Opinion
2d Juv. No. B290330
01-13-2020
In re C.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.S., Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18JV-00064A)
(San Luis Obispo County) OPINION ON REMAND FROM SUPREME COURT
The San Luis Obispo County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) alleging two counts of possession of drug paraphernalia in violation of Health and Safety Code section 11364, subdivision (a). Appellant C.S. admitted one count and the other was dismissed. The juvenile court declared appellant a ward of the court and placed him on probation. One probation condition permits law enforcement to search appellant's electronic devices. Appellant challenges that condition, arguing it is invalid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) and constitutionally overboard.
In our original opinion in this appeal, we rejected both arguments and affirmed the juvenile court's decision. The California Supreme Court granted appellant's petition for review and deferred further action pending consideration and disposition of related claims in other cases. After issuing In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), the Supreme Court transferred the matter to this court with directions to vacate our prior decision and reconsider the cause in light of Ricardo P. We vacated our prior opinion filed May 30, 2019, and the parties submitted supplemental briefs pursuant to California Rules of Court, rule 8.200(b).
Ricardo P. held that an electronics search condition similar to the one imposed here "is not reasonably related to future criminality and is therefore invalid under Lent." (Ricardo P., supra, 7 Cal.5th at p. 1128.) The court struck the condition and remanded the matter to allow the juvenile court to consider whether to impose a condition that would be reasonable under Lent. (Ricardo P., at p. 1129.)
Appellant contends the electronics search condition in this case must be stricken pursuant to Lent and Ricardo P. The Attorney General concedes that issue, but contends the matter should be remanded to the juvenile court. Appellant does not object to a remand. We accept the Attorney General's concession and direct the juvenile court on remand to consider whether a narrower condition will comport with Lent and Ricardo P.
FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2017, an officer of the Grover Beach Police Department observed Irving Segura, a known gang member, sitting on a bench outside a restroom. Segura told the officer his friend was in the restroom. A short while later, appellant appeared with a backpack. The officer obtained consent to search the backpack and recovered a glass methamphetamine pipe with residue on it. Appellant claimed he found the backpack and denied the pipe belonged to him. The officer subsequently discovered the backpack belonged to appellant's brother.
On October 19, 2017, deputies from the San Luis Obispo County Sheriff's Department responded to a call regarding suspicious activity. Upon arrival, the deputies encountered appellant and Jordan Fairbairnhern. One of the deputies saw tin foil with burn marks on the ground next to appellant. Appellant and Fairbairnhern denied that the foil belonged to them. Appellant claimed the item came from a backpack he had recently found and emptied so he could place his own belongings inside. A search of the backpack revealed two methamphetamine pipes and a small plastic baggie. Appellant's mother later informed the deputies that appellant was a methamphetamine user and had recently been cited for the same offense.
Appellant admitted to a probation officer that he started smoking marijuana at age 13 and has smoked every day since then. He started using methamphetamine at age 16 and admitted to smoking about a half gram every day. He also has tried other drugs, including heroin. In addition, appellant admitted to being "popped in" to the Oceano 13 Street Gang. He displayed his gang affiliation through clothing and a tattoo.
Condition No. 22 of the juvenile court's probation order requires appellant to "[s]ubmit any electronic device, used to store or transmit digital information, that you own, possess or control, to a search of any source of electronic data identified below, at any time, with or without probable cause, by a peace officer, and provide the peace officer with any passwords necessary to access the data source specified." Sources of electronic data identified in the probation condition are limited to: text messages, voicemail messages, call logs, photographs, email accounts, social media accounts and internet browsing history. The order further states that the "rehabilitative and/or supervisory concerns addressed by this search term include the following:" "[d]rug/alcohol use or drug sales," "[g]ang related behavior" and "[a]ssociation with court ordered non-associates."
Defense counsel objected to this search term, arguing it was overbroad and that there was no evidence appellant used his electronic devices to facilitate his behavior and drug use. The juvenile court responded, "Well, initially with regards to the [electronic search condition], I am going to make that one of the orders. I agree, there may be nothing that we have specifically before us that indicates he uses his cell phone or other electronic devices to communicate with gang members or to purchase or sell drugs, but in this day and age it's just such a common experience. I'm not going to deny probation the right to look into those sorts of things when someone's on formal probation."
DISCUSSION
"'A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.'" (In re J.B. (2015) 242 Cal.App.4th 749, 753-754.) "The reasonableness and propriety of the imposed condition is measured not just by the circumstances of the current offense, but by the minor's entire social history." (Id. at p. 754.) "[C]ourts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense." (Ricardo P., supra, 7 Cal.5th at p. 1122.)
"Though broad, the juvenile court's discretion has limits." (In re Alonzo M. (2019) 40 Cal.App.5th 156, 164.) Under Lent, a probation condition "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 . . . .'" (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 condition of probation." (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)
In Ricardo P., supra, 7 Cal.5th 1113, the minor (Ricardo) was declared a ward of the court after he committed two felony burglaries. (Id. at p. 1115.) The juvenile court placed him on probation and imposed various conditions, including that he "'[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.'" (Id. at pp. 1116-1117.) Ricardo told a probation officer he committed the crime because he was not thinking and that he had stopped smoking marijuana because it interfered with his ability to think clearly. The juvenile court believed the electronics search condition was "'appropriate . . . particularly [for] minors or people that are [Ricardo's] age.'" (Id. at p. 1117.) It observed that "'minors typically will brag about their marijuana usage or drug usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana. It's a very important part of being able to monitor drug usage and particularly marijuana usage.'" (Ibid.)
On appeal, Ricardo challenged the legality of the electronics search condition. The Court of Appeal upheld the condition under Lent, but determined it was unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) Our Supreme Court granted review on whether the electronics search condition satisfied the third prong of Lent, i.e., whether it "'"requires or forbids conduct which is not reasonably related to future criminality."'" (Ricardo P., at p. 1119.)
The high court was skeptical about the juvenile court's inference that Ricardo was using drugs during the burglaries and the generalization that minors tend to brag about drug use on the Internet. (Ricardo P., supra, 7 Cal.5th at pp. 1119-1120.) But even accepting these premises, the court noted that cases "upholding probation conditions under Lent's third prong have involved stronger connections between the burdens imposed by the challenged condition and a probationer's criminal conduct or personal history." (Id. at p. 1120.) The third prong of Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) Nothing in the record suggested Ricardo had ever used an electronic device or social media to promote illegal activity. (Ibid.) The court concluded the condition is not valid under Lent's third prong "because the burden it imposes on Ricardo's privacy is substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Ricardo P., at p. 1120.)
Although the Supreme Court determined Ricardo's electronics search condition is invalid, it chose not to "decide whether there is sufficient basis in the present record to support the Court of Appeal's suggestion that the juvenile court, on remand, may restrict the condition to search of 'electronic information that is reasonably likely to reveal whether Ricardo is boasting about his drug use or activity, such as text and voicemail messages, photographs, e-mails, and social-media accounts.'" (Ricardo P., supra, 7 Cal.5th at p. 1124.) Nor did the court "address how the parameters of such a condition might be delineated." (Ibid.) Those issues are to be considered on remand. (Id. at p. 1129.)
Here, the parties agree appellant's electronics search condition must be stricken, and appellant does not oppose the People's request for a remand to allow the juvenile court to consider whether the condition could be modified to satisfy Lent. Given that Ricardo P. ordered a remand on facts less compelling than those presented here, which involve substantial illegal drug use and gang-related activity, we agree a remand is appropriate. (See Ricardo P., supra, 7 Cal.5th at p. 1129; In re Alonzo M. (2019) 40 Cal.App.5th 156, 168 [striking electronic search condition and remanding for trial court to consider whether to adopt a more narrowly tailored condition].)
Since we are striking the electronics search condition, we need not and do not address appellant's alternative argument that the condition is unconstitutionally overbroad.
DISPOSITION
The judgment (disposition order) is modified to strike the electronics search probation condition (No. 22). The matter is remanded to the juvenile court so that it may consider whether the electronics search condition could be narrowed to withstand scrutiny under Lent. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
YEGAN, J.
Charles S. Crandall, Judge
Michael L. Duffy, Judge
Superior Court County of San Luis Obispo
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.