In re G.P. CA1/5

Filed 6/14/22 In re G.P. CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re G.P., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A162942
v.
(Napa County
G.P., Super Ct. No. 20213632005)
Defendant and Appellant.
This case requires us to consider the reasonableness of a
probation condition authorizing warrantless searches of G.P.’s
electronic devices. The juvenile court imposed the electronic
search condition after G.P. admitted violating several conditions
of his probation. G.P. appeals, asserting that the electronic
search condition is invalid under People v. Lent (1975) 15 Cal.3d
481 (Lent) because it lacks a sufficient nexus to his future
criminality. He also contends the condition is overbroad under
the United States Constitution. Because G.P. used social media
in connection with some of his probation violations, we conclude
the juvenile court did not abuse its discretion in imposing an
electronic search condition, but we remand the matter to the trial
court to tailor the condition in accordance with In re Ricardo P.
(2019) 7 Cal.5th 1113 (Ricardo P.).
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BACKGROUND
A.
G.P. pled no contest to second degree robbery (Pen. Code, §
211)1 and attempted second degree robbery (§§ 211, 664). The
juvenile court adjudged him a ward of the court, placed him on
probation, and imposed numerous probation conditions. Those
conditions include a curfew and requirements to attend school
regularly; maintain passing grades; report to the probation officer
as directed; stay in his parent’s home; obey all reasonable
directives of his parents and the probation officer; and avoid all
contact and communication with I.S.--G.P.’s accomplice in the
robbery.
A few months later, G.P.’s mother reported to the Napa
Police Department that G.P. ran away from home and failed to
report to his probation officer. Around that time, G.P. asked for a
place to stay by posting on the social media app Snapchat.
A detective from the Napa Police Department located G.P.
at his place of work and attempted to place him under arrest.
G.P. broke free from the detective’s grip and ran through a
parking lot and across a highway. Officers eventually took G.P.
into custody, but only after he continued to try to evade them.
G.P. had also violated several other probation conditions in
the three months between the court’s imposition of probation and
his arrest. G.P. was still associating with I.S. G.P. was present
when the police conducted a search of I.S.’s home, and one of
G.P.’s Snapchat posts showed him smoking with I.S. G.P. also
missed 46 out of 117 school days, was failing all but one of his
classes, and had left his parent’s home and failed to return after
curfew on at least three prior occasions.
1 Undesignated statutory references are to the Penal Code.
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B.
The Napa County district attorney filed an amended
supplemental juvenile wardship petition charging G.P. with
resisting arrest (Pen. Code, § 148, subd. (a)(1)) and failure to obey
a juvenile court order (Welf. & Inst. Code, § 777, subd. (a)(1)). At
an uncontested detention hearing, G.P. admitted the violations,
and the juvenile court sustained the petition.
G.P.’s probation officer filed a dispositional report that
described G.P.’s numerous probation violations and his comments
indicating that he did not appreciate the consequences of his
actions. The probation officer recommended continued
supervision with additional probation conditions, including an
electronic search condition, noting that G.P. uses his cell phone to
“further his high-risk behaviors, and [the electronic search
condition] may assist in preventing future criminal conduct.”
C.
At the dispositional hearing, G.P.’s counsel asked the court
to strike the electronic search condition, arguing that under
Ricardo P., supra, 7 Cal.5th 1113, G.P.’s use of a phone to
communicate while on the run does not justify the burden the
condition imposes on his privacy interests.
The juvenile court adopted the probation department’s
recommendations and imposed the electronic search condition.
DISCUSSION
G.P. contends the electronic search condition is invalid
under Lent. Applying the abuse of discretion standard (In re P.A.
(2012) 211 Cal.App.4th 23, 33), we agree the condition imposes a
burden on G.P. disproportionate to the legitimate interests it
serves. (Ricardo P., supra, 7 Cal.5th at p. 1122.)
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A.
The electronic search condition requires G.P. to submit “all”
electronic devices under his control to search and seizure “at any
time of the day or night with or without a search warrant, arrest
warrant, or reasonable suspicion” and to also provide all
passcodes and other information required to gain access into the
electronic devices and their applications. The condition is limited
to “areas of the electronic devices where evidence likely to reveal
criminal activity or probation violations may be found.”
B.
A juvenile court has broad discretion to fashion conditions
of probation for the purpose of rehabilitation and may impose a
probation condition that would otherwise be unconstitutional if it
is tailored to meet the needs of the juvenile. (In re Josh W. (1997)
55 Cal.App.4th 1, 5.) However, the juvenile court’s discretion has
limits. (In re Alonzo M. (2019) 40 Cal.App.5th 156, 164 (Alonzo
M.).) Probation conditions must be reasonable. (Welf. & Inst.
Code, § 730, subd. (b).) The reasonableness of a probation
condition is measured by the circumstances of the minor’s offense
and social history. (In re Walter P. (2009) 170 Cal.App.4th 95,
100.)
Under Lent, 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 related to
future criminality. ’ ” (Lent, supra, 15 Cal.3d at p. 486.) All three
Lent prongs must be satisfied to invalidate a probation condition.
(People v. Olguin (2008) 45 Cal.4th 375, 379.)
The parties appear to agree that the first two prongs of
Lent are satisfied. The question then is whether the electronic
search condition also satisfies Lent’s third prong.
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To demonstrate that a probation condition is “ ‘reasonably
related to future criminality’ ” under Lent’s third prong, the
record must establish a connection between the condition and the
probationer’s criminal conduct or personal history. (Ricardo P.,
supra, 7 Cal.5th at pp. 1119–1121.) There must be more than an
“abstract or hypothetical” relationship between the probation
condition and preventing future criminality. (Id. at p. 1121.)
However, the probation condition need not be tied to the
probationer’s crimes if the conditions are “ ‘reasonably’ ” directed
at curbing the probationer’s future criminality. (Id. at p. 1122.)
Lent’s third prong also requires a “degree of
proportionality” between the burden imposed by the probation
condition and the legitimate interests it serves. (Ricardo P.,
supra, 7 Cal.5th at p. 1122.) Ricardo P. held that a “burdensome
and intrusive” electronic search condition requires “a
correspondingly substantial and particularized justification.” (Id.
at p. 1126.)
C.
G.P.’s main argument is that the electronic search
condition is not proportionate to the legitimate interests it serves.
Here, the legitimate interest served by the electronic search
condition is the government’s interest in monitoring G.P.’s
compliance with the stay-away order and the probation
conditions requiring G.P. to remain in his parent’s home and
abide by a curfew. Because the record demonstrates that G.P.
used Snapchat to facilitate (or flaunt) his violation of those
probation conditions, there is more than an “abstract or
hypothetical” connection between the electronic search condition
and the government’s legitimate interest. (Ricardo P., supra, 7
Cal.5th at pp. 1121–1122.)
However, G.P. argues that the electronic search condition is
disproportionate to the legitimate interest in ensuring his
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adherence to those terms of probation. In Alonzo M., the court of
appeal concluded that a juvenile court’s decision to impose an
electronic search condition was not an abuse of discretion where
the minor and his mother attributed his criminal conduct to the
people he socialized with, and the record showed that the minor
spent a significant amount of his time using electronic devices.
(Alonzo M., supra, 40 Cal.App.5th at pp. 166–167.) But the court
also found that the language of the electronic search condition
was too broad and remanded the case to allow the juvenile court
to tailor the condition to the probation department’s legitimate
interest in preventing the minor from communicating with his
accomplices. (Id. at pp. 167–168.)
In re Amber K. (2020) 45 Cal.App.5th 559 is similar. The
court concluded that a broad electronic search condition imposed
a burden disproportionate to the legitimate interest of ensuring
the minor was complying with a no-contact order. (Id. at p. 567.)
Likewise, here, the electronic search condition imposes a
greater burden on G.P. than the circumstances warrant. The
condition permits searches of social media accounts, emails,
texts, search histories, digital photos and videos (In re David C.
(2020) 47 Cal.App.5th 657, 664), and any digital information that
may contain evidence of criminal activity, even if unrelated to the
probation conditions at issue here. The search condition also
lacks temporal limitations, allowing officers to access information
that predates the imposition of G.P.’s probation. (Ricardo P.,
supra, 7 Cal.5th at p. 1127.) The record does not reveal a
“substantial and particularized justification” for such an
expansive search condition. (Id. at p. 1126.)
We remand the matter to the juvenile court to consider
whether to impose a narrower electronic search condition, the
burden of which should be proportionate to the state’s interest in
ensuring G.P.’s compliance with the stay-away order and the
probation conditions requiring G.P. to remain in his parent’s
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home and abide by a curfew. We do not reach G.P.’s
constitutional argument.
D.
G.P. has forfeited his argument that the electronic search
condition is unreasonable because it may discourage him from
accessing digital services and programs to support his
rehabilitation. He fails to support this argument with citation to
legal authority or to the record. (WFG National Title Ins. Co. v.
Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894.)
DISPOSITION
The electronic search condition is stricken. The matter is
remanded to the juvenile court to consider whether to impose a
revised condition tailored to the relevant state interests. The
disposition order is otherwise affirmed.
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______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
WISEMAN, J.*
A162942
* Retired Associate Justice of the Court of Appeal, Fifth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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