Opinion
A154140
02-28-2019
In re WILLIAM P-R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. WILLIAM P-R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1800278)
William P.-R., a minor, appeals from a dispositional order following his no contest plea to felony allegations of possessing a firearm as a minor and possessing a large-capacity magazine. He contends the juvenile court's order removing him from home and committing him to the Orin Allen Youth Rehabilitation Facility (the Ranch) was an abuse of discretion. He also contends a probation search condition authorizing peace officers to search his electronic devices is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally broad. The court's decision to commit William to the Ranch was within its discretion, but the search condition is overbroad and must be modified. We do so and affirm the disposition order as modified.
BACKGROUND
Apprehension and Arrest
On March 6, 2018, Pittsburg police officers approached two men who had an open bottle of alcohol and were standing near a car. Two other people were in the car, one in the front passenger seat and the other, William, in the back. There was a strong odor of marijuana. The four men admitted they had been drinking and smoking marijuana. A records check disclosed that William was a minor.
A consensual search of the car disclosed loose marijuana on the floor of the front passenger seat. On the back seat police found a backpack containing a semi-automatic pistol loaded with eight nine-millimeter rounds, a large plastic bag of marijuana and several smaller containers, eight pre-rolled joints, a school binder bearing William's name, and a ski mask bearing the letters "WP." On the floor below where William had been sitting officers found a semi-automatic pistol with a 17-round capacity, loaded with 13 rounds. Officers also found two cylindrical containers of marijuana on the rear seat. A small digital scale was found in William's pants pocket.
The officers noted that all four men were wearing items of red clothing, suggesting they were gang affiliated.
Jurisdiction and Disposition
William was charged with possessing a firearm as a minor (count one), possessing a large-capacity magazine (count two), and possessing marijuana for sale (count three). He pled no contest to counts one and two and the juvenile court dismissed count three.
The probation department recommended a nine-month commitment to the Ranch, to include counseling and treatment programs to address William's substance abuse, anger issues and decision making, followed by six months of supervised parole. William admitted the guns and marijuana were his. He said he found the guns in a park the day before his arrest but could not remember the name of the park. He planned to sell the guns "because his father was in need of financial support." The marijuana found in his possession was for personal use; he and his friends "all smoke a lot of marijuana." William said he smoked one to three " 'blunts' " every other day because it " 'tastes good' " and " 'makes you chill.' " Marijuana was "therapy" for him. He had the scale in his pocket " 'to weigh my weed when I buy it from my guy.' "
William lived in Contra Costa County with his father until the beginning of December 2017, when his mother moved with him to Arizona to get him away from bad influences. He was upset over the relocation and in late December ran away and returned to his father's home in Antioch.
William denied any gang association, but he was documented in juvenile hall as being associated with the Norteño gang, was identified as a gang member in school records and was observed flashing gang signs. He had been removed from Mt. Diablo High School the previous year for engaging in what appeared to be a large gang-related fight. He was classified as truant at Summit High School. Between 2012 and 2016 William had been suspended multiple times and had 14 behavior referrals for gang-related fighting, defiance, being in possession of marijuana and edibles for sale, and attempted theft. He performed poorly at juvenile hall following his arrest for this offense.
In light of this record, we disagree with counsel's view that nothing about William's "single offense, in the context of his social history," suggests he has gang affiliations or poses a danger to the public.
The People argued that commitment to the Ranch was consistent with William's best interest and necessary for public safety. William's counsel disagreed and asserted he would be better served by receiving probation services while at home.
The court agreed with the probation department's recommendation of a Ranch commitment. It explained: "[Y]es, some of the services that are available at the Ranch are also available in the community, but if that were sufficient to determine whether someone should be sent to the Ranch, we would not have a Ranch, but we do have a Ranch. And the reason we have a Ranch is there's some kids—and I think that Willie is one of them—that need the additional structure, that need the additional accountability, and that need the intensity and consistency of the programming that's available at the Ranch. And the supervision that is available at the Ranch, and the reason that Willie needs that is because he has been permitted by his parents to run his own show. He has run from Mom. He has not abided by the curfew with Dad. He has not allowed Dad to know where he is, and Dad has been okay with that. Dad has been fine with not knowing whom he's with and deferring to him whether he needs a ride rather than enforcing safe behavior."
The court observed that William was "doing things out there that are extremely dangerous. He is not just smoking marijuana, but apparently potentially dealing marijuana. He's possessing not one gun but two guns that are loaded with 17 rounds. He's in a car with adults with the guns and the marijuana and face masks, which suggests a potential criminal enterprise that he was a part of and [a] willing part of surrounded by red paraphernalia, which suggests gang involvement.
"And his history of suspension for gang involvement gave the court grave concerns that not only does the lack of supervision at home not serve his interests, but some of the things that he is doing to try to find some sort of structure in his life or associations in his life have led him to make decisions that could potentially get him killed."
"And so I think he does need the substance abuse training, the structure, the supervision, the education that are available at the Ranch, and I am not convinced that either his mother or father has the ability or the willingness at this point to enforce the kind of structure that is required in this case." Moreover, William had not been able to behave appropriately at juvenile hall. All of these factors indicated William needed the structure provided by the ranch, "and he's a danger to the community if he's out there with guns and marijuana and parents who have not got the skills currently to assure that he is acting in a way that's safe for him and for the community." The court declared William a ward of the court with no termination date and ordered that he be committed to the Ranch for a nine-month regular program, followed by an 180-day conditional Ranch after-care period and probation.
This appeal is timely.
DISCUSSION
I. Commitment to the Ranch
William contends the court abused its discretion when it adjudged him a ward of the court and ordered him removed from home rather than imposing informal probation. He argues the "severe consequences of juvenile wardship do not fit [his] individual situation or social history" because this was his first offense, he has family support, and "the underlying offense represented a situational response to his desire to help his father financially along with a state of depression." The juvenile court reasonably came to a different conclusion.
"A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.] ' "We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them." ' " (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) "It is not the responsibility of this court to determine what we believe would be the most appropriate placement for a minor. This is the duty of the trial court, whose determination we reverse only if it has acted beyond the scope of reason." (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.)
Here, William was apprehended in possession of a substantial quantity of marijuana, two loaded semiautomatic pistols and a ski mask. He and his companions were wearing gang colors. The juvenile court reasonably considered the danger to society presented by those circumstances. In addition, the court considered Williams' parents' inability to control his behavior; his poor performance at school and juvenile hall; and his history of gang involvement. Based on all of this, the court reasonably determined that in-home placement, even with services, could not adequately protect the public and provide William with the structure, accountability, supervision, and intensity and consistency of programming he required and that were available at the Ranch. Its decision that William should be committed to the Ranch was a proper exercise of its discretion. (See, e.g., In re Robert H., supra, 96 Cal.App.4th at p. 1330; In re James H. (1981) 121 Cal.App.3d 268, 273-274.)
II. Electronics Search Condition
The juvenile court imposed, among other conditions of probation, the following: "26. The minor shall not knowingly use, post, display, or transmit on any social media networking site or transmit via any electronic means, including all electronic communication devices, whether it is yours or someone else's, any symbols, graffiti, pictures, photos, drawings, lyrics, symbols, images, hand signs or gestures, or other items or information, that the minor knows to be, or the DPO informs the minor to be, gang-related, unless for use as part of a court-ordered or school-related educational paper, or other research for educational purposes which have been approved of by the DPO."
The conditions also required William to submit any electronic devices for search and to provide "any and all passwords to access data and social media accounts." The court explained the electronics search condition was warranted on two grounds. First, the scale found in William's possession suggested not just marijuana possession but marijuana sales, "and marijuana sales are done often by electronic devices." Second, the search condition was necessary to assure compliance with the probation condition forbidding electronic communication of gang-related material.
Probation condition 10, as modified by the court to include the electronics search condition, requires William to "submit person, property, any vehicle under minor's control, any electronic devices and residence to search and seizure by any peace officer at any time of the day or night, with or without a warrant. Minor shall provide probation with any and all passwords to access data and social media accounts."
A. Legal Standards
As we stated in In re Malik J. (2015) 240 Cal.App.4th 896, 900-901, "Welfare and Institutions Code section 730 authorizes the juvenile court to '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.' [Citation.] In planning conditions of probation, the juvenile court must consider the minor's entire social history, in addition to the circumstances of the offense. [Citation.]
"The juvenile court has broad discretion to formulate probation conditions. [Citations.] Because juvenile probation conditions are imposed on the minor to ensure his or her rehabilitation, '[a] condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.' [Citations.] Indeed, a juvenile court may impose a condition of probation that would be unconstitutional in an adult context, 'so long as it is tailored to specifically meet the needs of the juvenile.' [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. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may "curtail a child's exercise of the constitutional rights . . . [because a] parent's own constitutionally protected 'liberty' includes the right to 'bring up children' [citation] and to 'direct the upbringing and education of children.' [Citation.]" [Citations.]' [Citation.]
"But the juvenile court's discretion is not unlimited. A probation condition is invalid if it: '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.' [Citation.] In addition, a juvenile court may not adopt probation conditions that are constitutionally vague or overbroad. [Citations.]
"While we generally review the court's imposition of a probation condition for abuse of discretion, we review constitutional challenges to probation conditions de novo. [Citation.] In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified."
B. Lent
As noted, a probation condition will not be held invalid under Lent 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.) The electronics search condition is unrelated to William's offense and the regulated conduct is not criminal, so, as the People acknowledge, the only question is whether the search condition is reasonably related to deterring future criminality. (Ibid.)
William contends it is not, because "the probation search condition significantly burdens [his] constitutional privacy rights" without a basis in the record to warrant the intrusion. We disagree. "The reasonableness and propriety of the imposed condition is measured . . . by the circumstances of the current offense [and] the minor's entire social history." (In re J.B. (2015) 242 Cal.App.4th 749, 754.) Here there is evidence that William is involved in gang-related activity, including his participation in the events that led to his arrest. Consequently, the court reasonably prohibited him from using electronic means to communicate gang-related material and imposed the electronics search condition to allow probation officers to enforce that prohibition. The search condition also permits probation officers to monitor William for possible involvement in drug sales, as warranted by the marijuana and scale found in his possession. "[A] probation condition that enables probation officers 'to supervise [their] charges effectively is . . . "reasonably related to future criminality." ' " (In re P.O. (2016) 246 Cal.App.4th 288, 295.)
Although the law in this area is not uniform and is currently pending before the Supreme Court, under these circumstances it is clear that the search condition is reasonably related to discouraging William's future involvement in criminal behavior. It is therefore valid under Lent.
See, e.g., In re Juan R. (2018) 22 Cal.App.5th 1083, review granted July 25, 2018, S249256; In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923; In re J.E. (2016) 1 Cal.App.5th 795, rev. granted October 12, 2016, S236628; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted February 17, 2016, S231428.)
C. Overbreadth
Alternatively, William contends the electronics search condition is unconstitutionally broad because it authorizes searches of his personal information unrelated to any potential probation violation "such as personal photographs, health and financial information, music, electronic books, online games, and videos." Accordingly, he asserts, it must be limited to "applications or programs on a cell phone that might be used . . . to communicate a controlled substance sale." We agree the condition must be narrowed, but in a manner that will serve its purpose of monitoring William for gang-related communications as well as potential drug activity.
William objected that there was "no nexus . . . for an electronics search clause" at the disposition hearing, but he did not raise an overbreadth challenge. Nonetheless, the People do not argue the issue was forfeited and we will exercise our discretion to address it. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, and fn. 6.) --------
"When a probation condition imposes limitations on a person's constitutional rights, it ' "must closely tailor those limitations to the purpose of the condition" '—that is, the probationer's reformation and rehabilitation—' "to avoid being invalidated as unconstitutionally overbroad." ' [Citations.] 'The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the [probationer]'s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.] ' " 'Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.' " ' [Citations.]" (In re P.O., supra, 246 Cal.App.4th at p. 297.)
"A probation condition imposed on a minor must be narrowly tailored to both the condition's purposes and the minor's needs, but ' " ' "a condition . . . that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." ' " ' [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. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may "curtail a child's exercise of . . . constitutional rights . . . [because a] parent's own constitutionally protected 'liberty' includes the right to 'bring up children' [citation] and to 'direct the upbringing and education of children.' [Citation.]" ' " (In re P.O., supra, 246 Cal.App.4th at p. 297.)
The People argue the search condition is not overbroad "[i]n light of the severely diminished expectation of privacy possessed by appellant, the compelling state interest in the supervision and reformation of appellant, and the necessity of the inspection of electronic devices to promote the state interest in rehabilitation." They observe the record contains no evidence that William keeps sensitive information unrelated to his potential future criminality on his phone. True, but common experience teaches that vast amounts of personal information are commonly stored on and accessible through cell phones and other electronic devices. (See Riley v. California (2014) 573 U.S 373, 393-398.) The search condition as phrased imposes no limit on the type of data subject to search, potentially allowing access to private information such as medical and financial records that have nothing to do with illegal activity and are "highly unlikely to shed any light on whether [William] is complying with other conditions of his probation." (In re P.O., supra, 246 Cal.App.4th at p. 298; see People v. Appleton (2016) 245 Cal.App.4th 717, 724-725.) The People concede the condition could be more precisely stated to serve its purpose of monitoring William's gang and drug-related activity without unnecessarily impinging on irrelevant private information.
We agree. To achieve the constitutionally mandated requirement that the condition be narrowly tailored to its purposes and the minor's needs, it must be modified to limit warrantless searches of William's electronic devices and accounts to data and communications reasonably likely to reveal whether he is violating the gang communication condition or involved in drug-related activity. To that end, we will follow the approach of our colleagues in Division 1 of this court in In re P.O., supra, 246 Cal.App.4th at pp. 297-298, and modify the condition to require that William (1) submit any electronic devices in his possession or control to search of text and voicemail messages, call logs, email and social media accounts, including any photographs or videos appended or attached to communications, and (2) disclose to probation or law enforcement officers the passwords necessary to access those devices, accounts and data. (Ibid; see also In re Q.R. (2017) 7 Cal.App.5th 1231, 1234, review granted April 12, 2017, S24022.) We reject William's additional assertion, unsupported by analysis or authority, that the search condition must be limited to cell phones. Probation and law enforcement officers must be able to monitor all electronic devices William could reasonably be expected to use to communicate gang-related information or facilitate drug transactions if the search condition is to "prevent[] the minor from engaging in the very conduct that brought him under the court's supervision, while providing probation officers with flexibility in dealing with technological capabilities." (In re Q.R., supra, 7 Cal.App.5th at p. 1237.)
DISPOSITION
Probation condition 10 is modified to provide: "The minor must submit person, property, any vehicle under minor's control, and residence to search and seizure by any peace officer at any time of the day or night, with or without a warrant. The minor shall submit any cell phone or any other electronic device in his possession or control to a search of any text messages, voicemail messages, call logs, email accounts and social media accounts, including any photographs appended or attached to communications with or without a search warrant, at any time of day or night, and provide the probation or peace office with any passwords necessary to access the information specified." As so modified, the dispositional order is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.