Filed 10/25/17 In re T.P. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re T.P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
T.P.,
Defendant and Appellant.
A147358

(Contra Costa County
Super. Ct. No. J15-01108)


Appellant, T.P., a minor, appeals from a dispositional order issued pursuant to Welfare and Institutions Code section 602 after the juvenile court determined she committed second degree robbery. Appellant challenges a condition of her probation that requires her to submit to warrantless searches of all electronic devices under her control and to provide the probation department and law enforcement any passwords necessary to conduct such searches. She challenges this condition on two grounds, first, that it violates the limits placed upon a trial court’s sentencing discretion by the California Supreme Court in People v. Lent (1975) 15 Cal.3d 481 (Lent) and, second, that it is unconstitutionally overbroad. Under the particularized facts of this case, we conclude that the electronic search condition as applied to appellant is reasonable under the Lent test and is not unconstitutionally overbroad. Accordingly, we affirm the imposition of this condition of probation.
I. BACKGROUND
A. The Underlying Offense and Wardship Petition
On October 19, 2015, the Contra Costa County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602), alleging appellant, then 15 years old, committed one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). Appellant denied the charge and the juvenile court ordered appellant detained for her own protection and for the protection of others.
At the contested jurisdiction hearing, 15-year-old Isabel G. testified that on the day of the robbery, she was seated outside a CVS pharmacy, waiting for her mother to pick her up. As she waited, Isabel was browsing on her iPhone 6 and did not look up as other kids passed by her. Suddenly, a girl, later identified as appellant, appeared, commanding Isabel to “give me . . . your phone.” Isabel fought to retain the cell phone, as appellant grabbed for it. During the struggle, Isabel fell backward to the ground and appellant grabbed the phone and ran away with it.
Isabel reported the robbery to two nearby security guards. Within minutes Isabel’s mother arrived and gave the guards her iPhone to use its tracking app, which showed Isabel’s iPhone at a Round Table restaurant in the same strip mall. The app refreshed at the restaurant and led the guards to a nearby parking lot; in the parking lot the app emitted proximity alerts pointing directly at a group of three girls, one of whom matched Isabel’s suspect description. As the girls walked off the property, one of the security guards, Joseph Sena, Jr., asked them if anyone had seen or found a cell phone. The girls began laughing and told Sena that they had not found a phone, and if they had found one, they would have taken it; the girls walked away. The location app continued to track in their direction. The police later detained appellant at a bus stop; the cell phone, however, was never recovered. At an infield identification, Isabel identified appellant as the person who took her phone; she did not identify the other two girls.
On the day of the jurisdiction hearing, Isabel again identified appellant as the person who took her phone. Isabel explained that the other two girls did not seem like they were involved; she added that the other girls seemed to be as confused as she was about what had just happened. The three girls, who went to the same high school as Isabel, testified they were together after school on the day in question, but maintained they were not at the pharmacy. Appellant testified she had her own cell phone with her at the time, though appellant’s mother previously had taken that cell phone away from her. Appellant denied that her mom had taken away her cell phone because she uploaded onto the YouTube website a fight that appellant videotaped. Appellant testified she was laughing as security guard Sena asked her about the missing cell phone because one of her friends remarked that if she (the friend) had seen an iPhone on the floor she would have picked it up herself. Appellant said that, after the incident, she was not grounded or restricted by her mother; it was “[j]ust a normal day.”
Called by the defense as a character witness, appellant’s aunt testified that appellant’s mother had placed appellant on “cell phone punishment” due to concern the cell phone was distracting appellant from homework and also because appellant had uploaded the video of the fight; the family had a conversation with appellant about “how dangerous [it] can be . . . ” to post things online.
The juvenile court found the second degree robbery charge true and the matter proceeded to disposition.
B. Disposition
1. Probation Department’s Report
The probation department’s disposition report included summaries of the victim impact statement, as well the interviews with appellant and her mother.
The victim’s mother requested approximately $900 in restitution, for the stolen cell phone, loss of wages, and copays for her daughter’s psychologist visits. Isabel had been depressed since the incident and was afraid to go too far from her high school campus; her mother picked her up every day from school.
Appellant had not seen her father for a couple of years, considered him “not relevant,” and did not care about him. Appellant was molested at an earlier age by a friend of her mother’s, resulting in a family services referral that was now closed. Appellant said that incident did not currently bother her. Appellant had 14 behavioral incidents for tardiness, truancy, class disturbances, fighting, and possession of a cell phone from March 2014 to September 2015; she failed numerous classes the previous year; and received subpar grades and numerous truancy/tardies before entering custody in the current year. One of the two girls whom appellant was with on the day of the robbery is a marijuana user; appellant said had tried marijuana once three months before, but did not like it. Appellant said her mother was unaware that she had tried marijuana. The report noted that the current offense was serious and violent, leaving the victim traumatized and in need of therapy. Appellant, however, expressed no remorse for the victim, took no responsibility for her own actions, and declined to discuss the offense with probation.
Appellant’s mother (hereafter mother) believed the security guard made up the whole thing, and that appellant was innocent. As to the prior fight with another student that resulted in appellant’s suspension from school, mother felt her daughter merely acted in self-defense. The probation department was concerned about mother’s denial that appellant was responsible. Mother acknowledged that appellant had been struggling in school; she believed that due to its size, the school was not right for appellant. Although mother believed appellant might be more successful in a continuation high school, mother had done little to intervene on appellant’s behalf.
Appellant was screened and found appropriate for Department of Juvenile Justice (DJJ) commitment. However, the probation officer determined that DJJ and foster care were not in appellant’s best interest. The probation officer recommended the Girls in Motion program (GIM), followed by an intensive probation period with the understanding that DJJ would be considered if appellant did not perform well.
2. Disposition Hearing
Defense counsel disagreed with the disposition recommended by the probation department and advocated for an in-home placement with an ankle monitor. The district attorney argued that, in light of appellant’s failure to accept responsibility or show any remorse for this serious and violent incident, together with mother’s belief that the security guard made up the story, home placement with an ankle monitor would be incredibly inappropriate. The district attorney added that given the nature of the crime the “search and seizure condition should also include cell phone and electronic devices as well.”
The probation officer told the court that appellant has “a lot of issues.” He expressed that the department wanted to give appellant an opportunity to get the proper services she needed at GIM.
The court concluded, consistent with the probation officer’s recommendations, that appellant needed stronger intervention than she got at home and that need could be best served by removal from mother’s residence, and placement in a structured institution. The court explained that its decision was based on more than just the present incident, noting that appellant has “14 behavioral entries at school for reasons of tardies, truancy, possession of a cell phone, class disturbance, [and] fighting.” The court was also concerned by appellant’s failure to show any remorse or take any responsibility for the “very, very serious offense” that she committed.
Defense counsel asked that if the court was inclined to impose GIM, that it suspend it and give appellant an opportunity to turn things around while in the community. The court explained that it was not comfortable with suspending GIM at that point: “I think she needs a stronger intervention than what she’s going to get at home. [¶] There is, apparently, a feeling that she’s done nothing wrong, and that she shouldn’t be held responsible for what she did do, and when you have that attitude, there is a lack of structure and a lack of instilling in the child that they need to be accountable for what they did.” At this point, appellant’s mother interrupted the court: “You’re making assumptions of my character . . . . I don’t teach my children to do things like that. [¶] Don’t you think if she was guilty she would have said so by now?” Appellant’s mother added: “This is bull shit, you guys. This is bull shit. This is bull shit.” Mother left the courtroom after this outburst and the court proceeded with disposition.
The court adjudicated appellant a ward, removed custody from mother, and ordered her detained pending her delivery to the GIM program. The court ordered appellant to successfully complete all aspects of GIM, obey all rules and regulations, and follow treatment requirements. Among the numerous probation conditions were obeying the probation officer; school attendance, counseling, residence, and identification requirements; a curfew; prohibitions against firearms, alcohol, drugs paraphernalia, or narcotics including marijuana; submission to drug/alcohol testing; reporting of police contacts within 24 hours; a no-contact order as to the victim; restitution; and searches of appellant’s person, property, vehicle, and residence.
The court also ordered appellant to “submit all electronic devices under her control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts with or without a search warrant at any time of the day or night, and provide probation or police officers with any passwords necessary to access the information specified[.]” Defense counsel interjected, saying, “Judge, we object.” The court noted the objection and proceeded with the disposition.
II. DISCUSSION
A. Legal Principles and Standard of Review
Welfare and Institutions Code section 730, subdivision (b) authorizes the juvenile court to “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.” A condition of probation that would be legally impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court. (See In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.); In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
“ ‘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.’ [Citation.] In In re Victor L. (2010) 182 Cal.App.4th 902 [(Victor L.)], the court explained, ‘ “The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents” [citation], thereby occupying a “unique role . . . in caring for the minor’s well-being.” [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. “[E]ven where there is an invasion of protected freedoms ‘the power of the state to control the conduct of children reaches beyond the scope of its authority over adults . . . .’ ” [Citation.] This is 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.” ’ (Id. at pp. 909–910.) The reasonableness and propriety of the imposed condition is measured not just by the circumstances of the current offense, but by the minor’s entire social history. [Citation.]” (In re J.B. (2015) 242 Cal.App.4th 749, 753–754 (J.B.).) Probation for adults is an act of leniency, whereas probation for minors, is an “ingredient” to the minor’s reformation and rehabilitation. (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1089.)
However, while the juvenile court’s discretion is broad, it is not unlimited. “A probation condition is invalid if 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.” ’ ([Lent, supra,] 15 Cal.3d [at p.] 486 [ ].) . . . This three-part test applies equally to juvenile probation conditions. [Citation.]” (J.B., supra, 242 Cal.App.4th at p. 754.)
“In addition, a juvenile court may not adopt probation conditions that are constitutionally vague or overbroad. [Citations.]” (In re Malik J. (2015) 240 Cal.App.4th 896, 901 (Malik J.).) “A probation condition ‘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,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
“We review the juvenile court’s probation conditions for abuse of discretion, and such discretion will not be disturbed in the absence of manifest abuse. [Citation.] But ‘[w]hile we generally review the court’s imposition of a probation condition for abuse of discretion, we review constitutional challenges to probation conditions de novo.’ [Citation.]” (J.B., supra, 242 Cal.App.4th at p. 754.)
B. The Electronic Search Condition Is Reasonable and Constitutional
Appellant purports to challenge the electronic search condition as being both unreasonable under the three-prong Lent test described above and unconstitutionally overbroad. Appellant did not raise these specific challenges below. Rather, defense counsel merely stated, “Judge, we object.” Failure to object to the reasonableness of a probation condition results in forfeiture of the claim. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 585, disapproved on another point in People v. Hall (2017) 2 Cal.5th 494, 503, fn. 2.) Failure to object on the constitutional grounds of vagueness and overbreadth may be raised for the first time on appeal if they present “ ‘pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court[,]’ ” but will forfeit the issues where this is not the case. (Sheena K., supra, 40 Cal.4th at p. 889.)
Despite the general rules just stated, “an appellate court may review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to its discretion.’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) Because of the substantial rights at issue, we find it appropriate to exercise our discretion to consider appellant’s claims.
1. The Lent Test
The Lent “test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probate 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).)
The same electronic search clause challenged by appellant has divided the Courts of Appeal and is currently pending before the California Supreme Court in a number of cases. The analytical touchstone for all of these cases is the three-part Lent test summarized above. In virtually all cases, it is the third factor, whether the condition is “ ‘reasonably related to future criminality’ ” (Lent, supra, 15 Cal.3d at p. 486), that garners the most jurisprudential attention.
Here, however, we focus on the first factor—the relationship between the electronics search condition and appellant’s offense. The Attorney General argues the condition is justified because appellant robbed the victim of a cell phone that was never recovered and the condition protects the victim’s “right to recover her property” from appellant. In Malik J., supra, 240 Cal.App.4th 896, a similar argument was made. There, the People maintained that the condition was justified in light of the fact that the minor did not own a cell phone and his history of robbing people of their cell phones, and so that if the minor “ ‘ were found in possession of a cell phone, a probation or police officer could check the phone to determine whether it had been stolen.’ ” (Id. at p. 902.) Under these circumstances, the court found it was reasonable to require the minor to provide passwords for electronic devices in his custody and control as a means for officers to determine the ownership of such devices. (Id. at p. 903.)
Appellant argues that here, unlike in Malik J., she does have her own cell phone and does not have a “history” of stealing cell phones or other electronic devices. She further contends the search condition was not justified because there was no evidence that she used electronic devices or social media to facilitate her offense. In this respect, she claims her case is distinguishable from People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) cited by the Attorney General. In Ebertowski, an adult defendant was convicted of making criminal threats to a police officer. There, the condition requiring the defendant to submit his electronic devices to search, with passwords to the devices and social media accounts, was reasonably related to the risk of future criminality because the threats had included references to the defendant’s gang membership, he had promoted his gang through his social media account, and his gang membership was related to future criminality in that his “association with his gang gave him the bravado to threaten and resist armed police officers.” (Id. at pp. 1173, 1176–1177.)
The Attorney General’s suggestion that appellant’s fight at school the year before, and more recently her uploading a fight on YouTube constituted “aspirational precursors to the bravado, promotion, and turf challenges characteristic of gang behavior” is pure speculation. (See In re Erica R., supra, 240 Cal.App.4th at pp. 912–913 [suggestion that “cell phone and electronic devices ‘could have been used to negotiate the sales of the illegal substance’ ” is insufficient to justify electronic search condition where there was nothing in the record regarding the current offense for drug possession or the minor’s social history that “connects her use of electronic devices or social media to illegal drugs.”].) We agree with appellant that there is no evidence in the record that she used electronic devices or e-mail, texting, or social networking websites to facilitate her offense. However, as in Malik J., we conclude the electronic search condition was reasonable as a means for officers to determine the ownership of electronic devices in her custody and control. (Malik J., supra, 240 Cal.App.4th at p. 903.)
Thus, because the first prong of this conjunctive standard is not satisfied, the electronic search condition of appellant’s probation survives under Lent. The question remains, however, whether this condition is sufficiently tailored to the circumstances of this case, such that it comports with constitutional principles. To this question, we now turn.
2. The Overbreadth Doctrine
According to appellant, even assuming, as we have just held, that the electronic search probation condition is valid under the Lent standard, the condition nonetheless must be stricken as unconstitutionally overbroad because it infringes upon her privacy rights and is not narrowly tailored to either the underlying offense or her own circumstances.
Relevant to this contention, the Supreme Court of the United States in Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473] recently made clear in a case involving the warrantless search of the defendant’s cell phone incident to arrest, that cell phone data differs from other physical objects or records in both a qualitative and quantitative sense because cell phones represent an important privacy interest of the holder. (Id. at pp. 2489–2490.) In particular, cell phones contain a digital record of nearly every aspect of the carrier’s lives. (Id. at p. 2490.) One’s internet browsing history can reveal the holder’s most private interests and concerns, such as medical issues, political affiliation, and religious views. (Ibid.) Moreover, the privacy interest of a carrier’s cell phone is magnified by the immense storage capacity. (Id. at p. 2489.)
However, “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” (Riley v. California, supra, 134 S.Ct. at p. 2495.) As this discussion reflects, the gravity of appellant’s constitutionally grounded privacy interest in her use of electronics is substantial. According to appellant, the electronic search condition is overbroad to such an extent that it impermissibly infringes upon her right to privacy. The relevant law for purposes of her argument is not in dispute. When a probation condition imposes limitations on a person’s constitutional rights, it “ ‘must closely tailor those limitations to the purpose of the condition’ ”—that is, the probationer’s reformation and rehabilitation—“ ‘to avoid being invalidated as unconstitutionally overbroad.’ ” (Olguin, supra, 45 Cal.4th at p. 384; Victor L., supra, 182 Cal.App.4th at p. 910.) “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.) “ ‘ “Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.” ’ ” (In re Tyrell J. (1994) 8 Cal.4th 68, 82, disapproved on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.)
However, while a probation condition imposed on a juvenile must be narrowly tailored to both the condition’s purposes and the individual’s needs, “ ‘ “ ‘a condition . . . that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.’ ” ’ ” (Victor L., supra, 182 Cal.App.4th at p. 910, quoting Sheena K., supra, 40 Cal.4th at p. 889.) “This is 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. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And 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” [citation,] and to “direct the upbringing and education of children.” [Citation.]’ ” (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
Thus, where, as here, a constitutional privacy right is implicated, the probation condition must be (1) narrowly tailored to serve the interests of public safety and rehabilitation, and (2) narrowly tailored to the individual probationer. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; see also Welf. & Inst. Code, § 730, subd. (b).)
Whether a probation condition is unconstitutionally overbroad presents a question of law reviewed on appeal de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
In our case, we find ample evidence to warrant an electronic search condition sufficiently broad to further the government’s public safety concerns, as well as appellant’s interest in reformation and rehabilitation, notwithstanding some resulting infringement on her constitutional right to privacy. (See In re R.V. (2009) 171 Cal.App.4th 239, 246 [upholding a broader condition in light of appellant’s social history and the circumstances of his criminality].)
Appellant, as noted, has “a lot of issues,” including inadequate parental supervision, plummeting grades, and poor social choices. At the time she committed the offense, she was on “cell phone punishment” for either poor grades or uploading a fight on YouTube, or possibly both. Although the exact nature of the offense leading to the restriction is disputed, the fact remains that the phone restriction either was not enforced by mother or that appellant blatantly disregarded it, as she had her cell phone with her on the day of the robbery. At the time of the offense, appellant was failing several classes, reported for numerous instances of tardiness, and had other behavioral issues at school. Mother, however, thought the problem was that the school was not a good fit for appellant. Yet, mother failed to take any steps to enroll appellant at a different school.
Appellant committed a serious and violent offense, yet took no responsibility for her actions and showed no empathy for the victim. Despite the seriousness of the offense, appellant received no consequences from mother. In fact, mother believed that the whole thing was made up. Mother also justified appellant’s fight with another student on the grounds of self-defense.
To be sure, there are cases that have held electronic search clauses imposed as a condition of probation to be unconstitutionally overbroad, given the circumstances of the particular case. But, it should be clear from the above recitation from the juvenile court record that we are reviewing a constellation of facts in this delinquency matter. Appellant does not need her electronic devices monitored simply because she stole an iPhone, or that she had numerous behavioral instances at school, including possession of a cell phone and fighting, or that she uploaded a fight to YouTube, or that her grades were plummeting, or that she took no responsibility and showed no remorse for the serious and violent offense she committed, or because she is a potential danger to the public, lacking in adequate parental supervision. The clause is justified here because appellant has all of these challenges and issues.
Under the circumstances, and on this record, the court’s use of the most accessible tools available to supervise appellant’s progress on probation furthers the juvenile court’s wardship responsibility and was not unconstitutionally overbroad. “The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct. [Citations.] The preservation of the safety and welfare of a state’s citizenry is foremost among its government’s interests, and it is squarely within the police power to seek to rehabilitate those who have committed misdeeds while protecting the populace from further misconduct.” (In re Jose C. (2009) 45 Cal.4th 534, 555.) With these two purposes in mind, “the juvenile court has statutory authority to order delinquent wards to receive ‘care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances.’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 615.) “All dispositional orders in a wardship case must take into account the best interests of the child and the rehabilitative purposes of the juvenile court law.” (In re S.S. (1995) 37 Cal.App.4th 543, 550.) That is exactly what occurred here.
III. DISPOSITION
The judgment is affirmed.


 




_________________________
RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.

























A147358 In re T. P.