Opinion
A149594
06-23-2017
In re K.I., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.I., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00792)
This is an appeal from the juvenile court's dispositional order after minor K.I. entered a no contest plea to misdemeanor assault in violation of Penal Code section 240. Pursuant to this order, K.I. was placed on probation subject to various terms and conditions, including that she submit to warrantless searches of her electronic devices "[f]or the limited purpose of searching for posting of nude photographs of the minor"; that she successfully complete "all motions of the program, follow all treatment requirements and obey all rules and regulations" of the Girls in Motion program at juvenile hall; and that she maintain "[p]eaceful contact" with the victim (to wit, her mother). On appeal, K.I. challenges these conditions of probation as unconstitutionally vague and/or overbroad. For reasons set forth below, we reject her challenges and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 18, 2016, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging that K.I. exhibited a deadly weapon other than a firearm, a misdemeanor in violation of Penal Code section 417, subdivision (a)(1). On August 24, 2016, an amended petition was filed adding a second count, to wit, misdemeanor assault in violation of section 240. The same day, minor admitted the second count and the first count was dismissed.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
The petition was based on the following undisputed facts. On August 17, 2016 at around 1:00 a.m., police responded to a report that 14-year-old K.I. was brandishing a knife at her mother (hereinafter, mother). Mother told the officer that K.I. had recently returned home after being detained for shoplifting. Angered by mother's decision to take away her cell phone as a punishment, K.I. demanded that mother return it. When mother refused, K.I. picked up a kitchen knife and threatened her. K.I.'s grandmother was then able to grab the knife from her, and no one was hurt. Mother told the officer, however, that she was sure her daughter would not physically harm her.
About nine months prior to this incident, K.I. reported to probation that she had sent her boyfriend a nude picture of herself, which her boyfriend's sister then posted on social media. Mother, to the contrary, told probation that K.I. had herself posted this picture on social media. Following this incident, K.I. attended school counseling once a week for five months.
Following a contested disposition hearing on September 26, 2016, the juvenile court adjudged K.I. a ward of the court and placed her on probation. Additionally, the juvenile court ordered K.I. to participate in the Girls in Motion (GIM) program in juvenile hall, and imposed various terms and conditions of probation. The court then set the maximum time of K.I.'s confinement at six months, with five months and ten days of custody time remaining.
On September 28, 2016, K.I. filed a timely notice of appeal.
DISCUSSION
Minor challenges the following three terms of her probation as unconstitutionally vague or overbroad: Condition No. 7: "Minor to participate in the County Institution Program, GIM, minor must successfully complete all motions of the program, follow all treatment requirements, and obey all rules and regulations"; Condition No. 17: "Submit all electronic devices under your control to search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts, with or without 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. For the limited purpose of searching for posting of nude photographs of the minor"; and Condition No. 19: "Peaceful contact with the victim: [Mother]."
We address each of these probationary terms below after setting forth the relevant legal framework.
Where the juvenile court places a minor on probation following the minor's commission of a crime, it "may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (Welf. & Inst. Code, § 730, subd. (b).) " 'Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation. "A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." [Citation.] "In planning the conditions of appellant's supervision, the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history. [Citations.]" [Citation.] [Citations.] Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation]. [Citations.] But every juvenile probation condition must be made to fit the circumstances and the minor.' " (In re Binh L. (1992) 5 Cal.App.4th 194, 203.)
Despite the greater latitude afforded juvenile courts in ordering probation conditions, it remains the law in all cases that "[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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In addition, a probation condition that imposes limitations on a person's constitutional right "must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K., supra, 40 Cal.4th at p. 890. See also In re Spencer S. (2009) 176 Cal.App.4th 1315, 1331 [probation condition against minor restricting him from associating with probationers was not overbroad where minor had previously been in trouble for fighting an alleged gang member, and the restriction was thus "sufficiently related to the goals of (1) promoting his rehabilitation and reformation, and (2) protecting the public"].) "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 [minor]'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.) " 'Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile." ' " (In re Tyrell J. (1994) 8 Cal.4th 68, 82, disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130; In re D.G. (2010) 187 Cal.App.4th 47, 52.)
A challenge to the constitutionality of a probation condition may, at the court's discretion, be raised for the first time on appeal (as it was in this case). (In re Sheena K., supra, 40 Cal.4th at pp. 885, 888 [recognizing an exception to the forfeiture rule where a facial constitutional challenge presents a pure question of law and is "easily remediable on appeal by modification of the condition . . . not requiring additional factual findings"].) Generally, the appellate court then reviews a juvenile court's imposition of a probation condition for abuse of discretion. (In re Juan G. (2003) 112 Cal.App.4th 1, 7.) However, whether a probation condition is unconstitutionally overbroad or vague presents a question of law reviewed on appeal de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
I. Full Compliance with GIM Program.
We first consider the probation requirement that K.I. "participate in the County Institution Program, GIM, [and] . . . successfully complete all motions of the program, follow all treatment requirements, and obey all rules and regulations." According to K.I., this condition is unconstitutionally vague because it fails to provide fair notice of what is required of her and could be interpreted in an arbitrary manner. Instead, K.I. argues, the court should "specify all the motions and all the treatment requirements" that are required of her in the order. We disagree.
As mentioned above, the juvenile court has broad discretion when setting probation conditions, and a condition will be found unconstitutionally vague only if it is "not sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." (In re E.O., supra, 188 Cal.App.4th at p. 1153.) "The underpinning of a vagueness [challenge]" is the due process concept of "fair warning." (People v. Castenada (2000) 23 Cal.4th 743, 751.) In this case, the challenged condition identifies exactly what is required of her - to wit, successful completion of the GIM program and full compliance with its treatment requirements, rules and regulations. While the disposition order does not specify in writing each of the program's mandates, K.I., who has not challenged her placement in the GIM program (to wit, a county-run program), identifies no authority, and we are aware of none, holding that omission of these details renders the condition unconstitutionally vague. Nor does she suggest, much less demonstrate (as is her burden on appeal), that the GIM program's treatment requirements, rules and regulations are concealed or withheld from program participants. Under such circumstances, we decline to find any error, constitutional or otherwise, in ordering K.I. to meet this condition. (See People v. Forrest (2015) 237 Cal.App.4th 1074, 1081 ["a probation condition should be evaluated in its context and only reasonable specificity is required"].)
II. Warrantless Search of Electronic Devices.
K.I. next challenges the probation condition that she "[s]ubmit all electronic devices under your control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts, with or without 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. For the limited purpose of searching for posting of nude photographs of the minor." According to K.I., this condition is overbroad and infringes on her constitutional right to privacy (U.S. Const., 4th Amend.) to the extent it includes within the searchable content her voicemail messages, call logs, and social media sites lacking photograph-sharing capabilities. We again reject her argument.
As explained above, a juvenile court, when exercising its broad discretion to set a juvenile's probation terms, " 'should consider the minor's entire social history in addition to the circumstances of the crime.' " (In re R.V. (2009) 171 Cal.App.4th 239, 246.) And here, in fashioning the electronic search condition, it is clear from the order itself that the juvenile court was considering the prior incident in which K.I. shared a nude photograph of herself on social media, for which she later underwent counseling. As the juvenile court explained on the record, "[the electronic search condition] would relate to potential future criminal activity and posting nude photos of a minor is violative of the law, and it is specifically limited to search for that, nude photos." While K.I. objected that the condition, as crafted by the court, was not "related to the offense here [to wit, assault] in any way," she did not object to the breadth of the electronic search condition. Had she done so, the juvenile court would have had the opportunity to modify the condition in the manner she now proposes or, at minimum, to explain why access to her voicemail messages, call logs and non-photo-sharing social media sites was necessary in her case. (People v. Welch (1993) 5 Cal.4th 228, 235 ["A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis"].)
However, notwithstanding K.I.'s failure to properly preserve this issue for review, we nonetheless conclude the electronic search condition is appropriate. "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., supra, 188 Cal.App.4th at p. 1153.) Here, the record provides ample support for the juvenile court's decision that, given K.I.'s past use of electronic devices and social media to publish nude photographs of herself - an act that is not only illegal, but injurious to a minor's emotional and psychological health - a broad search condition inclusive of all call history, voicemail and social media accounts was both reasonably necessary for K.I.'s rehabilitation and constitutionally permissible. (See In re Malik J. (2015) 240 Cal.App.4th 896, 904 [the minor's previous theft of a cell phone justified the search of any cell phones or electronic devices in his possession to determine if he was the lawful owner of such]; cf. In re Erica R. (2015) 240 Cal.App.4th 907, 913 ["Because there is nothing in [Erica's] past or current offenses or [her] personal history that demonstrates a predisposition" to use electronic devices or social media in connection with criminal activity, "there is no reason to believe the current restriction will serve the rehabilitative function of precluding [Erica] from any future criminal acts"].) The electronic search condition thus stands.
We question K.I.'s contention that the exception to the forfeiture rule for a facial challenge to the constitutionality of a probation term applies in this situation, given that proper consideration of the electronic search condition in this case cannot be undertaken without reference to the particular juvenile record developed below. (See In re Sheena K., supra, 40 Cal.4th at p. 887 [recognizing the "rare[]" exception to the forfeiture rule where a facially overbroad probation condition "is capable of correction without reference to the particular sentencing record developed in the trial court"].)
III. Peaceful Contact with the Victim.
Finally, K.I. contends the probation condition requiring her to maintain "peaceful contact" with her mother is unconstitutionally vague because it fails to specify the exact type(s) of contact that is prohibited. As the People note, the term, "peaceful contact," has a readily apparent legal meaning and has, not uncommonly, been included in probation orders. (See Welf. & Inst. Code, § 213.5, subd. (b) [authorizing the court to issue a protective order "enjoining the child from contacting, threatening, stalking, or disturbing the peace of any person the court finds to be at risk from the conduct of the child, or with whom association would be detrimental to the child "]; see also In re Bushman (1970) 1 Cal.3d 767, 773 ["The terms 'disturb the peace' and 'breach of the peace,' which are substantially synonymous, have long been understood to mean disruption of public order by acts that are themselves violent or that tend to incite others to violence. Thus, one may be guilty of disturbing the peace within that part of section 415 if he engages in 'tumultuous' conduct, i.e., violent conduct that willfully and maliciously endangers public safety or order. He may also be guilty of disturbing the peace through 'offensive' conduct if by his actions he willfully and maliciously incites others to violence or engages in conduct likely to incite others to violence "], disapproved on other grounds by People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.)
K.I. acknowledges the following cases that reference "peaceful contact" probation conditions: People v. Seymour (2015) 239 Cal.App.4th 1418, 1426; People v. McPheeters (2013) 218 Cal.App.4th 124, 129; and In re Jacklyn F. (2003) 114 Cal.App.4th 747, 750. None of these cases, however, address the constitutionality of such conditions.
Section 415, which prohibits disturbing the peace, provides: "Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: [¶] (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. [¶] (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. [¶] (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction."
At the same time, however, the People appear amenable to modifying this condition in order to avert any possible confusion or ambiguity by "incorporating examples of prohibited conduct listed in Welfare and Institutions Code section 213.5, subdivision (b) e.g., annoying, molesting, attacking, striking, stalking, threatening, battering or harassing." We accept the People's proposal. Accordingly, the "peaceful contact" condition of K.I.'s probation is hereby modified to read that K.I. must maintain: "Peaceful contact with the victim, [Mother], by refraining from molesting, attacking, striking, stalking, threatening, battering, harassing, or destroying the personal property of the victim."
DISPOSITION
The probation condition in the juvenile court's disposition order of September 26, 2016 that K.I. maintain "Peaceful contact with the victim: [Mother]" is modified to state: "Peaceful contact with the victim, [Mother], by refraining from molesting, attacking, striking, stalking, threatening, battering, harassing, or destroying the personal property of the victim." In all other regards, this order is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P. J. /s/_________
Siggins, J.