Opinion
H047069
05-12-2020
In re I.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. I.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 19JV000509)
I.R. appeals a probation condition allowing for the search of his electronic devices imposed by the juvenile court. Relying on the California Supreme Court's decision in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), issued a few weeks after his dispositional hearing, I.R. argues the probation condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad. We agree that on the record before us the condition is not reasonably related to I.R.'s future criminality. (See Lent, at p. 486.) We therefore strike the condition and remand the matter to the juvenile court for further consideration in light of the principles articulated in Ricardo P.
I. FACTS AND PROCEDURAL BACKGROUND
On May 23, 2019, the Monterey County District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that I.R. committed second degree robbery (Pen. Code, § 211).
Unless otherwise indicated all dates occurred in 2019.
A contested jurisdictional hearing occurred on June 17 and June 18. The evidence presented at the hearing reflected that around noon on May 22, when I.R. was 14 years old, he and several other minors stole cash from an ice cream vendor at a park in Salinas. Although the evidence revealed some level of coordination among the perpetrators, there was no evidence that the minors either communicated with each other or committed or planned the robbery using electronic devices. At the conclusion of the jurisdictional hearing, the juvenile court found true the allegation that I.R. committed second degree robbery.
Prior to the dispositional hearing, the probation officer submitted a report that recommended that I.R. be declared a ward of the court and returned to the custody of his mother on probation with conditions, including an electronics search condition. The probation report noted that I.R. had no prior criminal record. The report further included a statement from I.R. that he had met his cocompanions in the robbery that school year. They had gathered to "hang out" at the park on the day of the robbery, smoked marijuana, and discussed the robbery together. I.R. told the probation officer that "he will stop smoking marijuana and not associate with gang members" and "will follow his mother's rules, improve his grades in school, and be friends with better people." The probation report did not reference any use by I.R. of electronic devices. Nevertheless, the probation report recommended the juvenile court impose an electronics search condition.
The recommended electronics search condition, which the juvenile court adopted without modification, states: "32. Submit all electronic devices under your control to a search by the probation officer or a peace officer, of any text messages, voicemail messages, call logs, photographs, e-mail accounts, internet sites and social media accounts, with or without reasonable or probable cause or the benefit of a search warrant, at any time of the day or night and provide the probation or peace officer with any passwords necessary to access the information specified, and you will not change or add any email addresses or passwords without prior permission of your Probation Officer. The minor shall not knowingly clean or delete his/her Internet browsing history without prior permission from your Probation Officer."
In addition to the electronics search condition, the juvenile court imposed probation conditions prohibiting I.R. from associating and communicating with certain individuals, including the five individuals who had also been charged in the robbery or any "individuals identified to you by your Probation Officer as a threat to your successful completion of Probation." The court also imposed gang terms and conditions. I.R. does not challenge any of those conditions, and we therefore address only the electronics search condition.
On July 2 at the dispositional hearing, the juvenile court declared I.R. a ward of the court for a period of 24 months, placed him on probation, and adopted all of the terms and conditions of probation recommended by the probation officer, including the electronics search condition. Neither I.R. nor his counsel objected to any of the probation conditions.
There is no evidence in the record that I.R. owns a phone or any other electronic devices. At the dispositional hearing, the juvenile court made no findings about how imposition of the electronics search condition on I.R. furthers any of the purposes of wardship proceedings.
II. DISCUSSION
I.R. argues that the electronics search condition was unreasonable under Lent and is unconstitutionally overbroad as applied.
I.R. acknowledges that his counsel failed to object to the electronics search condition and argues that his counsel was thereby constitutionally ineffective. Generally, the failure to object to a probationary term forfeits a challenge on appeal unless it presents a question of law that can be resolved without reference to the particular factual sentencing record developed in the juvenile court. (See People v. Moran (2016) 1 Cal.5th 398, 403, fn. 5.) As there was no development in the juvenile court of facts supporting imposition of the electronics search condition and because Ricardo P. was issued a few weeks after the dispositional hearing here, we exercise our discretion to consider the merits of I.R.'s contention that the condition was unreasonable. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; In re Victor L. (2010) 182 Cal.App.4th 902, 928.)
A. General Legal Principles
By statute, probation conditions must be "reasonable." (Pen. Code, § 1203.1, subd. (j); Welf. & Inst. Code, § 730, subd. (b)). A reviewing court may not strike a probation condition as unreasonable 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." ' " (Ricardo P., supra, 7 Cal.5th at p. 1118; Lent, supra, 15 Cal.3d at p. 486.) This three-part test, commonly referred to as the Lent test, applies to juvenile and adult probation cases. (Ricardo P., at pp. 1118-1119.) We review the juvenile court's imposition of probation conditions for abuse of discretion. (Id. at p. 1118.)
In Ricardo P., the California Supreme Court addressed an electronics search condition imposed on a juvenile probationer who had admitted to participating in two felony burglaries where there was no evidence of the use of electronic devices. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The electronics search condition at issue in Ricardo P. required the juvenile probationer to submit all of his electronic devices and passwords to warrantless searches at any time. (Id. at pp. 1116-1117, 1122-1123.) According to the probation report, the juvenile told the probation officer he was not thinking when he committed the burglaries and had " 'stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly.' " (Id. at p. 1116.) Addressing a Lent objection, the juvenile court found the condition reasonably related to preventing future crime because " 'minors typically will brag about their marijuana usage . . . by posting on the Internet,' " and the juvenile's statement to the probation officer had " 'made reference to the fact that marijuana was involved in the commission of this offense.' " (Id. at p. 1117.)
In its review of the probation condition, the California Supreme Court focused its analysis on the third prong of the Lent test—whether the condition was reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court held that the third Lent prong requires a "degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) The court therefore rejected the argument that any search condition that facilitated supervision of probationers is necessarily reasonable. It observed this justification could support sweeping conditions, such as mandating that probationers wear 24-hour body cameras, that would not be reasonable because "the burden on the probationer would be disproportionate to the legitimate interest in effective supervision." (Id. at p. 1125.)
The California Supreme Court held that the electronics search condition imposed in Ricardo P. lacked the requisite proportionality because it was "far more burdensome and intrusive" than probation conditions it had previously found reasonable. (Ricardo P., supra, 7 Cal.5th at pp. 1124, 1126 [distinguishing electronics search condition from notification requirement in People v. Olguin (2008) 45 Cal.4th 375].) The court reasoned that the "sweeping" (Ricardo P., at p. 1122) electronics search condition imposed on the juvenile significantly burdened his "privacy interests" (id. at p. 1123) and thus "requires a correspondingly substantial and particularized justification." (Id. at p. 1126.) It stated "a juvenile court imposing such a condition must consider whether, in light of 'the facts and circumstances in each case' [citation], the burdens imposed by the condition are proportional to achieving some legitimate end of probation." (Id. at p. 1127.)
Applying this proportionality standard, the court found the record did not reflect a substantial and particularized justification for imposing the expansive electronics search condition. (Id. at p. 1124.) The court also addressed the justification used by the juvenile court that the electronics search condition was reasonable based on the juvenile court's observations that the minor probationer had used drugs and that minors in general typically bragged about drug usage by posting pictures on the Internet. (Id. at pp. 1122-1123.) The Supreme Court concluded that this "very limited justification" was insufficient to justify the "very heavy burden on privacy" imposed by the probation condition. (Id. at p. 1124.)
While the California Supreme Court made clear it was not categorically barring all electronics search conditions, it ruled that based on the record before it, the burden imposed by the electronics search condition on the juvenile's privacy was "substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Ricardo P., supra, 7 Cal.5th at pp. 1119, 1128.) It therefore struck the electronics search condition and remanded the case for further proceedings. (Id. at p. 1129.)
We turn now to whether the electronics search condition imposed on I.R. is unreasonable based on the standards articulated by the California Supreme Court in Lent and Ricardo P.
B. Analysis
The parties do not dispute that the electronics search condition satisfies the first two prongs of the Lent test, and we agree. The condition has no relationship to the second degree robbery charge of which I.R. was convicted. In addition, the condition relates to conduct which is not in itself inherently criminal, that is I.R.'s use of electronic devices. (In re Alonzo M. (2019) 40 Cal.App.5th 156, 164 (Alonzo M.).) Thus, as in Ricardo P., the issue in this appeal turns on the third prong of the Lent test: whether the condition " ' "requires or forbids conduct which is not reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Applying the standards articulated in Ricardo P. and Lent, we conclude that the electronics search condition is not reasonably related to I.R.'s future criminality. As in Ricardo P., the plain language of the condition is expansive and allows the probation officer to search I.R.'s electronic devices at any time without a warrant. Here, the record contains no explanation by the juvenile court of the need for the condition at all, let alone an analysis of how it relates to I.R.'s future criminality. Similarly, nothing in the probation report provides support for the condition. Given this silent record, the circumstances for striking the condition are even stronger than those in Ricardo P.
To the extent the juvenile court approved the condition because it would assist in monitoring I.R.'s compliance with other probation terms, we reject that justification as insufficient given the record here. The record contains no evidence that I.R. had access to any electronic devices or used such devices to communicate with his companions in the robbery or for any other reason.
While the Attorney General argues we may infer from the record that the minors communicated by phone, he does not identify any evidence upon which we can anchor such a conclusion. "[M]eaningful review requires more than speculation" as to what the juvenile court had in mind. (See Ricardo P., supra, 7 Cal.5th at p. 1124.) As stated by one court, "[m]ere convenience in monitoring a parolee's conduct, coupled with generic descriptions of how some people use cell phones, are not sufficient to render this burden on [juvenile's] privacy interests reasonable." (People v. Cota (2020) 45 Cal.App.5th 786, 791, petn. for review pending, petn. filed Apr. 28, 2020 (Cota).) We echo the California Supreme observation in Ricardo P.: "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today." (Ricardo P., at p. 1123.) We therefore strike the electronics search condition imposed on I.R. by the juvenile court as unreasonable and therefore invalid under Lent.
Because we decide that the electronics search condition is invalid under Lent, we do not reach I.R.'s claim that it is unconstitutionally overbroad. (See People v. Bryant (2019) 42 Cal.App.5th 839, 848, fn. 5, review granted Feb. 19, 2020, S259956.)
While we strike the condition, we do not foreclose the possibility that the juvenile court could impose a more narrowly tailored electronics search condition on I.R. with a more developed record. (See Ricardo P., supra, 7 Cal.5th at p. 1128; Alonzo M., supra, 40 Cal.App.5th at pp. 166-168.) In Alonzo M., for example, the First District Court of Appeal held that a juvenile court did not abuse its discretion in concluding "a properly drawn electronic search condition would help to ensure that [the juvenile] does not again succumb to the negative influences he blames for the criminal behavior that led to this wardship," (Alonzo M., at p. 167) where the record reflected that the juvenile court "made a reasoned, evidence-based finding that [the juvenile's] successful rehabilitation depends on avoiding negative social influences" and that the juvenile spent "a significant amount of his time using electronic devices." (Id. at p. 166.) However, the court in Alonzo M. remanded the case because the language in the condition was "too broad to survive scrutiny" following Ricardo P. (Id. at p. 167.) Similarly, in a subsequent decision, the First District Court of Appeal addressed an electronics search condition in a juvenile case related to a "stay-away order" and remanded the matter for further factfinding, emphasizing that in the particular circumstances of that case it would "see no abuse of discretion in the juvenile court imposing an electronic search condition to make sure that [juvenile] has no contact with [the individual she assaulted]." (In re Amber K. (2020) 45 Cal.App.5th 559, 567.)
The Attorney General requests, if we find the electronics search condition invalid, that this court narrow it to focus on ensuring compliance with the separate probation condition that forbids I.R. from contacting certain individuals. The Attorney General proposes the following modified probation condition applicable to I.R.'s electronic devices: "Any medium of communication, including social media, call logs, text messaging and email, on any electronic devices under your control is subject to search for the purpose of monitoring your compliance with the no-contact orders. You must turn over any passwords with respect to those means of communication and provide that information to law enforcement or any probation officer."
We decline the Attorney General's suggestion to modify the probation condition without any input from the juvenile court. The California Supreme Court in Ricardo P. affirmed the principle that the lower court is in the better position to determine appropriate probation conditions. (See Ricardo P., supra, 7 Cal.5th at p. 1124; see also In re David C. (2020) 47 Cal.App.5th 657, 655, fn. 4; Cota, supra, 45 Cal.App.5th at p. 791; Alonzo M., supra, 40 Cal.App.5th at p. 168.) The juvenile court here did not have the benefit of the guidance from the California Supreme Court's decision in Ricardo P., and the court did not engage in the factfinding necessary to fashion the most appropriate condition for I.R. given his circumstances.
We therefore strike the electronics search condition and remand the case for further consideration by the juvenile court.
III. DISPOSITION
The judgment (disposition order) is modified to strike the electronics search condition (condition no. 32). The matter is remanded to the juvenile court so that it may consider whether to impose an electronics search condition consistent with Welfare and Institutions Code section 730, subdivision (b), and the principles articulated in In re Ricardo P. (2019) 7 Cal.5th 1113. In all other respects, the judgment is affirmed.
/s/_________
Danner, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Bamattre-Manoukian, J.