People v. Alejandro R. (In re Alejandro R.)

Appellant Alejandro R., a minor, admitted to being an accessory to illegal drug sales and was found to be a ward of the court. In addition to typical conditions of probation, the juvenile court imposed a condition requiring appellant to submit to the warrantless search of his electronic devices and his use of social media. Appellant challenges the condition as substantively invalid and unconstitutionally overbroad. We conclude, following our recent decision in In re Ricardo P. (2015) 241 Cal.App.4th 676 , 193 Cal.Rptr.3d 883 ( Ricardo P. ), that the condition, while valid under People v. Lent (1975) 15 Cal.3d 481 , 124 Cal.Rptr. 905 , 541 P.2d 545 ( Lent ), superseded on other grounds as stated in People v. Wheeler (1992) 4 Cal.4th 284 , 290-292, 14 Cal.Rptr.2d 418 , 841 P.2d 938 , is overbroad as imposed by the juvenile court. We affirm the juvenile's court order with appropriate modification of the electronics search condition.

A

ppellant, the subject of a juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), admitted a misdemeanor charge of being an accessory after the fact to the transportation and distribution of marijuana, a violation of Health and Safety Code section 11360, subdivision (a). The police report from appellant's arrest stated he approached undercover officers outside a concert venue and "said something similar to, 'yo $10 bucks for a blunt.' " When an officer expressed interest, appellant directed him to another person seated nearby, from whom the officer purchased two marijuana cigarettes. At the time of his detention, appellant was in possession of 0.4 grams of presumed cocaine and two pills of presumed methamphetamine.

At the dispositional hearing, the juvenile court found appellant to be a ward of the court, but allowed him to remain at home. In addition to typical conditions of juvenile probation, the court imposed the following two conditions, which appellant challenges in this appeal: appellant must (1) "submit to a search of your ... electronics day or night and passwords day or night at the request of a Probation Officer or peace officer" and (2) "attend school on

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. [Citations.] " 'Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile....' " ' " ( Tyrell J., supra, 8 Cal.4th at pp. 81-82, 32 Cal.Rptr.2d 33 , 876 P.2d 519 , 8 Cal.4th 727A at pp. 81-82.)

"While broader than that of an adult criminal court, the juvenile court's discretion in formulating probation conditions is not unlimited. ( In re Walter P., supra, 170 Cal.App.4th at p. 100, 87 Cal.Rptr.3d 668 .) Despite the differences between the two types of probation, it is consistently held that juvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent, supra, 15 Cal.3d 481 , 124 Cal.Rptr. 905 , 541 P.2d 545 : '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

electronics played a role in [the appellant's] crimes." ( Id. at p. 684, 193 Cal.Rptr.3d 883 .) Accordingly, the court concluded the electronics search condition satisfied the first element of Lent, in that it had no demonstrated relationship to the offenses at issue. ( Ricardo P., at p. 685, 193 Cal.Rptr.3d 883 .) Here, as in Ricardo P., there was no evidence appellant used electronic devices or social media in the commission of the crime. Similarly, Ricardo P. found the second element of Lent satisfied, since the use of electronic devices is not illegal. ( Ricardo P., at p. 685, 193 Cal.Rptr.3d 883 .)

Ricardo P. found the electronics search condition valid under Lent, however, on the ground it was reasonably related to future criminality. In doing so, the court followed People v. Olguin (2008) 45 Cal.4th 375 , 87 Cal.Rptr.3d 199 , 198 P.3d 1 ( Olguin ), in which the Supreme Court considered the validity of a probation condition requiring an adult probationer to inform the probation officer of the presence of pets in his residence. The court noted that it was important for a probation officer conducting a warrantless search of the probationer's residence, which was permitted by a separate probation condition, to know whether he or she would encounter pets at the residence. It concluded a probation condition "that enables a probation officer to supervise his or her charges effectively is ... 'reasonably related to future criminality.' " ( Id. at pp. 380-381, 87 Cal.Rptr.3d 199 , 198 P.3d 1 .) Because an electronics search condition is "reasonably related to enabling the effective supervision of [the appellant's] compliance with his other probation conditions," the Ricardo P. court held, it was valid under the reasoning of Olguin . ( Ricardo P., supra, 241 Cal.App.4th at pp. 686-687, 193 Cal.Rptr.3d 883 .) The court expressly rejected the reasoning of In re Erica R. (2015) 240 Cal.App.4th 907 , 192 Cal.Rptr.3d 919 , which, without considering Olguin, concluded a similar electronics search condition imposed in similar circumstances did not reasonably relate to future criminality. ( Erica R., at pp. 913-914, 192 Cal.Rptr.3d 919 ; Ricardo P., at p. 687, 193 Cal.Rptr.3d 883 .)

Division Three of this court has recently issued a decision rejecting the conclusion in Ricardo P. that an electronics search condition satisfies the third element of Lent because it permits monitoring of a juvenile's compliance with other probation conditions. ( In re J.B. (2015) 242 Cal.App.4th 749 , 195 Cal.Rptr.3d 589 ( J.B. ).) While acknowledging the rationale of Olguin, J.B. noted that, in discussing the third element of Lent, the Olguin court stated that " 'the relevant test is reasonableness. ' " (

association with persons disapproved by the probation officer or other adults ( In re Byron B. (2004) 119 Cal.App.4th 1013 , 1018, 14 Cal.Rptr.3d 805 ); a curfew (Welf. & Inst.Code, § 729.2, subd. (c) ; In re Laylah K. (1991) 229 Cal.App.3d 1496 , 1499, 1502, 281 Cal.Rptr. 6 , disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952 , 962, fn. 2, 55 Cal.Rptr.2d 771 , 920 P.2d 716 ); GPS monitoring of the juvenile's location ( In re A.M. (2013) 220 Cal.App.4th 1494 , 1500-1501, 163 Cal.Rptr.3d 793 ); "blood, breath, or urine" testing at the discretion of the probation officer ( In re P.A. (2012) 211 Cal.App.4th 23 , 32, 40, 149 Cal.Rptr.3d 300 ); a ban on tattoos ( In re Victor L. (2010) 182 Cal.App.4th 902 , 927-930, 106 Cal.Rptr.3d 584 ); and forced administration of psychotropic medication ( In re Luis F., supra, 177 Cal.App.4th at p. 192, 99 Cal.Rptr.3d 174 ). Division Two of this court has even approved probation conditions entirely forbidding the juvenile from possession of a cell phone and use of the Internet. ( Victor L., at pp. 920-921, 923-927, 106 Cal.Rptr.3d 584 .) While a wholesale ban on cell phone and Internet use represents less of an infringement of a minor's privacy rights than the electronics search condition, that is only because the ban strips the minor of any opportunity for private communications by these means. An invasion of privacy interests is thereby avoided by an equal or greater infringement on liberty interests.

Courts have been more willing to approve intrusive probation conditions in juvenile cases in part because even law-abiding children have a more limited right to privacy than adults. ( In re Carmen M. (2006) 141 Cal.App.4th 478 , 492-493, 46 Cal.Rptr.3d 117 .) "[A]s a general matter, the right to privacy of an unemancipated minor is more limited than that of an adult. An unemancipated minor has limited privacy rights as against the state." ( American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307 , 394, 66 Cal.Rptr.2d 210 , 940 P.2d 797 .) When a child is declared a ward, these rights are permissibly limited even further because the child has engaged in criminal behavior, and the juvenile court acts in parens patriae, thus "assum[ing] the parents' authority to limit the minor's freedom of action." ( In re Eric J. (1979) 25 Cal.3d 522 , 530, 159 Cal.Rptr. 317 , 601 P.2d 549 ; see Leroy T. v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 434 , 439, 115 Cal.Rptr. 761 , 525 P.2d 665 [juvenile system is "fundamentally different from the adult penal system" because it is "designed to place the state in the status of in loco parentis "].) As diligent parents recognize, monitoring social media communications is an important tool in tracking the activities of a wayward minor. While acknowledging parents have greater leeway than the courts in regulating a minor's conduct ( In re Byron B., supra, 119 Cal.App.4th at p. 1017, 14 Cal.Rptr.3d 805 ), we conclude the adoption of a well-tailored electronics search condition is similarly a permissible, and potentially critical, tool in helping the juvenile court, acting in loco parentis, to determine whether the ward is complying with the terms of his or her probation.

As J.B. rightly notes ( J.B., supra, 242 Cal.App.4th at pp. 757-758, 195 Cal.Rptr.3d 589 .), another distinction between the imposition of adult and juvenile probation conditions is that "[u]nlike a parolee, a minor cannot be made subject to an automatic [probation] condition.... [E]very juvenile probation condition must be made to fit the circumstances and the minor." ( Binh L., supra, 5 Cal.App.4th at p. 203, 6 Cal.Rptr.2d 678 ; see Tyrell J., supra, 8 Cal.4th at p. 82, 32 Cal.Rptr.2d 33 , 876 P.2d 519 , 8 Cal.4th 727A at p. 82

we may consider the clarification provided by these additional comments. ( In re Sheena K., supra, 40 Cal.4th at p. 891, 55 Cal.Rptr.3d 716 , 153 P.3d 282 .)

In interpreting a probation condition, it "should be given 'the meaning that would appear to a reasonable, objective reader.' " ( People v. Olguin, supra, 45 Cal.4th 375 , 382, 87 Cal.Rptr.3d 199 , 198 P.3d 1 .) "Also, the probation condition should be evaluated in its context, and only reasonable specificity is required." ( People v. Forrest (2015) 237 Cal.App.4th 1074 , 1080, 188 Cal.Rptr.3d 736 .)

We find the condition to be neither vague nor overbroad. The juvenile court's condition is plainly a shorthand reference to the statutorily prescribed condition of Welfare and Institutions Code section 729.2, subdivision (a), which ordinarily must be imposed on all minors found to be wards under sections 601 and 602 and permitted to remain with their family: "Require the minor to attend a school program approved by the probation officer without absence." (Welf. & Inst.Code, § 729.2, subd. (a).) The "reasonable, objective meaning" of the court's requirement that appellant attend school "on a regular basis" or "every day" and the statutory requirement "without absence," evaluated in the context of juvenile school attendance, is that appellant must be at school when it is in session unless he has a reason recognized as valid by the school for failing to be present. That is what is expected of all students, and nothing in the court's condition suggests it was intended to impose additional or different requirements from those applicable to other students. The court's explanation confirms this commonsense meaning. Appellant's proposal of an alternative meaning that is "belied by both context and common sense" does not make the condition either

access the information specified. Such media of communication include text messages, voicemail messages, photographs, e-mail accounts, and social media accounts."

As so modified, the judgment is affirmed.

We concur:

Humes, P.J.

Banke, J.

generally to the electronics search condition, the court explained, addressing appellant, "As in this case with drugs, I find it's very important [and] the best way of supervising individuals like yourself [who] have drug cases, that we check your electronics, because that's where you buy and sell and very often boast with photos about your drug usage and drug paraphernalia."

We summarized the law applicable to juvenile probation conditions in In re D.G. (2010) 187 Cal.App.4th 47 , 113 Cal.Rptr.3d 639 ( D.G. ): "Under Welfare and Institutions Code section 730, subdivision (b), the juvenile court, in placing a ward on probation, '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.' " (See In re Sheena K. (2007) 40 Cal.4th 875 , 889, 55 Cal.Rptr.3d 716 , 153 P.3d 282 .) Consistent with this mandate, the juvenile court is recognized as having " 'broad discretion in formulating conditions of probation' " ( In re Tyrell J. (1994) 8 Cal.4th 68 , 81, 32 Cal.Rptr.2d 33 , 876 P.2d 519 ( Tyrell J. ), disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128 , 139, 51 Cal.Rptr.3d 430 , 146 P.3d 965 ), and the juvenile court's imposition of any particular probation condition is reviewed for abuse of discretion. ( In re Walter P. (2009) 170 Cal.App.4th 95 , 100, 87 Cal.Rptr.3d 668 .)

"While adult criminal courts are also said to have 'broad discretion' in formulating conditions of probation ( People v. Carbajal (1995) 10 Cal.4th 1114 , 1120, 43 Cal.Rptr.2d 681 , 899 P.2d 67 ), the legal standards governing the two types of conditions are not identical. Because wards are thought to be more in need of guidance and supervision than adults and have more circumscribed constitutional rights, and because the juvenile court stands in the shoes of a parent when it asserts jurisdiction over a minor, juvenile conditions 'may be broader than those pertaining to adult offenders.' ( In re Antonio R. (2000) 78 Cal.App.4th 937 , 941, 93 Cal.Rptr.2d 212 .) In Tyrell J., the Supreme Court explained another aspect of the difference: 'Although the goal of both types of probation is the rehabilitation of the offender, "[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation." [Citation.] ... [¶] In light of this

not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality...." [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.' ( Id. at p. 486, 124 Cal.Rptr. 905 , 541 P.2d 545 , fn.omitted; see, e.g., In re Luis F. (2009) 177 Cal.App.4th 176 , 188, 99 Cal.Rptr.3d 174 ; [citations].)" ( D.G., supra, 187 Cal.App.4th at pp. 52-53, 113 Cal.Rptr.3d 639 .)

In addition to satisfying the Lent test, juvenile probation conditions that infringe constitutionally protected rights must be clearly stated and no more restrictive than necessary to achieve their purpose. "Under the void for vagueness constitutional limitation, '[a]n order must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.' [Citations.] In addition, the overbreadth doctrine requires that conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. [Citations.] '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, 99 Cal.Rptr.3d 174 .)

A. Electronics Search Condition

Appellant contends the electronics search condition violates Penal Code section 632, is invalid under Lent, and is unconstitutionally overbroad. In Ricardo P., we addressed the same arguments regarding an identical electronics search condition and affirmed the imposition of a narrowed version of the

lacked standing to raise the claim, since it was based on the argument the condition "might invade the privacy of the people with whom he communicates, not his own." ( Ricardo P., supra, 241 Cal.App.4th at p. 683, 193 Cal.Rptr.3d 883 .) On both grounds, that reasoning applies here, since appellant did not raise section 632 below and now asserts only the privacy interests of third parties.

2. Validity Under Lent

Appellant's claim the electronics search condition is invalid under Lent was also addressed in Ricardo P. As noted, a probation condition is invalid under Lent if it has no relationship to the crime committed, relates to conduct that is not criminal, and is not reasonably related to future criminality; all three elements must be present before a condition will be found invalid. ( Ricardo P., supra, 241 Cal.App.4th at p. 684, 193 Cal.Rptr.3d 883 .) As to the first Lent element, Ricardo P. found that "nothing in the record permit[ed] an inference that

J.B., at p. 757, 195 Cal.Rptr.3d 589 , quoting Olguin, supra, 45 Cal.4th at p. 383, 87 Cal.Rptr.3d 199 , 198 P.3d 1 .) Applying this test, J.B. found the electronics search condition to be unreasonable because (1) there was no showing of a connection between the probationer's use of electronic devices and his past or potential future criminal activity and (2) the condition burdened the minor's privacy interests. ( Id. at pp. 757-758, 195 Cal.Rptr.3d 589 .)

We are unpersuaded by the analysis of J.B. for two reasons. First, in adopting a generic test of reasonableness, J.B. disregarded the actual holding

Other approved conditions include a ban on the juvenile's

The electronics search condition imposed by the juvenile court here suffers from the same deficiency. To satisfy the court's concern that appellant might use a cell phone and social media to communicate about drug use and sales, the scope of the electronics search condition can and should be limited to programs used for interpersonal communication. It need not include other accounts and information that may be contained in or accessed through a cell phone or other electronic device. We therefore modify the condition to limit the probation officer's search authority to media of communication reasonably likely to reveal whether appellant is boasting about drug use or otherwise involved with drugs, such as text messages, voicemail messages, photographs, e-mail accounts, and social media accounts. While appellant must provide the probation officer with passwords necessary to gain access to these accounts, to the extent any other types of digital accounts maintained by appellant are password protected, he is not required to disclose those passwords.

B. School Attendance Condition

Appellant also contends the probation condition requiring him to attend school is unconstitutionally vague and overbroad because the two formulations of the condition, requiring him to attend "on a regular basis" and "every day," do not make allowance for excused absences. In imposing the condition, the juvenile court told appellant, "With regards to school, attend school on a regular basis. Obey all school rules and regulations. Do not leave the school campus during school hours without permission of school officials or the Probation Officer." In determining the constitutionality of the condition,

vague or overbroad. ( In re Ramon M. (2009) 178 Cal.App.4th 665 , 677, 101 Cal.Rptr.3d 158 .)

T

he search condition of the probation order, which currently reads, "Submit person and any vehicle, room or property, electronic including passwords under your control to search by Probation Officer or peace office [ sic ] with or without a search warrant at any time of day or night," is modified to read: "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