Opinion
H046988
03-09-2020
In re J.Q., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.Q., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 19JV000115)
The minor, J.Q., was declared a ward of the juvenile court based on findings that he committed kidnapping to commit robbery, second degree robbery, and assault with a deadly weapon. The juvenile court declared the minor a ward and placed him on probation, with a requirement that he serve time in custody. On appeal from the jurisdictional order, the minor challenges the sufficiency of the evidence supporting the aggravated kidnapping allegation and the admission of certain testimony. As to the dispositional order, he argues the juvenile court erred by failing to set forth his maximum term of confinement and failing to designate the assault with a deadly weapon adjudication as a misdemeanor or a felony. Finally, he challenges the constitutionality of an electronic search probation condition. We shall affirm the jurisdictional order, reverse the dispositional order, and remand the matter to the juvenile court with directions.
I. BACKGROUND
A. Factual Summary
We take the facts from the testimony at the joint jurisdictional hearing, which was held for the minor and the two other minors involved in the underlying incident—A.J. and J.L.
Shortly before 8:00 p.m. on January 26, 2019, U.C. was walking to his car outside his Salinas apartment building when three people attacked him on a walkway near the parking lot. U.C. testified that "there was some light" in the location where he was first attacked. The minors grabbed U.C. and moved him nearly 55 feet along the walkway to an area between apartment buildings. U.C. testified that it was dark in the second location. There, the minors hit U.C. repeatedly; robbed him of his wallet, car keys, and cell phone; and stabbed him in his hand and in the side of the body. U.C. identified the minor, A.J., and J.L. as the three attackers. U.C. further testified that the minor was the one who stabbed him.
Seventeen-year-old M.R. testified that she witnessed the attack on U.C. out her bedroom window. She saw three males hitting a fourth male, who was on the ground. M.R. recognized the attackers from school. She identified them as the minor, A.J., and J.L. According to M.R., the minor was wearing a black sweater with white stripes, A.J. was wearing a black hoodie, and J.L. was wearing a gray hoodie. M.R. saw the minor with a knife.
U.C's brother, I.C., saw U.C. getting beat up by three people. I.C. came to help but fled when one of the attackers hit him. After the attack was over, I.C. saw that U.C. was bleeding from his hand and ribcage. In court, I.C. identified the minor as one of the attackers.
On the night of the attack, police detained J.L. He was wearing a gray sweatshirt and had a pocket knife in his pocket. The knife had blood on it.
Police also detained the minor that evening near the scene of the stabbing. Video from the detaining officer's body camera shows the minor wearing a black sweatshirt with light gray horizontal and vertical stripes. The detaining officer observed that the minor was sweaty and had a fresh cut on his hand. During a search of the minor, officers found a bank card belonging to U.C.
Police arrested the minor. After being read his Miranda rights, the minor told police he was walking with two friends when he saw U.C., who he mistook for someone who had "jumped" him in the past. He acknowledged grabbing U.C. in a bear hug and punching him twice, once in the body and once in the face. The minor said that he then realized he had the wrong person and that he and his friends left. He denied knowing U.C. had been stabbed.
B. Procedural History
In January 2019, the Monterey County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) alleging that the minor had committed kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1); count 1), attempted murder (§§ 664, 187, subd. (a); count 2), second degree robbery (§ 211; count 3), and assault with a deadly weapon (§ 245, subd. (a)(1); count 4). As to counts 1 through 3, the petition alleged that the minor personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) and personally used a deadly weapon (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The juvenile court held a contested jurisdictional hearing in April 2019. At the conclusion of the hearing, the court found the attempted murder and associated enhancement allegations not true. The court found true all the other allegations. That is, the court found the kidnapping to commit robbery, second degree robbery, and assault with a deadly weapon allegations true, as well as the allegations that the minor personally inflicted great bodily injury on the victim and personally used a deadly weapon in the commission of the aggravated kidnapping and the robbery.
At a dispositional hearing on May 22, 2019, the court declared the minor a ward of the juvenile court, placed him on probation, and—as a term of probation—ordered the minor to serve 482 days in custody at the Monterey County Youth Center Program with credit for 117 days served. The court imposed various other probation conditions including a condition that the minor submit to warrantless searches of text messages, voicemail, call logs, photographs, email, internet sites, and social media accounts on all of his electronic devices. The minor timely appealed.
II. DISCUSSION
A. Sufficiency of the Evidence Supporting the Kidnapping to Commit Robbery Adjudication
The minor contends that the juvenile court's finding that he committed kidnapping to commit robbery in violation of section 209, subdivision (b)(1) is unsupported by sufficient evidence. Specifically, he argues that any movement of the victim was merely incidental to the robbery and did not increase the risk of harm to the victim.
1. Legal Principles
Section 209, subdivision (b) proscribes kidnapping to commit robbery or certain sex offenses and is often referred to as aggravated kidnapping. (People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20, overruled on other grounds by People v. Hardy (2018) 5 Cal.5th. 56, 104.) The crime of aggravated kidnapping occurs "only . . . if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense" [i.e., the robbery]. (§ 209, subd. (b)(2).) Thus, "[t]he essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).)
The two aspects of the asportation element of aggravated kidnapping—movement beyond that merely incidental to the commission of the crime and that increases the risk of harm to the victim—"are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim." (People v. Martinez (1999) 20 Cal.4th 225, 236, overruled on other grounds by People v. Fontenot (2019) 8 Cal.5th 57; Dominguez, supra, 39 Cal.4th at p. 1152 ["whether the victim's forced movement was merely incidental to the [target crime] is necessarily connected to whether it substantially increased the risk to the victim"].) Circumstances relevant to the asportation element include "the actual distance the victim was forced to move," "whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes." (Ibid.)
" 'The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials.' [Citation.] Thus, 'we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.' " (In re Cesar V. (2011) 192 Cal.App.4th 989, 994.) Under that standard, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (Ibid.)
2. Analysis
The victim testified that his attackers forcibly moved him from a lit area close to the parking lot to a darker portion of the walkway, where they beat, robbed, and stabbed him. Police measured the distance the victim testified he was moved to be more than 50 feet.
The trier of fact could reasonably have inferred that the walkway was likely to be more heavily trafficked near the parking lot than between buildings. Based on that inference, the trier of fact could have concluded that the movement decreased the likelihood of detection (and rescue) by passersby. (See People v. Aguilar (2004) 120 Cal.App.4th 1044, 1049 [sufficient evidence supported aggravated kidnapping conviction where defendant moved the victim "133 feet down a sidewalk at night, from an area illuminated by a porch light to an 'extremely dark' area," thereby increasing the risk to the victim and decreasing the likelihood of detection].) We acknowledge that the attack occurred directly outside multiple residences, such that the movement did not preclude detection. But the trier of fact could have concluded that potential witnesses inside the apartment buildings would have been unable come to the victim's aid as quickly as a passersby on the walkway, such that the movement enhanced the attackers' opportunity to commit additional crimes. (Dominguez, supra, 39 Cal.4th at p. 1152.) In sum, the kidnapping to commit robbery adjudication is supported by sufficient evidence.
B. Admissibility of Officer's Testimony Regarding the Minor's Injuries
The minor argues that the juvenile court erred in permitting the officer who detained and arrested him to testify that cuts he observed on the minor's hand were offensive wounds caused by using a knife. The minor contends the officer's opinion regarding the wounds constituted improper expert opinion under Evidence Code sections 801 and 802. The minor mischaracterizes the challenged testimony, which we conclude was properly admitted.
1. Factual Background
During the minor's initial detention, the officer explained to the minor that he was being detained because "we had a stabbing happen down the street and I see you leaving the area in a hurry, you're all sweaty, you kinda match the description that they're . . . providing . . . and then I see that you have a cut on your finger
At the jurisdictional hearing, the prosecutor followed up on the officer's observation that the minor had a cut. She showed the officer a picture of the minor's hands taken the night he was arrested. The officer testified that the picture showed "small lacerations on [the minor's] fingers." The prosecutor then asked the officer "[w]hy did the lacerations on his fingers give you pause? Why did you notice those on his fingers?" The minor's counsel objected that the question called for improper opinion testimony. The prosecutor noted that the officer was not testifying as an expert and that she merely was seeking his lay opinion. Over the minor's counsel's renewed objection, the officer was permitted to testify that "[t]he cuts caught his attention because[, based on his] previous experience in investigating stabbings and/or fights, oftentimes the suspects injure themselves during these altercations and also have fresh wounds to their hands from cutting, punching, scraping themselves, et cetera." The officer further testified that he had investigated at least 10 stabbings and that, in those cases, "the suspects oftentimes also injure their own hands during the altercation or stabbing incident."
2. Legal Principles
Expert opinion testimony is admissible only if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative." (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772.) "The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion." (People v. McDowell (2012) 54 Cal.4th 395, 426.)
"If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." (Evid. Code, § 800.) We review the admission of lay opinion testimony for abuse of discretion. (People v. Sánchez (2016) 63 Cal.4th 411, 456.)
3. Analysis
Contrary to the minor's assertion, the officer did not opine that the cuts were offensive wounds the minor sustained while stabbing the victim. Rather, the officer testified that the cuts caught his attention because, in his experience, people involved in stabbings or fights often sustain injuries to their hands from "cutting, punching, scraping themselves, et cetera." (Italics added.)
The minor's suggestion that the officer testified as an expert also is mistaken. The officer was not offered as an expert and the trial court did not designate him as such. Accordingly, Evidence Code sections 801 and 802 have no application. Rather, the question is whether the court erred in admitted the evidence as lay opinion testimony under Evidence Code section 800. We discern no abuse of discretion. The officer's testimony was based on his perceptions of the victim and his experience, and it was helpful to explain why the minor initially was detained. (See People v. Virgil (2011) 51 Cal.4th 1210, 1253-1254 [detective's testimony that "the composite [sketch of the suspect] 'kind of resembled' . . . defendant" held to be permissible lay opinion because it "was based on the detective's perceptions and was helpful for the jury to understand how [the detective] came to suspect defendant was connected to the" crime]; People v. Becerrada (2017) 2 Cal.5th 1009, 1032 [trial court did not err in admitting correctional officer's testimony that defendant "was among the 'top five' inmates in manipulating a situation" as lay opinion where "the witness knew defendant well and had had contact with 'thousands' of inmates" and the "opinion helped the jury to determine how serious defendant's criminal behavior in jail was"].)
Even assuming the trial court abused its discretion in admitting the testimony, that assumed error was not prejudicial. The admission of evidence in violation of state law, such as the Evidence Code, is prejudicial (and reversible) only upon a showing that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, the victim testified that the minor was the one who stabbed him. And the eyewitness, M.R., testified that the minor had a knife during the attack. In light of that evidence, it is not reasonably probable that a result more favorable to the minor would have been reached had the officer not testified about that the cuts to the minor's hands were indicative of a fight or a stabbing.
C. Failure to Calculate Maximum Confinement Time
The minor contends the juvenile court erred in failing to set forth his maximum term of confinement. The minor further argues that in determining the maximum term of confinement, the juvenile court should apply section 654 to stay punishment for the robbery and assault with a deadly weapon adjudications. The Attorney General responds that section 654 does not apply because the minor was granted probation.
1. Legal Principles
Welfare and Institutions Code section 726, subdivision (d)(1) provides that "[i]f the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [s]ection 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." Welfare and Institutions Code section 726, subdivision (d)(5) defines "physical confinement" to mean "placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Department of Corrections and Rehabilitation, Division of Juvenile Justice." Welfare and Institutions Code section 730 authorizes the commitment of a minor who has been adjudged a ward of the court to a juvenile home, ranch, camp, forestry camp, or juvenile hall.
"Welfare and Institutions Code section 730 has been broadly interpreted to authorize a juvenile court to order a juvenile confined to juvenile hall for a period of time as a condition of probation." (In re Ronny P. (2004) 117 Cal.App.4th 1204, 1207.) When a minor is ordered confined as a condition of probation, the plain language of Welfare and Institutions Code section 726, subdivision (d)(1) requires the court to set forth the maximum term of confinement. By contrast, a maximum period of physical confinement may not be set when a juvenile is placed on home probation because he or she remains in his or her parents' custody. (In re A.C. (2014) 224 Cal.App.4th 590, 591-592.)
Section 654 applies in the context of determining a juvenile's maximum confinement term only where the court elects to aggregate the periods of physical confinements on multiple counts and/or multiple petitions pursuant to Welfare and Institutions Code section 726. (In re Billy M. (1983) 139 Cal.App.3d 973, 979 ["Since the intent of Welfare and Institutions Code section 726 is to insure a minor is not subject to confinement for a term in excess of that to which an adult convicted of the same offense or offenses is subject, there is no need to stay concurrent terms absent a showing the length of the juvenile's term is increased by such disposition"]; In re Robert W. (1991) 228 Cal.App.3d 32, 34 ["So long as the theoretical maximum length of a juvenile's potential confinement is not increased by the aggregation of his offenses [citation], neither the considerations underlying Penal Code section 654 nor the prohibition against convicting adults of both greater and lesser offenses, is relevant"].)
2. Analysis
Here, the court adjudged the minor a ward of the court and ordered him to serve 482 days in custody at the Monterey County Youth Center Program (with credit for 117 days served). In doing so, the court removed the minor from the physical custody of his parents. Accordingly, by its plain terms, Welfare and Institutions Code section 726, subdivision (d)(1) applied and required the court to set a maximum term of confinement. The court failed to do so. Contrary to the Attorney General's suggestion, setting a probation termination date is not the same as establishing a maximum term of confinement. Nor did the court satisfy Welfare and Institutions Code section 726, subdivision (d)(1) by ordering the minor to serve a particular number of days in custody, as he could be ordered returned to custody for future probation violations. Given the court's failure to calculate the minor's maximum term of confinement, the parties' section 654 arguments are premature.
We shall remand the matter to the juvenile court to set a maximum term of confinement. The parties can raise their arguments regarding the application of section 645 on remand, at which time the juvenile court may consider them in the first instance.
D. Failure to Declare Wobbler a Felony or a Misdemeanor
The minor contends the juvenile court failed to designate the assault with a deadly weapon adjudication as a misdemeanor or a felony offense, as is statutorily required. We agree.
1. Legal Principles
Assault with a deadly weapon is punishable as either a felony or a misdemeanor. (§245, subd. (a)(1).) "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Welf. & Inst. Code, § 702, italics added.)
The California Supreme Court has determined that Welfare and Institutions Code section 702's language is "unambiguous" and its "requirement is obligatory." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) Welfare and Institutions Code section 702 "requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.]" (Manzy W., supra, at p. 1204.)
The required declaration may be made at the jurisdictional hearing or at the disposition hearing. (Cal. Rules of Court, rules 5.780(e)(5), 5.790(a)(1), 5.795(a).) "If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony." (Rule 5.780(e)(5), italics added; see also rules 5.790(a)(1), 5.795(a).) The juvenile court's determination must also be noted in an order or in the minutes from the hearing. (Rules 5.780(e), 5.795(a).)
All further rule references are to the California Rules of Court.
2. Analysis
Here, the juvenile court did not expressly declare whether the assault with a deadly weapon adjudication was a misdemeanor or a felony. The disposition order signed by the court includes a preprinted form with the statement: "The court previously sustained the following counts. Any charges which may be considered a misdemeanor or a felony [f]or which [the] court has not previously specified the level of offense are now determined to be as follows . . . ." Each sustained count is listed beneath that statement and beside each listed offense are two checkboxes, one labeled "Misdemeanor" and the other labeled "Felony." An "X" appears in the felony checkbox for each count.
The Attorney General contends the marked checkbox beside "Felony" is sufficient. We disagree. The dispositional order lists all three sustained counts, two of which are not wobblers. (§§ 209, subd. (b)(1); 211; 213, subd. (a)(2).) Accordingly, the order does not clearly "establish[] that the juvenile court was aware of its discretion to sentence the offense [at issue] as a misdemeanor rather than a felony." (Manzy W., supra, 14 Cal.4th at p. 1210.)
We will remand the matter to the juvenile court so that it may declare whether the minor's offense of assault with a deadly weapon is a felony or a misdemeanor.
E. Constitutionality of the Electronic Search Probation Condition
The court ordered the minor, as a condition of his probation, to "[s]ubmit all electronic devices under your control to a search by the probation officer or a peace officer of any text messages, voicemail messages, call logs, photographs, e-mail accounts, internet sites and social media accounts, with or without reasonable or probable cause or the benefit of a search warrant, at any time of the day or night and provide the probation or peace officer with any passwords necessary to access the information specified, and you will not change or add any email addresses or passwords without prior permission of your Probation Officer. The minor shall not knowingly clean or delete his/her Internet browsing history without prior permission from your Probation Officer." While the minor did not object to that electronic search condition below, he challenges it on appeal as unconstitutional.
1. Availability of Appellate Review and Standard of Review
A court of appeal may review the constitutionality of a probation condition, even when it was not been challenged at the time it was imposed, if the question can be resolved as a matter of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) Thus, we can consider facial challenges to the constitutionality of probation conditions not objected to below, as such challenges "do[] not require scrutiny of individual facts and circumstances but instead require[] the review of abstract and generalized legal concepts." (Id. at p. 885.) By contrast, a constitutional defect that is "correctable only by examining factual findings in the record or remanding to the trial court for further findings" is subject to forfeiture if the claim was not raised in the trial court. (Id. at p. 887.) Our review is de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
2. Overbreadth Challenges
The minor maintains the electronic search condition is unconstitutionally overbroad because it unnecessarily burdens his constitutional rights to privacy and free speech. He contends the condition requires him to allow law enforcement to access his private medical records and financial documents. He further contends that the condition will have a chilling effect on his speech.
a. Legal Principles - Overbreadth and Facial Challenges
The California Supreme Court has held that " '[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.' " (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) "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.) Generally, "a statute must be incapable of constitutional application in any circumstance in order for it to be found facially invalid." (People v. Rodriguez (1998) 66 Cal.App.4th 157, 168; Willis v. City of Seattle (9th Cir. 2019) 943 F.3d 882, 886 ["A facial challenge is a claim that a law or policy is unconstitutional in all of its applications."].)
By contrast, "the federal doctrine of overbreadth is a relaxation of the rule that a party to whom a statute constitutionally applies cannot assert the potential unconstitutional impact of that statute on the rights of third parties. The United States Supreme Court has 'provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or "chill" constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.' [Citation.] It is not clear that the federal doctrine applies outside its First Amendment context. [Citation.] [¶] . . . [I]n discussing the possible overbreadth of probation conditions, California courts do not evaluate how they might restrict the rights of third parties, but whether they are overly restrictive of the probationer's constitutional rights, and this focus is not limited to the probationer's First Amendment rights. [Citation.]" (People v. Barajas (2011) 198 Cal.App.4th 748, 754, fn. 4.)
b. The Condition is Capable of Constitutional Application Despite Impingement on Privacy Rights
"[P]arolees and probationers retain some expectation of privacy, albeit a reduced one." (In re Jaime P. (2006) 40 Cal.4th 128, 137.) There can be no doubt that the electronic search condition impinges on constitutional privacy rights. (See Ricardo P., supra, 7 Cal.5th at pp. 1116-1117, 1123 [probation condition requiring submission of " 'electronics including passwords . . . to search by Probation Officer or peace office[r]' " "significantly burdens privacy interests"].) It also has a legitimate purpose. Like probation conditions permitting the warrantless search of a probationer's person, residence, or vehicle, the electronic search condition "aid[s] in deterring further offenses by the probationer and in monitoring compliance with the terms of probation," thereby "promot[ing] rehabilitation and reduc[ing] recidivism while helping to protect the community from potential harm by probationers. [Citation.]" (People v. Robles (2000) 23 Cal.4th 789, 795.)
The minor's facial overbreadth challenge raises the question whether the condition's encroachment on privacy rights could be sufficiently closely tailored to its purposes in any case. We can conceive of circumstances in which the fit between the electronic search condition's purpose and the burdens it imposes would be sufficiently close to pass constitutional muster. Imagine, for example, a probationer whose underlying offense involved the use of electronic devices to stalk another person, embezzle money, make criminal threats, or engage in human trafficking. In such cases, the intrusion on the probationer's privacy would be justified by the state's interest in monitoring compliance with the terms of parole, deterring crimes, and protecting the public.
We are not alone in rejecting a facial overbreadth challenge to an electronic search condition. In People v. Guzman (2018) 23 Cal.App.5th 53, 58, 63-65 (Guzman) our colleagues in the First District rejected such a challenge to a probation condition that required the probationer to "submit to search of all computers, hard drives, flash drives, thumb drives, disks, removable media, computer networks, electronic data storage devices, personal digital assistants, cell phones of any kind, notebooks or computers of any kind under the custody or control of the defendant to which he has either sole, shared, partial or limited access, without a search warrant at any time of the day or night"; to "provide his probation officer with all the passwords, log-ins, access codes or other information necessary to access any of the data storage devices or any social media that is accessed through the personal device"; and "not [to] possess or utilize any program or application on any computer or personal data storage device or through a remote control [that] deletes or scrubs data from the electronic device." The Guzman court noted that, in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski), this court rejected an as applied overbreadth challenge to an electronic search condition. (Guzman, supra, at p. 65.)
Ebertowski was granted probation after pleading no contest to criminal threats, resisting and deterring an officer, and a gang affiliation allegation. There was evidence that he promoted his gang on social media. (Ebertowski, supra, 228 Cal.App.4th at p. 1175.) On appeal, he asserted an overbreadth challenge to a probation condition requiring him to "(1) 'provide all passwords to any electronic devices, including cell phones, computers or notepads, within your custody or control, and submit such devices to search at any time without a warrant by any peace officer' and (2) 'provide all passwords to any social media sites, including Facebook, Instagram and Mocospace and to submit those sites to search at any time without a warrant by any peace officer.' " (Id. at p. 1172.) This court held that the electronic search condition was not overbroad as applied to defendant, noting that "[a]ccess to all of defendant's devices and social media accounts is the only way to see if defendant is ridding himself of his gang associations and activities, as required by the terms of his probation, or is continuing those associations and activities, in violation of his probation." (Id. at p. 1175.)
The rejection of an as applied overbreadth challenge to an electronic search condition demonstrates that such a condition is not facially invalid. We recognize that the electronic search condition imposed here is broader than the one at issue in Ebertowski. Notably, whereas the condition in Ebertowski required the disclosure of passwords to electronic devices and social media sites, the condition at issue here requires the disclosure of "any passwords necessary to access" "text messages, voicemail messages, call logs, photographs, e-mail accounts, internet sites and social media accounts." By requiring the disclosure of "any passwords necessary to access" "internet sites," the condition arguably permits authorities to access all of the probationer's password-protected online accounts, including on-line bank accounts, on-line medical records, e-commerce accounts, video streaming service accounts, and the list goes on. But financial and medical records could likewise be found during a search of a probationer's residence, yet residential search probation conditions are routinely imposed. Accordingly, the breadth of the electronic search condition at issue does not, in our view, render it per se unconstitutional. Moreover, the minor is protected in the enforcement of the search condition by the Fourth Amendment, which requires that warrantless searches carried out pursuant to involuntary search conditions not be arbitrary, capricious, or harassing. (People v. Reyes (1998) 19 Cal.4th 743, 752 [a search carried out pursuant to a parole or probation search condition "is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing"].)
c. The Minor Forfeited his Free Speech-Based Overbreadth Claim
As to the electronic search condition's impact on free speech rights, the minor argues that, "[he] may be hesitant or fearful to express many lawful and legitimate thoughts, feelings, and ideas" as a result of the condition. He says "[t]his chilling effect is not minor in relation to the state's interest in ensuring his lawful behavior [because he] was convicted of an offense that had little or no connection with his use of a cell phone, computer, or other means of communication . . . [and t]here is no evidence that [he] used social media, email, text messages, or any means of electronic communication to plan the incident, locate the victim, or boast of the incident before or after it occurred."
The minor characterizes the foregoing claim as a facial overbreadth challenge to avoid a finding of forfeiture based on the absence of any objection below. But the claim plainly requires analysis of the particular facts of his case (e.g., whether his crimes involved the use of a cell phone). Because this claim does not present a pure question of law that can be resolved without reference to the record below or remanding for further factual findings, the minor forfeited it by failing to raise it below. (Sheena K., supra, 40 Cal.4th at pp. 887-889; People v. Smith (2017) 8 Cal.App.5th 977, 987 [overbreadth challenge to cell phone and computer probation search condition forfeited, where claim not raised below and depended on the record developed in the trial court].)
Even if we treat the minor's claim as a facial one, it fails. We do not doubt that the electronic search condition may chill a probationer's speech. But the condition would be sufficiently narrowly drawn in the hypothetical cases we posited above, where the probationer's underlying offense involved the use of electronic devices to stalk, embezzle, make criminal threats, or engage in human trafficking.
3. Vagueness Challenge
The minor argues that the electronic search condition is vague because it is not clear what "type of information" is "exempt." He posits that some probation officers might construe the condition as applying to health and employment records and other may not, such that "he has no 'fair notice' of what is expected of him."
a. Legal Principles - Vagueness
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (Sheena K., supra, 40 Cal.4th at p. 890.) "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." (Ibid.) That is, the probationer must know in advance when he or she may be in violation of the condition.
b. Analysis
The condition requires the minor to (1) "[s]ubmit all electronic devices under [his] control to a [warrantless] search by the probation officer or a peace officer"; (2) "provide the probation or peace officer with any passwords necessary to access" the "text messages, voicemail messages, call logs, photographs, e-mail accounts, internet sites and social media accounts" accessible via such electronic devices; and (3) refrain from clearing his internet browsing history without the prior permission of his probation officer. We perceive no ambiguity in those requirements. No websites or passwords are exempt. The minor is expected to provide those passwords necessary to access the "text messages, voicemail messages, call logs, photographs, e-mail accounts, internet sites and social media accounts" accessible via his electronic devices. If he fails to comply with a probation or peace officer's request for such a password, he will be in violation of his probation.
III. DISPOSITION
The jurisdictional order is affirmed. The dispositional order is reversed, and the matter is remanded for limited purposes. On remand, the juvenile court shall: (1) exercise its discretion under Welfare and Institutions Code section 702 and expressly declare on the record whether the minor's offense of assault with a deadly weapon is a felony or a misdemeanor; and (2) set the minor's maximum term of confinement.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
GROVER, J. /s/_________
DANNER, J.