In re C.A. CA4/2

Filed 12/3/20 In re C.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re C.A., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E074761
Plaintiff and Respondent,
(Super.Ct.No. RIJ1900528)
v.
OPINION
C.A.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samah Shouka, Judge.
Affirmed as modified.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da
Silva, Deputy Attorneys General, for Plaintiff and Respondent.
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FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On December 11, 2019, a petition under Welfare and Institutions Code section 602
charged defendant and appellant C.A. (minor) with unlawful taking of a vehicle under
Vehicle Code section 10851, subdivision (a) (count 1), and receiving stolen property
under Penal Code section 496d, subdivision (a) (count 2).
On January 21, 2020, pursuant to a plea agreement, minor admitted count 1 and
the juvenile court dismissed count 2.
On January 27, 2020, a detention hearing report filed by the probation department
noted that minor had three prior juvenile dispositions in Orange County. First, minor
admitted to unauthorized possession of a controlled substance under Health and Safety
Code section 11377, subdivision (a), and possession of an instrument for injecting or
smoking controlled substances under Health and Safety Code section 11364. Second,
minor admitted to unauthorized possession of a controlled substance under Health and
Safety Code section 11377, subdivision (a), and false representation to a peace officer
under Penal Code section 148.9, subdivision (a). Third, minor had a delinquency petition
sustained for shoplifting under Penal Code section 459.5, subdivision (a). The matter
was transferred for disposition to Riverside County, minor’s county of residence.
On February 11, 2020, at a contested disposition hearing, the juvenile court
ordered minor committed to the Youth Treatment and Education Center for a period not
to exceed minor’s maximum time of confinement of seven years four months. The court
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also ordered various terms and conditions of probation, including an electronic devices
search condition.
On February 18, 2020, minor timely filed her notice of appeal.
For reasons set forth post, we will modify the dispositional order to strike the
electronics search probation condition imposed by the juvenile court. (See, In re Ricardo
P. (2019) 7 Cal. 5th 1113 (Ricardo P.)).
B. FACTUAL HISTORY
The factual basis of minor’s admission is as follows: “On 11/18/19 in Orange
County, CA, I did unlawfully drive and take a 2015 BMW not my own, without the
consent of the owner & with intent to temporarily & permanently deprive the owner of
his/her title to & possession of the vehicle.”
DISCUSSION
The electronic search condition imposed by the juvenile court states as follows:
“That the minor be subject to search and seizure of all personal electronic devices for
electronic communication information pursuant to California Penal Code (PC) §§1546,
1546.1, 1546.2, and 1546.4; and must submit to search of all computers, hard drives,
flash drives, thumb drives, disks, removable media, computer networks, electronic data
storage devices, personal digital assistants, cellular telephones, smart phones, iPads,
Notebooks, Chromebooks, and any other electronic devices and the like and their
progeny (‘Computers and Electronic Devices’) under the custody or control of the minor
to which he/she has sole, shared, partial, or limited access as an ‘Authorized Possessor,’
without a search warrant, at any time of the day or night by the probation officer and/or
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any law enforcement officer. These search terms are to include a waiver of any password
or encryption protection. The minor must provide all passwords, logins, access codes or
other information necessary to access any such Computers and Electronic Devices and to
access all social media accounts the minor may have (such as Facebook, My Space,
MocoSpace, Instagram, Snapchat, etc.) and their progeny, when requested by the
probation officer and/or any law enforcement officer. The minor shall not possess or
utilize any program or application on any Computer or Electronic Device that
automatically or through a remote command deletes or scrubs data from that Electronic
Device. If an Electronic Device(s) is/are seized as evidence, the minor may not contact
their service provider to remove, alter or destroy data from the Electronic Device. By
accepting this search term, both parties stipulate that the minor is providing ‘specific
consent’ to the Riverside County Probation Department and/or any law enforcement
officer to search any and all devices pursuant to §1546(k) PC that he/she possesses,
controls or owns. Failure to provide a password or access to a Personal Electronic
Device will be considered a violation of probation.”
On appeal, minor contends that the electronic search condition is unreasonable
under People v. Lent (1975) 15 Cal. 3d 481 (Lent) as clarified by the California Supreme
Court in Ricardo P., supra, 7 Cal. 5th 1113. Moreover, minor contends that the search
condition is unconstitutionally overbroad. We agree the condition must be stricken under
Lent and Ricardo P., and do not reach the constitutional question.
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“The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation and, if so, under what conditions.” (People v.
Carbajal (1995) 10 Cal. 4th 1114, 1120.) Penal Code section 1203.1 authorizes a
sentencing court to impose “reasonable conditions, as it may determine are fitting and
proper to the end that justice may be done, that amends may be made to society for the
breach of the law, for any injury done to any person resulting from that breach, and
generally and specifically for the reformation and rehabilitation of the probationer.”
(Pen. Code, § 1203.1, subd. (j).)
A juvenile court may impose on a minor on probation “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.” (Welf. & Inst. Code,
§ 730, subd. (b).) “A juvenile court enjoys broad discretion to fashion conditions of
probation for the purpose of rehabilitation and may even impose a condition of probation
that would be unconstitutional or otherwise improper so long as it is tailored to
specifically meet the needs of the juvenile.” (In re Josh W. (1997) 55 Cal. App. 4th 1, 5;
In re Sheena K. (2007) 40 Cal. 4th 875, 889.)
In Lent, supra, 15 Cal. 3d 481, the California Supreme Court articulated the
following test to determine whether a probation condition constitutes an abuse of
discretion: “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.’ ” (Id. at p. 486.) “This test is conjunctive—all three prongs
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must be satisfied before a reviewing court will invalidate a probation term.” (People v.
Olguin (2008) 45 Cal. 4th 375, 379 (Olguin).) “As such, even if a condition of probation
has no relationship to the crime of which a defendant was convicted and involves conduct
that is not itself criminal, the condition is valid as long as the condition is reasonably
related to preventing future criminality.” (Id. at pp. 379-380.) The Lent test applies to
juvenile probation conditions. (In re P.O. (2016) 246 Cal. App. 4th 288, 294; In re D.G.
(2010) 187 Cal. App. 4th 47, 52.)
In Ricardo P., the California Supreme Court addressed whether an electronics
search condition requiring a minor to submit electronics (including passwords) to search
by a probation officer met the third prong of the Lent test. (Ricardo P., supra, 7 Cal.5th
at pp. 1116-1117, 1119.) The minor in Ricardo P. admitted two counts of felony
burglary. (Id. at p. 1115.) There was no indication that an electronic device was used in
connection with the burglaries. However, the probation report indicated that the minor
was using drugs at the time he committed the offense, and the juvenile court further
believed that “teenagers ‘typically’ brag about . . . drug use on social media.” (Id. at p.
1119.) The juvenile court imposed probation conditions prohibiting the minor from using
or possessing illegal drugs, as well as an electronics search condition “to enable probation
officers to monitor whether [the minor was] communicating about drugs or with people
associated with drugs.” (Ibid.)
The California Supreme Court concluded that, even assuming the minor was using
drugs at the time he committed the burglaries and that teenagers tend to brag about drug
use online, the electronics search condition satisfied Lent’s third prong. (Ricardo P.,
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supra, 7 Cal.5th at pp. 1119-1120.) The condition was invalid under that prong because
“the burden it impose[d] on [the minor’s] privacy [was] substantially disproportionate to
the condition's goal of monitoring and deterring drug use.” (Id. at p. 1120.)
First, the California Supreme Court explained that there must be a “closer
relationship” between the probation condition and deterring future criminality. (Ricardo
P., supra, 7 Cal.5th at p. 1120.) This relationship must be “more than just an abstract or
hypothetical relationship.” (Id. at p. 1121.) The court noted that “ ‘[n]ot every probation
condition bearing a remote, attenuated, tangential, or diaphanous connection to future
criminal conduct can be considered reasonable’ under Lent.” (Id. at p. 1127.) The court
then explained that the record contained “no indication that [the minor] had used or will
use electronic devices in connection with drugs or any illegal activity, [was] insufficient
to justify the substantial burdens imposed by [the] electronics search condition.” (Id. at
p. 1116.) The court stated that “requiring a probationer to surrender electronic devices
and passwords to search at any time is . . . burdensome and intrusive, and requires a
correspondingly substantial and particularized justification.” (Id. at p. 1126.)
Thereafter, the Supreme Court clarified that the third prong under Lent does not
require a “nexus” between the probation condition and the underlying offense or prior
offenses. (Ricardo P., supra, 7 Cal.5th a p. 1122.) The court explained that “ ‘conditions
of probation aimed at rehabilitating the offender need not be so strictly tied to the
offender’s precise crime’ [citation] so long as they are ‘reasonably directed at curbing
[the defendant’s] future criminality’ [citation]. For example, courts may properly base
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probation conditions upon information in a probation report that raises concerns about
future criminality unrelated to a prior offense.” (Ibid.)
Second, the California Supreme Court explained 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.” (Ricardo P., supra, 7 Cal.5th at p. 1122.)
“A probation condition that imposes substantially greater burdens on the probationer than
the circumstances warrant is not a ‘reasonable’ one.” (Id. at p. 1128.) Regarding this
proportionality requirement, the court explained that a “probationer’s offense or personal
history may provide the . . . court with a sufficient factual basis from which it can
determine that an electronics search condition is a proportional means of deterring the
probationer from future criminality.” (Id. at pp. 1128-1129.)
In Ricardo P., the Supreme Court found that such proportionality was lacking in
the case before it. The court explained that “nothing in the record suggests that [the
minor] has ever used an electronic device or social media in connection with criminal
conduct. The juvenile court instead relied primarily on indications that [the minor] had
previously used marijuana and its generalization that ‘minors typically will brag about
their marijuana usage or drug usage, particularly their marijuana usage, by posting on the
Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’
Based solely on these observations, the juvenile court imposed a sweeping probation
condition requiring [the minor] to submit all of his electronic devices and passwords to
search at any time. Such a condition significantly burdens privacy interests.” (Ricardo
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P., supra, 7 Cal.5th a pp. 1122-1123.) Therefore, the court noted that the electronics
search condition was “expansive in its scope: It allows probation officers to remotely
access [the minor’s] e-mail, text and voicemail messages, photos, and online accounts,
including social media like Facebook and Twitter, at any time. It would potentially even
allow officers to monitor [the minor’s] text, phone, or video communications in real time.
Further, the condition lacks any temporal limitations, permitting officers to access digital
information that long predated the imposition of [the minor’s] probation.” (Id. at p.
1127.)
The court then went on to express concern that if it “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 . . . . Indeed, whatever crime a
juvenile might have committed, it could be said that juveniles may use electronic devices
and social media to mention or brag about their illicit activities.” (Ricardo P., supra, 7
Cal.5th at p. 1123.) The court went on to explain that “[t]he plain language of this
electronics search condition would require [the minor] to provide probation officers full
access, day or night, not only to his social media accounts but also to the contents of his
e-mails, text messages, and search histories, all photographs and videos stored on his
devices, as well as any other data accessible using electronic devices, which could
include anything from banking information to private health or financial information to
dating profiles. [Citation.] If the juvenile court’s observation that ‘minors typically will
brag about their marijuana usage or drug usage’ online were sufficient to justify the
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substantial burdens the condition imposes, it is hard to see what would be left of Lent’s
third prong.” (Id. at pp. 1123-1124.)
As in Ricardo P., our analysis of the electronics search condition in this case is
limited to the third prong of the Lent test. The record contains no evidence minor used
any electronics or electronic communications in the commission of her criminal activity,
and use of these electronic devices and services is presumptively legal activity. Thus,
like in Ricardo P., the electronics search condition here apparently satisfies the first two
prongs of Lent.
Therefore, the issue on appeal is whether the third criterion under Lent is met:
Whether the electronic search condition is reasonably related to minor’s future
criminality.
In this case, at the contested disposition hearing, in upholding the broad electronic
search condition, the juvenile court relied on its concern that the 17-year-old minor may
have been exploited by older adult males who participated in offenses that minor had
previously committed. The court stated:
“Just because we don’t have any evidence about sexual exploitation, any time an
adult is committing a crime with a minor, . . . he’s exploiting her for [his] own criminal
gain . . . not necessarily—I don’t know of any other information, but the threat is always
there and that’s enough for the Court to want to make sure that Probation has the
opportunity to look at her. [¶] . . . [¶] . . . I think that based upon the number of charges
how quickly and how active she was, and because a number of those involved male
adults [I] think that risk alone . . . is enough to substantiate an intrusion into her privacy
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of her cell phone. She didn’t have to necessarily use it as means to conduct these
charges, but most likely she did. . . . Who she’s hanging out with and what they’re
talking about, I want to know.”
We disagree with the trial court. The wide-ranging electronics search condition is
not proportional to the crimes at issue here or the possible future criminality envisioned
by the trial court. (See Ricardo P., supra, 7 Cal.5th at pp. 1120, 1121 [there must be a
“closer relationship” between the probation condition and deterring future criminality,
and this relationship must be “more than just an abstract or hypothetical relationship”])
We are aware that “[t]the permissible scope of discretion in formulating terms of
juvenile probation is even greater than that allowed for adults.” (In re Victor L. (2010)
182 Cal. App. 4th 902, 910.) “ ‘The state, when it asserts jurisdiction over a minor, stands
in the shoes of the parents’ [citation], thereby occupying a ‘unique role . . . in caring for
the minor’s well-being.’ [Citation.] In keeping with this role, [Welfare and Institutions
Code] section 730, subdivision (b), provides that the court may impose ‘any and all
reasonable [probation] 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.’ ” (Id.
at pp. 909-910.) “ ‘[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
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unconstitutional or otherwise improper for an adult probationer may be permissible for a
minor under the supervision of the juvenile court.” ’ ” (Id. at p. 910.)
Still, every probation condition must be made to fit the circumstances and the
minor. (In re Binh L. (1992) 5 Cal. App. 4th 194, 203.) Unlike an adult probationer, a
juvenile “ ‘ “cannot refuse probation [citations] and therefore is in no position to refuse a
particular condition of probation.” [Citation.] 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.” ’ ” (In re J.B. (2015) 242
Cal. App. 4th 749, 756 (J.B.), quoting Erica R. (2015) 240 Cal. App. 4th 907, 914 (Erica
R.).) Because of the immense amount of personal information that can be stored on
electronic devices, and even greater amounts to be found on internet sites the devices can
access, electronic search conditions carry obvious implications for constitutionally
protected privacy interests. (See, generally, Riley v. California (2014) 273 U.S. 373,
493.)
On appeal, the People argue that, “[w]hen, as here, a minor has been declared a
ward of the court because of a history of running away frequently; admitted a history of
substance abuse; admitted criminal activity including multiple instances of unlawfully
taking a vehicle in a short period of time, which endangered her safety and the safety of
others; and involvement of adult males, which raised concerns of commercial sexual
exploitation of children and criminal exploitation; and was removed from parental
custody [citation], the state may elect to monitor her use of electronic devices. (Antonio
R.[ 2000] 78 Cal.App.4th [937,] 941.)” The People, however, point to no evidence in the
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record that would allow us to infer electronic communications were instrumental in
minor’s prior crimes or involvement with adult males. As provided above, there was
nothing in minor’s underlying offenses or her probation violations related to the use of
electronic devices. Moreover, there was nothing in the history reflected in the probation
reports suggesting minor’s underlying offenses related to electronic devices or use of
electronic devices for any unlawful purpose or to facilitate or promote unlawful conduct.
Furthermore, as the Supreme Court in Ricardo P. 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.” (Ricardo P., supra, 7
Cal.5th at p. 1123.)
Accordingly, we find that the electronic search condition is invalid under Lent and
Ricardo P., and therefore an abuse of the juvenile court’s discretion. We hereby exercise
our independent power to strike the electronics search condition as invalid under Lent and
Ricardo P. (See In re Edward C. (2014) 223 Cal. App. 4th 813, 829 [striking probation
conditions].) Because we find that the probation condition is invalid, we need not
address minor’s argument that the condition is overbroad.
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DISPOSITION
The disposition order of February 11, 2020, is modified to strike the probation
condition requiring minor to submit to a search of her electronics including her
passwords. In all other respects the disposition order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
MENETREZ
J.
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