Opinion
A149203
05-01-2017
In re SALVADOR F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SALVADOR F., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1400957)
Salvador F. appeals from a juvenile court dispositional order following his admission of a probation violation. He challenges a condition of probation authorizing searches of his electronic devices as unconstitutionally overbroad. We will order the condition modified and affirm.
STATEMENT OF THE CASE
Appellant was adjudged a ward of the court (Welf. & Inst. Code, § 602) on October 24, 2014, and placed on probation for misdemeanor possession of a weapon on school grounds. (Pen. Code, § 626.10, subd. (a).) Conditions of probation were imposed, including a general search condition and gang conditions.
On December 19, 2014, appellant's probation was modified after he admitted violating probation by wearing red clothing, being suspended from school and leaving home without permission. On April 2, 2015, appellant admitted violating probation by failing to attend school, failing to adhere to curfew, being pictured in red clothing, displaying gang signs and having gang-related photographs on his cell phone. He was ordered to participate in a six-month residential program at Orin Allen Youth Ranch Facility (OAYRF). This term was extended by 45 days on June 30, 2015, after appellant was found to have violated probation by assaulting another OAYRF resident. Appellant successfully terminated OAYRF parole on April 12, 2016, and his curfew was modified.
Notice of the present probation violation was filed on July 21, 2016, alleging that appellant was found to have a new gang-related tattoo on June 29, 2016, and on July 7, 2016, was found to be in possession of red clothing and gang drawings. The tattoo, " 'M.O.B.' (Money Over Bitches)," was "known to be gang related." When it was found during a probation office visit on June 29, 2016, appellant said it was "in honor of his brothers that passed away," the M.O.B. acronym meant "my other brothers," and he thought the court order prohibiting him from getting tattoos only applied while he was on parole. His mother stated that he did not have any brothers, only one sister, and that she believed the tattoo to be gang related. Appellant was asked the names of the individuals he was honoring and provided names of known M.O.B. gang members. On July 5, during a probation search, appellant was found to be in possession of articles of red clothing and gang drawings. During the search, appellant engaged in a conversation on his cell phone and, when asked to terminate the call and put down the phone, failed to comply and became defiant and aggressive with a police officer, resulting in him being restrained and placed in handcuffs. At the end of the search, appellant was admonished for failing to cooperate and the handcuffs were removed; appellant was apologetic, expressed gratitude for not being arrested, and said he understood why he was asked to end the call and how he contributed to escalation of the incident.
Appellant admitted the violations on July 29, 2016, and was detained in juvenile hall pending disposition. On August 11, 2016, the court ordered 90 days of home supervision and continued previously ordered probation conditions. Over defense counsel's objection, the court modified the search condition to include electronic devices and access codes.
Appellant filed a timely notice of appeal on August 15, 2016.
DISCUSSION
Conditions of probation are reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "Generally, '[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. . . ." [Citation.]' ([People v.] Lent [(1975)] 15 Cal.3d [481,] 486.)" (Olguin, at pp. 379-380.) Under section 730, subdivision (b), "the court may impose 'any and all reasonable [probation] 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.' " (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).) The scope of the court's discretion over terms of probation is even greater for juveniles than for adults, including where constitutionally protected rights are affected, "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.' ([In re] Antonio R. [(2000)] 78 Cal.App.4th [937,] 941.)" (Victor L., at p. 910.)
Still, every probation condition must be made to fit the circumstances and the minor. (In re Binh L. (1992) 5 Cal.App.4th 194, 203.) Unlike an adult probationer, a juvenile " ' "cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation." [Citation.] Courts have recognized that a "minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor." ' " (In re J.B. (2015) 242 Cal.App.4th 749, 756, quoting In re Erica R. (2015) 240 Cal.App.4th 907, 914.)
The question whether a trial court may properly impose an electronics search condition that is not related to a juvenile's crimes, on the basis that the condition is reasonably related to future criminality because it would facilitate supervising the juvenile on probation (Olguin, supra, 45 Cal.4th 375), has divided the Courts of Appeal and is currently pending before the California Supreme Court in a number of cases. Here, however, it is clear that the condition is directly tied to the conduct that brought appellant before the court. The condition was recommended by the probation department and imposed by the court because of appellant's repeated violation of gang-related probation conditions. At the hearing on July 29, the court noted, "[e]very time you come back to court, it's related to your involvement in gangs," and warned appellant that he was endangering himself and his family and "literally throwing your life away" through this behavior. In light of appellant's violations of gang-related conditions of probation and the fact that gang indicia was found on his cell phone, a condition requiring appellant to submit his electronic devices and access codes to searches related to gang associations and activities is clearly reasonable. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170 [upholding condition requiring defendant convicted of making criminal threats to police officer to submit to search of electronic devices, with electronic and social media passwords; threats included references to defendant's status as gang member and defendant's posts on social media promoted gang]; In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.) [electronic search condition requiring minor to provide passwords to devices in his custody and control reasonably related to offenses, which included a robbery involving an iPhone; condition would enable officers to determine ownership of electronic devices found in minor's possession].)
In re Ricardo P. (2015) 241 Cal.App.4th 676, 681, review granted February 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, 108, review granted February 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, 561, review granted March 9, 2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review granted April 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted October 12, 2016, S236628; In re R.F. (July 28, 2016) 2016 WL 4039794, review granted October 12, 2016, S237070; In re J.R. (Dec. 28, 2015) 2015 WL 9480460, review granted March 8, 2017, S232287; In re R.F. (Dec. 29, 2016) 2016 WL 7477581, review granted March 15, 2017, S239950; In re Q.R. (2017) 7 Cal.App.5th 1231, review granted April 12, 2017, S240222
Appellant does not contest this point. His sole contention on appeal is that the condition, as imposed, is unconstitutionally broad because it is not limited to searches related to his gang activity. The search condition requires appellant to "submit any cell phone or any other electronic device in his possession, including providing the access codes, and his residence to search and seizure by any peace officer, at any time, day or night, with or without a warrant." Appellant contends that this condition would permit searches of private material that has no connection to illegal activity, such as medical or financial information.
"When a probation condition imposes limitations on a person's constitutional rights, it ' "must closely tailor those limitations to the purpose of the condition" ' —that is, the probationer's reformation and rehabilitation— ' "to avoid being invalidated as unconstitutionally overbroad.' " (Olguin, supra, 45 Cal.4th at p. 384; see [Victor L., supra,] 182 Cal.App.4th [at p. 910].) '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. [(2010)] 187 Cal.App.4th [47,] 52.)" (In re P.O. (2016) 246 Cal.App.4th 288, 297 (P.O.).)
Respondent argues that the condition here is not overbroad because it "merely requires that appellant provide access to his cell phone and electronic devices, as well as his residence." Given the extent of information stored on and accessible through cell phones and other electronic devices, however, the access afforded by this search condition is vast. (Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 2489-2491] [cell phone "collects in one place many distinct types of information," can be "used to access data located elsewhere, at the tap of a screen," and through internet browser "could reveal an individual's private interests or concerns" and specific locations].) As presently phrased, the electronics search condition imposes no limit on the type of data subject to search, potentially allowing access to private information such as medical or financial records that have nothing to do with illegal activity and are "highly unlikely to shed any light on whether [appellant] is complying with other conditions of his probation . . . ." (P.O., supra, 246 Cal.App.4th at p. 298.) In this, the condition is overbroad because it is "not narrowly tailored to its purpose of furthering [appellant's] rehabilitation." (Ibid.)
The court in P.O. explained, "According to the juvenile court, the condition's purpose is to allow monitoring of P.O.'s involvement with drugs, but the condition does not limit the types of data that may be searched in light of this purpose. Instead, it permits review of all sorts of private information that is highly unlikely to shed any light on whether P.O. is complying with the other conditions of his probation, drug-related or otherwise. ([People v.] Appleton [(2016) 245 Cal.App.4th 717,] 719, 725, [probation condition overbroad where it authorized 'search[es] of [the] defendant's mobile electronic devices [that] could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity,' including 'medical records, financial records, personal diaries, and intimate correspondence'].)" (P.O., supra, 246 Cal.App.4th at p. 298.)
Respondent argues that limiting the condition to specific types of electronic devices, or to information stored on the devices themselves, not remotely accessed locations, would allow appellant to circumvent the condition. But appellant has not sought such limitations. He argues only that the search condition is overbroad in failing to limit the type of data subject to search. Respondent offers no direct response to this argument, simply urging that further tailoring is not necessary because "appellant has used his cell phone to violate probationary terms in the past" and, citing Olguin, supra, 45 Cal.4th at page 383, "[o]verbreadth analysis does not assume the probation officer (or other law enforcement officer) will apply a probation condition in an irrational or capricious manner." These points ignore the fact that the condition was imposed for the purpose of monitoring appellant's gang-related activities. Respondent fails to identify any reason the condition could not be more precisely stated to address this goal without unnecessarily impinging on irrelevant private information.
In addition to addressing arguments that appellant did not raise—aside from the two mentioned in the text, respondent devotes much of its brief to arguing that appellant failed to demonstrate the condition was unreasonable under the Lent factors—and explicitly attributing one such unraised argument to appellant, respondent, in addressing overbreadth, refers to "Mark's" arguments, apparently confusing the minor in the present case with another. While we recognize respondent is called upon to address similar arguments about electronics search conditions in many cases, this inattention to the specifics of the case at issue is striking.
"In an appropriate case, a probation condition that is not sufficiently precise or narrowly drawn may be modified in this court and affirmed as modified. (See, e.g., [In re] Sheena K. [(2007)] 40 Cal.4th [875,] 892; People v. Lopez (1998) 66 Cal.App.4th 615, 629.)" (Malik J., supra, 240 Cal.App.4th at p. 901.) In his opening brief, as an alternative to remanding for the juvenile court's clarification of the condition, appellant asks us to modify the condition in a manner analogous to the modification ordered in P.O., supra, 246 Cal.App.4th at page 298, to limit warrantless searches of appellant's electronic devices to data "reasonably likely to reveal whether he is participating in gang activities in violation of his gang condition." In his reply brief, appellant acknowledges that "even" the condition imposed in In re Q.R., supra, 7 Cal.App.5th at page 1234, would establish the necessary parameters, although he would prefer us to remand for the juvenile court to specify the data subject to search. The condition in Q.R. required the minor to " '[s]ubmit all electronic devices under [his] control to a search of any text messages, voicemail messages, call logs, photographs, email accounts and social media accounts, with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified.' " (Ibid.)
In P.O., the electronics search condition addressed concern with the minor's drug use. The condition imposed by the trial court required the minor to " '[s]ubmit person and any vehicle, room or property, electronics including passwords under your control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.' " (P.O., supra, 246 Cal.App.4th at p. 300.) It was modified on appeal to state: " 'Submit your person and any vehicle, room, or property under your control to a search by the probation officer or a peace officer, with or without a search warrant, at any time of the day or night. Submit all electronic devices under your control to a search of any medium of communication reasonably likely to reveal whether you are boasting about your drug use or otherwise involved with drugs, with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified. Such media of communication include text messages, voicemail messages, photographs, e-mail accounts, and social media accounts.' " (Ibid.)
As indicated in footnote 1, ante, the California Supreme Court granted review of In re Q.R. on April 12, 2017 (S240222). --------
Remand is not necessary in the present case, as the juvenile court made clear the reason for imposing the condition and it can be modified easily. In our view, the conditions in Q.R. and P.O. achieve the same goal through different phrasing, the former specifying particular locations where the material contemplated by the latter is likely to be found. The condition here must be modified similarly, to limit authorization of warrantless searches of appellant's electronic devices and accounts to data and communications reasonably likely to reveal whether he is engaging in gang-related activity: Appellant must submit electronic devices in his possession or control to search of text messages, voicemail messages, call logs, photographs, email accounts and social media accounts, and must disclose to probation or law enforcement officers the passwords necessary to access his devices and the specified accounts and data. He is not required to disclose passwords to digital accounts other than the ones specified. (P.O., supra, 246 Cal.App.4th at p. 298.)
DISPOSITION
The challenged search condition is modified to read as follows:
"The minor shall submit any cell phone or any other electronic device in his possession or control to a search of any text messages, voicemail messages, call logs, photographs, email accounts and social media accounts, with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified. The minor shall submit his residence to search and seizure, by any peace officer at any time of the day or night, with or without a search warrant." (P.O. supra, 246 Cal.App.4th at p. 298.)
As so modified, the dispositional order is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.