Opinion
H043273
12-31-2019
In re J.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 3-15-JV-141105)
We have now reconsidered this cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), as directed by the Supreme Court (S243234).
Multiple wardship petitions were filed against J.L. The juvenile court found that he came within the provisions of Welfare and Institutions Code section 602 and adjudged him a ward of the court (§ 725, subd. (b)).
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
On appeal from the judgment (§ 800, subd. (a)), J.L. raises an insufficiency of the evidence claim against the juvenile court's finding that he violated Vehicle Code section 20002, subdivision (b), as alleged in count 2 of the petition filed on June 2, 2015. He also attacks as constitutionally overbroad the probation conditions requiring him to submit his electronic devices and his social media sites to warrantless searches and to provide his passwords thereto. J.L. does not challenge the substantiality of the evidence supporting the juvenile court's findings as to the truth of the other allegations contained in that petition, the propriety of its determination that he came within the provisions of section 602, or the propriety of its order adjudging him a ward of the court.
In our original decision, we concluded that the evidence was insufficient to support the court's true finding as to the allegations of count 2 and that the finding had to be vacated. We also determined that each of the challenged probation conditions was not unconstitutionally overbroad on its face. We reach the same conclusions now.
I
Procedural History
In a juvenile wardship petition filed on February 19, 2015 (Petition A), it was alleged that J.L. possessed a dirk or a dagger in violation of Penal Code section 21310, a felony, on or about February 14, 2015. The probation officer's detention hearing report indicated that police officers responded to a report of a gang fight involving a person with a machete. When officers made contact with J.L., they found a machete with a 10-inch blade in J.L.'s pants pocket. He told the officers that he hung out with Sureños, he possessed the weapon for protection, he had just been "checked" by individuals who he believed intended to harm him, and that he was "having 'a little bit of problems' with Nortenos." After further inquiry regarding gang activity, he admitted that he "bang[s]." J.L. also admitted that he had not attended high school in a couple of months.
Following a determination that J.L. was eligible for DEJ (deferred entry of judgment) (§ 790), J.L. admitted the offense. The probation officer's suitability hearing report found J.L. suitable for DEJ, although the officer expressed some hesitation in making that finding because of J.L.'s evasiveness about his gang activity. The court found that J.L. was suitable for DEJ (§ 790), and it issued a DEJ order, requiring J.L. to comply with the DEJ program contract, which J.L. signed. The contract's conditions required, among other things, that J.L. engage in "pro-social activities" and gang intervention services, and they forbade gang clothing, gestures, and tattoos.
A second juvenile wardship petition was filed on April 16, 2015 (Petition B). It alleged that J.L. had violated Vehicle Code section 10851, subdivision (a), by driving and taking a vehicle, a Honda, without the owner's consent on or about April 14, 2015.
The probation officer's detention hearing report, filed April 17, 2015, indicated that, when law enforcement attempted to stop a stolen green Honda Accord, the driver accelerated and unsuccessfully attempted to flee. The driver and two passengers, including J.L. who was in the back seat, were taken into custody. J.L. and the other passenger admitted they were Sureño gang members. J.L. was found in possession of a blue handkerchief bandana; he was wearing a blue rosary around his neck and a black San Jose Sharks beanie. The driver, who admitted associating with Sureño gang members, had a concealed knife. A "modified key" was found on the driver's seat. The front-seat passenger had gang-related tattoos, including the tattoo "VST," an abbreviation for the criminal street gang Varrio Sureño Town. He was "found in possession of an engine oil stick stem (commonly used to pass vehicle ignition switches)."
The April 2017 detention report further disclosed that J.L. had been enrolled at a particular high school in early March 2017. He had been referred to California Youth Outreach for gang intervention services on March 17, 2015. J.L. refused to submit to a urinalysis on March 24, 2015. J.L. had been suspended from the school after he was found in possession of marijuana and a locking blade knife on campus on April 2, 2015. On April 15, 2015, Deputy Probation Officer Sam Conerly with the Juvenile Probation Department's gang unit had reported to J.L.'s supervising probation officer that "minor had been seen with validated Vario Mexicano Locos (VML) members in the past few months . . . ." Although J.L. had been referred to the school district for placement, he had failed to report as directed. J.L.'s probation officer requested that the court fail J.L. from the DEJ program and sustain Petition A.
At the detention hearing, the court detained J.L. in secure custody.
The report of J.L.'s probation officer for the DEJ "Parte Review" hearing stated that the District Attorney had dismissed Petition B for insufficient evidence and that J.L. had been released from juvenile hall on April 28, 2015. J.L.'s case had been accepted into the gang unit for supervision. It had been reported to J.L.'s probation officer that J.L. had been the victim of a gang assault by "two Norteno neighbors," one of whom had a knife, in front of J.L.'s residence on April 29, 2015. The new recommendation was to allow J.L. to continue on the DEJ program and to review the matter in three months.
At the DEJ "Parte Review" hearing on May 11, 2015, the court continued the matter to August 10, 2015 for further review.
On June 2, 2015, a third juvenile wardship petition (Petition C) was filed. It alleged that J.L. had committed three crimes on or about May 29, 2015: (1) a violation of Vehicle Code section 10851, subdivision (a), by driving and taking a vehicle, a Honda, without the owner's consent (count 1); (2) a violation of Vehicle Code section 20002, subdivision (b), by failing to comply with the requirements of its subdivision (a) (notification and reporting) after the vehicle he parked "became a runaway vehicle" and was "involved in an accident resulting in damage to property" (count 2); and (3) a violation of Penal Code section 148, subdivision (a)(1), by willfully resisting, delaying and obstructing a peace officer (count 3).
Following the detention hearing, the court ordered J.L. detained in secure custody, but authorized probation to release J.L. on cell phone EMP (electronic monitoring program), provided specified services were in place.
The report of Probation Officer Conerly, dated August 10, 2015, indicated that J.L.'s case had been transferred to the gang unit in May 2015 due to J.L.'s continued gang activity. It indicated that J.L. had been involved in a gang-related fight with another student off campus, that he had been caught with a gang-related drawing at school, and that J.L. had been suspended from his latest school.
An EMP memorandum report, dated August 20, 2015, reported that J.L. was compliant with the EMP, which he began on June 10, 2015. J.L. was attending high school, and the six drugs tests to which he had submitted while in the program were negative. But an EMP memorandum report, dated September 9, 2015, reported that J.L. had tested positive for marijuana on August 31, 2015. An EMP memorandum report, dated October 20, 2015, reported that J.L. had submitted four clean drug tests and was compliant with the program.
A contested jurisdiction hearing was held on December 1, 2015. The court found the allegations of Petition C were true beyond a reasonable doubt as to all counts. The court deemed J.L. to have failed the DEJ program and sustained Petition A.
The probation officer's report, filed December 28, 2015, described the circumstances of J.L.'s offenses under Petition C. On May 29, 2015, police responded to the report of a firearm being discharged. Upon arriving at the scene, officers saw a stolen Honda Accord being driven by J.L., who then began driving at a high rate of speed in an attempt to avoid the officers. J.L. exited the vehicle and unsuccessfully attempted to flee on foot. Officers were unable to locate the front-seat passenger, but they did apprehend the back-seat passenger.
The report stated that according to school records, J.L. had not been attending high school for weeks. It disclosed that when J.L. was attending school, he had been "involved in some gang tension" there. J.L. reportedly had often worn blue shoes to school and had been seen antagonizing rival gang members there. The report described J.L. as "heavily gang entrenched" based on his "recent behavior, school attendance, style of dress, and associates." The report recommended that the court adjudge J.L. a ward of the court and impose "full Gang Orders" "[d]ue to [J.L.'s] delinquent peer association with Sureno gang members and associates."
At the disposition hearing on December 28, 2015, the court declared J.L. a ward of the court and adopted the recommended findings and orders set forth in the probation report dated December 28, 2015. The court ordered J.L. to serve 60 actual days on cell phone EMP. It returned J.L. to parental custody under the supervision of the probation officer under numerous terms and conditions, including multiple gang conditions (which are not challenged on appeal). In addition to a general warrantless search condition, the court imposed two conditions that together required J.L. to provide all passwords to any electronic devices and social media sites and to submit those devices and sites to warrantless searches.
J.L. timely appealed.
II
Discussion
A. Finding that J.L. Violated Vehicle Code section 20002 , Subdivision (b)
J.L. asserts that the evidence was insufficient to support the court's finding that he violated Vehicle Code section 20002, subdivision (b). He argues that although the car, which he was found to have been driving, rolled and struck a parked van, there was no evidence of any resulting damage.
Vehicle Code section 20002, subdivision (b), provides: "Any person who parks a vehicle which, prior to the vehicle again being driven, becomes a runaway vehicle and is involved in an accident resulting in damage to any property, attended or unattended, shall comply with the requirements of this section relating to notification and reporting and shall, upon conviction thereof, be liable to the penalties of this section for failure to comply with the requirements." (Italics added.)
On appeal, minor does not attack the sufficiency of the evidence to support the court's implicit finding that he parked the stolen vehicle.
Respondent argues that proof of damage was unnecessary to prove a violation of Vehicle Code section 20002, citing People v. Carbajal (1995) 10 Cal.4th 1114 (Carbajal). In Carbajal, the defendant pleaded no contest to a charge of violating Vehicle Code section 20002, subdivision (a). (Carbajal, supra, at p. 1119.) "At the time of the offense [in Carbajal], Vehicle Code section 20002, subdivision (a) provided: 'The driver of any vehicle involved in an accident resulting in damage to any property, including vehicles, shall immediately stop the vehicle at the scene of the accident and shall then and there do one of the following: [¶] (1) Locate and notify the owner or person in charge of that property of the name and address of the driver and owner of the vehicle involved and, upon locating the driver of any other vehicle involved or the owner or person in charge of any damaged property, upon being requested, present his or her driver's license, vehicle registration, and evidence of financial responsibility as specified in subparagraph (B) of paragraph (2) to the other driver, property owner, or person in charge of that property. The information presented shall include the current residence address of the driver and of the registered owner. If the registered owner of an involved vehicle is present at the scene, he shall also, upon request, present his driver's license information, if available, or other valid identification to the other involved parties.' " (Id. at p. 1119, fn. 1.)
The issue in Carbajal was "whether, when a defendant is convicted of leaving the scene of an accident in violation of Vehicle Code section 20002, subdivision (a) (commonly known as 'hit-and-run'), a trial court, in the proper exercise of its discretion, may order restitution as a condition of probation." (Carbajal, supra, 10 Cal.4th at p. 1118, fn. omitted.) The Supreme Court held that "a trial court, in the proper exercise of its discretion, may condition a grant of probation for a defendant convicted of fleeing the scene of an accident on payment of restitution to the owner of the property damaged in the accident." (Id. at pp. 1126-1127; see id. at p. 1119.) The reason for its holding was that "[a] restitution condition in such a case can be reasonably related to the offense underlying the conviction and can serve the purposes of rehabilitating the offender and deterring future criminality." (Id. at p. 1119.)
In finding that "restitution is related to the crime of leaving the scene of the accident" (Carbajal, supra, 10 Cal.4th at p. 1124), the court stated: " 'The cost of a "hit and run" violation is paid for by every law-abiding driver in the form of increased insurance premiums. The crime with which the defendant is charged is complete upon the "running" whether or not his conduct caused substantial or minimal (or indeed any) damage or injury; it is the running which offends public policy.' (People v. McWhinney (1988) 206 Cal.App.3d Supp. 8, 12.)" (Ibid.)
First, "it is axiomatic that cases are not authority for propositions not considered. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) " 'An appellate decision is not authority for everything said in the court's opinion but only "for the points actually involved and actually decided." ' [Citation.]" (People v. Knoller (2007) 41 Cal.4th 139, 155.) In Carbajal, the Supreme Court did not decide the elements of a violation of Vehicle Code section 20002, subdivision (b).
The corollary is that "[l]anguage used in any opinion is of course to be understood in the light of the facts and the issue then before the court . . . . [Citations.]" (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) In Carbajal, the defendant "was driving his car when he collided with an unoccupied vehicle, legally parked on the side of the road, causing damage to the parked car." (Carbajal, supra, 10 Cal.4th at p. 1119.) Further, the defendant "concede[d] [that] he 'committed a negligent act of driving that caused damage to [the victim's] parked car.' " (Id. at p. 1124.) Thus, in Carbajal, there was no damages issue.
Second, the quoted language in Carbajal suggesting that evidence of damage is not necessary to prove a violation of Vehicle Code section 20002, subdivision (a), was mere dictum. "Obiter dictum," often shortened to "dictum," is defined as " '[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).' " (People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3; see Morse v. De Adro (1895) 107 Cal. 622, 626, italics omitted ["It is the invariable rule, well understood by the profession, that an opinion of this court becomes authority only upon the point decided, and that obiter dicta are of no binding force or effect"].)
Insofar as respondent is relying upon Carbajal's dictum as persuasive authority for the proposition that proof of resulting property damage is unnecessary to prove a violation of Vehicle Code section 20002, subdivision (b), we are unconvinced. Carbajal itself recognized that damages were an element of a violation of subdivision (a) of Vehicle Code section 20002, noting that "[t]he essential elements" of such a violation were "that the defendant: (1) knew he or she was involved in an accident; (2) knew damage resulted from the accident; and (3) knowingly and willfully left the scene of the accident (4) without giving the required information to the other driver(s). [Citation.]" (Carbajal, supra, 10 Cal.4th at p. 1123, fn. 10.) The standard instruction for such violation instructs that the People must prove, among other things, that "[t]he accident caused damage to someone else's property." (CALCRIM No. 2150 (2017 ed., Vol. 2) p. 169.)
Moreover, accepting respondent's construction of Vehicle Code section 20002, subdivision (b), would render its language "resulting in damage to any property" superfluous in contravention of cardinal principles of statutory interpretation. "The fundamental rule is that a court 'should ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] In determining such intent '[t]he court turns first to the words themselves for the answer.' [Citation.] 'If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.' [Citation.] '[A] construction making some words surplusage is to be avoided.' [Citation.]" (People v. Black (1982) 32 Cal.3d 1, 5.)
Without any citation to the record, respondent alternatively asserts that, in any event, "[t]he juvenile court reasonably could conclude, without benefit of photographs of the vehicles or testimony of their owners, that the collision dented metal and scraped paint." The evidence indicated that after a police officer activated the patrol car's emergency lights and sirens, the stolen Honda Accord slowed and the driver and front-seat passenger exited the vehicle and fled on foot. The vehicle, which had not come to a complete stop, rolled forward into a parked vehicle, an older van. A police officer testified that he took photographs of "the actual vehicle in the collision," but apparently, they were not admitted into evidence. The owner of the Honda Accord testified that after this May 2015 incident the vehicle's ignition did not work properly in that the key could be used to start the car but then "it would just . . . turn off." But there was no evidence that the "accident" itself resulted in property damage, either to the van or other property.
While one might expect that a parked van struck by a rolling vehicle would sustain damage, the burden was on respondent to present sufficient evidence of the element of damage. (See People v. Booker (2011) 51 Cal.4th 141, 185 ["government has the burden to prove guilt, beyond a reasonable doubt, as to each element of each charged offense"]; Estelle v. McGuire (1991) 502 U.S. 62, 69 ["prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense"]; In re Winship (1970) 397 U.S. 358, 364 [due process clause requires "proof beyond a reasonable doubt of every fact necessary to constitute the crime" with which a defendant is charged], 368 [reasonable doubt standard constitutionally applies to proof of criminal acts alleged in a juvenile delinquency proceeding]; In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404 [same standard proof applies in juvenile delinquency proceedings and adult criminal trials].) Here, we have no evidence of the speed of the Honda Accord at the moment of contact with the van and other evidence from which to infer that actual damage resulted from that accident.
"Inferences drawn from the evidence must be logical and reasonable, not merely speculative. [Citations.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405; see Evid. Code, § 600, subd. (b).) "[One] may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' [Citation.]" (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
"Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, ' "an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." ' [Citations.]" (In re George T. (2004) 33 Cal.4th 620, 630-631.) "The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction." (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605; see In re Michael M. (2001) 86 Cal.App.4th 718, 726, fn. 22; In re Roderick P. (1972) 7 Cal.3d 801, 808-809.)
Even viewing the evidence in a light most favorable to the juvenile court's finding, we find no substantial evidence in the record from which the court could reasonably infer that the stolen Honda Accord was "involved in an accident resulting in damage to any property" (Veh. Code, § 20002, subd. (b)). Accordingly, the evidence is insufficient to support a finding that J.L. violated subdivision (b) of section 20002 of the Vehicle Code, and the true finding as to count 2 of Petition C must be vacated. B. Warrantless Searches of Electronic Devices and Social Media Sites 1. J.L.'s Contentions
As indicated, J.L. challenges as unconstitutionally overbroad two probation conditions permitting warrantless searches of electronic devices and social media sites and requiring him to provide his passwords thereto. Probation condition No. 24 states: "The minor shall provide all passwords to any electronic devices (including but not limited to cellular telephones, computers or notepads) within his or her custody or control and shall submit said devices to search at any time without a warrant by any peace officer." We will refer to this condition as the electronics search condition. Probation condition No. 25 states: "The minor shall provide all passwords to any social media sites (including but not limited to Facebook, Instagram, Twitter and Mocospace) and shall submit said sites to search at any time without a warrant by any peace officer." We will refer to this condition as the social media condition.
This court directed the parties to submit supplemental briefing and asked them to inform this court whether J.L. was still under probation supervision and subject to those conditions or whether his challenges had been rendered moot. We received no timely response.
In this case, it was not clear that J.L. even had a cell phone or a computer. At the disposition hearing, it was reported that minor's family did not have a landline. A cell phone unit was provided to facilitate the EMP.
In a supplemental brief filed subsequent to the Supreme Court's recent transfer order, J.L. asks this court to strike the electronics search probation condition in light of Ricardo P. J.L. suggests that his argument is like that of Ricardo P. in that his "overbreadth claim is based on his constitutional rights to privacy and expression," and he asserts that "cell phone data differs from other physical objects/records in both a qualitative and quantitative sense because cell phones contain a digital record of nearly every aspect of the carriers' lives . . . ."
2. Governing Law
"Generally, '[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 . . . ." [Citation.]' ([People v. Lent (1975) 15 Cal.3d 481,] 486.) This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) "[T]he relevant test [under Lent] is reasonableness [citation]." (Id. at p. 383.)
A trial court violates the Lent "standard when its determination is arbitrary or capricious or ' "exceeds the bounds of reason, all of the circumstances being considered." ' [Citation.]" (People v. Welch (1993) 5 Cal.4th 228, 234 (Welch).) When a defendant claims that a probation condition is unreasonable, an appellate court will review it for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379; see Ricardo P., supra, 7 Cal.5th at p. 1118.)
The California Supreme Court granted review in Ricardo P. "to decide whether an electronics search condition [was] ' "reasonably related to future criminality." ' (Lent, supra, 15 Cal.3d at p. 486.)" (Ricardo P., supra, 7 Cal.5th at p. 1116.) The probation condition at issue required Ricardo, who had admitted two counts of felony burglary and indicated to the probation officer that he had smoked marijuana (id. at pp. 1115-1116), "to submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Id. at p. 1115.)
In Ricardo P., the Supreme Court declared that "Lent's requirement that a probation condition . . . be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]" (Ricardo P., supra, 7 Cal.5th at p. 1122.) Under that rule, "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, italics added.)
Under the particular facts and circumstances in Ricardo P., the Supreme Court held that the electronics search condition was "not reasonably related to future criminality and [was] therefore invalid under Lent." (Ricardo P., supra, 7 Cal.5th at p. 1116; see id. at pp. 1124, 1128.) Stated another way, the Supreme Court held that the condition did not satisfy Lent's third prong "because, on the record before [it], the burden it impose[d] on Ricardo's privacy [was] substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119; see id. at pp. 1120, 1125, 1129.) The record "contain[ed] no indication that Ricardo had used or [would] use electronic devices in connection with drugs or any illegal activity." (Id. at p. 1116.) The court held that the record was "insufficient to justify the substantial burdens imposed by [the] electronics search condition." (Ibid.) Nevertheless, the Supreme Court recognized in Ricardo P. 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. [Citations.]" (Id. at pp. 1128-1129.)
Nothing in Ricardo P. altered the applicability of the forfeiture rule to a Lent challenge based on the individual facts and circumstances where the challenge was not raised in the trial court. Ricardo had challenged the electronics search condition in the trial court, "arguing that it '[was] not reasonably related to the crime or preventing future crime.' " (Ricardo P., supra, 7 Cal.5th at p. 1117.) Consequently, the contention was not forfeited for review on appeal in Ricardo P. (See Welch, supra, 5 Cal.4th at p. 237; see also People v. Moran (2016) 1 Cal.5th 398, 404, fn. 7; In re Sheena K. (2007) 40 Cal.4th 875, 881-882 (Sheena K.).)
In addition to the requirement of reasonableness, "[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.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.), italics added.) "Conditions [that] infringe on constitutional rights are not automatically invalid." (In re White (1979) 97 Cal.App.3d 141, 149.)
Only "a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law" that may be raised on appeal for the first time. (Sheena K., supra, 40 Cal.4th at p. 887.) A facial constitutional challenge to the "phrasing or language of a probation condition" "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (Id. at p. 885.)
On the other hand, "a probation condition may not be patently unconstitutional but may suffer nonetheless from vagueness or overbreadth" based on the particular facts. (Sheena K., supra, 40 Cal.4th at p. 887.) Not " 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Id. at p. 889.)
On appeal, a reviewing court exercises its independent judgment—i.e., it engages in a nondeferential, de novo review—on the pure question of law whether a probation condition is unconstitutionally vague or overbroad on its face. (See In re Edward B. (2017) 10 Cal.App.5th 1228, 1236-1237; People v. Cromer (2001) 24 Cal.4th 889, 894; see also Sheena K., supra, 40 Cal.4th at p. 885.)
3. Forfeiture Rule
In this case, J.L.'s counsel did not object to the electronics search condition or the social media condition on the ground that it did not satisfy the Lent test or was unconstitutionally overbroad based on the particular facts and circumstances. (Cf. People v. Appleton (2016) 245 Cal.App.4th 717, 722 (Appleton) ["[t]he Attorney General concede[d] the record show[ed that] defendant raised his objections below, and she concede[d] the objections he lodged were identical to the claims raised [on appeal]"].) In the absence of such timely objections, the People had no reason to develop the record further to establish the condition's reasonableness or constitutionality. J.L.'s failure to timely challenge the probation conditions in the juvenile court on the ground that they were unreasonable forfeited any such claim on appeal. (Welch, supra, 5 Cal.4th at p. 237; see Sheena K., supra, 40 Cal.4th at p. 883, fn. 4.) Our review is restricted to claims that each of the challenged conditions was unconstitutional on its face. (See Sheena K., supra, at pp. 886-889.) 4. Alleged Failure to Adequately Define "Electronic Device"
J.L. first asserts that the electronics search condition is unconstitutionally overbroad because it fails to adequately define "electronic device" and that the term, if broadly construed, might encompass "a digital television, [a] video game console, [an] answering machine, [a] beeper, [a] personal digital assistant . . . or personal organizer, [a] digital scanner, [a] digital oven, [a] digital washing machine," a "Kindle Fire," and a "DVD player." He quotes language from People v. Bravo (1987) 43 Cal.3d 600 (Bravo), which adopted an objective test for determining the scope of a probation condition. (Id. at p. 606; see id. at p. 607 [search condition must "be interpreted on the basis of what a reasonable person would understand from the language of the condition itself"].) In Bravo, the California Supreme Court stated: "Law enforcement officers who rely on search conditions in probation orders, the probationer himself, and other judges who may be called upon to determine the lawfulness of a search, must be able to determine the scope of the condition by reference to the probation order." (Id. at p. 606.) J.L. now asks this court to modify the electronics search condition "to limit 'electronic devices' to any cell phones, computers and/or notepads or tablets within his control so that an officer has access to his text messages, voice mail messages, call logs, photographs and email account(s)."
J.L. has not asserted that the term "electronic device" is unconstitutionally vague, but rather he asserts that the meaning of the term is important in determining the breadth of its reach. In the context of this case, the word "device" is reasonably understood as "a piece of equipment or a mechanism designed to serve a special purpose or perform a special function <an electronic~>." (Merriam-Webster's Collegiate Dict. (2009 11th ed.) p. 342.) The word "electronic" is reasonably understood as "of, relating to, or being a medium . . . by which information is transmitted electronically." (Id., at p. 401.) The term "electronic device" must also be construed in the context of the language of the condition, which indicates that it concerns electronic devices, such as cell phones and computers, whose content may be searched. That means that kitchen appliances, such as an ordinary oven or a washing machine, are not within the purview of this condition even if they have digital controls and displays.
Constitutional challenges to conditions on vagueness and overbreadth grounds are "conceptually quite distinct." (E.O., supra, 188 Cal.App.4th at p. 1153.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.]" (Ibid.) Sheena K. explained: "The vagueness doctrine bars enforcement of ' "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " [Citations.]' [Citation.] A vague law 'not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." [Citation.]' [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' [Citation.]" (Ibid.) "[A] probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' [Citation.]" (People v. Hall (2017) 2 Cal.5th 494, 501.)
Further, in claiming that the probation condition is unconstitutionally overbroad because it fails to adequately define the term "electronic device," J.L. does not present any legal argument identifying his specific constitutional rights that are burdened by any overinclusion of devices. He does not discuss how his proposed modification of the probation condition would make it correlate more closely with its legitimate purposes. Accordingly, we treat his facial overbreadth contention as waived and pass it without consideration. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
Moreover, the probation condition is not unconstitutionally overbroad on its face merely because it encompasses electronic devices other than cell phones, computers, and notepads, which are the specific examples named in the condition. By allowing searches of the content of other electronic devices that may be password protected, the condition enables a probation officer to ensure that a probationer complies with other probation conditions, which in a particular case might include gang-related conditions. (See Olguin, supra, 45 Cal.4th at pp. 380-381.) We recognize that in Ricardo P. the Supreme Court "decline[d] to read Olguin to categorically permit any probation conditions reasonably related to enhancing the effective supervision of a probationer." (Ricardo P., supra, 7 Cal.5th at p. 1127.) But the Supreme Court also determined that "[t]he fact that an electronics search condition may burden a juvenile probationer's constitutional rights does not necessarily render it invalid. [Citations.]" (Id. at p. 1126.)
If the electronics search condition were limited to only the specified electronic devices, a probationer could potentially circumvent the condition and avoid close probation supervision by using an unlisted device. We reject the claim that the electronics search condition is unconstitutionally overbroad on its face because it does not adequately define "electronic device."
5. Privacy Rights of Third Persons
Citing In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), J.L. next argues that the challenged probation conditions are unconstitutionally overbroad because they implicate the privacy right of third persons who are not otherwise subject to search or court supervision. He complains that as drafted, the probation conditions would "grant officers 'an unfettered right to retrieve any information accessible from any phone or computer' in [his] possession, including information 'stored in a remote location.' [Citation.]" J.L. requests that the conditions be "modified to limit searches to information or data easily accessible to him and, thus, in his possession and subject to his control."
In Malik J., the juvenile court orally imposed, over a defense objection, a probation condition that required Malik and "his family to permit searches of and disclose all passwords to their electronic devices and social media sites." (Malik J., supra, 240 Cal.App.4th at p. 899.) Malik, who previously had been adjudged a ward for committing a robbery, admitted that he had violated probation by committing three more robberies and possessing marijuana. (Id. at pp. 899-900.) The prosecutor informed the court that "Malik had been working with two other individuals" (id. at p. 900.), that a phone had been stolen in one of the robberies, and that "electronic devices might [have been] used to coordinate with other people" (ibid.). The appellate court subsequently noted in its opinion that the lower court "imposed the electronics search condition in response to concerns that Malik might use cell phones to coordinate with other offenders, and that he had previously robbed people of their iPhones." (Id. at pp. 904-905.)
One of Malik's appellate arguments was that "the extension of the electronics and social media search condition to his family violates his family's Fourth Amendment and due process rights because the juvenile court had no jurisdiction over Malik's family members." (Malik J., supra, 240 Cal.App.4th at p. 905.) The appellate court found that the condition was overbroad in view of the "significant privacy implications" recognized in Riley v. California (2014) 573 U.S. 373, and it declared that "the threat of unfettered searches of Malik's electronic communications significantly encroaches on his and potentially third parties' constitutional rights of privacy and free speech." (Malik J., supra, at p. 902.) It concluded that, "[in] view of these significant privacy implications, the electronics search condition must be modified to omit the requirement that Malik turn over passwords to social media sites and to restrict searches to those electronic devices found in his custody and control." (Ibid.) In its disposition, the court modified the challenged condition "to omit reference to Malik's family and passwords to social media sites, and to authorize warrantless searches of electronic devices in Malik's custody and control only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information that is not readily accessible to users of the device." (Id. at p. 906.)
In analyzing the overbreadth issue, the appellate court in Malik J. reasoned: "Remotely stored information may also implicate the privacy interests of third parties who are not otherwise subject to search or court supervision. This remains true even if the information is posted to a social networking Web site or a large group of people. There are hundreds of social networking Web sites, but all essentially have the same characteristics. They allow users to create their unique personal profile, and establish their own network of friends or join existing groups with common interests. Although a user's personal profile is potentially viewable by anyone, the Web sites have privacy features that allow users to set limits on who may access their information and what information may be shared generally. Some Web sites default their settings to allow broad public access, while others default to more private access. (Abilmouna, Social Networking Sites: What An Entangled Web We Weave (2012) 39 W. St. U. L.Rev. 99, 102.) In recognition that users of electronic media have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility, Congress passed the Stored Communications Act (18 U.S.C. § 2701 et seq.). User information stored by social networking sites is protected by the act, and several courts have recognized that users have a reasonable Fourth Amendment expectation of privacy in electronic communications, and that a warrant based upon probable cause may be required to obtain their content. [Citation.]" (Malik J., supra, 240 Cal.App.4th at p.903.)
Even in Malik J., however, the appellate court agreed that "[o]fficers must be able to determine ownership of any devices in a probationer's custody or within his or her control, and search them if they belong to the probationer or if officers have a good faith belief that he or she is a permissive user." (Malik J., supra, 240 Cal.App.4th at p. 903.) Unlike the probation condition at issue in Malik J., the electronics search condition in this case already restricts searches to those electronic devices found in J.L.'s custody or control. In addition, the social media condition in this case does not require J.L.'s family to permit searches of, and disclose all passwords to, their social media sites. The condition is most reasonably understood as requiring J.L. to provide his own passwords to his personal social media accounts. (See Bravo, supra, 43 Cal.3d at p. 606.) We may avoid potential constitutional issues by interpreting the probation condition in an objectively reasonable way. (See ibid.)
It is respondent's position that J.L. lacks standing to assert the constitutional rights of third parties and that Malik J. did not consider that limitation. We agree that J.L. has not shown that he is legally entitled to vicariously assert the rights of others on appeal.
In making an overbreadth argument, J.L. does not state the constitutional basis or source of the privacy rights that he asserts are implicated by the challenged probation conditions. Insofar as J.L. might be invoking Fourth Amendment rights, it is clear that " 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' [Citations.]" (Rakas v. Illinois (1978) 439 U.S. 128, 133-134; see id. at pp. 139-140 [standing is not proper analysis]; see People v. Schmitz (2012) 55 Cal.4th 909, 932.) As a matter of substantive law, "in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has 'a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.' [Citation.]" (Minnesota v. Carter (1998) c, 88.) Moreover, "[t]he Fourth Amendment cannot be translated into a general constitutional 'right to privacy.' " (Katz v. United States (1967) 389 U.S. 347, 350.) Insofar as J.L. might be relying upon the broader right of privacy established by the California Constitution (see Cal. Const., Art. I, § 1), that right is purely personal and cannot be asserted by anyone other than the person whose privacy has been invaded. (See Association for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC (2015) 239 Cal.App.4th 808, 821.)
Further, it is not clear that the third parties necessarily have a constitutionally protected reasonable expectation of privacy in the messages, information, images, or videos that are sent by e-mail to J.L. or posted to J.L.'s social media account. "[I]f a letter is sent to another, the sender's expectation of privacy ordinarily terminates upon delivery. [Citations.] This is true even though the sender may have instructed the recipient to keep the letters private. [Citation.]" (United States v. King (6th Cir. 1995) 55 F.3d 1193, 1196.) An e-mail message is analogous to a written letter. (See Guest v. Leis (6th Cir. 2001) 255 F.3d 325, 333.)
The same may be true with regard to postings on social media sites. For example, "Facebook users may decide to keep their profiles completely private, share them only with 'friends' or more expansively with 'friends of friends,' or disseminate them to the public at large. [Citation.]" (United States v. Meregildo (S.D.N.Y. 2012) 883 F.Supp.2d 523, 525.) "When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. [Citation.]" (Ibid.) Additionally, the individual posting the material has "no justifiable expectation that his 'friends' [will] keep his profile private. Cf. Barone, 913 F.2d at 49." (Id. at p. 526.) "And the wider his circle of 'friends,' the more likely [the individual's] posts would be viewed by someone he never expected to see them." (Ibid.)
Even if J.L. could properly assert third parties' constitutional privacy rights, he has failed to show that either condition, on its face, will invariably unconstitutionally infringe those rights. In general, the Supreme Court "has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. [Citations.]" (Smith v. Maryland (1979) 442 U.S. 735, 743-744 [no legitimate expectation of privacy in phone numbers dialed; use of pen register is not a search]; see United States v. Miller (1976) 425 U.S. 435, 442-443 [no legitimate expectation of privacy in depositor's bank records, including checks, financial statements, and deposit slips]; but see Carpenter v. United States (2018) 585 U.S. ___ , ___ [138 S.Ct. 2206, 2217] [declining to extend Smith and Miller to cell phone location records and holding that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [(cell-site location information)]"; United States v. Jones (2012) 565 U.S. 400, 402 (Jones).)
In Jones, Justice Sotomayor concurred in the majority opinion holding that Government's installation of a GPS device on a vehicle and its use to monitor the vehicle's movements was a search. In a separate concurring opinion she stated: "[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. [Citations.] This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." (Jones, supra, 565 U.S. at p. 417.)
Because we are reviewing only facial constitutionality, which is a limited inquiry, we decline to speculate whether the challenged conditions might conceivably be applied in a constitutionally impermissible manner against third parties.
6. Alleged Exposure of Private Information to Public View
As J.L. indicates, "minors, as well as adults, possess a constitutional right of privacy under the California Constitution." (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 334.) J.L. claims that the challenged probation conditions are unconstitutionally overbroad because they expose private information that "has nothing to do with monitoring [him] for criminal activity" to public view. He argues that the conditions are unconstitutionally overbroad because they impinge "unnecessarily on his constitutional right to privacy" by not limiting "the types of data that may be searched in light of the purpose for imposing the condition," which he says is "to confirm or dispel any notion that he is involved in gang activity." He claims that the conditions unconstitutionally permit "review of otherwise private information that has nothing to do with gang activity."
Since the only cognizable constitutional challenges on appeal are facial ones (see Sheena K., supra, 40 Cal.4th at pp. 886-889), this court cannot evaluate whether the electronic search and social medial probation conditions are unconstitutionally overbroad based on J.L.'s individual facts and circumstances. That would be a fact-based inquiry, which is unwarranted in the absence of a constitutional objection below.
J.L. has not established that the challenged probation conditions were unconstitutionally overbroad as a matter of law, regardless of the probationer's criminal conduct, his or her personal history, or other relevant circumstances. We find it instructive that Ricardo P. did not "categorically invalidate electronics search conditions." (Ricardo P., supra, 7 Cal.5th at p. 1128.) Rather, the California Supreme 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. [Citations.]" (Id. at pp. 1128-1129.) In appropriate situations, broad electronics search and social media conditions could be both reasonable and constitutional tools in deterring and detecting crime. Consequently, we are unable to conclude that either challenged condition was unconstitutionally overbroad on its face. (Cf. In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 [observing that, "[f]or example, while a travel restriction may be proper for a minor who lives outside the gang's territory, it may be overbroad for one who lives, works or goes to school within the area"].)
We note that probation conditions identical to those now challenged were imposed in People v. Ebertowski (2014) 228 Cal.App.4th 1170, which was cited with approval in Ricardo P., supra, 7 Cal.5th at pp. 1128-1129. The defendant in Ebertowski was an admitted gang member. (Ebertowski, supra, at pp. 1172-1173.) This court determined that the challenged conditions were reasonably related to future criminality because they enabled the probation officer to closely monitor the probationer's gang associations and activities. (Id. at p. 1177.) We also rejected claims that the conditions were unconstitutionally overbroad: "The evident purpose of the password conditions was to permit the probation officer to implement the search, association, and gang insignia conditions that were designed to monitor and suppress [the] defendant's gang activity. . . . [The d]efendant does not suggest how the password conditions could be more closely tailored to this purpose, and we can conceive of no adequate restriction that would still serve this purpose." (Id. at p. 1175.) --------
DISPOSITION
The judgment is reversed for limited purposes. Upon remand, the juvenile court shall vacate its true finding as to count 2 and amend its jurisdiction and disposition orders accordingly.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.