Filed 4/27/17 In re Christopher O. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re CHRISTOPHER O., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER O.,

Defendant and Appellant.
D070476


(Super. Ct. No. J236188)
APPEAL from an order of the Superior Court of San Diego County, Edlene McKenzie, Commissioner. Affirmed.

Ashley N. Johndro, 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, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
A petition was filed with the juvenile court under Welfare and Institutions Code section 602 alleging that Christopher O. committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1) and that Christopher unlawfully and maliciously vandalized the personal property of another (§ 594, subd. (a)(b)(2)(A); count 2). The People filed an amended petition adding allegations that Christopher committed counts 1 and 2 in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that Christopher personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
Christopher pleaded guilty to count 1 and personally inflicting great bodily injury. In return for Christopher's guilty plea, the court dismissed count 2 and the street gang allegations. The court declared Christopher a ward of the court, committed him to a rehabilitation program, Breaking Cycles, for a period not to exceed 365 days, and ordered him to juvenile probation on various terms and conditions.
Christopher appeals contending that the conditions of his probation requiring the submission of electronics to search and the submission of social media passwords are (1) invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and (2) unconstitutionally overbroad. As we explain, we disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 16, 2016, the victim, Robert S., confronted Christopher and an accomplice while they were tagging a side street residence in El Cajon. In response, Christopher and his accomplice told the victim, "It's all good. We are Hoodlums." The accomplice removed a knife from his pocket, and the victim attempted to take the knife. The accomplice wrestled the victim to the ground, put him in a headlock, and began to strike him. While the victim was on the ground, Christopher kicked him repeatedly in the head and torso, breaking four of the victim's ribs. Christopher initially fled the scene when a witness broke up the altercation; however, the police were able to apprehend him. As the police took Christopher into custody, he stated, "I am Hoodlums homie."
At the disposition hearing, the prosecutor requested additional conditions be imposed that were not listed on the probation report. Among the additional conditions were the requirements that Christopher's Fourth Amendment waiver be extended to his electronic devices and for him to provide passwords to his social media accounts. The prosecutor argued these conditions were necessary because gang members frequently promote gang activity and communicate with each other via their cell phones and on social media. The prosecutor also noted that Christopher had committed the instant crime only three days after being released from a previous Breaking Cycles sentence and that Christopher had a prior record, including misdemeanor battery and misdemeanor vandalism. Christopher's attorney objected to the electronic search conditions for lack of "nexus" to the crime. The court agreed with the prosecutor and ordered the following probation conditions relevant to this appeal:
"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 of 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.
"The minor shall provide all passwords and pass phrases to unlock or unencrypt any file, system, or data of any type, on any electronic devices, such as a computer, electronic notepad, or cell phone, to which the minor has access.
"The minor shall provide all passwords or pass phrases to any internet sites or social media sites, such as Facebook, Twitter, SnapChat, or Google+, used or accessed by the minor. When asked by any law enforcement officer, including a probation officer, the minor shall submit those websites to search at any time without a warrant. The minor shall not knowingly clean or delete his or her Internet browsing activity."
DISCUSSION
Christopher contends the probation conditions requiring the submission of electronics to search and the submission of social media passwords are invalid under Lent and must be stricken because they do not rationally relate to his criminality. Christopher further contends that the conditions must be stricken because they invade his Fourth Amendment rights and his right to privacy, and because the conditions are unconstitutionally overbroad due to not being narrowly tailored to prevent future criminal activity or compliance with probation.
A. Applicable Legal Principles and Standard of Review
The court may impose on a juvenile probationer "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." (Welf. & Inst. Code, § 730, subd. (b).) The juvenile court has broader discretion over juveniles than superior courts do over adults because juveniles are " 'more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' " (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) " ' " '[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.' " ' " (Ibid.) "In fashioning the conditions of probation, the juvenile court should consider the minor's entire social history in addition to the circumstances of the crime." (In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
However, the juvenile court's discretion regarding probation is not unlimited. (See Erica R. (2015) 240 Cal.App.4th 907, 912; accord, In re P.O. (2016) 246 Cal.App.4th 288, 294 (P.O.) [noting each juvenile probation condition must fit both the circumstances and the minor].) A juvenile 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.) All three prongs of the Lent test must be satisfied for the court to invalidate a probation condition. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Thus, "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." (Id. at p. 380.)
Furthermore, "a probation condition is unconstitutionally overbroad if it imposes limitations on the probationer's constitutional rights and it is not closely or narrowly tailored and reasonably related to the compelling state interest in reformation and rehabilitation." (People v. Forrest (2015) 237 Cal.App.4th 1074, 1080.) " ' " 'Even conditions which infringe on constitutional rights may not be invalid [so long as they are] tailored specifically to meet the needs of the juvenile.' " ' " (P.O., supra, 246 Cal.App.4th at p. 297.)
We generally review the imposition of probation conditions for an abuse of discretion and constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)
B. The Electronic Search Condition is Not Invalid Under Lent
Christopher argues that the electronic search condition is invalid under Lent because the condition is not related to the underlying offense, regulates conduct that is not illegal, and is not reasonably related to his future criminality. The Attorney General does not dispute that the condition is not directly related to the underlying offense and that the regulated conduct is not criminal, but argues the condition is reasonably related to deterring Christopher's future criminality because it allows probation officers to monitor Christopher's adherence to his other probation conditions. We agree.
People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) is instructive. In Ebertowski, our colleagues in the Sixth District held that an electronic search condition was reasonably related to future criminality because the condition allowed a probation officer to monitor the defendant's gang associations and activities. (Id. at p. 1177.) Because the defendant's "association with his gang gave him the bravado to threaten and resist armed police officers," the court reasoned an electronic search condition was "[t]he only way that defendant could be allowed to remain in the community on probation without posing an extreme risk to public safety." (Ibid.) The First District extended this reasoning to minor probationers by upholding an electronic search condition because the minor had a history of gang affiliation, drug use, and prior behavioral issues. (J.E., supra, 1 Cal.App.5th at p. 801, rev. granted.) The court held each of these issues required "intensive supervision" in order to prevent future criminality. (See ibid.)
The same reasoning is applicable here. The electronic search condition will enable a probation officer to ensure that Christopher is not once again engaging with other gang members. Christopher has already displayed bravado in connection to his gang affiliation by announcing to the victim and police that he is a member of the Hoodlums. The trial court agreed with the prosecutor that gang members frequently communicate via electronics and through social media. (See Ebertowski, supra, 228 Cal.App.5th at p. 1175 ["[d]efendant is a criminal street gang member who promotes his gang on social media"].)
Indeed, "whether a probation condition is reasonably related to a specific minor's future criminality is necessarily intertwined with the facts and circumstances surrounding the minor in question." (J.E., supra, 1 Cal.App.5th at p. 802, rev. granted.) Here, Christopher had a prior record of battery and vandalism, committed the instant offense only three days after an 84-day commitment with Breaking Cycles, and boasted about his gang membership while committing a violent offense. In light of this record, the electronic search condition is reasonably related to Christopher's future criminality, and the juvenile court did not abuse its discretion in imposing it.
C. The Electronic Search Condition is Not Overbroad
Christopher argues that the electronic search condition is unconstitutionally overbroad because it is not narrowly tailored to serve the purpose of the restriction and to limit its impact on his privacy rights. Although "a juvenile probationer minor retains a constitutionally protected expectation of privacy, that expectation is greatly diminished as long as he remains a ward of the court." (In re Q.R. (2017) 7 Cal.App.5th 1231, 1238, review granted Apr. 12, 2017, S240222.) As a ward of the court, Christopher's expectation of privacy is markedly different from individuals subject to a preconviction search or even from adult probationers. (See ibid.; In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) Therefore, although Christopher's right to privacy is implicated by the electronic search condition, as we discuss below the condition is not unconstitutionally overbroad. (See J.E., supra, 1 Cal.App.5th at p. 805, rev. granted.)
Here, the electronic search condition is narrowly tailored to serve a legitimate state purpose. Ebertowski, supra, 228 Cal.App.4th 1170 and J.E., supra, 1 Cal.App.5th 795, review granted are, once again, instructive. In Ebertowski, the court rejected the defendant's claim that the electronic search condition was unconstitutionally overbroad because the court reasoned the "minimal invasion of his privacy . . . is outweighed by the state's interest in protecting the public from a dangerous criminal who has been granted the privilege of probation." (Ebertowski, at p. 1176.) The same is true here. As the prosecutor argued in the trial court, the purpose of the electronic search condition is to ensure that Christopher is complying with the terms of his probation and not communicating with other gang members. Christopher's history of criminal offenses and gang affiliation justifies the juvenile court's imposition of a broad electronic search condition as a means of adequately supervising Christopher's compliance with his probation conditions. (See J.E., at p. 806 [juvenile defendant's behavioral issues, difficult family life, and significant drug and alcohol problem warranted a broad electronic search condition].)
We note that the record here is distinguishable from Appleton, supra, 245 Cal.App.4th 717, cited by Christopher. In Appleton, the Sixth District remanded to narrow an adult probationer's electronic search condition because a search could potentially expose personal information such as medical records, financial records, or personal diaries. (Id. at pp. 719, 725.) Unlike an adult probationer, the record here does not indicate that Christopher has such medical, banking, or financial records on his electronics. Christopher further cited P.O., supra, 246 Cal.App.4th 288, which is also distinguishable. In P.O., the court held the electronic search condition was not sufficiently narrowly tailored because the juvenile's needs were not severe enough to warrant a broad restriction. (Id. at p. 298.) Here, Christopher's circumstances and needs are more severe, especially in light of his proclaimed gang affiliation. Indeed, we have continually upheld electronic search conditions when necessary to deter a probationer from reoffending, and we continue to adhere to this view. (See In re George F. (2016) 248 Cal.App.4th 734, review granted Sept. 14, 2016, S236397; People v. Nachbar, supra, 3 Cal.App.5th 1122, rev. granted.)
Lastly, Christopher argues that the electronic search condition invades the privacy of third parties because the condition "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." However, "any speculative impact on third parties is not a reason to strike the [probation] condition since [Christopher] lacks standing to assert the constitutional rights of third parties." (In re Q.R., supra, 7 Cal.App.5th at p. 1237, rev. granted; see Raskas v. Illinois (1978) 439 U.S. 128, 134 ["A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed."].) Given the facts of this case, we conclude the electronic search condition is not unconstitutionally overbroad as applied to Christopher.
DISPOSITION
The order is affirmed.


BENKE, Acting P. J.

WE CONCUR:


NARES, J.


O'ROURKE, J.