Opinion
D070522
06-26-2017
In re CHRISTIAN M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN M., Defendant and Appellant.
Alex David Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Warren J. Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J234913) APPEAL from an order of the Superior Court of San Diego County, Roderick Shelton and Browder A. Willis III, Judges. Appeal dismissed. Alex David Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Christian M. purports to appeal from a May 2016 order denying his motion for reconsideration of a February 2016 dispositional order adjudging him a ward of the juvenile court (Welf. & Inst. Code, § 602) and placing him on probation after he admitted to committing assault with force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(4)) in furtherance of a criminal street gang in violation of Penal Code section 186.22, subdivision (b)(1). He challenges two electronic surveillance conditions of his probation: that he submit to a warrantless search of any electronic device that he uses or to which he has access including "any remote storage of any files or data which [he] knowingly uses or to which [he] has access" and that he "provide [the government with] all passwords or pass phrases to any internet sites or social media sites . . . used by [him]." The People respond that Christian has not appealed from an appealable order, and the appeal must be dismissed. They otherwise argue that the challenged probation conditions were properly imposed to ensure Christian remains law abiding and aid in his rehabilitation; they did not violate the Fourth Amendment or the California Electronic Communications Privacy Act (ECPA); and they were narrowly tailored to promote rehabilitation and prevent future activity with his criminal street gang.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
We agree the juvenile court's order denying reconsideration is not appealable as a subsequent order after judgment that affects Christian's substantial rights. Because the parties cannot construe the motion or the court's order to create appealability, and we will not do so on our own, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2015, Christian, while acting for the benefit of the Asian Crips criminal street gang, participated in a group assault on the victim by kicking him while he was engaged in a conflict with another individual.
The district attorney filed an amended petition under section 602 alleging that Christian committed robbery against victim A.H. (Pen. Code, § 211; count 1), assault by means of force likely to produce great bodily injury on A.H. (Pen. Code, § 245, subd. (a)(4); count 2), and unlawful use of force and violence on D.O. (Pen. Code, § 242; count 3). As to all counts, the petition alleged Christian committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). Christian admitted the count 2 assault. The remaining counts, as well as Christian's prior probation violations, were dismissed.
A disposition hearing was held in February 2016. The probation officer had recommended among other orders that Christian, who had previously been declared a ward of the court, continue to be declared a ward of the court and placed on probation. The juvenile court declared Christian a ward, placed him on probation, and committed him to the San Diego County Probation Youthful Offender Unit program for 480 days. Among other probation conditions, the court ordered over his counsel's objection that Christian's fourth amendment waiver "extends to any electronic device, such as a computer, electronic notepad, or cell phone, which the minor uses or to which the minor has access" as well as to "any remote storage of any files or data which the minor knowingly uses or to which the minor has access." It also ordered Christian to "provide all passwords or pass phrases to any internet sites or social media sites, such as Facebook, Twitter, SnapChat, or Google+, used or accessed by the minor."
In full, these two conditions read: "The minor's 4th Amendment waiver extends to any electronic device, such as a computer, electronic notepad, or cell phone, which the minor uses or to which the minor has access. The minor's 4th Amendment waiver also extends to any remote storage of any files or data which the minor knowingly uses or to which the minor has access. The minor agrees to submit to a search of any electronic device, such as a computer, electronic notepad, or cell phone, at any time without a warrant by any law enforcement officer, including a probation officer. [¶] The minor shall provide all passwords or pass phrases to any internet sites or social media sites, such as Facebook, Twitter, SnapChat, or Google+, used or accessed by the minor. When asked by any law enforcement officer, including a probation officer, the minor shall submit those websites to a search at any time without a warrant. The minor shall not knowingly clean or delete his or her Internet browsing activity."
Christian did not appeal from the February 24, 2016 dispositional order. Rather, he petitioned for reconsideration of that order as to the electronic search and password conditions. Though Christian acknowledged his counsel objected to them at the hearing, he argued they were imposed without advance notice or opportunity for his counsel to be heard or prepare a response. He maintained that the People did not give a "specific and justifiable basis" for the conditions, and under People v. Lent (1975) 15 Cal.3d 481 (Lent) and In re J.B. (2015) 242 Cal.App.4th 749, they were invalid and unconstitutionally overbroad. He also contended the conditions violated his Fourth Amendment rights and, by not excluding attorney-client communications from the range of electronic communications subject to search, implicitly restricted his Sixth Amendment rights to counsel. In opposition, the People pointed out that Christian's gang documentation report identified social media sites with photographs reflecting his association with the Asian Crips gang, and also reported that a detective saw a video on Christian's cell phone where he displayed Asian Crips hand signs.
In May 2016, the juvenile court denied Christian's reconsideration motion. It ordered the imposed electronic and password conditions remain in full force and effect. Christian now purports to appeal from the juvenile court's May 2016 order.
DISCUSSION
Our decision begins and ends with the People's contention that Christian has appealed from a nonappealable order, an argument that implicates our jurisdiction. If there is no basis to conclude the juvenile court's order is appealable, we lack jurisdiction and must dismiss the appeal. (In re Javier G. (2005) 130 Cal.App.4th 1195, 1201.) Section 800 governs appeals by a minor who is, as here, the subject of a juvenile wardship proceeding, and it restricts appealable orders, judgments and decrees to those enumerated in that section. (In re J.G. (2017) 7 Cal.App.5th 955, 962, citing Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 788.) The People argue that despite section 800, subdivision (a), which states that a minor may appeal from a judgment in a section 601 or 602 proceeding or "any subsequent order . . . as from an order after judgment," the scope of section 800's phrase "any subsequent order" is limited. They analogize section 800 to Penal Code section 1237, subdivision (b), which has been interpreted narrowly so as to preclude an appeal from an order denying a motion, however styled, that seeks to nullify a judgment, because it would constitute an improper second appeal. According to the People, allowing Christian to appeal the order denying reconsideration would merely bypass or duplicate an appeal from the judgment itself, and is precluded under the reasoning of People v. Totari (2002) 28 Cal.4th 876.
Christian had asserted in his opening appellate brief without developed argument that the court's order was appealable (1) as an order denying a motion made under the ECPA (Pen. Code, § 1546.4, subd. (c)), and (2) as a subsequent order under Welfare and Institutions Code section 800, subdivision (a) as brought under sections 775 and 778. For the first time in his reply brief he explains his positions on these two points, which we address in turn. A. The ECPA Arguments Are Forfeited
We first conclude that Christian has forfeited any arguments based on the ECPA. The ECPA went into effect on January 1, 2016 (Stats. 2015, ch. 651, § 1), about two months before Christian's dispositional hearing. The provision on which Christian relies for his claim of appealability, Penal Code section 1546.4, subdivision (c), provides: "An individual whose [electronic] information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter, or the California Constitution or the United States Constitution, or a service provider or any other recipient of the warrant, order, or other legal process may petition the issuing court to void or modify the warrant, order, or process, or to order the destruction of any information obtained in violation of this chapter, or the California Constitution, or the United States Constitution."
In his appellate reply brief, Christian argues for the first time that the ECPA provides a procedural mechanism for people to vindicate their digital privacy interests, and serves certain governmental interests. He argues the Legislature established " 'specific requirements for a motion' to void or modify an order" under the ECPA, and thus, under People v. Totari, supra, 28 Cal.4th 876, denial of the motion is appealable as affecting his substantial rights. But Christian did not argue in his petition for reconsideration below that the electronic probation conditions either violated the ECPA, or that the court's order should have been modified or invalidated under the ECPA. In moving for reconsideration, Christian argued the conditions were unreasonable under Lent, supra, 15 Cal.3d 481 and the Fourth and Sixth Amendments. Indeed, in oral arguments on the matter, Christian's counsel pointed out he "did not specifically argue [the ECPA] because it went into effect the beginning of the year and [I] specifically noted the cases I cited were decided before that went into effect." He merely argued "[i]t does clearly extend and enhance the Fourth Amendment rights that otherwise are available under the federal and state constitution." Counsel argued the conditions did not meet the Lent criteria, and implicated his client's Fourth, Fifth, and Sixth Amendment rights. The juvenile court did not mention the ECPA in its ruling.
The sole mention of the ECPA in his motion was to point out that the cases on which he relied "all were decided before the [ECPA] and did not reference it in any way" but instead relied on Lent and Fourth Amendment interests. Christian concluded his motion without mentioning the ECPA: "In reviewing the minor's current case[,] it did not involve the use of electronic devices. The use of electronic devices and social media is not in itself illegal. Further[,] nothing regarding either the current offense or minor's social history suggests his use of electronic devices or social media for illegal conduct. Therefore[,] the proposed conditions are invalid under [Lent]. And because the conditions are not narrowly tailored to minor's case and history they are constitutionally overbroad."
Neither Christian's motion, nor the juvenile court's order, in any way related to relief under the ECPA and we cannot construe them as such. Thus, as to appealability and the merits, we conclude Christian forfeited the particular ECPA arguments he raises by failing to raise an ECPA challenge below. (In re Sheena K. (2007) 40 Cal.4th 875, 885 [forfeiture rule applies to appellate claims of error "involving discretionary sentencing choices or unreasonable probation conditions"]; People v. Kendrick (2014) 226 Cal.App.4th 769, 777-778; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1933.) Whether Christian's probation condition is permissible or infringes on his constitutional rights depends on whether it is tailored to meet his specific needs (see In re Sheena K, at pp. 887-889 [" 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court' "]; In re R.V. (2009) 171 Cal.App.4th 239, 248), and thus the ECPA inquiry is not a pure question of law because it involves reviewing the underlying factual record. (Cf. In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 [restriction on minor's travel to gang territory might be proper for a minor living outside the gang's territory but overbroad for a minor who lives, works, or attends school within that same area]; In re Antonio R. (2000) 78 Cal.App.4th 937, 941-942 [upholding probation condition requiring minor who lived in one county not to travel to another county, where criminal conduct at issue occurred and where his gang was located].) B. The Order Denying Reconsideration is Not a Subsequent Order Affecting Christian's Substantial Rights
Christian's second argument is that the juvenile court's order denying reconsideration affects his substantial rights and therefore is appealable as a subsequent order after judgment under section 800, subdivision (a). He apparently concedes that the use of the phrase "any subsequent order" in section 800 does not grant appellate jurisdiction over any and all orders entered after judgment, but only those that affect his substantial rights. (See In re Corey (1964) 230 Cal.App.2d 813, 822 [the phrase "subsequent order" means any order of a juvenile court after judgment which affects the substantial rights or the juvenile irrespective of whether the order declaring a person to be a ward of the juvenile court has become final]; In re Sarah L. (1974) 43 Cal.App.3d 88, 91; In re De Baca (1961) 197 Cal.App.2d 672, 674 [analogizing to Penal Code section 1237 to determine whether postjudgment juvenile court order recommending revocation of parole was appealable as an order affecting the juvenile's substantial rights].)
The premise of Christian's argument that the order affected his substantial rights is that his motion was one brought under section 775 and 778 to change, modify or set aside the juvenile court's dispositional order. Section 775 provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." Section 778 provides in part: "Any parent or other person having an interest in a child who is a ward of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order . . . ." (§ 778, subd. (a)(1), italics added.) Though "section 778 must be read in conjunction with section 775" (In re Corey, supra, 230 Cal.App.2d at p. 822), section 778 makes clear that a parent or child's petition or request must demonstrate a change of circumstance or newly discovered evidence to justify a modification or set aside. (See e.g., In re Joaquin S. (1979) 88 Cal.App.3d 80, 82, 85.) When a juvenile seeks to present changed circumstances or new evidence to set aside his judgment of wardship, the purpose of such a hearing is to determine whether such circumstances or evidence make some new or changed disposition desirable or necessary. Thus, "an order made after a hearing pursuant to section 778 is a proceeding after the original judgment and commitment substantially affecting the rights of the minor . . . ." (Corey, at p. 822.)
Here, Christian did not cite or purport to rely on either section 775 or 778 in his reconsideration motion. He neither verified the motion nor attempted to explain what circumstance or newly discovered evidence justified a change in his dispositional order as a section 778 petition unambiguously requires.
Christian's motion was in fact not based on changed circumstances or new evidence, but was simply one for reconsideration. This court and the majority of others hold that orders denying motions for reconsideration are not appealable. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 333, fn. 1; see also Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576-1577 [citing cases]; Morton v. Wagner (2007) 156 Cal.App.4th 963, 968-969 [citing cases]; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1550, fn. 2.) And Christian's motion raised Lent and constitutional arguments that could have been, but were not, raised on direct appeal from the February 24, 2016 dispositional order, which was itself appealable. (§ 800, subd. (a); In re Gerald B. (1980) 105 Cal.App.3d 119, 123; In re Timothy N. (1975) 48 Cal.App.3d 862, 867.) His hearing was not conducted "pursuant to section 778" (In re Corey, supra, 230 Cal.App.2d at p. 822) and thus did not affect his substantial rights. Under these circumstances, Christian could not extend the time for appeal by moving for reconsideration and attempting to appeal from the denial of rehearing. (In re Timothy N., at p. 867 ["an order denying a rehearing of a judgment finding a minor to be a juvenile described in section 602 had been held to be nonappealable. . . . The general rule is that unless the motion for rehearing involves entirely new, previously unlitigated issues, a party may not extend the time for appeal by moving for rehearing and attempting to appeal from the denial"]; see In re William C. (1977) 70 Cal.App.3d 570, 577 [where an appellant in a motion for rehearing merely seeks to review alleged errors committed at the disposition hearing, the appellate court may either dismiss the purported appeal from the order denying rehearing or, if the appeal would be timely from the dispositional order, construe the appeal as an appeal from the judgment]; In re Joe R. (1970) 12 Cal.App.3d 80, 83 [an order denying rehearing is not appealable], disapproved on other grounds by In re Robert G. (1982) 31 Cal.3d 437, 443-444; People v. Rick (1952) 112 Cal.App.2d 410, 412 ["An order made after judgment is not appealable where the motion merely asked the court to repeat or overrule a former ruling on the same facts"].) C. This Court Cannot Construe Christian's Motion as One Brought Under Section 778 , or His Notice of Appeal as An Appeal from the Juvenile Court's Dispositional Order
Christian points to December 2014 and December 2015 gang documentation reports attached to the People's opposition to his motion for reconsideration, as well as a January 16, 2016 certificate and February 10, 2016 letter, characterizing those documents as "new evidence that had not been before the court at the time of the initial disposition order." In deciding whether evidence is "new" within the meaning of section 778, we look to the "parallel" standard under section 388. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485 & fn. 2; Cal. Rules of Court, rule 5.570 [governing standards for petitions under both section 778 and 388].) The question is whether the evidence is "material evidence that, with due diligence, the party could not have presented at the . . . proceeding at which the order, sought to be modified or set aside, was entered." (In re H.S. (2010) 188 Cal.App.4th 103, 105 [addressing section 388, subdivision (a)]; see also In re D.B. (2013) 217 Cal.App.4th 1080 [same].) The new evidence must be something that was unavailable to the juvenile at the time of the hearing where the order was made. None of those documents meets that standard. The passage of the ECPA was not a changed circumstance, as that had occurred before Christian's February 24, 2016 dispositional hearing.
We acknowledge the People in their opposition below characterized Christian's reconsideration motion as a petition under section 778. But that characterization does not convert the reconsideration motion into such a petition. The nature of a motion is determined by its substance and the nature of relief sought. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193; see also Powell v. County of Orange, supra, 197 Cal.App.4th at p. 1577 [regardless of how a motion is labelled, a motion asking the court to decide the same matter previously ruled on is a motion for reconsideration].) Here, Christian sought reconsideration of the juvenile court's imposition of the probation conditions without at all purporting to seek relief on grounds of new evidence or changed circumstances, either procedurally or in substance. And his notice of appeal likewise states that he appeals the "denial of motion for reconsideration of dispositional orders made on February 24, 2016[,] regarding specific probation conditions."
Though the California Rules of Court provide that a section 778 petition for modification "must be liberally construed in favor of its sufficiency" (Cal. Rules of Court, rule 5.570(a)), it further states the petition "must be verified" and "must contain" the statement of any change of circumstance or new evidence that requires changing the order. (Cal. Rules of Court, rule 5.570(a)(7).) --------
Nor can the parties' characterization make the court's order denying reconsideration an appealable order. It is settled that jurisdiction cannot be conferred on the appellate court by the consent or stipulation of the parties, estoppel, waiver, or any other equitable consideration. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666; In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 116.) And this court will not deem a notice of appeal to be taken from an appealable order or judgment if it would be untimely, as Christian's May 27, 2016 appeal is here. (See In re William C., supra, 70 Cal.App.3d at p. 573 [the time limit for a juvenile appeal is 60 days from the applicable order]; compare In re Timothy N., supra, 48 Cal.App.3d at p. 867 [considering appeal from order denying rehearing as an appeal from the existing appealable judgment where it was timely as to that judgment].) " 'If it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal of its own motion even if no objection is made.' " (Hollister Convalescent Hospital, Inc., 15 Cal.3d at pp. 666-667; Estate of Hanley (1943) 23 Cal.2d 120, 123.) We do so here.
DISPOSITION
The appeal from the order denying reconsideration is dismissed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. NARES, J.