Opinion
A155127
10-21-2019
In re J.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.C., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J18-00678)
Appellant J.C., born August 2001, appeals from the juvenile court's dispositional order following sustained allegations that he committed a burglary and a robbery. We affirm the court's placement of appellant at the Orin Allen Youth Rehabilitation Facility (OAYRF), but we remand for modification of the juvenile court's electronic search probation condition.
PROCEDURAL BACKGROUND
In July 2018, the Contra Costa County District Attorney filed an amended petition under section 602, subdivision (a) of the Welfare & Institutions Code alleging that appellant had committed first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) and attempted robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664). The juvenile court sustained the allegations.
All undesignated statutory references are to the Welfare & Institutions Code.
In August 2018, following a contested dispositional hearing, the juvenile court adjudged appellant a ward of the court and committed him to OAYRF for a period of nine months, "plus an additional 180-day conditional Ranch Aftercare period." The court also imposed various probation conditions.
FACTUAL BACKGROUND
On April 20, 2018, Salvador Vazquez Gutierrez returned home from work to discover that a number of checks were missing from his bedroom. The checks, payments to his gardening service, totaled over six thousand dollars. Cash was also missing, and various drawers had been rummaged through. An officer identified the burglar as appellant based on video from the victim's security system.
On the evening of July 9, 2018, 16-year-old Juan R. was riding BART home at approximately 9:30 p.m. He noticed appellant sitting with two other males and, as Juan recalled, appellant "stared at me and they started looking at one another. They started making signs to each other and I started feeling insecure." Juan let appellant and the others leave the train first and waited for a "minute or two" before leaving the BART station. Juan left the station and started walking, and he saw appellant behind him. Appellant yelled, " 'Hey, hey. Come here,' " and he ran up to Juan and said, " 'Hey, I really got a strap on me.' " Appellant had his hand in his waistband "as if he had a gun." Appellant asked for cash and then demanded Juan's Apple watch, iPhone, and backpack. Juan glanced at a nearby police station and appellant said, " 'You think I'm scared because the police base is here? I ain't playing around.' " Juan escaped when he saw a police car and ran towards it, although appellant tried to grab him. Appellant was detained and identified by Juan; appellant did not have a weapon or stolen property on his person.
DISCUSSION
I. The Juvenile Court Did Not Abuse Its Discretion In Placing Appellant at OAYRF
Appellant contends the juvenile court erred in committing him to the OAYRF. We will reverse a juvenile court's commitment order only on a showing that the court abused its discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) We indulge all reasonable inferences in support of the juvenile court's decision and uphold all findings supported by substantial evidence. (Id. at p. 1330.)
A. Background
The probation officer's report indicated that appellant's home was searched pursuant to a warrant in June 2018. Appellant's mother said that appellant "had not been home for three or four days" and that she "does not know where [he] is staying." In an interview with the probation officer, appellant's mother denied appellant was the person in the burglary video. Appellant told the probation officer he smokes marijuana three or four times per week. Appellant also reported he had difficulty controlling his temper. Appellant's high school GPA was 0.6224; he had 107 unexcused absences and "841 tardies from all [of] his classes" in the first two years of high school; and he had "over 35 referrals" for behavior, "including four school suspensions and two in class suspensions." Multiple truancy letters sent to appellant's mother did not resolve his attendance problem. While in juvenile hall for the instant offenses, appellant fought with another resident, "hitting each other with closed fists" until staff used pepper spray and restrained appellant.
The probation officer recommended that appellant be placed at OAYRF. The probation officer's report stated that appellant did not appreciate the consequences of his actions, had poor grades and school attendance, and lacked adequate home supervision. At OAYRF, appellant would attend school regularly to "get back on track," receive mental health treatment for anger management, and learn the impact of his crimes. Appellant would also benefit from substance abuse and individual counseling.
At the disposition hearing, defense counsel urged the juvenile court to allow appellant to return home "so that he can at least try and get some of these services in the community before we resort to this [frankly] drastic nature of removing him from his home."
In issuing its ruling, the juvenile court stated that "looking at [appellant]'s history of schooling, quite frankly, this could have been avoided and unfortunately in my view could have been predicted as well. This is an astounding history of profound truancy and discipline at school that should have raised a red flag for mother." The court observed that, despite the "eye-opening and troubling" 35 discipline referrals, appellant's "[m]other continues to maintain her son did not engage in this behavior, so there would be no consequences if she believes that he's been falsely found to have committed and engaged in this behavior." The court continued, "he's out of control at home because we have a mom who, rather than holding him accountable[,] makes excuses for his behavior."
B. Analysis
"The purpose of the juvenile court law is 'to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. If removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. If the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents.' (§ 202, subd. (a).) 'Minors under the juvenile court's jurisdiction must receive the care, treatment, and guidance consistent with their best interest and the best interest of the public. (§ 202, subd. (b).) Additionally, minors who have committed crimes must receive the care, treatment, and guidance that holds them accountable for their behavior, is appropriate for their circumstances, and conforms with the interest of public safety and protection. (Ibid.) This guidance may include punishment that is consistent with the rehabilitative objectives.' " (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.)
Appellant argues his "social history and specialized educational needs weighed in favor of home placement and parental counseling support." He suggests many services were available in the community and observes he has never been given the opportunity to receive services in the community. However, the record demonstrated that appellant's mother was not only unable or unwilling to control appellant but that she was in denial about his criminality. Appellant's abysmal record at school suggested that his rehabilitation would require a more structured environment, and his criminal conduct demonstrated he posed a danger to the community. The record demonstrated there were programs at OAYRF of probable benefit to appellant. The juvenile court did not abuse its discretion in removing appellant from his mother's home and placing him at OAYRF.
II. The Matter Must be Remanded for Modification of Electronic Search Condition
As a condition of probation, the juvenile court ordered, "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, voicemail messages, photographs, email accounts & other social media accounts and applications such as Snapchat, Instagram, Facebook, and Kik. You shall provide access codes to Probation or any other peace officer upon request to effectuate such search." Appellant contends the condition is invalid under the California Supreme Court's recent decision In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We conclude the trial court did not abuse its discretion in imposing an electronic search condition, but the condition must be narrowed on remand.
We obtained supplemental letter briefs from the parties regarding the Ricardo P. decision.
We need not and do not consider appellant's claim the electronic search condition is unconstitutionally overbroad. --------
" ' "A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile." ' " (In re Alonzo M. (2019) 40 Cal.App.5th 156, 164 (Alonzo M.).) Nevertheless, a probation condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) if it " ' " '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.' " [Citations.] "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." ' " (Alonzo M., at p. 164.)
Appellant contends the electronic search condition is invalid because all three prongs of the Lent test are satisfied. It is undisputed the second prong is satisfied, because "there is nothing inherently illegal about using electronic devices." (Alonzo M., supra, 40 Cal.App.5th at p. 156.) Respondent argues the first prong of the Lent test is not satisfied because the search condition relates to appellant's attempt to rob Juan R. of his Apple watch and iPhone. We disagree that an electronic search condition may be upheld under Lent simply because theft of electronics was an object of the underlying offense, where the search condition is not limited to determining the ownership of electronics in the probationer's possession. We do, however, agree with respondent that appellant has failed to show the third prong of the Lent test, that the search condition " 'requires or forbids conduct which is not reasonably related to future criminality.' " (Lent, supra, 15 Cal.3d at p. 486.)
In Ricardo P., as summarized by Alonzo M., "a 17-year-old minor who admitted committing two felony burglaries was declared a ward of the court and placed on probation. . . . [T]he [juvenile] court imposed a warrantless electronic search condition because it found that minors typically use the internet to brag about marijuana usage and Ricardo's statements to the probation officer amounted to an admission that marijuana was involved in the commission of his offenses. . . [¶] The Ricardo P. court found that the electronic search condition was not valid under the third prong of Lent as a measure that was reasonably related to future criminality because the burden it imposed on Ricardo's privacy was 'substantially disproportionate to the condition's goal of monitoring and deterring drug use.' (Ricardo P., supra, 7 Cal.5th at p. 1120.) Preliminarily, the court expressed skepticism about the juvenile court's premises that marijuana use played a role in Ricardo's crimes and that minors like him brag about drug use on social media. (Id. at pp. 1119-1120.) But, even accepting those premises, there was no evidence Ricardo had ever used an electronic device or social media to engage in criminal activity, nor to discuss illegal drugs. (Id. at pp. 1119, 1122.) Thus, the only possible justification in the record for subjecting Ricardo to an electronic search condition was a generalized impression that minors use social media to brag about marijuana use. This purpose was substantially disproportionate to the 'sweeping' invasion of sensitive and confidential information authorized by the search term, which 'significantly' burdened Ricardo's constitutionally protected privacy interests. (Ricardo P., at pp. 1122-1123.) The Ricardo P. court found that if the juvenile court's stated purpose for imposing the search condition justified imposing such a heavy burden on Ricardo's privacy, the third prong of Lent would essentially be meaningless. (Id. at pp. 1123-1124.)" (Alonzo M., supra, 40 Cal.App.5th at p. 165.)
Alonzo M. continued, "From Ricardo P. we glean the following guidelines for determining when an electronic search condition survives the third prong of Lent in a juvenile delinquency case. First, there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the minor's underlying offense is required. . . . Finally, 'the burden imposed by [the] probation condition' must be proportionate to 'the legitimate interests served by the condition.' [Citation.] Thus, " ' "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality,' " ' " only if its infringement on the probationer's liberty is not 'substantially disproportionate to the ends of reformation and rehabilitation.' " (Alonzo M., supra, 40 Cal.App.5th at p. 166, quoting Ricardo P., supra, 7 Cal.5th at pp. 1122, 1126, 1129.)
Applying Ricardo P., the Alonzo M. court concluded that an electronic search condition was permissible because "[i]n contrast to the nebulous concern about marijuana use in Ricardo P., in the present case the juvenile court made a reasoned, evidence-based finding that Alonzo's successful rehabilitation depends on avoiding negative social influences. . . . Thus, one probation condition that was imposed without objection requires Alonzo to stay away from his co-responsibles and from other people of whom his parents or the probation officer disapprove." (Alonzo M., supra, 40 Cal.App.5th at p. 166.) There was also evidence in the record that Alonzo "spends a significant amount of his time using electronic devices." (Ibid.) However, Alonzo M. concluded the electronic search condition had to be remanded for modification because it was "not limited to monitoring the company Alonzo keeps;" instead, it authorized searches likely to reveal whether Alonzo was complying with the terms of his probation generally. (Id. at p. 167.) For example, 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.)
The Alonzo M. court concluded, "because the juvenile court properly concluded that an electronic search term in some form could be imposed as a condition of Alonzo's probation, we will follow the recommendation of both parties and remand the case for further proceedings in the juvenile court. Applying the reasoning of Ricardo P., the juvenile court may impose an electronic search condition that is more narrowly tailored to allowing search of any medium of communication reasonably likely to reveal whether Alonzo is associating with prohibited persons. The burden on Alonzo's privacy must be substantially proportionate to the probation department's legitimate interest in preventing him from communicating with his co-responsibles or other identified peers who might draw him in to criminal conduct." (Alonzo M., supra, 40 Cal.App.5th at p. 168.)
We follow the Alonzo M. decision in the present case. The juvenile court directed appellant to have no contact with the victims of the burglary and the attempted robbery, and, more importantly, to have no contact with the two minors he was with prior to the attempted robbery—identified by name in the record. The record in the present case is not as extensive as that in Alonzo M. regarding the importance of avoiding negative social influences to appellant's rehabilitation. Nor is there as much evidence as there was in Alonzo M. regarding appellant's use of electronics—although appellant's mother did testify, as did the mother in Alonzo M., that restricting appellant's use of his phone and other electronic devices was a form of punishment. (See Alonzo M., supra, 40 Cal.App.5th at p. 161.) But we do not understand Ricardo P. or Alonzo M. to suggest that an extensive record is necessary to uphold a properly tailored electronic search condition. That is, we do not understand those decisions to modify the longstanding proposition that under the abuse of discretion standard we must "indulg[e] all reasonable inferences to support [the juvenile court's] decision." (In re Khalid B., supra, 233 Cal.App.4th at p. 1288; see also Ricardo P., supra, 7 Cal.5th at p. 1124 ["our role in reviewing probation conditions for abuse of discretion is a limited one"]; id. at p. 1128 ["we must be mindful of 'the superior ability of the trial and juvenile courts to gather and apply' information about the probationer"].)
In the present case, the juvenile court could reasonably infer based on appellant's conspiratorial communications with the other two minors on the BART train prior to the attempted robbery that preventing contact between appellant and those minors is reasonably related to preventing future criminality. The juvenile court could also reasonably infer that appellant might use a cell phone or other electronic device to communicate with those persons. Accordingly, as was the case in Alonzo M., subjecting appellant to an electronic search condition is "permissible under the third prong of the Lent test." (Alonzo M., supra, 40 Cal.App.5th at p. 166.) However, the language of the juvenile court's search condition is too broad because it permits searches reasonably likely to reveal appellant's compliance with any of the terms of his probation. (Id. at p. 167.) In Alonzo M., the court expressed concern that a similar electronic search condition would permit searches regarding compliance with a probation condition requiring the minor to abstain from drugs and alcohol, despite that "the record discloses no connection between the probationer's use of electronics and his drug use or other criminality." (Id. at p. 167-168.) The same is true in the present case.
"[B]ecause the juvenile court properly concluded that an electronic search term in some form could be imposed as a condition of [minor's] probation," the Alonzo M. court remanded to provide the juvenile court an opportunity to fashion a narrower condition. (Alonzo M., supra, 40 Cal.App.5th at p. 168.) Alonzo M. explained, "Applying the reasoning of Ricardo P., the juvenile court may impose an electronic search condition that is more narrowly tailored to allowing search of any medium of communication reasonably likely to reveal whether [minor] is associating with prohibited persons. The burden on [minor's] privacy must be substantially proportionate to the probation department's legitimate interest in preventing him from communicating with his co-responsibles or other identified peers who might draw him in to criminal conduct." (Alonzo M., at p. 168.) The same disposition is appropriate in the present case. We do observe that the juvenile court is not precluded from permitting searches calculated to monitor compliance with another term of probation in addition to the no-contact terms, if the record discloses the type of connection between the probation term and appellant's criminality required by Ricardo P., supra, 7 Cal.5th 1113.
DISPOSITION
The disposition order is affirmed except for the provision imposing an electronic search condition, which is stricken, and the case is remanded for the court to consider, consistent with this opinion, whether to adopt an electronic search condition.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.