Opinion
A150740
05-18-2018
In re E.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43103)
E.M. (Minor) appeals from an order of wardship (Welf. & Inst. Code, § 602) entered after the juvenile court sustained allegations that, when Minor was between the ages of 12 and 15, he committed three sex offenses against two daughters of his father's girlfriend, R.S. and K.M. The court placed Minor on probation, in the custody of his parents, under various terms and conditions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. All references to rules are to the California Rules of Court.
Minor, his father, his father's girlfriend, and the girlfriend's children all lived together at the time. R.S. is about a year younger than Minor. K.M. is about eight months older than Minor. Minor was not biologically related to R.S. or K.M.
On appeal, Minor contends reversal is required because (1) the juvenile court failed to meet its obligations under the deferred entry of judgment (DEJ) statutory scheme described in section 790 et seq.; (2) the juvenile court prejudicially erred in excluding Minor's father from the courtroom when the sisters testified during his jurisdictional hearing; and (3) the juvenile court's order sustaining the allegations of the petition lacked adequate evidentiary support. Minor also contends the juvenile court erred in imposing certain probation conditions. We shall reverse the disposition order and remand for further DEJ proceedings. We also strike certain of the probation conditions.
I. BACKGROUND
On August 10, 2015, the Solano County District Attorney filed a wardship petition alleging that Minor committed the following offenses against R.S. between May 1, 2015 and August 7, 2015, when Minor was 14 and R.S. was 13: attempted oral copulation of a person under the age of 14 (Pen. Code, §§ 664/288a, subd. (c)(1)) (count 1), and attempted forcible rape (id., §§ 664/261, subd. (a)(2)) (count 2). The same day, the district attorney filed a "DETERMINATION OF ELIGIBILITY, Deferred Entry of Judgment—Juvenile" form (DEJ eligibility form) confirming that Minor was DEJ eligible. A box on the form was checked, indicating that a " Citation and Written Notification for Deferred Entry of Judgment—Juvenile , Form JV-751" (JV-751 form) was attached. In fact, however, only the second page of the JV-751 form was attached. That page provided required notices describing DEJ procedures. (§ 791, subd. (a).) Although not attached in this instance, the first page of a JV-751 form ordinarily would order a minor and his or her "custodial parent, guardian, or caregiver" to appear at a hearing, on a specified date at a specified time, where the court would consider whether or not to grant a deferred entry of judgment.
The Attorney General does not contend that a first page actually existed and was left out of our otherwise complete appellate record as a result of inattentiveness.
On the court's own motion, we take judicial notice of form JV-751, available on the judicial branch's Web site. (<http://www.courts.ca.gov/documents/jv751.pdf> [as of May 18, 2018]; see In re Trenton D. (2015) 242 Cal.App.4th 1319, 1324, fn. 2 (Trenton D.).)
The day after the district attorney filed the wardship petition and DEJ eligibility form, on August 11, 2015, the juvenile court held a detention hearing. Minor was present, as was his mother. An attorney in the public defender's office accepted an appointment to represent Minor, and acknowledged receipt of the petition. After a quick discussion of other topics, the juvenile court judge and Minor's counsel had the following exchange: "THE COURT: . . . . The DA filed a DEJ eligibility form in this case, which Count One, it's obvious. Count Two surprised me a little bit, that that would be DEJ eligible. [¶] Do you know if that's correct?" "[Minor's counsel]: I don't know. I haven't received - - I saw the DEJ eligibility, but since today was only a detention hearing, I really haven't gotten that far, in terms of resolution, so I don't know." "THE COURT: Okay. I mean, maybe because it's a 664 that makes it somehow." "[Minor's counsel]: That actually may be right." "THE COURT: But it also may be that they can't make that count. I don't know based on what I read in the detention report, but you all may want to sort that out, which it's - - if you're going to do that, better sooner rather than later, right?" "[Minor's counsel]: Right." "THE COURT: Okay." "[Minor's counsel]: I'll make a note." The parties agree this was the only hearing in which the DEJ issue was discussed.
Minor's father was in custody. Minor's father subsequently was convicted on one felony count of child cruelty (Pen. Code, § 273a, subd. (a)), and was placed on probation until December 2019.
We take judicial notice of the fact that Penal Code section 664 is a general attempt statute.
Two weeks later, on August 25, 2015, the district attorney amended the petition, to allege in the first count that the attempted oral copulation had been forcible. (Pen. Code, §§ 664/288a, subd. (c)(2)(B).) On September 11, 2015, the district attorney amended the petition again to add count three, alleging that, between January 1, 2013 and March 27, 2014, Minor committed a lewd act upon K.M., then a child under the age of 14 (Pen. Code, § 288, subd. (a)).
Although the petition identified the victim as C.M., this appears to have been a typographical error and was corrected in a later court record.
Minor and K.M. were both 12 and 13 years old in that period.
Fifteen months later, on December 9, 2016, the matter was set for a contested jurisdictional hearing. Because the prosecutor had failed to subpoena the witnesses and did not have good cause for a continuance, however, the juvenile court granted the prosecutor's request to dismiss and refile the original and amended petitions without substantive change. The contested jurisdictional hearing commenced the following month, on January 13, 2017. The hearing continued and was completed on January 17, 2017. The prosecutor called the two sisters as witnesses. Minor called his aunt and the lead detective as witnesses. At the conclusion of the hearing, the juvenile court sustained counts two and three. The court also sustained a lesser included offense for count one, attempted forcible oral copulation in violation of Penal Code section 288a, subdivision (c)(2)(A).
There is a disagreement in the record about the date on which the juvenile court made its ruling. The court's minute order indicates this occurred on January 17, 2017. The electronic reporters' transcripts list the date as February 17, 2017 in the master index, and as January 11, 2017 on the cover page of the volume containing the relevant text. Because it was prepared and approved on the date of the hearing, we give greater credence to the court's minute order. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [where a conflict in the appellate record cannot be reconciled, "the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case"].)
Although R.S. stated her date of birth at the start of her testimony, the juvenile court judge mistakenly thought no evidence had been presented regarding her age, so declined to find that R.S. was under 14 at the time of the offense as would have been required under Penal Code section 288a, subdivision (c)(2)(B).
The dispositional hearing was held on February 28, 2017. In advance of the hearing, Minor was evaluated by a psychologist who rated him a low risk to sexually reoffend. Relying in part on this evaluation, the probation officer recommended probation. The probation officer reasoned that, although "extremely serious," the charged offenses represented Minor's first formal petition, and appeared to be a crime of opportunity, that Minor had remained offense-free in the community for almost two years since the charged events, had no reported behavioral issues, and was receptive and appropriate for community treatment.
The psychologist reported that, although the charged offenses involved worrisome allegations of sexual aggression and frequency, Minor had "no prior sexual offenses and [did] not present . . . as sexual[ly] preoccupied or hypersexual. He [did] not have anger problems, a history of conduct disorder, issues with aggression, or a background of school behavioral problems. . . . . [and had] been compliant with authority figures and with current court orders." Testing provided no evidence indicating Minor was "developing an antisocial personality disorder," the psychologist added, a diagnosis that in other cases suggested "a poor prognosis for rehabilitation."
The juvenile court concurred, and placed Minor on probation in the custody of his parents, imposing various terms and conditions. Among other things, Minor's probation conditions included the following: (1) Minor may not possess "any pornographic material, including accessing, downloading, or viewing internet pornography"; (2) Minor's "[c]omputer use limited to educational purposes" and "must be supervised by an adult"; (3) Minor may not engage in "interactive web sites including Facebook or any social networking [s]ites"; (4) Minor must submit his computer "and any means of electronic communication, such as cell phone, . . . to search and seizure"; and (5) Minor may not "have contact with juveniles under the age of 14", or be alone in the home with juveniles under the age of 14.
This timely appeal followed.
II. DISCUSSION
A. The Case Must Be Remanded For A Determination Regarding Minor's Suitability For Deferred Entry Of Judgment.
Minor contends reversible error occurred, requiring that the jurisdictional and dispositional orders be set aside, because his parents were not personally served with a properly completed JV-751 form, and the juvenile court never offered him a DEJ hearing. We agree that the DEJ statutory procedures were not followed.
1. The DEJ Statutory Scheme
The DEJ procedure is described in section 790 et sequitur, which is "part of the Gang Violence and Juvenile Crime Prevention Act of 1998 enacted with the adoption of Proposition 21 in March 2000. [Citation.]" (Trenton D., supra, 242 Cal.App.4th at p. 1322.) Under that statutory scheme, " 'in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a section 602 petition and waive time for the pronouncement of judgment. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed. (§§ 791, subd. (a)(3), 793, subd. (c).)' [Citation.]
"A juvenile is eligible for a DEJ if (1) the minor has not previously been adjudged a ward of the court for the commission of a felony offense, (2) the charged offense is not listed in section 707, subdivision (b), (3) the minor has not previously been committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, (4) probation has never been revoked for the minor without having been completed, (5) the minor is at least 14 years old, (6) the minor is eligible for probation under Penal Code section 1203.06, and (7) the charged offense is not rape or other specified sexual offenses. (§ 790, subd. (a).) The prosecuting attorney 'shall' review the file to determine whether the minor is eligible for a DEJ, and if the minor is found to be eligible, inform the court and the minor of the 'grounds upon which the determination is based' (§ 790, subd. (b)) by filing Judicial Council form JV-750 (Determination of Eligibility-Deferred Entry of Judgment-Juvenile). (Cal. Rules of Court, rule 5.800(b)(1).)" (Trenton D., supra, 242 Cal.App.4th at pp. 1322-1323.) It is undisputed that Minor was eligible for a DEJ and that the district attorney filed the necessary DEJ eligibility form.
Under section 791, subdivision (a), the prosecuting attorney's written notification to the minor must include specified information about the DEJ procedures. The required information is printed on the second page of the JV-751 form (Trenton D., supra, 242 Cal.App.4th at p. 1323), and the district attorney attached that second page to the DEJ eligibility form filed here. Additionally, under section 792, "[t]he judge shall issue a citation directing any custodial parent, guardian, or foster parent of the minor to appear at the time and place set for the [DEJ] hearing." The required citation is printed on the first page of the JV-751 form. (<http://www.courts.ca.gov/documents/ jv751.pdf> [as of May 18, 2018]; see also, Trenton D., supra, 242 Cal.App.4th at p. 1324.) The citation must be personally served on the custodial adult "at least 24 hours before the time stated for the appearance." (§ 792; rule 5.800(c).) As previously noted, the first page of the JV-751 form was not included with the DEJ eligibility form filed here; nor is there any indication in the record that a citation was served on Minor or his parents.
"Once the threshold determination of eligibility is made, the juvenile trial court has ultimate discretion to rule on the minor's suitability for DEJ. [Citation.]" (In re C.W. (2012) 208 Cal.App.4th 654, 660 (C.W.).) Suitability for DEJ is within the court's discretion if it concludes the minor "would benefit from education, treatment, and rehabilitation efforts." (§ 790, subd. (b); see also, Martha C. v. Superior Court of San Diego County (2003) 108 Cal.App.4th 556, 561 [The non-codified section of the proposition that added the DEJ statutes expressed "a strong preference for rehabilitation of first-time nonviolent juvenile offenders"].) "Under appropriate circumstances, the court may summarily grant DEJ to the minor. [Citation.] If the court does not summarily grant DEJ, it must conduct a hearing at which it must 'consider the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by the child or other interested parties.' [Citation.] It is the mandatory duty of the juvenile court to either grant DEJ summarily or examine the record, conduct a hearing, and determine whether the minor is suitable for DEJ, based upon whether the minor will derive benefit from 'education, treatment, and rehabilitation.' [Citations.] While the court is not required to grant DEJ, it is required to 'follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.' [Citation.]" (In re D.L. (2012) 206 Cal.App.4th 1240, 1243-1244, fn. omitted (D.L.).)
2. Analysis
Minor's counsel acknowledged on the record at the detention hearing that she knew the district attorney had filed the DEJ eligibility form. There is no evidence in the record, however, that the juvenile court issued the required citation, setting a specific date and time for a hearing to consider the topic. Nor is there any evidence Minor's parents were personally served with notice—or notified in any manner—either that there would be a DEJ hearing on a specified date, or that a DEJ hearing could lead to the eventual dismissal of the charges levied against their son. (§§ 790-792; see rule 5.800(c) [the entire JV-751 form—i.e., the citation and the required notices describing the DEJ procedures—must be personally served on the custodial adult].) The fact that Minor's mother—but not his father—may have heard the unexplained acronym "DEJ" uttered twice at a hearing held four days after her 14-year-old son was detained in juvenile hall for the first time, neither qualified as notice about DEJ procedures nor excused the juvenile court from complying with its "mandatory duty . . . to either grant DEJ summarily or examine the record, conduct a hearing, and determine whether [Minor was] suitable for DEJ." (D.L., supra, 206 Cal.App.4th at p. 1243.)
The D.L. decision is instructive here. The district attorney there filed a determination of DEJ eligibility form, along with both pages of the required JV-751 form. (D.L., supra, 206 Cal.App.4th at p. 1242.) Although, unlike here, the citation page of the JV-751 form was attached, it had not been filled out to provide notice of a specific date on which the juvenile court would conduct a hearing to consider the minor's DEJ suitability. (Ibid.) The same day, the probation officer filed a report concluding the minor was eligible but not suitable for DEJ. (Ibid.) Two weeks later, following a settlement conference, at the minor's request, the juvenile court set dates for a trial readiness conference and a contested jurisdictional trial. (Id. at pp. 1242-1243.) On the eve of the contested jurisdictional trial, without a hearing, the juvenile court found the minor was eligible but not suitable for DEJ and confirmed the trial date. (Id. at p. 1243.) The minor appealed, contending the juvenile court erred in failing to hold the required DEJ hearing, and the Court of Appeal agreed. (Ibid.)
Under appropriate circumstances, the Court of Appeal observed, the juvenile court may summarily grant DEJ to a minor. (D.L., supra, 206 Cal.App.4th at p. 1243.) If it does not do so, however, the Court of Appeal noted, "it must conduct a hearing at which it must 'consider the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by the child or other interested parties.' (Rule 5.800(f).)" (Ibid.) "It is the mandatory duty of the juvenile court to either grant DEJ summarily or examine the record, conduct a hearing, and determine whether the minor is suitable for DEJ." (Ibid.)
"The juvenile court is excused from its mandatory duty to hold a hearing," the Court of Appeal acknowledged, "if, after receiving notice of eligibility for DEJ, the minor nonetheless rejects DEJ consideration by contesting the charges. [Citations.]" (D.L., supra, 206 Cal.App.4th at p. 1244.) In other cases, where the minors were notified of their DEJ eligibility, suitability hearings were set, and the minors then denied the allegations of the petitions before the scheduled suitability hearings, the Court of Appeal noted, "the minors removed themselves from consideration for DEJ, because DEJ requires the minor to admit the allegations of the petition. [Citations.]" (Id. at pp. 1244-1245.) In contrast, in D.L., the Court of Appeal observed, "[a]lthough [the minor] was given notice of his eligibility for DEJ and that a hearing would be held on [that] matter, he was not given notice of when that hearing would take place. Nor did the [juvenile] court indicate at any of the ensuing hearings that the subject of [the minor's] suitability for DEJ was under consideration." (Id. at p. 1245, italics added.) "Accordingly, [the minor] did not have a full and fair opportunity to request DEJ in lieu of jurisdictional and dispositional hearings," the court concluded; "[n]or did [he] have the opportunity to present any evidence he might have had." (Ibid.) Because the minor was "deprived of the opportunity for a hearing and deprived of fundamental procedural rights," the Court of Appeal determined, reversal was compelled. (Ibid.; see also, Trenton D., supra, 242 Cal.App.4th at pp. 1321-1322, 1325-1327 [setting aside the juvenile court's jurisdictional and dispositional findings and its dispositional order and remanding for further proceedings that complied with the DEJ statutory scheme because: the (first) citation page of the JV-751 form issued there contained no information about a scheduled DEJ hearing; the (second) notice page was not attached; and there was no evidence the form was properly served].)
We reach the same conclusion here. Although Minor, through his counsel, had notice of his DEJ eligibility, there is no indication he or his parents were notified that a hearing would be held on that matter. The juvenile court did not summarily grant DEJ or hold a hearing to consider "the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by [Minor] or other interested parties." (Rule 5.800(f); see also, §§ 790, subd. (b), 791, subd. (b), 792.) Minor therefore was denied "the opportunity for a hearing and deprived of fundamental procedural rights," requiring reversal. (D.L., supra, 206 Cal.App.4th at p. 1245.)
Attempting to avoid this result, the Attorney General succinctly argues that "[t]he record . . . establishes . . . [Minor] wished to contest the charges," and that cases reversing on similar facts are distinguishable. We are unpersuaded. The Attorney General does not develop the first argument or explain his conclusion; instead he simply cites various parts of the record confirming "no resolution was reached" before the jurisdictional hearing, i.e., Minor did not agree to admit the charges. The Attorney General's own record citations confirm, however, that Minor's counsel conveyed at least one offer to the district attorney early in the case and only sought a date for a contested jurisdictional trial about a year later, in August 2016. These facts do not establish that Minor was determined to fight the charges at all costs or that he would have refused to admit the charges, after consulting with his parents, if all three had been properly notified that the charges might thus be dismissed and that a DEJ hearing had been properly scheduled to consider the issue. The Attorney General cites no case law indicating that a minor's decision to contest the charges filed against him, a year after the petition was filed, when no hearing on the minor's suitability for DEJ ever had been noticed, excuses the juvenile court's failure to fulfill its mandatory duty of considering that issue. (D.L., supra, 206 Cal.App.4th at p. 1244.)
Nor does the Attorney General's effort to distinguish the cases supporting Minor's position convince us that a different result is required here. While the procedural flaws at issue were not precisely identical, in each of the three cases that the Attorney General attempts to distinguish, the Court of Appeal concluded a juvenile court must " 'follow specified [DEJ] procedures and exercise discretion to reach a final determination [regarding DEJ suitability] once the mandatory threshold [DEJ] eligibility determination is made.' " (D.L., supra, 206 Cal.App.4th at p. 1244; C.W., supra, 208 Cal.App.4th at p. 662; see also Trenton D., supra, 242 Cal.App.4th at pp. 1325-1326 [reaching the same conclusion without reciting the same language].) As those cases confirm, a juvenile court is only excused from considering an eligible minor's suitability for DEJ if the minor has been properly notified that he or she is eligible, a DEJ hearing has been scheduled, and the minor nonetheless rejects DEJ consideration by contesting the charges. (Trenton D., supra, 242 Cal.App.4th at pp. 1325-1326; C.W., supra, 208 Cal.App.4th at pp. 660, 662; D.L., supra, 206 Cal.App.4th at p. 1245.) Because this did not occur here, we set aside the juvenile court's findings and dispositional order and remand the case for further proceedings that comply with the statutory scheme. (Trenton D., supra, 242 Cal.App.4th at p. 1327.)
B. Probation Conditions
Our decision in the prior section obviates the need for us to address Minor's other contentions regarding the merits. In the interests of judicial economy, we think it appropriate, however, to address Minor's challenges to his probation conditions, because the juvenile court could impose the same conditions even if it grants Minor DEJ.
Probation conditions in DEJ cases are governed by section 794. Under that section, a juvenile court judge may impose any condition authorized by the Welfare and Institutions Code "that the judge believes would assist in the education, treatment, and rehabilitation of the minor and the prevention of criminal activity." (§ 794.) " ' " '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.]" (In re D.H. (2016) 4 Cal.App.5th 722, 727 (D.H.).) Below we consider Minor's challenges to certain of his probation conditions.
1. "Pornography" Prohibition
The juvenile court imposed a probation condition prohibiting Minor from possessing, accessing, downloading, or viewing internet "pornography." Citing the decision of our colleagues in Division One, D.H., supra, Minor contends this condition is unconstitutionally vague. Minor also asserts that the condition is unconstitutionally overbroad, impermissibly impinging on his First Amendment rights without serving any valid purpose. He urges us to strike it. The Attorney General does not agree the probation condition is overbroad, but does agree that it is vague under D.H., and asserts that we should remand the matter to the juvenile court with directions to modify the condition, so that it more precisely defines the prohibited material. For example, the Attorney General suggests, the juvenile court might replace the word "pornography" with the term "obscene material," as the latter is legally defined.
We agree that the condition is unconstitutionally vague and we will strike it. In doing so, we rely on the reasoning of D.H., which we quote here: "Although a juvenile court thus has broad discretion to fashion probation conditions, ' "[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." [Citation.] "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions.' " [Citation.]' " (D.H., supra, 4 Cal.App.5th at p. 727 [" 'We review vagueness claims de novo' "].) " '[A] probationer cannot reasonably understand what is encompassed by a blanket prohibition on "pornography" ' because '[t]he term itself is entirely subjective; unlike "obscenity," for example, it lacks any recognized legal definition.' [Citation.]" (Id. at p. 728.) " '[R]easonable minds can differ greatly about what is encompassed by "pornography." ' " (Ibid., quoting United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 872 (per curiam).)
As Division One did in D.H., we direct the juvenile court to modify the condition "to define more precisely the material the court intends to prohibit." (D.H., supra, 4 Cal.App.5th at p. 729.) In doing so, as in D.H., "[w]e suggest that . . . the [juvenile] court carefully consider what purpose this condition is intended to serve, as it is far from clear to us how restricting [Minor's] access to any materials that might be considered pornographic will help him avoid the behavior he exhibited in committing his offense or aid more generally in his rehabilitation." (Ibid.; see id. at p. 724 [minor was declared a ward of the court and placed on probation after admitting he committed indecent exposure on a bus, where he exposed himself, masturbated, and ejaculated semen that landed on a victim's clothing].)
Because we strike the pornography probation condition on this ground, we need not consider Minor's additional contention that the condition was overbroad. Nothing we say, however, is intended to prevent defendant from raising this point in any further proceedings. If the juvenile court ultimately concludes that it will aid Minor's rehabilitation to impose a modified version of the condition, it must "closely tailor" the modified condition to its purpose (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.)), and must use language that is sufficiently precise for Minor " 'to know what is required of him.' " (D.H., supra, 4 Cal.App.5th at p. 727.) Although we do not here decide the issue, we question whether simply replacing the word "pornography" with the term "obscene material," as the Attorney General suggests, will suffice to provide Minor a " 'fair warning' " (ibid.), as the legal definition of that term is complex. (See, e.g., In re Martinez (2013) 216 Cal.App.4th 1141, 1153 ["defining what is obscene is a notoriously difficult task"]; Pen. Code, § 311 [" 'Obscene matter' means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value"]; Cal. Code Regs., tit. 15, § 3006, subd. (c)(15)(A).)
2. Limitation On Computer And Internet Usage
Minor also contends the probation condition limiting his computer and Internet usage—by requiring adult supervision and restricting him to "educational" activities while on the computer, and prohibiting his use of "interactive web sites including Facebook or any social networking [s]ites"—is unconstitutionally overbroad because it impermissibly impinges on his First Amendment rights.
"When a probation condition imposes limitations on a person's constitutional rights, it ' "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.]" (In re P.O. (2016) 246 Cal.App.4th 288, 297 (P.O.).)
Minor's claim is that the probation conditions restricting his computer and Internet usage infringe upon his First Amendment rights. "A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more." (Packingham v. North Carolina (2017) 582 U.S. ___, 137 S.Ct. 1730, 1735.) The United States Supreme Court, addressing a different issue, recently observed that, today, the Internet—"and social media in particular"— is "the most important place[] (in a spatial sense) for the exchange of views." (Ibid.) "Social media offers 'relatively unlimited, low-cost capacity for communication of all kinds.' [Citation.]" (Ibid.) "[S]ocial media users employ these websites to engage in a wide array of protected First Amendment activity on topics 'as diverse as human thought.' [Citation.]" (Id. at pp. 1735-1736; see also, id. at p. 1737 ["convicted criminals . . . might receive legitimate benefits" from using social media as a "means for access to the world of ideas"].) First Amendment protections also extend to interactive Internet sites such as video games, which, the U.S. Supreme Court in a different case observed, "communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)." (Brown v. Entertainment Merchants Ass'n (2011) 564 U.S. 786, 790.) California courts have "recognized the increasing importance of computer and Internet access [citation], and have held that restricting such access impacts First Amendment rights [citations]." (In re M.F. (2017) 7 Cal.App.5th 489, 494 (M.F.).)
We agree with Minor that the probation conditions prohibiting him from using a computer except with adult supervision and for educational purposes, and prohibiting him from using any interactive or social networking sites, constitute a restriction on his freedom of speech because they interfere with his ability to communicate through the Internet and via other electronic devices, such as a cell phone. (See, e.g., M.F., supra, 7 Cal.App.5th at p. 495.) We also agree that the restrictions are not narrowly tailored to the compelling state interest in Minor's rehabilitation. Minor's offenses here, while serious in nature, did not involve use of a computer or the Internet. The probation officer advised that the offenses "appear[ed] to be a crime of opportunity," which occurred during face to face interactions, while Minor was living in difficult and chaotic circumstances with his father, his father's girlfriend, and the girlfriend's daughters (the victims, R.S. and K.M). According to the probation officer, this was Minor's first wardship petition; he "remained offense-free in the community" for "almost two years" after the petition was filed; and he was not viewed "as a serious risk to . . . community safety." By the time of the dispositional hearing, Minor was living in a church-provided apartment with his father.
Minor told probation he lived in at least 15 different places in the last 14 years, including homeless shelters and hotels. K.M. testified that she, her four siblings, and her mother would share hotel rooms with Minor, Minor's father, and Minor's younger brother, and that she (K.M.), Minor, and other children would sleep together on the floor.
To address Minor's "sexual offending behavior," the probation officer recommended—and the juvenile court ordered—that Minor complete mandatory sex offender treatment and other counseling. The court also ordered Minor to have no contact with his victims, observe a curfew, and complete 100 hours of volunteer work. These probation conditions appear to be related to the circumstances of Minor's crimes and appropriately tailored to his rehabilitation. The conditions restricting his computer and Internet usage, on the other hand, do not appear to be closely connected to the circumstances of his crimes and there is no basis in the record to conclude they would serve a rehabilitative purpose.
The Attorney General asserts that the probation condition restricting Minor's Internet usage is not overbroad because the juvenile court authorized probation to modify the condition, for example, by giving Minor specific permission to use social media. The argument does not address the fact that the restriction on Minor's Internet usage was not closely tailored to the purpose of ensuring his reformation and rehabilitation, where his offenses were entirely unrelated to computers or the Internet. (Compare with M.F., supra, 7 Cal.App.5th at pp. 492, 495-496 [upholding probation condition barring the minor from using electronic devices to access the Internet and texting where evidence established he "routinely used the Internet to obtain information about guns and how to hide them, [and] other information that could assist him in planning and carrying out" the charged offense, making criminal threats].) Even if this were not the case, we agree with Minor that the order allowing probation to modify the condition was impermissibly overbroad in that it was "entirely open-ended," providing no standard to guide probation. (In re Victor L. (2010) 182 Cal.App.4th 902, 919 [while "a court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer," " 'the court's order cannot be entirely open-ended' "; it must contain a " 'standard by which probation is to be guided' "], quoting People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359 [probation condition forbidding the defendant from associating with persons designated by his probation officer improperly gave the probation officer discretionary power without any limits and without a meaningful standard].)
Although, in People v. O'Neil, supra, 165 Cal.App.4th at p. 1358, fn. 4, the court observed that "[c]onditions of juvenile probation may confer broader authority on the juvenile probation officer than is true in the case of adults," we do not think it extends so far. (See, e.g., In re Debra A. (1975) 48 Cal.App.3d 327, 330 [juvenile court may not delegate to probation officer discretion to determine place of detention].)
The Attorney General also contends the condition restricting Minor's computer and Internet usage is justified because Minor is a sex offender, sex offenders are a serious threat, and the condition enables the probation officer to ensure Minor complies with another probation condition, which prohibits him from having contact with children younger than 14. The Attorney General cites the prosecutor's argument that social networking Internet sites would be a place where a person could make such contact. We are unconvinced.
Again, while Minor's offenses here were serious in nature, the probation officer advised that he was "not viewed as a serious risk to the community safety." The evaluating psychologist reported that: Minor did not present "as sexual preoccupied or hypersexual"; there was no evidence supporting specified diagnoses that could increase his potential to reoffend; there was no evidence suggesting he was "developing an antisocial personality disorder"; he did not have "anger problems, a history of conduct disorder, issues with aggression, or a background of school behavioral issues." Rather, the psychologist reported, Minor was "a polite, likeable" teenager, who had an "at-best chaotic family environment," but had been "compliant with authority figures and with current court orders." Although there is no indication his computer and Internet usage were restricted, the probation officer reported Minor lived in the community without reoffending for almost two years after the petition was filed. Further, the probation officer reported Minor's offenses appeared to be "crime[s] of opportunity," and we agree as they occurred in a period when Minor was living in close quarters with girls who were close to him in age but not family members. There is no evidence Minor's computer or Internet usage contributed to the offense conduct in any way or created problems in the two years afterward. There is no basis to presume, therefore, that restrictions on such conduct were necessary to ensure he did not reoffend, and no basis to conclude the restrictions were appropriately tailored to his needs or social history.
For these reasons we will strike the probation conditions requiring adult supervision of Minor's computer usage, restricting his computer usage to educational purposes, and prohibiting him from engaging in interactive web sites including Facebook or any social networking sites.
3. Electronics Search Condition
Minor contends the juvenile court also erred in imposing an electronics search condition. The condition requires Minor to allow warrantless searches of his "[c]omputer and [of] any [other] means of electronic communication, such as [a] cell phone." In his opening brief, Minor urges us to follow the approaches adopted by other divisions of this court and strike the condition. He cites In re Erica R. (2015) 240 Cal.App.4th 907, 910-911 (Erica R.), for example, in which Division Two struck a similar condition as invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), and In re J.B. (2015) 242 Cal.App.4th 749, 756-757 (J.B.), in which Division Three struck an electronics search condition as both invalid under Lent and unconstitutionally overbroad.
Minor acknowledges that the California Supreme Court has granted review in several juvenile cases involving the validity of electronic search conditions, including In re Ricardo P., review granted February 17, 2016, S230923. As described in the Supreme Court's "Pending Issues Summary" (last updated May 18, 2018), the issue presented there is whether the trial court erred "by imposing an 'electronics search condition' on the juvenile as a condition of his probation when that condition had no relationship to the crimes he committed but was justified on appeal as reasonably related to future criminality . . . because it would facilitate the juvenile's supervision?" (Pending Issues Summary, California Supreme Court (May 18, 2018) <http://www.courts.ca.gov/documents/MAY1818crimpend.pdf> [as of May 18, 2018].) If a probation condition "requires or forbids conduct which is not reasonably related to future criminality," it is invalid under Lent. (Lent, supra, 15 Cal.3d at p. 486.) Minor observes that In re Ricardo P. is fully briefed, is awaiting oral argument, and conceivably might have been decided before his case. Perhaps for that reason, in his opening appellate brief, he does not specify whether this court should strike the electronic search condition here as invalid under Lent or unconstitutionally overbroad or both.
In his reply brief, however—responding to the Attorney General's arguments that the electronic search condition was both valid under Lent and constitutional in its breadth—Minor clarifies his position. He asserts that the "ultimate question" is whether the electronic search condition was sufficiently tailored to avoid constitutional overbreadth. Answering that question in the negative, he distinguishes the cases the Attorney General cites on the question of constitutional overbreadth, observing that the probationers in those matters used their electronic devices to commit their offenses. In contrast, Minor asserts, because he never used an electronic device in communicating with R.S. or K.M., the electronics search condition imposed here is not sufficiently tailored to the goal of ensuring his specific rehabilitation and, therefore is unconstitutionally overbroad. We agree.
As previously noted, when a juvenile court imposes a probation condition limiting a young person's constitutional rights, it " ' "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.]" (P.O., supra, 246 Cal.App.4th at p. 297.) As Minor points out, in Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473 (Riley), the U.S. Supreme Court recognized that an individual's constitutional right to privacy extends to his or her cell phone and electronic accounts. (Id. at p. 2490 [cell phones contain "a digital record of nearly every aspect of [their owners'] lives—from the mundane to the intimate"]; see also, People v. Appleton (2016) 245 Cal.App.4th 717, 725 [discussing privacy interest in electronic devices].) Accordingly, the electronics search condition here necessarily impinges on Minor's constitutional privacy right.
We agree with the Attorney General that Riley does not compel a ruling striking Minor's electronic search probation condition, as the Court there addressed a different question, namely, "whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested." (Riley, supra, 134 S.Ct. at p. 2480.) Nonetheless, Riley's discussion of the implicated privacy interests is relevant. (See id. at pp. 2489-2491, 2495-2496.)
The Attorney General contends that the condition is both appropriate in scope and necessary, because it allows monitoring of Minor's compliance with his other probation conditions. For example, the Attorney General elsewhere points out, while on probation, Minor has been directed to have no contact with R.S. or K.M., or with anyone under the age of 14, to observe computer and Internet limits, and to refrain from using or possessing illegal drugs or alcohol. By being able to search Minor's electronic devices, the Attorney General suggests, probation can ensure Minor observes these limits.
Minor responds that this argument would justify imposing an electronic search condition in every case in which standard probation conditions—such as the directive to refrain from use of controlled substances—are imposed. We agree. Neither the argument, nor the condition it is offered to support, is closely tailored to this probationer. (See, e.g., Alex O. v. Superior Court (2009) 174 Cal.App.4th 1176, 1181 [" 'to survive constitutional scrutiny, [probation] conditions . . . must be narrowly drawn and specifically tailored to the individual probationer' "].) " 'Courts have recognized that a "minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor." ' [Citation.]" (J.B., supra, 242 Cal.App.4th at p. 756.)
Although, when a minor is permitted to participate in the DEJ procedure, the judge, in certain circumstances, "shall" impose a probation condition subjecting the minor to "warrantless searches of his or her person, residence, or property" (§ 794), the statute mandating that search condition cannot reasonably be read to extend to electronic devices. (See U.S. v. Lara (9th Cir. 2016) 815 F.3d 605, 610-611 [defendant's agreement to submit his person and property, including any container within his control, to search, did not unambiguously include cell phone data]; People v. Sandee (2017) 15 Cal.App.5th 294, 306 ["it is reasonable after the [Electronics Communications Privacy Act (Pen. Code, § 1546 et seq.)] to interpret a general search condition in a probation order to exclude a search of the probationer's electronic data unless the search condition specifically states otherwise"]; In re I.V. (2017) 11 Cal.App.5th 249, 254, 262 ["[r]easonably construed," probation condition requiring minor to submit his "property" and "any property under [his] immediate custody or control" to search "applies only to tangible physical property, and not to electronic data"].) If, on remand, Minor elects and the juvenile court grants a DEJ, the court will be required to impose conditions of probation consistent with the statutory scheme and with the standards set forth in this opinion.
Here, there is nothing in the record suggesting a connection between Minor's use of electronic devices and either the charged offenses or his future criminality. Nor is there a basis for concluding that strict monitoring of such devices is needed to ensure Minor's rehabilitation, as the probation officer stated in the dispositional report that Minor had remained offense-free in the community for almost two years by the time of the dispositional hearing. There was no indication Minor was using controlled substances, was attempting to contact R.S. or K.M., or was otherwise engaged in conduct that would violate his probation conditions. The requirement that Minor submit his electronic devices for search, therefore, is overbroad and must be stricken. (J.B., supra, 242 Cal.App.4th at pp. 756-757.)
The Attorney General's contention to the contrary relies on distinguishable case law. The Attorney General cites In re Q.R. (2017) 7 Cal.App.5th 1231, review granted April 12, 2017, S240222 (Q.R.), and People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210 (Nachbar), for example, in which courts rejected constitutional overbreadth challenges to electronics search probation conditions. (Q.R., supra, at pp. 1236-1237; Nachbar, supra, at p. 1130.) In both cases, however, as the courts noted, the probationers had used their electronic devices to perpetrate their offenses. (See Q.R., supra, at pp. 1233, 1236 [minor admitted charges of possessing child pornography and extortion after recording photographs and video of his consensual sexual activity with another minor, and then demanding money from that minor, threatening to disclose the recordings to others]; Nachbar, supra, at pp. 1124-1125, 1130 [defendant used social media and text messaging to establish a relationship with his 15-year old victim, and tried to watch a movie with her on a cell phone, before committing the offense to which he later pled guilty, unlawful sexual intercourse with a minor more than three years younger].)
The Attorney General also cites In re J.E. (2016) 1 Cal.App.5th 795, review granted October 12, 2016, S236628, in which this division rejected a constitutional overbreadth challenge to an electronics search probation condition. That case also is distinguishable, however, because, as this court observed, the minor there "had a constellation of issues requiring intensive supervision," leading the juvenile court to conclude that the electronics search condition was " 'critical' " for his rehabilitation. (Id. at p. 801.) The juvenile court made no comparable finding here. And the Attorney General makes no argument that Minor's circumstances were comparable. Our review of the record indicates they were not. While Minor's school performance was not stellar, his father offered that this had more to do with Minor's significant medical problems. Minor had no reported issues with drugs, no comparable school behavior issues, no history of possessing weapons, and no gang affiliations. Although his home life previously had been unstable, the probation officer reported that his father had secured residency in church-provided housing and was himself participating in treatment.
Among other things, the minor in In re J.E.: had "deep-seated issues with drugs"; "struggle[d] with school attendance and grades"; was suspended and reprimanded for behavioral issues, "including bringing a weapon to school, having gang graffiti inside his locker and elsewhere in its vicinity, and swearing at his school's principal and staff"; had a prior association with Norteño gang members; and had an "unstable home life," (In re J.E., supra, 1 Cal.App.5th at p. 802), an apparent reference to the minor's " 'difficult' relationship with his mother after previously residing with his grandmother" (id. at p. 798).
Minor reportedly had leukemia as a child, and received chemotherapy, which caused nerve damage to one leg, and compromised his immune system, delaying bypass heart surgery, which he still required.
4. Prohibition Against Living With Anyone Under 14
Finally, Minor challenges the probation condition the juvenile court imposed directing that Minor not be left unsupervised in the home with children who were younger than 14.
At the dispositional hearing, before the juvenile court judge ruled, Minor's counsel offered the following comments about this condition (listed in paragraph number three of the probation officer's disposition report), and a related condition the probation officer recommended, prohibiting Minor from having contact with children younger than 14 (listed in paragraph two of the same report): "Then with reference to No. 2, the Minor is not to have contact with juveniles under the age of 14. I would ask that there be some adult supervision or parental supervision, which I guess, No. 3 kind of covers. [¶] With that, I would submit, your Honor."
After further argument on other points, the juvenile court judge adjudged Minor to be a ward of the court, granted probation, and imposed various conditions. When the judge reached the condition here in question, she asked whether any children younger than 14 "would be in the home?" Minor answered affirmatively, referencing a baby girl whom the probation officer had reported sometimes visited, because the couple who lived with Minor and his Father in a shared duplex sometimes babysat her. The juvenile court judge responded by cautioning Minor that he could not "be alone with any children in the house without the permission of [his] probation officer, and specific permission through the sex offender counsel[or]."
Minor's counsel then asked whether Minor could accept a job at a local trampoline park. Acknowledging that children of all ages frequented that business, but reasoning that Minor would have adult supervision while at work, the judge agreed, with the caveat that both Minor's probation officer and his sex offender counselor must approve. As the hearing was concluding, Minor's father then asked Minor's counsel a question, which counsel posed to the court. Minor had a brother, who was then 13 years old, counsel advised the court, and Minor's father wanted to know whether Minor "could be live home [sic] with his brother." The juvenile court judge responded, "[Y]ou shouldn't do that. That is contrary to the probation orders." Minor's counsel responded, "All right," "[t]hank you," and the hearing then ended.
Minor now contends it was unreasonable under Lent to impose a probation condition precluding him from living with his younger brother or with any person under the age of 14. Additionally, Minor contends, it violates his constitutional due process right to live together with his family to bar him from living with his younger brother. The Attorney General responds that Minor forfeited the first argument by failing to object before the juvenile court that the condition was unreasonable. Minor's constitutional argument is also meritless, the Attorney General contends, because there is no evidence Minor's brother lived with Minor and his father, and the juvenile court in any event did not preclude him from doing so.
We agree with the Attorney General that Minor forfeited his right to contest the reasonableness of the probation condition under Lent. Given an opportunity to do so at the dispositional hearing before the juvenile court ruled, Minor's counsel specifically addressed both of the conditions that probation had recommended, restricting Minor's future contact with children younger than 14, and in doing so, only requested that supervised contact be allowed. Minor's counsel did not object that it was unreasonable to restrict Minor from being alone in his home with anyone younger than 14. Nor did he raise any objection later in the hearing, when the juvenile court told Minor he could not be alone in the house with a child unless both his probation officer and his sex offender counselor agreed. When, at the end of the hearing, the juvenile court confirmed the limit extended to Minor's brother, Minor's counsel again did not object, stating only, "All right. Thank you." Because he did not challenge the reasonableness of the condition before the juvenile court, he forfeited it. (See Sheena K, supra, 40 Cal.4th at p. 885 [it is appropriate to apply the forfeiture rule "to appellate claims involving . . . unreasonable probation conditions . . . because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a . . . probation condition"].)
This forfeiture rule generally does not apply to a facial challenge to a probation condition as unconstitutionally vague or overbroad, since such a challenge may present a pure question of law, "easily remediable on appeal by modification of the condition." (Sheena K., supra, 40 Cal.4th at pp. 888-889.)
We are unpersuaded by Minor's argument that the issue is not forfeited because the juvenile court ruled abruptly, leaving counsel little chance to react. The disposition report stated on the third page that Minor had a 13-year-old brother, and Minor's counsel confirmed he read the report. Minor's counsel had multiple opportunities to address the condition during the dispositional hearing, and to argue that it was unreasonable, either as it applied to the baby who occasionally visited the home or to Minor's brother. He did not do so. We do not see the judge's ruling at the conclusion of the hearing as abrupt, particularly when read in context. Nor do we see any reason that Minor's counsel should be excused from objecting at that point, as the issue was neither subtle nor difficult to grasp, and the judge had patiently entertained all prior arguments.
We also do not agree that Minor has carried his burden to show that the probation condition violated his constitutional due process rights. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1211 [the defendant bears the burden of establishing a constitutional violation].) Minor concedes there is nothing in the record indicating he and his younger brother actually lived together at the time the juvenile court imposed this condition. The original detention report advised that Minor and his brother lived with their mother, but that Minor later moved to live with their father. The disposition report advised that Minor and his father shared a duplex with a married couple, but did not indicate that Minor's brother also lived with them. Further, Minor and his father reportedly told the probation officer Minor was never home alone unsupervised. This indicates that, even when Minor's brother visited, an adult was present, presumably the father or a member of the married couple. The assertion is credible because Minor had a heart condition, which his father reported " 'could be life-threatening,' " and " 'could cause a heart attack.' "
Read in context, therefore, the probation condition merely confirmed the status quo, namely, that Minor and his brother could visit with each other with adult supervision. Additionally, as the Attorney General points out, if the probation officer and Minor's sex offender counselor agreed, they could visit without adult supervision. Finally, although it is not clear the condition restricted the amount of time Minor could spend with his brother, to the extent it had such an effect, it would have been relatively brief, as the brother by now must be 14. Although we agree with Minor that it is questionable whether offenses he committed against girls who were close to him in age but not related to him by blood or marriage justified a probation condition restricting his future contact with very young children, boys his age, or family members, Minor has not carried his burden of proving the condition was unconstitutionally overbroad as it applied to his relationship with his brother. (See, e.g., U.S. v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, 1092 [probation condition that interferes with constitutionally protected liberty interest in familial association is not necessarily invalid].)
The disposition report did not give the brother's birthday but confirmed that, in February 2017, he was 13.
Although Minor relies on U.S. v. Wolf Child, supra, as supporting his constitutional argument, it is distinguishable as the probation condition imposed there was much broader in scope and would have applied much longer. (See U.S. v. Wolf Child, supra, 699 F.3d at pp. 1087, 1098, 1101 [probation condition among other things precluded defendant from being in the company of any child under the age of 18 without prior written approval of a probation officer for 10 years following his 7-year term of incarceration].)
III. DISPOSITION
We set aside the juvenile court's findings and dispositional order. The matter is remanded for further proceedings under Welfare and Institutions Code section 790 et sequitur and California Rules of Court, rule 5.800, including notice to Minor and his custodial parent, guardian, or foster parent of his eligibility for deferred entry of judgment. If Minor elects a DEJ, the juvenile court shall exercise its discretion about whether to grant him a DEJ. If, as a result of those proceedings, the juvenile court grants Minor a DEJ, it shall issue an order vacating the findings and orders, and shall impose probation conditions that are not inconsistent with this decision. If the juvenile court denies a DEJ, it shall reinstate the jurisdictional and dispositional orders, but it shall strike the following probation conditions, which were included on page five of the February 28, 2017 dispositional order: (1) "Minor shall not possess any pornographic material, including accessing, downloading, or viewing internet pornography"; (2) "Computer use limited to educational purposes and must be supervised by an adult"; (3) "Minor shall not engage in interactive web sites including Facebook or any social networking [s]ites"; (4) "Computer and any means of electronic communication, such as cell phone, subject to search and seizure"; and (5) "PO discretion to permit access to/For computer use."
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.