People v. George F. , 203 Cal. Rptr. 3d 607 ( 2016 )

Filed 6/28/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re GEORGE F., a Person Coming
Under the Juvenile Court Law.
D069227
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J235534)
v.
GEORGE F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Browder A.
Willis III, Judge. Affirmed.
Sheila O'Conner, by appointment of the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A petition was filed with the juvenile court under Welfare and Institutions Code
section 602 alleging that George F. committed a lewd and lascivious act upon a child
under the age of 14 (Pen. Code,1 § 288, subd. (a); count 1), and that George willfully
annoyed and molested a child under the age of 18. (§ 647.6, subd. (a); count 2.) The
People offered to dismiss count 1 if George admitted to count 2. George admitted to
count 2 and the juvenile court found a factual basis for that admission. The court then
granted the People's motion to dismiss count 1, declared George a ward of the court, and
ordered him to juvenile probation on various terms and conditions.
George appeals contending that the conditions of his probation restricting his use
of electronics or requiring the submission of those electronics to search are (1) invalid
under People v. Lent (1975) 15 Cal. 3d 481 (Lent) and (2) unconstitutionally overbroad.
We disagree.
FACTS
The juvenile court found the following factual basis for George's admission:
"[O]n or about January 4th of 2014, George did willfully, unlawfully
annoy, [and] molest [a child], who was six years old at the time by
laying on top of her and kissing her, and when he laid on top of her,
he touched her with his body in violation of Penal Code section
647.6(a), a misdemeanor."
At George's disposition hearing, the probation department recommended the
following probation conditions relevant to this appeal:
1 All further statutory references are to the Penal Code unless otherwise specified.
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"16. The minor shall not knowingly possess sexually explicit
material as defined by the California Code of Regulations, title 15,
section 3006, subdivisions (c)(1)(A).
"17. The minor shall not knowingly access the Internet or any on-
line service through use of an electronic device such as a computer,
electronic notepad or cell phone, at any location (including school)
without the prior approval by the probation officer.
"18. The minor shall provide all passwords and pass phrases to
unlock or unencrypt any file, system, or data of any type, on any
electronic devices, such as a computer, electronic notepad, or cell
phone, to which the minor has access. Minor shall submit those
devices to a search at any time without a warrant by any law
enforcement officer, including a probation officer.
"19. The minor shall provide all passwords or pass phrases to any
internet sites or social media sites, such as Facebook, Twitter,
SnapChat, or Google+, used or accessed by the minor. When asked
by any law enforcement officer, including a probation officer, the
minor shall submit those websites to a search at any time without a
warrant. The minor shall not knowingly clean or delete his or her
Internet browsing.
"20. The minor shall not knowingly use any tool, site, software,
device, or procedure that will tend to hide the minor's identity or
Internet or computer activity, such as Anonymizer, remailers,
Zeroknowledge, wipe or file shredder, or similar program.
"21. The minor shall use his or her first and last name when
registering or opening accounts, websites, or sending electronic
communications. The minor shall not knowingly provide false
information about his or her identity to any provider of an 'electronic
communication service' as defined under paragraph 15 of section
2510 of Title 18 of the United States Code when purchasing,
subscribing to, or agreeing to purchase any service from that
provider that allows the minor to send or receive electronic
communications.
"22. The minor grants consent to any Internet service provider,
telecommunications provider, or electronic communications service
provider to provide any law enforcement officer, including the
probation officer, with subscriber information and content of any
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data related to or held on behalf of the minor during the probationary
period.
"34. The minor shall not knowingly have any direct or indirect
contact with the victim(s) . . . either directly or indirectly in any way,
including, but not limited to, in person, by telephone, by texting, in
writing, by public or private mail, by email or fax, or by any other
electronic means.
"35. The minor shall not knowingly associate with children whom
the minor knows or reasonably should know are under the age of 10
and shall not frequent places where children whom the minor knows
or reasonably should know are under the age of 10 congregate,
unless in the company of a responsible adult over the age of 21 who
is aware of the allegations filed against the minor and aware that the
minor is on probation for PC647.6(a).
"43. The minor shall not knowingly access phone/internet services
or subscribers including 1-900 numbers, which he or she knows, or
reasonably should know, contain sexually explicit content, as
defined by the California Code of Regulations, title 15, section 3006,
subdivision (c)(1)(A), and the minor's parents/guardians will be
required to provide the probation department with copies of phone
bills upon request.
"45. The minor shall not knowingly frequent websites or adult
bookstores or any other place the minor knows or reasonably should
know contain pornographic materials. The minor shall not
knowingly purchase or possess any pornography or sexually explicit
materials, having been informed by the probation officer that such
items are pornographic or sexually explicit. The probation officer
shall provide the minor and the minor's parent/guardian with a
written notice that defines what are considered 'pornographic' or
'sexually explicit' materials or images.
"46. The minor shall not knowingly access any website that he or
she knows, or reasonably should know, contains sexually explicit
content.
"47. The minor shall not knowingly use any electronic device, such
as a computer, electronic notepad, or cell phone, for any purpose
other than school-related assignments, or legitimate work or personal
purposes. The minor is to be supervised when using an electronic
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device such as a computer, electronic notepad, or cell phone, by a
responsible adult over the age of 21 who is aware that the minor is
on probation, is aware of the minor's charges, and is aware of the
limits on the minor's computer use. The probation officer shall
provide the minor and the minor's parent/guardian with a written
notice that defines what are legitimate school, work or personal uses.
"48. The minor is not to use a computer for any purpose other than
school related assignments. The minor is to be supervised when
using a computer in the common area of his/her residence or in a
school setting.
"49. The minor shall not knowingly utilize the password protect
function on any file or electronic device, such as a computer,
electronic notepad, or cell phone he/she uses.
"50. The minor's 4th Amendment waiver extends to any electronic
device, such as a computer, electronic notepad, or cell phone, which
the minor uses or to which the minor has access. The minor's 4th
Amendment waiver also extends to any remote storage of any files
or data which the minor knowingly uses or to which the minor has
access. The minor agrees to submit to a search of any electronic
device, such as a computer, electronic notepad, or cell phone, at any
time without a warrant by any law enforcement officer, including a
probation officer."
The People did not oppose striking conditions 47 and 48. The court struck those
conditions, and imposed all others recommended. George objected to conditions 17, 19,
and 20 for lack of "nexus" to the crime, and to conditions 21 and 22 for both lack of
nexus to the crime and overbreadth under the Fourth Amendment. In objecting to
condition 22, defense counsel said, "At this point we are not in a position to agree to a
blanket fourth-amendment waiver of consent."
DISCUSSION
George contends that the conditions of his probation restricting his use of
electronics or requiring the submission of those electronics to search are (1) invalid under
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Lent, and (2) unconstitutionally overbroad. (Lent, supra, 15 Cal. 3d 481; In re Sheena K.
(2007) 40 Cal. 4th 875.) We review the Lent challenge for abuse of discretion, and the
constitutional challenge de novo. (People v. Welch (1993) 5 Cal. 4th 228, 233.)
As a preliminary matter, respondent argues that George forfeited his right to
appeal the conditions to which he did not object, or object on the same grounds as he
appeals, at the disposition hearing. We need not address whether George forfeited his
claims, because we find the probation conditions valid on the merits of this appeal.
Legal Principals
The court may impose on a juvenile probationer "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).) Under Lent, "a condition of probation which requires or forbids conduct
which is not itself criminal is valid if that conduct is reasonably related to the crime of
which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at
p. 486.) "[A] probation condition is unconstitutionally overbroad if it imposes limitations
on the probationer's constitutional rights and it is not closely or narrowly tailored and
reasonably related to the compelling state interest in reformation and rehabilitation."
(People v. Forrest (2015) 237 Cal. App. 4th 1074, 1080.) A condition that "is reasonably
related to the supervision of defendant" is reasonably related "to his rehabilitation and
potential future criminality." (People v. Olguin (2008) 45 Cal. 4th 375, 380 (Olguin).)
Despite the holding in Olguin, supra, 45 Cal. 4th 375, in In re Erica R. (2015) 240
Cal. App. 4th 907 (Erica R.), the First District held that the imposition of probation
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conditions which required the minor to submit electronic devices and passwords to search
were not valid where that minor's offense was possession of ecstasy. (Id. at p. 914.) The
First District echoed their ruling in Erica R. in In re J.B. (2015) 242 Cal. App. 4th 749,
757-759 (J.B.), where they held Olguin did not justify a similar probation condition
where the minor's offense was petty theft. We decline to follow either case for reasons
specified below.
Analysis
By molesting a six-year-old girl, George demonstrated a sexual attraction to
children. In exercising its discretion, a trial court could reasonably infer an increased risk
that George would seek to possess child pornography or contact potential victims as the
result of the attraction he demonstrated. Possessing child pornography and contacting
children with the intent to commit sexual offense are criminal acts; therefore, restricting
George's access to children and sexually explicit content, in light of the risks inferred
from the nature of his offense, relates to future criminality. (§§ 311.11, 288.3.) The
restrictions to that effect are uncontested in this case: conditions 16, 43, 45 and 46 all
forbid George from accessing sexually explicit materials, and conditions 34 and 35 forbid
George from contacting the victim and associating with children under the age of 10
respectively.
The internet can be used to download child pornography, and facilitate
associations with children. The contested conditions (17, 18, 19, 20, 21, 22, 49, 50) in
summary, require George to get permission to use a computer, disclose his passwords to
law enforcement, refrain from obscuring his identity while online, and submit his
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electronic devices to search. These contested conditions reasonably relate to the
probation department's supervision of George, because compliance with these conditions
provides the probation department with the practical information necessary to enforce the
uncontested conditions (16, 34, 35, 43, 45, 46). Because Olguin provided that probation
conditions reasonably related to a probationer's supervision are reasonably related to the
probationer's future criminality and rehabilitation by extension, and George's conditions
are reasonably related to his supervision, George's conditions are valid under Lent, supra,
15 Cal. 3d 481 and constitutional. (Olguin, supra, 45 Cal.4th at p. 380; Lent, supra, at
p. 486.)
George argues that we should not read the rule from our Supreme Court's decision
in Olguin, supra, 45 Cal. 4th 375 to apply to his case, because the First District has
rejected similar probation conditions in petty theft and drug possession cases, despite the
holding in Olguin. (See, J.B., supra, 242 Cal. App. 4th 749; Erica R., supra, 240
Cal. App. 4th 907.) In doing so, the First District noted that Olguin involved an adult
probationer, and unlike adults, juveniles cannot choose to be incarcerated rather than
submit to probation and its conditions. (J.B., supra, at p. 756, citing Erica R., supra, at
p. 914.) The court noted further, that a broad reading of Olguin could undermine the
limitations prescribed in Lent, supra, 15 Cal. 3d 481. (J.B., supra, at p. 757.)
Essential to George's rehabilitation, is deterring him from reoffending. The
conditions the trial court imposed on George do just that, by making sure George knows
that if he strays, his probation officers will find out. The wisdom in Olguin, supra, 45
Cal. 4th 375, is that effective supervision of a probationer deters, and is therefore related
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to, future criminality. Thus, upholding probation conditions through Olguin does not
undermine the limits imposed by Lent, supra, 15 Cal. 3d 481.
Furthermore, the notion a juvenile's inability to refuse probation would decrease
the permissible breadth of conditions like those in this case, is inconsistent with the
parental role of the court and its broader discretion for probationary sentencing in
juvenile matters. (In re Antonio R. (2000) 78 Cal. App. 4th 937, 941.) Our Supreme Court
has said, " ' "[because] juvenile probation is not . . . an act of leniency in lieu of statutory
punishment . . . 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." ' " (In re Sheena K., supra, 40 Cal.4th at p. 889.) In other words,
the court may impose broader probation conditions on juveniles than it may adults,
because for juveniles, probation is not an alternative to their punishment, it is their
punishment.
In any event, the instant case is distinguishable from Erica R., supra, 240
Cal. App. 4th 907 and J.B., supra, 242 Cal. App. 4th 749. The connection between child
molestation and digital child pornography or online sexual material is less attenuated than
that between electronic communication and the offenses in drug possession or theft cases.
In turn, conditions which facilitate the supervision of a sex offender's electronics are
more reasonably related to future criminality than those which facilitate the supervision
of thieves' and drug possessors' electronics. With that in mind, we affirm the lower
court's order imposing conditions of George's probation which restrict his use and allow
the search of electronics.
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DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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