Opinion
A156195
02-05-2020
In re NICOLAS L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. NICOLAS 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-00870)
Nicolas L. appeals from a juvenile court order declaring him a ward of the court and placing him on probation after he admitted to one count of grand theft. He claims that (1) the court failed to exercise its discretion under Welfare and Institutions Code section 702 to determine whether his offense was a felony or misdemeanor and (2) a probation condition authorizing warrantless searches of his cell phone and other electronic devices (the electronics search condition) is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
As the Attorney General concedes, remand is necessary for the juvenile court to determine whether Nicolas's offense is a felony or a misdemeanor. And although we conclude that the electronics search condition is reasonable under Lent and Nicolas forfeited his overbreadth challenge to it, on remand he may raise an overbreadth challenge before the lower court in the first instance.
Because remand is required, we also need not address Nicolas's claim that his trial counsel rendered ineffective assistance by failing to object on ability-to-pay grounds to a restitution fine of $100 imposed under section 730.6. Nicolas may raise his objection to this fine before the juvenile court.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In June 2018, the San Francisco police arrested Nicolas and his friend, who were both 16 years old, after they participated in stealing an iPhone X. The victim, a 26-year-old woman, reported that she got off the bus and was walking home late on the night in question when she noticed three people following her. Nicolas and his friend walked up on either side of her while a third person grabbed her phone from her hand. She and a bystander gave chase, and Nicolas and his friend stopped, but the third person, who was never identified, escaped. The victim never recovered her phone, which she valued at $1275.
The facts in this paragraph are drawn from the probation report's summary of the police report, which Nicolas stipulated provided a factual basis for his plea.
The following month, the San Francisco County District Attorney filed a petition under section 602, subdivision (a) seeking to have Nicolas declared a ward of the court. The petition alleged a felony count of grand theft of a person and was later amended to add a felony count of robbery. Nicolas admitted the allegation that he "committed a felony grand theft from a person," and the case was transferred to Contra Costa County, Nicolas's home county, for disposition.
The allegations were made under Penal Code sections 487, subdivision (c) (grand theft) and 211 (robbery).
At the dispositional hearing, the juvenile court declared Nicolas a ward of the court and placed him on probation, including 10 days in juvenile hall and 90 days on home supervision, with a maximum confinement time of three years. Among his probation conditions was one directing, "[Y]ou must submit your cell phone or any other electronic device under your control to a search of any medium of communication reasonably likely to reveal whether you're complying with the terms of your probation, with or without a search warrant at any time of day or night. Such medium of communication includes text messages, voicemail messages, photographs, e-mail accounts and other social media accounts and applications, such as Snapchat, Instagram, Facebook and Kik. You shall provide access codes to probation or any other peace officer upon request to effectuate the search."
II.
DISCUSSION
A. Remand Is Required for the Juvenile Court to Exercise Its Discretion Under Section 702 .
Nicolas claims that the juvenile court erred by failing to determine whether his offense was a felony or misdemeanor. We accept the Attorney General's concession that remand for this purpose is required.
Section 702 provides that if a 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." As the parties agree, section 702 applies because Nicolas's offense, a violation of Penal Code section 487, subdivision (c), by taking property worth more than $950, is a "wobbler" punishable "by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of [Penal Code s]ection 1170." (Pen. Code, § 489, subd. (c); see § 490.2, subd. (a); In re E.G. (2016) 6 Cal.App.5th 871, 874-875.)
"The requirement of a declaration by the juvenile court . . . facilitat[es] the determination of the limits on any present or future commitment to physical confinement for a so-called 'wobbler' offense." (In re Manzy W. (1997) 14 Cal.4th 1199, 1206.) It "also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion." (Id. at p. 1207.) The denomination of an offense as a felony in a pleading or minute order or the setting of a felony-level period of physical confinement does not substitute for a declaration by the court. (Id. at p. 1208; see In re Kenneth H. (1983) 33 Cal.3d 616, 619-620.) Nor does a minor's admission to an offense as a felony relieve the court of its duty to make this declaration. (See In re Nancy C. (2005) 133 Cal.App.4th 508, 512; Cal. Rules of Court, rule 5.778(f)(9).) Rather, "[t]he key issue is whether the record as a whole" shows that the court was "aware of its discretion" to treat the offense as a felony or misdemeanor. (Manzy W., at p. 1209.) Here, the record does not reveal either that the court made a formal declaration or exercised its discretion. (See ibid.) Accordingly, remand is required.
B. The Electronics Search Condition Is Reasonable Under Lent, and Nicolas Forfeited His Overbreadth Challenge to It.
Nicolas claims that the electronics search condition must be stricken because it is both unreasonable under Lent and unconstitutionally overbroad. We conclude that the condition does not satisfy the first Lent prong for invalidating a probation condition, since it bears some relationship to Nicolas's offense, and that his overbreadth claim is forfeited because he did not object on those grounds below.
Nicolas objected to the electronics search condition "based on the fact that this crime had nothing to do with using electronic communications to facilitate it" and there were "no allegations that [he] is engaging in [illicit] activity online." In rejecting his position, the juvenile court explained, "Number one, the object of this theft was, after all, a cell phone, which is an electronic device. Secondly, I'm going to order that you have no association with your co-responsible or the victim, and it deters your engagement in future criminality."
When a minor is made a ward of the juvenile court and placed on probation, the court "may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (§ 730, subd. (b); see § 202, subd. (b).) " 'In fashioning the conditions of probation, the . . . court 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.) "The court has 'broad discretion to fashion conditions of probation' [citation], although 'every juvenile probation condition must be made to fit the circumstances and the minor.' " (In re P.O. (2016) 246 Cal.App.4th 288, 293-294.) We review the imposition of a probation condition for an abuse of discretion. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).)
Under Lent, which applies to both juvenile and adult probationers, a condition is " 'invalid [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." ' " (Ricardo P., supra, 7 Cal.5th at pp. 1118-1119.) "The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' " (Id. at p. 1118.) In Ricardo P., our state Supreme Court held that an electronics search condition was invalid under Lent where the record did not indicate that the juvenile, who committed burglary, "had used or [would] use electronic devices in connection with . . . any illegal activity." (Ricardo P., at pp. 1115-1116.) In so holding, Ricardo P. assumed that the first two prongs were met and addressed only whether the condition was nevertheless valid based on the third prong because it was " 'reasonably related to enhancing the effective supervision of a probationer' and thus serve[d] to prevent future criminality." (Id. at pp. 1116, 1119.)
Here, we need not conduct a third-prong analysis under Ricardo P., because we can decide the issue on Lent's first prong. The Attorney General contends that the electronics search condition does not satisfy the first prong because it "does, in fact, relate to [Nicolas's] crime," in that Nicolas helped steal a cell phone. Nicolas responds that this connection does not suffice and the first prong is nevertheless met because "[t]here is no evidence [he] used any electronic devices to plan or implement the grand theft, or post about it afterwards." The Attorney General has the better argument.
The Attorney General relies on In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), in which Division Three of this court addressed a similar probation condition imposed on a minor who committed several robberies, including one involving a cell phone. (Id. at pp. 900-902.) Although our colleagues ultimately concluded that the condition was unconstitutionally overbroad, they accepted the People's position that the condition was reasonable under Lent because, " 'if [Malik] were found in possession of a cell phone, a probation or police officer could check the phone to determine whether it had been stolen.' " (Id. at p. 902.)
Subsequently, in People v. Patton (2019) 41 Cal.App.5th 934 (Patton), the Fourth District Court of Appeal held that the first Lent prong was not satisfied where the defendant "stole four cell phones and other electronic devices from an electronics store." (Patton, at pp. 944-945.) Emphasizing the breadth of the first-prong standard, which "asks whether the probation condition has no relationship to the conviction," Patton rejected the defendant's position that "there must be indication he used an electronic device to commit, plan, or discuss criminal activity." (Ibid.) The court also found it "noteworthy that Ricardo P. approved of Malik J.," citing the latter decision as support for "the notion that some electronics search condition may reasonably be imposed under Lent where the underlying crime involved electronics theft." (Id. at p. 945; see Ricardo P., supra, 7 Cal.5th at pp. 1128-1129 [observing 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"].) We find Patton's reasoning persuasive and conclude that the condition here passes muster under Lent because it is sufficiently connected to Nicolas's offense.
Nicolas also claims that the electronics search condition must be stricken as overbroad because it "is not narrowly tailored to avoid unnecessary infringement of [his] right to privacy." "A probation condition imposing limits on constitutional rights must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad. [Citation.] ' "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 [probationer's] constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." ' " (Patton, supra, 41 Cal.App.5th at p. 946.) Although "[a] probation condition imposed on a minor must be narrowly tailored to both the condition's purposes and the minor's needs, . . . ' " ' "a condition . . . that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." ' " ' " (In re P.O., supra, 246 Cal.App.4th at p. 297.) The issue whether a probation condition is unconstitutionally overbroad is reviewed de novo. (Ibid.)
Nicolas forfeited his overbreadth challenge by failing to object on that ground below. Although "facial constitutional challenges presenting pure questions of law" may be raised for the first time on appeal, "[a]n as-applied constitutional challenge"—i.e., one that "can[not] be resolved without referring to the particular sentencing record developed below"—"is forfeited unless previously raised." (Patton, supra, 41 Cal.App.4th at p. 946.) Here, Nicolas does not argue that the electronics search condition is overbroad on its face, instead relying on the lack of "evidence that the governmental purpose to rehabilitate [him] was furthered by" the condition. This is a textbook example of an as-applied challenge, and it was forfeited unless Nicolas raised it before the juvenile court.
The Attorney General takes the position that Nicolas's objection below, "[c]haritably constru[ed,] . . . encompassed a challenge on both Lent and constitutional grounds." But Nicolas's objection was aimed at considerations—the electronic search condition's relationship to his offense and other potential criminal activity—that are primarily relevant under Lent. Nicolas did not propose, and the juvenile court did not consider, any ways in which the condition might be narrowed in light of its purpose. And although the Attorney General concedes that the condition is overbroad based on a purpose of enabling peace officers "to determine whether devices in [Nicolas's] possession [are] stolen," it is apparent the court had broader purposes in mind. Thus, while we may agree with the Attorney General as a general matter that the condition can be modified to address any overbreadth problem, we decline to do so in light of the undeveloped record. Instead, because the matter must be remanded anyway, we conclude it is more appropriate to permit Nicolas to raise his overbreadth objection below in the first instance.
As a result, we need not address Nicolas's alternative claim that his trial counsel provided ineffective assistance by failing to object to the electronics search condition on overbreadth grounds.
III.
DISPOSITION
The matter is remanded to the juvenile court for it to exercise its discretion under section 702 to determine whether Nicolas's offense was a felony or misdemeanor and for any further proceedings consistent with this opinion. The judgment is otherwise affirmed.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Banke, J. /s/_________
Sanchez, J.