Opinion
A151699
12-12-2018
In re PEDRO C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. PEDRO C., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV18482)
In this appeal, Pedro C. (Minor) challenges the juvenile court's disposition orders that allow for warrantless searches of his electronic devices, prohibit him from possessing sexually explicit materials, prohibit him from associating or living with minors or children under 14 years of age without adult supervision, and require him to release his sex offender treatment information to the therapists of the victims.
We find that the condition which requires him to release his sex offender treatment information to the therapists of victims is unconstitutionally overbroad and order it stricken. We also find that the electronic devices search conditions are unconstitutionally overbroad and remand the matter back to the juvenile court to revise them so that they are consistent with this opinion. We affirm the trial court's orders with respect to all the remaining conditions of probation.
FACTUAL BACKGROUND
A. Offenses against P.H.
In the summer of 2016, P.H. and Minor became boyfriend and girlfriend although they were intimate only a couple of times. P.H., a 17-year-old junior in high school, and Minor, also 17 years of age, had known each other since her freshman year. Sometime during the month of August, Minor got angry with P.H. for not spending enough time with him. While in the car, they got into an argument and he became physical with her. He grabbed her wrist and squeezed her forearm arm hard enough that it hurt and left a mark. Minor tried to apologize afterwards but P.H. told him it was not okay. Although they continued to see each other after this, they were no longer intimate. Just before school started, P.H. told Minor that she was breaking up with him. Minor did not accept this and continued to try to pursue her. Later, Minor attempted to ask her to the homecoming dance in front of a lot of people standing outside of her classroom. Minor asked the high school counselor to pull P.H. out of class so he could personally ask her to the dance. P.H. got wind of it and asked the counselor to tell Minor that she did not want to go to the homecoming dance with him. The public way in which Minor planned to ask her out upset P.H. because she had made it clear to him that she no longer wanted to be in a relationship with him.
B. Offenses against G.S.
G.S. met Minor in October 2016 when she was 16 years old and a junior in high school. She and Minor kissed a few times after that, but she broke it off with him just before Thanksgiving. They remained friends. On Thanksgiving day, Minor and G.S. conversed over Snapchat and Minor suggested that G.S. come over to his house. G.S. agreed and when she got there, after talking for a bit, Minor asked her if she wanted to take Xanax. When G.S. told him no, he called her a "pussy" and tried to force a pill into her mouth but she backed away. Minor then asked her to come into his bedroom to watch Netflix and sit with him on his bed. She said no a few times but eventually joined him on the bed. When Minor was lying next to her, he suddenly rolled over, got on top of her and starting making out with her. G.S. tried to push Minor off of her. Minor was trying to take her bra off and he was able to unhook her bra partially. She could feel his hand on her skin. When she finally pushed him off, Minor went into the kitchen only to return with a pocket knife in his hand. With a smirk on his face, Minor told G.S. he was going to cut her bra strap off. G.S. got off the bed and was able to get out of the bedroom. As she was leaving, Minor called out to her. G.S. turned around and saw Minor had an activated taser in his hand which he was trying to use on her. He was laughing. When G.S. said "Ow[e]!" Minor said "Did I get you?" G.S. was able to get away and ran to her car. When she got into her car, Minor used Snapchat to ask her "Where did you go?" G.S. said "away" and then blocked him. The entire incident took about 20 minutes. G.S. became scared of Minor after this happened.
Minor admitted to the police that he had tried to undo G.S.'s bra when he was kissing her and that he had fondled her breasts outside the clothing. He also admitted to possessing a pocket knife but said he did not actually use it to cut her bra off. Although he initially denied having a taser, Minor later admitted that he had purchased one over the internet on Amazon. Minor stated that he activated the taser and showed it to G.S. as a joke but he knew she was scared when he did this. The police recovered the taser from Minor's home.
C. Offenses against A.D.
A.D., a senior in high school, who was 18 years old, had been friends with Minor for a few years. Sometime in her junior year of high school, she and Minor began a sexual relationship. She characterized their relationship as "friends with benefits" and denied that they were ever boyfriend and girlfriend. One evening in February, Minor asked if he could spend the night at her house. She told him it was okay but fell asleep before confirming the plan. As it got later in the evening, Minor messaged her to see if he could come over. A.D. was asleep by then so she didn't see the text message. Minor came over anyway and, after gaining entry into the house, went into her bedroom and proceeded to climb into bed with her where he spent the night. The next morning when she woke up, Minor told her to make him breakfast. When she refused he said she would never make a good wife. She told him she was never going to be his wife. At some point their conversation shifted to the subject of a boy that A.D. liked. A.D. recalled that it was a stressful conversation in that Minor got very angry. Minor raged at A.D. both verbally and physically. He picked her up by her thighs with his arms and tossed her to the ground where she landed on her back. He got on top of her, sitting on her buttocks, and wouldn't get off. A.D. felt like she could not breathe. When A.D. told him to get off and if he didn't she was going to scream so the neighbors would hear her, he told her the neighbors wouldn't hear her. Minor finally got off of her after a few minutes. When she tried to get up from the ground, he grabbed her by her feet and dragged her face down about 12 to 15 feet into the kitchen. Minor took away A.D.'s phone and, using Siri, a voice controlled personal assistant on Apple electronic devices, texted the boy she was interested in. The message said something like "Fuck later." This upset A.D because she did not want the boy to think she was sending him a sexual invitation. A.D. tried to get her phone back but Minor threw it on the table. When she tried again, he grabbed her wrist and held it leaving behind a red mark.
Afterwards A.D. sat down on the recliner and was joined by Minor. She reported that Minor tried acting nice but then touched her breasts with his hands reaching under her bra. He also tried to kiss her but stopped when she pushed his face away. A.D. told Minor to leave at which point he texted his friend to come pick him up. The friend came about 30 minutes later.
Minor told police that he and A.D. were friends who would get together for sexual activity. Minor admitted that when they began wrestling in the living room, he eventually ended up on top of A.D. Minor admitted to using A.D.'s cell phone to text a message to the boy she liked, but did that as a joke. He never admitted to touching her breasts.
PROCEDURAL BACKGROUND
On February 28, 2017, the Napa County District Attorney filed an 11-count amended juvenile wardship petition under Welfare and Institutions Code section 602 alleging that Minor committed misdemeanor battery-domestic violence (Pen. Code, § 243, subd. (e)(1)) (count one); three counts of misdemeanor battery (Pen. Code, § 242) (counts two, three, and eight); misdemeanor exhibiting a dangerous weapon (Pen. Code, § 417, subd. (a)(1)) (count four); felony assault with a stun gun or taser (Pen. Code, § 244.5, subd. (b)) (count five); misdemeanor possession of a controlled substance (Health & Saf. Code, § 11375(b)(2)) (count six); misdemeanor cruelty to child by endangering health (Pen. Code, § 273a, subd. (b)) (count seven); felony assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) (count nine); felony false imprisonment by violence (Pen. Code, § 236) (count ten); and misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)) (count eleven).
On May 11, 2017, the juvenile court dismissed the possession of a controlled substance charge.
On May 16, 2017, after a contested jurisdiction hearing, the juvenile court found true the allegations in counts one, four, seven, eight and eleven. The allegations in counts nine and ten were found true as misdemeanors. The allegation in count 3 was found not true and was dismissed. The allegation in count five was found true as a felony.
At disposition on June 22, 2017, the juvenile court granted Minor's motion to reduce count five to a misdemeanor. Wardship was declared and Minor was placed on probation in the home of his parents.
On June 22, 2017, Minor filed a timely notice of appeal.
DISCUSSION
Minor now challenges several of his probation conditions urging this court to either strike the conditions or modify them. Respondent argues that each one of the challenged probation conditions are reasonably related to Minor's rehabilitation and to prevent criminality, are not unconstitutionally vague or overbroad, and do not require an explicit knowledge element.
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." (Welf. & Inst. Code, § 730, subd. (b); see also id., § 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" (In re Josh W. (1997) 55 Cal.App.4th 1, 5), although "every juvenile probation condition must be made to fit the circumstances and the minor" (In re Binh L. (1992) 5 Cal.App.4th 194, 203).
Although a juvenile court's discretion to impose probation conditions is broad, it is not unlimited. (In re D.G. (2010) 187 Cal.App.4th 47, 52.) The Supreme Court in People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded on other ground in People v. Moran (2016) 1 Cal.5th 398, 403, footnote 6, set forth three criteria for assessing the validity of a condition of probation: "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, p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379.)
We review the imposition of a probation condition for an abuse of discretion (People v. Olguin, supra, 45 Cal.4th at p. 379), taking into account "the sentencing court's stated purpose in imposing it" (People v. Fritchey (1992) 2 Cal.App.4th 829, 837).
A. The Electronics Search Condition
The Supreme Court has granted review in many cases dealing with an electronics search condition, with the lead case being In re Ricardo P., review granted February 17, 2016, S230923.
1. The electronic devices search conditions are valid and do not fall within Lent
Minor argues that the electronics devices search conditions, including the requirement that he must disclose his passwords, are unreasonable under Lent, supra, 15 Cal.3d 481 and are unconstitutionally overbroad. Respondent argues that the conditions are reasonably related to his rehabilitation, do not fall under Lent and are not unconstitutionally overbroad.
The electronic devices search conditions being challenged, conditions 20 and 22, require Minor to disclose "all electronic mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes." Minor was also ordered to "consent to the search of that electronic mail and Internet accounts, and any computer system at any time and the seizure of any information or data contained therein without a search warrant or probable cause." Minor was further ordered to "submit all electronic devices under their 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" and to "disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access to any electronic device as requested by any law enforcement or probation officer." The juvenile court also added the condition that "[n]o electronic communications [are] to be deleted by the minor."
Condition 20: "The minor shall disclose to minor's probation officer all electronic mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. The minor shall consent to the search of that electronic mail and Internet accounts, and any computer system at any time and the seizure of any information or data contained therein without a search warrant or probable cause."
Condition 22: "The minor submit all electronic devices under their 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. No electronic communications to be deleted by the minor. Contraband seized by the probation officer shall be disposed of, stored or returned at the discretion of the probation officer."
In juvenile court, counsel for Minor objected to the imposition of the electronic devices search condition on grounds that there was no nexus between the electronic devices search condition and the offense and that the condition was not tied to Minor's rehabilitation. She also objected on the grounds that the condition was unconstitutionally overbroad.
We agree that the second prong under Lent required to invalidate the type of electronics search condition imposed here is met. The use of electronic devices and access to the internet is not unlawful activity. But we also conclude that the first and third prong are not met and the electronic devices search conditions are therefore valid under Lent.
The first prong under Lent, requires that the probation condition have no relationship to the offender's crime. The use of cell phones, social media, and text messaging are part of modern everyday life in the lives of both adults and teenagers. (In re Victor L. (2010) 182 Cal.App.4th 902, 919 ["It is undeniable that cell phones and other wireless devices are in widespread use and are important media for communication."].) The juvenile court acknowledged such when the court explained that it did not feel it appropriate to prohibit Minor from using electronic devices altogether. However, the juvenile court also found that the electronic devices search conditions were appropriate given its relationship to the offense.
Most teenagers innocuously use their cellular telephones and other electronic devices to frequently communicate with each other. This case is distinguishable in that Minor used one of the victim's cell phone to find and then text an inappropriate message to a purported rival pretending to be the victim. This action is not insignificant given the other allegations found true by the juvenile court. In sustaining the petition, the juvenile court found that Minor had engaged in a course of conduct with three teenage girls that involved unwanted sexual advances and physical touching after contacting them using social media applications such as Snapchat and through text messages.
This case is thus distinguishable from In re D.G. (2010) 187 Cal.App.4th 47, cited by Minor where neither Minor's current burglary nor his past offenses were committed near a school or involved classmates or other juveniles. In D.G., the appellate court found there was no nexus between the offense charged, i.e. the burglary of a home, and the probation condition imposed, a 150 feet stay-away order from any school, and struck the condition under the first prong of Lent. (Id. at p. 53.)
Here the use of electronic devices and the internet did play a role in Minor's offenses against his victims. With G.S. and A.D., Minor used social media to communicate with and gain access to them. Minor used Snapchat, a messaging application, to suggest that G.S. come over to his house. While at the house, Minor later used an activated taser, which he purchased on an Internet website, to scare G.S. When G.S. ran away to her car, Minor used Snapchat to ask her where she had gone. G.S. replied that she was "away" and blocked him on Snapchat. When Minor did not hear back from A.D., Minor used text messaging to contact her to see if he could come spend the night at her house. After they got into a heated argument over a boy that A.D. liked, Minor took A.D.'s cell phone and used Siri to send a misleading text message to his purported rival, pretending to be A.D. This caused a lot of distress for A.D. who quickly texted the boy back with a message "that was not me." Later, Minor texted a friend to come pick him up from A.D.'s house.
While the nexus between the offenses and the probation condition imposed in this case is not as strong as the one found in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (defendant's historical use of social media sites to promote a criminal street gang was related to the gang allegations in the case), it cannot be said that the electronics devices search conditions have no relationship to the offenses at issue as required to invalidate a condition under Lent. Under the deferential standard of review required in the Lent analysis, we find no abuse of discretion in the juvenile court's finding that the electronic devices search conditions were related to the underlying offenses.
Nor can it be said that the electronic devices search conditions require or forbid conduct which is not reasonably related to future criminality as required under the third prong of Lent. In Olguin, our state Supreme Court held that a probation condition "that enables a probation officer to supervise his or her charges effectively is ... 'reasonably related to future criminality'" and does not satisfy the third prong required to invalidate a condition under Lent "even if [the] condition . . . has no relationship to the crime of which a defendant was convicted." (People v. Olguin, supra, 45 Cal.4th at pp. 380-381.)
The probation report included the following assessment of Minor's actions: "The serious nature of the alleged offense cannot be overlooked in this matter. The police report details occurrences of physical aggression involving three separate victims over a period of several months. One incident escalated to a point in which the minor used a knife and a stun gun/taser to intimidate the victim. All three victims feared for their wellbeing and felt threatened by the minor's actions." In his probation interview, Minor admitted he did not realize his actions were as harmful as they were described in the police report. When speaking about the offense involving the taser, Minor stated that he did it to be funny and did not realize that someone could be assaulted without touching them. The report by the court's psychological expert, Dr. Henry, also contained these test results: Minor "shows no evidence of feeling guilty [about] his behavior. He does not believe he needs help to control his sexual impulses and behaviors." The Minor displayed "Level Two Denial, Moderate to High Denial; this level consists of attitudes that reflect justifications, minimizations, and other cognitive distortions concerning the offense." The juvenile court could reasonably conclude from this evidence that certain measures needed to be put in place to discourage the Minor from repeating this offensive behavior.
Following a lengthy colloquy as to what conditions might be appropriate for Minor's rehabilitation, the juvenile court carefully balanced Minor's privacy interests against the need for oversight into his future actions to assist in his rehabilitation and prevent criminality. At the close of the disposition hearing, the juvenile court ordered Minor to stay away from and have no contact with the victims and their family members, not to be in in the presence of minors and/or children under the age of 14 years unless supervised by an adult, and not to possess any sexually arousing materials or to contact sexually explicit phone services. The electronic devices search conditions are reasonably necessary to ensure that Minor complies with these and other conditions of his probation. It affords Minor's probation officer the ability to monitor Minor's conduct through his electronic devices to see if he is having any prohibited or unwarranted contact with the victims, their family members, and/or potential victims, whether he is contacting sexually explicit phone services and/or purchasing prohibited items, such as sexually arousing materials, through online websites. All of this falls within the ambit of People v. Olguin, supra, 45 Cal.4th 375, and not Lent, supra, 15 Cal.3d 481.
2. The electronic devices search conditions are not unconstitutionally overbroad and do not unduly infringe upon Minor's constitutional right to privacy under Riley
Minor contends that the electronic devices search conditions authorizing searches of his electronic devices and requiring him to provide his passwords are unconstitutionally overbroad because they are not narrowly tailored to limit the impact on his constitutional right to privacy under the Fourth Amendment; that the conditions interfere with rather than aid in his rehabilitation; and that any perceived need for the conditions is outweighed by his constitutional right to privacy. (Riley v. California (2014) 573 U.S. ___ .) Respondent argues that the electronic devices search conditions are not unconstitutionally overbroad and do not implicate Minor's right to privacy under Riley. We review the constitutionality of probation conditions de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
In Riley, the Supreme Court held that a warrantless search of the information on a cell phone did not fall within the justifications for the exception to the warrant requirement for items seized incident to arrest. (Riley v. California, supra, 573 U.S. at p. ___ .) In so holding, the court recognized that the warrantless search of the entire contents of a cell phone violated the arrestee's constitutional right to privacy because cell phones inherently contain large amounts of personal and private information. (Ibid.) The court explained, "The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers." (Id. at p. 2489.)
When a probation condition imposes limitations on a person's constitutional rights, it must closely tailor those limitations to the purpose of the condition or risk being invalidated as unconstitutionally overbroad. (People v. Olguin, supra, 45 Cal.4th at p. 384.) "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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) " ' "Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile." ' " (In re Tyrell J. (1994) 8 Cal.4th 68, 82, disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130; In re D.G., supra, 187 Cal.App.4th at 52.) "This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may 'curtail a child's exercise of . . . constitutional rights . . . [because a] parent's own constitutionally protected "liberty" includes the right to "bring up children." ' " (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) True, "parolees and probationers retain some expectation of privacy, albeit a reduced one." (In re Jaime P., supra, 40 Cal.4th at p. 137.) But as a probationer, Minor's diminished expectation of privacy is "markedly different from the broader privacy guaranteed under the Fourth Amendment to individuals who are not serving sentences or on grants of probation." (In re Q.R. (2017) 7 Cal.App.5th 1231, 1238, review granted Apr. 12, 2017, S240222.)
Although Riley addressed a pre-conviction expectation of privacy, we agree that because cell phones and other electronic devices are likely to contain large amounts of documents and data, a search of these devices can be a significant intrusion on an individual's right to privacy. This applies to individuals who are placed on juvenile probation as well. The court in Malik J., recognized this when it found minor's probation condition overbroad but approved a modified version that allowed for a search of electronic devices in the minor's custody and control. (In re Malik J., supra, 240 Cal.App.4th at pp. 902-904.) The court modified the conditions recognizing that the unfettered searches of the probationer's electronic communications could significantly encroach upon on his and potentially third parties' constitutional rights of privacy and free speech. (Ibid.)
Using the same reasoning here, we find that the electronic devices search conditions, as currently written, are unconstitutionally overbroad. There is no qualifying language in condition 20 that limits the search of these electronic mail accounts and internet accounts to those that belong to Minor and/or to those accounts that he has custody, access, or control over. As written, this probation condition could apply to any and all electronic devices that are present in Minor's home or near him when he is outside the home including cell phones that belong to his mother, father, siblings and/or third parties.
In condition 22 there is no language that ties the specified passwords, passcodes, password patterns, and fingerprints to the Minor or to those in his possession, custody or control. The use of the word "their," while possibly a typographical error, suggests that the search could encompass any and all family members' devices. Such a broad search is not rationally related to any effort to prevent future criminal behavior by Minor. To avoid being unconstitutionally overbroad, the electronic devices search conditions should limit probation searches to only those electronic devices, email and internet accounts, passcodes, passwords, and the like that belong to Minor and those that the Minor has control over or access to.
Further there is no qualifying language that identifies the particular type of information that his probation officer would find useful in order to supervise the minor, such as social media accounts, including Snap Chat, Instagram, Twitter, Facebook, WhatsApp, text messages, emails, and/or online retail websites such as Amazon, and/or location services such as Google Maps. Here, the electronics device search condition permits law enforcement and probation officers to search "all" electronic mail accounts and internet accounts. It requires minor to consent to the search of "any computer system" and "the seizure of any information or data contained therein." Phrased this way, the probation condition allows access into any medical, banking, and finance information stored on Minor's electronic device, or conceivably to information belonging to a third party that is found on a device that Minor has access to. There is no evidence in the current record that such a broad electronics search condition is necessary to effectively supervise Minor on probation. As currently written, the electronic devices search conditions are unconstitutionally overbroad.
We do not agree with Minor that the electronic devices search conditions are unwarranted given his right to privacy under Riley. There is evidence in the record that Dr. Henry was concerned about Minor's strong denial and lack of acceptance of responsibility for his conduct. Minor was described to have "thinking errors" which allowed him to justify his inappropriate sexual misconduct as "it was an accident, it just happened, no one was hurt, the person wanted it, etc." While the juvenile court was hopeful that with appropriate sex offender treatment Minor would learn to understand the difference between a healthy versus an abusive relationship, the juvenile court was also concerned about Minor's future criminality. Notwithstanding Minor's lack of a juvenile record, there was a risk that Minor might engage or be tempted to engage in similar offensive and abusive conduct against other teenage girls unless some firm restrictions were placed on him. Under these circumstances, the condition authorizing warrantless searches of Minor's electronic devices to deter and to prevent future criminal conduct is a reasonable one which does not unduly infringe upon his constitutional right to privacy.
The probation report also noted that Minor's prior school records showed that he had been disciplined for "harassing peers via social media" and for his "use of a cell phone."
We remand this case to the juvenile court with instructions to amend the electronic search conditions as follows: 1) the search condition shall include language limiting the electronic devices search to devices that Minor owns or that are in his care, custody, possession and/or control; and 2) the search condition shall include language excluding from the search unrelated private and confidential data such as Minor's medical, health, banking and/or financial information.
B. The Probation condition that prohibits Minor from possessing "Sexually Arousing Materials" and accessing "Sexually Explicit Phone Services" is not unconstitutionally vague
At the disposition hearing, defense counsel objected to the proposed probation condition that would prohibit Minor from owning, using, or possessing any form of "sexually arousing materials" (proposed condition 35) and from accessing "sexually explicit phone services or subscribers" (proposed condition 37). Defense counsel did not raise an objection to either condition on the grounds of constitutional vagueness. Instead, she argued that the conditions served no rehabilitative purposes and were not relevant to the crimes. Respondent argues that Minor has forfeited his vagueness challenge to the conditions.
Proposed condition 35: "The minor shall not own, use, or possess any form of sexually arousing materials which include computer based movies, videos, magazines, books, games, sexual aids, or devices, or any material which depicts partial or complete nudity or sexually explicit language, nor frequent any establishment where such items are the primary commodity for sale."
Proposed condition 37: "The minor is prohibited from accessing sexually explicit phone services or subscribers, including 1-900 numbers, and parents may be required to provide probation with copies of phone bills." The juvenile court later deleted proposed condition 36, which Minor's counsel did object to on overbreadth grounds and renamed condition 37 to condition 36 in its orders.
Only those constitutional challenges presenting a pure question of law may be raised for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) The issue of whether the challenged terms "sexually arousing materials" and "sexually explicit phone services" are unconstitutionally vague is a question of pure law, which we may reach without a review of the record. We find that Minor's objections are not forfeited. The standard of review for constitutional challenges to probation conditions is de novo. (In re Shaun R., supra, 188 Cal.App.4th at p. 1143.)
Minor argues that the terms "sexually arousing materials" and "sexually explicit phone services" are inherently imprecise and subjective terms which should either be modified to correct the vagueness or stricken altogether. " 'A probation condition "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated," if it is to withstand a [constitutional] challenge on the ground of vagueness.' " (In re Shaun R., supra, 188 Cal.App.4th at p. 1144.)
Minor cites to two recent juvenile cases that have ordered probation conditions modified because of vagueness. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1353; People v. Turner (2007) 155 Cal.App.4th 1432, 1436.) In these two cases, the challenged probation conditions were modified to give the probationers advance notice of what was required of them. In Pirali, the court was concerned with the lack of notice created by leaving the definition of what constituted "pornography" or "sexually explicit" to the probation officer and added the requirement that the probation officer had to inform the probationer as to what items were prohibited. (Pirali, supra, at pp. 1352-1353.) In Turner, the court modified the probation condition to read: "Not possess any sexually stimulating/oriented material having been informed by the probation officer that such material is inappropriate and/or patronize any places where such material or entertainment in the style of said material are known to be available." (Turner, supra, at p. 1436.) In contrast, the challenged probation conditions here do not rest on a probation officer's judgment as to which materials are prohibited. This case is distinguishable from Pirali and Turner.
Minor also cites to two cases where the court struck probation conditions that precluded the probationer from possessing "pornography" on the grounds of constitutional vagueness. (In re D.H. (2016) 4 Cal.App.5th 722; United States v. Guagliardo (2002) 278 F.3d 868, 872 ["a probationer cannot reasonably understand what is encompassed by a blanket prohibition on 'pornography" because the "term itself is entirely subjective [and] lacks any recognized legal definition"].) In both cases, the term "pornography" was used without reference to specific examples of what the prohibited pornographic materials might include. In contrast, the probation conditions here provide detailed examples of the type of "sexually arousing" materials that are prohibited: "computer based movies, videos, magazines, books, games, sexual aids, or devices, or any material which depicts partial or complete nudity or sexually explicit language, nor frequent any establishment where such items are the primary commodity for sale." The phrase "sexually explicit phone services or subscribers, including 1-900 numbers" in and of itself is sufficiently detailed to put Minor on notice as to the type of conduct that was being prohibited. The terms here are therefore much more specific and less vague than the conditions that were stricken in D.H. and Guagliardo. We find that they are not unconstitutionally vague.
Minor contends that these restrictions will have no rehabilitative value given that his offenses had nothing to do with pornography. As referenced above, the juvenile court was concerned about Minor's rehabilitation and participation in appropriate sex offender treatment. Prohibiting Minor's access to "sexually arousing materials" and "sexually explicit phone services or subscribers" is reasonable in that it will assist Minor with incorporating healthier ways in which to engage in intimate relationships.
C. The probation condition requiring Minor to release his sex offender treatment program information to victims' therapists is unconstitutionally overbroad and infringes upon Minor's right to privacy.
Minor challenges the last sentence of probation condition 27, which states: "The minor and his/her parents shall sign a release of information to allow the probation officer to communicate with other professionals involved in the treatment program and to allow all professionals involved to communicate with each other. This will include a release of information to the therapist of the victim. (Italics added.) Although Minor's counsel in the juvenile court did not object to this part of the probation condition, Minor argues that the condition on its face violates Minor's right to privacy and is unconstitutionally overbroad. Respondent argues that Minor has forfeited the issue.
Only those constitutional challenges presenting a pure question of law may be raised for the first time on appeal. (Sheena K., supra, 40 Cal.4th at pp. 888-889.) The issue of whether the probation condition requiring Minor to release treatment information to the therapist of the victim is overbroad and/or violates his right to privacy is a question of pure law which we may reach without a review of the record. Because we can reach this issue without a review of the record, we find that Minor's objections are not forfeited. The standard of review for constitutional challenges to probation conditions is de novo. (In re Shaun R., supra, 188 Cal.App.4th at p. 1143.)
Minor contends that the requirement that he release his sex offender treatment information to the therapists of the victims is unconstitutionally overbroad and violates his right to privacy. "A restriction is unconstitutionally overbroad, on the other hand, if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O., supra, 188 Cal.App.4th at p. 1153.) Respondent argues that the condition is reasonably related to Minor's reformation and rehabilitation because by sharing of Minor's confidential treatment information with the therapists of the victims, the treatment team can compare notes and assess whether Minor is telling the truth about his interactions with the victims.
We do not see how Minor's rehabilitation would be facilitated by requiring him to share his confidential sex offender treatment sessions with the therapist of the victims. As Minor points out, this condition infringes upon his confidential relationship with his psychological counselors. These sessions are highly confidential and information shared during sessions is privileged. While Minor may be in denial as to how his own conduct harmed others or that what he did was, at the very least, sexually inappropriate, it is difficult to see how sharing his counseling sessions with the therapists for the victims will aid in his rehabilitation. Experienced therapists are trained to detect and even expect a certain amount of misrepresentation from their clients. They do not need to compare notes with the victim's therapists to determine whether their client is being truthful with them. We agree that this disclosure condition impinges upon Minor's constitutional right to privacy and does not reasonably relate to any part of his reformation or rehabilitation. We order that it be stricken.
D. The probation conditions prohibiting Minor from having contact with minors and children under 14 years of age without adult supervision are valid under Lent , do not need an explicit knowledge element, and are not unconstitutionally vague.
1. Lent analysis:
Minor contends that the probation conditions which prohibit or limit his contact with minors and/or children under 14 years are invalid under Lent because they have no connection with his future criminality, they do not have a knowledge requirement, and they are constitutionally vague Minor is challenging probation conditions 4, 11, 30, 32, and 33. Respondent argues that the conditions are valid under Lent and are not unconstitutionally vague.
The juvenile court agreed that these probation conditions did not have a nexus to the underlying offense. Thus the first prong of Lent is met.
Condition 4: "Upon reaching the age of eighteen (18) years, the ex-minor [shall] be placed in the community at large. The ex-minor's residence and roommates shall be subject to approval by the Probation Department. The ex-minor shall not reside in a household where a child (under the age of 14 years) resides . . . ."
Condition 11: ". . . The ex-minor shall not obtain employment that requires entrance into a residence or be in a position of authority with minors; an exception may be made for coaching positions with the approval of the Probation Officer."
Condition 30: The minor must have no contact with children under the age of 14 years unless supervised by a responsible adult over the age of 21. Further, all contact must have prior approval by the probation officer. The minor must notify the probation officer and treatment provider immediately if incidental contact with children from whom the minor is restricted occurs and immediately remove himself [ ] from the situation in a safe and responsible manner."
Condition 32: "The minor shall not go to or loiter near school yards, parks, playgrounds, swimming pools, arcades or other places primarily used by children under the age of 14, unless there is an adult present."
Condition 33: "The minor may not enter into a position of trust or authority with any child under the age of 14 years, unless in the presence of a responsible adult."
At the disposition hearing, Minor's counsel in the juvenile court objected to the proposed probation conditions limiting Minor's contact with children under 14 years of age arguing that they had no nexus with any of Minor's offenses or with his rehabilitation. She stated they would interfere with Minor's rehabilitation because he was very involved with sports and hoped to get a job as a part-time soccer coach to younger children. She pointed out that the psychological report found that Minor had no abnormal interest in children and did not show any signs of being a psychopath. Further, she argued that there was nothing in the psychologist's report to support the recommendation that Minor have no contact with children under 14 years of age. Minor had family members who were under 14 years of age and should not be prohibited from being near them. The district attorney and probation officer argued that the restrictions were needed to protect younger children and to aid in Minor's rehabilitation.
It was not an abuse of discretion for the juvenile court to impose these probation conditions. Dr. Henry's report included the recommendation that "The minor should not have contact with children under the age of fourteen unless supervised by an approved adult." While Dr. Henry's report also concluded that Minor did not have a persistent sexual attraction to male or female children, did not appear to be a psychopath and did not lack empathy for a child in a sexually abusive situation, his recommendation that Minor's contact with children under 14 years be restricted was well founded given that children under 14 years of age can be more vulnerable. Dr. Henry was also very concerned with the level of denial that Minor had regarding the offense. In addition, Minor's offensive conduct was not limited to just unwanted sexual touching. G.S. testified that Minor tried to force her to take a Xanax pill and that he later took out a pocket knife and threatened to cut her bra strap off with it. A.D. testified that Minor let himself into her home and bedroom without her knowledge. Minor also activated a taser and acted as if he was going to taze A.D. with it. The juvenile court could reasonably infer that this type of behavior could also be directed at a child under the age of 14.
Here, the juvenile court carefully balanced the concerns expressed by the district attorney and probation officer with the Minor's need for more freedom to aid in his rehabilitation as argued by his counsel in juvenile court. After an extended discussion with the parties, the juvenile court struck portions of the proposed probation conditions including eliminating the requirement that the supervising adult be advised that the minor is on probation for a sexual offense finding this requirement to be excessive. The juvenile court eliminated the need for all contact with children under the age of 14 years to be approved of by the treatment provider finding it unnecessary given that the treatment provider could always voice their objection through the probation officer who had authority to approve the contact. The juvenile court also changed the prohibition on Minor from being in a position of authority over minors to include an exception for "coaching positions with the approval of the probation officer" to take into account Minor's desire to coach soccer to younger children sometime in the future. The juvenile court amended the requirement that the minor "not go to or loiter near school yards, parks, playgrounds, swimming pools, arcades or other places primarily used by children under the age of 14," unless "supervised by a responsible adult over the age of 21" to "unless there is an adult present." The juvenile court explained that because there was no nexus between the condition prohibiting contact with children under the age of 14 and the offense, it was not necessary for the Minor to be supervised. The court retained the requirement that there be an adult present just in case there was any observable improper behavior by Minor.
We find the juvenile court properly exercised its discretion when it restricted Minor's activities with children under the age of 14 years and/or minors to be only in the presence of an adult. These restrictive probation conditions are reasonably related to Minor's future criminality and rehabilitation and therefore do not fall within Lent. Under the deferential standard of review required in the Lent analysis, we find no abuse of discretion in the juvenile court's orders.
2. The probation conditions are not vague due to the lack of an explicit knowledge requirement.
Minor contends that the various conditions (specifically Nos. 11, 30, 32, and 33) which prohibit him from having contact with minors or children under 14 years of age are unconstitutionally vague because they lack a knowledge or scienter requirement. Minor argues that these conditions should be stricken or, alternatively, modified to include language which would clarify that he is prohibited from having contact with anyone who he knows or reasonably should know are minors or children under the age of 14.
The suggested modifications are not necessary. To pass constitutional muster, the vagueness doctrine demands " 'no more than a reasonable degree of certainty.' " (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.) As the Supreme Court in Hall explained: "Just as most criminal statutes—in all their variety—are generally presumed to include some form of mens rea despite their failure to articulate it expressly, so too are probation conditions generally presumed to require some form of willfulness, unless excluded " ' "expressly or by necessary implication." ' " (People v. Hall (2017) 2 Cal.5th 494, 502; see id. at pp. 500-504.)
Here, it can reasonably be presumed that the probation conditions which prohibit Minor from having contact with minors or children under the age of 14 require some form of willfulness and knowledge on his part. There is no need to modify these conditions to make explicit what is already implicit. (People v. Hall, supra, 2 Cal.5th at p. 503.)
3. Minor has forfeited the argument that the probation conditions are overbroad and implicate his First Amendment rights.
Minor argues that the conditions prohibiting contact with minors and children under the age of 14 are overbroad and violate his First Amendment right to freedom of association. Minor did not object on these grounds in the juvenile court. Minor now contends that the probation conditions are unreasonable in that that none of the Minor's offenses involved young children and that there was nothing in the psychologist's report that would indicate Minor is a danger to young children. Respondent argues that Minor has forfeited the issue. We agree.
As stated by the court in Justin S., not "all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present 'pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.' " (In re Justin S. (2001) 93 Cal.App.4th 811, 815, fn. 2, citing People v. Welch (1993) 5 Cal.4th 228, 235.) In such circumstances, " '[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.' ([Welch], at p. 236.)" (Justin S., at p. 815, fn. 2.) The court in Sheena K. explained "generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (In re Sheena K., supra, 40 Cal.4th at p. 889.)
Minor's constitutional arguments require us to review the record below. We cannot determine whether there is a close fit between the legitimate purpose of the restrictions and the burdens imposed by them without first looking at what happened at the disposition hearing in the juvenile court. Because the issues presented here are not pure questions of law, we find Minor has forfeited his claims.
DISPOSITION
The last sentence of probation condition No. 27 is ordered stricken. The case is remanded to the trial court, where the electronics search conditions (Nos. 20 and 22) shall be modified in accordance with this opinion. In all other respects, the judgment is affirmed.
LEE, J. We concur: STREETER, Acting P. J.
REARDON, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------