Filed 2/21/18 In re B.J. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


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




A150992

(Napa County
Super. Ct. No. JV18480)


Appellant B.J. appeals from an April 3, 2017, dispositional order in which the juvenile court adjudged him a ward of the court, after he admitted to an allegation of disturbing the peace (Pen. Code, § 415), and placed him on probation. He contends the court abused its discretion by imposing as a condition of probation a requirement that he allow searches of electronic devices (electronic search condition). We agree with appellant that the electronic search condition should be stricken as it is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) . We modify the dispositional order accordingly, and in all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The probation report described appellant’s offense in the following manner: According to a Napa County Sheriff’s Department report of February 8, 2017, a deputy sheriff was called to appellant’s high school by its principal for a viewing of a videotape of two students who had challenged each other to a fight before the beginning of school. In that videotape, 17-year-old appellant and another 16-year-old minor were seen having a verbal exchange of words on two occasions, and then they pushed each other. School teachers separated the minors. When interviewed by the deputy sheriff, appellant said that he saw the other minor staring at him and he asked him, “ ‘What are you staring at?’ ” The other minor said, “ ‘What are you going to do?’ ” Appellant then said the same, “ ‘What are you going to do?’ ” The other minor then “flinched” as if he was going to hit appellant, and the school staff came out and separated them. Appellant also stated that the other minor said, “Norte,” as the school teachers approached. The deputy sheriff believed “Norte” was another name or reference to the Norteño criminal street gang. The deputy had received information that appellant and the other minor had been involved in a gang fight the previous weekend. When questioned about the previous fight, appellant admitted he and his friend were jumped by four people who threw bottles at them. One of the attackers was the other minor whom appellant confronted at school. Appellant stated he was not a gang member, but he sometimes hung around with Sureño gang members, known rivals of Norteño gang members. After speaking with the deputy sheriff, appellant was arrested and transported to Juvenile Hall.
On February 10, 2017, the Napa County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a), alleging that appellant had committed acts constituting the criminal offense of “DISTURBING THE PEACE/CRIMINAL STREET GANG ACTIVITY,” in violation of Penal Code sections 415 and 186.22, subdivision (d). At the jurisdictional hearing, the juvenile court granted the district attorney’s motion and amended the petition by striking the gang enhancement allegation, leaving the remaining allegation of a misdemeanor violation for disturbing the peace. The court accepted appellant’s admission to the disturbing the peace allegation in the amended petition, and found that appellant was a person described in Welfare and Institutions Code section 602.
Before the dispositional hearing, the probation department filed a report describing appellant’s family circumstances as of March 30, 2017. Appellant was then living with his parents and several younger siblings. Neither appellant nor his parents reported any significant arguments. The house rules consisted of appellant doing chores, not having friends over, not drinking alcohol, and not playing loud music. Appellant stated his parents consistently applied the rules, and if he disobeyed the rules, his mother stopped “attending to him” and his father did not activate appellant’s phone for cellular use. Of concern to the probation department officer were four areas that needed to be addressed to make appellant a thriving member of the community: peer influences, social activities, education, and substance abuse. The probation department reported that appellant’s peer influences were a concern as he stated his parents would not approve of some of his friends, his close friends were known to be gang members and probationary offenders subject to gang terms and conditions, and were known to engage in delinquent behavior. Appellant did not have any hobbies, he mostly watched TV at home, and he agreed he could make better use of his time and mentioned an interest in obtaining employment and attending boxing classes. Appellant was struggling in school and had trouble consistently attending class. He was also disruptive in school. While attending high school, he had been found in possession of a knife on his person on two separate occasions. He was counseled during the first incident and was “cited” on the second occasion. Another critical area of concern was appellant’s marijuana and alcohol use. When he was 14 years old, appellant began drinking alcohol and smoking marijuana; he smoked “spice” on one occasion. Appellant continued to smoke marijuana (1–2 grams) every other day until May 2016, and he drank alcohol (8–10 beers) every weekend until January 2017. Appellant drank alcohol when socializing with friends, and he smoked marijuana both alone and with friends. Appellant recognized that his use of marijuana was leading to problems with his mental health. He felt depressed while using marijuana and asked his mother for assistance. Appellant’s mother arranged for appellant to participate in substance abuse counseling at school and outpatient therapy sessions at a private facility. Appellant reported that with the help of school counseling he had been able to stop using marijuana for four months. He also participated in outpatient treatment during the summer of 2016 for depression caused by his use of marijuana. After his detention in this case in February 2017, appellant was prescribed medication for depression. At the time of his interview with the probation department in March 2017, appellant still drank alcohol on a weekly basis. In the case summary, assessment and plan for appellant, the probation department officer recommended that the court adjudge appellant a ward of the court and place him under the supervision of the probation department, which would allow for “drug testing,” “search and seizure,” “gang terms,” and monitoring of appellant’s school records and attendance. The probation department officer also recommended that appellant be encouraged to participate in alcohol and drug treatment services and mental health services.
At the dispositional hearing, the juvenile court adjudged appellant to be a ward of the court and placed him on probation. In addition to standard conditions of probation, the court imposed certain terms and conditions regarding substance use and gang-related activities. Appellant’s counsel urged the court to strike the gang terms and conditions and a separate electronic search condition. The court initially stated the gang terms and conditions, which were aimed at aiding appellant in avoiding gang-related activities, were proper. But, the court agreed to delete the electronic search condition because there was insufficient evidence of appellant’s gang membership that would allow for that level of intrusion into his privacy. In response to the court’s ruling, the probation department officer noted that “the phone term is not part of the gang terms. It also applies to . . . drug use, and ability to detect them.” When the court commented there were no drug charges in the case, both the probation department officer and the deputy district attorney noted that appellant had admitted to using marijuana and alcohol. The court then stated that appellant’s admission of marijuana and alcohol use made it appropriate to impose an electronic search condition because “it is common to use certain devices to obtain them.” To which appellant’s counsel replied, the probation department could monitor appellant’s substance use by requiring him to submit to drug testing “without an electronic search condition.” Following further argument by the deputy district attorney regarding the probation department’s general right to search electronic devices, the court ruled: “I’ll follow the probation recommendation, even though I expressed concerns about them. Because I think that there’s enough reason to be concerned that [appellant] is associating with gang members, and drawn into that, and ought not to have any signs of that occurring. [¶] Also, if he’s admitting using substances that are harmful or illegal, it is also indicated that he has to somehow obtain those, and probation should look for that, as well.”
DISCUSSION
Appellant contends the juvenile court abused its discretion in imposing the electronic search condition as it was invalid under Lent. We agree with appellant’s contention and, accordingly, grant his request to strike the condition in its entirety.
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.” “In distinguishing between the permissible exercise of discretion in probationary sentencing by the juvenile court and that allowed in ‘adult’ court, [our Supreme Court has] advised that, ‘[a]lthough 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 . . . .” [¶] In light of this 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. . . .’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Nonetheless, “[w]hile the juvenile court’s discretion is broad, it is not unlimited. Our Supreme Court in Lent stated the criteria for assessing the validity of a condition of probation [applicable for an adult probationer].” (In re Erica R. (2015) 240 Cal.App.4th 907, 912.) 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.) “The Lent test is conjunctive—all three prongs must be satisfied before we will invalidate a term of probation. [Citation.]” (In re Erica R., supra, at p. 912.) 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. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379–380 (Olguin).) “Courts have ‘consistently held that juvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent. [Citations.]” (In re Erica R., supra, at p. 912.)
We initially conclude the first two Lent factors are met in this case. The challenged electronic search condition has no relationship to the crime of disturbing the peace or the manner in which appellant committed the offense, and the use of a cellular telephone or other electronic device “is not itself criminal.” (In re J.B. (2015) 242 Cal.App.4th 749, 754–755.) Thus, the dispositive issue before us is the third Lent factor—whether or not the electronic search condition is reasonably related to preventing appellant’s future criminality. For the reasons explained below, we conclude the third Lent factor has been met in this case because the record demonstrates that the electronic search condition is not reasonably related to preventing appellant from committing future criminal acts.
In re Erica R., supra, 240 Cal.App.4th 907, is both instructive and dispositive. In that case, the appellate court was asked to consider the reasonableness of a probation condition requiring Erica, who admitted to possessing ecstasy, to submit to a search of her “ ‘electronics’ ” and provide her passwords to her probation officer. (Id. at p. 910.) Erica had not used any electronic device to commit the offense, and her counsel represented that Erica did not have a cellular telephone. (Ibid.) Nonetheless, the juvenile court imposed the electronic search condition because in the court’s experience, “ ‘many juveniles, many minors, who are involved in drugs tend to post information about themselves and drug usage.’ ” (Id. at pp. 910, 913.) In concluding that the imposition of the electronic search condition was not reasonably related to preventing Erica’s future criminality, our colleagues in Division Two explained: “ ‘[N]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable.’ [Citation.] There is nothing in this record regarding either the current offense or Erica’s social history that connects her use of electronic devices or social media to illegal drugs. In fact, the record is wholly silent about Erica’s usage of electronic devices or social media. Accordingly, ‘[b]ecause there is nothing in [Erica’s] past or current offenses or [her] personal history that demonstrates a predisposition’ to utilize electronic devices or social media in connection with criminal activity, ‘there is no reason to believe the current restriction will serve the rehabilitative function of precluding [Erica] from any future criminal acts.’ ” (Id. at p. 913, quoting In re D.G. (2010) 187 Cal.App.4th 47, 53.)
In In re J.B., supra, 242 Cal.App.4th 749, we followed In re Erica R. in a case where the juvenile had admitted to committing a petty theft. (Id. at p. 752.) We found that “[b]ecause there was no evidence connecting the juvenile’s electronic device or social media usage to his offense or to a risk of future criminal conduct,” the electronic search condition was unreasonable under Lent. (Ibid.) In so concluding, we declined to follow decisions that upheld an electronic search condition imposed on juveniles where the condition had no relationship to the crimes they had committed but was found by the appellate courts to be justified as reasonably related to future criminality under Olguin, supra, 45 Cal.4th 375, because it would facilitate the juveniles’ supervision. (See In re Ricardo P. (2015) 241 Cal.App.4th 676; In re Patrick F. (2015) 242 Cal.App.4th 104.) We explained our disagreement in the following mannner: “[W]e question whether the Supreme Court decision in People v. Olguin (2008) 45 Cal.4th 375 . . . justifies a probation condition that facilitates general supervision of a ward’s activities if the condition requires or forbids noncriminal conduct bearing no relation to the minor’s offense that is not reasonably related to potential future criminality as demonstrated by the minor’s history and prior misconduct. In our view, such a broad condition cannot be squared with the limitations imposed by Lent, supra, 15 Cal.3d at page 486, and in some cases may exceed constitutional limitations. [Citation.] [¶] In Olguin, the Supreme Court upheld an adult probation condition requiring the defendant to inform his probation officer of the presence of pets at his residence. The court held the condition to be ‘reasonably related to future criminality because it serves to inform and protect a probation officer charged with supervising a probationer’s compliance with specific conditions of probation.’ (People v. Olguin, supra, 45 Cal.4th at p. 381.) However, citing Lent, the Olguin court reiterated that ‘the relevant test is reasonableness [citation], and defendant does not persuasively explain why it is unreasonable to place the burden on defendant to keep the probation officer informed of the presence of any pets at the residence.’ (Id. at pp. 383–384.) To the contrary, the court observed that ‘[r]eporting the presence of pets to a probation officer is a simple task, imposes no undue hardship or burden, and is a requirement that clearly falls within the bounds of reason.’ (Id. at p. 382.) The court there had no occasion to consider the reasonableness of requiring a probationary minor to submit all of his electronic devices to inspection without any evidence or indication that the minor was likely to use the devices for unlawful or other proscribed activity. The Supreme Court certainly was not considering any of the privacy concerns articulated in Riley v. California (2014) 573 U.S. ___ [189 L.Ed.2d 430, 134 S.Ct. 2473] and in In re Malik J. [(2015)] 240 Cal.App.4th 896. [¶] In addition, People v. Olguin, supra, 45 Cal.4th 375 involved an adult probationer. As the court in [Erica R.] observed, the significant differences between adult and juvenile probationers prohibit imposition of an automatic search term and require that search conditions be tailored to fit the rehabilitative needs of the minor. (In re Erica R., supra, 240 Cal.App.4th at p. 914; see Welf. & Inst. Code, § 730.) The fact that a search condition would facilitate general oversight of the individual’s activities is insufficient to justify an open-ended search condition permitting review of all information contained or accessible on the minor’s smart phone or other electronic devices.” (In re J.B., supra, 242 Cal.App.4th at pp. 757–758.)
For the same reasons expressed in In re J.B. and by our colleagues in In re Erica R., we conclude that in this case the imposition of an electronic search condition is not reasonably related to preventing appellant’s future criminality. The record shows that the juvenile court explicitly expressed its concern that the information regarding appellant’s association with gang members was not sufficient to warrant the electronic search condition, and the probation department officer confirmed that the electronic search condition was not part of the gang terms but was recommended to monitor his drug use. The juvenile court then found that imposition of the electronic search condition could be justified because electronic devices are commonly used to obtain illegal drugs. However, there is nothing in the record regarding either appellant’s past conduct or his social history that relates the use of electronic devices to his use of alcohol and marijuana or, for that matter, any criminal activity. The only mention of appellant’s use of a cellular telephone was his probation department interview comment that his cellular telephone was not activated if he disobeyed his parents’ house rules. There is no evidence that appellant used his cellular telephone or any other electronic device to obtain marijuana or alcohol or to commit, facilitate, or promote any criminal conduct. To the contrary, on this record, the juvenile court’s apparent suggestion that appellant might use his cellular phone or another electronic device to secure illegal drugs in the future is mere speculation. (But see In re P.O., supra, 246 Cal.App.4th at p. 295 [where juvenile’s offense was for public intoxication, appellate court could not say that “juvenile court’s given reason for imposing the [electronic search] condition—that minors are apt to use electronic devices to show off their drug use or ability to procure drugs—was speculative or otherwise constituted an abuse of discretion”].) Accordingly, because “there is no showing of any connection between [appellant’s] use of electronic devices and his past or potential future criminal activity” (In re J.B., supra, 242 Cal.App.4th at p. 756), which “ ‘demonstrates a predisposition’ to utilize electronic devices . . . in connection with criminal activity, ‘there is no reason to believe the current restriction will serve the rehabilitative function of precluding [him] from any future criminal acts’ ” (In re Erica R., supra, 240 Cal.App.4th at p. 913).
We therefore conclude that, under the circumstance in this case, the juvenile court’s imposition of the electronic search condition was invalid under Lent. We modify the dispositional order by striking the electronic search condition, and in all other respects, we affirm.
DISPOSITION
The dispositional order is modified by striking therefrom the probation condition which states: “22. The minor submit all electronic devices under their 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. Contraband seized by the probation officer shall be disposed of, stored or returned at the discretion of the probation officer[.]” In all other respects the dispositional order is affirmed. 


_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, Acting P.J.*


_________________________
Pollak, J.





















A150992/In re B.J.