Opinion
D075264
11-08-2019
In re N.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.L., Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J241541) APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed in part, reversed in part, and remanded with directions. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
The juvenile court ordered N.L. (Minor) continued as a ward of the court (Welf. & Inst. Code, § 602) after finding true allegations Minor committed assault with a deadly weapon (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)(23)) and inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). Minor appeals two conditions of probation imposed by the juvenile court: an electronics search condition and a weapons stay-away condition. He contends the electronic search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) based on the facts of the case and is also unconstitutionally overbroad and vague. He contends the weapons stay-away condition is unconstitutionally overbroad because it precludes him from entering public spaces, such as spaces where armed police or security officers are present.
We conclude an electronics search condition is reasonable and valid under Lent. However, we agree the electronics search condition, as phrased, is overly broad and vague. We, therefore, remand the matter for the juvenile court to impose a more tailored condition. The People concede the weapons stay-away condition is overly broad and should be modified. Therefore, we strike the electronics search condition and the weapons stay-away condition and remand the matter for the court to modify the conditions consistent with this decision. In all other respects, we affirm the judgment.
BACKGROUND
The Minor and two other individuals approached the victim, who was walking with his brother after school on September 20, 2018. One of the individuals ran toward the victim and started hitting him. As the victim was fighting with the first individual, Minor and the other individual joined the fight. The victim saw Minor pull a mini baseball bat from his pants. Minor hit the victim's head and back hard with the bat. When a bystander broke up the fight, Minor and the other individuals ran away. The victim's head was bloody after the incident from being hit with the bat and the gash in his head required staples at the hospital. He also sustained a bruise on his lower back.
The victim told an investigating officer he was jumped into a gang a month earlier. The victim thought the three individuals were mad at him because of some things he had said.
The victim's brother testified they were going to get some food when they saw Minor and two other individuals coming toward the victim. The victim's brother sensed what was happening and told the victim to go to where a group of older students were sitting so there would be witnesses. The three individuals yelled gang letters as they rushed toward the victim. The victim threw his backpack at one of the individuals. Then all three individuals started hitting the victim with their fists. As two individuals were wrestling with the victim, Minor pulled out a bat and struck the victim hard about 15 times. He hit the victim's head and upper body.
Minor did not testify. Minor's counsel asked the court to find Minor's conduct a misdemeanor based on an offer of proof that Minor believed the victim had bullied and threatened Minor's sister.
After considering the evidence, the court determined Minor violated Penal Code section 245, subdivision (a)(1) and found true the allegation Minor used a dangerous or deadly weapon (Pen. Code, § 1192.7, subd. (c)(23)) and inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court determined Minor's actions constituted felony conduct and declined the request to reduce the allegation to a misdemeanor.
The court continued Minor as a ward pursuant to Welfare and Institutions Code section 602. The court advised Minor his maximum term of confinement was seven years eight months, ordered Minor committed to the Breaking Cycles program for a period not to exceed 240 days, and imposed various terms and conditions for probation.
Minor's attorney objected to a proposed condition prohibiting Minor from possessing an electronic device. The court agreed and struck the condition, but stated, "his electronic device would be subject to a Fourth Waiver, and probation would have the authority to inspect his—any electronic device. He'll need to provide probation with the password. It can be password-protected, but he is going to need to provide both the password to probation and his parents for any electronic device." The disposition order stated the following condition: "Minor's electronic devices are subject to 4th waiver. Minor is to provide the probation officer and his parents with all passwords."
Among other conditions, the court imposed a condition prohibiting Minor from knowingly associating with anyone who possesses dangerous or deadly weapons or explosives and from remaining "in any building, vehicle or in the presence of any person where the minor knows or reasonably should know such weapons or explosive devices are present."
The court ordered Minor not to engage in any gang activity and to stay away from any member of the gang whose letters were called during the incident. The court also ordered Minor not to contact the victim, the witnesses, the co-offenders, or the family members of any of these individuals "either directly or indirectly in any way, including, but not limited to, in person, by telephone, by texting, in writing, by public or private mail, by email or fax, or by any other electronic means."
DISCUSSION
I
General Principles
" 'The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct.' [Citation.] To those ends, a juvenile court may order a ward under its jurisdiction to probation. (Welf. & Inst. Code, §§ 727, 730, subd. (a).) Under Welfare and Institutions Code section 730, subdivision (b), 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.' 'The juvenile court has wide discretion to select appropriate conditions,' but '[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.] '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.' " (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).)
Generally, "we ' "review conditions of probation for abuse of discretion." ' [Citation.] Specifically, we review a probation condition 'for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.) However, we independently review constitutional challenges to probation conditions. (In re I.V. (2017) 11 Cal.App.5th 249, 261.)
II
Search Condition
Minor contends the condition subjecting his electronic device(s) to warrantless searches and requiring him to provide his password(s) for "any electronic device" is invalid under Lent, supra, 15 Cal.3d 481 and is unconstitutionally overbroad and vague. We conclude the condition is valid under Lent, but will remand for the juvenile court to clarify and narrow the terms of the search condition to remedy constitutional concerns about overbreadth and vagueness.
A
Reasonableness
"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 ....' " (Lent, supra, 15 Cal.3d at p. 486.) A party seeking to invalidate a condition must show that each of the three prongs are satisfied. (Ricardo P., supra, 1 Cal.5th at p. 1118.)
The recent case of Ricardo P., supra, 7 Cal.5th 1113 involved a juvenile defendant who was placed on probation after admitting two counts of felony burglary. As a condition of probation, the juvenile court required him to submit to warrantless searches of his electronic devices and any electronic accounts that could be accessed through the devices. Although there was no indication Ricardo used an electronic device or social media in connection with his criminal conduct, the juvenile court imposed the condition to monitor his compliance with conditions prohibiting his use or possession of illegal drugs. (Id. at pp. 1115, 1122.) The juvenile court justified the condition by saying Ricardo previously used marijuana and " 'minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.' " (Id. at p. 1122.) The Supreme Court, in the majority opinion, concluded the significant burden imposed on the probationer's privacy was substantially disproportionate to the interests of rehabilitation, protecting society, and the condition's goal of monitoring and deterring drug use under the facts of that case. (Id. at pp. 1119-1120, 1122-1123.)
The majority stated, "Lent's requirement that a probation condition must 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." (Ricardo P., supra, 7 Cal.5th at p. 1122.) The very heavy burden the condition imposed on the probationer's privacy by requiring he submit his electronic devices and passwords to search at any time was so disproportionate to the limited justification provided by the juvenile court that it was not reasonably related to future criminality. The majority concluded, therefore, the condition was invalid under the third prong of Lent. (Id. at p. 1124.)
In a concurring and dissenting opinion, Chief Justice Cantil-Sakauye agreed the electronic search condition was flawed, not because it was invalid under Lent but because it was unconstitutionally overbroad and swept too broadly relative to its rationale. For that reason, the Chief Justice agreed the matter should be remanded, but stated she would direct the court to more narrowly tailor the condition. (Ricardo P., supra, 7 Cal.5th at pp. 1129-1131, 1140 (conc. & dis. opn. of Cantil-Sakauye, C.J.).)
In this case, at Minor's counsel's request, the court struck a recommended condition prohibiting Minor from possessing any electronic devices. Instead, the court imposed a condition subjecting his electronic device(s) to a warrantless search and requiring him to provide passwords to the probation department and his parents. Although there is no evidence Minor used an electronic device in the assault, we conclude the condition is valid under Lent because the condition imposed and the interests served by the condition in this case have a greater degree of proportionality than those in Ricardo P.
Here, the juvenile court ordered Minor to have no direct or indirect contact with the victim, witnesses, co-offenders, or their family members. This restriction included contact by electronic means. Additionally, the letters of a gang name were called out prior to or during the attack and a co-offender, who is one of Minor's best friends, admitted he was involved in a gang. The probation officer expressed concern about Minor's emerging gang affiliation and his ability to remain law abiding. During his detention, Minor was involved in two altercations related to gang affiliation. Finally, Minor failed a probation trial. The instant offense occurred while Minor was on probation for possession of a weapon (a folding knife Minor said he had for protection because he was selling marijuana on campus). These facts support a need for the probation department to closely monitor Minor's compliance with the probation conditions, including the prohibition of contacting individuals by electronic means and the prohibition of gang association. Therefore, the ability to monitor Minor's electronic devices is reasonably related to prevent future criminality.
B
Constitutionality
Minor also contends the electronic search condition is unconstitutionally overbroad and vague as phrased. A probation condition may be "unconstitutionally overbroad if it imposes limitations on the probationer's constitutional rights and it is not closely or narrowly tailored and reasonably related to the compelling state interest in reformation and rehabilitation." (People v. Forrest (2015) 237 Cal.App.4th 1074, 1080 (Forrest).) A condition may be unconstitutionally vague "if it is not ' "sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated." ' [Citation.] 'A probation condition should be given "the meaning that would appear to a reasonable, objective reader." ' " (Ibid.) We may consider facial challenges to the constitutionality of a condition raising a pure issue of law even when the defendant failed to object in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 885.) We exercise our discretion to do so in this case.
The electronic search condition states, "Minor's electronic devices are subject to 4th waiver" and requires Minor "to provide the probation officer and his parents with all passwords." The condition facially requires disclosure of passwords to access electronic device(s), but it is not clear if the condition encompasses other passwords, such as for social media applications, accounts, or cloud services accessible through the device(s). Additionally, as Minor points out, there is some disparity between the oral pronouncement and the written order as to whether more than one device is subject to search. Therefore, the condition as currently framed is unconstitutionally overbroad and vague.
We strike the condition and remand the matter for the juvenile court to clarify the scope of the electronic search condition. The juvenile court shall more narrowly tailor the electronic search condition to specify the devices and applications subject to search and which passwords are necessary to allow probation to monitor Minor's compliance with the other probation conditions without undue burden on Minor's privacy. (See In re P.O. (2016) 246 Cal.App.4th 288, 298.)
III
Weapons Stay-Away Condition
The juvenile court ordered Minor not to knowingly associate with anyone he "knows or reasonably should know uses or possesses dangerous or deadly weapons or explosive devices." The condition further orders Minor "shall not knowingly remain in any building, vehicle or in the presence of any person where the minor knows or reasonably should know such weapons or explosive devices are present." Minor contends this condition is constitutionally overbroad because it restricts him from "accessing public buildings and public transportation" where law enforcement officers or private security officers in lawful possession of weapons may be present, such as in courthouses, shopping centers, banks, or the trolley.
We agree the condition is not closely or narrowly tailored. (Forrest, supra, 237 Cal.App.4th at p. 1080.) The People do not oppose modifying the condition to remedy unconstitutional overbreadth of the condition while safeguarding the state's interests. (Id. at p. 1085.) The People propose language mirroring that used in Forrest to modify the weapons stay-away order as follows: " 'Do not remain in the presence of any person who you know illegally possesses a firearm, deadly weapon, or ammunition. Also, do not remain in a building, in a vehicle, or in the presence of any person when you knowingly have ready access to a firearm, regardless of whether it is lawfully possessed or was lawfully acquired.' " Accordingly, we strike the weapons stay-away condition and remand the matter for the juvenile court to consider the People's proposed modification of the condition.
DISPOSITION
The electronic search condition and the weapons stay-away condition are stricken and the matter is remanded for the juvenile court to consider and modify the conditions consistent with this opinion. In all other respects, the judgment is affirmed.
McCONNELL, P. J. WE CONCUR: IRION, J. GUERRERO, J.