Opinion
2d Juv. No. B300853
10-20-2020
In re N.N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.N., Defendant and Appellant.
Law Offices of David R. Greifinger and David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19JV-00244)
(San Luis Obispo County)
N.N. was placed on probation with an electronics search term after she admitted a misdemeanor hit and run driving offense (Veh. Code, § 20002, subd. (a)) and declared a ward of the court (Welf. & Inst. Code, § 602). Appellant appeals, contending that the electronic search term is too broad under In re Ricardo P. (2019) 7 Cal.5th 1113. The Attorney General, agrees. We strike the electronics search term and remand to the juvenile court to consider imposing a more narrowly tailored electronics search condition consistent with Ricardo P.
Facts and Procedural History
On the evening of March 29, 2019, 17-year-old appellant swerved into a traffic lane, sideswiped a car, and drove off. Appellant was stopped by the Grover Police, and failed the field sobriety tests but passed a preliminary alcohol screening test. Appellant said that she drank two or three beers earlier that evening, was on proscribed psychoactive medication, and had not slept in two or three days. After appellant was arrested, the police found marijuana and a vape device in her purse, and six canisters of nitrous oxide and a open bottle of vodka in the car. Appellant admitted using LSD, mushrooms, ecstasy, cocaine, Xanax, and nitrous oxide in the past.
A petition was filed for misdemeanor hit and run driving (count 1; Veh. Code, § 20002, subd. (a)), driving under the influence of a drug (count 2; Veh. Code, § 23152, subd. (f)), possession of alcohol in a vehicle (count 3; Veh. Code, § 23224, subd. (a)), and possession of an open container of cannabis while driving (count 4; Veh. Code, § 23222, subd. (b)(1)). After the trial court denied diversion, appellant admitted count 1. The trial court dismissed counts 2-4, declared appellant a ward of the court, and ordered probation supervision with a six-month driver's license restriction. Over appellant's objection, the trial court imposed the following electronics search condition (No. 23): "[S]ubmit any electronic device, used to store or transmit digital information, that you own, possess or control, to a search of any source of electronic data, identified below, at any time, with or without probable cause, by the Probation Officer or any peace officer, and provide the Probation Officer or peace officer with any passwords necessary to access the data source specified." The specified data sources include, call logs, email accounts, internet browsing history, voicemail messages, photographs, and social media accounts. The disposition order stated: "The rehabilitative and/or supervisory concerns addressed by this search term include the following: [¶] Drug/Alcohol use or drug sales."
Appellant was also ordered not to use of possess drugs or medication not in her name, not possess drug paraphernalia or alcoholic beverages, not be in a place where illegal drugs are being used, not associate with anyone who uses or possesses illegal drugs, submit to testing for drugs or alcohol, and submit to the search of appellant's person, residence, property, possessions or automobile at any time day or night.
Ricardo P.
Appellant argues and the Attorney General agrees that the electronics search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481, which states, that a probation 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 . . . .' [Citation.]" (Id. at p. 486; see People v. Olguin (2008) 45 Cal.4th 375, 379 [the Lent test is conjunctive; all three prongs must be satisfied before a reviewing court will invalidate a probation term].) The Lent test governs juvenile probation cases. (In re Ricardo P., supra, 7 Cal.5th at p. 1119.)
In Ricardo P., the minor admitted two burglaries and was placed on probation with an electronics search condition to monitor compliance with other conditions prohibiting him from using or possessing illegal drugs. (In re Ricardo P., supra, 7 Cal.5th at p. 1115.) The minor stopped smoking marijuana after his arrest (id. at p. 1116) and there was no evidence that he had used or would use electronic devices in connection with drugs or any illegal activity. The trial court imposed an electronics search condition based on the finding that teenagers "'typically' brag about such drug use on social media." (Id. at p. 1119.) The Supreme Court was skeptical about the generalization that teenagers tend to brag about drug use or do it on social media. It held that, even if the premise was true, Lent's third prong was not satisfied based on an abstract or hypothetical relationship between the probation condition and preventing future criminality. (Id. at pp. 1119-1120.) "[T]he burden it imposes on Ricardo's privacy is substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Id. at p. 1120.)
Appellant has a history of drug and alcohol consumption, and has a mental health history that includes suicide attempts and substance abuse. She is being treated by a mental health professional, has been prescribed psychotropic medication, and says she stopped using drugs and alcohol but still smokes marijuana. There is nothing in the record to indicate that the drug and alcohol consumption was connected to appellant's use of electronic devices or the internet. No electronics were seized in this case, and if they were seized, they were not searched. The trial court stated it was imposing the electronic search condition to ensure that appellant was "safe" and acting "appropriately."
Ricardo P. "made it clear that 'requiring a probationer to surrender electronic devices and passwords to search at any time is . . . burdensome and intrusive, and requires a correspondingly substantial and particularized justification.' [Citation.]" (People v. Cota (2020) 45 Cal.App.5th 786, 791.) For a probation condition to be upheld as reasonably related to future criminality, there must be "information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.]" (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.)
Here, the electronics search condition to ensure that appellant is "safe" and acts "appropriately" is too broad. The court in Ricardo P., supra, 7 Cal.5th 1113 stated "[it was] not categorically invalidat[ing] electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis [for] which it can determine than an electronics search condition is a proportional means of deterring the probationer from future criminality. [Citations.]" (Id. at pp. 1128-1129.)
Disposition
The disposition order is modified to strike the electronics search condition (No. 23). The matter is remanded to the trial court to consider whether a more narrowly tailored electronics search condition would be permissible under Lent and Ricardo P. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
PERREN, J.
Charles S. Crandall, Judge
Superior Court County of San Luis Obispo
Law Offices of David R. Greifinger and David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.