Filed 7/25/17 In re E.M. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re E.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

E.M.,

Defendant and Appellant.

F074712

(Super. Ct. No. JJD069953)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza, Judge.
Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A Welfare and Institutions Code section 602 petition alleging E.M. was a minor in possession of alcohol in a vehicle, in violation of Vehicle Code section 23224, subdivision (b), was found true by the juvenile court. The juvenile court declared E.M. a ward of the court and placed him on probation. E.M. appeals, contending the probation condition that his electronic devices be subject to search was not imposed by the juvenile court; the condition is overbroad; the condition is unreasonable; and counsel was ineffective for failing to object. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On May 11, 2016, Sheriff’s Deputy Jeremy Conrad pulled over a vehicle that was traveling at a high rate of speed. E.M. was a passenger in the vehicle. Conrad could smell alcohol on E.M.’s breath. Conrad saw open containers of beer in the vehicle; a case of beer in the back seat; and one open beer container directly next to E.M.’s seat.
On July 20, 2016, a section 602 petition was filed alleging E.M., a minor, was in possession of alcohol in a vehicle, a violation of Vehicle Code section 23224, subdivision (b). E.M. denied the allegations in the petition. The juvenile court found the allegations true at the conclusion of a contested jurisdictional hearing.
Following the jurisdiction hearing, the probation department prepared a report, which was filed November 3, 2016. The narrative portion of the report recommended that E.M. “be subject to search, test, and pay clauses,” among other terms and conditions of probation. Attached to the report was a Judicial Council form JV665, which contains numerous possible terms and conditions for probation. The probation department had checked the boxes of those terms and conditions it was recommending be imposed on E.M. Among the suggested conditions was number 12, which states:
“The minor submit to a search of his/her person, residence, automobile and any object under his/her control, including any electronic devices, at any time, day or night, with or without a search warrant, with or without his/her consent, by any Peace Officer or Probation Officer.”
At the November 7, 2016 disposition hearing, the juvenile court stated at the start of the hearing that it had read the report and asked if there were any comments. Counsel for E.M. responded, “No, your Honor. Submit it.” The juvenile court then stated again that it had “read the report” and proceeded to adjudge E.M. a ward of the court and place the minor under the supervision of the probation officer.
The juvenile court then proceeded to state, “You’re, under the terms and conditions of probation you’re going to receive in a few minutes.” The trial court articulated many of the terms and conditions, including that there was “going to be a search and test clause. That means that any peace officer … can search your person, your place of residence, any vehicle under your control at any time day or night .…”
E.M. was directed by the juvenile court to contact the probation officer within three working days so the probation officer “can review with you the terms and conditions of your probation.” E.M. was asked if he had any questions, to which he replied “No.” The juvenile court stated a review hearing would be scheduled for six months out and if E.M. complied with all terms and conditions of probation, “we can maybe terminate your probation at that time.”
The disposition order was filed November 7, 2016. The order stated that the juvenile court has “read and considered the social study prepared by the probation officer” and that the “social study includes a case plan.” The order provided that E.M. was placed under the supervision of a probation officer, subject to the terms and conditions in the attached form. The terms and conditions were essentially as had been proposed by the probation department in their report.
E.M. filed a notice of appeal on November 15, 2016.
DISCUSSION
E.M. contends the electronic search condition must be stricken because it was not imposed by the juvenile court at disposition. Additionally, E.M. contends the electronic search condition is constitutionally overbroad and infringes on his right to privacy; and unreasonable under People v. Lent (1975) 15 Cal.3d 481 in that it serves no legitimate state purpose. Finally, he contends counsel rendered ineffective assistance by failing to object to the electronic search condition.
I. Imposition of Electronic Search Condition
One of the terms of probation imposed by the juvenile court in its disposition order required E.M. to submit to a search of electronic devices under his control “with or without a search warrant.” The search of electronic devices was not mentioned by the juvenile court during the disposition hearing, and E.M. contends the juvenile court’s comments during the hearing should prevail over the written order. We disagree.
When the clerk’s and reporter’s transcripts differ, the modern rule is to give effect to the portion of the record that has greater credence under the circumstances of the case. (People v. Harrison (2005) 35 Cal.4th 208, 226; People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) Here, although the juvenile court did not refer to electronic devices when mentioning the search condition at the disposition hearing, it seems clear that it intended such devices be subject to search.
The juvenile court at the beginning of the disposition hearing twice referenced the fact that it had read the report prepared by the probation department, which report included a recommendation that electronic devices be subject to search. It invited comments regarding the contents of the report; there were no comments and E.M. submitted on the report. Subsequently, the juvenile court discussed some of the terms and conditions of probation, but concluded by stating that E.M. was to meet with the probation officer to review all of the terms and conditions. Before concluding the hearing, the juvenile court asked if there were any questions; no questions were posed.
The proposed search condition included in the probation report is the search condition adopted by the juvenile court and included in the disposition order. Among the other terms and conditions of probation imposed were that E.M. not have any contact “in person, in writing, by telephone or electronic means” with his coparticipants, G.N. and Z.V. He also was to refrain from contact with any known gang members.
The failure to specifically mention electronic devices during the disposition hearing is of no significance; the juvenile court did not articulate in detail every term and condition of probation during the hearing. Hence, the directive to E.M. to meet with the probation officer to review in detail all the terms and conditions of probation which the juvenile court was imposing. A juvenile court is not required to articulate every term and condition of probation during the hearing if they are spelled out in the probation report, incorporated into the written order, and the minor has a probation officer who can review and explain the conditions. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 586.)
Under the circumstances of this case, we conclude the juvenile court fully intended to impose an electronic search condition because of its multiple references at the disposition hearing to having read the probation report and its inviting comments regarding that report; the specific prohibition on contact by electronic devices in the terms and conditions of probation; and the need to provide a mechanism for the probation officer to monitor compliance with all the terms and conditions of probation. (People v. Pirali, supra, 217 Cal.App.4th at p. 1346.)
II. Challenges to Electronic Search Condition
E.M. contends the electronic search condition is constitutionally overbroad and infringes on his right to privacy. He also contends the condition is unreasonable under Lent. Neither contention has merit.
Forfeiture
Defense counsel posed no objection to this condition at the sentencing hearing. The People argue this failure results in a forfeiture of the issue on appeal. We agree.
Failure to object to a probation condition constitutes a forfeiture of any challenge to that condition on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) As the court in Welch explained: “A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case.” (Id. at p. 235.) This rule applies even if the contention is that the probation condition is unconstitutionally vague or overbroad. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151.) “A defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal.” (Ibid.)
A challenge to a probation condition may be reviewed on appeal notwithstanding a failure to object in the trial court if the challenge presents a pure question of law that can be resolved without reference to the factual record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) The Supreme Court also cautioned that not every constitutional challenge would fit within this exception to the forfeiture rule. “We caution, nonetheless, that our conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground. As stated by the court in [In re Justin S. (2001) 93 Cal.App.4th 811], we do not conclude that ‘all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” [Citation.]’ [Citation.] We also emphasize that generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction.” (Sheena K., supra, 40 Cal.4th at p. 889.)
E.M. relies on the factual record to support his contention the electronic search condition is both overbroad and unreasonable. E.M. relies on cases he claims are factually similar to the circumstances he faces, and cites the particular facts related to him to explain why the condition is overbroad and unreasonable. Therefore, E.M. is not making a facial challenge that would be preserved for appellate review in the absence of an objection. The failure to object precludes consideration of the argument for the first time on appeal. (Sheena K., supra, 40 Cal.4th at p. 885.)
Moreover, E.M. had an adequate opportunity to question the imposition, breadth, and reasonableness of the electronic search condition at the disposition hearing. At the start of the disposition hearing, the juvenile court twice referenced the fact that it had reviewed the probation report. The juvenile court asked if there were any comments, and defense counsel responded “No, your Honor. Submit it.” The probation report included the proposed electronic search condition and any objections to that condition could have, and should have, been raised with the juvenile court. (Sheena K., supra, 40 Cal.4th at p. 889.)
Standard of Review
Generally, we review the imposition of any condition of probation for an abuse of discretion. (People v. Snow (2012) 205 Cal.App.4th 932, 940.) Reversal is required only if the juvenile court’s ruling is arbitrary or capricious, or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Constitutional challenges to probation conditions, however, are reviewed de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901.)
A ward of the juvenile court placed on probation is subject to “any and all reasonable conditions that [the court] may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (§ 730, subd. (b).) Thus, to effect an offender’s rehabilitation the juvenile court has broad discretion to fashion the conditions of probation, and may even impose conditions that are unconstitutional or otherwise improper, so long as they are tailored to meet the juvenile’s specific needs. (In re J.B. (2015) 242 Cal.App.4th 749, 753-754.)
Probation conditions are invalid when they (1) have no relationship to the crime committed by the probationer; (2) relate to conduct which is not itself criminal; and (3) require or forbid conduct which is not reasonably related to the probationer’s future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.) To avoid possible overbreadth, the probation condition must be closely tailored to its purpose. (Id. at p. 384.)
Constitutional Challenge
Here, E.M. contends the electronic search condition is overbroad as it infringes on his privacy rights. Interestingly, he does not challenge the imposition of a search condition that requires he submit his person, residence, automobile, and other objects within his possession or control to warrantless searches.
We disagree that the electronic search condition impermissibly infringes on E.M.’s privacy rights. As a ward of the court, E.M. no longer enjoys the same privacy rights as one who is not. The right of a ward, or probationer, to be free from unreasonable searches or seizures gives way to government activities that reasonably limit the expectation of privacy, such as probation supervision. (In re Kacy S. (1998) 68 Cal.App.4th 704, 710-711.)
The constitutional interest in privacy of a juvenile ward of the court is significantly more curtailed than that of an adult, or someone who has not been convicted of a criminal offense. (In re Jaime P. (2006) 40 Cal.4th 128, 136; In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) The state, when it assumes jurisdiction over a minor, stands in the shoes of the parent and a parent may curtail a child’s exercise of constitutional rights. (In re Antonio R., supra, 78 Cal.App.4th at p. 941.)
A parent could quite reasonably elect to monitor a child’s use of electronic devices for suspected drug or alcohol use, involvement with gangs, association with persons the parent deems undesirable, truancy, or criminal activity. When a minor has been declared a ward of the court because of criminal activity involving the use of alcohol; acknowledges use of illegal substances, specifically marijuana; has poor attendance in school; has a gang tattoo and whose sibling is a registered gang member; and the minor fails to comply with parental rules and discipline; the state may elect to monitor use of electronic devices. (In re Victor L. (2010) 182 Cal.App.4th 902, 919-923.)
Lent Criteria
E.M. argues the electronic search condition does not meet any of the Lent criteria. The People concede the first two criteria are not at issue, i.e., the electronic search condition is not related to the offense which E.M. was found to have committed and the use of electronic devices in general is not criminal. The parties differ on whether the electronic search condition is related to future criminality.
Juvenile courts have broader discretion than adult criminal courts in fashioning conditions of probation. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) So long as reformation and rehabilitation of the probationer is promoted, the juvenile court has broad discretion to impose conditions of probation. (In re Luis F. (2009) 177 Cal.App.4th 176, 188.) The electronic search condition promotes E.M.’s rehabilitation, tends to prevent future criminality, and satisfies Lent.
The electronics search condition is reasonably related to future criminality, even if it had no connection to the offense for which E.M. was declared a ward of the court. E.M. was declared a ward for possessing an open container of alcohol in a vehicle and had alcohol on his breath; admitted to the probation officer he smoked marijuana regularly; was truant from school on several occasions; and had a gang tattoo. Drug use, truancy, and gang involvement are recognized as precursors to serious criminality. (In re P.A. (2012) 211 Cal.App.4th 23, 36; In re Robert M. (1985) 163 Cal.App.3d 812, 815-816.)
Access to electronic devices can be a useful tool in tracking possible marijuana and alcohol usage and transactions, truancy, contacts with gang members, and contacts with G.N. and Z.V., all of which is prohibited conduct under the terms and conditions of E.M.’s probation. A probation condition that enables a probation officer to effectively supervise a minor on probation is reasonably related to future criminality and rehabilitation. (See People v. Olguin, supra, 45 Cal.4th at pp. 379-381; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177.)
We respectfully disagree with In re Erica R. (2015) 240 Cal.App.4th 907, 913, and In re J.B., supra, 242 Cal.App.4th at pp. 756-757 and their conclusion that because there was nothing in the record to tie the use of electronic devices to the minor’s commitment offense, there was no reason to believe an electronics search condition would serve a rehabilitative purpose. Nothing in Lent or Olguin requires a connection between a probationer’s past conduct and the locations that may be subject to a search condition.
Given the ubiquity of electronic devices, we are not prepared to say that an electronics search condition is unreasonable simply because the record does not show the minor used them to engage in illegal activity. While the record does not contain evidence that E.M. contacted associates or gang members, or noted alcohol or use of illegal substances through social media or his electronic devices, it is naïve to suggest that such contact did not or will not occur in the future. Call logs, text and voicemail messages, photographs, social media accounts (Facebook, Twitter, etc.), and emails are all likely to reveal whether E.M. is engaging in conduct that violates his probation.
No Ineffective Assistance of Counsel
Since the electronic search condition was reasonably related to E.M.’s future criminality, defense counsel’s representation of E.M. did not fall below an objective standard of reasonableness when he failed to object to the condition. Accordingly, we reject E.M.’s claim that defense counsel was ineffective.
DISPOSITION
The November 7, 2016, disposition order, including all terms and conditions of probation contained therein, is affirmed.