In re R.R. CA6 ( 2020 )

Filed 9/24/20 In re R.R. CA6
Inadvertently not posted on 9/24/20
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re R.R., a Person Coming Under the H047519
Juvenile Court Law. (Monterey County
Super. Ct. No. 19JV000855)
THE PEOPLE,
Plaintiff and Respondent,
v.
R.R.,
Defendant and Appellant.
The minor, R.R., admitted to aiding and abetting the commission of the
substantive offense of active participation in a criminal street gang. The juvenile court
declared him a ward and placed him on probation. On appeal from the dispositional
order, the minor challenges two of his probation conditions—one requiring him to submit
to warrantless searches of his electronic devices and one requiring him to complete a drug
and alcohol class—as unreasonable. He also asserts an overbreadth challenge to the
electronic search condition. We will reverse the dispositional order and remand the
matter to the juvenile court with instructions to strike the electronic search condition and
to consider whether to impose a more tailored condition consistent with the principles
articulated in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).
I. BACKGROUND
We take the facts from the probation report.
After school on September 18, 2019, the minor—an eighth grader—and three of
his friends got into a fight with two seventh graders. One of the minor’s friends (A.E.)
called the victims “scraps” during the fight. “Scrap” is a derogatory term Norteño gang
members use to refer to Sureño gang members. (People v. Prunty (2015) 62 Cal.4th 59,
68.) The minor and his three friends were arrested. Another of the minor’s friends
(S.M.) indicated that he affiliates with a Norteño subset when he was booked into
juvenile hall.
In September 2019, the Monterey County District Attorney filed a petition under
Welfare and Institutions Code section 602, subdivision (a) alleging that the minor had
committed assault by means likely to produce great bodily injury (Pen. Code, § 245,
subd. (a)(4);1 count 1) and the substantive offense of active participation in a criminal
street gang (§ 186.22, subd. (a); count 2). The petition alleged that the minor committed
the assault for the benefit of, at the direction of, and in association with a criminal street
gang (§ 186.22, subd. (b)(1)).
On October 10, 2019, the minor admitted that he aided and abetted the
commission of the substantive offense of active participation in a criminal street gang.
The juvenile court determined the offense to be a felony.
At a dispositional hearing on November 1, 2019, the court declared the minor a
ward of the juvenile court, placed him on probation, and ordered him to serve 17 days in
juvenile hall with credit for 17 days served. The court imposed various probation
conditions, including two conditions to which the minor’s counsel objected. The first
objected-to condition requires the minor to “[s]ubmit all electronic devices under [his]
control to a search by the probation officer or a peace officer, of any text messages,
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
voicemail messages, call logs, photographs, e-mail accounts, Internet sites and social
media accounts, with or without reasonable or probable cause or the benefit of a search
warrant, at any time of the day or night and provide the probation or peace officer with
any passwords necessary to access the information specified, . . . not [to] change or add
any email addresses or passwords without prior permission of [his] Probation Officer,”
and not to “knowingly clean or delete his . . . Internet browsing history without prior
permission from [his] Probation Officer.” We refer to this condition as the electronic
search condition. The second objected-to condition requires the minor to “participate in
and complete a drug/alcohol program or class.” The court also imposed gang conditions2
and conditions prohibiting the minor from contacting the victims and from associating or
communicating with the other minors with whom he was arrested.
The minor timely appealed.
II. DISCUSSION
A. Challenges to the Electronic Search Condition
The minor challenges the electronic search condition as invalid under People v.
Lent (1975) 15 Cal.3d 481 and Ricardo P. and as unconstitutionally overbroad.
2
The court imposed the following gang terms and conditions: “15. You are not to
be out of your home between 8:00 p.m. and 6:00 a.m. unless accompanied by your
mother/father or legal guardian(s), without approval of the Probation Officer.
[¶] 16. You are not to associate with anyone known to you to be a member of any gang
as directed by your Probation Officer. [¶] 17. You are not to knowingly possess, display,
or wear any insignia, clothing, logos, emblems, badges, caps, hats, scarves, bandannas,
music, or buttons, or display any gang signs, drawings, graffiti, text messages, or
gestures, which you know or the Probation Officer informs you to be criminal-street-
gang-related or any item identified by your Probation Officer as posing a threat to your
successful completion of probation. [¶] 18. You shall not visit or remain in any specific
locations known by you to be identified as gang gathering areas, areas where gang
members or associates are congregating or areas specified by your Probation Officer as
involving gang related activity, nor shall you knowingly participate in any gang activity.
For the purpose of this condition, ‘gang’ refers to a criminal street gang as defined by
Penal Code Section 186.22, subdivision (f).”
3
We review probation conditions for abuse of discretion. (Ricardo P., supra, 7
Cal.5th at p. 1118.) Under Lent, a condition of probation will be held invalid where 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. (Ibid.) All three prongs must be satisfied for a
reviewing court to invalidate a probation condition. (Ibid.)
First, we consider whether the challenged electronic search condition is related to
the minor’s offense of aiding and abetting participation in a criminal street gang. There is
no evidence that the minor used an electronic device in connection with the underlying
fight. Indeed, the record is silent as to the minor’s use of electronic devices, electronic
means of communication, and social media. At the dispositional hearing, the prosecutor
asserted that cell phone videos of the fight exist. And he argued generally that gang
members post and share videos of themselves jumping other kids and being violent on
social media to intimidate, although it is not clear from the record whether that happened
here. The prosecutor did not suggest that the minor himself shared, posted, or took any
of the videos (presumably he did not film them given that he participated in the incident
being recorded). The mere fact that some unknown person used an electronic device to
record the commission of the offense does not establish a connection between the offense
and the electronic search condition. Accordingly, we conclude that the electronic search
condition has no relationship to the minor’s offense.
As to the second prong, the electronic search condition relates to legal conduct—
namely, the use of electronic devices, sending and receiving text and email messages,
receiving voicemail messages, making and receiving phone calls, possessing digital
photographs, using the Internet and social media sites in particular, changing Internet
passwords, and deleting Internet browsing history.
Finally, we consider whether the record supports the conclusion that the electronic
search condition is reasonably related to future criminal activity by the minor.
4
In Ricardo P., our Supreme Court held that “Lent’s third prong requires more than just an
abstract or hypothetical relationship between the probation condition and preventing
future criminality.” (Ricardo P., supra, 7 Cal.5th at p. 1121.) Rather, it “contemplates a
degree of proportionality between the burden imposed by a probation condition and the
legitimate interests served by the condition.” (Id. at p. 1122.)
Ricardo P. considered the validity of an electronic search condition requiring the
minor in that case to “ ‘[s]ubmit . . . electronics including passwords under [his] control
to search by Probation Officer or peace office[r] with or without a search warrant at any
time of day or night.’ ” (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) The condition
had been imposed, not based on any evidence that the minor had “ever used an electronic
device or social media in connection with criminal conduct,” but because the minor “had
previously used marijuana” and the juvenile court believed that “ ‘minors typically will
brag about their marijuana usage . . . by posting on the Internet . . . .’ ” (Id. at p. 1122.)
Accordingly, the juvenile “court reasoned that the electronics search condition ‘[was]
reasonably related to enabling the effective supervision of Ricardo’s compliance with his
other probation conditions,’ namely, the various drug-related conditions.” (Id. at
p. 1117.) Our Supreme Court concluded the condition was invalid under Lent.
The Ricardo P. court noted that the condition imposed “a very heavy burden on [the
minor’s] privacy [interests] with a very limited justification. This disproportion [led the
court] to conclude . . . that the electronics search condition [was] not
‘ “reasonably related to future criminality.” ’ ” (Id. at p. 1124.)
This case involves an electronic search condition that, like the one at issue in
Ricardo P., would require the minor “to provide probation officers full access, day or
night, not only to his social media accounts but also to the contents of his e-mails, text
messages, and search histories, all photographs and videos stored on his devices, as well
as any other data accessible using electronic devices, which could include anything from
banking information to private health or financial information to dating profiles.”
5
(Ricardo P., supra, 7 Cal.5th at p. 1123.) “Such a condition significantly burdens privacy
interests.” (Ibid.)
The Attorney General argues that burden is justified because the condition “allows
the probation officer access to verify if appellant is complying with stay-away orders and
gang prohibitions that seek to limit his future criminality.” “Facilitating supervision of a
probationer does not automatically make a condition reasonably related to future
criminality.” (In re David C. (2020) 47 Cal.App.5th 657, 665.) We acknowledge that
keeping the minor away from “negative social influences”—like the minors with whom
he was arrested and gangs—“is a legitimate rehabilitative interest that a properly drawn
electronic search term can serve.” (In re Alonzo M. (2019) 40 Cal.App.5th 156, 167
(Alonzo M.).) However, the electronic search condition at issue here, like the one in
Ricardo P., is “expansive in its scope: It allows probation officers to remotely access
[the minor’s] e-mail, text and voicemail messages, photos, and online accounts, including
social media like Facebook and Twitter, at any time. It would potentially even allow
officers to monitor [the minor’s] text, phone, or video communications in real time.
Further, the condition lacks any temporal limitations, permitting officers to access digital
information that long predated the imposition of [the minor’s] probation.” (Ricardo P.,
supra, 7 Cal.5th at p. 1127.) It is not limited to ensuring compliance with the stay-away
orders and gang prohibitions. For these reasons, we conclude that the electronic search
condition is disproportionate to the probation department’s legitimate interest in
monitoring the minor’s compliance with the stay-away orders and gang conditions.
We shall strike the electronic search condition and remand the matter to the
juvenile court to consider whether to impose a more limited condition that burdens the
minor’s privacy in a manner that is substantially proportionate to the legitimate interests
it serves. (See Alonzo M., supra, 40 Cal.App.5th at p. 168 [remanding for the juvenile
court to impose a more narrowly tailored electronic search condition]; In re Amber
K. (2020) 45 Cal.App.5th 559, 567-568 [same].) Given our conclusion that the electronic
6
search condition is invalid under Lent and Ricardo P., we need not reach the minor’s
claim that the condition is unconstitutionally overbroad. (See Alonzo M., supra, at
p. 168 & fn. 2.)
B. Challenge to the Drug and Alcohol Probation Condition
The minor also challenges under Lent and Ricardo P. the probation condition
requiring him to participate in and complete a drug and alcohol program or class. While
there is no indication that drugs or alcohol were involved in the fight, the minor admitted
to the probation department that he drank alcohol once and smoked marijuana twice at
age 12. The minor turned 13 years old shortly before the fight.
The minor argues that the drug and alcohol condition is related to conduct that is
not in itself criminal—satisfying Lent’s second requirement for invalidating a probation
condition—because attending a drug and alcohol class is not required by law. That may
be. But consuming drugs and alcohol, as the minor admittedly has in the recent past, is
illegal for minors. Accordingly, the drug and alcohol condition relates to criminal
conduct. (In re Kacy S. (1998) 68 Cal.App.4th 704, 710 [condition requiring minors to
undergo urine testing for drugs and alcohol held valid under Lent in part because it relates
to conduct which is in itself criminal].) Because the second prong of Lent is not satisfied,
the condition is valid.
III. DISPOSITION
The dispositional order is reversed. The matter is remanded to the juvenile court
with directions to strike the electronic search condition (condition No. 32) and to consider
whether to impose a more tailored condition consistent with Ricardo P.
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_________________________________
ELIA, J.
WE CONCUR:
_______________________________
PREMO, Acting P.J.
_______________________________
BAMATTRE-MANOUKIAN, J.
People v. R.R.
H047519