In re T.C. CA5 ( 2023 )

Filed 10/26/23 In re T.C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re T.C., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F084799
Plaintiff and Respondent, (Super. Ct. No. 21JL-00068-A)
v.
OPINION
T.C.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean
M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Peña, J. and Meehan, J.
T.C. appeals from the juvenile court’s order of wardship following a true finding
that T.C. committed misdemeanor sexual battery by restraint (Pen. Code, § 243.4,
subd. (a))1 and misdemeanor false imprisonment (§ 236). T.C. contends: (1) there is
insufficient evidence to support a finding that he committed sexual battery by restraint;
(2) the probation condition requiring submission of his electronic devices to search and
seizure was unreasonable and unconstitutionally overbroad; and (3) if objection to the
probation condition was forfeited for failure to object before the juvenile court, defense
counsel provided ineffective assistance of counsel.
The People respond that: (1) there is substantial evidence T.C. touched an
intimate part of the victim through her clothing to support the finding that he committed
sexual battery; (2) T.C. forfeited objection to the probation condition regarding his
electronic devices by failing to object at sentencing; and (3) if challenge to the probation
condition is not forfeited, the probation condition is reasonable because it serves the
court’s rehabilitative goals, or, alternatively, if the condition appears facially overbroad,
it can be narrowly tailored.
We agree the evidence was insufficient to support a finding of sexual battery by
restraint, but there was sufficient evidence T.C. committed misdemeanor sexual battery
(§ 243.4, subd. (e)). We will therefore modify the sexual battery finding on that count.
We otherwise affirm.
PROCEDURAL SUMMARY
On August 9, 2021, the Merced County District Attorney filed a juvenile wardship
petition alleging that T.C. committed: felony sexual battery by restraint (§ 243.4,
subd. (a); count 1); and misdemeanor false imprisonment (§ 236; count 2) against a single
victim, A.S.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
On April 22, 2022, the juvenile court commenced a jurisdictional proceeding.
After the prosecution rested, T.C.’s counsel moved to dismiss the counts. The court
denied the motion.
On May 11, 2022, the juvenile court found true both allegations of the petition but
found the allegation for count 1 to be true as a misdemeanor.
On June 17, 2022, T.C. was adjudged a ward of the court and placed under the
supervision of the probation department. The order included a condition that T.C. must
submit to a search of all electronic devices.
T.C. filed a timely notice of appeal.
FACTUAL SUMMARY
I. Prosecution Evidence
A.S. was best friends with T.C.’s sister, G.C. On April 19, 2021, A.S. and G.C.
walked from school to G.C.’s family’s house. T.C. drove G.C. with A.S. to G.C.’s
softball game, and then T.C. and A.S. returned to the family’s house. A.S. went to G.C.’s
bedroom after they returned. There was no one else in the house besides A.S. and T.C.
T.C. came to G.C.’s room and asked A.S. to kiss him. A.S. told him “ ‘No.’ ”
A.S. was sitting up against the headboard on G.C.’s bed. T.C. leaned over the bed
kissing A.S. on her face and neck. A.S. told T.C. “ ‘No.’ ” T.C. said “ ‘Come on. Just
kiss me.’ ” T.C. left the room.
T.C. came back to G.C.’s room about an hour later wearing a different shirt. A.S.
was sitting on G.C.’s bed and T.C. sat on the edge of the bed. T.C. began touching A.S.’s
stomach and legs. T.C. grabbed both of A.S.’s legs to pull her closer to him and pulled
his shorts down. T.C. put his penis between A.S.’s legs and started thrusting while A.S.
was still clothed. T.C.’s penis touched A.S.’s “private area” through her jeans. A.S. said
“ ‘No’ ” to T.C. A.S. testified that T.C.’s penis touched A.S.’s stomach when he was
trying to put his penis between her legs. A.S. was pushing T.C. off her and telling him
3.
“ ‘No.’ ” T.C. left the room, calling A.S. a “[s]lut and hoe” as he left.
A.S. used her cell phone to record seven videos of the exchanges with T.C. that
afternoon. These videos were admitted as evidence.
Later that day, A.S. told G.C. and T.C.’s mother, M.C., what happened. A.S. told
M.C. and G.C. that she had videos of T.C. G.C. and M.C. asked A.S. to delete the videos
because they could hurt T.C.’s football career. A.S. did not tell her parents until months
later. A.S. reported the incident with T.C. to law enforcement in June 2021.
A.S. had previously complained to G.C. via text message in March 2021 that T.C.
was harassing her, asking A.S. to kiss him and give him oral sex. G.C. responded to
A.S., “ ‘Just tell him no.’ ”
II. Defense Evidence
Former Dos Palos Police Department Deputy Omar Mondragon was the
investigating officer for the allegations against T.C. Mondragon spoke with A.S. and
reviewed the videos provided by A.S. He confirmed all the videos were dated April 19,
2021, with timestamps of 1:19 p.m. on four of the videos and 3:10 p.m. on the other
three videos.
T.C.’s mother, M.C., testified that she learned about A.S.’s allegations against
T.C. on June 3, 2021. She denied that A.S. told her that T.C. “did something
inappropriate to her” before then.
T.C. testified that on April 19, 2021, he drove G.C. to her softball game with A.S.
After T.C. dropped off G.C., T.C. asked A.S. if she wanted to go back to her house but
she wanted to go back to T.C.’s family’s house. T.C. asked A.S. if she wanted to give
him “a blow job.” A.S. said yes and performed oral sex on T.C. in his room.
Later that day, T.C. went to G.C.’s room. He asked A.S. if she wanted to give him
another “blow job.” T.C. started kissing A.S. He denied that he ever pulled his pants
down. T.C. also denied that he “w[as] dry-humping her” or put his penis on her stomach.
4.
He conceded that he did not stop kissing A.S. immediately when she said “ ‘No.’ ” T.C.
testified that A.S. had given him oral sex prior to April 19.
DISCUSSION
I. Sufficiency of the Evidence
T.C. contends the evidence is insufficient to support a finding that he committed
sexual battery by restraint.
A. Additional Background
After closing arguments, the juvenile court discussed its finding regarding count 1:
“And all of the evidence that was moved into evidence, with respect to [c]ount 1, the
[c]ourt does find that the allegation is true beyond a reasonable doubt, that the sexual
battery by restraint was, in fact, committed on or about June 3rd, by the minor, [T.C.].
[¶] And the court bases its verdict on the following things: [¶] Number one, the video
doesn’t lie as to what happened. There was clearly unwanted contact, and it was clearly
of a sexual nature by [T.C.]’s own testimony. He testified that he went in that room to
seek a blow job, and therefore, the [c]ourt finds that that battery was committed for the
purposes of sexual gratification, arousal, or abuse. [¶] With respect to the degree of the
offense, again, the videotape doesn’t lie. There was no video of [T.C.]’s penis touching
the victim’s skin in the case. I can’t say beyond a reasonable doubt that that took place.
It may well have, but based on the evidence before the [c]ourt, I can’t say that it
happened beyond a reasonable doubt. So, therefore, the [c]ourt finds as to the level of
offense in [c]ount 1 is a misdemeanor.”
The court’s minute order for its findings cites section 243.4, subdivision (a). The
probation officer’s report also cites this statutory subdivision.
B. Standard of Review
In reviewing a challenge to the sufficiency of the evidence, we apply the same
standard to juvenile proceedings applicable to adult criminal convictions. (In re V.V.
5.
(2011) 51 Cal.4th 1020, 1026.) “In either type of case, we review the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible and of solid value—from which a
reasonable trier of fact could find the [minor] guilty beyond a reasonable doubt.” (In re
Sylvester C. (2006) 137 Cal.App.4th 601, 605, fn. omitted.) “Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we
look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.) “A
reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the [court’s
finding].” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
C. Applicable Law and Analysis
“Section 243.4 proscribes various forms of sexual battery, i.e., unlawful touching
of ‘intimate parts.’ ” (People v. Dayan (1995) 34 Cal.App.4th 707, 715.) Subdivision (a)
of the statute provides: “Any person who touches an intimate part of another person
while that person is unlawfully restrained by the accused or an accomplice, and if the
touching is against the will of the person touched and is for the purpose of sexual arousal,
sexual gratification, or sexual abuse, is guilty of sexual battery.” (§ 243.4, subd. (a).)
Sexual battery under subdivision (a) can be either a misdemeanor or a felony. (People v.
Elam (2001) 91 Cal.App.4th 298, 309 (Elam).) As used in subdivision (a), “ ‘touches’
means physical contact with the skin of another person whether accomplished directly or
through the clothing of the person committing the offense.” (§ 243.4, subd. (f).)
“ ‘Intimate part’ means the sexual organ, anus, groin, or buttocks of any person, and the
breast of a female.” (§ 243.4, subd. (g)(1).) Subdivision (e)(1) defines misdemeanor
sexual battery as where a person “touches an intimate part of another person, if the
6.
touching is against the will of the person touched, and is for the specific purpose of
sexual arousal, sexual gratification, or sexual abuse.” (§ 243.4, subd. (e)(1).)
Subdivision (e)(1) acts as a “ ‘catchall’ provision” to criminalize unlawful sexual
touching against the will of the victim. (People v. Smith (2010) 191 Cal.App.4th 199,
207.)
T.C. contends there is insufficient evidence he touched the bare skin of A.S.’s
intimate part to support a true finding under section 243.4, subdivision (a). Specifically,
T.C. argues A.S. testified his penis touched her stomach, but there was no evidence T.C.
touched A.S.’s intimate parts underneath her clothes or her breasts. To be guilty under
subdivision (a), “actual direct contact with the skin of the intimate part of another person
is essential.” (In re Keith T. (1984) 156 Cal.App.3d 983, 986.) T.C. must have touched
the skin of A.S.’s sexual organ, anus, groin, buttocks or breast to be guilty of this offense.
(Elam, supra, 91 Cal.App.4th at p. 310.)
We agree T.C.’s conduct does not meet the elements of sexual battery by restraint
as proscribed in section 243.4, subdivision (a). A.S. testified that T.C. kissed her on the
face and neck. She also testified that T.C. touched her stomach and legs. The face, neck,
stomach and legs are not an “intimate part” of a person under the statute. (§ 243.4,
subd. (g)(1).) A.S. was wearing jeans when T.C. was thrusting his penis between her
legs. T.C. did not touch the skin of A.S.’s intimate parts while doing so because the
thrusting was against her clothing. A.S. said that T.C.’s penis touched her stomach when
he was lifting her shirt. Although T.C. purportedly touched his own intimate part to
A.S.’s skin, specifically, on her stomach, the evidence does not reflect that T.C. ever
touched the skin of A.S.’s intimate parts.
The People appear to concede that T.C. did not violate section 243.4,
subdivision (a) because the contact was through clothing. The People argue however that
there is sufficient evidence to support a finding of misdemeanor sexual battery under
7.
section 243.4, subdivision (e), “[a]lthough the court did not expressly cite” to this
subdivision.
The petition alleged that T.C. committed felony sexual battery by restraint under
section 243.4, subdivision (a). The juvenile court found true the allegation that T.C.
committed “sexual battery by restraint.” The court further found “the level of offense in
[c]ount 1 is a misdemeanor.” The court did not specify the statute upon which this
finding was based, but the minute order cites to section 243.4, subdivision (a).
We cannot on this record conclude that the juvenile court intended to find T.C.
committed misdemeanor sexual battery under section 243.4, subdivision (e) rather than
subdivision (a). Subdivision (a) is a wobbler offense. (Elam, supra, 91 Cal.App.4th at
p. 309.) The court’s statement that the offense is a misdemeanor may have simply been
clarifying the level of the offense under subdivision (a) since it was a wobbler. (Welf. &
Inst. Code, § 702 [when an offense is a wobbler, “the court shall declare the offense to be
a misdemeanor or felony”].) This is particularly likely considering the court’s finding
that T.C. committed “sexual battery by restraint,” the offense proscribed by
subdivision (a). As discussed above, the evidence does not support a finding of sexual
battery under subdivision (a) because T.C. did not touch the skin of A.S.’s intimate parts.
“However, where the evidence is insufficient to sustain the offense charged but shows
that the [minor] is guilty of a lesser included offense, or an attempt to commit the offense,
or a lesser degree of the offense, the court may reduce the crime rather than reverse
outright.” (People v. Yonko (1987) 196 Cal.App.3d 1005, 1010.) We agree with the
People that the evidence supports a finding that T.C. committed misdemeanor sexual
battery under section 243.4, subdivision (e).
Misdemeanor sexual battery under section 243.4, subdivision (e) requires: (1) a
touching, (2) of another person’s intimate part, (3) against the person’s will, and (4) for
the purpose of sexual arousal, sexual gratification, or sexual abuse. (§ 243.4,
subd. (e)(1).) As used in subdivision (e), “ ‘touches’ means physical contact with another
8.
person, whether accomplished directly, through the clothing of the person committing the
offense, or through the clothing of the victim.” (§ 243.4, subd. (e)(2), italics added.)
Unlike in section 243.4, subdivision (a), “contact with the victim’s skin is not required
but may occur through clothing” for misdemeanor sexual battery. (People v. Ortega
(2015) 240 Cal.App.4th 956, 966; People v. Dayan, supra, 34 Cal.App.4th at p. 716
[misdemeanor sexual battery “does not expressly require actual contact with the skin, and
it applies to touching through the clothes of the victim”].) Misdemeanor sexual battery is
a lesser included offense of sexual battery under subdivision (a) because “[m]isdemeanor
sexual battery contains the same elements [as subdivision (a)] except that unlawful
restraint is not required.” (Ortega, at p. 966.)2
A.S. testified that T.C. thrust his penis between her legs. A.S. told Mondragon
that T.C.’s penis “was touching [her] private area” while she was wearing jeans. A.S.
repeatedly said “ ‘No’ ” to T.C. As the juvenile court stated, this “was clearly unwanted
contact, and it was clearly of a sexual nature by the [minor]’s own testimony.” T.C.’s
unwanted touching of A.S.’s intimate parts through her clothing for purposes of sexual
arousal or gratification suffices to make a finding that he committed misdemeanor sexual
battery. We therefore modify the disposition to reflect a finding that T.C. committed
misdemeanor sexual battery under section 243.4, subdivision (e) on count 1.
II. Challenge to Electronic Devices Search Condition
T.C. contends the probation condition requiring submission of his electronic
devices to search and seizure was unreasonable and unconstitutionally overbroad. The
People respond that T.C. forfeited objection to the condition regarding his electronic
devices by failing to object before the juvenile court. We agree with the People that
2 T.C. acknowledges that misdemeanor sexual battery under section 243.4,
subdivision (e) is a lesser included offense of subdivision (a) and that a “touching under
subdivision (e)(1) can be entirely through the clothes.”
9.
T.C.’s challenge on both grounds is forfeited. We also reject T.C.’s argument that the
condition is facially overbroad.
A. Probation Conditions
At the disposition hearing, the juvenile court followed the probation officer’s
recommendation and ordered T.C. a ward of the court. The order imposed several
conditions on T.C. as recommended by probation including the following in pertinent
part: “Submit to search of all electronic devices, including cell phones and computers at
any time of the day or night by any Probation Officer or Peace Officer with or without a
warrant, probable cause or reasonable suspicion over which the minor has control over or
access to for electronic communication. Minor must provide access/passwords to any
electronic devices, computers, cell phones, accounts and applications to any Probation
Officer or Peace Officer. Minor waives the specific consent and warrant requirements set
forth in [sections] 1546 and 1546.1 .…” There was no discussion by the court of the
order’s conditions. Minor did not object to any of the conditions.
B. Forfeiture
“ ‘The purposes of juvenile wardship proceedings are twofold: to treat and
rehabilitate the delinquent minor, and to protect the public from criminal conduct.’
[Citation.] To those ends, a juvenile court may order a ward under its jurisdiction to
probation. [Citation.] … [T]he court ‘may 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.’ ” (In re Ricardo P. (2019)
7 Cal.5th 1113, 1118 (Ricardo P.); Welf. & Inst. Code, § 730, subd. (b).) “The juvenile
court has wide discretion to select appropriate conditions .…” (In re Sheena K. (2007) 40
Cal.4th 875, 889 (Sheena K.).) A probation condition 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
10.
related to future criminality[.]’ ” (People v. Lent (1975) 15 Cal.3d 481, 486.) “[T]he
Lent test governs in juvenile and adult probation cases alike.” (Ricardo P., at p. 1119.)
Failure to challenge the reasonableness of a probation condition on Lent grounds
forfeits the issue on appeal. (Sheena K., supra, 40 Cal.4th at p. 889; People v. Welch
(1993) 5 Cal.4th 228, 237.) Because T.C. failed to object before the juvenile court to the
electronic devices search condition as unreasonable, the issue was not preserved for
appeal, and we decline to address it. (In re L.O. (2018) 27 Cal.App.5th 706, 711–712.)
We next turn to T.C.’s claim that the search condition is unconstitutionally
overbroad. Constitutional challenges to a probation condition may also be forfeited for
failure to object before the juvenile court. (Sheena K., supra, 40 Cal.4th at p. 887; People
v. Patton (2019) 41 Cal.App.5th 934, 946 (Patton) [“An as-applied constitutional
challenge is forfeited unless previously raised.”].) The forfeiture rule however does not
apply “where a party raises a facial challenge to a condition of probation as
constitutionally vague or overbroad that can be resolved without reference to the
sentencing record in a particular case.” (In re L.O., supra, 27 Cal.App.5th at p. 711;
Sheena K., at p. 887.) Our Supreme Court has held that this exception “does not apply in
every case in which a probation condition is challenged on a constitutional ground. …
‘[T]here may be circumstances that do not present “pure questions of law that can be
resolved without reference to the particular sentencing record developed in the trial
court.” [Citation.] In those circumstances, “[t]raditional objection and waiver principles
encourage development of the record and a proper exercise of discretion in the trial
court.” [Citation.]’ ” (Sheena K., at p. 889.)
T.C.’s failure to object to the condition as unconstitutionally overbroad before the
juvenile court forfeited the issue on appeal. Although T.C. argues the condition was
“facially overbroad,” this is not a true facial challenge to the search condition. Rather
than presenting a pure question of law, T.C.’s overbreadth challenge may not be
11.
addressed without reference to the record before the juvenile court. (Sheena K., supra, 40
Cal.4th at p. 887.)
“A probation condition that imposes limitations on a person’s constitutional rights
must closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
“The essential question in an overbreadth challenge is the closeness of the fit between the
legitimate purpose of the restriction and the burden it imposes on the [minor]’s
constitutional rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.” (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.) Whether a probation condition is
unconstitutionally overbroad is subject to de novo review. (Patton, supra, 41
Cal.App.5th at p. 946.)
The purpose of the search condition may only be ascertained by reference to the
record. We therefore may not address whether the search condition is tailored to its
purpose without examination of the record. Moreover, T.C. relies on the record to
challenge the condition as overbroad because he argues there “was never any suggestion
that T.C. used an electronic device to commit any offense in this case or engage in any
illegal activity.” This is “a classic as-applied claim.” (Patton, supra, 41 Cal.App.5th at
p. 947.) T.C.’s contentions are premised on evidence, or rather, a lack of evidence, in the
record, not on the condition’s language as facially overbroad.
T.C. suggests the search condition is facially overbroad “[a]s in Sheena K.” In
Sheena K., the minor was ordered as a condition of probation that she “ ‘not associate
with anyone disapproved of by probation.’ ” (Sheena K., supra, 40 Cal.4th at p. 878.)
The condition’s constitutional infirmity was obvious without reference to the record and
was easily remedied by adding a requirement that the minor have knowledge of who was
disapproved of by probation. (Id. at p. 892.) Here, unlike in Sheena K., whether the
search condition is overbroad and, if so, whether it could be tailored to its purpose
12.
necessitates reference to the record before the juvenile court. Because this is not a facial
challenge to the condition, T.C. forfeited his constitutional challenge by failing to object.
For all these reasons, minor’s challenge to the electronic devices search condition
is forfeited.
C. Facial Overbreadth Challenge
Because T.C. forfeited an as-applied challenge to the condition by failing to object
at the disposition hearing, we consider his contentions as facial challenges. “A facial
challenge ‘does not require scrutiny of individual facts and circumstances but instead
requires the review of abstract and generalized legal concepts.’ [Citation.] The claim is
that a condition cannot have any valid application, without relying on any facts in the
sentencing record.” (Patton, supra, 41 Cal.App.5th at p. 946.)
In Ricardo P., our Supreme Court found that a probation condition requiring the
minor to submit to warrantless search of his electronic devices including passwords was
not reasonably related to the minor’s future criminality and was thus unreasonable under
Lent. (Ricardo P., supra, 7 Cal.5th at p. 1116.) The court emphasized that its “holding
does not categorically invalidate electronics search conditions. In certain cases, the
probationer’s offense or personal history may provide the juvenile court with a sufficient
factual basis from which it can determine that an electronics search condition is a
proportional means of deterring the probationer from future criminality.” (Id. at
pp. 1128–1129.)
Ricardo P. does not categorically render the search condition here facially
overbroad. The court in Ricardo P. determined the condition was unreasonable pursuant
to Lent—the court did not grant review or address the constitutional questions. The court
acknowledged that “[t]he warrantless search of a juvenile’s electronic devices by a
probation officer, a government official, plainly raises privacy concerns .…” (Ricardo
P., supra, 7 Cal.5th at p. 1123.) However, the court further concluded that “[t]he fact that
an electronics search condition may burden a juvenile probationer’s constitutional rights
13.
does not necessarily render it invalid.” (Id. at p. 1126.) An electronics search condition
may be constitutionally imposed under appropriate circumstances. (Patton, supra, 41
Cal.App.5th at pp. 946–947; In re Malik J. (2015) 240 Cal.App.4th 896, 902 (Malik J.).)
“Such a condition allows warrantless searches of a probationer’s property so long as they
are not arbitrary, capricious or harassing. [Citation.] While a search condition
diminishes a juvenile probationer’s reasonable expectation of privacy, it does not entirely
preclude it.” (Malik J., at p. 902.)
Similar probation conditions allowing warrantless search of electronic devices
have been found permissible and survived facial overbreadth challenges. (Malik J.,
supra, 240 Cal.App.4th at pp. 902–904; People v. Ebertowski (2014) 228 Cal.App.4th
1170, 1175–1176.) The condition here is not facially overbroad and we reject T.C.’s
contention to the contrary.3
D. Ineffective Assistance of Counsel
T.C. briefly argues that if the issue was forfeited for failure to object to the
condition before the juvenile court, defense counsel provided ineffective assistance of
counsel. To prevail on an ineffective assistance of counsel claim, T.C. must prove:
(1) trial counsel’s performance was deficient and (2) counsel’s deficient performance
prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To show
prejudice, “[the minor] must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Id. at p. 694.)
3 T.C. does not specifically argue the condition is unconstitutionally vague, but a
vagueness challenge would also fail. “A probation condition ‘must be sufficiently
precise for the probationer to know what is required of him, and for the court to
determine whether the condition has been violated,’ if it is to withstand a challenge on the
ground of vagueness.” (Sheena K., supra, 40 Cal.4th at p. 890.) The language of the
condition here sufficiently apprises T.C. of what is required of him.
14.
“It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective assistance only
if (1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013)
57 Cal.4th 986, 1009.) “A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance .…” (Strickland v. Washington,
supra, 466 U.S. at p. 689.)
T.C. argues defense counsel had no reasonable tactical reason for failing to object
to the electronic devices search condition. In viewing T.C.’s claim through an ineffective
assistance of counsel lens, the question is not whether the condition is overly broad but
rather whether no satisfactory explanation can be given for counsel’s failure to object.
(People v. Hart (1999) 20 Cal.4th 546, 624.)
The record is silent as to why the condition was imposed and why defense counsel
did not object to it. As discussed above, the condition was not facially overbroad and
similar electronic devices search conditions have been found permissible in appropriate
circumstances. (Patton, supra, 41 Cal.App.5th at pp. 946–947; Malik J., supra, 240
Cal.App.4th at p. 902; People v. Ebertowski, supra, 228 Cal.App.4th at pp. 1175–1176.)
T.C.’s counsel may have reasoned that a facial overbreadth objection would have been
fruitless. Counsel may have believed T.C. was adequately protected from the condition’s
terms by the Fourth Amendment, which prohibits warrantless searches that are arbitrary,
capricious or harassing. (Malik J., at p. 902; People v. Reyes (1998) 19 Cal.4th 743,
752.) Counsel may have also concluded the condition was a reasonable method to
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monitor T.C.’s future conduct due to T.C.’s pending relocation to another state to attend
college. (See People v. Olguin (2008) 45 Cal.4th 375, 380–381 [a probation condition
that enables a probation officer to supervise his or her charges effectively is reasonably
related to future criminality].) The record does not rule out a tactical reason for counsel’s
failure to object and the possibility that the electronic devices search condition is
appropriately tailored to T.C.’s circumstances preclude a finding that no reasonable
attorney would have failed to do so. (See People v. Hart, supra, 20 Cal.4th at pp. 623–
624 [“ ‘To the extent the record on appeal fails to disclose why counsel acted or failed to
act in the manner challenged, we will affirm the judgment “unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no satisfactory
explanation .…” ’ ”]; see also People v. Lopez (2008) 42 Cal.4th 960, 972 [“ ‘[D]eciding
whether to object is inherently tactical, and the failure to object will rarely establish
ineffective assistance.’ ”].)
On this record, we cannot conclude that counsel’s performance was deficient for
failing to object to the electronic devices search condition. We thus reject minor’s
ineffective assistance of counsel claim.
DISPOSITION
The juvenile court’s finding on count 1 is modified to reflect that T.C. committed
misdemeanor sexual battery in violation of section 243.4, subdivision (e). In all other
respects, the disposition is affirmed.
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