People v. J.E. , 205 Cal. Rptr. 3d 28 ( 2016 )

Filed 7/20/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re J.E., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A145399
J.E., (Alameda County
Defendant and Appellant. Super. Ct. No. SJ15024169)
J.E. (Minor) appeals from a post-dispositional order denying his motion to remove
an electronic search probation condition imposed upon his plea to misdemeanor second
degree burglary (Pen. Code,1 § 459). Minor contends the probation condition requiring
him to submit his electronic devices to search upon the request of a probation officer or
peace officer is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent). He also
contends the condition is unconstitutionally overbroad and that it risks violating
California’s Invasion of Privacy Act (§ 632). We affirm.
1
Unless otherwise indicated, all further statutory references are to the Penal Code.
1
I. FACTUAL BACKGROUND2
The underlying factual basis for the plea stemmed from Minor’s involvement in a
burglary with two of his friends. They entered an Oakland home through a back window
and rear door and took a watch, a camera, and loose change from a large jar. A neighbor
reported the burglary, and Minor and his friends were apprehended a few blocks away.
Upon his arrest, the police found approximately $50 in loose change in Minor’s
backpack.
The dispositional hearing was held on March 19, 2015. The dispositional report
noted that Minor had a “difficult” relationship with his mother after previously residing
with his grandmother and that Minor admitted he had experimented with drugs and
alcohol in the past; Minor began smoking marijuana when he was nine years old and had
begun smoking it almost daily, including the date of his arrest.3 He began drinking
alcohol approximately a year earlier, but reported his last drink had been on Christmas
2014. Minor also experimented with Xanax and “syrup,” a mixture of codeine cough
syrup, soda, and Jolly Ranchers, in summer of 2014. Minor denied involvement in
gangs, but said he associated with members of the Norteños gang a year prior to his
arrest.
Additionally, the dispositional report showed Minor was in danger of failing most
of his middle school classes. Minor did not turn in class work or attend his classes
regularly. He also had various suspensions and reprimands for behavioral issues,
including refusing to go to his workshops after class, cursing at the school principal and
his staff, taking a knife and other contraband to school, and having gang-related graffiti in
2
The statement of facts is taken from police reports and the dispositional report.
3
Minor failed a drug test while released on probation before the hearing on his
objection to the electronic search condition.
2
his locker; matching graffiti was also found on the wall around the corner from Minor’s
locker.
The juvenile court placed Minor under the supervision of the probation department
and imposed various probation conditions, including a 6:00 p.m. curfew, a no-contact
order as to the victim and Minor’s co-offenders, and conditions that Minor be on time and
attend school on a regular basis, complete his school work, remain drug-free, submit to
regular drug testing, and submit to a search of his person, residence, vehicles, containers,
and “electronics, including passwords, at the request of a Probation Officer or peace
officer.” Counsel for Minor objected to the electronic search condition and indicated that
she would file a motion on the issue.
On April 3, 2015, Minor filed a motion to delete the electronic search condition.
He argued the condition was invalid because “there is absolutely no evidence in the
record to support the conclusion that the minor’s use of an electronic device and/or social
media account was either one of the reasons that the minor committed the instant offense,
or that requiring the minor to submit to a warrantless search of the minor’s electronic
devices and/or social media accounts would in any way prevent the minor from
committing an offense in the future.”
On April 28, 2015, the juvenile court held a hearing to address Minor’s progress.
The court expressed concerns over Minor testing positive for THC, as well as Minor’s
failing grades in school.
On May 29, 2015, the court denied Minor’s motion to delete the electronic search
condition. The court reasoned that Minor was “a classic case of why the electronic
[search] condition is a necessity [because], as was basically alluded to, he has some fairly
substantial drug issues.” The court further stated, “The Court is very well aware, from
experience, that our minors typically communicate much more with their electronics than
they do face-to-face. In fact, it’s very typical to see minors sitting at a table together, and
3
they’re on their electronics. . . . So, clearly their main method of communication is
through the electronics.
“[I]f we can . . . supervise the minor, we need to use the electronics to make sure
we can monitor the purchase, or sales, usage [of drugs]. There’s a lot of minors who like
to put the photographs of themselves on the internet, showing themselves with marijuana,
with paraphernalia, smoking marijuana, smoking drugs, using other drugs. [¶] So, this is
a really critical element in our ability to supervise our minors, and this is from the Court’s
experience with minors, experience with adult[s], but more particularly with minors.
[¶] If we’re going to, at all, ever be able to supervise the minor appropriately with drug
conditions, we need to be able to have access to their electronics, including their
passwords, and any—and other internet source of communication that they use.”
II. DISCUSSION
A. Validity Under Lent
The juvenile court has broad discretion in imposing probation conditions it
determines are “fitting and proper to the end that justice may be done and the reformation
and rehabilitation of the [minor] enhanced.” (Welf. & Inst. Code, § 730, subd. (b); In re
Victor L. (2010) 182 Cal.App.4th 902, 910.) A probation condition is invalid if it
“ ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486; In re
Baback S. (1993) 18 Cal.App.4th 1077, 1084.) Thus, a probation condition forbidding
conduct which is not itself criminal is valid only if that conduct is reasonably related
either to the crime which the minor committed or to the minor’s future criminality. (In re
Baback S., at p. 1084.) We review probation conditions for abuse of discretion. (In re
J.B. (2015) 242 Cal.App.4th 749, 754.)
The issue of whether an electronic search probation condition may be imposed
upon a juvenile when that condition has no relationship to the crimes committed is
4
currently pending before our Supreme Court.4 Electronic search conditions nearly
identical to those imposed here were also challenged in several cases within this appellate
district. The condition was stricken as invalid under Lent by Division Two in In re Erica
R. (2015) 240 Cal.App.4th 907 (Erica R.) after the court found no reasonable connection
between the search condition and the juvenile’s future criminality. Division Three, in In
re J.B., supra, 242 Cal.App.4th 749, struck the condition as invalid under Lent and
constitutionally overbroad, and, in In re Malik J. (2015) 240 Cal.App.4th 896, 901–903,
found the condition valid under Lent, but modified it to alleviate its overbreadth.
Division One, in In re P.O. (2016) 246 Cal.App.4th 288 (P.O.), likewise found the
condition valid under Lent and modified the condition to address its overbreadth.
Here, Minor argues the juvenile court erred in imposing the electronic search
condition because the condition is not related to the underlying burglary offense,
regulates conduct that is not illegal, and is not reasonably related to his future criminality.
The Attorney General concedes the condition is not related to the underlying offense and
that the regulated conduct is not criminal, but argues the condition is reasonably related
to deterring Minor’s future criminality because it allows probation officers to monitor
Minor’s adherence to his other probation conditions. We agree.
People v. Olguin (2008) 45 Cal.4th 375 (Olguin) and People v. Ebertowski (2014)
228 Cal.App.4th 1170 (Ebertowski) are instructive. In Olguin, our Supreme Court upheld
a probation condition requiring the defendant to inform his probation officer of any pets
4
In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016,
S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted February 17,
2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted March 9,
2016, S232240; In re J.R. (Dec. 28, 2015, A143163) [nonpub. opn.], review granted
March 16, 2016, S232287; In re Mark C. (2016) 244 Cal.App.4th 520, review granted
April 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25,
2016, S233932; and In re A.D. (April 26, 2016, A146136) [nonpub. opn.], review granted
June 29, 2016, S234829; see People v. Vasquez (March 7, 2016, H039956) [nonpub.
opn.], review granted May 25, 2016, S233855.
5
in his residence. The defendant challenged the condition as invalid under Lent, arguing
that pet ownership was not reasonably related to his crime or his future criminality.
(Olguin, at p. 380.) Our high court disagreed, explaining that “[p]robation officers are
charged with supervising probationers’ compliance with the specific terms of their
probation to ensure the safety of the public and the rehabilitation of probationers. Pets
residing with probationers have the potential to distract, impede, and endanger probation
officers in the exercise of their supervisory duties. By mandating that probation officers
be kept informed of the presence of [pets], this notification condition facilitates the
effective supervision of probationers and, as such, is reasonably related to deterring
future criminality.” (Id. at p. 378.)
In Ebertowski, supra, 228 Cal.App.4th 1170, our colleagues in the Sixth Appellate
District applied similar reasoning in the context of electronic search conditions. The
defendant there pleaded no contest to making criminal threats and was placed on
probation with terms including that he submit various electronic devices for search,
provide the devices’ passwords, and turn over his passwords to his social media sites.
(Id. at p. 1172.) The appellate court rejected the defendant’s claim that the conditions
failed under Lent, holding that because the electronic search conditions facilitated the
effective supervision of defendant’s other undisputed terms, including that he discontinue
his gang affiliation, the electronic search conditions were reasonably related to his future
criminality. (Id. at p. 1177.) The court reasoned, “The only way that defendant could be
allowed to remain in the community on probation without posing [a risk] to public safety
was to closely monitor his gang associations and activities. The password conditions
permitted the probation officer to do so. Consequently, the password conditions were
reasonable under the circumstances . . . .” (Ibid.)
The same reasoning is applicable here. At the time Minor was placed on
probation, Minor had a constellation of issues requiring intensive supervision: he had
incurred multiple tardies and absences at school, received school reprimands and
6
suspensions, admitted to being involved with members of the Norteños gang, and
admitted to what the juvenile court described as a “pretty deep drug issue.” In denying
Minor’s motion to strike the electronic search condition, the court expressed serious
concern about Minor’s burglary and prior behavioral issues, including the extent of
Minor’s use of marijuana, Xanax, alcohol, and “syrup.” The juvenile court then noted the
electronic search condition would help the probation department “supervise the minor . . .
[and] monitor the purchase, or sales, [or] usage” of drugs, calling the condition “critical”
for Minor’s rehabilitation. (Italics added.) In light of this record, it was within the
juvenile court’s discretion to impose the 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.5
Erica R., supra, 240 Cal.App.4th 907, and In re J.B., supra, 242 Cal.App.4th 749,
both cited by defendant, are inapposite. In Erica R., Division Two of this district struck
down a similar electronic search probation condition that was imposed after the minor
admitted to misdemeanor possession of ecstasy. (Erica R., supra, at p. 910.) The
minor’s attorney objected to the condition, arguing that there were no issues with the
minor’s social media and that she did not have a phone. (Ibid.) Our colleagues struck the
condition as invalid under Lent, finding that the record there—which does not reflect the
array of criminal and social issues found in the case at hand—did not support the
conclusion that the electronic search condition was related to the juvenile’s future
criminality. (Id. at p. 913.)
Similarly, in In re J.B., supra, 242 Cal.App.4th 749, the minor was placed on
probation with terms including an electronic search condition upon his admission to petty
theft. (Id. at p. 752.) The minor there had admitted to smoking marijuana for two years
5
The juvenile court’s need to closely supervise Minor was reinforced by Minor’s
positive test for THC.
7
and his school records showed he had poor attendance and very poor grades. (Id. at
p. 753.) Relying on Erica R., Division Three struck down the condition as invalid under
Lent and, further, as overbroad. The court reasoned that the record there, like the record
in Erica R., “[did] not support a conclusion that the electronic search condition [was]
reasonably related to [the minor’s] future criminal activity” and would instead serve only
to “facilitate general oversight of the [minor’s] activities.” (In re J.B., supra, at pp. 755,
758.)
The facts in both cases, however, are distinguishable from Minor’s unique set of
circumstances. Our colleagues recognized that whether a probation condition is
reasonably related to a specific minor’s future criminality is necessarily intertwined with
the facts and circumstances surrounding the minor in question. (Erica R., supra,
240 Cal.App.4th at p. 914 [“Our holding is narrow. Of course, 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”]; In re J.B., supra, 242
Cal.App.4th at p. 754 [“[t]he reasonableness and propriety of the imposed condition is
measured . . . by the circumstances of the current offense [and] the minor’s entire social
history”]; see In re Binh L. (1992) 5 Cal.App.4th 194, 203 [“every juvenile probation
condition must be made to fit the circumstances and the minor”].) As we have explained,
Minor’s deep-seated issues with drugs, including marijuana, Xanax, alcohol, and “syrup”;
struggle with school attendance and grades; suspensions and reprimands for behavioral
issues, including bringing a weapon to school, having gang graffiti inside his locker and
elsewhere in its vicinity, and swearing at his school’s principal and staff; prior association
with Norteños gang members; and unstable home life all support the juvenile court’s
conclusion that the electronic search condition would “ ‘serve the rehabilitative function
of precluding [Minor] from any future criminal acts.’ ” (Erica R., at p. 913.) Because the
electronic search condition was reasonably related to Minor’s future criminality, the
juvenile court did not abuse its discretion in imposing it.
8
B. Overbreadth
Minor also contends the electronic search condition is overbroad because it is not
narrowly tailored to limit its impact on his privacy rights.
“A probation condition that imposes a limitation on a person’s constitutional rights
must closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875,
890.) “The essential question in an overbreadth challenge is the closeness of the fit
between the legitimate purpose of the restriction and the burden it imposes on the
defendant’s constitutional rights—bearing in mind, of course, that perfection in such
matters is impossible, and that practical necessity will justify some infringement.” (In re
E.O. (2010) 188 Cal.App.4th 1149, 1153.) We review constitutional challenges to
probation conditions de novo. (In re J.B., supra, 242 Cal.App.4th at p. 754.)
We first address the Attorney General’s argument that Minor forfeited his
constitutional challenge to the electronic search condition by failing to object on that
basis below. Constitutional issues involving more than “ ‘ “pure questions of law[, i.e.,
issues] that can be resolved without reference to the particular sentencing record
developed in the trial court,” ’ ” may generally not be raised for the first time on appeal.
(In re Sheena K., supra, 40 Cal.4th at p. 889.) While it is true that Minor did not object
on overbreadth grounds below, we believe he nevertheless preserved the issue by
objecting to the imposition of the condition by reference to his Fourth Amendment rights
and the purported “[lack of] evidence in the record” to support the juvenile court’s
conclusion that the electronic search condition would rehabilitate him—essentially a
contention that the condition was not narrowly tailored to Minor and unnecessarily
infringed on his constitutional rights. Regardless of Minor’s purported forfeiture, we will
consider the merits of his contention in the interest of justice as well as to obviate any
claim that his trial counsel was ineffective in not interposing an objection. (In re Luis F.
9
(2009) 177 Cal.App.4th 176, 183–184 [appellate court has discretion to excuse a failure
to object where error affects fundamental constitutional right].)
Citing Riley v. California (2014) 573 U.S. __ [134 S.Ct. 2473] (Riley), Minor
argues the electronic search condition implicates serious privacy concerns regarding
“nearly every aspect” of his life and is therefore overbroad. In Riley, the Supreme Court
held that the warrantless search of a suspect’s cell phone implicated and violated the
suspect’s Fourth Amendment rights. (Riley, supra, 134 S.Ct. at p. 2493.) In so holding,
the court rejected the government’s argument that the search of a suspect’s cell phone
was “ ‘materially indistinguishable’ ” from the search of an arrestee or items such as
wallets, explaining that modern cell phones, which may have the capacity to be used as
mini-computers, can potentially contain sensitive information about a number of areas of
a person’s life. (Id. at pp. 2488–2489.) The court reversed and remanded the case, but
emphasized that its holding was only that cell phone data is subject to Fourth Amendment
protection, “not that the information on a cell phone is immune from search.” (Id. at
p. 2493.)
Riley, however, did not involve probation conditions and, as a result, is inapposite
in this context. 6 Unlike the defendant in Riley, who at the time of the search had not
6
At oral argument, Minor argued that the fact that his search condition includes
electronics made it significantly different from other types of search conditions because
electronics are a “bottomless pit” that could potentially disclose a large amount of
personal information. However, courts have historically allowed parole and probation
officers significant access to other types of searches, including home searches, where a
large amount of personal information—from medical prescriptions, banking information,
and mortgage documents to love letters, photographs, or even a private note on the
refrigerator—could presumably be found and read. (See People v. Balestra (1999)
76 Cal.App.4th 57, 62, 65–68 [upholding probationer’s broad home search condition]; In
re Binh L., supra, 5 Cal.App.4th 194, 198, 203–205 [upholding search conducted
pursuant to juvenile probationer’s broad search condition]; People v. Medina (2007)
158 Cal.App.4th 1571, 1575–1580 [upholding search conducted pursuant to probationer’s
broad home search condition]; People v. Reyes (1998) 19 Cal.4th 743, 746, 754
[upholding search conducted pursuant to parole condition requiring defendant to submit
his residence and property under his control to search by law enforcement].) In cases
10
been convicted of a crime and was still protected by the presumption of innocence, Minor
is a probationer. “Inherent in the very nature of probation is that probationers ‘do not
enjoy “the absolute liberty to which every citizen is entitled.” ’ [Citations.] Just as other
punishments for criminal convictions curtail an offender’s freedoms, a court granting
probation may impose reasonable conditions that deprive the offender of some freedoms
enjoyed by law-abiding citizens.” (United States v. Knights (2001) 534 U.S. 112, 119.)
For purposes of privacy, a search condition diminishes, albeit does not entirely preclude,
a probationer’s reasonable expectation of privacy. (In re Binh L., supra, 5 Cal.App.4th at
pp. 203–205.) Moreover, as a juvenile, Minor is “deemed to be more in need of guidance
and supervision than adults, and . . . [his] constitutional rights are more circumscribed.
The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents . . .
[and] may ‘curtail a child’s exercise of . . . constitutional rights.’ ” (In re Antonio R.
(2000) 78 Cal.App.4th 937, 941.) Accordingly, although we agree with Minor that his
right to privacy is implicated by the electronic search condition (People v. Appleton,
supra, 245 Cal.App.4th at p. 724 [“individuals retain a constitutionally protected
expectation of privacy in the contents of their own [electronics]”]), we nevertheless
involving probation or parole house search conditions, we have found no instances in
which courts have carved out exceptions for the same type of information Minor argues
could potentially be on his electronics. (But see People v. Appleton (2016)
245 Cal.App.4th 717, 725 [remanding for narrowing adult probationer’s electronic search
condition when electronics would be subject to forensic analysis].) Nor can we find any
evidence in the record that Minor keeps medical, banking, financial, or otherwise
intensely private information on his electronics. Even if that was the case, “[t]here is no
reason to believe the probation department has the resources to retrieve cell phone
records and scrutinize them line by line to detect potentially prohibited contacts [or
activities].” (In re Victor L., supra, 182 Cal.App.4th at p. 922.) Finally, although
electronic devices might potentially contain more data than a home, there is nothing in
the record suggesting this is true here.
11
disagree with his contention that the challenged condition is unconstitutionally
overbroad.7
Ebertowski, supra, 228 Cal.App.4th 1170 is, again, instructive. The defendant in
Ebertowski was a violent criminal street gang member who made threats to armed police
officers, physically resisted police officers, and promoted his gang on social media. (Id.
at p. 1175.) On appeal, he argued that his nearly identical electronic search condition
and, in particular, the condition that he turn over passwords to his devices and social
media, was unconstitutionally overbroad. The appellate court rejected the defendant’s
claim. (Ibid.) Instead, the court reasoned that the “minimal invasion” into the
defendant’s privacy resulting from enforcement of the electronic search condition,
including the password condition, was outweighed by the government’s interest in
protecting the public by ensuring that the defendant complied with his anti-gang
probation conditions. (Id. at p. 1176.) The court further stated, “The evident purpose of
the password conditions was to permit the probation officer to implement the search,
association, and gang insignia conditions . . . . Access to all of defendant’s devices and
social media accounts is the only way to see if defendant is ridding himself of his gang
associations and activities, as required by the terms of his probation.” (Id. at p. 1175.)
The same is true here. Like the defendant in Ebertowski, Minor requires intensive
supervision to ensure his compliance with his probation conditions. Minor is chronically
truant and has serious behavioral and educational issues, a difficult family life, and a
7
Minor’s reliance on United States v. Jones (2012) 565 U.S. __ [132 S.Ct. 945], a
case involving the warrantless installation of a GPS on a suspect’s vehicle, is misplaced
for the same reason. Jones did not involve a probationer and thus concluded that the
defendant’s reasonable expectation of privacy was higher than that which is afforded to
juveniles and/or probationers. (See In re Binh L., supra, 5 Cal.App.4th at pp. 203–205;
In re Antonio R., supra, 78 Cal.App.4th at p. 941.) Moreover, there is no indication in
the record that the juvenile court or probation department intended to install any sort of
tracking device or software on Minor’s electronics.
12
significant drug and alcohol problem. Minor also already tested positive for THC while
on probation. These collective circumstances justify the juvenile court’s imposition of a
broad electronic search condition as a means of adequately supervising Minor’s
compliance with his probation conditions and protect the public, as well as Minor, from
Minor’s future criminality. Moreover, given Minor’s limited reasonable expectation of
privacy, the intrusion into Minor’s right to privacy is outweighed by the state’s interest in
ensuring his rehabilitation. (See In re George F. (2016) __ Cal.App.4th __ [2016 WL
3540949] [upholding probation condition requiring juvenile to submit his electronic
devices and internet sites or social media accounts, including all passwords, pass codes,
and decryption information, for inspection by law enforcement]; In re Victor L., supra,
182 Cal.App.4th at pp. 920–921 [probation condition banning possession of cell phones
and pagers was not overbroad as it was narrowly tailored to prevent future criminal gang
activity]; In re Charles G. (2004) 115 Cal.App.4th 608, 615 [“the juvenile court has
statutory authority to order delinquent wards to receive ‘care, treatment, and guidance
that is consistent with their best interest, that holds them accountable for their behavior,
and that is appropriate for their circumstances’ ”].)
We further note that the record here does not support Minor’s assertions that the
electronic search condition actually intrudes into his privacy or “nearly every aspect” of
his life. Nothing in the record shows Minor even has a cell phone or any electronic
devices, and Minor does not point us to anything in the record showing any actual harms
stemming from their inspection.8 Thus, rather than speculate on how Minor’s privacy
8
At oral argument, Minor suggested that the onus should be on the juvenile court
to inquire into whether Minor had specific electronics or social media accounts in order
to identify each item or account to be inspected by the probation department and avoid
intrusion into those items it determined were personal in nature. We reject this
contention. The court has a duty to closely tailor a probation condition to a Minor’s
needs. (In re Sheena K., supra, 40 Cal.4th at p. 890.) It does not, however, have the
burden of conducting a line-by-line inventory and analysis of a probationer’s potential
objections to a probation condition. Minor here had the opportunity to support his
13
might be impacted by the search condition, we leave Minor to exercise his remedy in the
juvenile court should he have specific concerns about how the electronic search condition
impacts his privacy. (See § 1203.3, subd. (a) [defendant may file motion to modify
probation condition].)
In so holding, we recognize that our colleagues in P.O. concluded that a nearly
identical electronic search condition was overbroad as to the minor in question there, who
admitted to misdemeanor public intoxication. (P.O, supra, 246 Cal.App.4th at p. 298.)
The P.O. court, however, emphasized that the condition “[was] not sufficiently tailored
because P.O.’s needs [were] less severe and the condition’s purpose [was] accordingly
less expansive.” (Ibid.) That is not so here. As we have already explained, Minor’s
circumstances and needs are numerous and fairly severe. A broad electronic search
condition is appropriate for the level of supervision Minor requires.
In re White (1979) 97 Cal.App.3d 141, cited by minor, is also distinguishable. In
White, the defendant was convicted of prostitution and placed on probation conditions
including that she not be present within specific designated prostitution areas, including
where she used to live and where her friends and family resided. (Id. at p. 144.) She
contended the condition was overbroad and violated her right to travel. The court agreed
and remanded the matter to the trial court to modify the condition to pass constitutional
muster or strike it. (Ibid.) Here, we are not dealing with a restriction on Minor’s right to
travel but a search condition that is tailored to allow Minor’s adequate supervision while
he is on probation. Accordingly, White is inapposite.
C. Section 632
Finally, Minor argues that the electronic search condition poses a risk of illegal
eavesdropping under section 632.
objections to the electronic search condition by placing specific facts on the record, but
chose not to do so.
14
Section 632, subdivision (a) provides: “Every person who, intentionally and
without the consent of all parties to a confidential communication, by means of any
electronic amplifying or recording device, eavesdrops upon or records the confidential
communication, whether the communication is carried on among the parties in the
presence of one another or by means of a telegraph, telephone, or other device, except a
radio, [is subject to a fine, incarceration, or both].”
By failing to raise this issue below at the hearing or in his written motion on the
electronic search condition, Minor has forfeited this claim. (People v. Scott (1994)
9 Cal.4th 331, 351–354.) Moreover, Minor’s argument is premised on alleged harms to
third parties whose rights he is not entitled to assert. (B. C. Cotton, Inc. v. Voss (1995)
33 Cal.App.4th 929, 947–948 [“[C]ourts will not consider issues tendered by a person
whose rights and interests are not affected”].)
III. DISPOSITION
The juvenile court’s order is affirmed.
_________________________
Rivera, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
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Trial Court: Alameda County
Trial Judge: Hon. Leopoldo E. Dorado
Counsel for Defendant & Sejal H. Patel, by appointment of the Court of Appeal
Appellant: under the First District Appellate Project
Counsel for Plaintiff & Kamala D. Harris, Attorney General; Gerald A.
Respondent: Engler, Chief Assistant Attorney General; Jeffrey M.
Laurence, Senior Assistant Attorney General; Donna
M. Provenzano, Supervising Deputy Attorney General;
Hanna Chung, Deputy Attorney General
16