Opinion
A153933
04-02-2019
In re C.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.F., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. J39049)
This is an appeal from the juvenile court's dispositional order, dated March 7, 2018, after minor C.F. entered a no contest plea to second degree robbery in violation of Penal Code section 211 and admitted the allegation that he was armed with a firearm when committing this crime. Pursuant to this order, minor was placed on probation subject to various terms and conditions, including that he submit to warrantless searches of his electronic devices and refrain from using or possessing weapons. On appeal, minor challenges these two conditions as unconstitutionally vague and overbroad. For reasons set forth below, we modify one of the challenged conditions, and otherwise affirm the order.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 24, 2018, an amended juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging that minor, age 16, committed carjacking (§ 215, subd. (a); count 1), second degree robbery (§ 211; count 2), and conspiracy to commit robbery (§ 182, subd. (a)(1); count 3). As to counts 1 and 2, it was further alleged these offenses were felonies within the meaning of Welfare and Institutions Code section 707, subdivision (b) and that, when committing them, minor was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1).
On February 21, 2018, minor admitted count 2, second degree robbery, enhanced for being armed with a firearm, and the remaining counts and enhancements were dismissed.
A report filed by minor's probation officer in anticipation of the dispositional hearing set forth the following facts regarding minor's crime. On January 20, 2018, Anthony Guzman, age 19, contacted the victim, M.M., through Snapchat, a social media application, after the victim posted a photograph of himself displaying marijuana and $400 in cash. The two individuals arranged to meet at a local park, the victim intending to sell marijuana to Guzman and smoke with him, while Guzman secretly intended to rob the victim. Unknown to the victim, Guzman had earlier contacted minor and Manuel J. (minor's cousin) about "doing a 'lick' " on someone at the park.
Manuel later explained he did not believe they were actually going to commit a crime, but believed they would just meet to smoke marijuana. In any event, Guzman, minor, Manuel and two other youths (both named Angel) went to the park in Guzman's car. During the drive, Guzman told everyone his plan for them to rob the victim. In the car were a wooden bat, tire jack, masks and semi-automatic handgun. Guzman pointed the gun at minor and instructed him to use it to steal the victim's phone and car keys and to search his car. Minor repeatedly told Guzman he did not want to do it, but felt he had no choice. Thus, once at the park, after Guzman and the victim had conducted the marijuana sale, minor, Manuel and one of the Angels approached wearing masks. Angel had the bat, minor the gun, and Manuel the tire jack. One of them ordered the victim to hand over his car keys, and when the victim asked whether they were joking, minor pointed the gun at him, pulled and released the slide as if chambering a round, and responded, "Does this look like a joke?" Scared, the victim handed over his keys.
At this point, minor told the victim and Guzman to get down on the ground, while Manuel took the keys, went to the victim's car and searched it for money and drugs. Guzman, meanwhile, handed the suspects his black backpack. The victim, suspecting he had been set up, confronted Guzman after the robbers had left. Guzman denied being involved and turned to leave, claiming he was going to find the suspects. Minutes later, the victim tried to contact Guzman on Snapchat, but discovered he had been blocked. He therefore returned to his car (a black Acura) and called his friend Jaime to tell him what had happened. Jaime drove to where the victim's car was parked, and the victim left his car and got into Jaime's car to talk. A few minutes later, they turned to see the suspects pulling up beside the victim's car in Guzman's gray Acura, with Guzman sitting in the front passenger seat. As they watched, Angel got out of the gray Acura and tried to enter the victim's car, but could not get in. The suspects then fled in Guzman's Acura, with the victim and Jaime following in hot pursuit in Jaime's car.
Eventually, the suspects got away, and Jaime and the victim returned to the area where the victim's car was parked, watching from a distance. Guzman's Acura did indeed return to the scene, and this time, Angel was able to exit Guzman's car to enter and steal the victim's car. Jaime and the victim pulled up in Jaime's car to confront the suspects still sitting in Guzman's car, which included minor, sitting in the backseat wearing a mask. According to the victim, minor then rolled down his window and pointed his gun at them as the suspects drove past. At this point, Angel sped off in the victim's car while the other suspects sped off in Guzman's car. The victim and Jaime pursued his stolen car but eventually lost sight of it and called the police.
The police later located the gray Acura in a Burger King parking lot and detained Guzman, minor, Angel and two others. Minor was subsequently identified by both Jaime and the victim in an in-field showup as the person who had pointed the handgun at them during the car robbery. It was later revealed this handgun had been taken by Guzman from a 17-year-old boy. Specifically, this boy had taken the handgun from his father's gun safe and brought it to a friend's house, where he displayed it to several people, including Guzman. It appears Guzman then left the house with the handgun after the youth briefly left the room. The handgun, a Glock 23, was later found during a search of Guzman's car, along with other contraband, including three live rounds of .40-caliber ammunition.
At the dispositional hearing on March 7, 2018, the juvenile court considered the statement by minor's probation officer that minor had a low risk of reoffending, as well as the numerous character reference letters received on minor's behalf from nearly a dozen individuals. At the same time, the court noted that several of minor's actions, including brandishing the semiautomatic weapon and "slid[ing] the rack" were quite serious and could not be deemed accidental. The court then declared wardship and placed minor on probation subject to various terms and conditions. In addition, minor was committed to juvenile hall for 167 to 227 days, upon completion of which he was to be committed to the juvenile camp run by the Departmental Commitment Program.
On March 21, 2018, minor filed a timely notice of appeal.
DISCUSSION
Minor challenges the following two conditions of his probation as unconstitutionally vague and overbroad in violation of the First, Fourth and Fourteenth Amendments to the United States Constitution:
No. 1: "Consent to a search by a Probation Officer, with or without a warrant, of all electronic devices within your control at any time of day or night. Electronic devices includes computers, laptops, tablets, notepads, and cell phones/smart phones. Provide the Probation Officer any passwords, logins, access codes or other information necessary to access the electronic device and the following electronic accounts: e-mail, voicemail, text messaging, and social media accounts including Facebook, My Space, MocoSpace, Instagram, Snapchat, etc." (hereinafter, electronics search condition); and
No. 2: "The minor shall not knowingly use, possess, transport, sell or have under his/her control any firearm, replica, ammunition or other weapon, including a knife, any explosive, or any item intended for use as a weapon" or "that you know someone else might consider to be a weapon" (hereinafter, weapons condition).
In the dispositional order, the weapons condition reads: "The minor shall not knowingly use, possess, transport, sell or have under his/her control any firearm, replica, ammunition or other weapon, including a knife, any explosive, or any item intended for use as a weapon[.]" At the hearing, the juvenile court added the following language: "anything . . . that you know someone else might consider to be a weapon."
We address each of these probation conditions below after setting forth the relevant legal framework:
Where the juvenile court places a minor on probation following the minor's commission of a crime, it "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." (Welf. & Inst. Code, § 730, subd. (b).) " 'Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation. "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." [Citation.] "[I]n planning the conditions of [a juvenile's] supervision, the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history. [Citations.]" [Citation.]' [Citations.] 'Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation].' [Citations.] But every juvenile probation condition must be made to fit the circumstances and the minor." (In re Binh L. (1992) 5 Cal.App.4th 194, 203.)
Despite the greater latitude afforded juvenile courts in ordering probation conditions, it remains the law in all cases that "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In addition, a probation condition that imposes limitations on a person's constitutional rights "must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Ibid.; see also In re Spencer S. (2009) 176 Cal.App.4th 1315, 1331.) "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 [minor's] constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Generally, the appellate court reviews a juvenile court's imposition of a probation condition for abuse of discretion. (In re Juan G. (2003) 112 Cal.App.4th 1, 7.) However, whether a probation condition is unconstitutionally overbroad or vague presents a question of law reviewed on appeal de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
I. Electronics Search Condition.
Minor challenges the electronics search condition set forth above as overbroad and vague, insisting that it infringes upon his constitutional rights to privacy, free expression and association, and due process. He cites several cases for the proposition that individuals have a constitutional right to privacy in the content of their electronic devices, including Riley v. California (2014) 573 U.S. 373, 400-401 (cell phones) and People v. Appleton (2016) 245 Cal.App.4th 717, 724 (computers). Minor also contends the electronics search condition in his case was "routinely imposed . . . in a blanket fashion" in violation of the rule requiring every juvenile probation condition to be " 'tailored to fit the circumstances of the case and the minor.' " (In re Erica R. (2015) 240 Cal.App.4th 907, 914; In re Binh L., supra, 5 Cal.App.4th at p. 203.)
In People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), the California Supreme Court held that a probation condition should be stricken as invalid only 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 . . . .' " (Accord, In re R.V. (2009) 171 Cal.App.4th 239, 246-247 [applying the three Lent factors conjunctively in the case of a juvenile challenge to a probation condition].) This standard has been applied in cases like this involving electronics search conditions for juvenile probationers, with mixed results. (E.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923, (Ricardo P.); In re Juan R. (2018) 22 Cal.App.5th 1083, review granted July 25, 2018, S249256, (Juan R.); In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628.) As our Division Five colleagues recently (and aptly) summarized in Juan R., supra, 22 Cal.App.5th 1083: "Pending resolution from our Supreme Court, the divisions of this appellate district have reached different conclusions regarding electronic search conditions. (See, e.g., In re J.E. (2016) 1 Cal.App.5th 795 [Div. Four upholding condition as reasonable and not unconstitutionally overbroad], review granted Oct. 12, 2016, S236628; In re P.O. (2016) 246 Cal.App.4th 288 (P.O.) [Div. One holding condition reasonable but overbroad]; In re J.B. (2015) 242 Cal.App.4th 749 (J.B.) [Div. Three striking condition as unreasonable]; In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) [Div. Two striking condition as unreasonable]; In re Malik J. (2015) 240 Cal.App.4th 896 [Div. Three holding condition reasonable but overbroad].)
"For example, in J.B., our colleagues in Division Three struck such a condition as unreasonable. (J.B., supra, 242 Cal.App.4th at p. 752.) The minor admitted an allegation of petty theft, was adjudged a ward of the court, and placed on probation. The juvenile court imposed an electronics search condition, relying on the minor's statement he had been using marijuana for at least two and a half years and the court's experience that minors using drugs tend to brag about their usage on the Internet. (Id. at pp. 752-753.) J.B. held the minor's prior use of marijuana was an inadequate justification for warrantless electronic searches under Lent because there was 'no showing of any connection between the minor's use of electronic devices and his past or potential future criminal activity.' (J.B., at pp. 756, 758.) . . . The J.B. court held that reasonableness is not judged solely by whether the condition itself would be reasonably effective in preventing future criminality, but whether it could be seen as a reasonable means for deterring future crime by this particular minor based on his history. (Ibid.; accord, Erica R., supra, 240 Cal.App.4th at p. 913.)
"In contrast, P.O. found an electronics search condition reasonably related to future criminality despite the fact the minor's offense did not involve electronics in any respect. (P.O., supra, 246 Cal.App.4th at pp. 294, 296.) P.O. relied on [People v.] Olguin [(2008) 45 Cal.4th 375] for the proposition that 'a probation condition that enables probation officers "to supervise [their] charges effectively is . . . 'reasonably related to future criminality.' " ' (P.O., at p. 295.) The court explained: 'It may well be that a probation condition requiring a minor to forward all electronic communications to the probation officer or to wear a body camera would be unreasonable under Lent, supra, 15 Cal.3d 481, but it would be so because of the burden it imposed on the minor—not because it invaded the minor's privacy (a constitutional concern better addressed by the overbreadth doctrine), and certainly not because it lacked a connection to preventing future criminality.' (P.O., at p. 296.) Otherwise 'juvenile courts would be unable to impose standard search conditions permitting warrantless searches of a minor's person, residence, [and] vehicle . . . without a showing that those locations were all connected to past criminal conduct.' (Ibid.) The P.O. court concluded the electronics search condition 'reasonably relates to enabling the effective supervision of [the minor]'s compliance with other probation conditions.' (Id. at p. 295.)" (Juan R., supra, 22 Cal.App.5th at pp. 1089-1090, rev. granted.)
In Juan R., our Division Five colleagues ultimately decided to uphold the condition because the third Lent prong was not satisfied: "The condition 'reasonably relates to enabling the effective supervision of [Juan's] compliance with other probation conditions.' [Citation.] Most importantly, it will deter Juan from planning future crimes with the other minors who participated in the instant offense. . . . [¶] . . . [¶] . . . Juan committed a violent felony while on informal supervision, thereby raising larger public safety concerns." (Juan R., supra, 22 Cal.App.5th. at p. 1091.) Also noting that Juan had truancy and disciplinary issues at school and admitted both regular drug use and association with known gang members, our colleagues concluded "[t]he juvenile court imposed the electronic search condition precisely because it enhanced its ability to monitor Juan's complex constellation of needs." (Ibid.)
As mentioned, Juan's petition for review of this decision has been granted and further action in the matter deferred pending the California Supreme Court's consideration and disposition of this issue in Ricardo P. and People v. Trujillo (2017) 15 Cal.App.5th 574, review granted Nov. 29, 2017, S244650, or pending further order of the court. (Ante, p. 7.) In Ricardo P., another First District case, the minor reported he " 'wasn't thinking' " when committing the theft crime, and that " 'he stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly.' " Based on those circumstances, the juvenile court imposed a broad electronics search condition, noting " 'minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet' " and, thus, concluding such a condition is " 'a very important part of being able to monitor drug usage and particularly marijuana usage.' " (241 Cal.App.4th at p.681.) Our Division One colleagues, however, partially disagreed. After finding the condition reasonable under Lent, our colleagues nonetheless struck some of its language as unconstitutionally overbroad and remanded the matter for reconsideration because the condition was not narrowly tailored to limit the impact on the minor's privacy rights. (Id. at pp. 689-690, 692.)
Returning to the case at hand, we conclude, as in Juan R., that the electronics search condition is valid because the third prong of the Lent test is not satisfied on this record. In particular, we conclude the electronics search condition is in fact reasonably related to minor's crimes. The record reflects minor's partner-in-crime, Guzman, instigated the criminal activity in this case by contacting the victim to set up the robbery through a social media application, Snapchat. Messaging the victim via this application, Guzman lured him to a park, ostensibly to sell and smoke marijuana. And it was there minor first involved himself in the robbery, pulling out a semiautomatic weapon, releasing the slide back and pointing it at the victim after ordering him to empty his pockets and to get on the ground. Later, after minor and his criminal partners fled the scene, the victim attempted to reach out to Guzman via Snapchat, suspecting that he, too, was involved in the robbery; however, he discovered Guzman had blocked him from contact on this application.
Also evidencing the role of electronic devices in this case, another participant, Manuel (minor's cousin), reported to police that Guzman telephoned him on the day in question to set up a " 'lick' " on someone. Guzman then instructed Manuel and the others (including minor) to come to the park, which they did, finding Guzman with the victim and following through with the robbery.
Viewing this record in a light favorable to the juvenile court order, even were we to agree with minor that the nexus between his crime and the electronics search condition is somewhat attenuated given the lack of evidence that minor, as opposed to his coparticipants, used electronic devices during the robbery, the fact remains the crime committed by minor was set in motion by use of such a device, as well as by social media. And there is no doubt whatsoever that minor was an active participant in all that followed Guzman's arrangement to meet up with the others to set up a " 'lick' " on someone via phone, and his arrangement to meet the victim via Snapchat. Under these circumstances and the deferential standard of review required by Lent, we find no abuse of discretion in the trial court's finding that electronic devices and social media played a significant role in this case. As such, we conclude this condition does not run afoul of the Lent factor requiring " 'no relationship to the crime . . . .' " (Lent, supra, 15 Cal.3d at p. 486 [to be invalid, the probation condition must trigger all three Lent factors].)
Moreover, the juvenile court could have reasonably understood that, given the widespread use by young persons in general and by minor's associates in particular of social media and electronic devices like smart phones, a broad search condition was needed to ensure minor's rehabilitation and to deter his involvement in future criminal activity. (In re R.V., supra, 171 Cal.App.4th at p. 246 [when exercising its broad discretion to set a juvenile's probation terms, the court " 'should consider the minor's entire social history in addition to the circumstances of the crime' "].) As mentioned, "[b]ecause 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.] . . . '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.]" (In re Malik J., supra, 240 Cal.App.4th at p. 901.)
Minor labels his offense "a one-time aberrant act," noting the probation officer's opinion that he has a low risk of re-offense. However, the juvenile court rejected minor's attempts at the hearing to downplay the seriousness of his crime: "I notice in all the letters that were submitted that everybody's very surprised at this behavior and people say things like you made a mistake. To me, this is not a mistake. You don't do that mistakenly. You don't slide the rack as a mistake. This is very, very serious." We find no basis to disregard the juvenile court's finding on this point, which is undoubtedly rooted in the factual record.
Lastly, in reaching these conclusions, we acknowledge minor's concerns that the electronics search condition will make all information on his computers and electronic devices subject to search, and would allow for searches of vast amounts of personal information unrelated to his criminal conduct or his potential for future criminality, including in some cases information possessed by innocent third parties. (See People v. Appleton, supra, 245 Cal.App.4th at p. 727.) However, under the current state of the law, the standard governing minor's challenge to the electronics search condition is the same as for probation conditions in general: "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." (In re E.O., supra, 188 Cal.App.4th at p. 1153.) And here, as we have explained, the record provides support for the juvenile court's decision that, given minor's significant involvement in serious criminal activity that was both instigated and facilitated by use of electronic devices and social media, the broad electronics search condition, inclusive of all minor's electronic devices, e-mail/text messages, voicemail and social media accounts, is constitutionally permissible and reasonably necessary for his rehabilitation and for public safety. (See In re Malik J., supra, 240 Cal.App.4th at p. 904 [the minor's previous theft of a cell phone justified the search of any cell phones or electronic devices in his possession to determine if he was the lawful owner of such].)
Finally, we decline minor's invitation to, at the very least, modify the electronics search condition consistent with the modification made in In re Malik J., supra, 240 Cal.App.4th at p. 906. As in Malik J., minor would have us modify the condition to permit warrantless searches of electronic devices in the minor's possession only after the devices have been disabled from any Internet or cellular connection and prohibiting the use of specialized equipment to retrieve deleted data. Minor's situation is very different from that of Malik J., where the primary concern of law enforcement was to be able to search a cell phone to determine whether Malik was the owner of it. (Id. at p. 902.) The circumstances of minor's case, which involve the use of an electronic device to set up a robbery (during which minor used a weapon) support use of the electronics search condition as imposed.
II. Weapons Condition.
Lastly, minor challenges the probation condition forbidding him from knowingly using, possessing, transporting, selling, or having in his possession or control any weapon, any item intended for use as a weapon, or "anything that can be considered by someone else to be a weapon" on the ground that it is unconstitutionally overbroad and vague. The People concede this weapons condition should be modified in the manner proposed in minor's opening brief by, first, adding the "intent" language used by the juvenile court at the hearing (but not in the written order) with respect to items intended for use as a weapon and, second, deleting the language referring to items "someone else" could consider to be a weapon. Specifically, as modified, the weapons condition would now read: "The minor shall not knowingly use, possess, transport, sell or have under his/her control any firearm, replica, ammunition or other weapon, including a knife, or any explosive, or knowingly possess any item intended for use as a weapon."
As modified, the weapons condition meets the legal requirement that a juvenile probation condition " 'be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated . . . .' " (In re Sheena K., supra, 40 Cal.4th at p. 890; accord, In re E.O., supra, 188 Cal.App.4th at p. 1153 ["A restriction is unconstitutionally vague if it is not ' "sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated" ' "].) Accordingly, the modified condition withstands minor's vagueness challenge and assures all concerned that innocent conduct will not be criminalized. (See In re Kevin F. (2015) 239 Cal.App.4th 351, 361, 365, disapproved on other grounds in People v. Hall (2017) 2 Cal.5th 494, 503, fn. 2 [after recognizing that what is and what is not a de facto weapon turns in part on intent to use the item for a dangerous or deadly purpose, the reviewing court modified the probation condition barring the juvenile from possessing anything that could be used as a weapon to possessing any object intended to be used as a weapon].)
DISPOSITION
The weapons condition of minor's probation in said order is modified to state: "The minor shall not knowingly use, possess, transport, sell or have under his/her control any firearm, replica, ammunition or other weapon, including a knife, or any explosive, or knowingly possess any item intended for use as a weapon."
In all other regards, the March 7, 2018 juvenile court order is affirmed.
/s/_________
Wiseman, J. WE CONCUR: /s/_________
Fujisaki, Acting P. J. /s/_________
Petrou, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.