Opinion
A149922
01-28-2020
In re O.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. JV18392)
This case returns to us following a grant of review and transfer by the California Supreme Court with directions to vacate our decision and reconsider in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We reconsider the reasonableness of the juvenile court's electronics search condition, which was imposed on O.R. (Minor) as a condition of his probation. We conclude the electronics search condition is valid because it does not satisfy the third prong of the test articulated in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).
Our prior decision also addressed other aspects of the juvenile court's judgment against Minor. We incorporate by reference our discussion of the issues found in parts I, II, and III of the prior opinion. (In re O.R. (May 4, 2018, A149922) [nonpub. opn.].) Based on our analysis of those issues, we vacate the juvenile court's true finding that Minor unlawfully possessed cigarettes (former Pen. Code, § 308, subd. (b)), and we affirm the juvenile court's finding that Minor made a criminal threat. (Pen. Code, § 422.)
FACTUAL AND PROCEDURAL BACKGROUND
On October 4, 2016, at a middle school in Napa, California, Minor threatened his teacher, E.W. (Teacher). The incident began when Minor refused to remove a metallic item from his waistband. Minor was "defiant and agitated," and he stated: " 'Fuck this. This is stupid. Fuck this school.' " Teacher was concerned because he had previously seen Minor "punch walls . . . out of anger." When Minor "hit the outside of the school with his elbow extremely hard," Teacher called for assistance.
Deputy Albert Washington from the Napa County Sheriff's Department responded to Teacher's call, and when he searched Minor, he found a plastic bag containing cigarettes and lighters. The deputy led Minor away from the classroom intending to send Minor to "another counseling session," and to issue a citation for possession of the cigarettes. Then Minor stated: "I'm going to kill that motherfucker." Deputy Washington asked Minor if he was talking about Teacher, and Minor said yes.
Deputy Washington arrested Minor, and Minor was taken to Napa County Juvenile Hall. The deputy had prior conversations with Minor about threatening Teacher and other staff, and he was concerned Minor might follow through on his threat. Indeed, about a week earlier, on September 27, 2016, Minor told the deputy that he had been asked to leave a classroom for threatening to hit a teacher.
Two days after the incident, on October 6, 2016, the Napa County District Attorney filed a juvenile wardship petition alleging Minor made a criminal threat against Teacher. (Pen. Code, § 422, subd. (a).) The petition was amended to add a second count of attempting to make a criminal threat (§§ 422, subd. (a), 664), and a third count for possession of cigarettes by a minor. (Former § 308, subd. (b).) The juvenile court struck the attempt allegation, and amended the petition to indicate that counts one and two related to different alleged threats.
Undesignated statutory references are to the Penal Code.
During a contested jurisdiction hearing, Minor admitted telling the deputy he intended to kill Teacher, but Minor denied he was actually planning on doing so. When he made the statement, Minor felt angry and frustrated. Minor had difficulty controlling his anger.
After the hearing, the juvenile court did not find true the allegation—in count one of the amended petition—that Minor made a criminal threat on September 27, 2016, but it did find that Minor made a criminal threat against Teacher on October 4, 2016. At the disposition hearing, the juvenile court declared Minor a ward of the court, but granted Minor's request to reduce the criminal threat offense from a felony to a misdemeanor.
During the same hearing, Minor objected to the electronics search condition, one of the recommended conditions of probation. Condition number 17 provided in part: "The minor [shall] submit all electronic devices under [his] control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer." The juvenile court modified the second sentence of the condition. It now provides that "[t]he minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer, in order to gain access into messages or social media that may be found on that device." (Italics added.)
DISCUSSION
We reconsider in light of Ricardo P. whether this electronics search condition is reasonable. We conclude it is.
I. The Lent Test
A sentencing court has "broad discretion" to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review the conditions imposed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "Though broad, the juvenile court's discretion has limits." (In re Alonzo M. (2019) 40 Cal.App.5th 156, 164.) " '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." ' " (Ricardo P., supra, 7 Cal.5th at p. 1118, quoting Lent, supra, 15 Cal.3d at p. 486.) "The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' " (Ricardo P., at p. 1118.)
II. Ricardo P.
In Ricardo P., a juvenile admitted to committing two residential burglaries. (Ricardo P., supra, 7 Cal.5th at p. 1116.) As a condition of probation, the court required the juvenile to submit electronics including passwords under his control to search by a probation or police officer without a warrant at any time. (Id. at pp. 1116-1117.) The court justified this broad search condition based on its view that the juvenile was under the influence of marijuana at the time of the burglaries and because juveniles brag about their drug usage on the internet. (Id. at p. 1117.)
Our Supreme Court presupposed the first two Lent requirements were satisfied and focused on the third prong of the Lent test. (Ricardo P., supra, 7 Cal.5th at p. 1119.) It held the third prong was satisfied, and therefore this search condition was invalid, because "the burden it impose[d] on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Ibid.) More specifically, "the burden it impose[d] on Ricardo's privacy is substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Id. at p. 1120.)
Our high court found the electronics search condition significantly burdened the juvenile's privacy interests: "The plain language of this electronics search condition would require Ricardo to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
While the third prong of the Lent test does not require "a nexus between the condition and the underlying offense," this condition "impose[d] a very heavy burden on privacy with a very limited justification." (Ricardo P., supra, 7 Cal.5th at pp. 1122, 1124.) Based on this disproportion, the condition was not reasonably related to preventing future criminality and was invalid under Lent. (Id. at p. 1124.) Our high court emphasized that a probation condition is not reasonable if it "imposes substantially greater burdens on the probationer than the circumstances warrant." (Id. at p. 1128.)
III. The Electronics Search Condition Is Valid
Here, in his supplemental brief, Minor argues the electronics search condition is invalid because his offense did not involve the "use of electronics." Minor also contends that "[a] hypothesis that all minors making threats might make them with electronic devices opens the door for imposing an electronics search condition in every case where there is a Penal Code section 422 finding." The Attorney General responds that based on Minor's offense of making a criminal threat, the electronics search condition is a proportional means of deterring future criminality. The Attorney General claims "[t]he record in this case established the requisite connection between the electronics search condition and appellant's prior extensive drug use and aggression that was neither abstract nor hypothetical."
We disagree with the Attorney General's claim regarding Minor's "prior extensive drug use." Minor reported using marijuana weekly and he tried methamphetamine once. Although serious, these reports hardly qualify as "extensive drug use."
Putting to one side this claim, we nonetheless conclude the electronics search condition is valid. In Ricardo P., the Supreme Court did "not categorically invalidate electronics search conditions. In 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." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) This is one of those cases. We consider each of the Lent requirements.
A. The First and Second Prong of the Lent Test
In Ricardo P., our Supreme Court presupposed the electronics search condition satisfied the first two Lent requirements, stating there was "no indication that any electronic device was involved in the commission of the burglaries," and "the electronics search condition clearly ' "relates to conduct which is not in itself criminal." ' " (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Here, Minor made a criminal threat in violation of section 422, which provides in part that the threat must be "made verbally, in writing, or by means of an electronic communication device." (§ 422, subd. (a).) Minor's threat to kill his teacher was made verbally. Because no electronic device was involved, we assume without deciding that the electronics search condition has no relationship to Minor's crime, and that it satisfies the first Lent requirement.
In addition, the second Lent requirement is satisfied because it is not a crime to use electronic devices to send messages or engage with social media.
B. The Third Prong of the Lent Test
Nevertheless, the electronics search condition fails to satisfy the third Lent requirement because it is reasonably related to deterring future criminality. (Lent, supra, 15 Cal.3d at p. 486.) Unlike the "sweeping probation condition" at issue in Ricardo P., the search condition at issue here does not permit law enforcement or probation officers to review all data accessible using Minor's electronic device or devices. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) Instead, the juvenile court expressly narrowed the condition to only provide "access into messages or social media that may be found on that device."
The burden this narrow condition imposes on Minor's privacy is proportionate to the countervailing interests of furthering his rehabilitation and protecting society. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The probation officer's dispositional report indicates that Minor's aggressive behavior was an ongoing issue. According to Teacher, Minor made other threats to stab school administrators, he acted aggressively during a physical education class, and Teacher reported Minor came to school "in an agitated stance on a daily basis." Minor told the probation officer he had "multiple incidents of physical altercations" at his prior middle school. During his first eight weeks at his new middle school, Minor was suspended twice for making threats. Minor described his anger "as something beyond his control."
At home, Minor had angry outbursts once or twice per week. At juvenile hall, Minor "became agitated and began punching . . . large cement poles," as a result of which his "knuckles became swollen and bloody." In his testimony at the jurisdiction hearing, Minor acknowledged he had difficulty controlling his anger.
Given this history of aggressive behavior, including other incidents of making threats, there is "more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Ricardo P., supra, 7 Cal.5th at p. 1121.) It is more than an abstract possibility that a minor who has acted aggressively and made threats on multiple occasions, and who has difficulty controlling his anger, may engage in similar conduct using electronic devices, "especially given the constant and pervasive use of electronic devices and social media by juveniles today." (Id. at p. 1123.) Based on Minor's offense and his personal history, we conclude that an electronics search condition limited to requiring Minor to provide access to his electronic messages and social media is "a proportional means of deterring the probationer from future criminality." (Id. at pp. 1128-1129.) Accordingly, we affirm the juvenile court's decision to impose an electronics search condition that is tailored to monitoring Minor's electronic communications.
DISPOSITION
The judgment is affirmed in part and reversed in part. We vacate the true finding on count three of the amended petition. We otherwise affirm.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Burns, J.