Opinion
A153524 A154186
01-31-2020
In re ERIC B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ERIC B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J17-01017)
This case returns to us after the California Supreme Court granted review and transferred the matter back to this court with directions to vacate our prior decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). In our earlier opinion, we rejected appellant's claim that the electronics search condition imposed by the juvenile court was unconstitutionally overbroad and affirmed the judgment. Having vacated our prior decision and reconsidered appellant's challenge in light of Ricardo P., we conclude the electronics search condition imposed by the juvenile court sweeps too broadly because its impact on defendant's Fourth Amendment rights exceeds what is reasonably necessary to serve the government's legitimate interest in ensuring he complies with the terms of his probation based on the record before us. In addition, the parties have been unable to confirm whether appellant remains subject to probation. Accordingly, we will strike the electronics search condition and remand for the juvenile court to determine whether appellant is still on probation and, if so, whether the electronics search condition can be narrowed in a manner that will allow it to pass constitutional muster.
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises out of two juvenile cases that have been consolidated on appeal for purposes of briefing, oral argument, and decision. A. Case No. A153524
On September 23, 2016, the San Diego County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602), alleging appellant committed misdemeanor grand theft person (Pen. Code, § 487, subd. (c)). According to the police department, appellant had approached a woman riding a trolley, taken her cell phone from her hand by force and then taken her headphones. Appellant admitted the grand theft allegation.
On January 12, 2017, the San Diego County District Attorney filed a wardship petition alleging appellant resisted arrest (Pen. Code, § 148, subd. (a)(1)) and was a minor in possession of alcohol (Bus. & Prof. Code, § 25662, subd. (a)). When officers attempted to arrest appellant on December 11, 2016, he became " 'tense and rigid' " and attempted to pull away from them. Appellant admitted the resisting arrest charge and the possession of alcohol charge was dismissed.
On June 8, 2017, the San Diego County District Attorney filed a wardship petition alleging appellant committed petty theft. (Pen. Code, § 484.) On the afternoon of May 13, 2017, several students gathered near a trolley stop. At some point, the victim placed two cell phones on the ground and began fighting with another minor. While the victim was fighting, appellant stole both phones. Appellant admitted the allegation. The court subsequently transferred appellant's case to Contra Costa County for disposition.
On December 4, 2017, the San Francisco County District Attorney filed a juvenile wardship petition alleging grand theft person (Pen. Code, § 487, subd. (c); count I), grand theft of personal property (id., § 487, subd. (a); count II), battery on a peace officer (id., § 243, subd. (b); count III), and resisting arrest (id., § 148, subd. (a)(1); count IV). According to a Bay Area Rapid Transit (BART) police report, appellant "snatched" a cell phone from another person and ran down the BART platform to the escalators. Appellant was taken into custody. During processing at San Francisco Juvenile Hall, appellant kicked the cell door and slipped out of his handcuffs. When a sergeant entered appellant's cell to talk to him, appellant spat on the sergeant. Defendant admitted grand theft person and battery on a peace officer, and the remaining charges were dismissed. The juvenile court transferred appellant's case to Contra Costa County for disposition.
On January 16, 2018, the Contra Costa County Juvenile Court continued appellant as a ward of the court and placed him on probation with various conditions, including an electronics search condition. In imposing the electronics search condition, the court stated: "In light of the fact you have a tension [sic] for stealing electronic items, I am going to order you must submit your cell phone or any other electronic device under your control to a search of any medium of communication reasonably likely to reveal whether you are complying with the terms of your probation, with or without a search warrant at any time of day or night. Such medium of communication includes text messages, voice messages, photographs, e-mail accounts, Snapchat and Instagram." Defense counsel stated, "Your honor, I'm object to go [sic] the electronic search clause." The basis of the objection was not specified and there was no further discussion of the objection. At the hearing, the court ordered appellant to serve nine months in Orin Allen Youth Rehabilitation Facility (OAYRF), plus a 180-day conditional aftercare period. Appellant timely appealed the order. B. Case No. A154186
On February 5, 2018, the Contra Costa County District Attorney filed a notice of probation violation hearing (Welf. & Inst. Code, § 777), alleging appellant had violated probation by failing to obey rules of a county institution by refusing to participate in the OAYRF program. Appellant refused to follow directions, was disruptive, and used profanity in his classes at OAYRF. On March 20, 2018, the Contra Costa County District Attorney filed another notice of probation violation hearing. That petition alleged within a few hours of appellant returning to OAYRF from juvenile hall, he became defiant and disrespectful towards staff. At dinner, appellant attempted to intimidate an institutional officer by demanding and trying to take the officer's ice cream. Later, he imitated the officer in a racially derogatory manner. Appellant also made statements about absconding from the facility and told the supervisor he wanted to refuse his program. A short time later, appellant demanded he receive hygiene products from the commissary during showers. Appellant was directed to sit in a specific location, but he refused. He did not follow staff instructions to remain seated, became "openly defiant," and was handcuffed and transported to juvenile hall.
On April 2, 2018, appellant admitted violating probation. The juvenile court ordered appellant to serve 14 months in the county's Youthful Offender Treatment Program and ordered that prior orders of the court would remain in effect. Appellant timely appealed. C. Prior Decision and Subsequent Proceedings
In a nonpublished opinion filed June 7, 2019, we rejected appellant's contention the electronics search condition imposed as a term of his probation was unconstitutionally overbroad, and affirmed the judgment. Appellant filed a petition for review with the California Supreme Court.
On August 14, 2019, the Supreme Court granted review and deferred briefing pending consideration and disposition of related issues in Ricardo P. and People v. Trujillo (S244650).
On October 23, 2019, the Supreme Court transferred the matter back to this court with directions to vacate our prior decision filed June 7, 2019, and reconsider the cause in light of Ricardo P.
After we vacated our opinion, we requested supplemental briefing from the parties. The Attorney General filed a letter brief asserting because appellant should have completed his treatment program in August 2019 and it had "no direct proof" appellant was still on probation, we should dismiss the appeal as moot. Should appellant be able to establish he was still on probation, the Attorney General urged us to affirm our prior ruling that his overbreadth challenge was forfeited because he failed to raise it in the juvenile court. If it was unclear whether appellant was still on probation, the Attorney General asked us to remand to the juvenile court to make a finding. Finally, were we able to reach the merits, and if it was unclear whether the condition satisfied Ricardo P., the Attorney General asked that we vacate the condition and remand to the juvenile court to reconsider the electronics search condition in light of Ricardo P.
Appellant's counsel filed a letter brief the same day stating he learned from trial counsel that appellant is still on probation and had a juvenile court date scheduled for December 3, 2019. Appellant argued the matter was not moot, and urged us to address his claim on the merits. He argued the juvenile court imposed the electronics search condition to allow monitoring of whether appellant is continuing to steal cell phones, but noted the condition does not limit the type of data or social media that may be searched in light of this purpose and, accordingly, must be modified. Citing In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), which in turn was cited with approval by Ricardo P., supra, 7 Cal.5th at page 1129, appellant urged us to modify the electronics search condition to "limit authorization of warrantless searches of appellant's electronic device data and social media accounts unrelated to cell phone theft and permit searches only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information."
We filed an order noting we had received letters with conflicting information about whether appellant is currently on probation and directed the parties, if they were able to do so, to file proof of defendant's status in the form of a declaration or properly authenticated documentary evidence within 10 days. We stated absent such proof, we would decide the appeal as directed to do by the Supreme Court. Appellant did not file anything. The Attorney General filed a letter indicating it was unable to obtain such proof.
Accordingly, we reconsider the matter as directed by our Supreme Court.
II. DISCUSSION
Appellant's sole claim on appeal is that the electronics search condition is unconstitutionally overbroad in violation of the First and Fourth Amendments to the United States Constitution. In our prior opinion, we determined appellant forfeited an as-applied challenge by failing to object on that ground in the juvenile court, but we also addressed his claim on the merits, in part to avoid a petition for writ of habeas corpus on the ground of ineffective assistance of counsel. Because we conclude we would reach a different result on the merits after Ricardo P., we exercise our discretion to consider his claim. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
In Ricardo P., the Supreme Court considered whether an electronics search condition was reasonably related to the defendant's future criminality under the third prong of the Lent test. It explained there must be evidence in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history. (Ricardo P., supra, 7 Cal.5th at pp. 1120-1121.) Further, it held there must be a "a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) Though appellant does not challenge the reasonableness of the probation condition under Lent here, Ricardo P. is relevant to our inquiry because both the validity and constitutional overbreadth analyses "require a court to assess the relative burdens and benefits of probation conditions." (Id. at p. 1128.)
People v. Lent (1975) 15 Cal.3d 481 (Lent).
We find In re Alonzo M. (2019) 40 Cal.App.5th 156 (Alonzo M.), a recent case from Division Four of this court, helpful to our analysis. There, the court concluded an electronics search condition was permissible under Lent because the juvenile court had "made a reasoned, evidence-based finding that Alonzo's successful rehabilitation depends on avoiding negative social influences" and one of the conditions required him to stay away from coresponsibles and other people of whom his parents or the probation officer disapproved. (Id. at p. 166.) The court also noted there was evidence in the record that Alonzo "spends a significant amount of his time using electronic devices." (Ibid.) Nonetheless, the probation condition "used language too broad to survive scrutiny" because it was not limited to monitoring the company Alonzo keeps; rather, it authorized searches to reveal whether he was " 'complying with the terms of [his] probation' generally." (Id. at p. 167.) For example, the Alonzo court observed, it was not proper to search the minor's phone to determine his compliance with a requirement that he abstain from drug use because "the record discloses no connection between the probationer's use of electronics and his drug use or other criminality." (Id. at pp. 167-168.) Similarly, here, though the juvenile court imposed the condition because appellant had a tendency to steal cell phones, the probation condition allowed searches of his electronic devices to determine whether he was complying with his conditions of probation generally. And, as in Alonzo M., while there is some evidence appellant had used drugs in the past, there is nothing in the record to suggest a connection between cell phones or electronic devices and his drug use. Nor did the juvenile court cite that as a basis for the probation condition. Because the stated purpose of the condition was appellant's tendency to steal cell phones, the language permitting searches to see if he was "complying with the terms of [his] probation" was too broad.
If the juvenile court decides on remand to impose an electronics search condition, it must be both connected to appellant's criminal conduct or personal history, and narrowly tailored to the purpose of the condition. (See Ricardo P., supra, 7 Cal.5th at pp. 1120-1121, 1128-1129; Alonzo M., supra, 40 Cal.App.5th at p. 166.) While the electronics search condition as currently phrased is not sufficiently tailored to its stated purpose, it could be modified to limit authorization of searches to media of communication reasonably likely to reveal whether cell phones in appellant's possession are stolen, or whether appellant is continuing to engage in the theft of cell phones. (See, e.g., Malik J., supra, 240 Cal.App.4th at p. 902 [condition allowing officers to search cell phones to see if defendant was owner was reasonable in light of his history of stealing cell phones], cited with approval in Ricardo P., supra, 7 Cal.5th at pp. 1128-1129 [as an example of probation condition that reflects a proportional means of deterring the probationer from future criminality]; Alonzo M., at p. 168 [juvenile court could "impose electronic search condition that is more narrowly tailored to allowing search of any medium of communication reasonably likely to reveal whether [probationer] is associating with prohibited persons"].) We also acknowledge, as we discussed in our prior opinion, that appellant has a significant history of escalating criminal conduct and rules violations. Although the trial court did not rely on any of those facts in fashioning the original probation condition, we do not foreclose the possibility it could impose a narrowly tailored probation condition that allows searches calculated to monitor compliance with other terms of probation, if the record discloses evidence of a connection between the purpose of the probation term and appellant's offense or personal history. (See, e.g., Alonzo M., at p. 168, fn. 3.)
Without any discussion, appellant also asserts in his supplemental letter brief that we should modify the probation condition to "permit searches only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information," citing Malik J., supra, 240 Cal.App.4th at page 906. The imposition of that condition in Malik J., however, must be understood in the context of the appellate court's concern that information stored in a remote location "cannot be considered in the probationer's possession nor entirely within his or her control" and "may also implicate the privacy interests of third parties who are not otherwise subject to search or court supervision." (Id. at p. 903.) In light of appellant's failure to discuss these issues or raise any concern about possession and control of remotely stored information or third parties' privacy rights, we will not consider whether such a limitation is appropriate here.
III. DISPOSITION
The electronic devices search clause is stricken. We remand the case to the juvenile court to allow the trial court to determine (1) whether appellant is still on probation and (2) determine whether to impose a more narrowly tailored electronics search condition consistent with this opinion.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.