Opinion
A151945
08-03-2018
In re OMAR S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. OMAR S., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
Appellant's petition for rehearing is denied. It is ordered that the opinion filed on August 3, 2018, is modified as follows:
On page 10, at the beginning of footnote 7, the following is added:
In a petition for rehearing, Omar contends he (obliquely) argued we must reverse in the absence of explicit testimony from Davis that he did not comply with
The modification effects no change in the judgment. Date:__________section 647, subdivision (g)'s civil commitment requirement because he concluded subdivision (g)(2) applied. Assuming the argument is properly before us, we decline the invitation to extend the case law. In re Jorge D. (2016) 246 Cal.App.4th 363 did not so hold, and the statutory language is clear. (See People v. Ambellas, supra, 85 Cal.App.3d Supp. at p. 33, fn 6 [if defendant suggests § 647, subd. (g) is a defense, "the People should readily be able to establish, through the testimony of the officer, why the defendant fell within one of the three categories of persons not entitled to subdivision [g] benefits"]; see also id. at pp. 30-33, & fns. 4.)
/s/_________ P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV18375)
In this juvenile delinquency case, Omar S. was found to have committed two misdemeanors: public intoxication (Pen. Code, § 647, subd. (f)) and possession of alcohol by a minor (Bus. & Prof. Code, § 25662, subd. (a)). At disposition, he was placed on probation. Omar challenges the sufficiency of evidence underlying the jurisdictional findings and contends the juvenile court imposed an unreasonable and unconstitutionally overbroad probation condition. We strike the probation condition and remand for modification. In all other respects, we affirm.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2016, the Napa County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602), alleging Omar's commission of two misdemeanors: public intoxication (§ 647, subd. (f); count one) and possession of alcohol by a minor (Bus. & Prof. Code, § 25662, subd. (a); count two).
At the contested jurisdiction hearing, Napa Police Department Officer Adam Davis was the only witness. Davis was working as a patrol officer on June 3, 2016. At about 10:30 p.m., he drove through a trailer park and noticed a group of six or seven people standing by several parked cars in the common parking area. The parking area was approximately 75 to 100 feet away from the street. On the trunk of a parked car, Davis saw "numerous . . . open or empty cans of Corona beer." This concerned Davis because drinking alcohol in public violates the municipal code. Furthermore, some of the persons appeared to be under the age of 21. As he approached, a few individuals began hiding cans.
Davis initiated a conversation with Omar, who was standing next to the trunk of the car with the beer cans on it. Davis asked Omar how old he was. Omar hesitated, but eventually told Davis he was 17 and admitted he had consumed alcohol. Davis noticed Omar's speech was "slurred and thick." Davis "had a difficult time understanding what [Omar] was saying because [his speech] was so slurred." Davis also observed Omar had "watery and glassy eyes," and his breath smelled "strong[ly]" of alcohol. Omar appeared "unsteady" on his feet; he swayed, about two to three inches, back and forth.
Davis called Omar's mother, but was unable to reach her. That no parent was available "to make sure [Omar] was safe" raised additional concern for Davis; he was afraid Omar would not "make good decisions" if left alone. Davis asked Omar to blow into a breathalyzer device, to which Omar consented and gave two samples. The results were 0.169 and 0.161, which is twice the legal driving limit. Davis stated this was "a pretty high level especially for a juvenile." After considering the totality of the circumstances, Davis arrested Omar. Davis relied on the presence of nearby alcohol, the strong odor of alcohol on Omar's breath, his swaying, his slurred speech, and his "glassy watery eyes." If left alone, Davis believed Omar "was a danger to himself or others due to his level of intoxication." Davis based this concern on his observations and the fact that he had seen "probably more than a thousand people drunk through the years of being an officer."
If Davis had reached Omar's mother, he possibly would have released Omar to her care, after issuing a citation.
Davis took Omar to the hospital for medical clearance. At the hospital, Davis reached Omar's mother via telephone. Omar's mother was unable to pick Omar up. At this point, Omar "yelled a little bit," said "this is bullshit," and kicked a gurney. Omar's speech remained slurred. As a result, Davis needed to ask questions several times to elicit an understandable response.
Defense counsel cross-examined Davis. Although Davis acknowledged being aware of a statutory requirement to place Omar in civil protective custody if possible (§ 647, subd. (g)), he did not do so. Davis explained: "[W]e have a detox center which is at the Napa State Hospital. I do not believe they accept juveniles there." Davis made no inquiry on Omar's behalf because he "had never done it in [his] 16 years" on the job.
Omar also called Davis to testify as a defense witness. Omar provided his name and mother's telephone number to Davis. Omar was slow to comply with Davis's orders, but did not resist. Davis saw Omar walk when he escorted him to the patrol car. Omar did not fall, stumble or lean on anything for support, and he did not require assistance. Omar did not fall asleep once seated. Nor did Davis observe Omar having difficulty holding his head up.
After the People rested, Omar moved to dismiss both counts, pursuant to Welfare and Institutions Code section 701.1, arguing insufficiency of the evidence. In particular, with respect to count one, defense counsel argued there was insufficient evidence Davis complied with section 647, subdivision (g). The court delayed ruling on the motion and granted the prosecution leave to research and brief the issue. Omar consented to a continuance but objected to any reopening of evidence.
Welfare and Institutions Code section 701.1 provides in relevant part: "At the hearing, the court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602."
The People's written opposition argued Davis's actions were reasonable because "a juvenile sobering facility . . . does not exist in Napa County." In the alternative, the People argued the section 647, subdivision (g) defense did not apply because Davis had probable cause to believe Omar had committed another misdemeanor in addition to public intoxication. (See § 647, subd. (g)(2).)
After several continuances, the juvenile court denied Omar's motion to dismiss and found both counts "true." In denying Omar's motion, the trial court explained: "I'm not inclined to find that the officer had to undertake a futile attempt to find a facility when there was none. In the officer's information over many years being an officer was that he never heard of one. So I think . . . both of the exceptions to the requirement to take a person to a recovery facility are established. So I don't find that the officer had failed to take him to a place that didn't exist, or that the minor was not in possession of alcohol."
The probation department's dispositional report indicated Omar was then 18 years old and employed. He had not graduated from high school and reported regularly drinking alcohol and using marijuana. Omar had also experimented with cocaine and methamphetamine. Omar admitted association with Sureño gang members and had four separate law enforcement contacts since his arrest. A recent search of Omar's cell phone uncovered a photograph of Omar with documented Sureño gang members. In the photograph, Omar was "displaying hand signs consistent to that of a Sureño gang member."
The probation department recommended Omar be placed on formal wardship probation subject to several conditions. One of the recommended conditions required Omar to "submit all electronic devices under [his] control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. [Omar] 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."
At the dispositional hearing, Omar's trial counsel objected to the electronic search condition. The juvenile court adjudged Omar a ward of the court, ordered him to serve three days in juvenile hall, and placed him on probation with various terms and conditions, including the recommended electronic search condition. Omar was also prohibited, inter alia, from possessing or consuming alcohol and illegal drugs and from associating with gang members. Omar filed a timely notice of appeal.
Defense counsel said, "If the court orders [a gang association term] I understand why there would be an electronic search, but because I don't think gang probation is appropriate I also don't think the electronic search is appropriate."
II. DISCUSSION
Omar contends (1) insufficient evidence supports the juvenile court's jurisdictional findings on both counts, and (2) the electronic search condition is unreasonable and unconstitutionally overbroad. Omar's substantial evidence arguments are without merit. Although the electronic search condition is valid under People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded on other grounds as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-291, we agree it is overbroad as written. A. Sufficiency of the Evidence
Omar contends insufficient evidence supports the juvenile court's jurisdictional findings. He also maintains the juvenile court erred in denying his motion to dismiss. The latter question is also, at base, one of substantial evidence. (In re Man J. (1983) 149 Cal.App.3d 475, 481-482 ["the standard for review of the juvenile court's denial of a motion to dismiss is whether there is substantial evidence to support the offense charged in the petition"].)
When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) "[O]ur perspective must favor the judgment. [Citations.] 'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.' " (Ryan N., at p. 1372.)
"By definition, 'substantial evidence' requires evidence and not mere speculation." (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, italics omitted; accord, In re Roderick P. (1972) 7 Cal.3d 801, 809.) Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) " 'Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.' (Evid. Code, § 411.) 'If a trier of fact has believed the testimony . . . this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions.' " (In re Andrew I. (1991) 230 Cal.App.3d 572, 578.)
1. True Finding on Count Two
First, we address Omar's substantial evidence challenge to the juvenile court's finding he was a minor in possession of alcohol. Business and Professions Code section 25662, subdivision (a) provides: "[A]ny person under 21 years of age who has any alcoholic beverage in his or her possession on any street or highway or in any public place or in any place open to the public is guilty of a misdemeanor." Omar contends there is no substantial evidence he possessed alcohol because neither his intoxication nor his proximity alone establish possession.
"The essential elements of possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.' " (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 (Palaschak).) Neither exclusive possession of the premises nor physical possession is required. (People v. Fusaro (1971) 18 Cal.App.3d 877, 891, disapproved on other grounds as stated in People v. Brigham (1979) 25 Cal.3d 283, 293, & fn. 14.) "[W]hile mere access to the place where the contraband is found is not enough, the fact that other persons had access does not negative a finding of joint possession and control." (Fusaro, at p. 891.)
" 'Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control' [citation] or which is subject to the joint dominion and control of the accused and another." (People v. Francis (1969) 71 Cal.2d 66, 71, italics added; accord, People v. Glass (1975) 44 Cal.App.3d 772, 776.) "However, '[w]hen contraband is found in a place to which a defendant and others have access and over which none has exclusive control "no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant's knowledge of the presence of a narcotic. . . ." [Citation.]' (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) '[P]roof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.' (People v. Redrick (1961) 55 Cal.2d 282, 285.)" (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 422.) A "showing of consciousness of guilt" (Redrick, at pp. 287-288), together with "nonexclusive dominion, will support a finding of knowing possession." (Id. at p. 287.)
Omar's entire argument appears to be premised on his notion there is no evidence the beer cans seen by Davis contained any alcohol. We reject the premise. Davis testified Omar was standing next to the trunk, on which Davis observed "numerous . . . open or empty cans of Corona beer." (Italics added.) While he approached on foot towards the group, Davis saw several people standing near the car attempting to hide the cans. When testifying regarding his reasons for arresting Omar, Davis listed "the alcohol nearby him" as one of the factors that led him to believe "leaving [Omar] there would be not a very safe option for him." There was no further testimony regarding the contents of the beer cans. However, the juvenile court could reasonably infer from the foregoing evidence that at least some of the cans on top of the trunk contained beer.
The remainder of Omar's argument is of little persuasive value now. Omar relies on Palaschak, which teaches a defendant may be convicted of possession of drugs despite having ingested the drugs prior to arrest, if sufficient circumstantial evidence, over and above evidence of intoxication, exists to prove the possession. (Palaschak, supra, 9 Cal.4th at pp. 1237, 1241; accord, People v. Morales (2001) 25 Cal.4th 34, 44.) However, we need not consider application of this rule here. Palaschak is distinguishable because it considered a defendant who had ingested all of the LSD he was charged with possessing. Here, we have already concluded substantial evidence supports an implicit finding alcohol remained in the beer cans.
Omar also misplaces his reliance on a series of cases on the usable amount requirement. (See, e.g., People v. Spann (1986) 187 Cal.App.3d 400.)
The juvenile court did not rely on either Omar's intoxication or his proximity to alcohol alone to establish possession. The record shows Omar was standing next to open beer cans on the trunk, he admitted consuming alcohol, his blood alcohol content was found to be approximately 0.16, and he displayed numerous signs of being intoxicated, including smelling of alcohol. These circumstances permitted the reasonable inference that Omar exercised exclusive or joint dominion and control over the beer, while being aware of its presence and character. (See Bramlette v. Superior Court (1969) 273 Cal.App.2d 799, 806 [arresting officer could impute possession of bottle of wine to all minor occupants of car].)
Omar may be correct that it is theoretically "possible [he] became intoxicated via ingestion of other alcohol, at another location." However, the juvenile court rejected that inference and relied on a contrary inference amply supported by the evidence. Viewed in the light most favorable to the judgment, substantial evidence supports the juvenile court's finding Omar possessed alcohol.
2. True Finding on Count One
With respect to his public intoxication offense, Omar raises several arguments. First, Omar maintains the juvenile court's true finding must be reversed because there was insufficient evidence Davis complied with section 647, subdivision (g). In the alternative, Omar also contends substantial evidence does not support the juvenile court's finding he was unable to exercise care for his or others' safety.
Section 647, subdivision (f), "makes it a misdemeanor to be drunk in public in such a condition that one is unable to exercise care for his or her own safety or that of others." (People v. Ambellas (1978) 85 Cal.App.3d Supp. 24, 27.) Subdivision (g) of section 647 provides: "If a person has violated subdivision (f), a peace officer, if he or she is reasonably able to do so, shall place the person, or cause him or her to be placed, in civil protective custody. The person shall be taken to a facility, designated pursuant to Section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates. A peace officer may place a person in civil protective custody with that kind and degree of force that would be lawful were he or she effecting an arrest for a misdemeanor without a warrant. A person who has been placed in civil protective custody shall not thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement." (Italics added.)
The first part of Omar's argument need not detain us long. Omar contends the juvenile court's jurisdictional finding must be reversed because the People did not prove Davis was not reasonably able to transport Omar to a detoxication facility. However, section 647, subdivision (g), explicitly provides the subdivision does not apply to the following: "(1) A person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug. [¶] (2) A person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor in addition to subdivision (f). [¶] (3) A person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control." (Italics added.)
The juvenile court, in denying Omar's motion to dismiss, relied on alternative grounds—one of which was the exception found in section 647, subdivision (g)(2). But Omar's opening brief is limited to a discussion of the "reasonably able" prong of the statute. Specifically, Omar argues the juvenile court could not rely on Davis's past experience that Napa State Hospital did not accept minors and improperly considered evidence outside the record. Other than raising the sufficiency of the evidence argument we rejected ante, Omar's opening brief does not challenge the juvenile court's alternative basis for its ruling—that Omar fell within one of the classes of offenders that subdivision (g) exempts. Thus, even if Omar is correct the juvenile court improperly relied on information supplied by the prosecutor after resting her case to conclude Davis was not "reasonably able" to deliver him to a detoxification facility, Omar has failed to meet his burden to show error. (See People v. Davis (1996) 50 Cal.App.4th 168, 172 ["very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record"].)
By failing to challenge all of the grounds raised by the People in their opposition and relied on by the juvenile court in denying Omar's motion to dismiss, Omar effectively forfeited his right to challenge the court's ruling on appeal. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; People v. Stanley (1995) 10 Cal.4th 764, 793.) Our adverse conclusion with respect to Omar's first argument (that count two is supported by substantial evidence) is conclusive with respect to section 647, subdivision (g). (§ 647, subd. (g)(2).)
We also need not address the People's argument Omar forfeited the section 647, subdivision (g) defense by failing to raise the issue before the close of the People's case in chief or that the defense was not cognizable on a Welfare and Institutions Code section 701.1 motion.
3. Finding Omar Was Unable to Exercise Care for Safety
The second part of Omar's challenge to his conviction for public intoxication presents a closer question. The offense of public intoxication is shown when a person "is (1) intoxicated (2) in a public place and either (3) is unable to exercise care for his own safety or the safety of others or (4) interferes with or obstructs or prevents the free use of any street, sidewalk or public way." (People v. Lively (1992) 10 Cal.App.4th 1364, 1368-1369; § 647, subd. (f).) In this case, the fourth element is inapplicable. Omar concedes the evidence supports the finding he was intoxicated in a public place but argues substantial evidence does not support the juvenile court's finding he was unable to exercise care for his safety or that of others. The People disagree, pointing out evidence Omar was suffering significant motor impairment, had a blood alcohol content twice the level at which the law deems one too impaired to drive, and was also a juvenile whose impairment was aggravated by his parent's unavailability.
Omar is correct that intoxication itself is insufficient. "The public intoxication statute, . . . section 647, subdivision (f), is carefully crafted to impose criminal culpability only if the publicly intoxicated person is unable to exercise care for his or her own safety or the safety of others, or is obstructing a public way." (People v. Kellogg (2004) 119 Cal.App.4th 593, 596, italics added.) Thus, the offense "does not punish a person for being intoxicated." (In re Spinks (1967) 253 Cal.App.2d 748, 751.) Rather, the offense punishes a person who "appears in a public place while intoxicated to the extent he is unable to exercise care for his own safety or the safety of others." (Id. at p. 752, italics added.) "[T]he totality of circumstances must be considered in determining whether the intoxicated person can exercise care for his or her own safety or the safety of others. An inebriated person behind the wheel of a car or power boat or plane or train poses a greater danger to himself or herself and others than the same person lying on a park bench." (People v. Lively, supra, 10 Cal.App.4th at pp. 1372-1373.) However, in order for a court to find a defendant was unable to care for his own safety or the safety of others, there must be explicit facts in the record. (Id. at p. 1369.)
Omar contends People v. Rich (1977) 72 Cal.App.3d 115 (Rich) is on point. In Rich, a police officer observed the defendant standing inside a small market. The defendant swayed, with his "head hung low" and his eyelids "at half-mast." He spoke and moved very slowly and deliberately. His pupils were constricted. (Id. at pp. 117-118.) Based on the officer's observations, the defendant was arrested for public intoxication and the officer, after a patsearch, found heroin in the defendant's pocket. The trial court granted the defendant's motion to suppress evidence and the People appealed. (Id. at p. 118.)
The reviewing court held the police lacked probable cause to arrest the defendant for violating section 647, subdivision (f). (Rich, supra, 72 Cal. App. 3d at p. 122.) The court reasoned: "There was no evidence that defendant was guilty of [public intoxication]. [The officer] described no conduct of defendant nor gave any opinion to the effect that defendant was 'in such a condition that he [was] unable to exercise care for his own safety or the safety of others' [citation] . . . . The described symptoms indicated only that defendant was under the influence of an opiate, and not that he was incapacitated as a result." (Ibid., italics added.)
Here, unlike in Rich, there is no evidentiary void. Davis testified quite clearly it was his professional opinion, based on Davis's personal observations of Omar and his professional experience with approximately one thousand intoxicated persons, that Omar "was a danger to himself or others."
In finding the allegations of the petition true, the juvenile court explained: "[T]he minor was more than twice the limit for alcohol for driving. He wasn't driving. Nonetheless I think the establishment of a limit for driving is based on signs that a person doesn't have the ability to respond well. And certainly a driver . . . is established by law to be a danger to others. [¶] When a minor who is 17 and doesn't have [a tolerance for alcohol] . . . has over twice the maximum for driving is swaying on his feet, his speech is so slurred he can't speak very well and is hard to understand, and needs to be told over and over again to give the answers, appears to me to be a person who clearly is a danger to himself because you don't have to be standing on the edge of a cliff to be a danger to one's self if you're that intoxicated. . . . [¶] So I think to my mind the evidence is clear [Omar] was . . . unable to care for himself at that high level of alcohol." All of the factors mentioned by the juvenile court are supported by the evidence. Also, no adult was present to care for Omar.
Davis's testimony was substantial evidence of Omar's inability to care for his own safety or the safety of others. (See In re William G. (1980) 107 Cal.App.3d 210, 214 [substantial evidence supports juvenile's public intoxication adjudication where police officer testified the juvenile exhibited slurred speech, bloodshot eyes, a strong odor of alcohol, and was " 'very unsteady on his feet' "]; People v. Blatt (1972) 23 Cal.App.3d 148, 152 [in case where 19 year old was slurring, swaying, using abusive language, and her parent was unwilling to care for her "[t]here was ample evidence to sustain [officer's] conclusion that defendant was intoxicated" and "unable to care for herself"].) Considering the totality of the circumstances (People v. Lively, supra, 10 Cal.App.4th at p. 1372), sufficient evidence supports the court's finding Omar was unable to care for his own safety or the safety of others. B. Electronic Search Condition
Omar contends the electronic search condition is unreasonable under Lent, supra, 15 Cal.3d 481, and constitutionally overbroad. When a ward, like Omar, is "placed under the supervision of the probation officer or committed to the care, custody, and control of the probation officer . . . [t]he 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 id., § 202, subd. (b).) "A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile." (In re Josh W. (1997) 55 Cal.App.4th 1, 5; accord, In re Luis F. (2009) 177 Cal.App.4th 176, 189.) In fashioning probation conditions, the juvenile court must consider not only the circumstance of the crime, but also the minor's entire social history. (In re Victor L. (2010) 182 Cal.App.4th 902, 921; In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
A juvenile court's discretion is not boundless. " ' "A probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution . . . ." ' " (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242.) However, " 'the liberty interest of a minor is not coextensive with that of an adult.' " (Ibid.) "[J]uvenile conditions may be broader than those pertaining to adult offenders . . . 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.) "Further, when the state asserts jurisdiction over a minor, it stands in the shoes of the parents. 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' " ' and to ' " 'direct the upbringing and education of children.' " ' " (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033-1034.) " 'In light of this difference, a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
We review reasonableness challenges for abuse of discretion and constitutional challenges de novo. (In re Juan R. (2018) 22 Cal.App.5th 1083, 1088, review granted July 25, 2018, S249256.)
1. Reasonableness Challenge
" '[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.]' (Lent, supra, 15 Cal.3d at p. 486.) [The Lent] test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) "Lent applies to juvenile court probation orders." (In re Josh W., supra, 55 Cal.App.4th at p. 6.)
The People concede the electronics search condition satisfies the first two Lent prongs. (Lent, supra, 15 Cal.3d at p. 486.) Thus, we focus on the final Lent prong—future criminality. The People contend the condition is reasonably related to preventing future criminality, specifically because of Omar's admitted drug and alcohol use and association with gang members. Omar maintains the condition is not reasonably related to future criminality because there is no particularized risk he may use electronic devices in connection with future criminal conduct.
The law in this area is unsettled. Pending resolution from our Supreme Court, the divisions of this appellate district have reached different conclusions regarding electronic search conditions. (See, e.g., In re Juan R., supra, 22 Cal.App.5th 1083, rev. granted [this division upholding condition as reasonable and not overbroad]; In re J.E. (2016) 1 Cal.App.5th 795 [Division Four upholding condition as reasonable and not overbroad], review granted Oct. 12, 2016, S236628; In re P.O. (2016) 246 Cal.App.4th 288 (P.O.) [Division One holding condition reasonable but overbroad]; In re J.B. (2015) 242 Cal.App.4th 749 (J.B.) [Division Three striking condition as unreasonable]; In re Erica R. (2015) 240 Cal.App.4th 907 [Division Two striking condition as unreasonable]; In re Malik J. (2015) 240 Cal.App.4th 896 [Division Three holding condition reasonable but overbroad].)
The Supreme Court is currently considering the validity of similar electronic search conditions in a number of cases. (See, e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted February 17, 2016, S231428.)
For example, in J.B., our colleagues in Division Three struck such a condition as unreasonable. (J.B., supra, 242 Cal.App.4th at p. 752.) The minor admitted an allegation of petty theft, was adjudged a ward of the court, and placed on probation. The juvenile court imposed an electronics search condition, relying on the minor's statement he had been using marijuana for at least two and a half years and the court's experience that minors using drugs tend to brag about their usage on the Internet. (Id. at pp. 752-753.) J.B. held the minor's prior use of marijuana was an inadequate justification for warrantless electronic searches under Lent because there was "no showing of any connection between the minor's use of electronic devices and his past or potential future criminal activity." (J.B., at pp. 756, 758.) Olguin was distinguished on the ground it involved an adult probationer and none of the privacy concerns articulated in Riley v. California (2014) 573 U.S. ___ (Riley). (J.B., at p. 757.) The J.B. court held that reasonableness is not judged solely by whether the condition itself would be reasonably effective in preventing future criminality, but whether it could be seen as a reasonable means for deterring future crime by this particular minor based on his history. (Id. at p. 757; accord, In re Erica R., supra, 240 Cal.App.4th at p. 913.)
In Olguin, supra, 45 Cal.4th 375, the defendant, who had been convicted of driving under the influence of alcohol, challenged a probation condition requiring him "to notify his probation officer of the presence of any pets at [his] place of residence." (Id. at p. 378.) Acknowledging the challenged condition "ha[d] no relationship" to the defendant's crime and did not involve criminal conduct, our Supreme Court nonetheless upheld the condition under Lent because it protected the safety of the probation officer charged with "supervising [the] probationer's compliance with specific conditions of probation." (Olguin, at pp. 380-381.) The condition furthered the probation officer's "ability to make unscheduled visits and to conduct unannounced searches of the probationer's residence" to "deter[] future criminality." (Id. at p. 381.) Olguin held "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality' "—even if the condition has no relationship to the crime of which a defendant was convicted. (Id. at pp. 380-381.)
In contrast, P.O. found an electronics search condition reasonably related to future criminality despite the fact the minor's offense did not involve electronics in any respect. (P.O., supra, 246 Cal.App.4th at pp. 294, 296.) P.O. relied on Olguin for the proposition that "a probation condition that enables probation officers 'to supervise [their] charges effectively is . . . "reasonably related to future criminality." ' " (P.O., at p. 295.) The court explained: "It may well be that a probation condition requiring a minor to forward all electronic communications to the probation officer or to wear a body camera would be unreasonable under Lent, supra, 15 Cal.3d 481, but it would be so because of the burden it imposed on the minor—not because it invaded the minor's privacy (a constitutional concern better addressed by the overbreadth doctrine), and certainly not because it lacked a connection to preventing future criminality." (P.O., at p. 296.) Otherwise "juvenile courts would be unable to impose standard search conditions permitting warrantless searches of a minor's person, residence, and vehicle . . . without a showing that those locations were all connected to past criminal conduct." (Ibid.) The P.O. court concluded the electronics search condition "reasonably relates to enabling the effective supervision of [the minor]'s compliance with other probation conditions." (Id. at p. 295.)
We agree with the People that the third prong of the Lent test is not satisfied, and thus the electronic search condition is valid. The condition "reasonably relates to enabling the effective supervision of [Omar's] compliance with other probation conditions." (P.O., supra, 246 Cal.App.4th at p. 295.) Because other conditions of Omar's probation prohibit drug and alcohol use, and forbid association with gang members, the electronic search condition will serve to enforce such prohibitions.
As we explained in In re Juan R., "We respectfully disagree with our colleagues who have concluded Lent requires a condition to have a particularized tie between the minor's past conduct and the use of electronics. In our view, such a conclusion is inconsistent with Olguin." (In re Juan R., supra, 22 Cal.App.5th at p. 1091, rev. granted.) Until the Supreme Court provides further guidance, we conclude the electronic search condition is reasonably related to Omar's future criminality under Lent. (Ibid.)
2. Constitutional Overbreadth
Omar also contends the electronic search condition is unconstitutionally overbroad because it is not narrowly tailored to limit its impact on his constitutional right to privacy. He argues the condition is not narrowly tailored to his individual circumstances or public safety interests—asserting the condition allows "unfettered access to all of [Omar's] electronics and social [accounts]." (Italics added.) We agree and remand for modification.
Omar did not raise an overbreadth objection at disposition. Nonetheless, we address his constitutional challenge, raised for the first time on appeal, because it presents a pure question of law. (In re Sheena K., supra, 40 Cal.4th at pp. 888-889; People v. Pirali (2013) 217 Cal.App.4th 1341, 1347.)
"A probation condition . . . may be challenged as unconstitutionally vague or overbroad. [Citation.] . . . A restriction is unconstitutionally overbroad . . . 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.' [Citations.] 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 defendant'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.) " 'If available alternative means exist which are less violative of the constitutional right and are narrowly drawn so as to correlate more closely with the purposes contemplated, those alternatives should be used . . . .' " (In re Luis F., supra, 177 Cal.App.4th at p. 189.)
In arguing the electronics search condition is overbroad, Omar relies on the United States Supreme Court's discussion of related privacy concerns in Riley, supra, 134 S.Ct. 2473. Riley held that law enforcement officers generally must secure a warrant before searching the digital content of a cell phone incident to an arrest. (Id. at p. 2485.) The court distinguished a search of a modern cell phone's contents from the search of other property found during a typical arrest search of the person. A cell phone "not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." (Id. at p. 2491.)
We agree that "[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' " (Riley, supra, 134 S.Ct. at pp. 2494-2495.) Nevertheless, Riley is not particularly helpful here. Unlike the arrestee in Riley, who had not yet been convicted of any crime, Omar was found to have committed two misdemeanor offenses and has been declared a ward of the juvenile court. Accordingly, his privacy interests are far more limited than those of the Riley arrestee. (In re Jaime P. (2006) 40 Cal.4th 128, 134 [privacy rights of a probationer are "diminished"]; In re Antonio R., supra, 78 Cal.App.4th at p. 941 [juvenile's constitutional rights more circumscribed than adult's].)
The People appear to concede Omar has a privacy interest, even if it is limited, in the information stored on his cell phone or other electronic devices. We, too, agree the electronic search condition implicates Omar's constitutional privacy rights. (In re Juan R., supra, 22 Cal.App.5th at p. 1093, rev. granted; see People v. Appleton (2016) 245 Cal.App.4th 717, 719 (Appleton).) In Appleton, the defendant pleaded no contest to false imprisonment and admitted meeting his minor victim through a social media application. (Id. at pp. 719-720, 724.) Thus, the trial court's broad electronic search condition, allowing for search of the defendant's computers and electronic devices for material prohibited by law, was reasonable under Lent's first prong because " 'either social media or some kind of computer software' was involved in the offense." (Id. at pp. 719, 721, 724.)
Appleton went on to address overbreadth, first recognizing that "[i]t is well established that individuals retain a constitutionally protected expectation of privacy in the contents of their own computers." (Appleton, supra, 245 Cal.App.4th at p. 724.) The trial court had made only an ineffective attempt to narrow "the potentially invasive nature of the search condition" by limiting its scope to a search for " 'material prohibited by law.' " (Id. at p. 725.) However, "[n]othing in the record evidences any technology that would allow a forensic technician to determine whether a computer file or document contains unlawful material without first examining its contents." (Ibid.) The court further explained: "Although [the majority of the cases from the First District] concerned juveniles, we generally agree with their reasoning relating to computer search conditions. Like the conditions at issue in those cases, the probation condition here would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality. Furthermore, the state's interest here—monitoring whether defendant uses social media to contact minors for unlawful purposes—could be served through narrower means." (Id. at p. 727.) The condition was stricken and the matter remanded "because the trial court may be able to impose a valid condition more narrowly tailored to the state's interests." (Ibid.)
P.O. reached a similar conclusion on overbreadth with respect to a similarly broad electronic search condition. (P.O., supra, 246 Cal.App.4th at pp. 292, 297-298.) Relying on Appleton, the court ordered the juvenile court to modify the condition "to limit authorization of warrantless searches of P.O.'s cell phone data and electronic accounts to media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs." (P.O., at p. 298, italics added.) The court 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." (Ibid.)
Although the record is silent regarding Omar's use of electronic devices to store banking or medical records (People v. Trujillo (2017) 15 Cal.App.5th 574, 589, review granted, Nov. 29, 2017, S244650), the condition currently "permits review of all sorts of private information that is highly unlikely to shed any light on whether [the minor] is complying with the other conditions of his probation." (P.O., supra, 246 Cal.App.4th at p. 298.) The juvenile court made clear it was imposing the electronic search condition because of Omar's involvement with gangs and drugs. However, the juvenile court did not tailor the condition to those concerns by limiting the types of data (whether on an electronic device or accessible through an electronic device) that may be searched. We agree with the People and the P.O. court that the condition should be narrowed by limiting the types of data that Omar's probation officer may search—for example by limiting the scope of the search to electronic communication content and photographs likely to reveal evidence Omar is continuing his criminal activities or associating with gang members. Accordingly, we strike the electronics search condition and remand to the juvenile court to impose a more narrowly focused condition that does not unduly infringe on the minor's privacy rights.
III. DISPOSITION
The electronic search condition is stricken and remanded to the juvenile court for modification consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.