Opinion
H047686
11-23-2020
In re R.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. 19JV001032, 19JV001033)
I. INTRODUCTION
The minor, R.R., appeals from a dispositional order continuing him on probation with various terms and conditions, following findings by the juvenile court that he violated the terms of his probation in case No. 19JV001032, and that he possessed a concealable firearm (Pen. Code, § 29610; a misdemeanor) and live ammunition (id., § 29650; a misdemeanor) in case No. 19JV001033. The minor contends that an electronic devices search condition (condition No. 13) in the instant dispositional order is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and must be stricken.
For reasons that we will explain, we will reverse the judgment and remand the matter to the juvenile court with instructions to strike the electronic devices search condition and to consider whether to impose a more tailored condition consistent with the principles articulated in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).
II. BACKGROUND
A. Prior Petitions and Probation Violation Notices
In May and August 2019, two Welfare and Institution Code section 602 petitions were filed regarding the minor. The minor admitted committing misdemeanor possession of a controlled substance, Xanax; an infraction for possession of less than one ounce of marijuana; misdemeanor battery on a peace officer; and misdemeanor resisting an officer.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Between August and October 2019, two section 777 probation violation notices were filed regarding the minor. The sustained allegations included the minor used marijuana, alcohol, and medication (Percocet) that was not prescribed to him and operated a motor vehicle without being properly licensed and insured.
According to reports from the probation officer, the minor admitted taking up to seven Xanax pills daily, smoking marijuana daily, and drinking alcohol. The minor was also hospitalized on separate occasions for alcohol poisoning and overdosing on drugs.
B. The Most Recent Petition and Probation Violation Notice
On November 20, 2019, probation and the police conducted a compliance check of the minor's residence. Located in the minor's bedroom were a firearm, marijuana, vodka, and a "red vape device (smoking device)." In the backyard, additional items were found, including a revolver with live ammunition rounds in the cylinder and a box of ammunition with approximately 750 rounds. A probation officer and a police officer went to the minor's high school. The probation officer made contact with the minor in the lobby of the high school, and the police officer made contact with another probationer, L.C. In response to a question by the probation officer, the minor denied having a phone. The minor was taken into custody. The probation officer who contacted the minor was informed by another probation officer that the minor had handed his cell phone to L.C.
On November 21, 2019, a section 602 petition was filed in case No. 19JV001033, alleging that the minor, then age 17, possessed a concealable firearm (Pen. Code, § 29610; count 1, a misdemeanor) and live ammunition (id., § 29650; count 2, a misdemeanor). That same day, a section 777 notice was filed in case No. 19JV001032, alleging that the minor violated the terms of his probation, including by (1) possessing alcohol, (2) marijuana, and (3) a "vape pen," and by (4) giving his cell phone to probationer L.C. in violation of the minor's probation term prohibiting him from associating with anyone on probation.
C. The Minor's Admissions
At a hearing on November 22, 2019, the minor's counsel stated that the minor wanted to enter admissions to "both counts" in the section 602 petition and to "all allegations" in the section 777 notice. The prosecutor interjected, "Your Honor, the only thing that I should alert everyone is his phone was seized after some very serious efforts by him to avoid having his phone seized. [¶] We expect to look to see why he was trying to make sure that law enforcement didn't get hold of his phone. So there may be a new [section 777 notice] based upon whatever we find in that phone." The minor's counsel indicated that the prosecutor's statement did not change the minor's intent to admit all allegations.
The minor subsequently admitted both counts in the section 602 petition and expressly admitted three of the four allegations in the section 777 notice. Regarding the fourth allegation, the court asked the minor whether it was true that he had given his cell phone to L.C. in violation of the minor's probation term prohibiting him from associating with anyone known to be on adult or juvenile probation. The minor responded, "That wasn't my phone. It was my brother's." The minor's counsel clarified that the phone belonged to the brother and that the "crux" of the probation violation allegation was that the minor was associating with another probationer. The court responded, "Okay. The Court appreciates that clarification. And with that, you stipulate to a factual basis?" The minor's counsel responded affirmatively.
At the conclusion of the detention hearing, the prosecutor indicated that the probation officer was seeking the phone from the minor to determine whether the minor was "hiding" something on the phone. Counsel for the minor responded that the police had the phone. The minor interjected that the phone was his brother's, and "[i]f they find anything on that, they're going to put it all on me." The minor's counsel similarly indicated that the phone was not the minor's, and that the minor did not know the password for the phone. The court stated that it needed all the facts surrounding the phone, and that it would wait until the dispositional hearing to make any additional orders.
D. The Juvenile Hall and Probation Reports
A juvenile hall behavior report indicated that the minor was involved in "inappropriate conversations regarding guns and drugs."
A report filed by the probation officer indicated that the minor had previously been declared a ward of the court in June 2019. Within a few months, he committed four additional violations of the law and numerous probation violations. The probation officer's report, which was based on a police report, reiterated the facts underlying the most recent section 602 petition and section 777 probation violation notice, including that the minor had handed his cell phone to L.C. before the minor was taken into custody. When interviewed more recently by the probation officer, the minor stated that he thought it would " 'be cool to have a gun.' " The minor's mother told the probation officer that the minor had not done anything wrong because the items were not his, and that he takes the blame for other people. The mother acknowledged being home the day before the search when the minor's friends, who were the same age as the minor, were drinking beer at the house. She stated that the minor was not drinking, and that she believed one of his friends could have left the gun behind. The probation officer concluded that the "minor does not have consequences in the home and the mother minimizes the minor's criminogenic behavior." The probation officer reported that "less restrictive sanctions have been unsuccessful in rehabilitation of the minor," in reference to the minor's unsuccessful participation in a juvenile drug court program, home supervision, and the temporary electronic monitoring program. The probation officer recommended that the minor be continued as a ward of the court and that he complete a youth center program.
E. The Disposition Hearing
A disposition hearing was held on December 10, 2019. The minor's counsel requested that the minor continue on probation, and that he not be sent to the youth center.
The prosecutor contended that the minor should not be allowed to stay at home, where his mother failed to provide rules or consequences for his behavior. The prosecutor observed that there was a loaded firearm and ammunition in the backyard, and a gun, a smoking device, and alcohol in the minor's room. The prosecutor argued that the youth center was a good option, rather than a group home, in view of the weapons and other items that the minor had possessed.
Regarding the cell phone that the minor handed off prior to his arrest, the prosecutor stated that probation believed the mother had "tipped off" the minor that probation was on its way to arrest him at school, as the minor got rid of the phone. Probation believed that the minor called a friend to "dump the phone in his friend's car." The prosecutor stated that he was "still trying to get a search warrant together to search that phone." The prosecutor believed there was "incriminating information on that phone" and therefore the minor tried to get rid of it so probation wouldn't see it. The prosecutor explained that there wasn't a search condition for the phone at the time, and that there "needs to be a search condition."
The juvenile court observed that the probation report referred to the phone needing to be returned to the minor. The prosecutor responded that "it's evidence of a crime" and requested that this provision in the probation report be stricken.
The minor's assigned probation officer, who was present at the residence during the probation search and who responded to the high school where the minor was taken into custody, agreed with the prosecutor that the phone needed to be searched. The probation officer stated that the minor "hand[ed] it off, while he was at the school, to somebody else, prior to us even getting there." The probation officer also reiterated the recommendation from the probation report that the minor be sent to the youth center, rather than being on probation at home.
The juvenile court confirmed with the probation officer that the minor had previously been admitted to drug court because he had been hospitalized two times for alcohol and/or drug poisoning. The probation officer observed that on one occasion, the minor was so incapacitated that when he was "bought . . . out of that state, he ended up fighting with the officers" which resulted in him committing an assault on the officer.
The minor's mother told the juvenile court that the phone belonged to the minor's brother, and that they wanted the phone returned. The court explained to the mother that the issue was whether the minor possessed the phone, not whether he purchased or owned the phone. The court stated that "it appears that he had the phone at school and gave it to somebody else, at some point, when he learned that Probation was coming to speak with him."
The probation officer's report indicated that the minor had a younger brother who attended the same high school as the minor.
The juvenile court ultimately agreed with most of the probation officer's recommendations. The court continued the minor as a ward of the court and placed him on probation with various terms and conditions, including that he serve 365 days in a youth center program. The court struck the provision in the probation report that provided for the return of the phone to the minor. The court stated that the phone was "apparently, . . . in evidence and, most likely, is going to be searched soon."
The prosecutor thereafter requested an electronic devices search condition. The prosecutor stated that it was his understanding that probation conducted a search at the minor's home with the mother present and the minor at school. After guns and other items were found at the residence, probation went to the minor's school to arrest him. Meanwhile, another probation officer who was at the school saw the minor run out to a vehicle that had arrived at the school. The minor handed a phone to a person in the vehicle. The vehicle was subsequently stopped, and the person in the vehicle reported that he had gotten a call from the minor saying, " 'Swing by the parking lot. I'll meet you in the parking lot.' "
The minor's assigned probation officer explained to the juvenile court that, after he submitted his report to the court, he learned that "the minor was communicating with other minors on probation via the phone, as I was asked, during one of my other probation contacts, if the minor had been arrested." The minor's preexisting probation terms prohibited him from having contact with other probationers. The probation officer stated that "the minor had actually utilize[d] social media to message that he was being incarcerated that day, prior to us taking him into custody." Regarding the need for an electronic devices search condition, the probation officer stated that the minor denied having a phone when he was taken into custody as he had just "handed it off." The probation officer believed that the minor was "attempting to hide further criminological behavior or violations of probation within the phone, as he was handing it off to another individual, knowing that he was going to, most likely be taken into custody that day."
The minor's counsel contended that an electronic devices search condition did "not have a nexus to the underlying charges." Counsel observed that the minor and his mother had stated that the phone belonged to the minor's brother. The minor had conveyed to counsel that "he wanted to make sure his brother's phone got back to his brother, and that's why it got handed off." Counsel stated that she was "not sure where this other information is coming from" regarding "other people he was communicating with." Counsel argued that she had "not seen anything, in writing, or any substantiation for this" and objected to the information "being used as a basis for . . . say[ing] it would prevent further criminology." Counsel argued that, although the minor "was about to get a phone," the phone at issue was his brother's and "most, if not all, of the stuff on that phone is his brother's."
The juvenile court indicated that the minor's previous probation terms included a prohibition on having any contact with a probationer, whether a minor or an adult. The court was "extremely concerned that [the minor] ha[d] been accessing or utilizing social media, apparently, to communicate with other . . . probationers." The court further observed that the minor "has consistently had issues with regard to substance abuse, as well," and that "[t]he Court is well aware of the fact that people are often utilizing electronic means to acquire substances." The court stated that the minor's last probation violation included having marijuana in his room and a vape pen. The court stated it "would be, essentially, tying Probation's hands behind their back if the Court were not to impose . . . [an electronic devices search] condition." The court proceeded to impose the following probation condition: "Minor must submit all electronic devices under his control to a search by the probation officer or a peace officer, of any text messages, voicemail messages, call logs, photographs, e-mail accounts, Internet sites and social media accounts, with or without reasonable or probable cause or the benefit of a search warrant, at any time of the day or night and provide the probation officer or peace officer with any passwords necessary to access the information specified, and you will not change or add any email addresses or passwords without prior permission of your Probation Officer. The minor shall not knowingly clean or delete his/her internet browsing history without prior permission from your Probation Officer."
At the conclusion of the hearing, the probation officer requested that the minor provide the passcode for the phone to be accessed. The juvenile court stated that the prosecutor indicated he would be obtaining a search warrant, and that the instant electronic devices search condition was not in effect at the time the phone was taken into custody.
III. DISCUSSION
A. The Parties' Contentions
The minor contends that the electronic devices search condition is invalid under Lent, supra, 15 Cal.3d 481, and must be stricken. The minor argues that there is no evidence he used an electronic device for the offenses he committed, that the use of an electronic device is not itself unlawful, and that the search condition's infringement on his privacy rights is substantially disproportionate to the goal of deterring future criminal conduct.
In a heading in his opening brief on appeal, the minor contends that the electronic devices search condition is also unconstitutionally overbroad. Because the minor does not provide any argument or authority to support this contention, we do not address it further.
The Attorney General contends that the electronic devices search condition is reasonably related to future criminality. To the extent this court concludes otherwise, the Attorney General argues that the matter should be remanded to the juvenile court to allow the probation department or the prosecutor to submit evidence, if available, sufficient to justify the condition.
B. General Legal Principles Regarding an Electronic Devices Search Condition
In ordering a ward under its jurisdiction to probation, the juvenile 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.' . . . '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.' [Citation.] On appeal, 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.' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1118.)
Under the Lent test, " '[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." ' [Citations.] The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1118.)
In this case, the Attorney General does not dispute that the first two prongs of the Lent test are satisfied. Under these two prongs, (1) the electronic devices search condition has no relationship to the minor's possession of a concealable weapon, live ammunition, alcohol, marijuana, or a vape pen, and (2) the electronic devices search condition relates to conduct which is not in itself criminal. We therefore turn to the third prong of Lent regarding whether the condition " ' "requires or forbids conduct which is not reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1118.)
In Ricardo P., the California Supreme Court addressed whether an electronics search condition requiring the minor to submit electronics, including passwords, to search by a probation officer met the third prong of the Lent test. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117, 1119.) The minor in Ricardo P. admitted two counts of felony burglary. (Id. at p. 1115.) There was no indication that an electronic device was used in connection with the burglaries. However, the probation report indicated that the minor was using drugs at the time he committed the offense, and the juvenile court further believed that "teenagers 'typically' brag about . . . drug use on social media." (Id. at p 1119.) The juvenile court imposed probation conditions prohibiting the minor from using or possessing illegal drugs, as well as an electronics search condition "to enable probation officers to monitor whether [the minor was] communicating about drugs or with people associated with drugs." (Ibid.)
The California Supreme Court concluded that, even assuming the minor was using drugs at the time he committed the burglaries and that teenagers tend to brag about drug use online, the electronics search condition satisfied Lent's third prong. (Ricardo P., supra, 7 Cal.5th at pp. 1119-1120.) The condition was invalid under that prong because "the burden it impose[d] on [the minor's] privacy [was] substantially disproportionate to the condition's goal of monitoring and deterring drug use." (Id. at p. 1120.)
First, the California Supreme Court explained that there must be a "closer relationship" between the probation condition and deterring future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1120.) This relationship must be "more than just an abstract or hypothetical relationship." (Id. at p. 1121.) " 'Not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable' under Lent. [Citation.]" (Id. at p. 1127.) The court explained that the record before it, "which contain[ed] no indication that [the minor] had used or will use electronic devices in connection with drugs or any illegal activity, [was] insufficient to justify the substantial burdens imposed by [the] electronics search condition." (Id. at p. 1116.) The court explained 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." (Id. at p. 1126.)
The California Supreme Court clarified that the third prong under Lent does not require a "nexus" between the probation condition and the underlying offense or prior offenses. (Ricardo P., supra, 7 Cal.5th at p. 1122.) The court explained that " 'conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender's precise crime' [citation] so long as they are 'reasonably directed at curbing [the defendant's] future criminality' [citation]. For example, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.]" (Ibid.)
Second, the California Supreme Court explained that "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. [Citations.]" (Ricardo P., supra, 7 Cal.5th at p. 1122.) "A probation condition that imposes substantially greater burdens on the probationer than the circumstances warrant is not a 'reasonable' one." (Id. at p. 1128.) Regarding this proportionality requirement, the court explained that a "probationer's offense or personal history may provide the . . . 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. [Citations.]" (Id. at pp. 1128-1129.)
The California Supreme Court found that such proportionality was lacking in the case before it. The court explained: "[N]othing in the record suggests that [the minor] has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that [the minor] had previously used marijuana and its generalization that '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.' Based solely on these observations, the juvenile court imposed a sweeping probation condition requiring [the minor] to submit all of his electronic devices and passwords to search at any time. Such a condition significantly burdens privacy interests. [Citations.]" (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) In this regard, the court noted that the electronics search condition was "expansive in its scope: It allows probation officers to remotely access [the minor's] e-mail, text and voicemail messages, photos, and online accounts, including social media like Facebook and Twitter, at any time. It would potentially even allow officers to monitor [the minor's] text, phone, or video communications in real time. Further, the condition lacks any temporal limitations, permitting officers to access digital information that long predated the imposition of [the minor's] probation." (Id. at p. 1127.)
The California Supreme Court expressed concern that if it "were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed . . . . Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities." (Ricardo P., supra, 7 Cal.5th at p. 1123.) The court further explained that "[t]he plain language of this electronics search condition would require [the minor] 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. [Citation.] If the juvenile court's observation that 'minors typically will brag about their marijuana usage or drug usage' online were sufficient to justify the substantial burdens the condition imposes, it is hard to see what would be left of Lent's third prong." (Id. at pp. 1123-1124.)
The California Supreme Court stated that it was "not decid[ing] whether there is sufficient basis in the present record to support the Court of Appeal's suggestion that the juvenile court, on remand, may restrict the condition to search of 'electronic information that is reasonably likely to reveal whether [the minor] is boasting about his drug use or activity, such as text and voicemail messages, photographs, e-mails, and social-media accounts.' Nor [did the California Supreme Court] address how the parameters of such a condition might be delineated." (Ricardo P., supra, 7 Cal.5th at p. 1124.) The California Supreme Court simply affirmed the Court of Appeal's judgment striking the electronics search condition and directed that the matter be remanded to the juvenile court for further proceedings. (Id. at p. 1129.)
Subsequent to Ricardo P., the appellate court in In re Alonzo M. (2019) 40 Cal.App.5th 156 (Alonzo M.), summarized "the following guidelines [from Ricardo P.] for determining when an electronic search condition survives the third prong of Lent in a juvenile delinquency case. First, 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.]" (Id. at p. 166.) Second, " 'the burden imposed by [the] probation condition' must be proportionate to 'the legitimate interests served by the condition.' [Citation.] Thus, ' "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality,' " ' only if its infringement on the probationer's liberty is not 'substantially disproportionate to the ends of reformation and rehabilitation.' [Citation.] (Ibid., italics omitted.)
In Alonzo M., supra, 40 Cal.App.5th 156, the purpose of the minor's electronics search condition "was to address [his] susceptibility to negative social influences, including but not limited to the two coresponsibles for whom a stay-away order was imposed." (Id. at p. 167.) On appeal, the appellate court determined that "the juvenile court properly concluded that an electronic search term in some form could be imposed as a condition of [the minor's] probation." (Id. at p. 168.) The appellate court explained that "[i]n contrast to the nebulous concern about marijuana use in Ricardo P., in the present case the juvenile court made a reasoned, evidence-based finding that [the minor's] successful rehabilitation depends on avoiding negative social influences." (Id. at p. 166.) The appellate court determined, however, that the language of the electronic search condition was "too broad." (Id. at p. 167.) The appellate court explained that, based on Ricardo P., "the juvenile court may impose an electronic search condition that is more narrowly tailored to allowing search of any medium of communication reasonably likely to reveal whether [the minor] is associating with prohibited persons." (Alonzo M., supra, at p. 168.) The appellate court struck the electronic search condition and remanded the matter to the juvenile court to "more narrowly tailor[]" the electronic search condition, so that the burden on the minor's privacy would be "substantially proportionate to the probation department's legitimate interest in preventing him from communicating with his coresponsibles or other identified peers who might draw him in to criminal conduct." (Ibid., fn. omitted; see In re Amber K. (2020) 45 Cal.App.5th 559, 567 [electronic search condition stricken, and matter remanded for juvenile court to consider whether to impose a more narrowly worded condition].)
C. Analysis
In this case, the juvenile court articulated two reasons for imposing the electronic devices search condition. First, the court referred to the minor's substance abuse issues and the court's "aware[ness]" that people "often utilize[e] electronic means to acquire substances." Second, the court was "extremely concerned that [the minor] ha[d] been accessing or utilizing social media, apparently, to communicate with other . . . probationers" in violation of a preexisting probation condition of the minor.
Regarding the juvenile court's first stated reason for imposing the probation condition—concern about substance abuse and the potential use of an electronic device to acquire the substances, based on Ricardo P. we determine that the electronic devices search condition is invalid under Lent's third prong because nothing in the record indicates that the minor has used or will use an electronic device in connection with drugs or alcohol. (See Ricardo P., supra, 7 Cal.5th at pp. 1116, 1122; People v. Cota (2020) 45 Cal.App.5th 786, 791 (Cota) ["Mere convenience in monitoring a parolee's conduct, coupled with generic descriptions of how some people use cell phones, are not sufficient to render this burden on [defendant's] privacy interests reasonable"].) As in Ricardo P., "the condition is invalid under Lent, because the burden it imposes on [the minor's] privacy is substantially disproportionate to the condition's goal of monitoring and deterring drug [and alcohol] use." (Ricardo P., supra, at p. 1120.) Based on the minor's substance abuse issues and a generalization about the use of electronic devices to acquire substances, the juvenile court imposed a probation condition that "significantly burdens privacy interests." (Id. at p. 1123.) The probation condition is expansive in its scope, requiring the minor to submit all electronic devices and passwords to search at any time. "The plain language of this electronics search condition would require [the minor] to provide probation officers full access, day or night, . . . to his social media accounts [and] also to the contents of his e-mails, text messages, and search histories, all photographs . . . 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." (Ibid.) "Further, the condition lacks any temporal limitations, permitting officers to access digital information that long predated the imposition of [the minor's] probation." (Id. at p. 1127.)
The juvenile court's second stated reason for imposing the probation condition—the minor's use of "social media, apparently, to communicate with other . . . probationers" in violation of a preexisting condition of his probation—was based on information provided by the probation officer at the disposition hearing. The probation officer stated: (1) "[T]he minor was communicating with other minors on probation via the phone, as I was asked, during one of my other probation contacts, if the minor had been arrested," and (2) "the minor had actually utilize[d] social media to message that he was being incarcerated that day, prior to us taking him into custody." The minor's counsel stated that she was "not sure where this other information is coming from" regarding "other people he was communicating with." Counsel argued that she had "not seen anything, in writing, or any substantiation for this" and objected to the information "being used as a basis for . . . say[ing] it would prevent further criminology."
On appeal, the minor contends that the probation officer did not describe how the officer knew the minor had utilized social media to communicate the fact of his arrest, nor did the officer indicate whether the minor knew that the other juvenile was on probation. The minor further argues that the record is not clear regarding whether the information was sent directly from the minor to the other juvenile on probation.
It is not clear from the probation officer's statements at the disposition hearing how the minor was using social media to communicate with other probationers, as concluded by the juvenile court. However, we do not foreclose the possibility that an electronic devices search condition might be appropriate in this case based on information that is not reflected in the current record regarding the minor's use of social media. (See Cota, supra, 45 Cal.App.5th at p. 791 [permitting the People on remand to demonstrate "with additional facts that a more narrowly drawn electronics search condition is proportionate to the burden on [the defendant's] privacy interest"].) As we have explained regarding the juvenile court's other reason for imposing the electronic devices search condition, nothing in the record indicates that the minor has used or will use an electronic device in connection with drugs or alcohol. We do not foreclose the possibility that an electronic devices search condition might be appropriate in this case based on information that is not reflected in the current record regarding the minor's use of electronic devices in relation to drugs or alcohol, or that a narrower electronic devices search condition might be appropriate. In view of the record in this case, and in view of the probation condition's significant burden on privacy interests (Ricardo P., supra, 7 Cal.5th at p. 1123), we will strike the condition and remand the matter to the juvenile court to delineate, upon further argument and information from the parties as necessary, the proper scope of the condition. (See id. at pp. 1124 [raising as an issue, but not deciding, whether electronics search condition may properly be delineated to " 'electronic information that is reasonably likely to reveal whether [the minor] is boasting about his drug use or activity, such as text and voicemail messages, photographs, e-mails, and social-media accounts' "], 1127 [finding that an electronic search condition lacked "temporal limitations" and thus improperly allowed the probation officer "to access digital information that long predated the imposition of . . . probation"]; Alonzo M., supra, 40 Cal.App.5th at p. 168 [remanding for the juvenile court to impose a more narrowly tailored electronic search condition].) The burden on the minor's privacy from any new electronic devices search condition must be substantially proportionate to the condition's apparent goal of monitoring and deterring the minor's possession or use of drugs and alcohol and, if supported by additional facts, the minor's communication with other probationers. (See Ricardo, supra, at p. 1120.)
Lastly, although the parties on appeal dispute whether the minor's hand off of a phone prior to his arrest is a sufficient basis to impose an electronic devices search condition, we observe that the juvenile court did not identify this circumstance as the basis for its imposition of the condition. We therefore do not address whether the circumstances of the phone hand off are a sufficient basis for the particular electronic devices search condition imposed in this case.
IV. DISPOSITION
The dispositional order of December 10, 2019 is reversed. The matter is remanded to the juvenile court with directions to strike the electronic devices search condition (condition No. 13) and to consider whether to impose a more tailored electronic devices search condition.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.