Opinion
D074294
12-20-2019
In re EDDIE P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. EDDIE P., Defendant and Appellant.
Christine M. Aros, 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, Arlene A. Sevidal, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J241320) APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed as modified. Christine M. Aros, 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, Arlene A. Sevidal, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Following a contested adjudication hearing on a wardship proceeding (Welf. & Inst. Code, § 602), the court made a true finding that Eddie P. (the Minor) had committed a robbery (Pen. Code, § 211). The Minor was declared a ward of the court and committed to Camp Barrett for a period not to exceed 365 days. He was also ordered to comply with various conditions of probation. These conditions include a so-called Fourth Amendment waiver and prohibit the Minor from knowingly participating in social media sites, from using instant messaging or similar communication program, and from maintaining a MySpace or Facebook page, or any similar page. The Minor did not object to any terms of probation.
Further section references are to the Penal Code unless otherwise specified.
The Minor challenged two probation conditions for the first time on appeal. First, he challenged the condition requiring him to submit to searches of his person and property as constitutionally overbroad and not reasonably related to future criminality, in violation of the requirements of People v. Lent (1975) 15 Cal.3d 481 (Lent). Second, he challenged the condition prohibiting him from using social media as overbroad.
In an unpublished opinion filed January 18, 2019, we rejected the Minor's challenge to the electronics search waiver and modified the condition related to access and use of social media.
The Supreme Court granted review and held the case pending its decision in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). After the court issued its opinion in that matter, it transferred this matter to this court with directions to vacate our previous opinion and reconsider the case in light of its opinion in Ricardo P. We have followed the court's directions and now issue a new opinion.
We conclude the challenge to the search condition was forfeited for failure to raise the objection in a timely manner. We further find the electronics search condition is reasonable and valid under Lent. The challenge to the social media condition is a facial constitutional challenge which was not forfeited, and we conclude it was overbroad and order that it be modified.
STATEMENT OF FACTS
Because the Minor does not challenge either the admissibility or the sufficiency of the evidence to support the true finding, we will provide only a brief summary of the facts. We will adopt the plaintiff's summary for that purpose.
The Minor and his coconspirator attended the same high school as the victim. On May 18, 2018, the Minor's coconspirator sent a text message to the victim purporting to set up a marijuana transaction. When the victim arrived at the designated location, the Minor racked the slide of a handgun, pressed the barrel against the victim's head, and told the victim to get on his knees. The Minor said, " 'Get on your fucking knees. Stay on your fucking knees. Don't fucking scream, or I'm going to fucking shoot you.' "
The juvenile court dismissed the firearm allegations because it was "not convinced that the evidence proves beyond a reasonable doubt that it was a genuine firearm."
The Minor's coconspirator told the victim that he was being robbed and ordered him to empty his pockets. The victim handed his iPhone, an ounce of marijuana, $50, and his backpack to the Minor's coconspirator. As the Minor and his coconspirator left, the coconspirator told the victim to " 'have a good day.' " The victim went back to school and reported the incident to the vice-principal, who called the police.
On May 22, 2018, a detective arrested the Minor, read him his Miranda rights, and interviewed him. The Minor admitted to the detective that he robbed the victim. The Minor also admitted that he "had posted things on social media," specifically Instagram, but deleted the posts after realizing "that was a mistake." The stolen iPhone was offered for sale online.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
I
The Electronics Search Condition
The court imposed the following condition of probation: "The minor's 4th Amendment waiver extends to any electronic device, such as a computer, electronic notepad, or cell phone, which the minor uses or to which the minor has access. The minor's 4th Amendment waiver also extends to any remote storage of any files or data which the minor knowingly uses or to which the minor has access. The minor agrees to submit to a search of any electronic device, such as a computer, electronic notepad, or cell phone, at any time without a warrant by any law enforcement officer, including a probation officer."
A. The Challenge to the Search Condition Was Forfeited.
The Minor acknowledges he did not challenge any of the probation conditions in the juvenile court. The Minor argues, however, his challenge here is cognizable because it is a constitutional challenge based upon claims of vagueness and overbreadth. The general rule requires challenges of this sort to be raised in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234-235; In re Justin S. (2001) 93 Cal.App.4th 811, 814; In re L.O. (2018) 27 Cal.App.5th 706.) Raising such a challenge in the trial court creates a record from which the appellate court can discern the trial court's reasons for the conditions and illuminates the questions of relevance and overbreadth. (See In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.) Failure to timely object to probation conditions can serve as a basis for applying the forfeiture doctrine to attempts to raise objections for the first time on appeal. (In re I.V. (2017) 11 Cal.App.5th 249, 260-261.)
The principal and frequently cited exception to the forfeiture rule is the holding in Sheena K. The court in Sheena K. held that where the challenge is to the language of the condition based on vagueness or overbreadth, and the challenge can be decided without reference to the facts of the record, failure to timely object does not require forfeiture. (Sheena K., supra, 40 Cal.4th at p. 887.) In that case the court forbade the minor from associating with anyone disapproved of by the probation officer. The court determined from the language of the condition that it was vague. It did not contain a knowledge or scienter provision; thus, the minor could err without knowing the probation officer disapproved of her associate. It was not necessary to refer to the factual record in order to address the constitutional question. (Ibid.)
In order to address the Minor's challenges here, it is necessary to review the factual record to determine the relationship of the conditions to the Minor's criminal acts and his needs for supervision and rehabilitation. Thus, we find the constitutional challenge to the search condition should be deemed forfeited.
B. Even If We Review the Merits of the Constitutional Challenge, We Find No Error.
A juvenile court "has wide discretion to select appropriate conditions and may impose ' "any reasonable condition that is 'fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward is enhanced.' " '" (Sheena K., supra, 40 Cal.4th at p. 889, quoting Welf. & Inst. Code, § 730, subd. (b).) On appeal, we " 'review conditions of probation for abuse of discretion.' " (People v. Moran (2016) 1 Cal.5th 398, 403.) Specifically, we review a probation condition "for an indication that the condition is 'arbitrary or capricious' or otherwise exceeds the bounds of reason under the circumstances." (People v. Olguin (2008) 45 Cal.4th 375, 384.)
The Minor's challenge to the search condition focuses primarily on the electronic search portion. He relies heavily on Riley v. California (2014) 573 U.S. 373 (Riley) to argue the extensive privacy intrusions that can occur through the search of electronic data storage render the search condition overbroad. Riley, of course, did not deal with probation searches. Rather, it dealt with the issue of whether a person's smart phone could be searched solely on the basis of the search incident to arrest exception to the search warrant requirement. (Id. at p. 386.) The court found such searches could not be justified solely on the search incident to arrest exception; officers must generally secure a warrant before conducting a search of a smartphone incident to arrest because "[t]here are no comparable risks [to officer safety or destruction of evidence] when the search is of digital data." (Ibid.)
Discussing Riley in the context of probation searches, our high court recognized the "greater breadth of searches of electronic devices compared to traditional property or residential searches" and described the intrusion as "a very heavy burden." (Ricardo P., supra, 7 Cal.5th at pp. 1127, 1124.) However, the court did not hold that such an intrusion is never appropriate. Instead the court applied the third prong of Lent, which held that "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." (Lent, supra, 15 Cal.3d at p. 486.) Applying this standard in Ricardo P., the Supreme Court held the electronics search waiver probation condition was not reasonably related to future criminality and was therefore invalid under Lent. (Ricardo P., supra, 7 Cal.5th at p. 1116.)
In Ricardo P., the probationer admitted to two counts of felony burglary. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The court noted the electronics search waiver was imposed even though there was no basis for inferring that electronic devices were connected to the commission of the crimes. (Id. at p. 1119.) Instead, the trial court had imposed the condition in part based on its observation that teenagers brag about drug use on social media, coupled with statements by Ricardo that he stopped smoking marijuana after his arrest, leading the court to infer Ricardo was using drugs at the time of the crime. (Id. at pp. 1119-1120.) Even accepting such generalizations, the Supreme Court explained that the burden imposed on Ricardo's privacy was "substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Id. at p. 1120.)
Although the court held the electronics search condition was invalid under Lent because there was no indication the defendant "had used or will use electronic devices in connection with . . . illegal activity," it declined to categorically invalidate electronic search conditions. (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1128.) Instead, the court concluded the relationship between probation conditions and 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.) Additionally, "courts may properly base probation conditions upon information in the probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.]" (Ibid.)
While we do not have the benefit of the trial court's reasons for imposing the various conditions of probation, we do have some insight about the Minor based on what is in the record. At the time of the offense, the Minor had been using marijuana on a daily basis and was a frequent user of alcohol. The Minor used a gun, albeit an apparently unloaded one, to commit the robbery and placed the weapon against the victim's head. When police searched the Minor's room, they found brass knuckles. It is beyond dispute that the Minor needs strong supervision during his probationary period. The Minor's use of drugs, weapons and alcohol, plus the secreting of brass knuckles in his room demonstrate the Minor cannot yet be allowed the privacy afforded to ordinary citizens if he is going to be prevented from further escalating his criminal behavior.
Moreover, the need for strong supervision over the Minor, including the electronics search waiver, means this case is markedly different from Ricardo P. Here, the probation condition does not have "a very limited justification," creating a substantially disproportionate condition. (See Ricardo P., supra, 7 Cal.5th at p. 1124.) While the court found no evidence in the record connecting the crime to electronics beyond generalizations about the behavior of youth in Ricardo P. (Id. at pp. 1120, 1122), here the record is replete with information about the use of electronics in the crime. The Minor used an iPod to communicate with his coconspirator to arrange the robbery. The Minor's coconspirator used cell phone texting to lure the victim to the planned robbery. The Minor and his coconspirator recorded themselves after the robbery, and the Minor used social media to post about his participation, although he ultimately decided such a posting was probably not a good idea and took it down. And the victim's phone was offered for sale via an online app. Given the use of various electronic devices to plan the crime, lure the victim, brag, and sell a stolen item, the use of electronics is reasonably related to preventing future criminal activity. Thus, while burdensome, the waiver here is not "substantially disproportionate" to its goal of monitoring and preventing future criminal activity.
The probation report notes that the Minor told police he did not have a phone, and he used his iPod to communicate. It separately notes that police found an iPod in the Minor's room during their search of the home. An iPod touch can be used to exchange text and voice communications over Wi-Fi. (Cox, The Most Secure Way to Communicate? An iPod Touch (Aug. 19, 2015) Wired. <https://www.wired.com/2015/08/secure-way-communicate-ipod-touch/> [as of December 20, 2019], archived at <https://perma.cc/7VWW-PLUP>.) --------
Based on the record before us, we find the court was well within its discretion to determine the Minor's need for close supervision, given the crime, its manner of commission, the Minor's secretive possession of weapons, and the use of electronic devices to plan and carry out the crime collectively warrant a search condition as broad as in this case in order to attempt to reform this minor before he advances to more serious crime and the adult criminal justice system.
II
The Social Media Condition
A. Additional Background
The court imposed a social media probation condition. The first provision provided, "The minor shall not knowingly participate in social media sites such as Facebook, Twitter, SnapChat, or Google+, chat rooms, or use instant messaging or other similar communications programs." The second provision stated, "The minor shall not have a MySpace page, a Facebook page, or any other similar page. The minor shall delete any existing page. The minor shall not use MySpace, Facebook, or any similar program." The Minor did not object to these provisions.
B. The Objection to the Social Media Condition Was Not Forfeited, and It Is Overbroad.
The People contend the Minor forfeited the challenge to the social media condition by failing to raise it in the trial court. While we would have preferred to have the matter discussed first by the trial court, we can determine the condition is overbroad by reference to its plain language and do not need to examine the factual record. The two provisions of the condition create a total and complete ban on the Minor's use of social media. The condition does not even allow the probation officer to make an exception, even if such exception might be beneficial to the Minor's rehabilitation.
The Minor relies heavily on In re L.O., supra, 27 Cal.App.5th at page 713, to support his contention the social media condition, as phrased, is overbroad. The court in L.O. determined a similar condition was overbroad. The court there relied in part on the U.S. Supreme Court opinion in Packingham v. North Carolina (2017) 582 U.S. ___ (Packingham). In Packingham, the court held the First Amendment prevented the state from barring sex offenders who have served their sentences from all access to social media. In turn, relying on the discussion of social media as a form of free speech, the court in L.O. reasoned that barring all access to social media for a juvenile on probation was an overbroad limitation on a constitutional right.
The People argue the L.O. case was wrongly decided because of its reliance on Packingham, which was factually distinguishable. We find it unnecessary to parse the court's analysis of Packingham. While Packingham did not deal with juvenile probationers, it did clarify that in a modern world social media is an important part of free speech and cannot be abridged based merely on status. We think the court in L.O. got it right. A complete bar to all access to social media, without any ability for the probation officer to allow such use as would be beneficial, is an overbroad restriction on free speech.
The court in L.O. ordered the condition modified by adding to each limitation the phrase "without the express permission of the probation officer."
While the parties disagree on whether the condition is overbroad, they appear to accept the idea of modifying the condition to indicate the Minor cannot use social media without the express permission of the probation officer. We will order the social media condition modified and will affirm the judgment as modified.
DISPOSITION
The probation provisions relating to access to and use of social media are modified by adding to the end of each prohibition "without the express permission of the probation officer." In all other respects, the judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. HALLER, J.