Opinion
A151611
12-28-2017
In re JUAN V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JUAN V., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00191)
After Juan V. pleaded no contest to a misdemeanor charge of unlawfully driving or taking a vehicle, he was adjudged a ward of the court under Welfare and Institutions Code section 602, and the juvenile court imposed various conditions of probation. In view of Juan's admitted association with Sureño gang members and his recognition that it would be hard for him to dissociate himself from the gang lifestyle, the juvenile court imposed gang conditions. In this appeal, Juan challenges the electronics search condition that the juvenile court imposed in light of the gang conditions, arguing that it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. We will affirm.
Further undesignated references are to the Welfare and Institutions Code.
Our Supreme Court has accepted review of several cases that address the reasonableness and constitutionality of electronics search conditions. (See, e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.)
FACTUAL AND PROCEDURAL BACKGROUND
We draw our brief statement of the facts from the report and recommendation prepared by the probation department. A police officer on patrol just before three in the morning noticed a car "swerving between solid white lines." The officer made a traffic stop, and determined that the vehicle had been stolen. The driver was Juan, who was then 14 years old. He was detained, along with two passengers. A third passenger fled on foot and was never captured or identified. A search of the vehicle revealed that it was operating without a key in the ignition, the stereo had been pulled out, and several wires appeared to be damaged. The officer was familiar with Juan from prior contacts in which Juan was associating with Sureño gang members. Juan later reported that he had been associating with Sureño gang members for two years, but denied being a gang member. Juan had a three-dot tattoo, often wears blue, and was wearing a blue rosary when he was arrested, all indicative of Sureño ties. Juan's mother believed he was "deeply involved" with the Sureños and that his older brother had influenced Juan to associate with the gang. When asked by the probation officer whether he wanted to disassociate himself from gang members or the gang lifestyle, Juan replied, "I have known them for a long time. It would be hard."
The district attorney filed a wardship petition under section 602, alleging that Juan committed a felony violation of Vehicle Code section 10851, subdivision (a), theft or unauthorized use of a vehicle. Based on an agreement between the parties, the allegation in the petition was amended to a misdemeanor and Juan entered a no contest plea.
At the disposition hearing, Juan was adjudged a ward of the court. The court ordered him to be detained at juvenile hall pending delivery to a court-approved home or institution, and imposed various conditions of probation, including certain gang conditions. In addition to prohibiting Juan from associating with gang members, participating in gang activities and possessing or wearing gang insignia, the court ordered that he not post or transmit any gang-related symbols or information on social media. The court then imposed what we will call the "electronics search" condition: "In light of the gang conditions and to ensure compliance with these probation conditions, you must submit your cell phone or other electronic devices under your control to a search of any medium of communication reasonably likely to reveal whether you are complying with the terms of your probation with or without a search warrant at any time of day or night. Such media of communication includes texts messages, voicemail messages, photographs and e-mail accounts."
In their entirety, the gang conditions are as follows: "You shall not knowingly associate with anyone that you know to be a gang member or associated with a gang or anyone the probation officer informs you to be a gang member or associated with a gang. You shall not knowingly participate in any gang activity and shall not visit or remain in any specific location known to you to be or that the probation officer informs you to be an area of gang-related activity. You shall not knowingly possess display or wear any insignia, articles of clothing, hats, caps, jackets, shoes, belts, flags, scarves, bandanas, shirts, logos, emblems, badges, buttons, music, photographs, pictures, drawings, images, lyrics, symbols, colors, numbers, monikers, patterns or brands, nor display any gang signs or gestures that you know to be or that the probation officer informs you to be gang related. [¶] You shall not obtain any new tattoos that you know to be, or that the probation officer informs you to be gang related. You shall not knowingly post, display or transmit on any social media networking site or transmit via any electronic means, including all electronic communication devices, whether it's yours or someone else's, any symbols, graffiti, pictures, photos, drawings, lyrics, symbols, images, hand signs or gestures, or other items of information that you know to be or the probation officer informs you to be gang related unless for use of [sic] part of a court order or school related educational paper or other research for educational purposes which has been approved of by the probation officer. [¶] For purposes of these probation conditions, gang and gang related means criminal street gang as defined in Penal Code Section 186.22(f)." (Emphasis added.) --------
Juan's counsel objected "overall to the gang terms and especially" to the condition that he not post or transmit gang-related information. She argued that "the incident itself doesn't seem like it was gang related in any way," and that the conditions were "overly broad, given the situation that we have here." She also objected to the electronics search condition. On appeal, however, Juan challenges only the electronics search condition.
DISCUSSION
A. Applicable Law and Standard of Review
We summarized some of the relevant legal principles in In re Edward B. (2017) 10 Cal.App.5th 1228 (Edward B.): "The juvenile court is authorized to '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.' (§ 730, subd. (b).) We review the juvenile court's probation conditions for abuse of discretion. (In re P.A. (2012) 211 Cal.App.4th 23, 33.)
"Well-established principles guide our review. ' "The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents" [citation], thereby occupying a "unique role . . . in caring for the minor's well being." [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. "[E]ven where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.' " [Citation.] . . . Thus, " 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " [Citations.]' (In re Victor L. (2010 182 Cal.App.4th 902, 910 (Victor L.).)
"The juvenile court's discretion in imposing conditions of probation is broad but not unlimited. (In re D.G. (2010) 187 Cal.App.4th 47, 52 (D.G.).) Our Supreme Court has stated criteria for assessing the validity of a probation condition: Upon review, '[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[.]" ' (Lent, supra, 15 Cal.3d at p. 486.) 'Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.' " (Ibid.) Adult and juvenile probation conditions are reviewed under the Lent criteria. (D.G., supra, 187 Cal.App.4th at p. 52.) A condition that would be improper for an adult is permissible for a juvenile only if it is tailored specifically to meet the needs of the juvenile. (Id. at p. 53.) In determining reasonableness, courts look to the juvenile's offenses and social history. (Ibid.)" (Edward B., supra, 10 Cal.App.5th at pp. 1232-1233.)
The Lent reasonableness standard is not the only limit on the juvenile court's discretion. Probation conditions are subject to constitutional challenges on the grounds of overbreadth. A probation condition 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.' (Victor L., supra, 182 Cal.App.4th at p. 910.)" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).) "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.) Although we generally review probation conditions for abuse of discretion, we review constitutional challenges to a probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) B. Analysis
1. The Electronics Search Condition Is Reasonable Under Lent
The use of a cell phone or other electronic device is not in itself unlawful, and we agree with the parties that the electronics search condition is not directly related to Juan's offense. (See In re Erica R. (2015) 240 Cal.App.4th 907, 912-913 (Erica R.) [where nothing in petitions or record connects use of electronic devices to offending conduct, no relationship between condition and offense].) Therefore, under Lent, the electronics search condition is valid only if it is reasonably related to Juan's potential future criminality. (Lent, supra, 15 Cal.3d at p. 486.) "Generally speaking, conditions of probation 'are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.' " (People v. Olguin (2008) 45 Cal.4th 375, 380, quoting Griffin v. Wisconsin (1987) 483 U.S. 868, 875.) A condition that is reasonably related to the supervision of a probationer and his rehabilitation is reasonably related to potential future criminality. (People v. Olguin, supra, 45 Cal.4th at pp. 380-381.)
Where gang affiliation is a concern, juvenile courts routinely impose probation conditions prohibiting the knowing display of gang insignia and paraphernalia. (See, e.g., In re Vincent G. (2008) 162 Cal.App.4th 238, 245-246.) Such display is a means of communicating one's gang affiliation, which in this day and age can easily be communicated electronically. So, in response to Juan's admitted association with gang members, the juvenile court imposed several probation conditions that specifically addressed gang affiliation, including the conditions that Juan not post gang-related information on any social media networking site or transmit gang-related information by any electronic means. The juvenile court explained that it imposed the electronics search condition "in light of" and "to ensure compliance with" the gang conditions.
Here, the juvenile court acted within its discretion in imposing the electronics search condition as a means of supervising Juan and monitoring his compliance with the gang conditions. (See In re P.O. (2016) 246 Cal.App.4th 288, 295 (P.O.) [upholding as reasonable an electronics search condition that enables effective supervision of minor's compliance with other probation conditions]; In re J.E. (2016) 1 Cal.App.5th 795, 801, review granted Oct. 12, 2016, S236628 [juvenile court acts within its discretion in imposing electronics search condition "as a means of effectively supervising Minor for his compliance with . . . his undisputed probation conditions"].) Without an electronics search condition, how could the probation department effectively monitor Juan's compliance with the conditions that prohibit him from electronically posting and transmitting gang-related information?
Juan's argument that we should strike the electronics condition relies on two cases that are inapposite. Neither Erica R., supra, 240 Cal.App.4th 907 nor In re J.B. (2015) 242 Cal.App.4th 749 addressed the reasonableness of using an electronics search condition to monitor compliance with gang conditions by a juvenile who, like Juan, admitted that he had been associating with gang members for years and that it would be difficult for him to disassociate himself from gang members and lifestyle.
Juan's reliance on Erica R. is particularly misplaced. In Erica R., this court struck as unreasonable an electronics condition that was unrelated to the juvenile's offense or to a risk of future criminal conduct. (Erica R., supra, 240 Cal.App.4th at pp. 909-910.) We wrote in Erica R. that our holding was "narrow" and that "there can be cases where, based on a defendant's history and circumstances an electronic search condition bears a reasonable connection to the risk of future criminality." (Id. at p. 914.) This is just such a case, and we easily conclude the electronics search condition here is valid under Lent.
2. The Electronics Search Condition Is Not Overbroad
Juan argues that the electronics search condition is overbroad because it is "not narrowly tailored and reasonably related to [his] rehabilitation." We are not persuaded.
To begin, Juan mischaracterizes the condition imposed by the juvenile court when he claims that the language of the condition "makes no reference to gang or otherwise criminal activity." In making his argument, Juan quotes the condition selectively, omitting the language we italicize here, which ties the condition to gang activity and his rehabilitation: "In light of the gang conditions and to ensure compliance with these probation conditions, you must submit your cell phone or other electronic devices under your control to a search of any medium of communication reasonably likely to reveal whether you are complying with the terms of your probation with or without a search warrant at any time of day or night. Such media of communication includes text messages voicemail messages, photographs, and e-mail accounts." The electronics search condition is not overbroad: it is directly related to the gang conditions that the juvenile court imposed to foster Juan's rehabilitation in response to his history of associating with gang members and identifying with the Sureños. (See E.O., supra, 188 Cal.App.4th at p. 1152.)
Juan relies on In re Malik J. (2015) 240 Cal.App.4th 896 to argue that the electronics search condition is overbroad because "the threat of unfettered searches of [his] electronic communications significantly encroaches on his and potentially third parties' constitutional rights of privacy and free speech." (Id. at p. 902.) Here, however, the searches authorized by the electronics search condition are far more limited than the searches that were determined to be overbroad in Malik J. In Malik J., an electronics search condition was justified by the minor's history of robbing people of their cell phones and his claim that he did not himself own a cell phone. (Ibid.) The Court of Appeal concluded that a probation condition that would permit a probation or police officer to check a phone to determine whether it had been stolen was permissible under the circumstances (ibid.), but the condition imposed by the juvenile court was impermissibly overbroad because it required Malik J. and his family to "provide all passwords to any electronic devices . . . within your custody and control, and submit to search of devices at any time . . . . And also provide any passwords to any social media sites . . . ." (Id. at pp. 900, 903-906.) Here, by contrast, the searches are limited to electronic devices under Juan's control and to media of communication that are reasonably likely to provide information about Juan's compliance with the probation conditions that prohibit him from posting, displaying or transmitting gang-related information on any social networking site and from transmitting gang-related information by any electronic means. Nothing in Malik J. suggests that a search condition that allows access to text messages, voicemail messages, photographs and e-mail accounts is overbroad in the context of Juan's admitted association with gang members and the juvenile court's resulting imposition of gang conditions.
Juan claims that the condition as imposed by the juvenile court "gives authorities access to vast amounts of data, much of which could have nothing to do with illegal activity." The case on which he relies for that argument, People v. Appleton (2016) 245 Cal.App.4th 717, 727, does not help him. In Appleton, the challenged probation condition made all Appleton's electronic devices subject to a warrantless search for material prohibited by law. (Id. at pp. 723-724.) The Court of Appeal concluded that the condition was overbroad, and noted that the overbreadth could be cured by imposing a narrower condition requiring defendant to "provide his social media accounts and passwords to his probation officer for monitoring." (Id. at p. 727.) Here, the condition imposed on Juan, like the condition suggested by the Court of Appeal in Appleton, is limited to particular media of communication.
Juan's reliance on P.O., supra, 246 Cal.App.4th 288, to support his overbreadth argument is similarly misplaced, because the condition that Juan challenges is similar to the modified condition that the Court of Appeal imposed in P.O. In P.O., the minor admitted an allegation of misdemeanor disorderly conduct based on public intoxication. (Id. at p. 292.) The juvenile court imposed a probation condition requiring him to " '[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer of peace office[r] with or without a search warrant at any time of day or night.' " (Ibid.) The juvenile court explained that the electronics search condition was necessary to supervise the substantive drug conditions of probation that it had imposed. (Id. at p. 293.) The Court of Appeal concluded that the condition, though reasonable under Lent, was overbroad because even though the condition was intended to monitor P.O's involvement with drugs, the condition did not limit the types of data that could be searched and therefore "permit[ted] review of all sorts of private information that is highly unlikely to shed any light on whether P.O. is complying with the other conditions of his probation, drug-related or otherwise." (Id. at p. 298.) The Court of Appeal held that "the condition must be modified to limit . . . searches . . . to media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs" (ibid.), and modified it so that it required him to submit electronic devices " 'to a search of any medium of communication reasonably likely to reveal whether you are boasting about your drug use or otherwise involved with drugs . . . . Such media of communication include text messages, voicemail messages, photographs, e-mail accounts, and social media accounts.' " (Id. at p. 300.)
Relying on P.O., Juan asks us to modify the condition "to specify that [electronic] searches must be 'reasonably likely to reveal' evidence that Juan was in violation of his gang terms of probation." This we will not do. The electronics search condition is sufficiently limited to media of communication (including text messages, voicemail, photographs and email) that in the digital age common sense tells us are the places reasonably likely to reveal the gang symbols, graffiti, pictures, photos, drawings, lyrics, images, hand signs or other gang-related indicia that so concerned the superior court. The condition as imposed is not overbroad.
DISPOSITION
The order appealed from is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.