In re Amber K. ( 2020 )

Filed 2/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re AMBER K., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A155515
AMBER K.,
Defendant and Appellant. (Contra Costa County
Super. Ct. No. J17-01069)
After the juvenile court found that Amber K. had committed felony
assault by force likely to produce great bodily injury, it adjudged her a ward
of the court and imposed conditions of probation. Amber challenges the part
of the disposition order requiring her to submit electronic devices under her
control to warrantless searches of any medium of communication reasonably
likely to reveal whether she is complying with the terms of her probation. We
conclude that although an electronic search condition is appropriate here, the
condition imposed by the court is too broad to survive scrutiny under In re
Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), and therefore we strike it and
remand the matter to the juvenile court to consider imposing a revised
condition.
1
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Status Hearings
In October 2017, the district attorney filed a juvenile wardship petition
under Welfare and Institutions Code section 602,1 alleging that on September
13, 2017, Amber, who was then age 14, committed felony assault by force
likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) Amber
was later arrested on a warrant and booked into juvenile hall, where she told
the probation officer that on the relevant date she had been in a physical
fight at school with B., who at one time had been her best friend. Amber
reported that she had been expelled from school as a result and was now
attending a different school.
The juvenile court subsequently released Amber to home supervision
on an ankle monitor and ordered her to stay away from her former school and
have no contact with B. In February 2018, the juvenile court terminated
home supervision and the requirement that Amber wear an ankle monitor.
In August 2018, four days before the contested jurisdiction hearing, the
juvenile court held a hearing to address two incidents in which Amber
allegedly violated the court’s order to stay away from her former high school
and from B. After reviewing a report from the probation department and
hearing argument of counsel, the juvenile court found that Amber had
violated a court order and ordered her detained in juvenile hall.
B. Contested Jurisdiction Hearing
The prosecution offered testimony from B., who stated that on the date
in question she was a high school sophomore and was with her boyfriend at
lunch when they were approached by a student that B. did not know. The
1
Further statutory references are to the Welfare and Institutions Code
unless otherwise stated.
2
unknown student asked B. how she was doing, and while B. was focusing on
that student, Amber sneaked up from behind, grabbed B.’s hair and pulled
her down the small flight of stairs where she was standing. B. fell on the
ground on her back; Amber got on top of her and began punching her with a
closed fist. B. put her arms up to cover her head in self-defense, but Amber
punched her in the head, hit her face, and tried to slam her head into the
concrete. When B.’s boyfriend tried to help her while she was on the ground,
Amber’s friend W. and another person pushed him away. After a minute or
two, Amber got off B. As B. tried to stand up, Amber stomped on the side of
her face near her eye. This caused B. to fall back down and hit her head on
the ground, though her backpack prevented her head from hitting too hard.
The prosecution introduced as evidence photographs of B.’s injuries, and two
videos of the attack that were apparently taken on students’ cell phones. One
of the videos was posted on social media with the caption, “Baby girl rocked
the shit out of that bitch” followed by a laughing emoji.2
Amber testified in her defense that she and B. had been friends until
they had a falling out. Although B. never started a physical fight with
Amber, B. several times threatened to stomp her face in, once over the phone,
once over Snapchat, and several times when Amber walked past B. On the
day of the incident, Amber walked by B., who said, “Keep walking before I
stomp your face in.” B. also told friends, “Yeah, I could beat her ass in a
minute.” Amber testified she was scared that B. would hurt her, and decided
to approach B. that day “to see if we could just end it.” Before approaching
B., Amber changed from her tank top into a gym shirt so “would not get
scratched up” if B. or B.’s friends attacked her when she approached. Amber
2
The record does not reflect who posted the video, but the district
attorney later represented that the video was not posted by Amber.
3
denied that she had told her friend W. and the other person that she was
going to fight B.
The juvenile court sustained the allegation in the petition.
C. Disposition Hearing
The juvenile court adjudged Amber a ward of the court with no
termination date and placed her on home supervision for 90 days. The court
adopted the probation department’s recommended conditions of probation, as
well as an electronic search condition that the district attorney requested.
At the disposition hearing, the district attorney stated that
“immediately after the incident [Amber] had posted pictures on social media
of herself flipping off the camera, saying things like . . . I’m in jail or going.
Bitch, what the fuck you thought. And then some laughy-face emojis.”3 The
district attorney argued that “electronic search terms would be appropriate
considering the social media aspect of this all.”
The court addressed Amber’s counsel: “Mr. Rivera, I do think there is a
basis to issue as part of a condition of probation that she submit her
electronic devices to search and seizure to insure that she is complying with
the terms and conditions of her probation, which would be the no contact with
[B] and making sure that she’s not posting anything inappropriate on social
media.”
Amber’s counsel objected that the proposed condition was “overly
broad” and “not sufficiently tailored,” and that it did not meet the standard of
People v. Lent (1975) 15 Cal. 3d 481 (Lent) “in regard to future criminality,
and [the condition is] not reasonably related to the offense.”
3
Amber does not dispute that she made such posts. The district
attorney characterized Amber’s posts as “relating to her feelings of the fight.”
4
The juvenile court then imposed the requested electronic search
condition, stating as follows:
“Well, I am imposing it because I certainly think it is an
appropriate condition to make sure there is no contact at all with [B],
and to insure that she is abiding by the terms and conditions of her
probation.
“. . . .
“I am concerned that she did, even after this, post something on
social media. Her grandmother talked about the fact that social media
she felt was behind part of this bad blood, but I do think it is
appropriate that she is complying with the terms and conditions of her
probation.
“So I am ordering that Amber submit her cellphone or any other
electronic device under her control to a search of any medium of
communication reasonably likely to reveal whether she is complying
with the terms of her probation, with or without a warrant at any time
of the day or night. Such communication includes text messages, voice-
mail messages, photographs, email accounts and other social media
accounts and applications such as Snapchat, Instagram, Facebook and
Kik. You shall provide access codes to probation or any other peace
officer upon request in order to effectuate such a search.”
The juvenile court expanded on the requirement that Amber have no
contact with B: “Essentially you must not contact [B.] either directly or
indirectly in anyway, including but not limited to in person, by telephone, in
writing, by public or private mail, by inter-office mail, by email, by text
message, by fax or any other electronic means, you are not to contact [B.] at
all.”
5
DISCUSSION
Amber asks us to strike or modify the electronic search condition,
arguing that it is invalid under Lent and Ricardo P. and is overbroad in its
infringement on her constitutional rights to privacy. The Attorney General
argues that the condition is neither invalid nor overbroad, and asks us to
affirm or, if we find the condition is overbroad, to remand for the trial court to
modify it. We conclude that the condition does not meet the requirements of
Lent and Ricardo P. because as presently worded it imposes a burden that is
not proportionate to the legitimate interest it serves, which is to make sure
that Amber has no contact with B. (See Ricardo P., supra, 7 Cal.5th at p.
1122.) On that basis we strike the condition and remand the matter to the
juvenile court for further consideration. We need not, and do not, reach the
constitutional issues.
A. Applicable Law
We summarized some of the relevant law in In re Edward B. (2017) 10
Cal.App.5th 1228 (Edward B.): “The juvenile court is authorized to ‘impose
and require any and all reasonable conditions that it may determine fitting
and proper to the end that justice may be done and the reformation and
rehabilitation of the ward enhanced.’ (§ 730, subd. (b).) We review the
juvenile court’s probation conditions for abuse of discretion. (In re P.A. (2012)
211 Cal. App. 4th 23, 33.)
“Well-established principles guide our review. ‘ “The state, when it
asserts jurisdiction over a minor, stands in the shoes of the parents”
[citation], thereby occupying a “unique role . . . in caring for the minor’s well
being.” [Citation.] . . . [¶] The permissible scope of discretion in formulating
terms of juvenile probation is even greater than that allowed for adults.
“[E]ven where there is an invasion of protected freedoms ‘the power of the
6
state to control the conduct of children reaches beyond the scope of its
authority over adults.’ ” [Citation.] . . . Thus, “ ‘a condition of probation that
would be unconstitutional or otherwise improper for an adult probationer
may be permissible for a minor under the supervision of the juvenile court.’ ”
[Citations.]’ (In re Victor L. (2010) 182 Cal. App. 4th 902, 910 . . . .)
“The juvenile court’s discretion in imposing conditions of probation is
broad but not unlimited. (In re D.G. (2010) 187 Cal. App. 4th 47, 52 (D.G.).)
Our Supreme Court has stated criteria for assessing the validity of a
probation condition: Upon review, ‘[a] condition of probation will not be held
invalid unless it “(1) has no relationship to the crime of which the offender
was convicted, (2) relates to conduct which is not in itself criminal, and (3)
requires or forbids conduct which is not reasonably related to future
criminality[.]” ’ (Lent, supra, 15 Cal.3d at p. 486.) ‘Conversely, a condition of
probation which requires or forbids conduct which is not itself criminal is
valid if that conduct is reasonably related to the crime of which the defendant
was convicted or to future criminality.’ (Ibid.) Adult and juvenile probation
conditions are reviewed under the Lent criteria. (D.G., supra, 187
Cal.App.4th at p. 52.) A condition that would be improper for an adult is
permissible for a juvenile only if it is tailored specifically to meet the needs of
the juvenile. (Id. at p. 53.) In determining reasonableness, courts look to the
juvenile’s offenses and social history. (Ibid.)” (Edward B., supra, 10
Cal.App.5th at pp. 1232-1233.)
B. Analysis
We agree with Amber that the record does not show a relationship
between her use of electronic devices and the offending conduct sufficient to
justify the electronic search condition under the first prong of Lent. Although
the record suggests that the assault resulted from hostility between Amber
7
and B that had played out in part over social media, we are not persuaded by
the Attorney General’s contention that “substantial evidence in the record
connects appellant’s use of electronic devices and social media to the assault.”
The Attorney General states that the assault was filmed by fellow students
and distributed on Snapchat, but he points to no evidence that Amber
arranged for the filming or distribution. In addition, although there is
evidence that B used electronic devices and social media to communicate
about Amber, the only information in the record concerning Amber’s use of
social media is the district attorney’s statement at the disposition hearing
that Amber posted about the fight after it took place.
Amber’s use of electronic devices is obviously not in itself unlawful (the
second prong of Lent), and therefore the electronic search condition is invalid
under Lent unless it is reasonably related to Amber’s future criminality, the
third prong. (Lent, supra, 15 Cal.3d at p. 486.)
In Ricardo P., our Supreme Court discussed the Lent requirement of
reasonable relatedness to future criminality in the context of an electronic
search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) There, the
defendant admitted allegations that he committed two felony burglaries. (Id.
at p. 1116.) The probation conditions imposed by the juvenile court included
drug testing, prohibitions on using illegal drugs and alcohol, and prohibitions
on associating with people whom Ricardo knew to use or possess illegal
drugs. (Ibid.) The juvenile court also imposed a condition requiring the
minor to submit his electronics, including passwords, to warrantless search
at any time of the day or night. (Id. at pp. 1116-1117.) The condition was
imposed solely to allow probation officers to monitor whether Ricardo was
communicating about drugs or with people associated with drugs (id. at pp.
1116-1117, 1119), but the language of the search condition did not reflect its
8
limited purpose. In the absence of any evidence that electronic devices were
connected to the commission of the burglaries, or that Ricardo used electronic
devices in connection with drug use or any other criminal activity, our
Supreme Court concluded that the electronic search condition was invalid
under Lent because the burden it imposed on his privacy was “substantially
disproportionate to the condition’s goal of monitoring and deterring drug use”
(id. at pp. 1119-1120) and therefore not reasonably related to future
criminality. (Id. at p. 1122.) Although our Supreme Court emphasized that
it was not categorically invalidating electronic search conditions, it affirmed
the Court of Appeal’s judgment striking the condition and directed that the
case be remanded to the juvenile court for further proceedings. (Id. at pp.
1128-1129.) The Supreme Court did not reach the issue whether the record
might support a narrower search condition, such as one limited to electronic
information reasonably likely to reveal whether Ricardo was communicating
about drugs, nor how such a condition might be phrased. (See id. at p. 1124.)
Our colleagues in Division Four applied the Ricardo P. standard in In
re Alonzo M. (2019) 40 Cal.App.5th 156, 160 (Alonzo M.), a case where the
minor admitted grand theft of a person, taking property valued at more than
$950, and pleaded no contest to misdemeanor burglary. The juvenile court
imposed various conditions of probation, including that Alonzo stay away
from his co-responsibles and from other people of whom his parents or the
probation officer disapproved, and an electronic search condition for the
purpose of addressing Alonzo’s admitted susceptibility to negative social
influences. (Id. at pp. 166-167.) The actual terms of the search condition,
however, reached beyond the stated purpose and, though not as broad as the
condition in Ricardo P., authorized the search of any medium of
communication reasonably likely to reveal whether the minor was complying
9
with any of the terms of his probation, not limited to terms related to Alonzo’s
susceptibility. (Id. at p. 167; compare Ricardo P., supra, 7 Cal.5th at pp.
1116-1117.) Even though the record in Alonzo M. showed that minor spent a
significant amount of time using electronic devices, and the Court of Appeal
concluded that an electronic search condition would be permissible as
reasonably related to minor’s future criminality, our colleagues concluded
that the challenged condition was invalid because it “burden[ed] Alonzo’s
privacy in a manner substantially disproportionate to the probation
department’s legitimate interest in monitoring Alonzo’s compliance with the
stay-away orders.” (Alonzo M., supra, 40 Cal.App.5th at p. 168.) The Court
of Appeal struck the condition and remanded the case to the juvenile court
“so the court may consider whether to adopt an electronic search condition
consistent with this opinion.” (Ibid.)
In Amber’s case, the juvenile court had previously found that Amber
violated its stay-away order, and the record indicates that Amber expressed
hostility toward B not only in face-to-face contact, but in social media posting
after the assault. The juvenile court made clear that as a condition of
probation Amber was to have no contact, direct or indirect, with B. In these
circumstances, even in the absence of evidence that Amber ever used
electronic devices for any other purpose, we see no abuse of discretion in the
juvenile court imposing an electronic search condition to make sure that
Amber has no contact with B. But the juvenile court here went further, by
authorizing electronic searches for the broader purpose of insuring that
Amber was complying with all the probation conditions. Although the court
tailored the condition by identifying examples of the types of communication
subject to search, the condition was broadly worded to cover media
“reasonably likely to reveal whether she is complying with the terms of her
10
probation,” not limited to the term that Amber have no contact with B. Like
the court in Alonzo M., we conclude that “[t]his wide-ranging search clause
burdens [Amber’s] privacy in a manner substantially disproportionate to the
. . . legitimate interest in monitoring [her] compliance with” the no-contact
order. (Alonzo M., supra, 40 Cal.App.5th at p. 168.) Accordingly we strike
the condition and remand the case to the juvenile court.
DISPOSITION
The disposition order is affirmed, except that the electronic search
condition is stricken. The matter is remanded to the juvenile court to
consider whether to impose a revised condition consistent with this opinion.
11
_________________________
Miller, J.
We concur:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A155515, People v. Amber K.
12
Trial Court: Superior Court of Contra Costa County
Trial Judge: Hon. Barbara C. Hinton
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant
and Appellant
Xavier Becerra, Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, Rene A. Chacon and Masha A. Dabiza, Deputy Attorneys General,
for Plaintiff and Respondent
A155515, People v. Amber K.
13