Opinion
D069984 D070538
12-04-2019
In re XAVIER C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. XAVIER C., Defendant and Appellant.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Barry Carlton, Sabrina Y. Lane-Erwin, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J236335) CONSOLIDATED APPEALS from a judgment and order of the Superior Court of San Diego County, Aaron H. Katz, Judge. Reversed in part and remanded with directions. Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Barry Carlton, Sabrina Y. Lane-Erwin, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Xavier C. appeals the juvenile court's judgment declaring him a ward of the court under Welfare and Institutions Code section 602 and placing him on probation, and a subsequent order modifying the terms and conditions of probation. On appeal, Xavier asserts the probation condition restricting his use of computers to school-related activities is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and overbroad. Xavier also asserts, and the Attorney General concedes, that the juvenile court erred by failing to award him predisposition custody credits and not specifying the maximum period of confinement.
Undesignated statutory references are to the Welfare and Institutions Code.
On March 22, 2017, we issued an opinion rejecting Xavier's contention that the probation condition was unreasonable and overbroad but remanded for the juvenile court to calculate predisposition custody credits and the maximum period of confinement. Xavier filed a petition for review, which the California Supreme Court granted on July 12, 2017, and held pending consideration and disposition of related issues in In re Ricardo P. (S230923). On October 16, 2019, the Supreme Court transferred the above-entitled matter to this court with directions to vacate our decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113.
On October 23, 2019, this court invited the parties to submit letter briefs addressing In re Ricardo P., and specifically seeking information as to whether appellant remains on probation. On November 7, 2019, Xavier's counsel notified this court that his client's probation had been revoked and that he has been committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). Xavier's counsel further stated that because Xavier is no longer subject to the condition at issue in this court's vacated decision, the issue remanded by the Supreme Court for this court's consideration is moot.
We agree the electronic search condition issue arising out of In re Ricardo P. is moot. In all other respects, we reaffirm our March 22, 2017 opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2013, 16-year-old A.K. reported to her school's mental health counselor that she had been sexually assaulted by 17-year-old Xavier the night before. The incident was reported to San Diego Police department, who interviewed A.K. that day. A.K. told the interviewing officer that after she went to bed, Xavier (who was staying at the house) came into the bedroom, laid in the bed facing her, pulled down the covers, then tried to pull her shorts and underwear down. A.K. resisted, but Xavier eventually pulled her clothing down and tried to insert his penis into her vagina. Before he could do so, A.K. pushed Xavier off of her and out of the room. A.K. reported that as she shut the door, Xavier said "Let's do it again." After initially refusing, A.K. agreed to submit to a forensic rape test. Xavier was interviewed about the incident in March 2014 and denied A.K.'s allegations. In May, the police received the results of the rape test, which found Xavier's DNA on swabs of A.K.'s genital area and breasts.
On November 19, 2014, the district attorney filed a petition under Welfare and Institutions Code section 602 on behalf of Xavier alleging violations of Penal Code sections 288a, subdivision (c)(2) (oral copulation by force or fear; count 1); 220, subdivision (a) (assault with intent to commit rape; count 2); and 243.4, subdivision (a) (sexual battery; count 3). The matter was continued several times. On October 7, 2015, the parties reported to the juvenile court that they reached an agreement that Xavier would admit the allegation of assault with intent to commit rape and the two other allegations would be dismissed. The court accepted Xavier's plea, sustained the petition and dismissed counts 1 and 3.
On October 14, 2015, San Diego police responded to a report of a robbery downtown. The victim told the responding officers that four men approached him as he walked down the street. One of the men asked the victim for cigarettes and marijuana, and then told the victim to empty his pockets. When the victim ignored the request, one of the men pulled out a handgun. The victim tried to grab the man's arm, but one of the other perpetrators grabbed the victim by the neck and pulled his wallet out of his pants pocket. One of the men took $300 and the victim's identification card from the wallet, while the others took three packs of Camel cigarettes from the victim's backpack. The men yelled "blood" then fled the scene. The victim gave police a description of the four men.
Shortly thereafter, police found Xavier and three other men, who matched the description given by the victim, at a nearby convenience store. The men were detained and identified by the victim. Police found a black imitation gun in the waistband of one of the men, as well as a pack of Camel cigarettes in his pocket and $79 in cash in his sock. Another had $107 in his sock, and Xavier had $85 in his sock. Police found another pack of Camel cigarettes stuffed between the seats of the police car where Xavier had been detained. When interviewed by the police, Xavier admitted two of his companions had robbed the victim, and that they had used the term "blood" during the robbery. Xavier told police he was scared to leave and that his companions gave him money and cigarettes because they thought he would "snitch." Xavier was taken into custody and booked into juvenile hall.
The next day, the district attorney filed a petition under Welfare and Institutions Code section 602 on behalf of Xavier alleging violations of Penal Code section 211 (robbery; count 1) and Health and Safety Code section 11357, subdivision (a) (possession of concentrated cannabis; count 2). On November 12, 2015, Xavier admitted the allegation in count 1. The juvenile court sustained the petition, dismissed count 2, and set the disposition hearing for both petitions. For the disposition hearing, the probation department recommended that Xavier be committed to the Youthful Offender Unit (YOU) for a period not to exceed 480 days. Xavier contested the recommendation. His counsel argued that commitment to the YOU program was not in Xavier's best interests, and he should instead be placed in a residential treatment program.
At the disposition hearing, the juvenile court adjudged Xavier a ward under section 602 and committed him to the YOU program. In his social study for the disposition hearing, the probation officer recommended several probation conditions concerning Xavier's use of electronic devices. The recommendations included (1) limiting Xavier's use of electronic devices to "school-related assignments, or legitimate work or personal purposes" as determined by his probation officer and requiring he be supervised while using electronic devices (identified in the probation report as condition 48 and GC302); (2) limiting computer use to school-related assignments (condition 49 and GC341); (3) a waiver of his Fourth Amendment rights with respect to electronic devices (condition 51 and GC353); and (4) precluding Xavier from "knowingly utiliz[ing] the password protect function on any file or electronic device . . . ." (condition 50 and GC352).
During the hearing, Xavier's counsel objected to these conditions on the ground that no electronic device was used in the offenses. In response, the court sustained the objections to conditions 48 and 50, but rejected the objection to condition 49. With respect to condition 49, the court stated that it was imposing the condition because it did not "believe that [Xavier was] going to have access to a computer in the YOU program unless it's related to school activities." The final order issued after the hearing imposed two relevant conditions. Condition 49, which stated: "The minor is not to use a computer for any purpose other than school related assignments. The minor is to be supervised when using a computer in the common area of his/her residence or in a school setting." The other contained the language of condition 51, with the addition of the requirement that Xavier provide the probation department with any passwords to his computer or electronic devices. Xavier filed a notice of appeal from the judgment on March 15, 2016.
The condition states in full: "The minor's 4th Amendment waiver extends to any electronic device, such as a computer, electronic notepad, or cell phone, which the minor uses or to which the minor has access. The minor's 4th Amendment waiver also extends to any remote storage or any files or data which the minor knowingly uses or to which the minor has access. The minor agrees to submit to a search of any electronic device, such as a computer, electronic notepad, or cell phone, at any time without a warrant by any law enforcement officer, including a probation officer. MINOR IS TO PROVIDE PROBATION WITH ANY PASSWORDS TO HIS COMPUTER OR ELECTRONIC DEVICES."
The following month, Xavier brought a petition for modification under section 778 requesting the juvenile court strike the two probation conditions. The prosecution filed a brief opposing the petition, but did not address condition 49. At the beginning of the hearing, the juvenile court indicated its tentative decision was to grant Xavier's petition. The court stated it reviewed the relevant case law and did not "think, at least at this juncture, there's enough evidence in the probation report, the social study to get to the point of being able to make a compelling, rational connection between . . . monitoring his electronic devices and monitoring potential gang-related activity." After argument from the deputy district attorney and Xavier's defense counsel, the court stated "I'm going to grant the motion. . . . I agree with [the prosecution] that I believe Xavier does need intensive supervision. There's no question about it. He does. ¶ Whether that includes—and we have enough to support monitoring or to support electronic or a 4th waiver as to his electronic devices. I don't think we can get there with what we have in this particular case."
The court then turned to the conditions as they were numbered in the probation report prepared for the disposition hearing. The court stated it was "going to delete 51. I am going to delete 50. I'm going to delete 48." Before concluding, the court asked if there was anything further. Xavier's attorney noted she also objected to condition 49. The court's clerk then stated some of the conditions identified by the court were not included in the final order issued after the disposition hearing. The court clarified it was looking at "GC 341," condition 49, "which relates to restricted to use—and I agree with that." The prosecutor then stated condition 48 was similar, to which the court responded it was aware and that condition 49 covers condition 48. The final order issued after the hearing vacated only the condition waiving Xavier's Fourth Amendment rights to electronic devices and requiring Xavier to provide passwords to his probation officer, and not condition 49. Xavier filed a second notice of appeal from the order.
This court denied Xavier's earlier unopposed motion to consolidate the two appeals. Because the challenged condition is the same in both appeals, on our own motion we have ordered the cases consolidated for purposes of this opinion.
DISCUSSION
I
As noted, Xavier's appeal challenges the probation condition restricting his use of a computer to school-related activities. He argues the condition is invalid because the condition is not related to the crimes he committed, computer use is not itself a criminal act, and computer use is not reasonably related to his future criminality. Xavier also contends the condition is unconstitutionally overbroad. As noted, after the case was remanded by the Supreme Court, Xavier's counsel notified this court that Xavier has been committed to the DJF and is no longer subject to the challenged probation condition. Counsel concedes the remanded issue is moot. We agree and thus do not address the merits in light of In re Ricardo P. The challenge to the condition is moot.
We note that the appellant's counsel's letter in response to our request for supplemental briefing after the Supreme Court remanded the case indicates that the minute order revoking Xavier's probation and committing him to the DJF "contains an order requiring his parents or guardians to ensure he complies with his probation conditions." Counsel asserts the condition is not authorized and asks this court to "strike that order and to inform the juvenile court that the previously imposed probation conditions no longer apply to appellant." We decline to modify the court's order and instruct Xavier to direct this request to the juvenile court. --------
II
In juvenile delinquency proceedings, the "minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. (Pen. Code, § 2900.5, subd. (a); [citation.].) It is the juvenile court's duty to calculate the number of days earned, and the court may not delegate that duty. (Pen. Code, § 2900.5, subd. (d); [citation.].)" (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) Under Welfare and Institutions Code section 726, the court is also required to specify the maximum period of confinement. That provision states that "[i]f the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (§ 726, subd. (d)(1).)
Here, the juvenile court did not calculate and award predisposition custody credits or specify the maximum period of physical confinement at the disposition hearing. Remand, as the Attorney General concedes, is appropriate to remedy these errors.
DISPOSITION
The judgment is reversed and remanded with directions to calculate and award any predisposition custody credits and to specify the maximum period of physical confinement. The challenge to the electronic search probation condition is moot.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.