Opinion
C090960 C091977
03-11-2021
In re B.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.K., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JL19021)
After finding minor B.K. committed three lewd and lascivious acts on a child under the age of 14, the juvenile court sustained the delinquency petition, found the minor a ward of the juvenile court, and placed her on probation subject to several conditions, including a condition requiring her to participate in polygraph testing.
On appeal, the minor contends the juvenile court abused its discretion in imposing this condition, as it was not reasonably related to future criminality and therefore is invalid under In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The minor adds that the probation condition is overbroad.
We agree the condition is overbroad and remand with directions to strike or tailor the condition at issue. We do not agree with the minor's final claim that the record requires correction, as we explain post.
BACKGROUND
We dispense with a recitation of the facts of this case as unnecessary to the resolution of this appeal. It suffices to say that following a contested hearing, the juvenile court found true the allegations in a delinquency petition (Welf. & Inst. Code, § 602) that the minor had committed three separate lewd and lascivious acts on a child under 14 years old (Pen. Code, § 288, subd. (a)). The remaining allegations were dismissed, and the matter was transferred to Siskiyou County.
Undesignated statutory references are to the Penal Code.
In making the true findings, the juvenile court noted that the case was essentially a "credibility call" between the minor, the victim, and the victim's mother. The only specific issue the court mentioned as to the minor's credibility was that she had denied the allegations. The court also found the acts were not committed through force or violence.
The disposition report noted the victim's mother stated the minor "told them stories, and lies constantly, the counselor there [at school] was seeing her often to try and help her. She had issues lying and behavior problems the entire time she was with me." The PACT assessment indicated the minor's risk of reoffending was high.
The juvenile court took judicial notice of the previously sustained violations of section 288, subdivision (a), noting that the charge was a serious and violent felony, and set the maximum time of confinement at 12 years. The court declared the minor a ward and placed her on probation. As recommended in the disposition report, the court imposed a number of probation conditions, including that the minor: (Specific Condition No. 1) "Actively participate in and successfully complete sex offender treatment counseling, until such time as both the therapist and probation officer agree attendance is no longer necessary;" (General Condition No. 22) "Participate in and comply with any services set forth in the case plan as directed by the Probation Officer, to include counseling for reunification services, and individual counseling, authorizing the release of any requested information, and continuing until such time as both the counselor and probation officer agree further counseling is no longer required;" and (Specific Condition No. 2) "Participate in random polygraph testing at the discretion of the therapist and probation officer, until such time as both the therapist and probation officer agree testing is no longer necessary." The minor did not object to any of these conditions; only specific condition No. 2 is disputed in this appeal.
DISCUSSION
I
Probation Condition
The minor contends the trial court abused its discretion by imposing the probation condition that she participate in random polygraph tests. She argues this condition is invalid under Ricardo P. and is overbroad. Acknowledging trial counsel did not object to the imposition of this condition, she also contends if we find the claims forfeited, counsel was ineffective.
A. Forfeiture
Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Because the minor did not object to the search condition in the juvenile court, she has forfeited her ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to her. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if that claim "amount[s] to a 'facial challenge,' " i.e., a challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad" (id. at p. 885), that is, a " 'pure question[ ] of law that can be resolved without reference to the particular sentencing record developed in the trial court' " (id. at p. 889). Such a claim "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts . . . ." (Id. at p. 885.)
The minor contends her overbreadth challenge is a purely legal question and thus properly raised in this appeal. We disagree. The minor argues that the condition is not properly limited to questions reasonably related to her successful completion of a sex offender treatment program, the crime for which she was convicted, or related future criminal conduct. This analysis requires review of the record, particularly as it relates to the minor's history and the circumstances of this crime. Since the alleged constitutional defect can be analyzed only by reference to the factual record, it is not a facial constitutional challenge, and the claim it is overbroad has been forfeited by failing to object in the trial court. (In re I.V. (2017) 11 Cal.App.5th 249, 260-261; People v. Kendrick (2014) 226 Cal.App.4th 769, 777-778.)
However, because the minor also contends trial counsel was ineffective for failing to objection to the condition, we will exercise our discretion to resolve the issue on the merits. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
B. Legal Standards
" '[A] juvenile court may order a ward under its jurisdiction to probation. (Welf. & Inst. Code, §§ 727, 730, subd. (a).) Under Welfare and Institutions Code section 730, subdivision (b), the court 'may 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.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.)
" '[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.' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1118.) A condition of probation 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. (Ibid.) The Lent test is conjunctive; " 'all three prongs must be satisfied before a reviewing court will invalidate a probation term.' [Citation.]" (Ibid.) The Lent test governs juvenile and adult probation cases. [Citation.]" (In re David C. (2020) 47 Cal.App.5th 657, 662.)
"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 . . . ." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands." (In re White (1979) 97 Cal.App.3d 141, 149-150.)
" 'We review the juvenile court's probation conditions for abuse of discretion, and such discretion will not be disturbed in the absence of manifest abuse.' [Citation.] However, '[w]hether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo.' [Citation.]" (In re David C., supra, 47 Cal.App.5th at p. 661.)
C. Analysis
1. Ricardo P.
The minor contends the polygraph condition imposed is unlawful under Ricardo P. and People v. Lent (1975) 15 Cal.3d 481 (Lent). She argues there is nothing in the record indicating she has previously engaged in unlawful behavior or made untruthful statements. She claims that the random polygraph testing condition imposes a burden on her right to privacy that is substantially disproportionate to the goal of monitoring her probation.
In Ricardo P., our high court clarified 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.) The court held that a probation condition allowing warrantless searches of a minor's electronic devices was invalid under Lent's third prong because, on the record before it, the burden it imposed on the minor's privacy was substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society. (Id. at p. 1119.) In reaching this conclusion, the Ricardo P. court focused on the unique privacy concerns raised by searches of electronic devices and found the electronics search condition significantly burdens privacy interests due to type and quantity of information stored on electronic devices. (Id. at p. 1123.) On a record where nothing suggested the juvenile had ever used an electronic device or social media in connection with illegal activity, the court concluded the electronics search condition "imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.)
The condition here does not raise the same concerns. Initially, we note a juvenile probationer's expectation of privacy "is greatly diminished as long as he remains a ward of the court. [Citation.] By asserting jurisdiction over him, the juvenile court (and, by extension, the probation department) acts in loco parentis and may curtail minor's constitutional rights to a greater extent than if he were an adult probationer. [Citation.]" (In re Q.R. (2020) 44 Cal.App.5th 696, 703.) Moreover, the condition here does not raise the same unique privacy concerns raised by electronics search conditions, as it does not provide probation officers with unfettered access to virtually every detail of the minor's private information and life in the way the wide ranging electronics storage device search in Ricard P. did. (See In re Alonzo M. (2019) 40 Cal.App.5th 156, 168.) Rather, this probation condition requires and ensures that the minor be truthful with her therapist and probation officer while they are assisting her rehabilitation. Such a requirement is not unduly burdensome to her privacy concerns.
Moreover, the unchallenged probation conditions included participating in and completing sex offender treatment counseling and participating in counseling services, as well as authorizing the release of any requested information related to those services. Along with periodic polygraph examinations, these are standard components of a sex offender management program. Polygraph examinations are linked to the purposes and needs of the sex offender management program. (See § 1203.067, subd. (b)(3) [requiring "participation in polygraph examinations, which shall be part of the sex offender management program"]) and used "to obtain a lifetime sexual history of the offender as a part of a comprehensive psychosexual evaluation, to monitor compliance with treatment and supervision requirements, and to focus on a specific allegation or behavior." (In re Jordan R. (2012) 205 Cal.App.4th 111, 129, fn. 17.) Full disclosure is necessary to identify risk factors, and factors critical to the success of the treatment program aimed at preventing future sex offenses. "[T]he polygraph is a reasonable means of verifying the accuracy and completeness of those disclosures and of ensuring the probationer's compliance with treatment and supervision" all of which allow probation to discover and monitor the risks posed by the minor as well as her progress in the sex offender treatment program. (People v. Garcia (2017) 2 Cal.5th 792, 809.) The state has a strong and legitimate interest in the development and monitoring of effective supervision, evaluation, monitoring, and treatment of sex offenders. Against that interest, the limited intrusion to the minor's privacy interest is proportional to deterring the minor's future criminality and is valid under Ricardo P. (See id. at pp. 810-811; see also People v. Miller (1989) 208 Cal.App.3d 1311, 1314-1315, [upholding polygraph examination requirement as reasonably related to ensuring that sex offender complied with a condition barring defendant from being alone with young females]; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319 [polygraph examinations would aid in ensuring the defendant completed his stalking treatment program].) We conclude the condition is valid under Ricardo P.
2. Overbreadth
The record suggests the polygraph condition was imposed to further the minor's successful completion of the sex offender treatment program and monitor compliance with the terms and conditions of probation. However, the trial court did not place any restrictions on the questions that could be asked by the examiner or otherwise tailor the condition to comport with the court's purpose in imposing the polygraph condition. Rather, the condition is broadly worded to require the minor to "[p]articipate in random polygraph testing at the discretion of the therapist and probation officer, until such time as both the therapist and probation officer agree testing is no longer necessary."
The condition should limit the questions allowed to those relating to designing an appropriate treatment program, furthering successful participation in that program, as well as monitoring compliance with the terms and conditions of probation, and questions unrelated to the minor's treatment and supervision, but reasonably necessary to establish a baseline physiological response. (People v. Garcia, supra, 2 Cal.5th at p. 809; Brown v. Superior Court, supra, 101 Cal.App.4th at p. 321.)
Further, we see no purpose furthered by the examinations being conducted randomly. Periodic polygraph examinations should satisfy the goals of this condition. Finally, the juvenile court should clarify that the examination is required only where the probation officer and therapist have jointly deemed such an examination necessary. Accordingly, we conclude the probation condition as worded is unconstitutionally overbroad. Because the condition is otherwise appropriate, as we have explained, and it appears the juvenile court may well be able to impose a valid condition, more narrowly tailored to the state's interests, as we have described above, we will remand to the trial court for it to either strike the condition outright or narrow the condition in a manner consistent with this opinion.
II
Dispositional Hearing Record
The minor also contends the record of the disposition hearing must be corrected to reflect the minor was found to have violated section 288, subdivision (a), rather than subdivision (b). The minor argues that the court's reference to the offense as "a serious and violent felony" renders the record confusing and raising the possibility of the classification of the offenses as violations of section 288, subdivision (b), which require the use of force or violence.
We see no error. The record clearly and repeatedly indicates the minor was adjudicated on three counts of violating section 288, subdivision (a). A violation of section 288, subdivision (a) is a serious and violent felony. (§§ 667.5, subd. (c)(6); 1192.7, subd. (c)(6); see People v. Cole (2007) 152 Cal.App.4th 230, 237.) Thus, there is no error in referring to the counts as such. Section 288, subdivision (a) is not a Welfare and Institutions Code section 707, subdivision (b) offense and the minor was tried in juvenile court. Accordingly, this adjudication will not qualify as a strike. (Cole, at pp. 236-237, citing People v. Garcia (1999) 21 Cal.4th 1, 6.) There is no need for any correction to the record in the manner requested.
DISPOSITION
The matter is remanded to the juvenile court to strike the polygraph condition of probation or narrow it in a manner consistent with this opinion. In all other respects, the orders of the juvenile court are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Hoch, J.