Opinion
A146333
01-19-2017
In re R.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R. A., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1500879)
Following a contested jurisdictional hearing, the juvenile court sustained allegations that R.A. (the minor) discharged a firearm in a grossly negligent manner (Pen. Code, § 246.3) and carried a concealed firearm while an occupant of a vehicle (§ 25400, subd. (a)(3)). The court declared the minor a ward of the court (Welf. & Inst. Code, § 602) and placed him on probation. As one condition of probation, the court required the minor "to submit to the search of your person, your property, any vehicle under your control, any cell phone, or any other electronic device in your possession including providing the access codes, and your residence to search and seizure by any peace officer at any time of the day or night with or without a warrant" (electronic search condition or condition).
All undesignated statutory references are to the Penal Code.
The minor appeals, arguing the evidence is insufficient to sustain a finding of gross negligence under section 246.3. He also argues the electronic search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), and that it is unconstitutionally overbroad. We conclude the electronic search condition is reasonable under Lent, but that it is overbroad. We will strike the electronic search condition and remand to the juvenile court for modification. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On an August 2015 evening at approximately 10:20 p.m., a woman and her boyfriend were in a parked car in the parking lot of Williams Ranch Park in Antioch. There were two other parked vehicles in the lot. A black vehicle pulled into a parking spot about three spaces away from the woman, playing loud music. The woman heard four gunshots, and then four more gunshots, coming from the direction of the black vehicle. Her vehicle and the black vehicle then left the parking lot in different directions.
Antioch Police Officer James Bedgood and his partner were in a patrol vehicle stopped at an intersection near the park. Officer Bedgood heard approximately five gunshots coming from the park. He also saw a nearby bicyclist duck and cover in response to the gunfire. The officers drove to the entrance of the park and saw a black four-door Toyota exit the park traveling quickly. The Toyota made an illegal left turn on its way out of the park.
The officers followed the black Toyota and performed a traffic stop. Officer Kenneth Krein arrived, and handcuffed the minor. Officer Krein pat searched the minor and found a .38 caliber Smith and Wesson revolver tucked into his waistband. The revolver had three live and three spent rounds in the cylinder. Officer Krein also found a red rag in the minor's left front pocket.
After being Mirandized, the minor told Officer Krein he had been a member of the Norteño gang since age 14, he had found the gun in his neighborhood, and that he was carrying it for protection from Sureño gang members. The minor admitted he fired the gun out of the window of the Toyota and up into the air. Initially he said he had fired it only once, but when confronted with the empty rounds in the cylinder, he admitted that he had fired it three times.
The People filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging the minor committed: (1) discharge of a firearm with gross negligence (§ 246.3) (count one), with a street gang enhancement pursuant to section 186.22, subdivision (b)(1); (2) carrying a concealed firearm while an occupant of a vehicle (§ 25400, subd. (a)(3)) (count two); and (3) carrying a concealed firearm on his person as an active participant in a street gang (§ 25400, subds. (a)(2), (c)(3)) (count three).
After a contested jurisdictional hearing, the court found the minor discharged a firearm with gross negligence (count one), and carried a concealed firearm while an occupant of a vehicle (count two). The court declared the minor a ward of the court and placed him on formal probation. As relevant here, the court imposed the electronic search condition, ordering the minor "to submit to the search of your person, your property, any vehicle under your control, any cell phone, or any other electronic device in your possession including providing the access codes, and your residence to search and seizure by any peace officer at any time of the day or night with or without a warrant." The minor's counsel did not object to the condition.
DISCUSSION
On appeal, the minor argues: (1) that the evidence was insufficient to support the court's finding that he discharged a firearm "in a grossly negligent manner"; (2) the court's electronic search condition was unreasonable under Lent and unconstitutionally overbroad; and (3) his attorney provided ineffective assistance of counsel by failing to object to the electronic search condition.
I.
The Evidence Was Sufficient to Show Gross Negligence
The minor argues the evidence does not support the court's finding that he discharged a firearm "in a grossly negligent manner which could result in injury or death to a person" because he fired the gun in the parking lot of an isolated park, at night, after the park was closed to the public. (§ 246.3, subd. (a).) In considering the sufficiency of the evidence in a juvenile proceeding, we apply the same standard of review used in reviewing the evidence supporting a criminal conviction. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) Our task is to "review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We accept all reasonable inferences that could be drawn from the evidence in favor of the verdict and all implicit assessments of weight and credibility. (See People v. Wong (2010) 186 Cal.App.4th 1433, 1444.)
Substantial evidence supports the conclusion that the minor's discharge of the firearm "actually had the potential for culminating in personal injury or death," as required to violate section 246.3, subdivision (a). (People v. Alonzo (1993) 13 Cal.App.4th 535, 539.) The minor fired the gun from a parked car in the parking lot at William Ranch Park. At the time, the parking lot contained three other vehicles, one of which had people inside. Although the park was technically closed for the night, there were people in the nearby area, including a bicyclist close enough to duck for cover when he heard the gunfire and the police cruiser that eventually arrested the minor. Given the number of people in the area where the minor fired the gun, and drawing all reasonable inferences in favor of the verdict, a reasonable fact finder could conclude he did so in a "grossly negligent manner which could result in injury or death to a person." (§ 246.3, subd. (a); see People v. Alonzo, supra, 13 Cal.App.4th at pp. 539-540; People v. Ramirez (2009) 45 Cal.4th 980, 990.)
II.
The Electronic Search Condition Is Reasonable Under Lent
but Is Overbroad
The minor argues the electronic search condition is both unreasonable under Lent and unconstitutionally overbroad. We "will not disturb the juvenile court's broad discretion over probation conditions absent an abuse of discretion. [Citations.]" (In re Walter P. (2009) 170 Cal.App.4th 95, 100.) "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.]" (Lent, supra, 15 Cal.3d at p. 486.) "[The Lent] test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] 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." (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) "Lent applies to juvenile court probation orders." (In re Josh W. (1997) 55 Cal.App.4th 1, 6.)
The minor did not object to the electronic search condition in the juvenile court. Unlike facial constitutional challenges, a challenge to a condition's reasonableness is forfeited if not raised below. (See In re Sheena K. (2007) 40 Cal.4th 875, 881-889.) To resolve the minor's ineffective assistance of counsel claim, we will reach the merits of the minor's reasonableness challenge in order to determine whether his counsel's failure to object was prejudicial. (See Strickland v. Washington (1984) 466 U.S. 668, 691-692.)
A. The Electronic Search Condition Is Reasonably Related to Future Criminality
With respect to the first prong, the minor argues the record does not establish he used electronic devices or social media in connection with the offense. We agree. Nothing in the record connects the offenses to electronics or social media, and the People's brief argument to the contrary is not persuasive. (See In re Erica R. (2015) 240 Cal.App.4th 907, 912-913; In re J.B. (2015) 242 Cal.App.4th 749, 755-756.) The parties do not dispute that the electronic search condition meets the second prong of the Lent test.
We turn to Lent's third prong. The question of the connection required between a probationer's past conduct and an electronic search condition under Lent's third prong has divided the Courts of Appeal in several cases in which the Supreme Court has granted review. (See, e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240.)
In Olguin, supra, 45 Cal.4th 375, the Supreme Court upheld a condition requiring the defendant to notify his probation officer of any pets at his residence on the grounds that "[p]robation officers are charged with supervising probationers' compliance with the specific terms of their probation to ensure the safety of the public and the rehabilitation of probationers. Pets residing with probationers have the potential to distract, impede, and endanger probation officers in the exercise of their supervisory duties. By mandating that probation officers be kept informed of the presence of such pets, this notification condition facilitates the effective supervision of probationers and, as such, is reasonably related to deterring future criminality." (Id. at p. 378.) In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932, relied in part on Olguin to conclude that, like the condition in Olguin, an electronic search condition facilitates supervision of the minor. (In re A.S., supra, 245 Cal.App.4th at p. 771; accord In re P.O. (2016) 246 Cal.App.4th 288, 291.) Three Court of Appeal cases, including one from this Division, in which the Supreme Court subsequently granted review, also upheld electronic search conditions as reasonably related to future criminality. (See In re Ricardo P., supra, Cal.App.4th 676; In re Patrick F., supra, 242 Cal.App.4th 104; In re Alejandro R., supra, 243 Cal.App.4th 556.)
In re J.B. (2015) 242 Cal.App.4th 749, however, relied in part on Olguin to reach the opposite conclusion. (Id. at p. 752.) In re J.B. noted that Olguin emphasized the reasonableness of the condition and found that "[t]he fact that a search condition would facilitate general oversight of the individual's activities is insufficient to justify an open-ended search condition permitting review of all information contained or accessible on the minor's smart phone or other electronic devices." (In re J.B., supra, at pp. 757-758; accord In re Mark C. (2016) 244 Cal.App.4th 520 , review granted Apr. 13, 2016, S232849; In re Erica R. supra, 240 Cal.App.4th at pp. 913-914.)
Until the Supreme Court provides further guidance, we will follow the reasoning of In re A.S. and conclude the electronic search condition reasonably related to the minor's future criminality under Lent. The condition will enable probation to effectively monitor the minor's compliance with his other probation conditions, such as alcohol, drug, and gang related prohibitions. (See People v. Adams (1990) 224 Cal.App.3d 705, 712.)
B. The Electronic Search Condition Must Be More Narrowly Tailored
The minor also contends the electronic search condition is unconstitutionally overbroad. He argues the condition encroaches on his constitutional rights of privacy and free speech, and is not tailored to supervisory goals or rehabilitative needs. The People claim the condition is sufficiently tailored to the purposes of monitoring the minor's compliance with probation terms and deterring future criminality. In the alternative, the People argue that the condition should be modified to reach only "programs and applications reasonably likely to reveal whether [the minor] is involved in gang-related, drug-related, or other matters in violation of his probation terms."
"A probation condition . . . may be challenged as unconstitutionally vague or overbroad. [Citation.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [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 defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (Ibid.)
To support his argument that the condition is overbroad, the minor relies on Riley v. California (2014) 573 U.S. ___ (Riley). Riley held that law enforcement officers generally must secure a warrant before searching the digital content of a cell phone incident to an arrest. (Id. at p. 2493.) The court distinguished a search of a modern cell phone's contents from the search of other property found during a typical arrest search of the person. A cell phone "not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." (Id. at p. 2491.)
We must agree that "[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life,' [citation]." (Riley, supra, 134 S.Ct. at pp. 2494-2495.) Nevertheless, we conclude Riley is distinguishable and of limited utility in analyzing this case. Unlike the arrestee in Riley, who had not yet been convicted of any crime, the court sustained the firearm offenses and declared the minor a ward of the court. Accordingly, his privacy interests are far more limited than those of the Riley arrestee. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941 [juvenile's constitutional rights more circumscribed than adult's]; see In re Jaime P. (2006) 40 Cal.4th 128, 134 [privacy rights of a probationer are "diminished"].)
The People concede the minor has a "reduced" privacy interest in the information stored in his cell phone or other electronic devices. We agree the search condition implicates the minor's constitutional privacy rights. (See People v. Appleton (2016) 245 Cal.App.4th 717, 724-727 (Appleton).) In Appleton, the defendant met his minor victim through a social media application and pleaded no contest to false imprisonment. (Id. at pp. 719-720.) Thus, the electronic search condition was reasonable under Lent's first prong because "'either social media or some kind of computer software' was involved in the offense." (Id. at p. 724.)
Appleton addressed overbreadth, first recognizing that "[i]t is well established that individuals retain a constitutionally protected expectation of privacy in the contents of their own computers. [Citations.]" (Appleton, supra, 245 Cal.App.4th at p. 724.) The court further explained: "Although [the majority of the cases from the First District] concerned juveniles, we generally agree with their reasoning relating to computer search conditions. Like the conditions at issue in those cases, the probation condition here would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality. Furthermore, the state's interest here—monitoring whether defendant uses social media to contact minors for unlawful purposes—could be served through narrower means." (Id. at p. 727.) The condition was stricken and the matter remanded "because the trial court may be able to impose a valid condition more narrowly tailored to the state's interests[.]" (Ibid.)
Here, the probation condition is similar in that it has not been narrowly tailored to promote the minor's rehabilitation and the public's protection. "Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on [a] person. The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." (Riley, supra, 134 S.Ct. at p. 2489.) The court did not tailor the condition by limiting the types of data (whether on an electronic device or accessible through an electronic device) that may be searched. While a probation condition can infringe the minor's privacy interests, it can do so only to the extent the information searched is reasonably likely to yield evidence of matters such as drug use, attempts at self-harm, flight from home, gang activity, or other criminal activity and noncompliance with probation conditions. (See Appleton, supra, 245 Cal.App.4th at p.727.) Accordingly, we will strike the condition and remand to the juvenile court so it may impose a narrowed condition that does not unduly infringe on the minor's privacy rights.
The minor has filed a petition for writ of habeas corpus alleging that his counsel was ineffective in failing to object to the electronic search condition. Because we remand for modification of the condition, we deny the petition (A148516) by separate order filed this date. --------
DISPOSITION
The electronic search condition is stricken and the matter is remanded to the juvenile court for imposition of a narrowed electronic search condition that does not unduly infringe on the minor's privacy rights. In all other respects, the judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.