Opinion
A165002
06-30-2023
In re Frank J., a Person Coming Under the Juvenile Court Law. v. FRANK J., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J2200065
Miller, J.
After defendant Frank J. and two friends led law enforcement officers on a high-speed chase in a stolen truck, defendant admitted committing misdemeanor counts of evading a peace officer and receiving stolen property and was adjudged a ward of the court and placed on probation. The terms of his probation included a comprehensive prohibition against associating or participating in a gang, including by social media, and an electronic search condition. Defendant does not challenge the so-called "gang terms" on appeal. The only issue in this appeal is whether the electronic search condition should be stricken as unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) or, in the alternative, whether it should be modified. The Attorney General agrees that the electronic search condition should be modified. We find no abuse of discretion in the court's imposition of an electronic search condition, but we will strike it and remand for the juvenile court to consider imposing a narrower electronic search condition.
FACTUAL AND PROCEDURAL BACKGROUND
We draw the facts from the probation department's summary of the incident. On February 2, 2022, law enforcement officers were pursuing the driver of an orange Toyota Tacoma truck whose driver was wanted for a carjacking. Officers later identified the driver of the truck as defendant; he had fled multiple police agencies for about 40 miles, sometimes driving at speeds of more than 100 miles per hour. When the vehicle eventually came to a stop, defendant exited the driver side. Two passengers also exited: a juvenile from the front seat, and an adult from the right rear seat. Officers located a black handgun in plain view behind the driver's seat on the floorboard. The gun, which was found to be loaded, had been reported stolen to the Atlanta Police Department. Officers found another loaded firearm (a Glock style handgun with one round in the chamber) behind the front right passenger rear pocket. Officers also found three cell phones and a black ski mask. The Richmond police confirmed the vehicle was stolen. Defendant was charged with a felony count of evading a police officer with willful and wanton disregard for the safety of persons and property, and ordered detained.
On February 14, 2022, the petition was amended, and defendant admitted committing misdemeanor counts of evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and receiving stolen property (Pen. Code, § 496d, subd. (a)).
On March 29, 2022, in advance of the scheduled disposition hearing, the probation department filed its report and recommendation. The report reviewed defendant's background, family, school and social life; it also contained a risk assessment that had been conducted by the probation department to determine defendant's needs. Using the Ohio Youth Assessment System, developed by the University of Cincinnati Corrections Institute, the probation department concluded that defendant had an overall "[m]oderate risk level for re-offense," but in some domains ("Peers and Social Support Network;" "Pro-Social Skills" and "Substance Abuse, Mental Health and Personality") scored at "high" risk. The probation officer expressed concern that defendant "may not have any pro-social peers or supportive adults to reference for guidance." Defendant had poor school attendance and was not doing well in school. In the current school year at the time of the probation office's report, of 94 school days in the year so far, defendant had 34 unexcused absences, 26 tardies, and 9 excused absences.
In its report, the probation department identified as a "major concern" the possibility that defendant is affiliated with a gang, despite his denial of gang associations. Defendant raps and produces music; the probation officer did an internet search and found YouTube videos of him rapping with a group that is a subset of a Richmond criminal street gang. The probation office assessed that defendant needs to be monitored to ensure he attends school regularly and does not associate with "antisocial peers," and to prevent him from "possibly committing another crime."
In a supplemental report filed on April 5, 2022, the probation department provided additional information from Richmond Police Department reports in 2021 supporting probation's assessment that defendant was either a gang member or associated with known gang members, including that he had appeared on an Instagram live feed with a street name profile, holding a Glock-style firearm toward the camera and displaying another firearm on the counter. The supplemental report also indicated that defendant admitted to having the contact number of a validated street gang member in his phone.
We do not describe this showing in detail because the gang terms that were imposed as part of defendant's probation are not challenged on appeal.
The probation department recommended that an electronic search condition was appropriate, "as the minor has posted himself with firearms on Instagram, a social media platform. He also used his cell phone to communicate with a validated criminal street gang member. A review of his electronic devices will allow Probation to better determine if he is complying with the terms and conditions of his probation, and if he is complying with the gang terms, should they be granted." (Italics added.)
At the disposition hearing on April 5, 2022, the court specifically addressed whether gang-related conditions and an electronic search condition should be imposed at terms of probation. The court admitted into evidence still photos of an Instagram video showing defendant brandishing a weapon, as described above.
The court heard argument from the parties. Defendant's attorney devoted the bulk of her argument to opposing the gang-related conditions; as to the electronic search clause specifically, she stated only, "I am objecting, under Lent and Ricardo P., to both the gang terms as well as the electronic search clause."
In setting the terms of probation, the court began by stating the legal standard for setting probation conditions for juveniles and enumerating the three so-called Lent factors, as discussed in Lent and as "later made clear from Ricardo P." The court summarized the evidence before it and concluded that "taking the gestalt of all the evidence that's currently before the court, there is a relationship to a gang condition and the crime and relevant conduct that goes along with it . . . which have been sustained against [minor] in this case."
The court further concluded that the search condition met "requirement three" under Lent, as a probation term that "is reasonably related to future criminality." The court found the term is "central if [minor] is to live through his teenage years and not be the victim of gun violence associating with any gang members. [¶] My primary concern here is not only the safety of the community but also [minor's] rehabilitation and his safety."
The court then imposed standard gang terms, which, broadly speaking, included that defendant not knowingly associate with gang members or associates; participate in any gang activity; visit or remain in any specific location known to be an area of gang-related activity; possess, display or wear any gang-related insignia or clothing or symbols or display any gang signs or gestures; and not "knowingly use, post, display or transmit any social media networking site or transmit via any electronic means, including all electronic communication device, whether it's his or someone else's, any symbols, graffiti, pictures, photos, drawings, lyrics, images, hand signs or gestures, or other items or information that [minor] knows to be, or that Probation informs [minor] to be, gang related," unless as part of a court-ordered or school-related educational paper that has been approved by the probation officer.
The court also imposed the electronic search condition recommended by the probation department: that defendant is to "submit his cell phone and any other electronic device under his control to a search of any medium of communication reasonably likely to reveal whether he is complying with the terms of his probation, with or without a search warrant, at any time [of the] day or night. Such medium of communication includes text messages, voice messages, call logs, photographs, email accounts, and other social media accounts and applications such as Snapchat, Instagram, Facebook and Kik." And defendant "shall provide access codes to the probation officer or any peace officer upon request to effectuate such search."
Defendant timely appealed from the disposition order.
DISCUSSION
Defendant argues on appeal that the electronics search condition is unreasonable under Lent because it lacks a sufficient nexus to preventing his future criminality. He asks us to strike the condition, or in the alternative, to modify it to "limit the types of device data or social media" that may be searched. The Attorney General argues that a search condition is appropriate in this case, and that we should remand the matter to allow the juvenile court to modify the condition so it is tailored to the legitimate rehabilitative interests that it serves.
Applicable Law
We presume the parties are familiar with the Lent factors and the legal standards that apply to probation in juvenile cases, and do not discuss them in any depth here. (See In re Amber K. (2020) 45 Cal.App.5th 559, 564-565 [summarizing the legal principles relevant to the review of probation conditions in juvenile cases].) Under Lent a condition of probation is not invalid unless it" '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.'" (Lent, supra, 15 Cal.3d at p. 486.) "Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid.) We review a condition of probation for abuse of discretion. (Ricardo P., supra, 7 Cal.5th at p. 1118.)
In Ricardo P., our Supreme Court discussed the Lent requirement of reasonable relatedness to future criminality in the context of an electronic search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) In Ricardo P., defendant admitted that he committed two felony burglaries. (Id. at p. 1116.) The probation conditions in that case included drug testing, prohibitions on using illegal drugs and alcohol, and prohibitions on associating with people who Ricardo knew used or possessed illegal drugs. (Ibid.) In addition, the juvenile court imposed a broad search condition that required Ricardo to submit to warrantless searches of his electronic devices. (Id. at pp. 1116-1117.) The juvenile court's stated reason for the search condition was to monitor whether Ricardo was communicating about drugs or with people associated with drugs, although the language of the condition was not so tailored. (Id. at p. 1117.) Putting aside its skepticism about the juvenile court's inference that Ricardo was using drugs when he committed the burglaries and its "generalization" that teenagers brag about drug use online, our Supreme Court held that in the absence of any evidence that electronic devices were connected to the commission of the burglaries or that the juvenile used them in connection with drug use or other criminal activity, the electronics search condition was invalid. (Id. at pp. 1119-1120.) The condition was not reasonably related to Ricardo's future criminality because the burden it imposed on his privacy was "substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Id. at p. 1120.) In Ricardo P. the Supreme Court did not hold that electronic search conditions were categorically invalid. (Id. at p. 1128.) The court recognized that, "[i]n certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Id. at pp. 1128-1129.) The Supreme Court affirmed the Court of Appeal's judgment striking the condition and directed that the matter be remanded to the juvenile court for further proceedings. (Id. at pp. 1128-1129.) In so doing, the Supreme Court in Ricardo P. did not reach the issue whether the record might support a narrower search condition, such as one limited to electronic information reasonably likely to reveal whether Ricardo was communicating about drugs, or how it might be phrased. (Id. at p. 1124.)
In In re Alonzo M. (2019) 40 Cal.App.5th 156 (Alonzo M.), our colleagues in Division Four applied the reasoning of Ricardo P. to an electronic search condition virtually identical to this one. In Alonzo M., the minor admitted felony grand theft and pleaded no contest to misdemeanor burglary. (Id. at pp. 160, 162.) By contrast to the "nebulous concern" about drug use in Ricardo P., the juvenile court in Alonzo M. made a "reasoned, evidence-based finding" that Alonzo's rehabilitation depended on avoiding "negative social influences." (Alonzo M. at p. 166.) One condition of Alonzo's probation, imposed without objection, was that Alonzo would stay away from his coresponsibles and from others of whom his parents or the probation officer disapprove. (Ibid.) To that end, the juvenile court imposed an electronic search condition, clearly stating at the disposition hearing that the purpose was to address Alonzo's "susceptibility to negative social influences," including the two coresponsibles. (Id. at p. 167.) However, the actual terms of the search condition reached beyond the stated purpose and authorized the search of any" 'medium of communication reasonably likely to reveal whether [Alonzo is] complying with the terms of [his] probation' generally."
(Ibid.) Since Alonzo had other probation conditions in addition to the no contact orders, such as requirements that he abstain from the use of drugs or alcohol, the search condition swept too broadly where the record did not show a connection between Alonzo's use of electronics and other terms of probation. (Id. at pp. 167-168.) The Court of Appeal thus remanded the matter for further proceedings so that the juvenile court could impose an electronic search condition "more narrowly tailored to allowing search of any medium of communication reasonably likely to reveal whether Alonzo is associating with prohibited persons." (Id. at p. 168.) The Court of Appeal recognized that in other cases, there might be justification for allowing the search of media of communications to monitor other probation conditions, depending upon the individual's misconduct or personal history. (Id. at p. 168, fn. 3.)
Analysis
Here, the juvenile court imposed terms of probation prohibiting defendant from having contact or associating with gang members, in the myriad ways spelled out in the probation terms and conditions. Defendant does not challenge the imposition of the gang terms on appeal, including the order that he not "use, post, display, or transmit on any social media networking site or transmit via any electronic means, including all electronic communication devices" any gang related material. Nor does defendant dispute the facts supporting the imposition of the gang terms, including the trial court's findings of his involvement with social media in connection with his gang association. And he does not dispute the juvenile court's conclusion that the gang condition is reasonably related to the "crime and relevant conduct that goes along with it" that were sustained against him, as well as to future criminality.
Defendant does not challenge the premise that a properly tailored electronic search term to monitor his compliance with the gang association condition is permissible as related to future criminality. For good reason: if he is barred from involvement with gangs, and barred from using social media in connection with gangs, an obvious way to monitor his compliance with that provision of probation is to permit the probation office to search his electronic devices.
The electronic search condition as imposed, however, referred generally to compliance with the terms of probation, without specifying which terms were at issue. The existing condition is therefore too broad under Ricardo P. and Alonzo M. The record is clear that the juvenile court imposed the electronic search condition at least in part to monitor defendant's compliance with the gang terms and unquestionably the electronic search condition is reasonably related to preventing future criminality insofar as the condition applies to monitoring defendant's compliance with the gang terms. But it does not follow that the condition must necessarily be limited to media related to gang association, as defendant suggests. That is because the record here may support the imposition of an electronic search condition in connection with other conditions of defendant's probation that bear on future criminality, such as the prohibition against possessing deadly weapons, and the orders that defendant have no contact or association with the coresponsibles and no association with disapproved individuals. Accordingly, we remand for the juvenile court to consider whether to adopt a revised electronic search condition.
We are unpersuaded by defendant's contention that any searches of his electronic devices should be permitted only after the device has been disabled from any internet or cellular connection and without using equipment designed to retrieve deleted information. Defendant supports his assertion with a citation to In re Malik J. (2015) 240 Cal.App.4th 896, but without any discussion of that case, which concerned a search condition that was justified by the defendant's history of robbing people of their cell phones and his claim that he did not himself own a cell phone. (Id. at p. 902.)
DISPOSITION
The disposition order is affirmed except the electronic search condition, which is stricken. We remand to the juvenile court to consider whether to impose a revised electronic search condition that is consistent with this opinion.
WE CONCUR: Stewart, P.J. Markman, J. [*]
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.