Opinion
A152106 A152756
09-11-2018
In re T.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.G., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J17-00589)
T.G. (Minor) pleaded no contest to allegations in a petition filed under Welfare and Institutions Code section 602 that she committed misdemeanor battery and misdemeanor vandalism. At disposition, she was adjudged a ward of the court and placed on probation subject to a condition that allowed searches of her electronic devices for text and voicemail messages, photographs and email accounts, but not web sites, Internet sites or social media sites. On appeal, Minor challenges the search condition as unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. We conclude she has forfeited her challenges, and therefore we shall affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise stated.
Our Supreme Court has accepted review of several cases that address the reasonableness and constitutionality of electronic 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
A Battery and Vandalism
In the early afternoon of May 14, 2017, Minor, then 17 years old, and her father were arguing about Minor smoking marijuana on the porch of their house. Minor's father "hit" a marijuana cigarette from Minor's hand. Minor became angry, and a fight developed in which Minor punched her father and her mother. At some point, Minor struck her father with a barbecue lid and a cordless electric weed trimmer about four feet long. Minor then used the barbecue lid, the weed trimmer, and a plastic chair to damage three of her parents' vehicles. Before the police arrived, she attempted to damage a fourth.
We draw our summary of the underlying events from the probation department's report.
The district attorney filed a juvenile wardship petition alleging that Minor committed felony assault on her father with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1); felony assault on her mother by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 2); felony vandalism on her parents' cars (Pen. Code, § 594, subd. (b)(1), counts 3-5), and misdemeanor resisting an executive officer (Pen. Code, § 69, count 6). At the jurisdiction hearing, all six counts were dismissed in exchange for Minor's plea of no contest to added charges of misdemeanor battery (Pen. Code, §§ 242, 243, count 7) and misdemeanor vandalism (Pen. Code, § 594, subd. (b)(1), count 8). B. Disposition Report
The probation department's report and recommendation stated that Minor graduated from high school at the end of the 2016-2017 academic year with a cumulative GPA of 2.08. During that academic year, she had 34 full days of unexcused absences.
Minor told the department that she started drinking alcohol in the eleventh grade, and said she drank only on special occasions and never consumed more than a few shots because she did not want to get "full drunk." She began smoking marijuana in seventh grade, and by tenth grade she was smoking marijuana every day, which continued until the events of May 14, 2017. She reported that marijuana helped calm her, but admitted that smoking marijuana the night before May 14 might have clouded her judgment. Minor's parents told the department that they were aware of her marijuana use, and suspected that she was also popping pills, drinking "syrup," and, because they had found alcohol in her room, drinking alcohol.
Minor's parents expressed concern about her pattern of stealing, and reported that Minor had been cited numerous times for shoplifting and they had seen her with articles of clothing she could not have purchased. They also reported that Minor had run away from home in February 2017, that they discovered she went to Las Vegas, and they suspected she was being exploited. They expressed fear that in just a few months, after minor turned 18, she would leave home.
The department reported that the police had documented two runaway incidents involving Minor going to Las Vegas, both in February 2017. The police determined that Minor had posted prostitution ads on websites known for prostitution, and that the phone number used in one of her ads matched another ad that included unrelated people; the police noted this could indicate that Minor was involved in a trafficking ring. Minor was interviewed by police upon her second return from Las Vegas, but she refused to cooperate.
Minor had been referred to the probation department on four previous occasions since October 2015, though this was her first sustained offense. The prior referrals included allegations of battery, fighting, petty theft, possession of stun gun, possession of over one ounce of marijuana, and driving without a license. In addition, allegations that Minor committed felony second degree burglary and misdemeanor burglary were pending in a wardship petition that was filed in Marin County just a few days before the May 14, 2017 incident.
The department reported that Minor was at high risk for reoffense, and expressed concern about her pattern of marijuana and alcohol use, her aggressive pattern of behavior, and the possibility that she is involved in a trafficking ring. Among other things, the probation department recommended that the juvenile court impose a search condition covering Minor's electronic devices as a means of addressing Minor's risk of further victimization and exploitation, in view of records indicating there were pictures, videos and ads of Minor engaging in prostitution on website and social media sites. The condition recommended by the department, numbered "13" stated: "Submit all electronic devices under your control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts, with or without 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." C. Disposition Hearing
At the disposition hearing on June 22, 2017, Minor's counsel stated that she had an objection to the electronic search condition, saying: "I do have an objection to line 13, so I would object to that Recommendation 13." After those present had addressed the court, the judge asked counsel and the probation officer to join her in chambers.
Upon returning to the courtroom, the judge said to Minor, "I'm worried about you. I'm worried about your going to Vegas. I'm worried about your being victimized by people who want to exploit you. [¶] . . . [¶] I want you to understand that you have been victimized and that you can take control of your life and do a lot with it without this type of controlling dangerous concern [sic]. So I am mindful that you are turning 18 [soon]."
Minor was adjudged a ward of the court with no termination date. Minor was placed on probation subject to various terms and conditions, including an electronic search condition that differed from the department's recommendation. The juvenile court explained: "[T]he reason why I am going to order that certain electronic devices of yours be subject to review is because of what is contained within this report. I do think that in order to make sure that you are not posting— . . . I don't know if I am using the right word or not, but if you are putting something on Backpage [a website identified in the probation report as one of the sites known for prostitution on which Minor had posted], . . . doing things of that nature related to what is addressed in this report, it's important that, number one, you not do that; but if you are doing it that there is some oversight and that it can be caught early. So I do think there is a sufficient connection. [¶] The word is 'nexus' regarding the concerns of what is addressed and what you have been doing in the past and to make sure that you perform well on probation, there is a clear nexus. . . . [¶] So regarding your electronic devices, I'm going to order you to submit your cellphone 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 the day or night. Such media of communication may include text messages, voice-mail messages, photographs and email accounts, but do not include web sites, Internet sites or social media sites." D. Probation Violation in August 2017
In August 2017, Minor's father reported that Minor left home without permission and returned two days later with major bruises, reportedly inflicted by her boyfriend. That same day she was seen on social media drinking alcohol. A notice of probation violation was filed, alleging that Minor left home without permission, failed to adhere to her curfew and was observed drinking alcohol. Minor admitted the alleged conduct and the violation was sustained.
In its dispositional report, the probation department recommended that wardship be continued, that Minor be released on 120 days home supervision, and that the prior terms and conditions of probation remain in effect, along with some additions. The department did not mention, or recommend any change to, the electronic search condition. At the disposition hearing on September 14, 2017, Minor's counsel argued that home supervision should be for 90 days and otherwise agreed with the department's recommendations. The juvenile court agreed with Minor's counsel, and released Minor to her parents for 90 days of home supervision on an ankle monitor. The court imposed the recommended additional probation terms and ordered the previous terms to remain in effect. Nothing was said at the hearing about the electronic search condition.
Minor timely appealed (appeal A152756), and we granted her unopposed motion to consolidate the two appeals.
Minor offers no arguments in connection with the second appeal. She acknowledges filing two notices of appeal, but says nothing about the reason for filing a second notice, and nothing about facts and circumstances of the probation violation, or the juvenile court's decision to continue its prior orders, which had the effect of leaving the electronic search condition in place. --------
DISCUSSION
A. Applicable Law and Standard of Review
We summarized some of the relevant law 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 juvenile court's discretion in imposing probation conditions is limited by constitutional principles as well as by the Lent reasonableness standard, and therefore probation conditions are subject to challenge for 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.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.), quoting Victor L., supra, 182 Cal.App.4th at p. 910.) "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." (E.O. at p. 1153.) Although we generally review probation conditions for abuse of discretion, we review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
As a general matter, a defendant forfeits a reasonableness challenge to a condition of probation when he or she fails to object on that ground in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 882, 883, fn. 4 (Sheena K.).) The forfeiture doctrine does not apply to the failure to raise a constitutional challenge if the challenge raises pure questions of law that can be resolved without reference to the sentencing record that was developed in the trial court. (Id. at p. 889.) B. Reasonableness
The Attorney General argues that Minor forfeited her reasonableness challenge to the electronic search condition by failing to raise the issue below. We agree. In the juvenile court, Minor's counsel simply stated at the first disposition hearing that she had an objection to "Recommendation 13," the electronic search condition as proposed by the department. She gave no grounds for the objection. Later in the hearing, the juvenile court imposed a different electronic search condition, one that excluded social media sites and was limited to media of communication reasonably likely to reveal whether Minor was complying with the terms of her probation. Minor's counsel made no objection to the condition that the juvenile court imposed. And she made no objection to the condition remaining in effect at the disposition hearing that was held on September 14, 2017, after her probation violation was sustained. Therefore, even if we were to construe the initial objection as challenging the reasonableness of the department's recommendation, nothing suggests that Minor ever objected to the condition that was actually imposed. Minor argues that, because Recommendation 13 and the condition imposed both "deal[ ] with electronic surveillance," Minor's objection to Recommendation 13 "should apply, rendering the claim reviewable on appeal." She offers no authority to support her argument, and we find it unpersuasive.
Even if we concluded that Minor had preserved her reasonableness challenge to the electronic search condition, we would not agree that the condition is invalid under Lent. True, the condition relates to electronic communication, which is not in itself criminal, and has no relationship to Minor's offenses of battery and vandalism offenses. (Lent, supra, 15 Cal.3d at p. 486.) But it is not invalid under Lent because under the circumstances here, where Minor had apparently been communicating with third parties about running away from home and advertising on prostitution web sites, the monitoring of Minor's electronic communication is reasonably related to deterring future criminality. (Ibid.; In re Walter P. (2009) 170 Cal.App.4th 95, 100 [juvenile court should consider minor's "entire social history" in fashioning conditions of probation].) More generally, considering the whole of Minor's social history, including the concerns expressed by her parents, we would conclude that the juvenile court here acted well within its discretion in imposing the electronic search condition as a way of supervising Minor's compliance with the other conditions of her probation, including a curfew and not using marijuana, illegal drugs, or alcohol. (See In re P.O. (2016) 246 Cal.App.4th 288, 298 [upholding as reasonable an electronic 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 electronic search condition "as a means of effectively supervising Minor for his compliance with his drug conditions, as well as the rest of his undisputed probation conditions"].) C. Overbreadth
The Attorney General argues that Minor has forfeited her overbreadth challenge to the electronic search condition because she failed to raise it below and because her claim that the condition is not adequately tailored to Minor's reformation and rehabilitation requires a review of the record. We agree. We have already addressed Minor's failure to challenge the search condition in the juvenile court. Accordingly, we consider only whether Minor's challenge raises pure questions of law that do not require reference to the record below, and conclude that it does not.
Minor contends that because the offense that brought her before the juvenile court did not involve the use of any electronic media or devices, there is no reason to impose any electronic search condition on Minor and such a condition is necessarily overbroad. Minor offers no authority to support her contention. Further, Minor points to no authority holding that a condition like the one imposed upon her is overbroad on its face. Minor concedes that the juvenile court imposed the search condition to reveal whether Minor was complying with the other terms of her probation or posting to web sites associated with prostitution, which would suggest involvement in trafficking. Any evaluation of whether or how the condition should have been more narrowly tailored would require us to consider the record, including particularly Minor's social history. Because evaluating the search condition for overbreadth requires a review of the record, and Minor failed to raise the issue in the juvenile court, she has forfeited her overbreadth challenge. (Sheena K., supra, 40 Cal.4th at p. 889.)
DISPOSITION
The orders appealed from are affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.