In re E.W. CA1/4 ( 2023 )

Filed 5/17/23 In re E.W. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re E.W., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE, A165052
Plaintiff and Respondent, (Contra Costa County
v. Super. Ct. No. J2100505)
E.W.,
Defendant and Appellant.
MEMORANDUM OPINION1
Appellant E.W. appeals from a dispositional order by the juvenile court
following his plea of no contest to the possession of a concealed firearm and
ammunition by a nonregistered owner in violation of Penal Code
section 25400, subdivisions (a) and (c)(6).2 E.W.’s appointed counsel on
appeal has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende). Having conducted an independent review of the record pursuant to
We resolve this case by memorandum opinion because it raises no
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substantial issue of fact or law. (Cal. Stds. Jud. Admin., § 8.1.)
2 All statutory references are to the Penal Code unless otherwise noted.
the holding in that case, we find no meritorious issues to be argued on appeal
and affirm the order.
On November 17, 2021, E.W. was a passenger in a vehicle that was
pulled over for speeding and erratic driving on the highway. The police
officer observed that another passenger had a firearm near his waistband
area and ordered everyone to step out of the vehicle. The officer found two
firearms on that passenger and one loaded firearm on a third passenger. A
search of E.W. revealed that he was also carrying a loaded firearm. The
officer also found a bottle of what he suspected was Xanax on E.W.’s person,
as well as suspected drugs in the vehicle’s center console.
A juvenile wardship petition was filed that alleged three counts against
E.W.: (1) possession of a loaded firearm by a prohibited person in a vehicle
while in a public place (§ 25850, subds. (a), (c)(4)); (2) possession of a
concealed firearm and ammunition by a nonregistered owner (§ 25400,
subds. (a), (c)(6)); and (3) possession of a controlled substance (Health & Saf.
Code, § 11377, subd. (a)).3
On March 18, 2022, E.W. pled no contest to count two and the
prosecution agreed to dismiss the remaining counts. The juvenile court then
set the matter for a disposition hearing. The probation report stated that
E.W. was a “Midtown” gang member and attached photos of E.W. on social
media with other known “Midtown” gang members. There were also photos
that depicted E.W. making gang-related hand gestures and possessing what
appeared to be a firearm.
At the disposition hearing on April 12, 2022, the juvenile court
adjudged E.W. as a ward of the court with no termination date and imposed
3 The petition was later amended to include an unrelated fourth count
of battery against a school employee (§ 243.6).
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various probation conditions. These included, over defense counsel’s
objections, a no-gang-association condition and a warrantless electronic
search condition for E.W.’s cell phone and any other electronic device under
his control “of any social media medium of communication,” as well as of
photographs and videos, that were “reasonably likely to reveal whether he is
complying with terms of probation.” The court specified that it was narrowly
tailoring the electronic search condition here so as to not include “a full
search of text messages or things like that that [E.W.] may be sending to his
mother and father.” E.W. timely appealed the disposition order.
The Wende brief filed by E.W.’s counsel does not draw our attention to
any issues under Anders v. California (1967) 386 U.S. 738, 744. E.W. was
apprised of his right to file a supplemental brief but did not file one.
Following Wende guidelines, we have conducted an independent review of the
record and conclude there are no meritorious issues to be argued on appeal.
A term of probation is invalid 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.’ ” (People v. Lent (1975) 15 Cal.3d 481, 486
(Lent), superseded by statute on another ground as stated in People v. Moran
(2016) 1 Cal.5th 398, 403, fn. 6.) First, there is no meritorious argument that
the no gang association condition was improper or invalid. (People v. Lopez
(1998) 66 Cal.App.4th 615, 624 [“Prohibitions against a variety of gang-
related activities have been upheld when imposed upon juvenile offenders”].)
Second, with respect to the electronic search condition, we are guided
by the holding in In re Ricardo P. (2019) 7 Cal.5th 1113. There, our Supreme
Court held: “In certain cases, the probationer’s offense or personal history
may provide the juvenile court with a sufficient factual basis from which it
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can determine that an electronics search condition is a proportional means of
deterring the probationer from future criminality.” (Id. at pp. 1128–1129.)
Moreover, “ ‘[a] juvenile court enjoys broad discretion to fashion conditions of
probation for the purpose of rehabilitation and may even impose a condition
of probation that would be unconstitutional or otherwise improper so long as
it is tailored to specifically meet the needs of the juvenile.’ ” (In re J.B. (2015)
242 Cal.App.4th 749, 753–754.)
The felony offense at issue involved E.W.’s possession of a loaded
firearm. Social media posts were subsequently found in which E.W. was
photographed with known gang members and firearms. One of the photos
depicted E.W. holding up gang signs and was posted on social media the day
after E.W. was arrested for the subject offense. The trial court narrowly
tailored the electronic search condition to E.W.’s social media accounts as
well as photographs and videos on E.W.’s electronic devices that are
reasonably likely to reveal whether he is complying with the terms of his
probation. We find no meritorious argument that this condition is invalid
under the principles set forth in Lent, supra, 15 Cal.3d 481.
We note that we find this case distinguishable from In re Alonzo M.
(2019) 40 Cal.App.5th 156. There, this Division held that an electronic
search condition that authorized the “ ‘search of any medium of
communication reasonably likely to reveal whether [Alonzo is] complying
with the terms of [his] probation’ ” was unduly broad. (Id. at p. 167.) This
court concluded that because the trial court had stated that the purpose of
the condition was to “address Alonzo’s susceptibility to [two specific] negative
social influences” (ibid.), the condition should be “narrowly tailored to
allowing search of any medium of communication reasonably likely to reveal
whether Alonzo is associating with prohibited persons” (id. at p. 168).
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Here, unlike in Alonzo M., the search is limited to social media
accounts, photos, and videos on E.W.’s electronic devices. It is true that the
electronic search condition refers generally to compliance with the terms of
probation, whereas the trial court justified the condition by noting that
photographs on social media showed E.W. with gang members and firearms.
Under the reasoning in Alonzo M., it may have been preferable to limit the
condition to social media accounts, photos, and videos “reasonably likely to
reveal whether E.W. is complying with the no-gang-association and no-
firearm-possession terms of his probation.” However, we find no reversible
error because the scope of the search—i.e., social media accounts, photos, and
videos—would be the same whether the condition referred generally to
compliance with the terms of probation or specifically to the two terms
identified in the court’s explanation for imposing it.
DISPOSITION
The dispositional order is affirmed.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
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