Opinion
A156705
02-24-2020
In re M.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1900094) MEMORANDUM OPINION
Consistent with the California Standards of Judicial Administration, section 8.1, subdivision (2), we conclude this case is properly resolved through a memorandum opinion.
M.S. admitted a charge of first degree felony residential burglary. (Pen. Code, § 460 subd. (a).) Following a disposition hearing on a juvenile wardship petition, the juvenile court declared M.S. a ward of the court, imposed a nine-month incarceration at the Orin Allen Youth Ranch Facility and 180-day conditional after-care release period, as well as numerous conditions of probation.
One of the conditions requires M.S. to "[s]ubmit your cell phone and any other electronic device under your control to a search of any medium of communication reasonably likely to reveal whether you are complying with the terms of your probation, with or without a search warrant, at any time of the day or night. . . . [This] includes text messages, voicemail messages, call logs, photographs, email accounts and other social medial accounts and applications such as Snapchat, Instagram, Facebook and Kik." In addition, M.S. must "provide access codes to the Probation Office or any other peace officer upon request to effectuate such search."
The juvenile court imposed this electronic search condition in order to facilitate the enforcement of another probationary condition—prohibiting contact or association with people who were also responsible for the underlying offense. Although law enforcement used M.S.'s cell phone to provide his approximate location during the underlying burglary, and his cell phone number and Instagram messages were found on the phone of a suspect in an entirely different burglary case, there was no evidence M.S. extensively used electronic devices to participate in criminal activity or communicate with "co-responsibles."
M.S. appealed, challenging the electronic search condition under People v. Lent (1975) 15 Cal.3d 481 and constitutional principles of overbreadth. Under Lent, a probation condition will be invalidated if it " '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.' " (Id. at p. 486.) While his appeal was pending, our high court decided In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). As relevant here, the court held an electronic search condition was invalid under the third prong of Lent where there was no evidence the defendant had used or would "use electronic devices in connection with . . . illegal activity." (Ricardo P., at pp. 1116, 1119-1120.) Ricardo P. did "not 'categorically invalidate electronic search conditions' in juvenile delinquency cases. [Citation.] . . . The court held only that the broad search condition, as written and imposed by the juvenile court, was invalid under Lent because it was not reasonably related to [the defendant's] future criminality." (In re Alonzo M. (2019) 40 Cal.App.5th 156, 165-166.)
The Attorney General concedes, and the parties agree, that the electronic search condition as written in this case does not survive scrutiny under Lent or Ricardo P. and must be stricken. We agree and strike the electronic search probation condition.
Given our conclusion, it is unnecessary to assess M.S.'s additional claim that the search condition is unconstitutionally overbroad. --------
DISPOSITION
The probationary electronic search condition is stricken and the matter is remanded to the juvenile court to consider whether a narrower electronic search condition that comports with Ricardo P., supra, 7 Cal.5th 1113 is warranted under the circumstances of this case.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Margulies, Acting P.J. /s/_________
Banke, J.