [2] was wrong." The minor contends, however, that the court "did not make such a determination and did not rest any of its . . . finding [of knowledge of wrongfulness] on that basis." As we have explained, the record is unclear as to whether the court's statements represented the totality of the evidence that it considered, and/or the totality of the evidence that it relied upon, in making its determination regarding knowledge of wrongfulness.
Assuming, however, that the juvenile court was unable to conclude whether the minor and Doe 2 had consensual sex during the incident at issue, there was still other substantial evidence to support the court's finding that the minor had knowledge of the wrongfulness of his conduct. As the court explained, the minor snuck out of his house "in the middle of the night" and "through a window" into the "private living area" where Doe 2 resided on the grandmother's property. This private area "was not the same area that [Doe 2's] grandmother lived in." He engaged in this conduct without the grandmother's or his parents' permission, who he knew would not have given him permission. The deliberate and extreme secretiveness of the minor's conduct contrasts with other evidence that, during the daytime, the minor would visit Doe 2 in the residence where the grandmother actually lived. The evidence also reflected that the pair usually had sexual intercourse late at night in Doe 2's private living area rather than during the daytime in the shared living space with the grandmother.
Further, at age 13 at the time of the incident, the minor was approaching the age of 14 when it is"' "more likely" '" that he"' "appreciate[d] the wrongfulness of [his] acts." '" (Cottone, supra, 57 Cal.4th at p. 281.) This fact, combined with"' "the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment" '" (id. at pp. 280-281) provides a substantial basis upon which the juvenile court could properly conclude that the minor had knowledge of the wrongfulness of his conduct with Doe 2.
We agree with the minor that the evidence regarding one or more parents' discussions with him about sex was insufficient to establish his knowledge of wrongfulness because it is not clear that before the incident a discussion occurred encompassing consensual sex with another person under the age of 14 being wrongful. However, the remainder of the minor's arguments on appeal do not persuade us that there was not other substantial evidence showing his knowledge of wrongfulness.
For example, the minor argues that there was no evidence that he had been "outright forbidden to engage in sexual intercourse," and that the evidence suggested he had been taught that he could touch Doe 2 with her consent. However, while there was no direct evidence that the minor had been forbidden to engage in sexual intercourse, there was likewise no evidence that he had been told by anyone that it was acceptable for him to engage in sexual intercourse with a child under the age of 14. Likewise, while there was evidence that the minor was told, at some point, not to touch anyone without consent, there is no evidence that he was told that consensual sexual intercourse with a child under the age of 14 was proper.
The minor also observes that there was evidence that, "[a]t some later point in their relationship, [his mother] walked in on [him] and Doe [2] having consensual sex." However, the lack of evidence as to the timing of the incident and the nature of the mother's reaction precludes a factfinder from drawing any inferences about the minor's knowledge, or lack of knowledge, of wrongfulness.
The minor contends that the evidence regarding him sneaking to Doe 2's room in the middle of the night simply shows he "knew it was wrong to sneak out," but that it "does not inexorably lead to the conclusion that he knew that having sex with her was wrong." He argues that "[t]here was no evidence that they had planned to have sex that night," and "[t]he fact that they hid their meeting reveals only that they knew they were not supposed to be socializing with anyone, for any purpose, at that late hour."
We find the minor's argument unpersuasive. There was no evidence that the pair had been told that they could not socialize with each other, and indeed they did just that when the minor visited Doe 2 during the daytime at the grandmother's main residence. The evidence reflected that the minor engaged in sexual intercourse with Doe 2 during late night visits to her private living area, but not during daytime visits to the grandmother's residence. The juvenile court could reasonably conclude from the entirety of the evidence that the minor sought to avoid detection when engaging in sexual intercourse by going to Doe 2's private living area in the middle of the night because he knew it was wrong. Indeed, we believe the only reasonable conclusion about a 13-year-old sneaking out of the house in the middle of the night to meet his girlfriend at a secluded location to engage in sex is that he knew his conduct in having sex with her was wrongful.
In sum, we determine that substantial evidence supports the juvenile court's finding that the minor knew the wrongfulness of his conduct regarding Doe 2.
B. Probation Conditions
The minor challenges five probation conditions on various grounds. We consider each probation condition separately.
1. No association condition (No. 10)
Probation condition No. 10 states: "You are not to associate with any individuals known by you to be disapproved of by your parents or guardians. You shall not knowingly associate/communicate with any individuals identified to you by your Probation Officer as a threat to your successful completion of probation. You are not to associate with any individuals known by you to be on Probation or Parole (adult or juvenile)." (Italics added.)
On appeal, the minor contends that the term "threat" in condition No. 10 is unconstitutionally vague. He argues that the "ambiguity" in its meaning allows for "divergent possible definitions." The minor further argues that, because of the "subjectivity inherent in the word," there are no limits on the people who he may be prohibited from associating with by the probation officer. He requests that this portion of the probation condition be stricken, and that the matter be remanded to the juvenile court for clarification. Although the minor did not object to this condition below, he contends that his claim on appeal has not been forfeited because it can be resolved as a matter of law. To the extent his claim has been forfeited, the minor argues that his trial counsel rendered ineffective assistance of counsel.
The Attorney General contends the probation condition is not unconstitutionally vague.
The minor did not raise a constitutional challenge to any probation condition below. Our Supreme Court has determined that the forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) In this case, to the extent the minor's arguments on appeal present pure questions of law without reference to the sentencing record, we will consider the substance of those arguments.
Regarding the minor's claim that the term "threat" is vague, "the underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions.'" (Sheena K., supra, 40 Cal.4th at p. 890.) Our examination of the challenged condition is "guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have' "reasonable specificity."' [Citation.]" (Ibid., italics omitted.) The probation condition must be" 'sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated.'" (Ibid.) A probation condition is sufficiently specific"' "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources."' [Citation.]" (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)
The dictionary definition of "threat" includes (1) "an expression of intention to inflict evil, injury, or damage" and (2) "an indication of something impending." (Merriam-Webster Dict. Online (2022) <https://www.merriam-webster.com/dictionary/threat> [as of May 9, 2022], archived at <https://perma.cc/87A5-XRP6>.) The term "threat" has also been defined as "[a]n indication of an approaching menace; the suggestion of an impending detriment" and "[a] person . . . that might well cause harm." (Black's Law Dict. (11th ed. 2019) p. 1783, col. 2.) Similar to these definitions, the minor observes that the term "threat" has been defined as "an indication or warning of probable trouble, or of being at risk for something terrible." (Dictionary.com <https://www.dictionary.com/browse/threat> [as of May 9, 2022], archived at <https://perma.cc/N748-9ANK>.) Consistent with the definition found in various dictionaries, and in the context of the probation condition at issue here, which prohibits the minor from associating or communicating with any person who the probation officer identifies as "a threat to [his] successful completion of probation," the term "threat" is readily understood to mean a person that might well cause harm to the minor's ability to successfully complete probation. Given that a reasonable, practical, and common-sense definition of the term "threat" exists within the context of the probation condition, the condition is not unconstitutionally vague. Indeed, the probation condition need not have" 'mathematical certainty.'" (Sheena K., supra, 40 Cal.4th at p. 890.) Moreover, the probation condition requires that the person who is a threat be "identified to [the minor] by [his] Probation Officer," meaning the minor must have knowledge of the people disapproved by probation. (See id. at pp. 891-892.)
We are not persuaded by the minor's reliance on People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil) to support his contention that the probation condition is unconstitutionally vague because it imposes no limit on the people who the probation officer may prohibit him from associating with. In O'Neil, the probation condition broadly prohibited the defendant from associating with" 'any person, as designated by [his] probation officer.'" (Id. at p. 1354, italics added.) In contrast, the probation condition in the present case only precludes the minor from associating with individuals who are "a threat to [his] successful completion of probation." Further, the appellate court in O'Neil upheld an overbreadth challenge, not a vagueness challenge as the minor has asserted in the present case. (Id. at p. 1354; see also id. at pp. 1357-1359.) Lastly, the defendant in O'Neil was an adult probationer, whereas the instant case involves a juvenile. The appellate court in O'Neil noted that "[c]onditions of juvenile probation may confer broader authority on the juvenile probation officer than is true in the case of adults. [Citations.]" (Id. at p. 1358, fn. 4.)
On this latter point, we find In re Frank V. (1991) 233 Cal.App.3d 1232 (Frank V.) instructive. In Frank V., one of the probation conditions prohibited the minor from "associat[ing] with anyone disapproved of by his probation officer." (Id. at p. 1237.) In explaining the condition, the juvenile court told the minor that his parents and the probation officer would inform the minor which people he" 'can't hang out with.'" (Id. at p. 1241.) In rejecting the minor's contention that his constitutional right of association had been impermissibly burdened, the appellate court stated: "The juvenile court could not reasonably be expected to define with precision all classes of persons which might influence Frank to commit further bad acts. It may instead rely on the discretion of his parents, and the probation department acting as parent, to promote and nurture his rehabilitation." (Id. at p. 1243.)
Accordingly, the minor fails to demonstrate that probation condition No. 10 is unconstitutional.
2. Condition prohibiting contact with Doe 1's family (No. 16)
Probation condition No. 16 states: "You are not to have direct or indirect contact with Jane Doe 1 or anyone known to you to be a member of the victim's family in any way, including, but not limited to, in person, by telephone, by texting, in writing, by public or private mail, by email or fax, or through a third party, or by any other electronic means. Stay at least 100 yards away from the victim, victim's residence, vehicle, school, and place of employment as known to you." (Italics added.)
a. vagueness
The minor contends that the term "family" is vague because it has "no generally understood definition, either in common parlance or in the law." In support of this argument, he relies on dictionary definitions that refer to the "traditional[]" social unit of two parents and their children, as well as any social units "regarded as equivalent." (Merriam-Webster Dict. Online (2022) <https://www.merriam-webster.com/dictionary/family> [as of May 9, 2022], archived at <https://perma.cc/7CAH-4M5C>.) The minor also observes that various code sections have different definitions for family member (Gov. Code, § 22775), immediate family (Pen. Code, §§ 422.4, subd. (b)(3), 646.9, subd. (l), 16720, subds. (a) & (b); Lab. Code, § 230.2, subd. (a)(1)), and relative (Welf. & Inst. Code, § 319, subd. (h)(2)) although he does not contend that any of these statutory definitions are applicable to his probation condition. The minor requests that the probation condition be stricken, and that the matter be remanded to the juvenile court for clarification.
The Attorney General contends that family in its "broadest and common understanding" means all people related by blood or marriage, including a guardian, but not roommates. The Attorney General argues that although the term may include a large number of people, such as grandparents or third cousins, this does not make it unconstitutionally vague because only reasonable specificity is required. Further, the condition requires the minor's knowledge of the familial relationship which eliminates the possibility of an unknowing violation on his part.
We agree with the Attorney General that the term family in its broadest form is commonly understood to mean individuals related by blood, marriage, or operation of law (such as a guardian or by adoption), but not roommates. (See Oxford English Dict. Online (3d ed. 2021) <https://www.oed.com/view/Entry/67975?redirectedFrom=family#eid> [as of May 9, 2022], archived at <https://perma.cc/HR9U-B4X7> [defining "family" as including "[i]n wider sense: any group of people connected by blood, marriage, adoption, etc."]; Merriam-Webster Dict. Online (2022) <https://www.merriam-webster.com/dictionary/family> [as of May 9, 2022], archived at <https://perma.cc/Z5EV-YPWF> ["a group of persons of common ancestry"].) Given this reasonable and practical construction, the probation condition is sufficiently specific. The condition also requires that the minor know that the person is a member of the victim's family. No further clarification of the probation condition is required.
b. overbreadth
The minor also contends that condition No. 16, which prohibits contact with Jane Doe 1's family, is overbroad. He argues that he and Doe 1 are "part of each other's family, " and that the condition prevents him from associating with his close family members. As reflected in the probation officer's report, the minor lives with his sister, his mother, and his stepfather, who is Doe 1's father. Several probation conditions require the minor to be at home unless specified requirements are met. The minor contends, however, that he would be in violation of condition No. 16 prohibiting contact with Doe 1's family if he lived with his mother and his stepfather, who is Doe 1's father. The minor requests that condition be stricken, and that the matter be remanded to the juvenile court to modify the condition to permit association with his own close family members, even if that person is a family member of Doe 1. To the extent he forfeited this claim by failing to raise it below, the minor contends that his trial counsel below rendered ineffective assistance of counsel.
Other conditions requiring or assuming that the minor will remain at home include the following conditions: "7. You are not to spend the night away from home without prior permission of your Probation Officer"; "8. You are not to change your place of residence from Monterey County or leave this state without permission of the Court or Probation Officer. Prior to change of residence, you are to notify your Probation Officer of the new address. Report each new address and phone number to your Probation Officer within 24 hours. Nothing in this provision shall prohibit minor's parents from changing their residence without prior approval of the Court or Probation Officer"; "9. . . . If you are not in school that day for any reason, including illness or suspension, you are not to leave your home unless it is for a doctor's appointment, or you receive advance permission from your Probation Officer"; "23. You are not to be out of your home between the hours of 9:00 p.m. and 6:00 a.m. on Sunday through Thursday; 10:00 pm. and 6:00 a.m. on Friday and Saturday, unless accompanied by your mother/father or legal guardian(s), without approval of your Probation Officer"; and "24. Until you reach the age of 18, you must reside only with your parents or approved guardian, unless specifically authorized to do so otherwise by your Probation Officer."
The Attorney General contends that the claim has been forfeited by the minor's failure to object below, but concedes that the minor's trial counsel rendered ineffective assistance by failing to object. The Attorney General also agrees that the matter should be remanded to the juvenile court to impose an appropriately tailored condition regarding the minor's contact with Doe 1's family.
We find the Attorney General's concession appropriate.
A defect in a probation condition that is "correctable only by examining factual findings in the record or remanding to the trial court for further findings" is subject to forfeiture if the claim was not raised in the trial court. (Sheena K., supra, 40 Cal.4th at p. 887.) The minor's overbreadth claim regarding the probation condition prohibiting contact with Doe 1's family has been forfeited, and therefore we turn to whether he has established ineffective assistance of counsel based on his counsel's failure to object below.
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
In this case, there does not appear to be a satisfactory explanation for why the minor's trial counsel did not object to the condition prohibiting the minor's contact with Doe 1's family in view of their blended family. The record reflects that the minor's trial counsel was aware of the probation officer's recommended probation conditions, which included the condition at issue, and that counsel was aware of the blended family regarding the minor and Doe 1, based on the probation officer's report and the evidence presented at the jurisdictional hearing. There does not appear to be a satisfactory explanation for why the minor's trial counsel did not object below, and there is a reasonable probability that the court would have modified the condition had counsel objected. (See Lopez, supra, 42 Cal.4th at p. 966 [ineffective assistance of counsel standard].)
On this latter point, we agree with the Attorney General that condition No. 16 must be modified. The other conditions requiring the minor to remain at home, where his mother and his stepfather, who is Doe 1's father, also live, conflict with condition No. 16 requiring the minor to have no contact with Doe 1's family. We also observe that, according to the probation officer's report, Doe 1 moved out of the county with her mother. We will remand the matter so that the juvenile court may appropriately tailor the condition in relation to the minor having contact with his close family members with whom he resides, including his mother, sister, and stepfather, who is Doe 1's father.
3. Condition prohibiting contact with Doe 2's family (No. 17)
Probation condition No. 17 states: "You are not to have direct or indirect contact with Jane Doe 2 or anyone known to you to be a member of the victim's family in any way, including, but not limited to, in person, by telephone, by texting, in writing, by public or private mail, by email or fax, or through a third party, or by any other electronic means. Stay at least 100 yards away from the victim, victim's residence, vehicle, school, and place of employment as known to you." (Italics added.)
This probation condition prohibiting contact with Doe 2's family is identical to probation condition No. 16, which prohibits contact with Doe 1's family. As with condition No. 16, the minor contends that condition No. 17 is vague with respect to the term "family" and requests that the condition be stricken and remanded for clarification. For the reasons we have set forth above, we reject the minor's contention and determine that no clarification of the condition is required.
4. No pornography condition (No. 25)
Probation condition No. 25 states: "You shall not knowingly possess or view any pornographic materials."
a. vagueness
The minor contends that the term "pornography" has "no legally defined meaning," and that the term is unconstitutionally vague. He requests that the condition be stricken, and that the matter be remanded to the juvenile court to revise the condition.
The Attorney General concedes that the term "pornographic" is vague. The Attorney General requests that this court amend the language or remand the matter to the juvenile court.
In reply, the minor contends that the matter should be remanded so that the juvenile court may "exercise its discretion in setting the contours of the condition."
We agree with the parties that the probation condition is unconstitutionally vague and requires modification. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1353 [no-pornography condition was unconstitutionally vague because it relied on an "inherently subjective standard" regarding what items were prohibited]; In re D.H. (2016) 4 Cal.App.5th 722, 727 [no-pornography condition was unconstitutionally vague].) We will strike the condition and remand the matter to the juvenile court to determine an appropriate condition.
b. overbreadth
The minor further contends that the no-pornography condition is unconstitutionally overbroad. In light of our remand on vagueness grounds, we need not address the minor's overbreadth claim.
5. Electronic devices search condition (No. 27)
Probation condition No. 27 states: "Submit all electronic devices under your control to a search by the probation officer or a peace officer, of any text messages, voicemail messages, call logs, photographs, e-mail accounts, internet sites and social media accounts, with or without reasonable or probable cause or the benefit of a search warrant, at any time of the day or night and provide the probation or peace officer with any passwords necessary to access the information specified, and you will not change or add any email addresses or passwords without prior permission of your Probation Officer. The minor shall not knowingly clean or delete his/her Internet browsing history without prior permission from your Probation Officer."
The minor contends that the electronic devices search condition is unreasonable under Lent, supra, 15 Cal.3d 481, and unconstitutionally overbroad. He also argues that his trial counsel rendered ineffective assistance by failing to object to the condition. We first consider the minor's Lent challenge before considering his overbreadth claim.
a. Lent challenge
The minor contends that the electronic devices search condition is unreasonable under Lent because his offenses did not involve an electronic device or social media, and the condition is not reasonably related to future criminality. He argues that the condition should be stricken in its entirety. The minor also argues that his trial counsel rendered ineffective assistance by failing to object to the condition below.
The Attorney General contends that the minor cannot establish ineffective assistance of counsel because the Lent challenge lacks merit and there may have been a tactical reason for not objecting.
The failure to challenge the reasonableness of a probation condition under Lent in the trial court forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 230, 237 (Welch).) Because the minor forfeited his claim by failing to object to the condition below, we turn to whether the minor has established ineffective assistance of counsel based on his trial counsel's failure to object.
In ordering a ward under its jurisdiction to probation, the juvenile court" 'may impose and require any and all reasonable 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.' . . . 'A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.' [Citation.] On appeal, we' "review conditions of probation for abuse of discretion."' [Citation.] Specifically, we review a probation condition 'for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' [Citation.]" (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).)
Under the Lent test," '[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."' [Citations.] The Lent test 'is conjunctive-all three prongs must be satisfied before a reviewing court will invalidate a probation term.' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1118.) Regarding the third prong, whether the probation condition is reasonably related to future criminality, there must be "more than just an abstract or hypothetical relationship," and there must be "a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at pp. 1121, 1122.)
In this case, the juvenile court stated the following regarding its basis for imposing the electronic devices search condition: "[T]he Court is imposing the term number 27, which is an electronic search waiver. And the Court notes that there was no objection, but I do want to place, on the record, the reasons that the Court is imposing that term. [¶] The Court notes that there are a number of stay-away orders, and with regard to the Jane Does, I think that there was testimony regarding texting that had occurred between you and at least one of the Jane Does, during the course of your relationship, in terms of how you were able to coordinate getting from your house to her house, or what have you. The Court also notes that, in this particular time of Covid, most people are communicating even more, electronically, than they did in the past, because we don't have other options available to us, given the social distancing requirements. Also, given some of the information that was disclosed in the JSORT report, I do think it is appropriate to impose that particular condition. So that will be the Court's order."
On appeal, the minor contends that the facts recited by the juvenile court are not supported by the record. He argues that that there was "no testimony that [he] and Doe [2] texted to coordinate their meeting." He observes that there was testimony that Doe 2 had recently texted him, but that he had ignored the text. The minor also argues that he is "unaware of any information in the JSORT report which references his use of electronic devices . . . but for the bare statement that he was 'accessing pornography' three to four times a week. . . . The report does not indicate how [he] 'accessed' the materials," and the "JSORT report itself did not recommend the imposition of an electronic search condition." Based on this factual record, the minor contends that all three prongs of the Lent test are met: (1) his offenses did not involve the use of an electronic device, social media, "or any other instrumentality that could be discovered via an electronic search"; (2) the search condition relates to conduct which itself is not criminal; and (3) the condition is not reasonably related to deterring future criminality.
We determine that the minor cannot establish ineffective assistance of counsel because there may be a"' "satisfactory explanation" '" for counsel's failure to object to the condition. (Lopez, supra, 42 Cal.4th at p. 966.) Although there was no direct evidence at the jurisdictional hearing that the minor and Doe 2 texted in order to arrange or facilitate their late-night activity, there was evidence that they each used electronic devices to communicate. Specifically, there was evidence that each of them monitored the other's social media accounts while they were dating, and that the minor used social media to contact other people. Given their middle-of-the-night encounters, the juvenile court could reasonably infer that the minor was using an electronic device to arrange or otherwise facilitate these meetings. Further, at the time of the disposition hearing, the court knew that the minor had been "access[ing] pornography" although his mother and stepfather believed that the minor did not "access" it as their children's "chrome books and phones are monitored."
Even assuming this record was not conclusive in establishing that the minor used an electronic device to access pornography or used an electronic device to facilitate his offense involving late-night sexual activity with Doe 2, his trial counsel may well have been aware of information leading to these conclusions. If counsel had objected to the electronic devices search condition below, further inquiry by the juvenile court may have only confirmed the inferences that the court had drawn from the record. For example, Doe 2 was present at the dispositional hearing and might have confirmed the minor's use of an electronic device in connection with their late-night sexual activity. Under these circumstances, the minor's trial counsel might have reasonably concluded that there was a sufficient factual basis under the Lent test for the juvenile court to conclude that his offense with Doe 2 involved the use of an electronic device, and that the electronic devices search condition was reasonably related to future criminality.
Further, at the disposition hearing, the juvenile court observed that "sometimes youth are doing things, especially as teenagers, that parents aren't aware of." After the court expressed its belief that "13 years old is awfully young to be engaging in the activities that were being engaged in," the court stated that it did not believe that the minor's parents "were fully aware of that situation, and that just illustrates that sometimes parents don't know everything their children are doing, at that age." Based on the court's statements, and in view of the minor's access to multiple electronic devices, his ability to use those devices to meet with Doe 2 late at night and to access pornography, his pattern of sneaking out of the house late at night, his admitted regular use of marijuana, a recognition by the court that the pandemic had led people to rely on electronic devices for communication even more, and the minor's parents' lack of success in monitoring him to date, counsel may have determined that raising an objection to the electronic devices search condition might well cause the court to reconsider its decision of probation instead of a more restrictive placement. (See Welch, supra, 5 Cal.4th at p. 237 [observing that there may be "cases in which the court, having legitimate concerns about the defendant's suitability, considers it necessary to condition the grant of probation on one or more terms the defendant finds unreasonable"].) Consequently, in view of the record, the minor fails to demonstrate that his trial counsel's failure to object to the electronic devices search condition fell below an objective standard of reasonableness, or that there is a reasonable probability that the court would have modified or stricken the condition, while still allowing the minor to remain on probation, had counsel objected to the condition. (See Lopez, 42 Cal.4th at p. 966.)
b. overbreadth
The minor also contends that the electronic devices search condition is unconstitutionally overbroad. To the extent his objection has been forfeited by failing to raise it below, the minor contends his trial counsel rendered ineffective assistance of counsel.
The Attorney General contends that the objection has been forfeited, and that the minor has not shown that trial counsel rendered ineffective assistance of counsel.
"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890; accord, Ricardo P., supra, 7 Cal.5th at p. 1118.) A restriction is unconstitutionally overbroad if it "(1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "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." (Ibid.)
A defendant may raise for the first time on appeal a facial constitutional defect in a probation condition if the claim involves"' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citations.]'" (Sheena K., supra, 40 Cal.4th at p. 889; see also id. at p. 887; accord, People v. Moran (2016) 1 Cal.5th 398, 403, fn. 5.) A facial constitutional challenge to the "phrasing or language of a probation condition . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts-a task that is well suited to the role of an appellate court." (Sheena K., supra, at p. 885.)
In contrast, a constitutional defect that is "correctable only by examining factual findings in the record or remanding to the trial court for further findings" is subject to forfeiture if the claim was not raised in the trial court. (Sheena K., supra, 40 Cal.4th at p. 887.) In other words, not" 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Id. at p. 889.)
In contending that the condition is unconstitutionally overbroad, the minor argues that "the breadth of the condition imposed here far exceeds the juvenile court's stated reasons for its imposition: to ensure that minor complies with the stay-away orders from Does [1] and [2]. . . . The condition makes no effort to limit its burdens to those which are necessary to enforce compliance with the no-contact orders. Quite the contrary. The condition is sweeping in its scope and allows law enforcement unfettered access to minor's photographs, internet search history, medical records, bank records, and confidential communications with counselors, lawyers, and clergy, among other things. The condition also lacks any temporal limitations, permitting officers to review the entire universe of minor's digital information, past, present, and future, including that which predated the imposition of the probation no-contact orders. As imposed, [c]ondition [No.] 27 is broader than constitutionally permissible and must be stricken or modified to be closely tailored to its stated objective"
The minor's overbreadth argument is based on the particular facts of his case. As his claim does not present a pure question of law that can be resolved without reference to the particular record developed in the juvenile court or remanding for further factual findings, he forfeited the claim by failing to raise it below. (Sheena K., supra, 40 Cal.4th at pp. 887-889; People v. Smith (2017) 8 Cal.App.5th 977, 987 [overbreadth claim to cell phone and computer probation search condition forfeited, where the claim was not raised below and depended on the record developed in the trial court]; People v. Guzman (2018) 23 Cal.App.5th 53, 63, fn. 3 [overbreadth claim to electronic search condition was forfeited, where it was not raised below and "depend[ed] instead on factual circumstances that were not addressed by the trial court"]; cf. Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 ["A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual"].)
We further determine that the minor cannot establish ineffective assistance of counsel because there may be a"' "satisfactory explanation" '" for trial counsel's failure to object to the condition. (Lopez, supra, 42 Cal.4th at p. 966.) As we have explained regarding trial counsel's failure to object on Lent grounds, counsel may likewise have determined that raising an overbreadth objection to the electronic devices search condition might well have caused the juvenile court to reconsider its decision of probation instead of a more restrictive placement. Consequently, in view of the record, the minor fails to demonstrate that his trial counsel's failure to object to the electronic devices search condition fell below an objective standard of reasonableness, or that there is a reasonable probability that the court would have modified or stricken the condition, while still allowing the minor to remain on probation, had counsel objected to the condition. (See Lopez, 42 Cal.4th at p. 966.)
IV. DISPOSITION
The dispositional order of September 9, 2020, is reversed. The matter is remanded to the juvenile court with directions:
(a) to strike the condition prohibiting contact with Jane Doe 1's family (condition No. 16) and to consider whether to impose a more tailored condition regarding the minor having contact with his close family members with whom he resides, including his mother, sister, and stepfather, who is Doe 1's father; and
(b) to strike the condition prohibiting possession of pornography (condition No. 25) and to consider whether to impose a condition more specifically describing the prohibited materials.
WE CONCUR: ELIA, ACTING P.J. WILSON, J.