Opinion
D074832
10-30-2019
In re J.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.H., Defendant and Appellant.
Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J241236) APPEAL from an order of the Superior Court of San Diego County, Ana L. España, Judge. Affirmed in part and remanded with directions. Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Following an adjudication hearing, the juvenile court found true allegations J.H. committed robbery (Pen. Code, § 211) and assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The court sustained a petition under section 602 of the Welfare and Institutions Code and declared J.H. a ward of the court. The court placed J.H. on formal probation with various conditions.
J.H. challenges two probation conditions on appeal. First, he contends the condition requiring him to submit "any property under his/her immediate custody or control to search at any time" is unconstitutionally overbroad because it implicitly authorizes warrantless searches of electronic devices. Second, he contends the condition requiring him to "report all law enforcement contacts" to the probation officer is unconstitutionally vague. We conclude J.H. forfeited his challenge to the property search condition because he failed to object to the scope of the condition at the disposition hearing. We will not consider the issue for the first time on appeal because it requires consideration of the record and, thus, is not a facial constitutional challenge. However, we agree with J.H.'s second contention that the term "contacts" is unconstitutionally vague on its free. Therefore, we will remand the matter to the juvenile court to either modify or strike the reporting condition.
II
BACKGROUND
A
On April 19, 2018, the victim was talking on his phone outside a restaurant when he saw J.H. and another man walk past him. Moments later, the victim felt a thump on his head. J.H. grabbed the victim's phone, but the victim wrestled it back as another man stood nearby. The victim asked the men to leave him alone. Intending to return the phone call that was interrupted, the victim looked at his phone as he walked back to the entrance of the restaurant. However, when he looked over his shoulder, he saw J.H. and the other man rushing toward him. Surveillance video showed the men hitting and kicking the victim before taking his phone and running away. The victim identified J.H. as the person who took his phone.
A police officer reviewed the video, captured facial images of the suspects and created a be-on-the-lookout (BOLO) flyer, which he disseminated to other law enforcement officers. A school resource officer recognized J.H. as one of the suspects.
In a police interview, J.H. said he and his friend stopped in the neighborhood near the restaurant to kill time before they were to play basketball. J.H. identified himself in the picture on the BOLO flyer and admitted he was on the video surveillance. He admitted he hit the victim, but denied he took the victim's phone. J.H. said the victim called him the "N" word. The officer looked at J.H.'s phone with his permission. It had no evidence of the crime.
J.H. testified on his own behalf. His confirmed his friend picked him up at school on the day of the incident and they went to the neighborhood where the incident took place because they had time to kill. As they walked toward a drug store, J.H. heard his friend and the victim get into a heated argument. J.H. heard the victim say, "You f'ing ['N' words]." J.H. said he followed the victim and asked what he said. When the victim did not respond, J.H. hit the victim "pretty hard." J.H. said his friend slapped the victim's phone out of the victim's hand. When people came out of the restaurant, J.H. ran as his friend picked up the phone. J.H. denied he intended to steal the phone or to help his friend steal the victim's phone. J.H. saw the victim's phone in his friend's car later that day. The BOLO flyer depicted J.H.'s friend holding a cell phone.
In rebuttal, the victim denied calling J.H. or J.H.'s friend the "N" word. He also denied exchanging words with J.H. or J.H.'s friend before he was struck in the head.
B
The court found true allegations J.H. committed robbery either as the perpetrator or as an aider and abettor. The court found the victim's account credible and that J.H. was clearly involved in the robbery. The court did not find credible J.H.'s testimony that he was merely engaged in a fight over a derogatory word. Based on J.H.'s testimony, the court also found true the allegation J.H. committed an assault by means of force likely to produce great bodily injury.
The court committed J.H. to the Short Term Offender Program for a period not to exceed 90 days, but stayed commitment pending a further review hearing. At the request of defense counsel, the court changed the curfew condition for probation and set a restitution review hearing. Without objection, the court found the balance of the probation condition recommendations appropriate.
III
DISCUSSION
A
General Principles
" 'The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct.' [Citation.] To those ends, a juvenile court may order a ward under its jurisdiction to probation. (Welf. & Inst. Code, §§ 727, 730, subd. (a).) Under Welfare and Institutions Code section 730, subdivision (b), the court 'may 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.' 'The juvenile court has wide discretion to select appropriate conditions,' but '[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' [Citation.] 'A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.' " (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) Generally, "we ' "review conditions of probation for abuse of discretion." ' [Citation.] Specifically, we review a probation condition 'for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' " (Ibid.) However, we independently review constitutional challenges to probation conditions. (In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.).)
B
Search Condition
Among the probation conditions imposed, the court ordered: "minor shall submit his/her person, property, or vehicle, and any property under his/her immediate custody or control to search at any time, with or without probable cause, with or without a search warrant, by any law enforcement officer or peace officers, probation officers, school officials or officers, and any other state security officers or agents engaged in the lawful performance of their duties."
J.H. contends the search condition necessarily includes searches of electronic devices within his possession and, as such, the condition is unconstitutionally overbroad because it is not narrowly tailored to limit the impact on his privacy rights. Even assuming, without deciding, a probation condition allowing for a search of "any property" may include an electronic device, we conclude J.H. forfeited such a claim by failing to object to the scope of the condition at the disposition hearing.
(See I.V., supra, 11 Cal.App.5th at p. 262 [condition authorizing search of "any property" extends only to "tangible property, and not to electronic data].)
"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.).) An exception applies to the forfeiture rule if the challenge presents a facial constitutional challenge presenting "a pure question of law, easily remediable on appeal by modification of the condition." (Id. at p. 888.) However, an "alleged constitutional defect that is 'correctable only by examining factual findings in the record or remanding to the trial court for further findings' " is not a facial constitutional challenge, and traditional forfeiture principles apply. (I.V., supra, 11 Cal.App.5th at p. 261.)
J.H. necessarily asks us to consider the facts of the case by contending the "de facto electronics search condition" is unconstitutionally overbroad because it "infringes on [his] constitutional rights to privacy and is far from narrowly tailored to prevent [J.H.] from engaging in future criminal activity ... regardless of the trial court's difficulty in narrowing it." Here, an electronic device was stolen and there was evidence J.H. was present when a phone was stolen during a prior incident at a school. As the People point out, the search condition, including an electronic search condition, would aid in ensuring J.H. did not possess stolen devices in the future. J.H.'s contention the condition is not narrow enough is, therefore, not a facial constitutional challenge.
In response to our request for briefing regarding whether the recent case of Ricardo P., supra, 7 Cal.5th 1113 had any application to this case, J.H. agreed the majority opinion did not reach the constitutional overbreadth issue because it concluded the condition was improper under the third prong of People v. Lent (1975) 15 Cal.3d 481, 486 (Lent). The majority in Ricardo P. concluded the burden imposed by an electronic search condition on the probationer's privacy when there was no evidence an electronic device was involved in the crime was substantially disproportionate to the interests of rehabilitation and protecting society. (Ricardo P., supra, 7 Cal.5th at p. 1119.) J.H. invited us to apply the overbreadth analysis employed by the concurring and dissenting opinion in Ricardo P. and to strike the condition and remand the matter "to allow the juvenile court to impose a narrower condition." We decline to do so.
J.H. did not object to the condition as unreasonable under Lent in which the Supreme Court concluded: "A condition of probation will not be held 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.) Therefore, such a claim is forfeited. (People v. Moran (2016) 1 Cal.5th 398, 404, fn. 7.)
Unlike in Ricardo P., J.H. did not object to the search condition or ask the court to clarify or narrow the scope of the condition. J.H. reviewed the recommendations with his counsel and they submitted on the recommendations with only a couple of exceptions. Counsel asked for the curfew condition to be changed because J.H. was attending college and working. They also challenged the recommended amount of restitution by asking for a restitution review with proof of the amount requested. The court responded to both of those requests by modifying the curfew hours and setting a restitution review.
"The purpose of [the forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Where a probationer does not request clarification when given the opportunity, and the condition imposed may not implicate a constitutional question, it is prudent to avoid unnecessary determination of constitutional issues. (California Teachers Assn. v. Board of Trustees (1977) 70 Cal.App.3d 431, 442.)
C
Reporting Condition
J.H. also challenges the probation condition requiring him to "follow the rules and instructions of the Probation Officer, and report all law enforcement contacts to the Probation Officer within three calendar days." (Italics added.) J.H. contends the term "contacts" is unconstitutionally vague. Although J.H. did not challenge this condition before the juvenile court, a vagueness challenge presents a facial constitutional challenge we may address without examining the record. Therefore, it is not subject to forfeiture. (I.V., supra, 11 Cal.App.5th at p. 261.)
For a probation condition which limits otherwise lawful activity to be valid, the probationer must be able to know what is expected or prohibited. In Sheena K., the juvenile was ordered not to associate with persons who are disapproved by the probation officer. The court found the condition to be vague and overbroad. Because the condition did not have a knowledge requirement, the juvenile would not know who to avoid. (Sheena K., supra, 40 Cal.4th at p. 890.)
In People v. Relkin (2016) 6 Cal.App.5th 1188, 1196-1198 (Relkin), the court dealt with a condition which required the defendant to report, among other things, any contact with any peace officer. The defendant contended that such requirement was vague. The court agreed stating: "the portion of the condition requiring that defendant report 'any contacts with ... any peace officer' is vague and overbroad and does indeed leave one to guess what sorts of events and interactions qualify as reportable." (Id. at p. 1197.)
The People contend we are not bound by Relkin, supra, 6 Cal.App.5th 1188 and urge us not to follow it because the condition would not require J.H. to report marginal contacts such as saying hello to a police officer. However, the condition plainly requires reporting of all contacts with all law enforcement officers and does not provide guidance that would allow selectivity among types of contacts. We agree with the court in Relkin, supra, 6 Cal.App.5th 1188 that such condition must be modified to give J.H. notice as to which types of contacts with law enforcement he is required, under pain of probation revocation, to report. Accordingly, we will remand the matter to the juvenile court to either clarify the scope of the condition or to strike it.
IV
DISPOSITION
The case is remanded with directions for the juvenile court to conduct further proceedings to modify or strike the condition of probation requiring J.H. to report law enforcement contacts consistent with the views expressed in this decision. The adjudication and disposition orders are affirmed in all other respects.
McCONNELL, P. J. WE CONCUR: BENKE, J. HUFFMAN, J.