In re Roman P. CA1/3 ( 2015 )

Filed 10/30/15 In re Roman P. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re ROMAN P., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ROMAN P., A143468
Defendant and Appellant. (Contra Costa County
Super. Ct. No. JV1400053)
Roman P., a minor, appeals from a dispositional order issued pursuant to Welfare
& Institutions Code section 602 after the juvenile court sustained a misdemeanor battery
allegation. Roman contends a probation condition requiring him to submit any cell
phones and other electronic devices to search and seizure is unreasonable under People v.
Lent (1975) 15 Cal. 3d 481 (Lent) and unconstitutionally vague and overbroad. Roman
also contends his attorney’s failure to object to the search condition deprived him of his
right to the effective assistance of counsel. We agree the condition is unreasonable and
invalid under Lent and modify the dispositional order to strike it. As modified, we
affirm.
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BACKGROUND
The battery charge against Roman stemmed from an incident at Alliance Program,
a high school for special needs students. On the morning in question Roman had been
turned away from the school office several times and told to return to class. Later
another student opened the office door and Roman again tried to enter. School secretary
Maureen Totah blocked the doorway with her arms and told Roman he could not come
in. Roman grabbed and twisted Totah’s arm and tried to push her out of his way.
Roman’s version of the incident was that he unintentionally bumped Totah’s arm with his
chest when she barred the door as he was heading into the office.
The juvenile court found Roman committed a misdemeanor battery on a school
employee, adjudged him a ward of the court with no termination date and ordered that he
live with his mother with 60 days of supervision by the probation officer. Without
objection, the court imposed a probation condition requiring that Roman “[s]ubmit
person, property, any vehicle under Minor’s control, any cell phone or any other
electronic device in their possession and residence to search and seizure by any peace
officer at any time of day or night with or without a warrant.” (Italics added.) Roman
timely appealed.
DISCUSSION
Roman challenges the electronics search condition as unconstitutionally overbroad
and vague because (1) permitting officers to search his cell phone and other electronic
devices unconstitutionally infringes his and third parties’ privacy rights; and (2) the
search condition “captures digital devices such as an electronic photograph frame or a
Kindle reader, neither of which is illegal to possess or is likely to contain evidence of
crimes.” Roman also contends the probation condition is invalid under the standards
articulated in Lent.
The People assert the Lent issue was forfeited, but they analyze Roman’s assertion
of unconstitutional vagueness and overbreadth as strictly facial challenges to the
electronics search condition. We do not believe the search condition can be analyzed for
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either constitutional or Lent error without reference to Roman’s offense and personal
history and circumstances. Because these objections were not raised below and cannot
adequately be evaluated without reference to the record (compare, e.g., In re Sheena K.
(2007) 40 Cal. 4th 875 (Sheena K.) [overbreadth and vagueness challenges to probation
condition forbidding association with anyone disapproved of by probation presented pure
question of law]), they were arguably forfeited by trial counsel’s failure to object.
But “an appellate court may review a forfeited claim—and ‘[w]hether or not it
should do so is entrusted to its discretion.’ ” (Sheena K., supra, 40 Cal.4th at p. 887, fn.
7.) The constitutional privacy implications of the electronics search condition at issue
(see generally Riley v. California (2014) __U.S.__, __ [134 S. Ct. 2473, 2494–2495]) and
the frequency with which we have lately seen it imposed on juvenile offenders without
apparent consideration of its relevance to their offenses or unique circumstances persuade
us to exercise that discretion here.1
I. Legal Principles
Welfare and Institutions Code section 730 authorizes the juvenile court 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.” (Welf. & Inst. Code, §730, subd. (b), italics added.) In planning conditions
of probation, the juvenile court must consider the minor’s entire social history, in
addition to the circumstances of the offense. (In re Todd L. (1980) 113 Cal. App. 3d 14
(Todd L.).)
The juvenile court has broad discretion to formulate reasonable probation
conditions. (In re Tyrell J. (1994) 8 Cal. 4th 68, 81, overruled on other grounds in In re
Jaime P. (2006) 40 Cal.4th128, 130; In re Josh W. (1997) 55 Cal. App. 4th 1, 5 (Josh W.).)
Because juvenile probation conditions are imposed on the minor to ensure his
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We therefore need not decide whether trial counsel’s failure to object to the
probation condition deprived Roman of his constitutional right to the effective assistance
of counsel.
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rehabilitation, “[a] condition of probation which is impermissible for an adult criminal
defendant is not necessarily unreasonable for a juvenile receiving guidance and
supervision from the juvenile court.” (Todd L., supra, 113 Cal.App.3d at p. 19; In re
Frankie J. (1988) 198 Cal. App. 3d 1149, 1153.) Indeed, a juvenile court may impose a
condition of probation that would be unconstitutional in an adult context, ‘so long as it is
tailored to specifically meet the needs of the juvenile.” (Josh W., supra, at p. 5.) “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. The state, when it
asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may
‘curtail a child’s exercise of the constitutional rights . . . [beause a] parent’s own
constitutionally protected “liberty” includes the right to “bring up children” [citation] and
to “direct the upbringing and education of children.” [Citation.]’ [Citations.]” (In re
Antonio R. (2000) 78 Cal. App. 4th 937, 941.)
But the juvenile court’s discretion is not unlimited. As stated in Lent, a probation
condition is unreasonable if 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.) All three prongs of the Lent test must be satisfied to render a
probation term invalid. (People v. Olguin (2008) 45 Cal. 4th 375, 379; In re D.G. (2010)
187 Cal. App. 4th 47, 52 (D.G.) [Lent standard applies to juveniles].) In addition, a
juvenile court may not adopt probation conditions that are unconstitutionally vague or
overbroad. (Sheena K., supra, 40 Cal.4th at pp. 889–891; In re Victor L. (2010) 182
Cal. App. 4th 902, 910 (Victor L.).) Under the overbreadth doctrine, “conditions of
probation that impinge on constitutional rights must be tailored carefully and reasonably
related to the compelling state interest in reformation and rehabilitation.” (Victor L.,
supra, 182 Cal.App.4th at p. 910.)
While we generally review the court’s imposition of a probation condition for
abuse of discretion, we review constitutional challenges to probation conditions de novo.
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(In re Shaun R. (2010) 188 Cal. App. 4th 1129, 1143.) In an appropriate case, a probation
condition that is not sufficiently precise or narrowly drawn may be modified in this court
and affirmed as modified. (See, e.g., Sheena K., supra, 40 Cal.4th at p. 892; People v.
Lopez (1998) 66 Cal. App. 4th 615, 629.)
II. Analysis
Is the electronic device search condition related to Roman’s crime? No. Roman’s
only adjudicated offense was misdemeanor battery committed when he grabbed and
pushed the school secretary’s arm to gain entry into the school office. Permitting
searches of any cell phone or other electronic device in his possession has no relationship
to his actions. The People hypothesize that Roman’s attempt to push his way into the
school office shows that he must be “deterred from using cell phones or other electronic
devices to bypass security devices at school,” but this seems farfetched. Nothing in the
record indicates Roman possesses the technological capabilities or predilections that
require monitoring to protect the school from electronically-aided breaking and entry.
The People also suggest that Roman might use a phone to solicit other students to help
him break into the school office, but there is no evidence that Roman enlisted other
students, let alone by electronic means, to help him commit the adjudicated offense.
More generally, it can always be hypothesized that an offender (with or without the
assistance of a cell phone) might enlist others to help him commit a crime, so the
People’s rationale would seemingly justify imposing an electronics search condition for
any offense, no matter how ephemeral its connection to the use of electronic
communications.
On the second Lent prong, the People justify the electronics search condition
because a cell phone or computer, while not in itself illegal, “can be the instrumentality
of a crime.” Here too, we are unpersuaded. “[T]he second part of the Lent test is not
satisfied merely because a condition precludes conduct that can occur in a manner that is
illegal. Rather, it is satisfied only by a condition that precludes conduct that is ‘itself’
criminal.” (D.G., supra, 187 Cal.App.4th at p. 55.) As observed in D.G., under the
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People’s theory Roman could be barred from driving a car “because it is possible to
speed and drive recklessly.” We also reject such an expansive interpretation of the
second Lent prong.
The People argue the search condition is reasonably related to future criminality
under the third Lent prong because it “will deter Roman from planning crimes with any
electronic devices in the future.” Again, nothing in the record indicates Roman has any
disposition to plan crimes using cell phones or computers. The People suggest that his
admission to relatively minimal experiences with marijuana and alcohol supports the
search condition because it may deter him from using or possessing drugs or alcohol in
the future, but “[n]ot every probation condition bearing a remote, attenuated, tangential,
or diaphanous connection to future criminal conduct can be considered reasonable.”
(People v. Brandao (2012) 210 Cal. App. 4th 568, 574.) Absent any evidence indicating
Roman is disposed to use electronic devices in connection with misbehavior, “there is no
reason to believe the current restriction will serve the rehabilitative function of precluding
appellant from any future acts.” (D.G., supra, 187 Cal.App.4th at p. 53; cf. People v.
Ebertowski (2014) 228 Cal. App. 4th 1170, 1176–1177 [Lent standard satisfied where
evidence showed defendant was a gang member who used social media to promote his
gang].)
We conclude the electronics search condition imposed on Roman is invalid under
Lent. In light of our determination, we will not address Roman’s constitutional
arguments. (In re Henry G. (1972) 28 Cal. App. 3d 276, 278–279 [“[i]t is elementary that
a court will not decide a constitutional question unless absolutely necessary”].)
DISPOSITION
The search condition of the dispositional order granting probation is modified to
strike the phrase “any cell phone or any other electronic device,” so that it reads “Submit
person, property, any vehicle under Minor’s control, and residence to search and seizure
by any peace officer at any time of day or night with or without a warrant.” As so
modified, the dispositional order is affirmed.
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_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Pollak, J.
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