In re Mark C.

Filed 1/28/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re MARK C., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A144875
MARK C.,
Defendant and Appellant. (Alameda County
Super. Ct. No. SJ150242341)
Defendant Mark C. was the subject of a wardship petition filed by the district
attorney pursuant to Welfare and Institutions Code section 602, subdivision (a),1 alleging
that he possessed a knife with a blade longer than two and one-half inches on school
grounds, in violation of Penal Code section 626.10.
Mark requested informal supervision under section 654.2, although his offense
made him presumptively ineligible under section 654.3. The juvenile court denied
Mark’s request after a hearing.
At a subsequent hearing, Mark admitted the allegations in the petition and the
juvenile court imposed conditions of probation, including a requirement that he submit to
warrantless searches of his “electronics including passwords” (electronics search
condition).
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
1
On appeal, Mark raises three issues: the juvenile court erred in not placing him
under informal supervision; the juvenile court erred in imposing the electronics search
condition; and several of the other probation conditions imposed by the juvenile court,
including conditions that prohibit him from possessing weapons and narcotics, are
unconstitutionally vague and overbroad and “lack proof of scienter,” and must therefore
be modified.
We conclude that the juvenile court abused its discretion in imposing the
electronics search condition, and we modify the probation condition to strike the
language at issue. In all other respects, we affirm the juvenile court’s dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
We draw our brief statement of the facts from reports prepared by the police and
the Alameda County Probation Department. On the afternoon of November 17, 2014,
defendant Mark C., then 14 years old, was being escorted to the office of his high
school’s assistant principal in connection with a fight that had taken place during the
lunch period. When a campus supervisor reported that she saw a suspicious bulge near
Mark’s waistband, a police officer pat searched him and retrieved a folding pocket knife
with a blade two and three-fourths inches long. A search of Mark’s backpack revealed a
canister of pepper spray, which is considered contraband at the school. Mark told the
police that he carried the items for self defense, and that some people disliked and
provoked him.
Mark was arrested, and in February 2015 the district attorney filed a wardship
petition pursuant to section 602, subdivision (a), alleging that Mark possessed a knife
with a blade longer than two and one-half inches on school grounds, in violation of Penal
Code section 626.10.
At Mark’s request, the matter was referred to the probation department for
consideration of informal supervision pursuant to section 654.2. At a hearing in March,
the juvenile court received the probation department’s report, which concluded that Mark
was suitable for informal supervision, even though his alleged violation of Penal Code
section 626.10 made him presumptively ineligible under section 654.3. Mark argued that
2
informal supervision was appropriate because he had “the benefit of a stable family
home, with both his mother and stepfather being very supporting of him and fully willing
to cooperate with probation services”; and because there had already been intervention
and he had “made a turnaround.” Mark also argued that he was doing better in school,
although his grades from the most recent semester were poor. The juvenile court found
that the case was not suitable for informal supervision, stating that “bringing a knife and
pepper spray to school is a very, very serious offense or are serious offenses. . . . [W]e’re
going to need a standard probation for the situation, . . . not a 654.2 given the seriousness
of the weapons he brought to school.”
At a subsequent hearing in April, Mark admitted the allegations in the petition and
was adjudged a ward of the juvenile court. The juvenile court committed Mark to the
care, custody and control of the probation department, ordered him to live with his
mother, and imposed terms of probation,2 including the electronics search condition. The
terms also include other conditions, several of which Mark contests: a weapons condition,
stating that defendant cannot “possess, own, or handle any firearm, knife, weapon,
fireworks, explosives or chemicals that can produce explosives, including matches and
lighters . . . [p]epper spray or any other deadly or dangerous weapon”; a drug condition,
stating that defendant cannot “use or possess narcotics, drugs, other controlled
substances, related paraphernalia or poisons unless prescribed by a physician”; a school
presence condition, limiting defendant’s presence on the campus or grounds of any
school; a curfew, requiring defendant to “[m]aintain curfew set by parent/guardian”; an
association condition, prohibiting defendant from associating with “anyone you know to
use, deal or possess illegal drugs”; an obedience condition, requiring defendant to “[o]bey
2
The juvenile court pronounced the probation conditions at the April hearing, and
subsequently listed them in a signed minute order. The wording of the minute order
varies slightly from that of the reporter’s transcript. The parties’ briefs focus on the
conditions as stated in the minute order, except with respect to the weapons condition,
and we follow suit.
3
parent(s) or guardian(s)”; and an alcohol condition, stating that defendant cannot “use or
possess alcoholic beverages.”
Mark objected to the search condition at the time it was imposed, but did not
object to the other conditions. This appeal timely followed.
DISCUSSION
We first address Mark’s challenge to the juvenile court’s denial of his request for
informal supervision, and then turn to his challenges to the probation conditions.
A. The Juvenile Court’s Denial of Mark’s Request for Informal Supervision
1. Applicable Law
Section 654.2, subdivision (a), provides that “[i]f a petition has been filed by the
prosecuting attorney to declare a minor a ward of the court under Section 602, the court
may, without adjudging the minor a ward of the court and with the consent of the minor
and the minor’s parents or guardian, continue any hearing on a petition for six months
and order the minor to participate in a program of supervision as set forth in Section
654.” Such a program of supervision is commonly known as “informal probation” or
“informal supervision.” The statutory scheme specifically excludes from eligibility a
minor who is alleged to have violated section 626.10 of the Penal Code, as Mark was
alleged to have done, “except in an unusual case where the interests of justice would best
be served and the court specifies on the record the reasons for its decision.” (§ 654.3,
subd. (c).) The juvenile court must make its own determination of a minor’s suitability
for informal supervision, independent of the probation officer, and must consider all
relevant evidence in making that determination. (In re Armondo A. (1992) 3 Cal. App. 4th
1185, 1189-1191 (Armondo A.).)
We review the juvenile court’s order denying informal supervision for abuse of
discretion. (Armondo A., supra, 3 Cal.App.4th at pp. 1189-1190.) We reverse only if
the juvenile court “has exceeded the limits of legal discretion by making an arbitrary,
capricious or patently absurd determination.” (In re Katelynn Y. (2012) 209 Cal. App. 4th
871, 881.) We do not “reweigh the evidence or substitute our judgment for that of the
juvenile court.” (Ibid.)
4
2. Analysis
Because Mark was alleged to have violated Penal Code section 626.10, he is
“presumptively ineligible” for informal supervision under section 654.3. (See Kody P. v.
Superior Court (2006) 137 Cal. App. 4th 1030, 1033, fn. 2.) The presumption is overcome
only in an “unusual case where the interests of justice would be best served and the court
specifies on the record the reasons for its decision.” (§ 654.3, subd. (c).)
Mark, however, does not attempt to characterize his case as unusual in any respect,
but rather contends that the trial court erred in denying informal supervision for other
reasons: there was no reason to doubt his claim that the items were carried for self-
defense; the informal supervision program is sufficient to monitor his behavior and allow
the standard probation conditions to be applied; he had already begun improving his
behavior at home and performance at school; it was “unreasonable” to “brand” him “as a
delinquent” for his first contact with the juvenile justice system; and a criminal record
could harm him “in the longer term.” Mark cites no evidence or authority to support a
finding that his case is unusual on any of those grounds, and he points to nothing in the
record that suggests the juvenile court abused its discretion in reaching its conclusion.
The record reflects that the juvenile court read and considered the probation
department’s report, and heard and considered arguments of counsel. (See Armondo A.,
supra, 3 Cal.App.4th at p. 1191 [“[d]ue process . . . requires the juvenile court to consider
all relevant evidence in exercising its discretion”].) Because the juvenile court did not
adopt the probation department’s recommendation, it is clear that the juvenile court made
its own independent determination of Mark’s suitability for informal supervision
independent of the probation department, as the law requires. (Id. at p. 1190.) Although
the probation department recommended informal supervision, the juvenile court
disagreed with its conclusion, and explained why: “bringing a knife and pepper spray to
school is a very, very serious offense.” The juvenile court heard and understood the
argument that Mark was making progress and told Mark, “[I]t sounds like it’s been a
pretty dramatic turnaround for you. Keep up the good work. All that will be taken into
consideration if you’re placed on probation, sir. But at this point, . . . I’m not going to
5
grant you this informal probation, but I don’t want you to get discouraged because you’re
doing well at school, because all that is going to be considered, sir, and doing well at
home as well.”3 The juvenile court granted Mark’s counsel’s request to put the matter
over for further pretrial to get more information about Mark’s progress, but was firm in
denying informal supervision: “the circumstances at the time of the commission of the
offense, those won’t change, and that’s . . . primarily the situation that causes me to deny
654.2.”
Noting a lack of published authority on what constitutes an abuse of discretion in
denying informal supervision, Mark urges us to look to the law that governs the denial of
deferred entry of judgment, pursuant to section 790. A juvenile court can deny deferred
entry of judgment to an eligible minor who wants to participate “only when the trial court
finds ‘ “the minor would not benefit from education, treatment and rehabilitation.” ’ ” (In
re Joshua S. (2011) 192 Cal. App. 4th 670, 676.) From that, Mark argues, “If it can be an
abuse of discretion to deny [deferred entry of judgment] to [a statutorily] eligible minor
charged with a felony offense, then it is even more likely an abuse of discretion to deny
informal supervision to an eligible minor charged with a misdemeanor.”
The analogy is inapt. We recognize that deferred entry of judgment, like informal
supervision, is an alternative rehabilitative option that is available to the juvenile court.
(In re C.Z. (2013) 221 Cal. App. 4th 1497, 1502.) But even if we agreed that case law on
the denial of deferred entry of judgment would be persuasive here, Mark’s argument
fails, because it likens his case to one in which an eligible minor is denied deferred entry
of judgment, and his offense makes him ineligible for informal supervision except in an
“unusual” case. (§ 654.3, subd. (c).)
3
The probation report submitted to the juvenile court indicated that Mark had a
record of disciplinary issues at school, had been arrested for vehicle theft earlier in the
year and was currently participating in a restorative justice program, and had been cited
for stealing a sports jersey at the mall the day before he was arrested for bringing a
weapon to school.
6
We conclude that the juvenile court did not abuse its discretion in denying Mark’s
request for informal supervision under section 654.2.
B. Probation Conditions Imposed by the Juvenile Court
1. Electronics Search Condition
When the juvenile court imposed a search condition that covered “electronics
including passwords,” Mark’s counsel objected.4 The juvenile court responded,
“Apparently, he’s been using [marijuana] on a regular basis since 14. He’s now 15.3. He
uses three times a month.[5] In order for the court to properly supervise his drug
supervision condition, I find minors on a regular basis will buy or sell drugs using the
Internet and post photos and texts of themselves and information about their use of drugs
and possession of paraphernalia. It’s absolutely necessary . . . from the Court’s
experiences.”
Mark contends that the electronics search condition is invalid under People v. Lent
(1975) 15 Cal. 3d 481, 486 (Lent), that it is unconstitutionally overbroad, and that it poses
a risk of illegal eavesdropping under the Invasion of Privacy Act, Penal Code section 630
et seq.
a. Applicable Law
Section 730, subdivision (b) authorizes the juvenile court 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.”
We review the juvenile court’s probation conditions for abuse of discretion. (In re
P.A. (2012) 211 Cal. App. 4th 23, 33.) The legal principles that govern our review are set
4
Mark objected to all the search conditions at the time of imposition, but on
appeal he challenges only the electronics search condition. The search condition states in
its entirety: “Submit person and any vehicle, room or property, electronics including
passwords under your control to search by Probation Officer or peace office[r] with or
without a search warrant at any time of day or night.”
5
Mark points out, and the Attorney General concedes, that the juvenile court
apparently misspoke. The probation department’s report states, “Mark first experimented
with marijuana at age 14 and stated he rarely used it; two times a month.”
7
forth in In re Victor L. (2010) 182 Cal. App. 4th 902 (Victor L.): “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
state to control the conduct of children reaches beyond the scope of its authority over
adults.” ’ [Citation.] This is because juveniles are deemed to be ‘more in need of
guidance and supervision than adults, and because a minor’s constitutional rights are
more circumscribed.’ [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.]” (Id. at p. 910.)
“[W]hile the juvenile court may impose a wider range of probation conditions
[than are permitted for adults], those conditions are permissible only if ‘ “ ‘tailored
specifically to meet the needs of the juvenile.’ ” ’ ” (In re D.G. (2010) 187 Cal. App. 4th
47, 53 (D.G.).) This restriction has particular application to search conditions imposed
on juveniles. For adults, probation is a privilege and adults may waive their Fourth
Amendment rights by consenting to warrantless searches “ ‘in exchange for the
opportunity to avoid service of a state prison term.’ [Citation.]” (People v. Balestra
(1999) 76 Cal. App. 4th 57, 65 (Balestra), quoting In re York (1995) 9 Cal. 4th 1133,
1150.) For juveniles, however, probation “ ‘ “is an ingredient of a final order for the
minor’s reformation and rehabilitation.” ’ (In re Tyrell J. (1994) 8 Cal. 4th 68, 81,
overruled on another ground in In re Jaime P. (2006) 40 Cal. 4th 128.) A juvenile ‘cannot
refuse probation [citations] and therefore is in no position to refuse a particular condition
of probation.’ (In re Binh L. (1992) 5 Cal. App. 4th 194, 202 (Binh).) Courts have
recognized that a ‘minor cannot be made subject to an automatic search condition;
instead, such condition must be tailored to fit the circumstances of the case and the
minor.’ (See People v. Rios (2011) 193 Cal. App. 4th 584, 597; see also Binh, supra, 5
Cal App.4th at p. 203.)” (In re Erica R. (2015) 240 Cal. App. 4th 907, 914 (Erica R.).)
As we explained in Erica R., the juvenile court’s discretion in imposing conditions
of probation is broad but not unlimited. (Erica R., supra, 240 Cal. App. 4th 907.) Our
Supreme Court has stated criteria for assessing the validity of a condition of probation:
8
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
judged by the Lent standard. (D.G., supra, 187 Cal.App.4th at p. 52.)
b. Analysis
The Lent “test is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal. 4th
375, 379 (Olguin).) We therefore consider the electronics search condition with respect
to each prong in turn. Does the condition relate to the criminal offense at issue? Does
the condition relate to conduct that is itself criminal? Is the condition reasonably related
to preventing future criminality? (Id. at p. 380.) If the answer to any of these questions
is “yes,” the condition is valid under Lent; if the answer to all of them is “no,” it is
invalid. As we discuss below, the answer to all the questions here is “no.”
We first address the relationship between the electronics search condition and
Mark’s offense. Mark argues that the condition has no connection to his underlying
offense, possession of a knife on school grounds. The Attorney General argues that the
condition is related to the underlying offense, noting that Mark has asserted a “need for
self-defense and his belief that people are looking for him and provoke him.” The
Attorney General contends that the electronics search condition “allows officers to
monitor his associations and his possession of deadly or dangerous weapons.”
The Attorney General cites People v. Ebertowski (2014) 228 Cal. App. 4th 1170,
1177, in support of that argument, but Ebertowski is distinguishable. In Ebertowski, the
Court of Appeal upheld an electronics search condition as related to the defendant’s
crimes where the defendant was convicted of gang-related offenses (id. at pp. 1176-
1177), and there was evidence that defendant had used social media sites to promote his
9
gang. (Id. at p. 1173.) Here, however, there was no evidence that Mark had used
electronic devices in connection with the underlying offense, or indeed in connection
with any other illegal activity. (See In re J.B. (2015) 242 Cal. App. 4th 749, 756 (J.B.),
distinguishing Ebertowski on similar grounds.)
Because there is no evidence that Mark used electronic devices or social media to
facilitate his offense, and no evidence of any connection between Mark’s use of
electronic devices and any illegal activity, we find no relationship between the electronics
search condition and the underlying offense of possessing a prohibited knife on school
grounds.6
The second inquiry under Lent is quickly addressed. The electronics search
condition relates to Mark’s use of electronic devices; using such devices is not in itself
criminal, nor is using password-protected services such as social media.
With the first two questions answered “no,” the first two prongs of the Lent test
are satisfied, and we must therefore consider whether the electronics search condition as
imposed on Mark is reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p.
486.)
Mark argues that the condition is not reasonably related to future criminal activity,
noting that the condition does not rest on any evidence concerning Mark or minors in
6
In this respect, Mark’s case differs from In re Malik J. (2015) 240 Cal. App. 4th
896 (Malik), where the minor had stolen a cell phone. (Id. at p. 900; see J.B., supra, 242
Cal.App.4th at p. 756 [distinguishing Malik from J.B.].) In Malik, the People contended
an electronics search condition was justified on account of the minor’s history of robbing
people of their cell phones, and so that if the minor “ ‘were found in possession of a cell
phone, a probation or police officer could check the phone to determine whether it had
been stolen.’ ” (Malik, supra, 240 Cal.App.4th at p. 902.) Even so, the Court of Appeal
held that the electronics search condition as imposed by the juvenile court was overbroad
because it “[went] considerably farther than permitting police to search a cell phone to
determine whether Malik is the owner. It also require[d] him to turn over his passwords
to, and authorize[d] unfettered search of, all of his electronic devices and all of his social
media accounts.” (Ibid.) Accordingly, the Court of Appeal in Malik modified the
electronics search condition; among other things, it struck the requirement that he
“ ‘provide any passwords to any social media sites.’ ” (Id. at pp. 900, 906.)
10
general, but rather rests entirely on the juvenile court’s assertion that it has found “minors
on a regular basis will buy or sell drugs using the Internet and post photos and texts of
themselves and information about their use of drugs and possession of paraphernalia.”
The Attorney General counters that the condition reasonably relates to future criminality
because “[i]t aids in deterring further offenses and in monitoring compliance with the
other terms of probation, including the drug condition as the court stated.” For this
argument, the Attorney General relies on Balestra and Olguin, but the cases are
distinguishable.
In Balestra, the defendant pleaded guilty to a count of elder abuse and then
challenged the condition of her probation that required her to submit to warrantless
searches. (Balestra, supra, 76 Cal.App.4th at pp. 62, 66-68.) The Court of Appeal
upheld the search condition, explaining that “a warrantless search condition is intended to
ensure that the subject thereof is obeying the fundamental condition of all grants of
probation, that is, the usual requirement . . . that a probationer ‘obey all laws.’ Thus,
warrantless search conditions serve a valid rehabilitative purpose.” (Id. at p. 67.) The
court also noted that the information obtained through such searches can measure the
effectiveness of the probationer’s supervision. (Ibid., citing People v. Reyes (1998) 19
Cal. 4th 743, 752.) At issue in Mark’s case, however, is not the warrantless nature of the
searches. Mark does not challenge warrantless searches of his person, vehicle, room, or
property. He challenges the scope of the search condition, which extends to all
password-protected uses of his electronic devices.
In Olguin, our Supreme Court upheld a probation condition that required the
probationer to keep his probation officer informed of the presence of any pets at his place
of residence. (Olguin, supra, 45 Cal.4th at p. 387.) The court’s primary concern was
with the safety of the probation officer during unscheduled visits to the probationer’s
residence. The court noted that “[p]robation officer safety during these visits and
searches is essential to the effective supervision of the probationer” (id. at p. 381); that
“[a]nimals can be unpredictable and potentially dangerous when faced with a stranger in
their territory” (ibid.); and that once the probation officer had information about a pet, he
11
or she might “be accompanied by animal control officers during any search” (id. at p.
383), or “request that defendant detain or relocate a pet during a search.” (Ibid.) The pet
notification condition was held to be “a simple task [that] imposes no undue hardship or
burden, and . . . clearly falls within the bounds of reason.” (Id. at p. 382.) The condition
was “reasonably related to the supervision of the defendant and hence to his rehabilitation
and potential future criminality.” (Id. at p. 380.) “[I]t is reasonable to permit the
probation officer . . . to make the initial determination whether, in the officer’s view,
possession of a particular pet will have an impact on, or interfere with, probation
supervision.” (Id. at p. 386.)
The probation condition in Olguin did not extend the scope of the warrantless
search of the probationer’s residence, rather it facilitated the search of the residence by
mitigating the potential of any pet residing with the probationer “to distract, impede, and
endanger probation officers in the exercise of their supervisory duties.” (Olguin, supra,
45 Cal.4th at p. 378.) Thus, it enabled the “probation officer to supervise his or her
charges effectively.” (Id. at pp. 380-381.)
The juvenile court here stated that the purpose of the electronics search condition
was to supervise Mark’s compliance with prohibitions against buying, selling, and using
illegal drugs. The Attorney General contends that access to Mark’s electronics and
password-protected information would make it easier for the probation officer to
determine whether Mark is complying with other terms of his probation as well.
We do not read Olguin to hold that every condition that might enable a probation
officer to supervise his or her minor charges more effectively is necessarily “reasonably
related to future criminality.” (Olguin, supra, 45 Cal.4th at p. 381.) Such a reading
would effectively eliminate the reasonableness requirement that the court in Olguin
discusses at some length. (Id. at p. 382.) Requiring Mark to copy his probation officer
on all his emails, and forward all his postings on social media to his probation officer
might also facilitate his probation officer’s supervision of him, as would requiring him to
wear a body camera. But Olguin no more justifies these hypothetical probation
conditions than the actual electronics search condition in this case.
12
In a recent case, Division Three of this court reached the same conclusion with
regard to Olguin. In J.B., a minor admitted an allegation of petty theft, and the juvenile
court imposed an electronics search condition under a justification similar to the one at
issue here. (J.B., supra, 242 Cal.App.4th at p. 752 [quoting the juvenile court, “ ‘I find
that individuals who are involved in drugs such as this individual tend to record their
usage on the Internet, including photos of themselves smoking, in possession of such
drugs, so that’s appropriate. It’s a very necessary condition to be supervised’ ”].) There
was “no showing of any connection between the minor’s use of electronic devices and his
past or potential future criminal activity” (id. at p. 756) and, accordingly, even in view of
J.B.’s prior use of marijuana, there was not adequate justification under Lent to require
warrantless searches of electronic devices. (Id. at p. 758.) The court in J.B. pointed out
that in Olguin, the court “had no occasion to consider the reasonableness of requiring a
probationary minor to submit all of his electronic devices to inspection without any
evidence or indication that the minor was likely to use the devices for unlawful or other
proscribed activity.”7 (Id. at p. 757.)
7
We are aware that courts in other divisions have taken a different view of Olguin
and Lent, but we respectfully disagree. Our colleagues in Division One and Division
Five have upheld as valid under Lent electronics search conditions similar to the one at
issue here, and imposed on defendants by the same juvenile court. (In re Alejandro R.
(2015) 243 Cal. App. 4th 556, 657-660 (Alejandro R.) [Division One]; In re Patrick F.
(2015) 242 Cal. App. 4th 104, 111 (Patrick F.) [Division Five]; In re Ricardo P. (2015)
241 Cal. App. 4th 676, 686-687 (Ricardo P.) [Division One].) We recognize that these
cases are not strictly comparable to the case here. For one thing, each case involves
different facts. Alejandro R. admitted being an accessory after the fact to the
transportation and distribution of marijuana and “was found to be in possession of illegal
drugs and a member of a drug sales operation.” (Alejandro R., supra, 243 Cal.App.4th at
pp. 654, 660.) Patrick F. admitted burglary; he told the probation officer that he stole to
get money to buy marijuana, smoked marijuana up to three times a day, had not attended
school regularly for a long time, and recognized that his marijuana use had influenced his
decision not to attend school. (Patrick F., supra, 242 Cal.App.4th at p. 108.) Ricardo P.
admitted two felony counts of burglary; he said that he wasn’t thinking clearly when he
committed his offenses, and that he stopped smoking marijuana after he was arrested
because it didn’t allow him to think clearly. (Ricardo P., supra, 241 Cal.App.4th at pp.
680-681.) Moreover, in each of these three cases, although the Court of Appeal upheld
13
Moreover, both Olguin and Balestra involved adult probationers. Both opinions
stated explicitly that probation is a privilege, not a right (Olguin, supra, 45 Cal.4th at p.
384; Balestra, supra, 76 Cal.App.4th at p. 65.) But the situation for a minor is different.
Adults, but not minors, have the right to refuse probation. Accordingly, search
conditions that apply to a minor must be tailored to fit the minor’s particular
rehabilitative needs; if they are not, they are invalid under Lent. (Erica R., supra, 240
Cal.App.4th at p. 914.)
In Erica R., the underlying offense was misdemeanor possession of ecstasy, which
was found in a purse that the minor left behind in a school counselor’s office; nothing in
the record connected the minor’s use of electronic devices or social media to illegal
drugs. (Erica R., supra, 240 Cal.App.4th at p. 909-910, 913.)8 In J.B., the underlying
offense was petty theft, the minor had admitted to using marijuana for at least two and a
half years, and the only information in the record about the use of electronic devices was
that the minor was playing with his cell phone during an interview with his mother and
the probation officer, despite his mother telling him to put the phone away. (J.B., supra,
242 Cal.App.4th at p. 753.) In both cases, an electronics search condition was held to be
not reasonably related to future criminality.
Similarly, the record here does not support a conclusion that the electronics search
condition is reasonably related to future criminal activity by Mark. There is nothing in
the record about Mark’s offense or his social history that connects Mark’s use of
electronics to illegal drugs. With respect to electronics and drugs, the record shows only
an electronics search condition under Lent, the condition was held to be
unconstitutionally overbroad, and the court struck the condition (Ricardo P., supra, 241
Cal.App.4th at p. 692) or modified it (Alejandro R., supra, 243 Cal.App.4th at p. 661;
Patrick F., supra, 242 Cal.App.4th at p. 115.)
8
The same juvenile court heard Erica R., J.B. and this case, and justified the
electronics search conditions using almost identical language in each case. In Erica R.,
“[t]he juvenile court justified the electronic search condition solely by reference to its
experience that ‘many juveniles, many minors, who are involved in drugs tend to post
information about themselves and drug usage.’ ” (Erica R., supra, 240 Cal.App.4th at p.
913.)
14
that over the course of four months Mark was disciplined at school five times for using a
cell phone in class and that Mark admitted to using marijuana twice a month. Because
nothing in Mark’s offense or personal history shows a connection between his use of
electronic devices or social media and any criminal activity, there is no reason to believe
that the electronics search condition will serve the rehabilitative function of preventing
Mark from committing future criminal acts. (Erica R., supra, 240 Cal.App.4th at p. 913,
citing D.G., supra, 187 Cal.App.4th at p. 53.)
Accordingly, we conclude that the electronics search condition here is invalid
under Lent, and therefore we will strike the language “electronics including passwords”
from the search condition imposed by the juvenile court. Because we hold that the
condition is invalid under Lent, we do not reach Mark’s constitutional and statutory
arguments.
2. Objections to Other Probation Conditions
Mark contends that the conditions imposed by the juvenile court that concern
weapons possession, the possession or use of drugs, presence on school grounds,
maintaining a curfew, association with possessors or users of drugs, obedience to his
parents and the possession or use of alcoholic beverages are unconstitutionally vague and
overbroad, in part because they fail to require “scienter.” If a vague or overbroad
probation condition can be modified “without reference to the particular sentencing
record developed in the trial court” (In re Sheena K. (2007) 40 Cal. 4th 875, 887 (Sheena
K.)), an issue of law arises that is subject to de novo review on appeal. (In re Shaun R.
(2010) 188 Cal. App. 4th 1129, 1143.)
Mark did not object to any of these probation conditions at the time the juvenile
court imposed them. Though his arguments are made for the first time on appeal, we
address the merits because the arguments “present pure questions of law based solely on
facial constitutional grounds and do not require a review of the sentencing record, and are
easily remediable on appeal.” (Victor L., supra, 182 Cal.App.4th at p. 907; see Sheena
K., supra, 40 Cal.4th at p. 888.)
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a. Applicable Law
Sheena K. sets forth the fundamental legal principles that we apply here: “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.) Furthermore,
“[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. [Citation.]” (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
defendant’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.) To survive a challenge for vagueness, a
probation condition that prohibits certain conduct must provide the probationer with
adequate notice of what is prohibited. (Sheena K., supra, 40 Cal.4th at p. 890.) To
determine whether notice is adequate, a court is “guided by the principles that ‘abstract
legal commands must be applied in a specific context,’ and that, although not admitting
of ‘mathematical certainty,’ the language used must have ‘ “reasonable specificity.” ’ ”
(Ibid., quoting People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1116-1117.) This
means that if a category is essentially clear, so that people of common intelligence know
whether something falls within it, there is no need for the condition to include a specific
requirement that the probationer knows that something falls within the category.
A condition that is unconstitutionally overbroad or vague may sometimes be saved
by modifying it. (Sheena K., supra, 40 Cal.4th at p. 892 [approving the Court of
Appeal’s modification to cure a vague probation condition]; People v. Forrest (2015) 237
Cal. App. 4th 1074, 1083-1085 [modifying a probation condition to cure overbreadth].)
In particular, a condition that is unconstitutionally vague may sometimes be saved by
modifying it to “impose an explicit knowledge requirement.” (Sheena K., supra, at p.
16
892.) Thus, an unconstitutionally vague condition that prohibits association with gang
members may be cured by modifying it to prohibit association with anyone the defendant
knows to be a gang member. (Id. at pp. 890-892.)
Our colleagues in Division One have examined the distinction between knowing
what you are supposed to avoid, which is pertinent to vagueness, and the mens rea of
willfulness, which is required for a probation violation. (People v. Gaines (2015) 242
Cal. App. 4th 1035, 1039 (Gaines).) “[P]robation may not be revoked unless the evidence
shows that a probationer’s conduct constituted a willful violation of the terms of his or
her probation. [Citation.] Thus, sentencing courts need not include a requirement that a
probationer knowingly violated a condition in order to protect against enforcement of
unwitting violations.” (Ibid.)
We turn now to the conditions that Mark challenges here.
b. Analysis
i. Weapons Possession
The juvenile court imposed the following weapons condition: “You are not to
possess, own, or handle any firearm, knife, weapon, fireworks, explosives or chemicals
that can produce explosives, including matches and lighters . . . [p]epper spray or any
other deadly or dangerous weapon.”
Mark contends that the condition does not adequately describe the terms “weapon”
and “any other deadly or dangerous weapon”; that as written the condition would prohibit
Mark from using normal household items, such as kitchen knives or ammonia (because it
can be used to produce explosives); and that the provision lacks any requirement of
knowledge or intent, with the result that Mark would violate his probation if he
inadvertently carried a bag containing a cigarette lighter for his mother. Mark’s proposal
to remedy the condition’s deficiencies reveals the extent to which questions of knowledge
and mens rea underlie his objections: “You are not to knowingly possess any object that
you know is a dangerous, illegal or deadly weapon. You are not to knowingly possess any
other object that you know can be used to cause bodily injury or death, including but not
limited to firearms, knives, fireworks, explosives, chemicals that can produce explosives,
17
pepper spray, matches or lighters, where you intend to cause such harm.” (Emphasis
added.)
Mark argues that his modification is aligned with the approach taken by our
colleagues in Division Four in In re Kevin F. (2015) 239 Cal. App. 4th 351 (Kevin F.). In
Kevin F., the court reviewed a probation condition that prohibited the possession of
weapons9 and modified it to include knowledge and mens rea requirements, with the
resulting condition: “ ‘[You shall] [n]ot knowingly possess weapons of any kind, which
means no guns, knives, clubs, brass knuckles, attack dogs, ammunition, or something that
looks like a weapon. In addition, you are not to knowingly possess anything that you
intend to use as a weapon or that you know someone else might consider to be a
weapon.’ ” (Id. at p. 366.)
The Attorney General argues that the weapons condition imposed by the juvenile
court here is not unconstitutionally vague or overbroad because the specification of “any
other deadly or dangerous weapon”—language that was not included in the Kevin F.
condition—provides notice that Mark “must not possess any inherently dangerous item
that is designed for use as a weapon, or any item being used in a way that renders it
capable of inflicting great bodily injury or death.” She cites In re R.P. (2009) 176
Cal. App. 4th 562, 567-568 (R.P.), which rejected a vagueness challenge and upheld a
probation condition that prohibited a minor from possessing any “ ‘dangerous or deadly
weapon.’ ” In R.P., the court concluded that by using the phrase “dangerous or deadly
weapon” the condition plainly “prohibited possession of items designed as weapons, and
other items not specifically designed as weapons that the probationer intended to use to
inflict, or threaten to inflict, great bodily injury or death.” (People v. Moore (2012) 211
Cal. App. 4th 1179, 1186, citing R.P., supra, at p. 570.)
9
The original condition in Kevin F. was, “ ‘[You are not to] possess weapons of
any kind, which means no guns, knives, clubs, brass knuckles, attack dogs, ammunition,
or something that looks like a weapon. You are not to possess anything that you could
use as a weapon or someone else might consider to be a weapon.’ ” (Kevin F., supra, 239
Cal.App.4th at p. 357.)
18
The Attorney General also argues that because the category here provides
adequate notice, there is no need for us to insert an express mens rea requirement.
We note that the weapons condition as stated by the juvenile court here includes
the phrase “deadly or dangerous weapon,” logically equivalent to the phrase “ ‘dangerous
or deadly weapon’ ” discussed in R.P. (R.P., supra, 176 Cal.App.4th at pp. 567-568.)
We therefore conclude that the weapons condition is not vague or overbroad in that
respect: it prohibits Mark from possessing, owning or handling any item specifically
designed as a weapon, and any item not specifically designed as a weapon if he intends to
use the item to inflict or threaten death or great bodily injury. (Id. at p. 570.) We also
conclude that the absence of an express knowledge requirement here does not eliminate
the mens rea of willfulness that is necessary for any violation of the weapons condition.
Thus, we agree with our colleagues in Gaines that concerns about the application of the
mens rea standard in revocation proceedings should not be “addressed by adding an
express mens rea requirement to every single probation condition issued by our trial
courts.”10 (Gaines, supra, 242 Cal.App.4th at p. 1040.)
Accordingly, we decline to modify the weapons condition imposed by the juvenile
court.
ii. Possession or Use of Drugs
The juvenile court imposed a drug condition, which requires that Mark not
“use or possess narcotics, drugs, other controlled substances, related paraphernalia or
poisons unless prescribed by a physician.” The term “controlled substances” is defined
by statute. (See Health & Saf. Code, §§ 11053-11058.)
10
Our Supreme Court is currently considering two cases that raise the question
whether certain probation conditions must state explicit knowledge requirements. One
case concerns knowledge requirements in probation conditions that prohibit the
possession of firearms and illegal drugs. (People v. Hall, review granted Sept. 9, 2015,
S227193.) In the other, the Supreme Court has instructed the parties to brief the issue of
whether no-contact probation conditions must be modified to include a knowledge
requirement. (In re A.S., review granted Oct. 1, 2014, S220280).
19
Mark contends that because the condition includes the term “drugs” it is vague and
overbroad. He claims the prohibition “could include perfectly legal items that are
available at every pharmacy without prescription,” and that as written, it precludes him
from being given aspirin by his mother or a school nurse. He also contends that a
knowledge requirement must be added, and would have us modify the condition to read
as follows: “Do not knowingly use or possess narcotics, prescription drugs, other
controlled substances, related paraphernalia or poisons unless prescribed by a physician.
Do not use any non-prescription drugs without the approval of your legal guardian.”
(Emphasis omitted.) The Attorney General contends that there are no constitutional
deficiencies in the prohibition as stated by the juvenile court. Neither party cites any
authority as specifically addressing the vagueness of probation conditions that prohibit
the possession of drugs.
Gaines is instructive here. There, the court considered a challenge to a probation
condition that prohibited the defendant from possessing or using “ ‘narcotics, dangerous
drugs, or narcotic paraphernalia,’ ” where defendant argued that the term “ ‘dangerous
drugs’ ” was unconstitutionally vague and overbroad and should be replaced with the
term “ ‘controlled substances.’ ” (Gaines, supra, 242 Cal.App.4th at pp. 1040-1041.)
The court modified the condition to prohibit possessing or using “ ‘narcotics, controlled
substances, or narcotic paraphernalia without a valid prescription.’ ” (Id. at p. 1042.)
Noting the similarity between the language approved in Gaines and the language
used by the juvenile court here, we conclude that the condition is constitutional as stated.
The phrase “other controlled substances” makes it clear that the prohibited “drugs” are
limited to drugs that are controlled substances, and therefore the category is sufficiently
clear that there is no need to specify a knowledge requirement.
iii. Knowledge Requirements for Other Conditions
Without providing us any specific argument or authority, Mark contends that five
other probation conditions should be modified. He contends that the school presence
condition should be modified to state that he must not knowingly be on school grounds;
the curfew to state that he not knowingly violate the curfew set by his parent or guardian;
20
the association condition to state that he not knowingly associate with anyone he knows to
use, deal or possess illegal drugs; the obedience condition to state that he not knowingly
disobey his parent or guardian; and the alcohol condition to state that he must not
knowingly use or possess alcoholic beverages.”
In the absence of evidence, argument or authority to suggest that a reasonable
probationer could be confused as to the requirements set out in these conditions as
imposed by the juvenile court, we decline to modify them to include express mens rea
requirements. (See Gaines, supra, 242 Cal.App.4th at p. 1040.)
DISPOSITION
The probation conditions ordered by the juvenile court are modified to strike the
phrase “electronics including passwords.” In all other respects, the juvenile court’s
dispositional order is affirmed.
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
21
Trial Court: Superior Court of Alameda County
Trial Judge: Hon. Leo Dorado
Attorney for Defendant and Appellant Peter B. Meadow
By appointment of the Court of Appeal
Attorney for Plaintiff and Respondent
People Kamala D. Harris
Attorney General
Gerald A. Engler
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Eric D. Share
Supervising Deputy Attorney General
Laurence K. Sullivan
Supervising Deputy Attorney General
22