In re David C.

Filed 4/8/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re DAVID C., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A157151
v.
DAVID C., (Napa County
Defendant and Appellant. Super. Ct. No. 201835749-02)
Minor appeals from a juvenile court order placing him on probation
after the court found true allegations of indecent exposure (Pen. Code, § 314,
subd. 1) and simple battery (Pen. Code, § 242). He challenges multiple
conditions of probation. We strike the electronics search condition and
modify several other probation conditions.
BACKGROUND
A. Prosecution Case
In March 2018, when minor and his 14-year-old female classmate C.S.
were seated next to each other in the back row of their high school English
class, minor asked C.S. if he could “finger” her and have sex with her after
school. C.S. said no. She then heard minor unzip his pants and saw him hold
his penis up with his hand. Minor asked C.S. if she would please do it; she
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said “no, that’s not happening,” and minor zipped up his pants. C.S. reported
the incident to school authorities later the same day.
Several days prior to minor’s incident with C.S., minor touched M.I.,
another 14-year-old female classmate, during English class. Minor touched
M.I.’s thigh and put his hand through a hole in her jeans, touching the top of
her underpants. M.I. told minor to stop and pushed his hand away. Minor
continued to touch M.I. on her side and put his hand on her back and in her
“bra area . . . .” Again, M.I. pushed his hand away. She reported the incident
to school authorities a few days later.
B. Defense Case
Minor denied exposing himself to C.S. He testified that after C.S.
jokingly said “fuck you” to minor, he jokingly replied, “[W]hen?” and he
gestured toward pulling his pants down but did not actually do so.
Minor testified he and M.I. had been “talking” for several months and
M.I. had told him she wanted to have a relationship with him. Minor and
M.I. sometimes walked to class together and held hands. On the day of the
incident, minor put his hand on M.I.’s thigh, and she initially smiled but then
pushed his hand away. He asked her what was wrong and grabbed her hand,
and again she pulled her hand away. Then he placed his hand on her “waist
area” and again asked her what was wrong. M.I. hit his hand away. Minor
did not try to touch her any further. He denied touching her in the groin,
buttocks, or breasts or on top of her underwear.
C. Disposition
On February 14, 2019, the juvenile court sustained a petition filed by
the Napa County District Attorney under Welfare and Institutions Code
2
section 602,1 finding minor had committed indecent exposure (Pen. Code,
§ 314, subd. 1) and simple battery (Pen. Code, § 242). On April 8, 2019, the
court held a disposition hearing at which it declared minor to be a ward of the
juvenile court, ordered him to remain in the home of his mother, placed him
under the supervision of the probation department, and imposed multiple
probation conditions.
DISCUSSION
A. Legal Principles
When a juvenile court places a minor on probation, it “ ‘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.’ [Citations.] ‘ “In fashioning the
conditions of probation, the . . . court should consider the minor’s entire social
history in addition to the circumstances of the crime.” ’ [Citation.] The court
has ‘broad discretion to fashion conditions of probation’ [citation], although
‘every juvenile probation condition must be made to fit the circumstances and
the minor.’ ” (In re P.O. (2016) 246 Cal. App. 4th 288, 293–294.) “We review
the juvenile court’s probation conditions for abuse of discretion, and such
discretion will not be disturbed in the absence of manifest abuse.” (In re
Erica R. (2015) 240 Cal. App. 4th 907, 912.) However, “[w]hether a term of
probation is unconstitutionally vague or overbroad presents a question of law,
which we review de novo.” (People v. Stapleton (2017) 9 Cal. App. 5th 989,
993.)
All statutory references are to the Welfare and Institutions Code
1
unless otherwise stated.
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B. Condition 21: Electronics Search Condition
The probation department’s dispositional report recommended that
minor be subject to an electronics search condition requiring him to disclose
passwords and access codes to his accounts and devices. Minor objected that
the electronics search condition failed the reasonableness test under People v.
Lent (1975) 15 Cal. 3d 481 (Lent) because it was not reasonably related to
minor’s future criminality. The juvenile court initially agreed and struck the
recommended electronics search condition, stating “because there was no
electronic [sic] use from these allegations I don’t think it will survive [under
Lent].”2 The People argued that if minor needed sex offender treatment
(which was also recommended in the dispositional report), the probation
officer would need to be able to access what minor views online. The district
attorney stated: “I don’t know that we have any sex offenders that are
currently being supervised . . . where we don’t have the ability to see what
they’re looking at on the Internet.”
The juvenile court then incorporated the electronics search condition
into condition 21, as follows: “The minor attend, actively participate in, and
complete individual or group sex offender counseling if recommended by a
treatment provider after a psychological/psychiatric evaluation is completed
and at the direction of the probation officer. The minor and or the minor
parents [sic] shall pay program fees. The minor shall be required to produce
a doctor’s note for any missed treatment unless absence is pre-approved by
the probation officer.. [Sic.] If the treatment provider recommends a safety
2 The juvenile court elaborated: “It’s just that in this particular case,
there is no allegation . . . of Internet, texting, emailing, sending photographs,
posting things on Instagram, which may be more common than other cases.
This was in the classroom, . . . two specific instances. The Court just wants to
be sure that the terms comport with the Lent case.”
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plan, the minor, his parents, [and] probation will work with the provider to
develop a safety plan. If the treatment provider determines it’s therapeutically
necessary for probation to monitor the minor’s internet accounts or means of
accessing online accounts the minor shall disclose to his probation officer all
passwords and access codes. Furthermore, the minor submit [sic] all
electronic devices under his or her control to search and seizure at any time of
the day or night with or without a search warrant, arrest warrant, or
reasonable suspicion. This search shall be confined to areas of the electronic
devices where evidence likely to reveal criminal activity or where probation
violations may be found. Contraband seized by the probation officer shall be
disposed of, stored or returned at the discretion of the probation officer[.]”
(Italics added.) Minor argues the italicized portion of condition 21 does not
satisfy the reasonableness test under Lent and impermissibly delegates the
court’s discretion to a treatment provider. We agree the electronics search
condition is unreasonable under the Lent test and In re Ricardo P. (2019) 7
Cal. 5th 1113 (Ricardo P.).
“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.) Under the Lent test, “all three prongs must be satisfied
before a reviewing court will invalidate a probation term.” (People v. Olguin
(2008) 45 Cal. 4th 375, 379.) The Lent test governs juvenile and adult
probation cases. (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Here the parties do not dispute that the first two prongs of Lent are
satisfied; they argue only about the third prong, that is, whether the
condition is reasonably related to future criminality. Ricardo P. addressed
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the same issue in the case of a minor who admitted to a felony burglary that
did not involve any electronics use and then challenged a probation condition
allowing warrantless searches of his electronic devices and accounts.
(Ricardo P., supra, 7 Cal.5th at p. 1115.)
In Ricardo P., the juvenile court justified the condition as useful to
monitor Ricardo’s compliance with other conditions prohibiting drug use and
possession, the theory being that juveniles use their phones to buy drugs and
brag about drug use online. (Ricardo P., supra, 7 Cal.5th at pp. 1115–1117.)
Our high court clarified that “Lent’s requirement that a probation condition
must be ‘ “reasonably related to future criminality” ’ contemplates a degree of
proportionality between the burden imposed by a probation condition and the
legitimate interests served by the condition.” (Id. at p. 1122.) It struck the
electronics search condition as not reasonably related to Ricardo’s future
criminality, finding that the condition imposed “a very heavy burden on
privacy with a very limited justification.” (Id. at pp. 1124, 1129.) The burden
imposed on Ricardo’s privacy was “substantially disproportionate to the
condition’s goal of monitoring and deterring drug use,” and, thus, the court
held the condition invalid under Lent. (Id. at p. 1120.) In rejecting the
People’s argument that the condition was justified because it would aid in
monitoring Ricardo’s drug usage, the high court stated: “If we were to find
this record sufficient to sustain the probation condition at issue, it is difficult
to conceive of any case in which a comparable condition could not be imposed,
especially given the constant and pervasive use of electronic devices and
social media by juveniles today. In virtually every case, one could
hypothesize that monitoring a probationer’s electronic devices and social
media might deter or prevent future criminal conduct.” (Id. at p. 1123.)
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Here the juvenile court initially noted that “because there was no
electronic [sic] use from these allegations I don’t think [the electronics search
condition] will survive [under Lent].” In response, however, to the People’s
statement that minors in sex offender treatment programs are generally
subject to electronics search conditions so that probation officers are able “to
see what they’re looking at on the Internet,” the juvenile court imposed
condition 21, requiring minor to disclose to his probation officer “all
passwords and access codes” and 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.”
Although the order conditions minor’s disclosure of passwords and access
codes on a treatment provider’s determination that “it’s therapeutically
necessary for probation to monitor the minor’s internet accounts,” we find the
condition fails Lent’s third prong for the reasons explained in Ricardo P.
As in Ricardo P., the burden imposed on minor’s privacy is
“substantially disproportionate to the condition’s goal . . . .” (Ricardo P.,
supra, 7 Cal.5th at p. 1120.) Nothing in the record suggests minor’s crimes
involved any use of electronics. The People did not articulate a specific
justification for the search condition, and instead provided only a general
statement that minors in sex offender treatment are typically subject to such
search conditions so that “we . . . have the ability to see what they’re looking
at on the Internet.” This general statement alone is insufficient to find that
the electronics search condition is “ ‘reasonably related to future criminality’ ”
in this case, and, thus, the condition fails the Lent test. (Ricardo P., at p.
1124.)
The People argue Ricardo P. is distinguishable because the provision at
issue there allowed for “ ‘full access’ ” to Ricardo’s phone, whereas here the
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search condition is “ ‘confined to areas of the electronic devices where
evidence likely to reveal criminal activity or where probation violations may
be found’ ” and is triggered only upon a finding by minor’s treatment provider
that the search condition is “ ‘therapeutically necessary.’ ” According to the
People, these limitations demonstrate “more than just an abstract or
hypothetical relationship between the probation condition and preventing
future criminality” (Ricardo P., supra, 7 Cal.5th at p. 1121) and will allow the
probation department to monitor minor’s compliance with other probation
conditions, including that he have no contact with the victims, not possess
sexually explicit materials, and not access sexually explicit phone services.
We agree with minor that confining the search condition to “areas of
the electronic devices where evidence likely to reveal criminal activity or
where probation violations may be found” does not meaningfully narrow the
scope of the search condition. It still imposes a “very heavy burden”
(Ricardo P., supra, 7 Cal.5th at p. 1124) on minor’s privacy interests because
it permits searches of social media accounts, e-mails, text messages, search
histories, and digital photos and videos. (See In re J.B. (2015) 242
Cal. App. 4th 749, 758–759 [questioning whether limiting electronics search
conditions to text messages, voicemail messages, call logs, photographs, e-
mail accounts and social media accounts is any limitation at all]; Riley v.
California (2014) 573 U.S. 373, 399 [“a rule that would restrict the scope of a
cell phone search to those areas of the phone where an officer reasonably
believes that information relevant to the crime, the arrestee’s identity, or
officer safety will be discovered . . . would again impose few meaningful
constraints on officers. The proposed categories would sweep in a great deal
of information, and officers would not always be able to discern in advance
what information would be found where”].)
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Given the heavy burden imposed by the search condition, there needs
to be a “correspondingly substantial and particularized justification” for the
condition to be valid. (Ricardo P., supra, 7 Cal.5th at p. 1126.) Here, the
record does not reveal any such “substantial and particularized justification.”
As in Ricardo P., here minor did not use electronic devices in connection with
his offenses, and nothing in the record indicates he “has ever used electronic
devices to commit, plan, discuss, or even consider . . . any . . . criminal
activity.” (Id. at p. 1119.) In Ricardo P. the juvenile court specifically found
that the electronics search condition was “ ‘a very important part of being
able to monitor [the minor’s] drug usage’ ” (id. at p. 1117), because “ ‘minors
typically will brag about their marijuana usage or drug usage . . . by posting
on the Internet . . . .’ ” (Id. at p. 1122.) The high court found the electronics
search condition was not justified by this generalization regarding juveniles’
conduct and the juvenile court’s hypothesis that monitoring electronic devices
might deter or prevent future criminal conduct. (Id. at pp. 1122–1123.)
Here, the juvenile court made no specific finding that the electronics search
condition was necessary to monitor minor’s compliance with probation
conditions or to deter future criminal conduct, but it seems to have relied
upon the district attorney’s general statement that she did not know of any
sex offenders being supervised “where we don’t have the ability to see what
they’re looking at on the Internet.” Even assuming the juvenile court
accepted the People’s statement as the justification for imposing the
electronics search condition, we find this generalized statement, without
more, to be an insufficient basis under Lent and Ricardo P. The record does
not establish “a connection between the . . . condition and the probationer’s
criminal conduct or personal history—an actual connection apparent in the
evidence, not one that is just abstract or hypothetical.” (In re Alonzo M.
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(2019) 40 Cal. App. 5th 156, 166, citing Ricardo P., supra, 7 Cal.5th at pp.
1120–1121.)
The People argue the connection between the condition and preventing
future criminality is not abstract or hypothetical because the search condition
is contingent upon minor’s treatment provider’s finding it to be
“therapeutically necessary” and the condition will enable the probation officer
to monitor compliance with various probation conditions. Facilitating
supervision of a probationer does not automatically make a condition
reasonably related to future criminality. (See Ricardo P., supra, 7 Cal.5th at
p. 1120.) Nor is the condition saved because it is contingent upon a finding
by a treatment provider that it is “therapeutically necessary.” Nothing in the
record establishes that the electronics search condition is valid as
“ ‘reasonably related to future criminality,’ ” and a treatment provider’s
finding of “therapeutic necessity” at some later date is not equivalent to a
finding that the burden imposed is proportional to the legitimate interests
served by the condition. (Ricardo P., at p. 1122.)3
For these reasons, we strike the electronics search portion of condition
21 (the italicized language).4
3 Because we find the electronics search portion of condition 21 invalid
under Lent and Ricardo P., we do not reach minor’s argument that the
condition improperly delegates the court’s discretion to the treatment
provider.
4 We leave for the juvenile court the decision of whether to craft an
alternative electronics search condition more narrowly tailored to the court’s
specific concerns regarding minor’s involvement in future criminal activity
and what the parameters of such condition might look like. (See Ricardo P.,
supra, 7 Cal.5th at pp. 1116–1117, 1124.)
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C. Condition 29: Prohibiting Possession of Sexually Explicit
Materials
1. Conflict between order and disposition report and
reporter’s transcript.
The parties agree that the juvenile court orally imposed, over minor’s
objections on the grounds of vagueness and overbreadth, what was numbered
as condition 41 in the dispositional report, which states: “The minor shall not
own, use, or possess any materials or items that have a primary purpose of
causing sexual arousal, including computer based movies, videos, magazines,
books, games, sexual aids or devices, nor shall he/she knowingly visit any
establishment where such materials or items are the primary commodity for
sale.”
The parties also agree that the juvenile court’s written order
mistakenly includes different language than the juvenile court’s oral
pronouncement.5 “The California Supreme Court has . . . stated that ‘a
record that is in conflict will be harmonized if possible,’ but if the reporter’s
transcript and the clerk’s transcript . . . cannot be reconciled, we do not
automatically defer to the reporter’s transcript, but rather adopt the
transcript that should be given greater credence under the circumstances of
the particular case. [Citations.]” (People v. Contreras (2015) 237 Cal. App. 4th
868, 880.) Here, the dispositional report includes condition 41 and the
reporter’s transcript indicates the juvenile court adopted the language of
condition 41. The different language used in condition 29 in the dispositional
In the written order, the sexually explicit materials condition is
5
renumbered as condition 29 and states: “The minor is prohibited from
possessing, accessing[,] producing, purchasing or subscribing to sexually
explicit materials which the minor knows are pornographic in nature, or that
the probation officer has informed the minor are pornographic in nature,
including any materials representing any identified fetish.”
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order was not referenced or discussed at the dispositional hearing. We find
that the record as a whole indicates the language of condition 41 in the
dispositional report was adopted by the juvenile court’s oral pronouncement
and was intended to be included in the dispositional order in place of the
language of condition 29. Accordingly, we modify condition 29 so that it is
consistent with condition 41 in the dispositional report.6
2. Probation condition prohibiting possession of materials
that have a primary purpose of causing sexual arousal
is not unconstitutionally vague.
Minor argues, further, that the language of condition 41 in the
dispositional report (adopted in the modified condition 29) should be stricken
as unconstitutionally vague and overbroad. The cases minor relies upon
found probation conditions prohibiting pornographic or sexually explicit
materials to be unconstitutionally vague. (See In re D.H. (2016) 4
Cal. App. 5th 722, 727–729 [probation condition forbidding “ ‘pornography’ ” is
unconstitutionally vague]; People v. Pirali (2013) 217 Cal. App. 4th 1341, 1345,
1352–1353 [condition forbidding “ ‘any pornographic or sexually explicit
material as defined by the probation officer’ ” is unconstitutionally vague];
U.S. v. Adkins (7th Cir. 2014) 743 F.3d 176, 193–196 [condition forbidding
“ ‘any pornography or sexually stimulating material or sexually oriented
material’ ” is unconstitutionally vague]; U.S. v. Goodwin (7th Cir. 2013) 717
F.3d 511, 515, 524–525 [conditions forbidding any “material that ‘contains
nudity or . . . depicts or alludes to sexual activity or depicts sexually arousing
material’ ” and “ ‘sexually arousing material, including child pornography’ ”
6Condition 29 is modified to state: “The minor shall not own, use, or
possess any materials or items that have a primary purpose of causing sexual
arousal, including computer-based movies, videos, magazines, books, games,
and sexual aids or devices; nor shall he knowingly visit any establishment
where such materials or items are the primary commodity for sale.”
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are unconstitutionally vague]; U.S. v. Antelope (9th Cir. 2005) 395 F.3d 1128,
1141–1142 [condition forbidding “ ‘any pornographic, sexually oriented or
sexually stimulating materials’ ” is unconstitutionally vague]; U.S. v.
Guagliardo (9th Cir. 2002) 278 F.3d 868, 872 [condition forbidding “ ‘any
pornography’ ” is unconstitutionally vague]; U.S. v. Loy (3d Cir. 2001) 237
F.3d 251, 261–265 [condition forbidding “ ‘all forms of pornography, including
legal adult pornography’ ” is unconstitutionally vague].)
In contrast to the foregoing cases cited by minor, the modified condition
29 at issue here does not contain the word “pornographic,” which has been
found to be unconstitutionally vague. (See In re D.H., supra, 4 Cal.App.5th
at p. 728.) The modified condition 29 prohibits possession of materials “that
have a primary purpose of causing sexual arousal . . . .” We find that the
phrase “primary purpose of causing sexual arousal” is a sufficiently clear
standard that will in almost all cases allow minor to readily determine
whether materials are prohibited. (See People v. Morgan (2007) 42 Cal. 4th
593, 606 [“ ‘ “[a] statute is not void [for vagueness] simply because there may
be difficulty in determining whether some marginal or hypothetical act is
covered by its language” ’ ”].) Even minor acknowledges that the “primary
purpose” language at issue here might narrow the range of materials covered.
D. Conditions 18 and 22: Psychological/Psychiatric Evaluation
and Assessments, Including Polygraph
Condition 18 requires minor to “submit to a psychological/psychiatric
evaluation as directed by the probation officer,” and condition 22 states minor
“shall submit to any and all programs of psychological assessment at the
direction of treatment provider, including, but not limited to, ABEL
Screening and post dispositional polygraph examinations. The minor and
his/her parents shall sign a release of information and be financially liable for
the aforementioned assessments and shall provide the probation officer and
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treatment provider with the completed reports to assist in treatment
planning and case monitoring.” Minor argues these conditions are
unconstitutionally vague and improper delegations of judicial discretion
because they give the probation officer and treatment providers discretion to
require minor to undergo any psychological/psychiatric evaluation or
assessment. He further argues condition 22 is overbroad because it does not
limit the permissible polygraph questions, and he asserts the financial
liability portion of condition 22 is unauthorized as a matter of law.
1. Psychological/psychiatric evaluation and assessment
provisions are not unconstitutionally vague.
Minor asserts that the alleged vagueness of conditions 18 and 22 can be
addressed by modifying these conditions to specify that minor is only
“required to submit to a psychological/psychiatric evaluation for the purpose
of assessing the appropriateness of a sex offender treatment program, and
psychological assessments for the purpose of providing sex offender
treatment.”7 He argues that without this modification, these conditions fail to
provide him with fair notice of the psychological/psychiatric evaluations and
psychological assessments he may be required to complete and they also
impermissibly delegate basic policy matters to the treatment provider and
probation officer. We disagree.
The challenged conditions allow for psychological/psychiatric
evaluations and assessments as directed by the minor’s probation officer or
treatment provider. This is not a situation where the minor will be uncertain
as to how to comply with these conditions. “A probation condition ‘must be
7 Minor did not object below to condition 18, and he objected to
condition 22 only on the grounds that the polygraph portion was overbroad.
However, we find his constitutional vagueness challenge presents a pure
question of law, which we review de novo and which may be raised for the
first time on appeal. (In re Sheena K. (2007) 40 Cal. 4th 875, 888–889.)
14
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.” (In re Sheena K., supra,
40 Cal.4th at p. 890.) The challenged conditions withstand minor’s
vagueness challenge because he will be directed to submit to certain
evaluations and assessments deemed necessary by his probation officer or
treatment provider.8
2. The juvenile court did not improperly delegate its
discretion.
Minor argues the challenged conditions “ ‘ “impermissibly delegate[]
basic policy matters” ’ ” to the probation officer and treatment provider. (In
re Sheena K., supra, 40 Cal.4th at p. 890.) Not so. First, minor’s selective
quote from Sheena K. is misleading. The quote refers to general principles of
the vagueness doctrine where a law fails to provide adequate notice and also
“ ‘ “impermissibly delegates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.” ’ ” (Ibid.) Whereas
here, the minor will know what is expected of him given that he will be
directed by his treatment provider or probation officer regarding the required
evaluations and assessments. Second, a “court may leave to the discretion of
8 Minor’s proposed clarification to limit the evaluations and
assessments by adding “for the purpose of assessing the appropriateness of a
sex offender treatment program” is unnecessarily limiting given that
condition 20 (which the minor does not challenge) provides the minor shall
attend “individual counseling, family counseling, substance abuse counseling,
Aggression Replacement Training (ART), Thinking for a Change, Cognitive
Behavior Group” at the direction of his probation officer. The record does not
support minor’s contention that the evaluations and assessments that may be
imposed under conditions 18 and 22 are only for the purpose of sex offender
treatment.
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the probation officer the specification of the many details that invariably are
necessary to implement the terms of probation.” (People v. O’Neil (2008) 165
Cal. App. 4th 1351, 1358–1359.) Moreover, determining the precise
evaluations and assessments to which minor should submit in order to
proceed with counseling is the type of detailed decision the trial court is
“poorly equipped to micromanage . . . .” (People v. Penoli (1996) 46
Cal. App. 4th 298, 301–302, 308 [upholding probation condition requiring
defendant to enter drug treatment program “ ‘as approved by the Probation
Officer’ ”].)
3. The polygraph condition is not overbroad.
Minor argues condition 22 is overbroad because it does not limit the
questions that may be asked during polygraph examinations and that it
should be modified to limit the questions to those reasonably related to
minor’s sex offender treatment or his underlying offense. Minor cites Brown
v. Superior Court (2002) 101 Cal. App. 4th 313, which held that a polygraph
probation condition imposed on an adult probationer must limit the questions
to those relating to the successful completion of the stalking therapy program
and the crime of which Brown was convicted. (Id. at p. 321.) The polygraph
condition at issue in Brown required “periodic polygraph examinations at
[defendant’s] expense, at the direction of the probation officer.” (Id. at p.
318.) Here, minor is required to submit to polygraph examinations as a
“program[] of psychological assessment at the direction of treatment
provider . . . .”
The People argue the polygraph condition is adequately limited as part
of a psychological assessment at the direction of minor’s treatment provider
and is not unconstitutionally overbroad in light of the rehabilitative goals of
the juvenile courts and the rehabilitative purpose of sex offender treatment
programs. (See People v. Garcia (2017) 2 Cal. 5th 792 [rejecting claim of
16
overbreadth regarding condition requiring “participat[ion] ‘in polygraph
examinations, which shall be part of the sex offender management program’ ”
under Pen. Code, § 1203.067, subd. (b)].) We agree. As written, the scope of
any examination directed by minor’s treatment provider will be for purposes
of psychological assessment as part of minor’s treatment and counseling. No
further limitation is required. (Garcia, at p. 809.)
4. Payment Obligation.
Minor argues the portion of condition 22 making minor and his parents
financially liable for the assessments is unauthorized by law, and that even if
the costs of the assessments are authorized, payment of such costs cannot be
a condition of probation and would need to be imposed by a separate order.
Minor did not object on this basis below but argues that because the condition
is “unauthorized as a matter of law and correctable without reference to
factual findings” it may be challenged at any time. (People v. Kim (2011) 193
Cal. App. 4th 836, 842.) We agree that the financial liability portion of
condition 22 is unauthorized and that minor may raise the issue of an
unauthorized sentence for the first time on appeal.
Minor correctly asserts that a previous version of section 903.2
authorized a juvenile court to impose the costs of “probation supervision”
upon a minor’s parents or other persons responsible for a minor’s support, but
that section 903.2 was amended effective January 1, 2018, to significantly
limit the imposition of costs. (§ 903.2.) The current version of section 903.2,
which was in effect at the time of the April 2019 dispositional hearing in this
matter, authorizes the imposition of costs only for “the home supervision of
the minor” in limited circumstances.9 (Ibid.)
9 Section 903.2, subdivision (a), as amended by Statutes 2017, chapter
678, section 22, states: “The juvenile court may require that the father,
mother, spouse, or other person liable for the support of a minor . . . shall be
17
The People agree section 903.2 is not applicable here but argue the
financial liability portion of condition 22 is authorized under section 730,
subdivision (b), which allows the juvenile court to “make any and all
reasonable orders for the conduct of the ward” 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.” The People do not cite any case law supporting this position that
the authority provided in section 730 permits orders holding juveniles and
their parents or guardians financially liable for the costs of psychological
assessments as part of probation. We reject the People’s overbroad reading of
section 730, particularly in light of the revisions effective January 1, 2018, to
section 903.2, which repealed the portion of the statute imposing costs of
probation on minors or their parents or guardians.
Accordingly, we strike the phrase “and be financially liable” from
condition 22.
E. Condition 25: $100 Fine Pursuant to Section 730.5
Minor contends the juvenile court was not authorized to impose a $100
fine under section 730.5 as a condition of probation because the fine is a
collateral obligation not oriented toward minor’s rehabilitation. (People v.
Kim, supra, 193 Cal.App.4th at p. 842.) He argues the fine should be
imposed as a separate order, not as a condition of probation.
liable for the cost to the county of the home supervision of the minor . . . .”
Former section 903.2, subdivision (a) stated: “The juvenile court may require
that the father, mother, spouse or other person liable for the support of a
minor . . . shall be liable for the cost to the county of the probation
supervision, home supervision, or electronic surveillance . . . .” (Former
§ 903.2, subd. (a), added by Stats. 1968, ch. 1225, § 1 and amended by Stats.
1996, ch. 355, § 1.)
18
The People agree that for adults, nonpunitive fines and fees that are
collateral to a defendant’s crimes may not be made a condition of probation
unless specifically authorized by statute. (See People v. Hall (2002) 103
Cal. App. 4th 889, 892 [payment of probation costs cannot be made a condition
of probation].) “An order directing payment of collateral costs like the court
security fee is thus not enforceable as a probation condition but instead only
as a separate money judgment in a civil action, and the order should thus be
imposed as a separate order entered at judgment.” (People v. Pacheco (2010)
187 Cal. App. 4th 1392, 1403, overruled on other grounds as stated in People v.
Aguilar (2015) 60 Cal. 4th 862, 865.) The People, however, argue that
juvenile criminal defendants may be required to pay such collateral fines as a
condition of probation based on the juvenile court’s broad discretion to impose
“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.” (§ 730, subd. (b).) We agree with minor that there is no
reason to distinguish between adult and juvenile cases with respect to
collateral financial obligations.
The language of section 730.5 supports minor’s position. It states:
“When a minor is adjudged a ward of the court on the ground that he or she is
a person described in Section 602, in addition to any of the orders authorized
by Section . . . . 730, . . . . the court may levy a fine against the minor up to
the amount that could be imposed on an adult for the same offense . . . .”
Section 730.5 is silent as to whether such a fine may be imposed as a
condition of probation, but it states that any such fine may be “in addition to
any of the orders authorized by Section . . . 730 . . . .” Section 730 is the
general section applicable to probation supervision orders. We read section
730.5 to allow a juvenile court to impose a separate order imposing a fine “in
19
addition to any” probation order. Based on the record, the section 730.5 fine
appears to be a collateral financial obligation, and there is no statutory
authority providing for the fine to be imposed as a condition of probation.10
Accordingly, condition 25 is stricken, and on remand the juvenile court may
issue a new, separate order imposing the section 730.5 fine.
F. Condition 13 (Stay Away from Schools Unless Enrolled)
Should Be Modified to Clarify Typographical Error
Condition 13 states: “The minor shall not to knowingly be within 50
yards of the campus or grounds of any school unless enrolled, accompanied by
a parent or guardian, or responsible adult, authorized by the prior permission
of school authorities.” (Sic.) Minor asserts, and the People agree, that the
condition should be modified to insert “or” after “adult,” which will make the
condition consistent with Judicial Council Forms, form JV-624.11 We find
condition 13 vague as written, and we direct the juvenile court to modify
condition 13 on remand to insert “or” after “adult.”
G. Condition 31: Prohibiting Minor from Accessing Sexually
Explicit Phone Services and Requesting That Minor’s
Parents Provide Copies of Phone Bills
Condition 31 states: “The minor is prohibited from accessing sexually
explicit phone services or subscribers, including 1-900 numbers, and parents
may be required to provide probation with copies of phone bills.” Minor
contests the portion of the condition stating “and parents may be required to
provide probation with copies of phone bills.” He asserts it violates his
10 In contrast to section 730.5, section 730.6, subdivision (l) specifically
states: “Upon a minor being found to be a person described in Section 602,
the court shall require, as a condition of probation, the payment of restitution
fines and orders imposed under this section.” (§ 730.6, subd. (l).)
11Minor requests that we take judicial notice of Judicial Council
Forms, form JV-624, and we grant his request.
20
parents’ Fourth Amendment rights and their procedural due process rights
and is fundamentally unfair. Neither minor nor his parents raised this issue
in the juvenile court.
Minor relies on In re Malik J. (2015) 240 Cal. App. 4th 896 (Malik J.) as
authority for him to assert his parents’ constitutional rights. Malik J. is
distinguishable. Malik J. modified an electronics search condition that the
court orally pronounced applied to Malik “ ‘and the family’ ” and required
them to provide all passwords and submit to searches of electronic devices
and social media sites. (Id. at p. 900.) But the juvenile court’s signed minute
order omitted the mention of Malik’s family in the electronics search
condition. (Ibid.) On appeal, the People did not defend the search condition
as applied to Malik’s family and did not raise the issue of standing. (Ibid.)
This court struck the references to Malik’s family “[w]hether or not the court
meant what it said,” and also limited the condition to more narrowly apply to
devices within Malik’s custody and control only after the devices are disabled
from any internet or cellular connection . . . .” (Id. at p. 906.) Malik J.’s
holding that the electronics search condition was overbroad was based on the
“significant privacy implications” applicable to electronic devices recognized
in Riley v. California, supra, 573 U.S. 373. (Malik J., at p. 902.)
Here, unlike in Malik J., the People argue minor lacks standing to
assert his parents’ Fourth Amendment rights. (People v. Badgett (1995) 10
Cal. 4th 330, 343 [“[A] defendant has no standing to complain of violations of
another’s Fourth Amendment rights”].) We find that even assuming minor
did not forfeit his challenge to this condition by failing to raise it below,
minor has not shown that he is legally entitled to assert the rights of others
on appeal. (In re J.B., supra, 242 Cal.App.4th at p. 759.)
21
H. $35 Administrative Fee Was Not Imposed
Minor argues the clerk’s transcript includes an unsigned document
titled “CSB Referral” indicating that minor is to pay a $35 administrative fee,
which was never imposed either orally or in the juvenile court’s order.12
Minor asserts the $35 administrative fee should be stricken from the CSB
Referral. The People agree the juvenile court did not impose the $35
administrative fee but argue that because the CSB Referral document is an
administrative document, and not a court order, there is no court action to
strike.
To avoid any possible future confusion, we direct the juvenile court to
modify the CSB Referral to delete the $35 administrative fee so that the CSB
Referral document is consistent with the juvenile court’s order and the oral
record of the disposition hearing.
DISPOSITION
The probation conditions imposed by the juvenile court are stricken or
modified as follows:
Condition 21 is modified to strike the portion stating “If the treatment
provider determines it’s therapeutically necessary for probation to monitor
the minor’s internet accounts or means of accessing online accounts the
minor shall disclose to his probation officer all passwords and access codes.
Furthermore, the minor submit all electronic devices under his or her control
to search and seizure at any time of the day or night with or without a search
warrant, arrest warrant, or reasonable suspicion. This search shall be
confined to areas of the electronic devices where evidence likely to reveal
criminal activity or where probation violations may be found. Contraband
12 The CSB Referral document also lists the $100 restitution fine
imposed under section 730.6, subdivision (b) and the $100 fine imposed under
section 730.5.
22
seized by the probation officer shall be disposed of, stored or returned at the
discretion of the probation officer.”13
Condition 29 is stricken and modified to read: “The minor shall not
own, use, or possess any materials or items that have a primary purpose of
causing sexual arousal, including computer-based movies, videos, magazines,
books, games, and sexual aids or devices; nor shall he knowingly visit any
establishment where such materials or items are the primary commodity for
sale.”
Condition 22 is modified to strike the phrase “and be financially liable.”
Condition 25 is stricken, and on remand the juvenile court may issue a
separate order imposing the section 730.5 fine.
Condition 31 is modified to read: “The minor shall not knowingly be
within 50 yards of the campus or grounds of any school unless enrolled,
accompanied by a parent or guardian or responsible adult, or authorized by
the prior permission of school authorities.”
On remand, the juvenile court is directed to forward a copy of the
corrected probation order to the probation authorities and to modify the CSB
Referral document to delete the reference to the $35 administrative fee.
As modified, the order is affirmed.
On remand, the juvenile court may determine whether another
13
electronics search condition can be imposed that meets the requirement of
Ricardo P.
23
_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A157151/In re David C.
24
A157151/In re David C.
Trial Court: Superior Court of Napa County
Trial Judge: Cynthia P. Smith, J.
Counsel: Nathaniel Miller, under appointment by the Court of
Appeal, Jonathan Soglin and James Donnelly-
Saalfield for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and
Jeffrey M. Laurence, Assistant Attorneys General,
Seth K. Schalit and Lisa Ashley Ott, Deputy
Attorneys General, for Plaintiff and Respondent.
25