In re Elijah L. CA1/4 ( 2022 )

Filed 8/23/22 In re Elijah L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re ELIJAH L., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A163021
v.
(Contra Costa County
ELIJAH L.,
Super. Ct. No. J16-01167)
Defendant and Appellant.
Elijah L., a 20-year-old ward of the juvenile court, appeals a
dispositional order placing him on home supervision with the condition,
among others, that he submit to alcohol and drug testing as directed by the
probation department. He contends the court abused its discretion by
imposing the testing conditions since the record contains no evidence of a
history of substance abuse or evidence that he was under the influence of
drugs or alcohol at the time of the offense. We conclude that because Elijah is
not yet 21 years of age and, thus, is prohibited by law from using alcohol or
marijuana, the condition is nonetheless proper.
Background
On September 1, 2020, the Contra Costa County District Attorney filed
a juvenile wardship petition (Welf. & Inst. Code, § 602) alleging that Elijah
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had twice committed rape on an unconscious person (Pen. Code, § 261,
subd. (a)(4)). On January 21, 2021, the court granted the prosecutor’s request
to amend the petition to add an allegation of assault with force likely to
produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). After Elijah
entered a plea of no contest to the felony assault allegation in exchange for
the dismissal of the two rape allegations, the juvenile court sustained the
petition.
On June 22, 2021, at the conclusion of the contested dispositional
hearing, the court placed Elijah on home supervision. Over trial counsel’s
objection, the court ordered, among other conditions, that Elijah abstain from
using alcohol and marijuana and that he submit to alcohol and drug testing
as directed by the probation department.
Elijah timely filed a notice of appeal.
Discussion
“ ‘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.] Under Welfare and
Institutions Code section 730, subdivision (b), the 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.).) The juvenile court retains jurisdiction over a non-
minor who attains the age of 18 after committing his offense but before
juvenile probation is imposed. (Welf. & Inst. Code, § 607, subd. (b); In re
Victor L. (2010) 182 Cal.App.4th 902, 929.)
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Under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), a probation
condition is unreasonable and invalid if it has no relationship to the crime,
relates to conduct which is not itself criminal, and requires or forbids conduct
not reasonably related to future criminality. All three prongs must be met
before a reviewing court may invalidate a probation condition. (Ricardo P.,
supra, 7 Cal.5th at p. 1118.) This court reviews probation conditions for abuse
of discretion. (Ibid.)
In People v. Cruz (2020) 54 Cal.App.5th 707, 712, the court held that
the court abused its discretion in imposing probation conditions prohibiting
the defendant’s use or possession of marijuana and requiring the defendant
to submit to drug testing where nothing in the record indicated defendant’s
marijuana use played a role in his commission of the crime, that he was
under the influence at the time of his arrest, that he had ever been accused of
or convicted of a drug-related offense, or had a history of substance abuse.
(Ibid.)
If Elijah were of legal age to use alcohol and marijuana, the testing
condition would be improper under Cruz.1 The record establishes that Elijah
had never been accused of or convicted of a drug-related offense. Although the
victim was intoxicated at the time of the present offense, Elijah had not used
alcohol or marijuana that day. The probation report indicated that Elijah had
successfully completed a probationary period for a prior offense during which
time he was subject to regular drug and alcohol testing and had no positive
tests. According to the probation officer, Elijah does not like drinking alcohol
and consumes it only occasionally. The last time he drank alcohol was at a
1Elijah acknowledges that the condition restricting his use of alcohol
and marijuana is reasonable given that he is under the age of 21. For the
reasons discussed below, absent his age, the condition would be
unreasonable. His appeal challenges only the testing condition.
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house party during the summer of 2020, after he had successfully completed
probation. Elijah informed the officer he uses marijuana occasionally to help
him sleep and ease his anxiety.
Elijah acknowledges that under In re Kacy S. (1998) 68 Cal.App.4th
704, 708, 710, imposition of a testing condition on a minor is “reasonably
related to future criminality” because it is intended to detect and deter the
minor’s unlawful use of these substances, even when drugs or alcohol are not
implicated in the minor’s offense or social history. He argues that Kacy S.
was decided 24 years ago and its reasoning should be revisited in light of
Ricardo P.
Contrary to Elijah’s argument, the reasoning in Kacy S. remains valid
and is appropriately applied in this case. Although Elijah is no longer a minor
under the age of 18, he is not yet of legal age to use either marijuana or
alcohol. Accordingly, the testing condition relates to illegal conduct under the
second Lent prong. (In re Kacy S., supra, 68 Cal.App.4th at p. 709.) Because
underage use of alcohol and drugs is a crime, testing for those substances is
reasonably related to future criminality under the third Lent prong because
testing monitors whether a probationer is engaging in illegal conduct. (Ibid.)
Nothing in Ricardo P., supra, 7 Cal.5th 1113, alters this conclusion. In
that case, the court held that a warrantless electronic search condition
imposed on a juvenile probationer was not reasonably related to future
criminality where the record contained “no indication that [the minor] had
used or will use electronic devices in connection with drugs or any illegal
activity.” (Id. at p. 1116.) Unlike an electronic search condition that intrudes
upon a wide range of otherwise lawful activity, the drug and alcohol testing
condition relates solely to discovering potential unlawful conduct. The testing
condition is valid under Lent for that reason alone.
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Elijah will be 21 years old in less than two months. At that time, the
condition restricting his lawful use of alcohol and marijuana and the related
testing condition will be unreasonable. Accordingly, we will affirm the
dispositional order but remand with instructions to the court to terminate
these conditions of defendant’s probation effective the date of defendant’s
21st birthday.
Disposition
The dispositional order is affirmed. The matter is remanded with
instructions to the court to modify the conditions of probation to terminate
the restrictions imposed on lawful use of alcohol and marijuana and the
related testing condition as of the date of defendant’s 21st birthday.
POLLAK, P.J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
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