Filed 9/27/18 In re C.M. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re C.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. C.M., Defendant and Appellant.	A153120 (Napa County Super. Ct. No. JV18540)

INTRODUCTION

This is an appeal from a sentencing in juvenile court. Appellant contends the juvenile court erred in denying him informal supervision pursuant to Welfare and Institutions Code[1] section 654.2. He also contends a condition of probation, namely an electronic search condition, was unconstitutional in this instance. We find no error in the denial of informal supervision but remand the condition permitting search of electronic items in appellant’s possession. Otherwise, we affirm the judgment.

STATEMENT OF THE CASE

On May 24, 2017, the District Attorney of Napa County filed a wardship petition under section 602, subdivision (a) against appellant, who was 13 years old. The petition alleged four misdemeanor counts of carrying a concealed dirk or dagger, a violation of Penal Code section 21310. On November 7, 2017, appellant admitted two of the weapon counts, and the juvenile court granted the motion by the district attorney to dismiss the remaining counts. On November 27, appellant was found to be a ward of the court and ordered home on probation. A timely appeal followed.

STATEMENT OF FACTS

We have relied on the probation report for the facts in this section. On April 7, 2017, in the afternoon, the police were notified of a person riding a bicycle in a neighborhood in American Canyon who was acting suspiciously. The individual was wearing gloves and opening mailboxes of various residences. The police responded and came upon appellant. As the police confronted appellant, they noticed he had two large bulges in his pant pockets. After he denied possessing any weapons on his person, an officer lifted appellant’s shirt and saw the handle of a possible weapon protruding from his pocket. The police then searched appellant and found a total of seven knives either in individual sheaths or folded in his pockets. They were not visible without raising appellant’s shirt. The police later spoke with appellant’s mother regarding these weapons her son was carrying. She told the police appellant had purchased the knives online with her personal credit card. She confiscated the knives once she learned what appellant had done and placed the weapons in a locked box. She was unaware appellant had then retrieved the weapons from the locked container without her permission.

DISCUSSION

Appellant challenges the denial of informal supervision in his case. Under section 654.2, the juvenile court may impose informal supervision if the court believes it is appropriate.[2] In this case, before the jurisdictional hearing, the juvenile court granted appellant’s motion to refer the case to the probation department to consider informal supervision under section 654.2. The juvenile probation department then filed its section 654.2 report recommending appellant be adjudged a ward of the court and placed on formal probation. The basis for this position by probation was the department’s concern for community safety, based on appellant’s behavior. Besides the underlying criminal incident regarding the seven knives in his possession, appellant had a previous incident when he brought to school a hatchet, a hammer, and link chain. This incident, reflected in the school records, resulted in appellant’s discipline. The minor admitted to police he had a fascination with weapons. Based on this investigation, juvenile probation concluded appellant was “an overall moderate risk to reoffend.” The department believed informal supervision “would not allow sufficient time for rehabilitative services or the proper conditions for probation.”

Despite the conclusions of the section 654.2 report, at a later hearing, appellant’s counsel asked the juvenile court to consider informal supervision. While the minor had recently received poor academic grades, he was currently enrolled in an independent studies program. The district attorney deferred to the juvenile court on the imposition of a sentence under section 654.2.

The juvenile court judge handling the question of informal supervision had the benefit of the 654.2 report of juvenile probation, as well as the strong arguments by appellant’s counsel on the subject. Since the prosecutor was not involved in the issue, based on this record the matter boiled down to the court and appellant’s counsel reviewing the matter. The court was concerned about appellant’s poor academic performance reflected in the report. However, the court was more concerned about serious personality issues manifested by appellant in his behavior. “I’m worried . . . that it’s not simply that he had a problem at school. It seems to be an underlying psychological issue that he’s grappling with that made it hard for him to associate with others and have the sort of agreeable and friendly and successful relationships that you need in order to succeed in life. I think probation is interested in involving him in some intense counseling to try to resolve this problem.

“[¶] . . . [¶]

“So I think that 654 wouldn’t give probation the opportunity to really immerse him in the kind of services he needs. He’s got a lot—I mean he’s got a lot of potential, but he’s having trouble just being with people it seems. . . . [H]e has a fascination with weapons. He has a [sic] bringing weapons to school and having conflicts at school with other people.” (Italics added.)

Defense counsel then responded to the court’s remarks. “There is. [¶] . . . [¶] Right. Bullying throughout middle school which is in the report. And I would just note he can get all of that counseling. . . . [¶] I would submit that with . . . six months of intense counseling we could see a . . . change in his behavior [with a 654.2 sentence].”

The court responded by demonstrating an understanding of what could happen with informal supervision, but observed: “I don’t think that six months would be adequate. He’s been bullied since elementary school. He’s got this anger in bringing weapons. He’s also got other issues. Easily triggered to anger. It appears the kind of services that probation can provide can include intense counseling with somebody to talk to, and somebody to help him figure out why he’s prone to getting angry easily, and why he has his problems at school and with other people. [¶] . . . And students made comments that he’s going to kill somebody. He feels hurt by the comments [of students], so he needs to achieve the kind of self kind of feeling about himself that would get him beyond these feelings. I think 654.2 is not adequate to do so.” (Italics added.) The court then mentioned the method appellant used to obtain the knives by misusing his mother’s credit cards. The court then summarized: “So I’m going to direct that 654 not be granted in this case. Once again[,] I’m not doing so in order to feel that the minor needs more punishment. I don’t consider that at all what is being needed by the minor.”

At the outset, we sit as an appellate court to assess what the juvenile court determined as a proper and fair sentence; we evaluate based on an abuse of discretion standard. This “discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] However, in the absence of a clear showing that its sentencing decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives and, accordingly, its discretionary determination to impose [a particular sentence] ought not be set aside on review.” (People v. Giminez (1975) 14 Cal.3d 68, 72, italics added.) “The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in [sentencing]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395 [upholding California Youth Authority (CYA) commitment]; see In re Carl N. (2008) 160 Cal.App.4th 423, 432 [upholding CYA commitment].)

With this understanding of our role, we have reviewed the record here and find no abuse of discretion by the juvenile court. Contrary to appellant’s arguments in his brief, we believe the juvenile court properly understood the purposes and scope of section 654.2 as a basis for informal supervision. It is simply the case the court did not conclude appellant would benefit from it in his rehabilitation. Appellant manifested personality issues that merited stricter controls and treatment; the court decided to adopt the professional conclusions of the juvenile probation report rejecting any informal supervision under section 654.2.

Under the facts of this case, the juvenile court did not err in imposing as one of the conditions of probation appellant submit to an electronics search condition. The probation report requested several conditions be imposed. Condition No. 14 required “[t]he minor [to] submit all electronic devices under their [sic] 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. The minor 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.” The probation department made this request because of appellant’s misuse of his mother’s credit card services and his strong inclination to possess dangerous or deadly weapons. Appellant’s juvenile court counsel objected to the condition as unreasonable and unconstitutionally overbroad.

The juvenile court overruled the objection. It noted the minor had obtained the weapons over the Internet using a computer. It further observed it was imposing the usual search conditions and the condition appellant refrain from possessing weapons that are dangerous or deadly.

Before getting into a discussion of the particular issue in this opinion, we note the obvious predicament any intermediate appellate court faces at this time when it is asked to discuss the merits of appellant’s claim. As indicated in appellant’s reply brief at page 6, footnote 1, there are currently pending before our Supreme Court at least 10 cases addressing overbreadth in electronic search conditions. The legal relevance of one more intermediate appellate decision on this topic seems questionable, since the cases before the court already run the gamut analyzing the question. Per appellant’s brief, the first case, In re Ricardo P. (2015) 241 Cal.App.4th 676 (Ricardo P.), was granted review on February 17, 2016 (S230923).

Another case of this division is In re P.O. (2016) 246 Cal.App.4th 288. The reasoning in In re P.O. influences our analysis in this case. In that case we modified the condition, holding that it went too far in usurping rights of the minor.

A need for access to electronic devices here was based on appellant’s use of the Internet to purchase weapons with a parent’s credit card. To preclude his improper use of another’s financial information to violate his probation, the court and the probation officer believed it was necessary to have access to electronic devices of appellant. This is not unreasonable. As we noted in P.O., a condition authorizing warrantless searches of some of P.O.’s cell phone data and electronic accounts allows for monitoring of his compliance with his other probation conditions in a way that a standard search condition simply cannot, and the overbreadth concern can be solved by limiting the authorization to searches for information that is reasonably likely to be relevant to P.O.’s rehabilitation. (In re P.O., supra, 246 Cal.App.4th at p. 298.) Using this reasoning, the juvenile court here could validly permit searches to sources of electronic information that are reasonably likely to reveal whether appellant is attempting to obtain weapons in Internet markets. It could also review messages and/or photographs indicating the minor continues to possess items prohibited by probation conditions. Finally, based on evidence the minor may have issues with other classmates, the probation or law enforcement officer may desire to see if appellant is considering illegal or threatening behavior against his peers. After all, appellant, on at least one prior occasion, brought a hatchet and a hammer to school and his arrest here involved seven knives. In other words, this probation condition satisfies a valid level of attention fitting for a juvenile needing rehabilitation in contemporary society. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175–1176.) As was noted, “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.) Rather than modify the condition on our own, we remand to the juvenile court to modify this electronic device condition consistent with our discussion; we do not find the condition otherwise improper.

In this case, we also observe the juvenile court imposed a search condition, condition No. 13, which stated: “The minor submit to search and seizure of his person, residence, vehicle, and property under his control by law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. Contraband seized by the probation officer shall be disposed of, stored or returned at the discretion of the probation officer.” (Italics added.) This condition was not challenged below and is not challenged in this appeal. The condition permits the search of appellant’s property without a warrant.

Additionally, the probation terms preclude appellant from “knowingly possessing any ammunition, explosive, dangerous or deadly weapon, or replica of a dangerous or deadly weapon.” That condition, not objected to in this case, would seem to cover the concerns expressed by the court regarding weapons the court concluded appellant had a fixation regarding.

Finally, one would assume the parent’s shock that appellant used their credit cards to purchase these knives will trigger proper vigilance by them to review their credit card and Internet transactions more carefully in the future. Proactive behavior by the parents would have possibly checked appellant’s original purchase of these items that fascinate him so.

In other words, regardless of what the court concludes on a probation condition like Condition No. 14 in this case, there appear to be substantial unchallenged checks otherwise in place to deal with the juvenile court’s concern in this matter. A weapons prohibition, traditional search conditions, and parental attentiveness may well suffice here. Add to this the focus of juvenile probation and we believe sufficient forces are at work to prevent violations of the criminal law by appellant.

DISPOSITION

In summary, we affirm the juvenile court’s denial of appellant’s request to proceed under section 654.2. We remand the matter to the juvenile court for the purpose of modifying the electronics condition to reflect the rehabilitative needs of appellant consistent with the discussion in this opinion. In all other respects the judgment is affirmed.