People v. J.L. (In re J.L.)

In re J.L., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. J.L., Defendant and Appellant.

H043273

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

June 15, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. 3-15-JV-141105)

Multiple wardship petitions were filed against J.L. (minor). After minor was terminated from the deferred entry of judgment (DEJ) program, the juvenile court found that he came within the provisions of Welfare and Institutions Code section 602¹ and adjudged him a ward of the court (§ 725, subd. (b)).

On appeal from the judgment (§ 800, subd. (a)), minor raises an insufficiency of the evidence claim against the juvenile court's finding that he violated Vehicle Code section 20002, subdivision (b), as alleged in count 2 of the petition filed on June 2, 2015. He also attacks probation conditions requiring him to submit his electronic devices and his social media sites to warrantless searches and to provide his passwords thereto asconstitutionally overbroad.² Minor does not challenge the substantiality of the evidence supporting the juvenile court's findings as to the truth of other allegations contained in that petition, the propriety of its determination that he comes within the provisions of section 602, or the propriety of its declaration making him a ward of the court.

We conclude that the evidence is insufficient to support the court's true finding as to the allegations of count 2 and that finding must be vacated. In our view, the challenged probation conditions are not constitutionally overbroad on their face.

IProcedural History

In a juvenile wardship petition filed on February 19, 2015 (Petition A), it was alleged that minor possessed a dirk or a dagger in violation of Penal Code section 21310, a felony, on or about February 14, 2015. The probation officer's detention hearing report indicated that police officers responded to a report of a gang fight involving a person with a machete. When officers made contact with minor, they found a machete with a 10-inch blade in minor's pants pocket. He told the officers that he hung out with Sureños, hepossessed the weapon for protection, he had just been "checked" by individuals who he believed intended to harm him, and that he was "having 'a little bit of problems' with Nortenos." After further inquiry regarding gang activity, he admitted that he "bang[s]." Minor also admitted that he had not attended high school in a couple of months.

Following a determination that minor was eligible for DEJ (§ 790), minor admitted the offense. The probation officer's suitability hearing report found minor suitable for DEJ, although the officer expressed some hesitation in making that finding because of minor's evasiveness about his gang activity. The court found that minor was suitable for DEJ (§ 790), and it issued a DEJ order, requiring minor to comply with the DEJ program contract, which minor signed. The contract's conditions required, among other things, that minor engage in "pro-social activities" and gang intervention services, and they forbid gang clothing, gestures and tattoos.

A second juvenile wardship petition was filed on April 16, 2015 (Petition B). It alleged that minor had violated Vehicle Code section 10851, subdivision (a), by driving and taking a vehicle, a Honda, without the owner's consent on or about April 14, 2015.

The probation officer's detention hearing report, filed April 17, 2015, indicated that, when law enforcement attempted to stop a stolen green Honda Accord, the driver accelerated and unsuccessfully attempted to flee. The driver and two passengers, including minor who was in the back seat, were taken into custody. Minor and the other passenger admitted they were Sureño gang members. Minor was found in possession of a blue handkerchief bandana; he was wearing a blue rosary around his neck and a black San Jose Sharks beanie. The driver, who admitted associating with Sureño gang members, had a concealed knife. A "modified key" was found on the driver's seat. The front-seat passenger had gang-related tattoos, including the tattoo "VST," an abbreviation for the criminal street gang Varrio Sureño Town. He was "found in possession of an engine oil stick stem (commonly used to pass vehicle ignition switches)."

The April 2017 detention report further disclosed that minor enrolled in a high school in early March 2017. He was referred to California Youth Outreach for gang intervention services on March 17, 2015. Minor refused to submit to a urinalysis on March 24, 2015. Minor was suspended from school after he was found in possession of marijuana and a locking blade knife on campus on April 2, 2015. On April 15, 2015, Deputy Probation Officer Sam Conerly with the Juvenile Probation Department's gang unit reported to minor's supervising probation officer that "minor had been seen with validated Vario Mexicano Locos (VML) members in the past few months . . . ." Although minor was referred to the school district for placement, he had failed to report as directed. Minor's probation officer requested that the court fail minor from the DEJ program and sustain Petition A.

At the detention hearing, the court detained minor in secure custody.

The report of minor's probation officer for the DEJ "Parte Review" hearing stated that the District Attorney had dismissed Petition B for insufficient evidence and that minor had been released from juvenile hall on April 28, 2015. Minor's case had been accepted into the gang unit for supervision. It had been reported to the minor's probation officer that minor had been the victim of a gang assault by "two Norteno neighbors," one of whom had a knife, in front of minor's residence on April 29, 2015. The new recommendation was to allow minor to continue on the DEJ program and to review the matter in three months.

At the DEJ "Parte Review" hearing on May 11, 2015, the court continued the matter to August 10, 2015 for further review.

On June 2, 2015, a third juvenile wardship petition (Petition C) was filed. It alleged that minor had committed three crimes on or about May 29, 2015: (1) a violation of Vehicle Code section 10851, subdivision (a), by driving and taking a vehicle, a Honda, without the owner's consent (count 1); (2) a violation of Vehicle Code section 20002, subdivision (b), by failing to comply with the requirements of its subdivision (a)(notification and reporting) after the vehicle he parked, "became a runaway vehicle," and was "involved in an accident resulting in damage to property" (count 2); and (3) a violation of Penal Code section 148, subdivision (a)(1), by willfully resisting, delaying and obstructing a peace officer (count 3).

Following the detention hearing, the court ordered minor detained in secure custody, but authorized probation to release minor on cell phone EMP (electronic monitoring program), provided specified services were in place.

The report of Probation Officer Conerly, dated August 10, 2015, indicated that the minor's case had been transferred to the gang unit in May 2015 due to minor's continued gang activity. It indicated that minor had been involved in a gang-related fight with another student off campus, that he had been caught with a gang-related drawing at school, and that minor had been suspended from his latest school.

An EMP memorandum report, dated August 20, 2015, reported that minor was compliant with the EMP, which he began on June 10, 2015. Minor was attending high school, and the six drugs tests to which minor had submitted while in the program were negative. But an EMP memorandum report, dated September 9, 2015, reported that minor tested positive for marijuana on August 31, 2015. An EMP memorandum report, dated October 20, 2015, reported that minor had submitted four clean drug tests and was compliant with the program.

A contested jurisdiction hearing was held on December 1, 2015. The court found the allegations of Petition C were true beyond a reasonable doubt as to all counts. The court deemed minor to have failed the DEJ program and sustained Petition A.

The probation officer's report, filed December 28, 2015, described the circumstances of minor's offenses under Petition C. On May 29, 2015, police responded to the report of a firearm being discharged. Upon arriving to scene, officers saw a stolen Honda Accord being driven by minor, who then began driving at a high rate of speed in an attempt to avoid the officers. Minor exited the vehicle and unsuccessfully attemptedto flee on foot. Officers were unable to locate the front-seat passenger, but they did apprehend the back-seat passenger.

The report stated that, according to school records, minor had not been attending high school for weeks. It disclosed that, when minor was attending school, he had been "involved in some gang tension" there. Minor reportedly had often worn blue shoes to school and had been seen antagonizing rival gang members there. The report described minor as "heavily gang entrenched" based on his "recent behavior, school attendance, style of dress, and associates." The report recommended that the court adjudge minor a ward of the court and impose "full Gang Orders" "[d]ue to [minor's] delinquent peer association with Sureno gang members and associates."

At the disposition hearing on December 28, 2015, the court declared minor a ward of the court and adopted the recommended findings and orders set forth in the probation report dated December 28, 2015. The court ordered minor to serve 60 actual days on cell phone EMP. It returned minor to parental custody under the supervision of the probation officer under...