Opinion
A153863
04-05-2019
In re D.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.T., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J15-01228)
D.T. appeals from a dispositional order following her admission of a probation violation. On appeal, she challenges three conditions of probation, arguing that the conditions are both unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. The challenged conditions include (1) a condition prohibiting her from leaving Contra Costa County without the permission of her probation officer, unless she is accompanied by her mother; (2) a condition requiring that she live with her mother; and (3) a condition authorizing searches of her electronic devices. We conclude the condition prohibiting appellant from leaving Contra Costa County without the permission of her probation officer, unless she is accompanied by her mother, must be modified. We shall otherwise affirm the court's dispositional order.
BACKGROUND
On March 4, 2016, a juvenile wardship petition was filed against appellant, pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging felony grand theft of an automobile (Pen. Code, § 487, subd. (d)—count one); felony driving or taking a vehicle (Veh. Code, § 10851, subd. (a)—count two); misdemeanor disturbing the peace of a school (§ 415.5, subd. (a)(2)—count three); misdemeanor possession of 28.5 grams or less of marijuana at school (Health & Saf. Code, § 11357—count four); misdemeanor petty theft (§ 490.2—counts five and six); and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)—count seven). The allegations of the petition arose from an incident on February 26, 2016, in which a counselor at appellant's high school found that her cell phone, wallet, and keys were missing from a cabinet in her office. Video footage showed appellant entering the office while the counselor was not present and other footage showed appellant entering the counselor's car and driving away. Several days later, a school resource officer drove to appellant's residence and saw the stolen vehicle parked in the driveway. Appellant was arrested at the residence for possession of the stolen vehicle.
All further statutory references are to the Penal Code unless otherwise indicated.
On March 16, 2016, appellant pleaded no contest to count two, felony driving or taking a vehicle, and the remaining counts were dismissed. On March 30, appellant was adjudged a ward of the court and ordered to live with her grandmother.
On June 9, 2016, a supplemental wardship petition was filed against appellant, alleging felony vandalism (§ 594, subd. (b)(1)—count one), and felony grand theft of a person (§ 487, subd. (c)—count two). The petition was based on allegations regarding an incident in which appellant got angry at her grandmother's boyfriend and broke the side mirrors on her grandmother's vehicle and an incident in which appellant was caught stealing $1,000 worth of feminine hygiene products and make-up from a Walgreen's store.
On June 29, 2016, appellant admitted the allegations, which were reduced to misdemeanors. On July 13, the court continued appellant as a ward and placed her on home supervision.
On October 3, 2016, following a hearing, appellant admitted violating the conditions of her probation by possessing and using the substance "spice" in her grandmother's home and disobeying her grandmother's directive to report to probation. On October 14, the court placed appellant in the Girls in Motion (GIM) program.
On April 25, 2017, appellant was permitted to reside with her mother, and on July 10, the court set aside the GIM commitment. In June, appellant gave birth to a baby, and she and her baby were living with her mother.
On January 10, 2018, the Contra Costa County Probation Department filed a notice of probation violation, alleging that appellant had failed to "report police contacts" on January 1 and January 4; had left home without permission on January 1, at which time her whereabouts were unknown; had failed to adhere to her curfew; and had tested positive for THC on January 8. The January 1 police contact was alleged to have occurred when appellant was detained by San Rafael police for being in a vehicle with three men for purposes of prostitution. The January 4 police contact was alleged to have occurred when appellant vandalized her mother's residence and brandished two butcher knives, poking them at her mother and threatening to cut her.
On January 26, 2018, the court struck the allegations related to the police contacts on January 1 and 4, and appellant admitted the remaining probation violations. On February 9, the court continued appellant as a ward and committed her to GIM, subject to various terms and conditions.
On March 9, 2018, appellant filed a notice of appeal.
DISCUSSION
Appellant contends that three of the conditions of probation imposed by the juvenile court on February 9, 2018, were both unreasonable under Lent, supra, 15 Cal.3d 481 and unconstitutionally overbroad.
"When a minor is made a ward of the juvenile court and placed on probation, 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.' [Citations.] ' "In fashioning the conditions of probation, the . . . court should consider the minor's entire social history in addition to the circumstances of the crime." ' [Citation.] The court has 'broad discretion to fashion conditions of probation [citation], although 'every juvenile probation condition must be made to fit the circumstances and the minor.' [Citation.] We review the imposition of a probation condition for an abuse of discretion [citation], taking into account 'the sentencing court's stated purpose in imposing it.' [Citation.]
"A juvenile court's discretion to impose probation conditions is broad, but it has limits. [Citation.] Under Lent, which applies to both juvenile and adult probationers, a condition 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." ' [Citations.] 'This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' [Citation.]" (In re P.O. (2016) 246 Cal.App.4th 288, 293-294 (P.O.), citing Lent, supra, 15 Cal.3d at p. 486.)
"When a probation condition imposes limitations on a person's constitutional rights, [the court] ' "must closely tailor those limitations to the purpose of the condition" '—that is, the probationer's reformation and rehabilitation—' "to avoid being invalidated as unconstitutionally overbroad." ' [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 [probationer]'s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.] ' " 'Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.' " ' [Citations.]
"A probation condition imposed on a minor must be narrowly tailored to both the condition's purposes and the minor's needs, but ' " ' "a condition . . . that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of 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 . . . 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.]" ' [Citation.] Whether a probation condition is unconstitutionally overbroad presents a question of law reviewed de novo. [Citation.]" (P.O., supra, 246 Cal.App.4th at p. 297.)
I. Condition Prohibiting Appellant from Leaving Contra Costa County
Appellant contends the probation condition prohibiting her from leaving Contra Costa County without the permission of her probation officer, unless she is accompanied by her mother, is both unreasonable under Lent and unconstitutionally overbroad.
The challenged condition provides that appellant "not leave the county of Contra Costa without advanced [sic] permission of her probation officer unless she's actually with her mother."
The condition, as written, provides: "Minor may not leave the County of Contra Costa without advanced permission of probation and as long as she is accompanied by her mother."
Defense counsel initially objected to a proposed condition that appellant be ordered to stay away from the city and unincorporated areas of San Rafael on the ground that it was overbroad. The court then substituted that condition with the condition prohibiting her from leaving Contra Costa County and defense counsel objected to this condition on the ground that appellant might be 18 by the time she left the GIM program and there was tension between appellant and her mother, and that "to attach this to the condition that she's with her mother, I think is overly constrictive." Counsel also objected on the ground that "prohibiting traveling out of Contra Costa County is overly broad. That would include Alameda County, which is right next to and sometimes the county lines are difficult to discern. It would include Vallejo . . . ." The court responded that "[a]ll she has to do is get permission from probation first or be with her mom."
"Imposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release. [Citations.]" (People v. Moran (2016) 1 Cal.5th 398, 406 [affirming probation condition prohibiting defendant from entering premises or adjacent parking lot of any Home Depot store in California, given that appellant's crime took place at a Home Depot]; see also In re Antonio R. (2000) 78 Cal.App.4th 937, 941-942 [condition forbidding minor who lived in Orange County from traveling to Los Angeles County unless accompanied by a parent or had his probation officer's permission was reasonably related to minor's crime and future criminality as minor was a member of a gang located in Los Angeles County and had previously committed gang-related crimes there].)
In this case, unlike the relatively narrow travel limitations approved in Moran and In re Antonio R., in which the prohibited locations were both related to the minors' past crimes and future criminality, we conclude that the broad limitation on travel in the present case is unreasonable under Lent. (See Lent, supra, 15 Cal.3d at p. 486; P.O., supra, 246 Cal.App.4th at p. 294.)
In light of this conclusion, we do not reach appellant's constitutional claim. (See Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 671 ["Principles of judicial self-restraint . . . require us to avoid deciding a case on constitutional grounds unless absolutely necessary; nonconstitutional grounds must be relied on if they are available"].)
First, all of appellant's offenses and other misconduct appear to have taken place in Contra Costa County, except for the single documented prostitution incident, which took place in San Rafael. (See Lent, supra, 15 Cal.3d at p. 486; P.O., supra, 246 Cal.App.4th at p. 294.) Second, travel outside of Contra Costa County obviously relates to conduct that is not in itself criminal. (See ibid.) Third, the condition is not reasonably related to appellant's future criminality in that there was no suggestion that appellant was more likely to commit future crimes in other counties (again, excluding San Rafael). Indeed, any future criminal conduct appears most likely to occur in Contra Costa County, where appellant lives and attends school and where most of her misconduct has taken place. (See ibid.) Because all three prongs of the Lent test are satisfied, we conclude the probation condition as currently stated is invalid. (See ibid.)
That the probation condition contains a "safety valve," allowing appellant to travel outside of Contra Costa County with her probation officer's permission or accompanied by her mother, is not alone sufficient to save this extensive and unreasonable limitation on appellant's travel. (In re Antonio R., supra, 78 Cal.App.4th at p. 942.) In addition, the fact that our Supreme Court has stated that "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality' " (People v. Olguin (2008) 45 Cal.4th 375, 380-381), does not mean that any condition, no matter how broad it may be or how tenuous its relationship is to future criminality, is always reasonable under Lent or passes constitutional muster simply because it makes supervision easier.
We do find, however, that a condition barring appellant from traveling to San Rafael, where she was found in a car engaging in acts of prostitution with three men, is both reasonably related to appellant's prior and future criminality and narrowly tailored to promote appellant's rehabilitation. (See P.O., supra, 246 Cal.App.4th at pp. 293-294, 297.) We will therefore modify this condition to read: "The minor may not enter the City of San Rafael without advance permission of her probation officer unless she is accompanied by her mother."
II. Condition Requiring Appellant to Live with Her Mother
Appellant contends the probation condition requiring that she live with her mother is both unreasonable under Lent and unconstitutionally overbroad.
This condition provides: "Upon release from GIM, minor is to reside with her mother."
After defense counsel mentioned the tension between appellant and her mother and noted that appellant had initially been released to her grandmother, the court stated: "I know [G]randmother loves her very much, but I also believe, based on my review of this file, that Grandmother has been very permissive—and I don't mean that in a disparaging way to Grandmother—but I also think that there has not been sufficient structure and oversight of [appellant] when she's been with her grandmother. In fact, Grandmother has seemed to make excuses for [appellant's] behavior rather than being realistic about [her] behavior and how best to assist [her] in being successful. [¶] So for now, I'm going to order that upon her release she is to reside in her mother's home. . . . When counsel responded, "she would also be 18, and I think that—" the court interrupted: "Doesn't matter. She's a ward of the court, unless she's living in an apartment on her own."
Earlier in the hearing, when defense counsel had suggested that appellant could live with her grandmother, the court contrasted the grandmother's excessive permissiveness with appellant's mother, stating: "And in my review of the record, although there may have been issues with Mother's oversight of [appellant], I think Mom has actually tried very hard to set structure and expectations for [appellant], and [appellant] has been out of control for a significant period of time."
Counsel also told the court that the father of appellant's baby currently had custody of him, and appellant had had one visit with the baby. The court stated that if there were a change of circumstance such that the baby could be placed with appellant in a program in which appellant could complete her education, it believed that would be a good option.
Appellant argues that the condition requiring her to live with her mother "is unreasonable under Lent because there was no evidence of a connection between where appellant lived and her violations, and there is nothing inherently criminal about appellant's living with her grandmother, for instance instead of her mother." In support of this claim, appellant cites People v. Bauer (1989) 211 Cal.App.3d 937, 943-944, in which a panel of this Division struck a residence condition meant to prevent the 26-year-old defendant from living with his "protective parents," with whom he had lived his entire life. We found nothing in the record suggesting that the defendant's home life had contributed to his crimes of false imprisonment and assault or that living with his parents was reasonably related to future criminality. (Id. at p. 944.) We further found that the condition was unconstitutionally overbroad because it impinged on the defendant's right to travel and freedom of association, in effect, giving the probation officer "the power to banish him." (Id. at pp. 944-945.)
This case is plainly distinguishable from People v. Bauer, in which there was no evidence that the adult criminal defendant's home life had contributed to his crimes or was reasonably related to future criminality. Here, appellant acknowledges that, even after turning 18, she remains a ward, subject to juvenile court jurisdiction. Moreover, the record reflects the court's finding that appellant's grandmother—with whom appellant had lived in the past and with whom she wished to live after leaving GIM—had not provided sufficient structure or oversight of appellant, had been permissive, and had made excuses for appellant, none of which was helpful to her rehabilitation. The court further found that appellant's mother, while not perfect, had "actually tried very hard to set structure and expectations for [appellant]," who had "been out of control for a significant period of time." In light of the court's factual findings, its determination that it would be beneficial for appellant to live with her mother was reasonably related to appellant's rehabilitation and efforts to stop her delinquent behavior. (See Lent, supra, 15 Cal.3d at p. 486; P.O., supra, 246 Cal.App.4th at p. 294.)
Nor do we agree with appellant that the condition was unconstitutionally overbroad because "it was effectively a banishment from her grandmother's home, and violated [her] constitutional rights to free travel and association . . . ." Appellant is not precluded from seeing her grandmother or spending time at her home, or even from living on her own after turning 18. Rather, the court reasonably determined that, in light of appellant's repeated misconduct, she would have an improved likelihood of structure and stability and, therefore, rehabilitation, if she lived with her mother at this time, for the reasons set forth above. The condition was therefore narrowly tailored to appellant's current circumstances, and was not unconstitutionally broad as applied to her. (See In re G.B., supra, 24 Cal.App.5th at p. 469 ["A probation condition may reasonably restrict the constitutional rights to travel and freedom of association, so long as it reasonably relates to reformation and rehabilitation"]; compare, e.g., In re Babak S. (1993) 18 Cal.App.4th 1077, 1082-1083, 1085 [requirement that minor live in Iran for two years constituted de facto deportation, which impermissibly violated minor's constitutional rights]; People v. Bauer, supra, 211 Cal.App.3d at p. 944.)
We also observe that appellant may seek modification of this condition in the juvenile court. (Welf. & Inst. Code, §§ 775, 778; In re G.B. (2018) 24 Cal.App.5th 464, 471, fn. 3; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1141.)
III. Electronic Search Condition
Appellant contends the probation condition authorizing searches of her electronic devices is both unreasonable under Lent and unconstitutionally overbroad.
The challenged condition provides: "Submit all electronic devices under your control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts[,] and social media accounts, including Snapchat, Facebook, Instagram, with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified."
In imposing this condition, the court relied on a Contra Costa County Sheriff's Office report—which was not included in the probation report and apparently is not included in the record on appeal—that included, in the court's words, "significant description" of the San Rafael prostitution incident in which appellant had participated. The court stated that the report described appellant's "activity with the three men in the car in which she was located. She was clearly engaging in human trafficking activities with these men and admitted such.
"Also there's information provided that she may be working for an individual by the name of [C.H.]
"In light of that information in the report, I agree that an electronic search condition is appropriate in order to ensure [appellant's] safety and to ensure that she is complying with the terms and conditions of probation."
Other related conditions of probation include conditions that appellant "have no contact with [C.H.], either directly or indirectly through any third party by phone, by any electronic means" and that "all of [her] phone usage at juvenile hall must be very closely monitored to ensure that she's speaking with her mother, her grandmother[, her attorney, the paternal grandmother of her baby, or her baby]. But at no time shall she speak with anyone other than those people, and I want probation to ensure that's who she's speaking with." Another condition provides that appellant is "not to have any contact with anyone that you know to be disapproved of by your mother or by probation."
An electronic search condition, such as the one imposed here, may be reasonably related to future criminality in a particular case, even where the underlying offense is not directly tied to the use of electronic devices, when a minor's history and overall circumstances make it reasonable for the probation department to search electronic devices and/or internet activity to monitor compliance with conditions such as refraining from use of drugs (as in P.O., supra, 246 Cal.App.4th 288) or avoiding contact with specified individuals or prohibited locations. But if there is nothing in a minor's current offenses, criminal history, or personal circumstances demonstrating a predisposition to use electronic devices in connection with criminal activity, there is no basis for concluding an electronic search condition " 'will serve the rehabilitative function of precluding [the minor] from any future criminal acts.' " (In re Erica R. (2015) 240 Cal.App.4th 907, 913.) The condition thus must be reasonably related to future criminality in that it would be a reasonable means of deterring future crime by this particular minor, based on all the circumstances of this particular case. Moreover, a condition that authorizes searches of cell phones and electronic accounts accessible through such devices may be constitutionally overbroad if it is not limited to the types of data likely to further a minor's rehabilitation, such as whether the minor is complying with other conditions of probation. (P.O., at p. 298.)
In the present case, appellant did not object to the electronic search condition in the juvenile court. As a general matter, a defendant forfeits a reasonableness challenge to a condition of probation by failing to object on that ground in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 882, 883, fn. 4, 885.) The forfeiture doctrine does not apply to the failure to raise a constitutional challenge only if the challenge raises a pure question of law that can be resolved without reference to the sentencing record developed in the trial court. (Id. at p. 889.) Here, the constitutional challenge to the electronic search condition plainly does not involve a facial challenge, and would require a review of the sentencing record to determine whether the condition is overbroad as specifically applied to appellant.
Appellant observes that, despite the general rules regarding forfeiture, "an appellate court may review a forfeited claim—and '[w]hether or not it should do so is entrusted to its discretion.' " (In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) In the circumstances of this case, we decline appellant's request that we excuse his failure to object in the juvenile court, which would have allowed the juvenile court to more fully explore and explain the need for this condition. Moreover, the record reflects that there was additional evidence considered by the juvenile court, which is not included in the record and which would be necessary to a full review of the trial court's determination of the need for the condition. (See id. at pp. 882, 883, fn. 4, 885; accord, People v. Welch (1993) 5 Cal.4th 228, 236-237.)
Appellant next argues that counsel's failure to object to the electronic search condition constituted ineffective assistance of counsel. To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness. [¶] . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury).)
From what we are able to glean from the limited record on this issue, the court was concerned that appellant was working for a person named [C.H.], who the evidence indicated was responsible for appellant's involvement in human trafficking, including the conduct described in the record that took place with three men in a car in San Rafael. Indeed, one of the conditions of appellant's probation, to which no objection was made, was that appellant "have no contact with [C.H.], either directly or indirectly through any third party by phone, by any electronic means . . . ." This suggests that the details of the San Rafael case, not included in the record, raised concerns about appellant having contact with [C.H.], either directly or through others, through phone calls or other electronic methods, such as email or social media accounts. The brief discussion in the record further suggests that the court was concerned about appellant communicating with men through her electronic devices to arrange meetings for purposes of prostitution.
Considering that there is some evidence in the record suggesting that the electronic search condition was not overly broad and was reasonably related to appellant's past criminality and the need to keep her from continuing to interact with [C.H.] and from human trafficking activities—and that there was even more relevant evidence that was not included in the record on appeal—there plainly could be a "satisfactory explanation" for defense counsel's failure to challenge this condition. (Maury, supra, 30 Cal.4th at p. 389.) Appellant thus cannot demonstrate that counsel was ineffective. (See Strickland, supra, 466 U.S. at p. 688.)
Although the prostitution-related allegations had been stricken, the court was permitted to consider the underlying facts at disposition. (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1681 ["statutory scheme contemplates consideration of all available reliable, social and behavioral evidence bearing upon the minor's fitness" and minor can "have no reasonable expectation that conduct underlying dismissed allegations will not be looked to as a factor in deciding the appropriate placement"].)
Appellant argues that counsel's representation must be found inadequate because the law in this area is unsettled and there are conflicting court of appeal opinions, as well as a number of cases pending review in the Supreme Court on the issue of reasonableness of electronic search conditions. (See, e.g., In re Juan R. (2018) 22 Cal.App.5th 1083, 1089 & fn. 3 [citing cases in this District reaching different conclusions regarding electronic search conditions and cases in which Supreme Court has granted review on this issue], review granted July 25, 2018, S249256.) Many of these cases address whether the condition is valid if related only to preventing future criminality, with no "particularized tie between the minor's past conduct and the use of electronics." (Id. at p. 1091.) Again, because it appears from the limited record that the electronic search condition is reasonably related both to appellant's prior criminal conduct, as well as to future criminality, it would likely not be unreasonable under Lent. Moreover, the condition does not, as appellant argues, allow the probation officer to search, for example, private medical and banking records. Rather, it encompassed primarily electronic communications, including social media accounts. Appellant has not shown ineffective assistance of counsel in the circumstances of this case. (See Strickland, supra, 466 U.S. at p. 688; Maury, supra, 30 Cal.4th at p. 389.)
DISPOSITION
Probation condition No. 17 is modified to read as follows: "Minor may not enter the City of San Rafael without advance permission of her probation officer unless she is accompanied by her mother." As modified, the February 9, 2018 dispositional order is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.