Opinion
E073352
06-10-2020
In re R.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.W., Defendant and Appellant.
William G. Holzer, 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, Senior Assistant Attorney General, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1800682) OPINION APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed as modified. William G. Holzer, 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, Senior Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant R.W. (minor) admitted to carrying a concealed firearm. The juvenile court ordered deferred entry of judgment (DEJ). Less than a year later minor violated the terms of his DEJ, and the juvenile court adjudged him a ward of the court. The juvenile court committed minor to juvenile hall and imposed probation with certain terms and conditions, including a condition that all of his electronic devices and social media accounts be subject to search and seizure. Minor appealed.
On appeal, minor argues the electronics search condition is invalid according to the California Supreme Court's decision in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We conclude the electronics search condition is not proportional to the minor's offense or his possible future criminality and therefore strike the condition.
I. FACTS
On October 18, 2018, police responded to reports that young people were fighting and one of them had a gun. When officers arrived, they saw minor throw a gun into the front yard of a residence. Officers recovered the weapon, which was loaded with nine-millimeter ammunition with one round chambered. Officers questioned minor, who admitted he was there because his friends were fighting. Minor had a live nine-millimeter round in his pocket, and there was another live round near where minor threw the gun. He claimed he found the gun on the ground.
The factual basis for minor's plea was the charging petition. We take the facts about the underlying offense from the detention hearing report.
The next day, the Riverside County District Attorney filed a Welfare and Institutions Code section 602 petition alleging minor carried a concealed firearm (Pen. Code, § 25400, subd. (a), unlabeled statutory citations refer to this code), carried a loaded firearm in public as someone other than the registered owner of the firearm (§ 25850, subd. (c)(6)), and received stolen property (§ 496, subd. (a)). On October 22, 2018, minor admitted the first allegation. The juvenile court ordered DEJ and set a one-year review hearing.
Seven months later, on May 29, 2019, the Riverside County Probation Department (Probation) asked the juvenile court to lift the DEJ because minor allegedly resisted, delayed, or obstructed a peace officer (Pen. Code, § 148, subd. (a)) and drove without a license (Veh. Code, § 12500). Probation also alleged minor failed to complete certain community service requirements, despite receiving a one-month extension.
The juvenile court lifted the DEJ and adjudged minor to be a ward of the court. The court committed minor to juvenile hall for between nine and 18 days, to be served on weekends, with five days' credit for time served. It also imposed terms and conditions of probation. These terms included an electronics search condition, which stated: "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 and as an 'Authorized Possessor,' without a search warrant, at any time of the day or night by the probation officer and/or 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."
Defense counsel objected to this term. The juvenile court imposed the condition over the objection, stating "I think based on all the experience I've had and how electronic media seems to be indicative of other inappropriate behavior or, in fact, itself being inappropriate behavior, I think it makes sense to monitor the social media. Once they show that they're not cable [sic] of making good judgments on their own, I think it will assess [sic] in his rehabilitation." The juvenile court also attempted to impress on minor the importance of identifying and associating with "good people" and not allowing himself to be susceptible to bad influences.
Minor timely appealed.
II. DISCUSSION
Minor argues the electronics search condition doesn't meet the standard for a valid probation condition under People v. Lent (1975) 15 Cal.3d 481 (Lent) as recently clarified by our Supreme Court in Ricardo P., supra, 7 Cal.5th 1113. We agree.
Minor also argues, in the alternative, that the probation condition is unconstitutionally overbroad. Because we find that the term fails the standard articulated in Lent and Ricardo P., we decline to address minor's constitutional argument.
"An appellate court will not disturb the juvenile court's broad discretion over probation conditions absent an abuse of discretion." (In re Walter P. (2009) 170 Cal.App.4th 95, 100.) "Generally, '[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 . . . ." [Citation.]' [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379, quoting Lent, supra, 15 Cal.3d at pp. 486 & 486, fn. 1.) "[J]uvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent." (In re D.G. (2010) 187 Cal.App.4th 47, 52.)
Our Supreme Court recently considered an electronics search condition and whether such conditions meet the standards articulated above. There, minor Ricardo P. admitted to committing two felony burglaries. (Ricardo P., supra, 7 Cal.5th at p. 1116.) The juvenile court imposed a probation condition which required him to " '[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.' " (Id. at pp. 1116-1117.) The juvenile court justified imposing this condition because Ricardo P. claimed his drug use had contributed to his delinquent behavior, and the juvenile court believed "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," and therefore an electronics search condition was " 'a very important part of being able to monitor drug usage and particularly marijuana usage.' " (Id. at p. 1117.)
On appeal, our Supreme Court assumed the electronics search condition met the first two prongs of the Lent test, as Ricardo P.'s crimes did not involve electronic devices and the condition did not relate to conduct which was itself criminal. The Court thus limited its analysis to the third prong—whether the condition " ' "require[d] or forb[ade] conduct which is not reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1119.)
The Court concluded "the condition satisfies Lent's third prong and is therefore invalid under the Lent test because, on the record before us, the burden it imposes on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Ricardo P., supra, 7 Cal.5th at p. 1119.) As the court noted, "[i]n virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct," in part because of "the constant and pervasive use of electronic devices and social media by juveniles today." (Ibid.) Therefore, the court concluded Lent's third prong necessarily "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition," and such proportionality is lacking where a broad electronics search condition is imposed for attenuated or speculative connections to criminality. (Ricardo P., at p. 1122.)
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 his 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.
Turning to the third prong, we agree with minor that a wide-ranging electronics search condition is not proportional to the crimes at issue here or the possible future criminality envisioned by the trial court. The trial court's stated reason for imposing the condition was its belief juveniles in general use social media in ways that are inappropriate or are indicative of inappropriate behavior. Though not a stated reason for imposing the condition, the juvenile court may also have believed such a condition was necessary to encourage minor to socialize with "good people" and avoid "bad influences." While we do not disagree that monitoring minor's online behavior might prevent future criminality or serve a rehabilitative function, it is not a proportional response to the juvenile court's concerns. That minor might exercise poor judgment on social media or associate with bad influences online does not justify a broad search and seizure condition hovering over minor's entire digital life. Indeed, the Supreme Court rejected something very like this justification when it wrote "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," but concluded if it adopted such an interpretation "it is hard to see what would be left of Lent's third prong." (Ricardo P., supra, 7 Cal.5th at pp. 1123-1124.)
In response, the People argue we can infer from the fact the fight was arranged that minor and his friends "used their electronic devices to convey the time and place of the brawl to each other." They say that means the condition is directly related to both minor's underlying crime as well as preventing future, similar criminal conduct. But minor's criminal activity was not his presence at a brawl, it was carrying a concealed firearm. The People point to no evidence in the record that would allow us to infer electronic communications were instrumental in minor's decision to obtain or bring the weapon with him.
Moreover, the California Supreme Court rebuffed the idea that minor's crime justifies an electronics search condition because it indicates he may have organized or will organize criminal activity electronically. Indeed, it explicitly rejected that "an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant . . . is participating in a gang." (Ricardo P., supra, 7 Cal.5th at p. 1123.) If the possibility of gang activity is insufficient to justify an electronics search condition for carrying a concealed weapon, so too is the People's speculative concern about juveniles arranging fights and minor's possible presence at those fights. For the same reason, it's hard to see how an inchoate fear of inappropriate online behavior would justify an electronics search condition when potential gang activity does not.
Accordingly, we 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].)
III. DISPOSITION
We strike the electronics search probation condition imposed by the juvenile court in its dispositional order of July 31, 2019, and affirm the judgment in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: CODRINGTON
Acting P. J. MENETREZ
J.