In re Esteban M. CA1/2 ( 2016 )

Filed 3/2/16 In re Esteban M. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re Esteban M., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A145285
ESTEBAN M.,
Defendant and Appellant. (Alameda County
Super. Ct. No. SJ1502457901)
Defendant Esteban M., then age 16, was the subject of a wardship petition filed by
the district attorney in March 2015 pursuant to Welfare and Institutions Code section 602,
subdivision (a).1 Pursuant to a plea agreement, Esteban admitted an allegation of
attempted robbery. He was adjudicated a ward of the juvenile court, which imposed
conditions of probation.
On appeal, Esteban raises two sets of issues: he claims that the juvenile court
erred in failing to make findings and orders regarding his educational needs, and he
objects to certain of the probation conditions as vague or overbroad. He objects to
conditions requiring him to “be of good conduct” and “attend school on a regular basis,”
a search condition that includes his “electronics and passwords,” and a drug condition
1
All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
1
that prohibits him from associating with users or dealers of “illegal or intoxicating
substances” and from possessing such substances or associated paraphernalia.
We conclude that Esteban has forfeited his claim of error as to educational
findings and orders by failing to raise the issue in the juvenile court. We will modify the
dispositional order of the juvenile court by striking the phrase “including electronics and
passwords” from the search condition, and we will remand the matter for the juvenile
court to consider a tailored electronics search condition. We will also modify the drug
condition, as we discuss below. In all other respects, we will affirm the dispositional
order of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
We draw our brief statement of the facts from reports prepared by the probation
and police departments. In late February 2015, a 14-year-old male (the victim) reported
to the police that he had been robbed of his skateboard twice by the same person, a 16
year old he knew only as “Esteban.”
The first incident took place the previous month at a skateboard park that Esteban
frequented. The victim said Esteban told him to give up his skateboard, or Esteban
would punch him; he gave up the skateboard. About a month later—the day before he
went to the police—the victim saw Esteban on BART with the stolen skateboard, went
home and told his father that Esteban would probably be at the skateboard park, and then
went to the park with his father. They did not see Esteban, but they found and retrieved
the skateboard.
The next day, the victim was riding the skateboard when he saw Esteban following
him. Although he tried to avoid Esteban, Esteban followed him, caught up with him,
grabbed him, and pushed him. The victim pushed back. Esteban then removed an object
from his waistband area and held it up in the air, at which point the victim feared for his
2
safety and backed away from Esteban, who took the skateboard and fled.2 Later that day,
the victim reported both incidents to the police and provided a description of Esteban.
In the subsequent police investigation, an officer obtained a photograph online,
“on ‘estabomb91’ Instagram,” showing someone who matched the victim’s description of
Esteban holding the stolen skateboard. The officer used the photo to create a flyer, which
he sent to various local law enforcement agencies. A police officer assigned to Esteban’s
school recognized Esteban in the photograph, and sent the investigating officer
photographs of Esteban and other students from the school. The victim identified
Esteban in a photo lineup, and on March 26, 2015, Esteban was detained and informed of
his Miranda rights, and admitted to the two incidents.
The district attorney filed a wardship petition pursuant to Welfare and Institutions
code section 602, subdivision (a), alleging two counts of robbery in violation of Penal
Code section 211. The petition alleged that Esteban used a deadly and dangerous
weapon, specifically a metal pipe, in connection with the first count. (Pen. Code,
§ 12022, subd. (b)(1).)
At the detention hearing on March 30, 2015, the district attorney’s petition was
amended to allege attempted robbery as the first count. Pursuant to a plea agreement,
Esteban admitted the allegation of attempted robbery, in exchange for the dismissal of the
second count and the weapons enhancement. The court ordered that Esteban remain
detained and scheduled a disposition hearing for April 14, 2015.
At the disposition hearing, the juvenile court observed: “Obviously, this is very
concerning, the way he has preyed on this victim over two years younger than him;
Robbing him, threatening to hit him with a type of deadly, dangerous weapon. [¶] I guess
I’m also concerned that he reported he received Cs and Bs for his last grading period.
But I looked at the transcript. It shows he has compiled a GPA of 1.74, which is a C
minus. In the fall he received two Fs, one D minus, two C minuses, and one C. I’m not
2
The victim identified the object as a short metal pipe. Esteban told the juvenile
court that the object was “a camera holder used to record when I skate.”
3
sure why the family or the Minor thinks that he’s receiving Cs and Bs. He certainly
didn’t receive them in the last full grading period. [¶] However, this is petition 1. He’s
16.9. So standard probation . . . is appropriate.”
Esteban’s counsel further addressed Esteban’s status at school: “I’ve indicated to
the Court and the Probation Department that Esteban does not have the best grades. He is
aware of that. He also has an I[ndividualized] E[ducational] P[rogram].[3] Despite the
fact that he doesn’t have great grades, his teachers apparently think that he is a pleasure
to have in class, and they speak very highly of him.” Esteban’s counsel noted that she
had attached letters from three of his teachers to her letter to the probation department,
saying, “You know, it’s not often I get teachers to write such outstanding letters.”4 She
also represented that Esteban “[wa]s going to be working on his grades.” The juvenile
court acknowledged that the letters were “impressive.”
Esteban was adjudicated a ward of the juvenile court, which ordered him to
continue to reside with his parents, with his care, custody and control under the
supervision of the probation department. The court stated that Esteban was subject to
“the standard probation terms and conditions with the following additional conditions:
3
The probation department report stated that Esteban was in the eleventh grade
with an active IEP.
4
The record includes a letter from Esteban’s counsel to the probation department,
asking the department to recommend standard probation. In that letter, Esteban’s counsel
reported that Esteban “ha[d] an excellent reputation at school,” and that “[h]is teachers
thin[k] very highly of him . . . . Although, Esteban does not have the best grades, he is
apparently ‘a pleasure to have in class.’ He also has an IEP that addresses his special
education needs.”
Attached to the letter were three letters from Esteban’s teachers, including one
from his special education case carrier, who wrote that he had “years of exposure to
[Esteban] and have literally researched his life history and carefully digested his IEP.”
He continued, “I have had the pleasure to work with Esteban on History research, English
writing assignments, Algebra and other life skills math, and science work and I can
testify to Esteban’s potential to work hard on school assignments and respect school
rules.” He asked the juvenile court to “let [Esteban] return to learning at [his regular high
school] as soon as possible.”
4
“You shall abide by—after you get off GPS, abide by your curfew set by your
parents, no later than 7:00 p.m., unless you’re with a parent, legal guardian, or have prior
permission of the Probation Officer;
“You’re not to have any contact with the named victim. Stay 100 yards away
from him. No contact directly or indirectly including by telephonic means, electronic
means or by third parties. . . .
“Do not stay away from your residence overnight nor leave Alameda County
without prior permission of your Probation Officer or parents;
“Report to the Probation Officer as directed;
“Obey all laws of the community and be of good conduct;
“Obey your parents, legal guardian, or caregiver;
“Keep the Probation Officer informed of any changes in your address, phone
number, family, school, or employment status;
“Attend school on a regular basis. Obey all school rules and regulations. Do not
leave the school campus during school hours without permission of school officials or the
probation officer;
“You and your parents are to cooperate with your Probation Officer in any
program of guidance, counseling, and therapy, specifically drug counseling and anger
management;
“I was also concerned you were suspended from school for fighting during this
school year. We have to take care of that issue, sir;
“With regards to drugs, you’re not to associate with anyone you know or
reasonably should know is using, dealing, or possessing any illegal or intoxicating
substances. You yourself must not be under the influence or in possession of any such
substances or possess any associated paraphernalia.
“I think it is significant that you were using marijuana even though you claim you
were just experimenting about two weeks prior to being detained, so I think the drug
issue is something you definitely have to get under control;
5
“You must submit to a test of your blood, breath, or urine to detect the presence of
such substances in your system and a search of your person, any containers you may have
or own, your vehicle, or residence day or night at the request of a Probation Officer or
peace officer, and that includes electronics and passwords. I find that for minors who
have been using marijuana or drugs, it is important to be able to supervise the concerns
the Court has using electronics, because minors will purchase or sell drugs on the
Internet, display themselves using drugs, and in possession of paraphernalia. It’s the only
logical way of being able—to be able to supervise this important term of probation;
“The parents and Minor must cooperate with the Probation Officer in any other
program of guidance and counseling; . . . .
“Release him to his parents on GPS today;
“Put it over for 60 days for progress report, discipline report, attendance, and
determination of restitution.”
After some further discussion among counsel, the juvenile court and the minor, in
which the juvenile court noted in connection with further scheduling, “We want to get
final grades,” a hearing was set “for determination of restitution and progress report. The
juvenile court addressed Esteban: “So that’s very important. You need to get your
grades, get them right over to the Probation Officer for inclusion in the progress report as
soon as you receive them. Okay, sir? Thank you.”
This appeal timely followed.
DISCUSSION
A. Findings and Orders about Esteban’s Educational Needs
Esteban argues that the juvenile court “did not fully consider and determine [his]
current and future educational needs as required by [California Rules of Court,] rule
5.651, subdivision (b)(2),” and asks us to remand the matter and order the juvenile court
to “fully comply with the directives” of the rule.
6
Rule 5.651 of the California Rules of Court5 requires the juvenile court to consider
information about a minor’s educational needs and to address certain educational issues
in its findings and orders at dispositional hearings for minors who are the subjects of
petitions under section 602. (Rule 5.651(a)(1) and (b)(2).6)
The Attorney General argues that Esteban has forfeited this issue because he did
not raise it in the juvenile court, and that even if he had not forfeited it, there is no need
5
All further unspecified rule references are to the California Rules of Court.
6
Rule 5.651(b)(2) provides that at a disposition hearing, “the court must: [¶] (A)
Consider and determine whether the child’s or youth’s educational, physical, mental
health, and developmental needs, including any need for special education and related
services, are being met; [¶] Identify the educational rights holder on form JV-535; and
[¶] (C) Direct the rights holder to take all appropriate steps to ensure that the child’s or
youth’s educational and developmental needs are met. [¶] The court’s findings and
orders must address the following: [¶] (D) Whether the child’s or youth’s educational,
physical, mental health, and developmental-services needs are being met; [¶] (E) What
services, assessments, or evaluations, including those for developmental services or for
special education and related services, the child or youth may need; [¶] (F) Who must
take the necessary steps for the child or youth to receive any necessary assessments,
evaluations, or services; [¶] (G) If the child’s or youth’s educational placement changed
during the period under review, whether: [¶] (i) The child’s or youth’s educational
records, including any evaluations of a child or youth with a disability, were transferred
to the new educational placement within two business days of the request for the child’s
or youth’s enrollment in the new educational placement; and [¶] (ii) The child or youth is
enrolled in and attending school. [¶] (H) Whether the parent’s or guardian’s educational
or developmental-services decisionmaking rights should be limited or, if previously
limited, whether those rights should be restored. [¶] (i) If the court finds that the parent’s
or guardian’s educational or developmental-services decisionmaking rights should not be
limited or should be restored, the court must explain to the parent or guardian his or her
rights and responsibilities in regard to the child’s education and developmental services
as provided in rule 5.650(e), (f), and (j); or [¶] (ii) If the court finds that the parent’s or
guardian’s educational or developmental-services decisionmaking rights should be or
remain limited, the court must designate the holder of those rights. The court must
explain to the parent or guardian why the court is limiting his or her educational or
developmental-services decisionmaking rights and must explain the rights and
responsibilities of the educational rights holder as provided in rule 5.650(e), (f), and (j);
and [¶] (I) Whether, in the case of a nonminor or nonminor dependant youth who has
chosen not to make educational or developmental-services decisions for himself or
herself or has been deemed incompetent, it is in the best interests of the youth to appoint
or to continue the appointment of an educational rights holder.”
7
for remand because “[t]he juvenile court comported with the intent of rule 5.651 when it
considered [Esteban’s] attendance record and grades at [his school], read the ‘impressive
letters’ from two of his teachers, and ordered updated information about appellant’s
educational status for the subsequent progress hearing.” As we discuss below, we agree
with the Attorney General.
We consider first whether Esteban’s claim of error as to rule 5.651(b)(2) has been
forfeited. “As a general rule, only ‘claims properly raised and preserved by the parties
are reviewable on appeal.’ ” (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith),
quoting People v. Scott (1994) 9 Cal.4th 331, 354.)
The parties agree that no objection regarding rule 5.651(b)(2) was raised at any
juvenile court hearing. Esteban argues that the claim has not been forfeited, citing Smith
and In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.) for the proposition that an
unauthorized sentence is an exception to the forfeiture rule, and contending that a
juvenile court’s failure to comply with its duties under rule 5.651(b)(2) is equivalent to an
unauthorized sentence, and is therefore an exception to the waiver rule. However,
Esteban disregards important statements in the cases he cites, which state that the
unauthorized sentence exception applies in cases where “obvious legal errors at
sentencing . . . are correctable without referring to factual findings in the record or
remanding for further findings.” (Smith, supra, 24 Cal.4th at p. 852; see also Sheena K.,
supra, 40 Cal.4th at p. 882, fn. 3 [acknowledging “a ‘narrow class’ of cases [where] the
trial court’s omission or erroneous imposition of a particular sentence or term required by
law results in an ‘unauthorized’ sentence, which is subject to correction by the reviewing
court despite the absence of an objection by either party in the trial court”], citing Smith,
supra, at pp. 852-853.) Here, Esteban requests that the case be remanded to the juvenile
court for further findings, and therefore the unauthorized sentence exception does not
apply.
Esteban also claims to avoid forfeiture by likening the juvenile court’s duty to
comply with rule 5.651(b)(2) to the juvenile court’s duty under section 702 to “declare”
whether a wobbler offense is a felony or misdemeanor. The explicit declaration
8
requirement set forth in section 702 is implemented by California Rules of Court that
require certain findings to be “noted in the minutes of the court” (rule 5.778(f); see also
rule 5.795), and certain declarations to be stated “on the record.” (Rules 5.778(f)(9) and
5.795(a).) Our Supreme Court has held that when a juvenile court does not comply with
the explicit declaration requirements of section 702, remand is appropriate. (In re Ricky
H. (1981) 30 Cal.3d 176, 191-192 (Ricky H.), superseded by statute on other grounds as
stated in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Thus, in Ricky H., the
Supreme Court remanded the case for the trial court to make the necessary declaration,
even though neither party ever raised the issue. (Ricky H., supra, at pp. 191-192.)
We decline to extend any exception to the forfeiture rule to claims of failure to
comply with rule 5.651(b)(2). An exception to the forfeiture rule for failure to comply
with the explicit declaration requirement of section 702 can be justified by the
significance of the contents of that declaration. Whether an offense is a felony or a
misdemeanor determines the maximum period of physical confinement, and “any prior
felony conviction, whether adult or juvenile, ‘shall . . . be used without limitation for
purposes of impeachment or enhancement of sentence in any criminal proceeding.’ ” (In
re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3, quoting Cal. Const., art. I, § 28, subd.
(f).) Juvenile adjudications may be used as strikes. (In re Ramon M. (2009) 178
Cal.App.4th 665, 675-676 [time bar does not apply to claim that juvenile court erred in
failing to make required declaration under section 702], citing People v. Nguyen (2009)
46 Cal.4th 1007.) Courts are “particularly” unwilling to ignore error “where the
defendant might otherwise spend too much or too little time in custody.” (People v.
Welch (1993) 5 Cal.4th 228, 236.) These considerations do not apply to the findings and
orders regarding the educational and developmental services decision-making rights that
are described in rule 5.651(b)(2), and we therefore decline Esteban’s invitation to liken
the requirements of rule 5.651(b)(2) to the requirements of section 702.
Even if Esteban had preserved his claim, we would affirm. “A ‘ “ ‘judgment or
order of the lower court is presumed correct[, and a]ll intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error must be
9
affirmatively shown.’ ” [Citation.]’ ” (In re Julian R. (2009) 47 Cal.4th 487, 498-499
(Julian R.).) A reviewing court “ ‘appl[ies] the general rule “that a trial court is presumed
to have been aware of and followed the applicable law. [Citations.]” ’ (People v. Stowell
(2003) 31 Cal.4th 1107, 1114.) ‘This rule derives in part from the presumption of
Evidence Code section 664 “that official duty has been regularly performed,” ’ and thus
when ‘a statement of reasons is not required and the record is silent, a reviewing court
will presume that the trial court had a proper basis for a particular finding or order.’
(Ibid.)” (Julian R., supra, at p. 499.)
Esteban’s argument for remand for additional findings and orders rests on a single
case, In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.). That case is
distinguishable and inapplicable. In Angela M., a court-appointed psychologist “opined
Angela’s ‘principal problem’ was ‘extensive drug use,’ which may have been an ‘attempt
on her part to self-medicate’ chronic symptoms of bipolar disorder or attention deficit
hyperactivity disorder.” (Id. at p. 1395.) The psychologist “also reported ‘she must
undergo an IEP . . .’ assessment.” (Ibid.) The juvenile court committed Angela to the
California Youth Authority (CYA) in view of “her lengthy drug history, heavy gang
involvement, criminal record, behavioral problems, numerous probation violations and
repeated unauthorized absences from placements.” (Id. at p. 1397.) Although the
juvenile court “was clearly on notice that Angela may have special educational needs,”
(id. at p. 1398), the juvenile court “did not mention this issue when committing her” to
the CYA. (Id. at p. 1399.) The Court of Appeal affirmed the commitment to the CYA,
but remanded the matter, directing the juvenile court “to determine whether an evaluation
of Angela’s special educational needs should be conducted, with the court’s findings to
be forwarded to the Director of the California Youth Authority . . . together with
Angela’s individualized education program if one is prepared.” (Ibid.)
Esteban’s case is different. Esteban’s educational needs and progress were
addressed in the probation department report, and Esteban’s counsel raised them at the
disposition hearing in advocating for Esteban to be given standard probation at his home,
where he could continue attending his high school. Far from failing to mention Esteban’s
10
educational needs, the juvenile court’s statements on the record reflected its familiarity
with the contents of the probation department report on Esteban’s progress at school as
well as the contents of the letters from Esteban’s teachers that were submitted by
Esteban’s counsel. The juvenile court ordered Esteban to attend school regularly and
obey school rules, to remain on campus during school hours unless he had the permission
of school officials or his probation officer, and ordered Esteban and his parents to
cooperate with the probation officer “in any program of guidance, counseling, and
therapy.” The juvenile court ordered Esteban to provide his final grades to his probation
officer for inclusion in a progress report.
In addition, it is significant here that the juvenile court determined that it would
not designate an educational rights holder other than Esteban’s parents, or place him out
of his home: Esteban was being returned to his home and his school, not being placed in
foster care or any other situation that would interrupt the continuity of his education.
Although by its terms, rule 5.651 applies to every minor who is the subject of a petition
under section 602, as Esteban is here (rule 5.651(a)(1)), rule 5.651 has particular
application to minors who are in foster care, who are at risk of entering foster care, or
who are the subject of dependency proceedings, as reflected in the text of the Advisory
Committee Comment.7
In sum, we conclude that Esteban has forfeited his claim of error with respect to
the juvenile court’s compliance with rule 5.651(b)(2). Moreover, we agree with the
Attorney General that there is no need to remand for additional express findings and
orders under rule 5.651(b)(2).
7
The Advisory Committee Comment to rule 5.651 notes that the rule applies to
“[a] child or youth in, or at risk of entering, foster care,” and states that “to protect [a
child’s statutory right to a meaningful opportunity to meet the state’s academic
achievement standards], the juvenile court, advocates, placing agencies, care providers,
educators, and service providers must work together to maintain stable school placements
and ensure that the child or youth is placed in the least restrictive educational programs
and has access to the academic resources, services, and extracurricular and enrichment
activities that are available to other pupils.”
11
B. Conditions of Probation
In objecting to the conditions of his probation, Esteban asks the court to resolve
“material inconsistencies between the three versions of the probation conditions in the
record.” One version is the juvenile court’s pronouncement at the dispositional hearing;
the second is the minute order signed by the juvenile court judge; the third is a document
prepared by the Alameda County Juvenile Probation Department, entitled “Conditions of
Probation and Court Orders.” The Attorney General contends that the court’s oral
pronouncements control over the clerk’s transcript, citing People v. Mitchell (2001) 26
Cal.4th 181, 185, and Esteban does not object to that approach, so we consider Esteban’s
objections to his probation conditions only as they apply to the juvenile court’s oral
pronouncements.
The Attorney General argues that Esteban has forfeited claims of error as to these
probation conditions because he did not raise appropriate objections in the juvenile court,
but we will address the merits because Esteban’s arguments “present pure questions of
law” and are “easily remediable on appeal.” (In re Victor L., (2010) 182 Cal.App.4th
902, 907 (Victor L.).)
In reviewing Esteban’s objections, we bear in mind that 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 generally review the
conditions imposed by the juvenile court for abuse of discretion. (In re P.A. (2012) 211
Cal.App.4th 23, 33.)
1. Requirements of Good Conduct and School Attendance
Esteban challenges the probation conditions requiring him to “be of good conduct”
and “[a]ttend school on a regular basis” on the grounds that they are facially and
unconstitutionally vague.8 He argues that we should strike or modify the conditions
8
Because the juvenile court’s oral pronouncements control, we do not address
Esteban’s objections to conditions that do not appear in the oral pronouncements.
12
because they do not provide sufficient notice for him to know in advance what constitutes
bad conduct or irregular attendance. The Attorney General argues that the challenged
conditions are not vague when they are read in context with a common-sense
interpretation.
To withstand a challenge of vagueness, “A probation condition ‘must be
sufficiently precise for the probationer to know what is required of him, and for the court
to determine whether the condition has been violated.’ ” (Sheena K., supra, 40 Cal.4th at
p. 890, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The legal
principles governing our review of probation conditions that are claimed to be
unconstitutionally vague are set forth in Victor L.:
“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 . . . .” ’ (Ginsberg v. New York (1968) 390 U.S. 629,
638.) This is because juveniles are deemed to be ‘more in need of guidance and
supervision than adults, and because a minor’s constitutional rights are more
circumscribed.’ ([In re] Antonio R.[ (2000)] 78 Cal.App.4th [937,] 941.) 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.” ’
([Sheena K.], supra, 40 Cal.4th 875, 889 . . . ; see also In re R.V. (2009) 171 Cal.App.4th
239, 247; In re Frank V. (1991) 233 Cal.App.3d. 1232, 1242-1243 [rule derives from
court’s rule as parens patriae].)
“Of course, the juvenile court’s discretion is not boundless. Under the void for
vagueness doctrine, based on the due process concept of fair warning, an order ‘ “must be
sufficiently precise for the probationer to know what is required of him, and for the court
to determine whether the condition has been violated.” ’ (Sheena K., supra, 40 Cal.4th at
p. 890.) The doctrine invalidates a condition of probation ‘ “ ‘so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application.’ ” ’ (Ibid.) By failing to clearly define the prohibited conduct, a vague
13
condition of probation allows law enforcement and the courts to apply the restriction on
an ‘ “ ‘ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.’ ” ’ (Ibid.)” (Victor L., supra, 182 Cal.App.4th at p. 910.)
“A probation condition should be given ‘the meaning that would appear to a
reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382, quoting
People v. Bravo (1987) 43 Cal.3d 600, 606.) If a vague probation condition can be
modified “without reference to the particular sentencing record developed in the trial
court” (Sheena K., supra, 40 Cal.4th at p. 887), an issue of law arises that is subject to de
novo review on appeal. (People v. Mendez (2013) 221 Cal.App.4th 1167, 1172
(Mendez).)
We agree with the Attorney General that the requirement that Esteban “be of good
conduct” is not vague in this case. The juvenile court required Esteban to “Obey all laws
of the community and be of good conduct; [¶] Obey your parents, legal guardian, or
caregiver.” The requirements that Esteban obey the law and his parents, as well as the
requirement that he obey all school rules and regulations, give substance to the condition
“good conduct.” The “good conduct” condition does not add to those requirements, and
therefore appears to be nothing more than surplusage. Esteban cites no authority to
support an argument that we should strike surplusage in probation conditions, and we
decline to do so here.
Further, the requirement that Esteban “[a]ttend school on a regular basis” is not
vague, especially when it is read in the context of the entire condition: “Attend school on
a regular basis. Obey all school rules and regulations. Do not leave the school campus
during school hours without permission of school officials or the Probation Officer.” The
meaning of the condition is clear: Esteban is to attend school when it is in session, unless
he is excused pursuant to the school’s rules and regulations.
Accordingly, we affirm the inclusion of the conditions “be of good conduct” and
“[a]ttend school on a regular basis” in the juvenile court’s disposition order.
14
2. Electronics Search Condition
During the disposition hearing, Esteban’s counsel objected to any search condition
that included “electronic devices and/or social media,” stating, “I did note in the report
that Esteban mentions experimenting with marijuana. He doesn’t seem to have a big
issue with that. So I’m asking the Court not to order drug terms.” The juvenile court,
however, imposed a search condition requiring Esteban to “submit to a test of [his] blood,
breath, or urine to detect the presence of [drugs] in your system and a search of your
person, any containers you may have or own, your vehicle, or residence day or night at
the request of a Probation Officer or peace officer, and that includes electronics and
passwords.” The juvenile court explained, “I find that for minors who have been using
marijuana or drugs, it is important to be able to supervise the concerns the Court has
using electronics, because minors will purchase or sell drugs on the Internet, display
themselves using drugs, and in possession of paraphernalia. It’s the only logical way of
being able—to be able to supervise this important term of probation.”
Here, Esteban challenges only the portion of the search condition that covers his
electronic devices and the disclosure of passwords, arguing that the condition is
unconstitutionally overbroad and violates his privacy and the privacy of third parties.9
Citing In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), he argues that we should
strike or modify the condition because it is not narrowly tailored to serve the interests of
public safety and rehabilitation, and not narrowly tailored to him as an individual.10
9
The Attorney General argues Esteban’s counsel “merely made a general
objection without specifying the basis for [the] challenge to the electronic search
condition,” and on that basis argues that Esteban has not preserved his objection to this
probation condition. We disagree with the Attorney General’s characterization of the
objection, and accordingly, we reject the argument that the objection has been forfeited.
10
In Malik J., the defendant argued that a search condition that encompassed his
electronics and passwords was unreasonable under People v. Lent (1975) 15 Cal.3d 481(Lent) and constitutionally overbroad. (Malik J., supra, 240 Cal.App.4th at pp. 901-902.)
In Malik J., the defendant had stolen a cell phone (id. at p. 900), and the People argued
that the search condition was justified so that if Malik “ ‘were found in possession of a
cell phone, a probation or police officer could check the phone to determine whether it
15
The Attorney General does not dispute that the condition is overbroad. She argues
that we should affirm the condition after it is tailored to facilitate Esteban’s rehabilitation.
Specifically, she argues that we should modify it so that searches of Esteban’s electronics
are limited to texts, voicemails, photographs, emails, and social media accounts, which
might reveal whether Esteban is using drugs.11
In reply, Esteban expresses doubt that such a limitation would be “ ‘any limitation
at all’ ” as protection of his privacy rights, quoting In re J.B. (2015) 242 Cal.App.4th 749,
758-759 (J.B.), in which a similar search condition was held to be unreasonable under
Lent, supra, 15 Cal.3d 48, and therefore invalid. Although Esteban does not oppose in
principle a modification of the phrase “electronics and passwords” that would tailor the
condition to monitor his compliance with the no-drugs condition, he does not propose any
language we might use to accomplish such tailoring. Esteban contends that periodic drug
testing has been effective in monitoring Esteban’s compliance with the condition, and
that such testing, which does not affect the privacy of third parties, is preferable to the
electronics search condition imposed by the juvenile court and to the condition proposed
by the Attorney General.
a. Applicable Law
As we discussed above, a juvenile court may impose “a ‘ “condition of probation
that would be unconstitutional or otherwise improper for an adult probationer.” ’ ”
(Sheena K., supra, 40 Cal.4th at p. 889.) Such conditions “are permissible only if
had been stolen.’ ” (Id. at p. 902.) The Court of Appeal held that the electronics search
condition imposed by the juvenile court was overbroad because it “[went] considerably
farther than permitting police to search a cell phone to determine whether Malik is the
owner. It also require[d] him to turn over his passwords to, and authorize[d] unfettered
searches of, all of his electronic devices and all of his social media accounts.” (Ibid.)
The Court of Appeal in Malik modified the electronics search condition; among other
things, it struck the requirement that he “provide any passwords to any social media
sites.” (Id. at pp. 900, 906.)
11
Our Supreme Court has recently granted review in the case on which the
Attorney General primarily relies for her argument that we should modify the electronics
search condition in this way. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review
granted Feb. 17. 2016, S230923.)
16
‘ “ ‘tailored specifically to meet the needs of the juvenile.’ ” ’ ” (In re D.G. (2010) 187
Cal.App.4th 47, 53 (D.G.).) As we have stated elsewhere, the requirement of tailoring
has particular application to search conditions imposed on juveniles. (In re Mark C.
(2016) 244 Cal.App.4th 520, 530 (Mark C.).) “For adults, probation is a privilege and
adults may waive their Fourth Amendment rights by consenting to warrantless searches
‘ “in exchange for the opportunity to avoid service of a state prison term.” [Citation.]’
(People v. Balestra (1999) 76 Cal.App.4th 57, 65 . . ., quoting In re York (1995) 9 Cal.4th
1133, 1150.) For juveniles, however, probation ‘ “ ‘is an ingredient of a final order for
the minor’s reformation and rehabilitation.’ ” (In re Tyrell J. (1994) 8 Cal.4th 68, 81,
overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128.) A juvenile
“cannot refuse probation [citations] and therefore is in no position to refuse a particular
condition of probation.” (In re Binh L. (1992) 5 Cal.App.4th 194, 202 (Binh).) Courts
have recognized that “a minor cannot be made subject to an automatic search condition;
instead, such condition must be tailored to fit the circumstances of the case and the
minor.” (See People v. Rios (2011) 193 Cal.App.4th 584, 597; see also Binh, supra, 5
Cal.App.4th at p. 203 . . . .)’ (In re Erica R. (2015) 240 Cal.App.4th 907, 914 (Erica
R.).)” (Mark C., supra, 244 Cal.App.4th at p. 530.)
One limit on the juvenile court’s discretion in imposing conditions of probation,
including search conditions, is set forth in Lent. (D.G., supra, 187 Cal.App.4th at p. 52
[citing cases “holding the Lent factors are applicable in evaluating juvenile probation
conditions”].) Under Lent, 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.)
b. Analysis
The Attorney General contends that Esteban raises “purely a constitutional
argument” as to the electronics search condition, and has not preserved arguments of
invalidity under Lent or Erica R., neither of which Esteban discusses in his opening brief.
17
The Attorney General concedes that we may decide to consider those issues, and argues
that the condition is valid under Lent and distinguishable from Erica R., in which we held
that it was unreasonable under Lent to require defendant to submit to searches of her
electronics, including passwords “because there was no evidence connecting the
juvenile’s electronic device or social media usage to her offense or to a risk of future
criminal conduct.” (Erica R., supra, 240 Cal.App.4th at p. 909.) Yet Esteban does not
address this argument or these cases in his reply brief, perhaps because Esteban told the
juvenile court that he used a camera holder to record himself when he skated and because
the police were able to identify Esteban by using a photograph posted on the social media
site Instagram that showed him holding two skateboards, one of which belonged to the
victim.12 We agree that Esteban has forfeited any Lent argument on appeal, and we
therefore move to the question of overbreadth.
We review constitutional challenges to probation conditions de novo. (Malik J.,
supra, 240 Cal.App.4th at p. 901.) “ ‘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.’ ” (Id. at p. 904, quoting In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
The “ubiquitous advent of cell phones” as well as other electronic devices, portable and
not, “and their capacity both to store and to remotely access vast quantities of personal
information” of all kinds means that the juvenile court must “consider the extent to which
an officer may search such devices pursuant to a probation search condition without
violating the probationer’s diminished privacy interests.” (Malik J., supra, 240
Cal.App.4th at pp. 902-903.) Like Esteban, we question whether the Attorney General’s
proposed limitation of the search condition to texts, voicemails, photographs, emails, and
12
In this respect, Esteban’s case differs from J.B., which he cites in his reply brief.
As in Erica R., “there [wa]s no showing of any connection between the minor’s use of
electronic devices and his past or potential future criminal activity.” (J.B., supra, 242
Cal.App.4th at p. 756.)
18
social media accounts provides an appropriate fit between the juvenile court’s purposes in
imposing the probation and Esteban’s diminished privacy interests as a probationer.
Accordingly, we will strike the phrase “and that includes electronics and passwords”
from the search condition, and remand to the juvenile court, which may exercise its
discretion to impose an electronics search condition that is tailored to Esteban’s
reformation and rehabilitation.
3. Drug Condition
The juvenile court imposed a condition of probation that states, “With regards to
drugs, you’re not to associate with anyone you know or reasonably should know is using,
dealing, or possessing any illegal or intoxicating substances. You yourself must not be
under the influence or in possession of any such substances or possess any associated
paraphernalia.” On appeal, Esteban raises several objections to this condition, each of
which amounts to a claim of vagueness or overbreadth. We consider Esteban’s various
objections to the drug condition in turn.
a. Constructive Knowledge in Association Condition
We begin with the association condition, which includes the phrase “you know or
reasonably should know,” and therefore incorporates both actual and constructive
knowledge elements. Esteban does not object to the actual knowledge requirement,
which, as he acknowledges, serves a valid rehabilitative purpose by prohibiting him from
associating with people he knows are drug dealers or users. He argues that the
constructive knowledge element “unfairly threatens the loss of [Esteban’s] conditional
liberty interest, impermissibly infringes upon his constitutional right of association, and
would allow for ‘ad hoc and subjective’ evaluation by those enforcing the condition,”13
but he cites no authority to support his contention that the constructive knowledge
element here is unconstitutionally vague or overbroad. To the contrary, Esteban
acknowledges that constructive knowledge has been likened to a reasonable person
standard, which is an objective standard; that it may promote rehabilitation to hold
13
Esteban’s argument quotes from Sheena K, supra, 40 Cal.4th at page 890.
19
probationers to a reasonable person standard; and that courts have upheld as
constitutional constructive knowledge elements in probation conditions restricting an
adult probationer’s right of association. (Mendez, supra, 221 Cal.App.4th at pp. 1176-
1178.)
Like the court in Mendez, which rejected a vagueness challenge to a constructive
knowledge element as part of an association condition, “[w]e foresee no difficulty either
with a probationer understanding what is required by [a constructive knowledge]
condition or with a court determining whether such a condition has been violated. It may
in fact be easier to establish what a probationer reasonably should know than to delve
into the epistemological depths of what the probationer actually knows.” (Mendez,
supra, 221 Cal.App.4th at p. 1178.) We see no basis for striking or modifying the
constructive knowledge element of the association condition in this case.
b. Illegal or Intoxicating Substances
The drug condition prohibits Esteban from associating with those who use, deal or
possess “any illegal or intoxicating substances” and prohibits him from being “under the
influence of or in possession of any such substances.” Esteban objects that the phrase
“illegal or intoxicating substances” is vague because it is “susceptible of different
interpretations.” The interpretations that Esteban discusses indicate overbreadth as well
as vagueness: for example, Esteban expresses concern that the prohibition extends to his
possession of “household items that have legitimate innocent purposes,” and that he
might violate his probation if he were to “use superglue to repair a broken ceramic, inhale
the fumes, and feel affected by the chemical ingredients.”
Esteban proposes that in the association condition, the phrase “any illegal or
intoxicating substances” should be changed to “illegal drugs,” and in the influence and
possession condition the phrase should be changed to “any alcohol, any controlled
substances, or any drugs, excluding legal, non-prescription, over-the-counter drugs or
prescribed pharmaceutical drugs for which you have a valid physician’s prescription.”
The Attorney General does not address Esteban’s arguments with respect to the phrase
20
“any illegal or intoxicating substances” except to state that the juvenile court’s oral
pronouncement of the drug condition should be affirmed.
We look first at the association condition. We do not agree that the juvenile
court’s phrase “illegal or intoxicating substances” is vague or overbroad in the context in
which it appears: “you’re not to associate with anyone you know or reasonably should
know is using, dealing, or possessing any illegal or intoxicating substances.” Moreover,
Esteban’s proposed modification, in which the condition would refer only to “illegal
drugs,” is underinclusive. Unlike Esteban’s proposed association condition, the condition
imposed by the juvenile court prohibits Esteban from associating with those who are
using alcohol or inhalants. We decline to modify that part of the drug condition.
We then turn to the use and possession condition. Esteban notes that “intoxicating
substances” could include “drugs legally available only by a physician’s prescription,
over-the-counter medicines and household items that have legitimate innocent purposes.”
In the interest of clarity and precision we will modify the language of the condition. (See
Sheena K., supra, 40 Cal.4th at p. 887 [recognizing that an appellate court can modify a
probation condition to cure vagueness or overbreadth].) But once again we find that the
language Esteban proposes for the modification is underinclusive. For example, Esteban
appears to recognize that the influence and possession condition is intended to prohibit
him from sniffing glue and using other inhalants, but his proposed language, which
prohibits “any alcohol, any controlled substances, or any drugs, excluding legal, non-
prescription, over-the-counter drugs or prescribed pharmaceutical drugs for which you
have a valid physician’s prescription,” does not capture that prohibition. We therefore
modify the condition to prohibit Esteban from being under the influence of or in
possession of “any illegal substance, or any alcohol, or any other intoxicant for the
purpose of intoxication.”
21
c. Drug Paraphernalia
The drug condition prohibits Esteban from possessing paraphernalia “associated”
with the prohibited substances.14 Esteban argues that the phrase is unconstitutionally
vague, noting that the only substance use reflected in the record is “recent
experimentation with marijuana,” and arguing that he could “possess a common item
with a non-illicit use without knowing of or intending to use it as paraphernalia for
cocaine, methamphetamine, or heroin.” He proposes we modify the condition to prohibit
possession of “drug paraphernalia for the purpose of using it in such a manner.”
As was the case for the phrase “any illegal or intoxicating substances,” the
Attorney General does not address Esteban’s arguments with respect to this phrase or
express any opposition to his proposed language. We address Esteban’s concern that he
might possess a common item without knowing of its use as paraphernalia or intending to
use it as paraphernalia by modifying the condition to prohibit the possession of any item
that he knows to be “associated paraphernalia” or any item that he intends to use as such.
(See Sheena K., supra, 40 Cal.4th at p. 887 [recognizing that an appellate court can
modify a probation condition to cure vagueness or overbreadth].)
d. Knowledge Requirement for Possession
Esteban argues that to ensure due process, we must modify the conditions
prohibiting him from using or possessing particular items to include language specifying
that he knowingly use or possess them. He relies on cases including People v. Freitas
(2009) 179 Cal.App.4th 747, 750 (Freitas), in which the defendant challenged as vague
and overbroad probation conditions that prohibited him from possessing “stolen
property” and “ ‘firearms or ammunition.’ ” In Freitas, the appellate court modified the
conditions to prohibit him from knowingly possessing such items. (Id. at p. 753.)
14
In his opening brief, Esteban objects specifically to the phrase “related
paraphernalia,” which appears in the minute order and the document prepared by the
probation department. Here we consider the similar phrase “associated paraphernalia,”
which appears in the juvenile court’s oral pronouncement.
22
The Attorney General does not dispute that there is a mens rea requirement
associated with prohibitions against use and possession in the drug condition, but says
there is no need for us to modify the condition. She relies on People v. Patel (2011) 196
Cal.App.4th 956, 960 (Patel) in which the Third District stated that, in view of the
“substantial uncontradicted body of case law establishing, as a matter of law, that a
probationer cannot be punished for presence, possession, association, or other actions
absent proof of scienter” it construes “every probation condition proscribing a
probationer’s presence, possession, association, or similar action to require the action be
undertaken knowingly.”
As the parties acknowledge, our Supreme Court is currently considering whether
an explicit knowledge requirement is constitutionally required in certain probation
conditions, including conditions that prohibit the possession of illegal drugs and
paraphernalia. (People v. Hall (2015) 236 Cal.App.4th 1124, review granted Sept. 9,
2015, S227193.) In the meantime, the Attorney General urges us to consider the
“commonsense approach” taken in Patel, which states, “It will no longer be necessary to
seek a modification of a probation order that fails to expressly include” a knowledge
requirement. (Patel, supra, 196 Cal.App.4th at pp. 960-961.) Esteban urges us to follow
the reasoning adopted by Freitas and In re Kevin F. (2015) 239 Cal.App.4th 351, in
which the appellate court modified a probation condition that prohibited the possession of
weapons to add requirements that the minor knowingly possess the items at issue.15 (Id.
at p. 366.)
15
Esteban also refers us to Victor L., but the conditions at issue there did not
concern possession, but rather concerned association and the right to travel. (Victor L.,
supra, 182 Cal.App.4th at pp. 911-913.) For example, one condition imposed by the
juvenile court prohibited the minor from remaining “ ‘in any building, vehicle or in the
presence of any person where dangerous or deadly weapons or firearms or ammunition
exist.’ ” (Id. at p. 912.) The appellate court modified the condition to prohibit him from
remaining “ ‘in any building, vehicle or in the presence of any person where the Minor
knows one or more dangerous or deadly weapons or firearms or ammunition exist.’ ” (Id.
at p. 931.)
23
Esteban does not cite any cases in which a probation condition is modified to
include an explicit requirement that possession or consumption of drugs or alcohol be
“knowing,” except for Patel. There, the trial court had imposed a condition of probation
that prohibited defendant from “drinking alcohol, possessing it, or being in any place
where it is the chief item of sale.” (Patel, supra, 196 Cal.App.4th at p. 959.) The trial
court also imposed a condition prohibiting his possession of firearms or ammunition. (Id.
at p. 959.) The “firearms or ammunition” condition included an explicit qualification that
the conduct be committed knowingly, but the alcohol condition did not, so the appellate
court, in the Third District, added the qualification to the alcohol condition. (Ibid.)
Recognizing the body of law holding that “a probationer cannot be punished for presence,
possession, association or other actions absent proof of scienter,” the appellate court also
gave “notice of [its] intent to henceforth no longer entertain this issue on appeal,” and
stated that “[i]t will no longer be necessary to seek a modification of a probation order
that fails to expressly include” such a requirement. (Id. at pp. 960-961.)
As we have modified the drug condition, it now states: “With regard to drugs,
you’re not to associate with anyone you know or reasonably should know is using,
dealing, or possessing any illegal or intoxicating substances. You must not be under the
influence or in possession of any illegal substance, or any alcohol, or any other intoxicant
for the purpose of intoxication. You must not possess any item that you know to be
paraphernalia associated with those prohibited substances, or that you intend to use as
such.”
For a probationer to violate a term of probation, the probationer’s conduct must
“ ‘constitute[] a willful violation of the terms and conditions of probation.’ ” (People v.
Cervantes (2009) 175 Cal.App.4th 291, 295, quoting People v. Galvan (2007) 155
Cal.App.4th 978, 982). In view of that established law, and in view of the modifications
we have made in the drug condition to address Esteban’s concerns about the possible
vagueness of the terms “illegal or intoxicating substances” and “associated
paraphernalia,” we are not concerned that Esteban would “violate probation by being
unaware of the presence of an illegal item in his possession, or by consuming or
24
possessing a substance that contains some unknown or undetectable amount of a drug or
alcohol.”
We do not foreclose the possibility that a juvenile court might impose probation
conditions that are appropriately limited or qualified by the inclusion of an explicit
requirement that conduct be willful or knowing, but we do not see any need to modify the
drug condition imposed by the juvenile court here to include a requirement that the
possession of drugs or paraphernalia or the use of drugs be “knowing.”
DISPOSITION
We modify the juvenile court’s drug condition as follows: “With regard to drugs,
you’re not to associate with anyone you know or reasonably should know is using,
dealing, or possessing any illegal or intoxicating substances. You must not be under the
influence or in possession of any illegal substance, or any alcohol, or any other intoxicant
for the purpose of intoxication. You must not possess any item that you know to be
paraphernalia associated with those prohibited substances, or that you intend to use as
such.” We modify the juvenile court’s search condition by striking the phrase “including
electronics and passwords,” and we remand so that the juvenile court may, if it so
chooses, exercise its discretion to impose an electronics search condition that is tailored
to Esteban’s reformation and rehabilitation. In all other respects, the juvenile court’s
dispositional order is affirmed.
25
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
A145285, People v. Esteban M.
26