Opinion
2d Juv. No. B287487
01-07-2020
In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
Law Offices of David R. Greifinger and David R. Greifinger, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Chung Mar, Analee J. Brodie, David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17JV00334)
(San Luis Obispo County) OPINION ON REMAND
This case is before us on remand after the California Supreme Court granted review and transferred the matter with directions to vacate our decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113. (Cal. Rules of Court, rule 8.528(d).) In an opinion certified for publication, we affirmed a juvenile probation condition that appellant J.G.'s electronic devices would be subject to search. We vacate that decision and strike the electronics search condition. We conclude the search condition is invalid because, "on the record before us, the burden it imposes on [appellant's] privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (In re Ricardo P., supra, 7 Cal.5th at p. 1119.)
Facts and Procedural History
In March 2017, appellant, who was then 15 years old, got into a fight on school grounds. When a teacher tried to stop the fight, appellant called the teacher a "nigger." Appellant admitted in juvenile court that he committed the misdemeanor of disturbing the peace on school grounds. (Pen. Code, § 415.5, subd. (a)(1).) He also admitted to using marijuana. The probation report reflected numerous past instances in which appellant displayed "defiant behavior," used aggressive or threatening language, refused to do work, or was disruptive in class. However, it contained no specific information regarding appellant's use of a cell phone, other electronic devices or social media. There is, for example, no information in the record that appellant used electronic devices to stoke conflict with others, obtain drugs or access information regarding racial hatred or bigotry.
All statutory references are to the Penal Code unless otherwise stated.
The trial court granted probation on a number of conditions, including that appellant shall, "Submit any electronic device, used to store or transmit digital information, that you own, possess or control, to a search of any source of electronic data identified below, at any time, with or without probable cause, by a peace officer, and provide the peace officer with any passwords necessary to access the data source specified." Sources of electronic data identified in the probation condition are limited to: text messages, voicemail messages, call logs, photographs, email accounts, social media accounts and internet browsing history. The probation order further provides that the "rehabilitative and/or supervisory concerns addressed by this search term include the following: [¶] Drug/alcohol use or drug sales[,] [¶] Threats of violence toward others."
Contentions
Appellant contends the electronics search condition bears no relationship to his offense and is unconstitutionally overbroad. Respondent contends the condition is reasonable because it relates to potential future criminality and that the condition is not overbroad.
Standard of Review
We review the court's imposition of a probation condition for abuse of discretion. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) We review constitutional challenges to probation conditions de novo. (In re M.F. (2017) 7 Cal.App.5th 489, 495.)
Discussion
Reasonableness. "Welfare and Institutions Code section 730, subdivision (b) 'authorizes the juvenile court to "impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." 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.' [Citation.]" (In re J.B. (2015) 242 Cal.App.4th 749, 753-754.) Because juveniles are deemed to be more in need of guidance and supervision than adults, the trial court has even greater latitude in formulating the terms of juvenile probation. (In re Victor L. (2010) 182 Cal.App.4th 902, 909-910.) "The reasonableness and propriety of the imposed condition is measured not just by the circumstances of the current offense, but by the minor's entire social history. [Citation.]" (In re J.B., supra, at p. 754.)
The juvenile court's discretion is not, however, unlimited. We evaluate the validity of probation conditions under the test announced in People v. Lent (1975) 15 Cal.3d 481. Under Lent, a probation condition is invalid only 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 . . . . '" (Id. at p. 486.) All three prongs must be satisfied before we will invalidate a probation condition. (Ibid, fn. 1; see also In re D.G. (2010) 187 Cal.App.4th 47, 52.)
A probation condition may be justified because it reasonably relates to future criminality. As our Supreme Court explained in People v. Olguin (2008) 45 Cal.4th 375, a probation condition "that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality'" (id. at pp. 380-381), even if the condition "has no relationship to the crime of which a defendant was convicted[.]" (Id. at p. 380.)
Our Supreme Court recently clarified these standards in In re Ricardo P. (2019) 7 Cal.5th 1113. There, a juvenile was placed on probation with an electronics search condition after he admitted committing two counts of felony burglary. The record contained no evidence that he used an electronic device in committing the offenses, or in connection with any other criminal activity, including drug use. (Id. at p. 1116.) Our Supreme Court held the search condition was invalid under Lent's future criminality prong. It reasoned that the electronics search condition was not reasonably related to future criminality because, "on the record before us, the burden it imposes on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119.) Although the search condition would enable probation officers to monitor whether Ricardo used his electronic devices to communicate about drugs or to brag about other criminal activity, the court noted "there is no suggestion in the record or by the Attorney General that Ricardo has ever used electronic devices to commit, plan, discuss, or even consider unlawful use or possession of drugs or any other criminal activity." (Ibid.)
In re Ricardo P. emphasized that the Lent test "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (In re Ricardo P., supra, 7 Cal.5th at p. 1122.) "A probation condition that imposes substantially greater burdens on the probationer than the circumstances warrant is not a 'reasonable' one." (Id. at p. 1128.) An electronics search condition imposes a heavy burden on the juvenile's right to privacy. (Id. at pp. 1122-1123.) For that burden to be justified, the record must contain information establishing "more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.) Instead, there must be "a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) That proportionality is lacking where the record includes no evidence that the juvenile "has ever used an electronic device or social media in connection with criminal conduct." (Ibid.)
In re Ricardo P. also declined to "categorically permit any probation conditions reasonably related to enhancing the effective supervision of a probationer. 'Not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable' under [People v. Lent, supra, 15 Cal.3d 481]." (Id. at p. 1127, quoting People v. Brandão (2012) 210 Cal.App.4th 568, 574.)
Finally, the court clarified that, although the specific electronics search condition at issue was not reasonably related to future criminality and was therefore invalid under Lent, its holding did not "categorically invalidate electronics search conditions. In 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." (In re Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)
Our first opinion in this matter concluded the electronics search condition was valid because it allowed law enforcement to monitor appellant's compliance with other conditions of probation, including those requiring him to refrain from using drugs, threatening others with violence or visiting school grounds without prior approval. We emphasized our concern that appellant needed monitoring to prevent him from using electronic devices to access information which may kindle an interest in violence, racial hatred or bigotry. In our estimation, these remain laudable goals.
In re Ricardo P. emphasized, however, that an electronics search condition is invalid under Lent unless information in the record shows "more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (In re Richard P., supra, 7 Cal.5th at p. 1121.) The condition need not be strictly tied to an offender's precise crime (id. at p. 1122), but the record must include a "sufficient factual basis" from which the juvenile court "can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Id. at pp. 1128-1129.)
That factual basis is missing here. The record contains no direct evidence of appellant's history with electronic devices. We do not know, for example, whether appellant has ever used an electronic device to obtain illegal drugs, brag about drug use, access information about racial hatred, threaten others or stoke conflict with his classmates. Appellant's offense, especially his use of a racial slur against a teacher, gave the trial court ample reason for concern about his potential future criminality, but not a sufficient factual basis to connect that concern to appellant's use of electronic devices. Because the record contains no information regarding appellant's use of electronic devices, In re Ricardo P. requires that we strike the search condition.
Disposition
The term of appellant's probation that he submit to searches of his electronic devices is stricken. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J. We concur:
PERREN, J.
TANGEMAN, J.
Charles Crandall, Judge
Superior Court County of San Luis Obispo
Law Offices of David R. Greifinger and David R. Greifinger, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Chung Mar, Analee J. Brodie, David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.