People v. P.O. (In re P.O.)

246 Cal.App.4th 288

200 Cal.Rptr.3d 841

IN RE P.O., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.P.O., Defendant and Appellant.

A145284

Court of Appeal, First District, Division 1, California.

Filed April 5, 2016

Counsel for Appellant: Jeremy Price, By appointment of the Court of Appeal under the First District Appellate Project

Counsel for Respondent: Kamala D. Harris, Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Hanna Chung, Deputy Attorney General.

Humes, P.J.P.O. appeals from a juvenile court order declaring him a ward of the court and placing him on probation after he admitted to a misdemeanor count of public intoxication. He claims that a condition of his probation requiring him to submit to warrantless searches of his "electronics including passwords" is unreasonable under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent ) and unconstitutionally overbroad.

Most of the appellate divisions in the First District Court of Appeal agree that such a probation condition cannot be upheld, but they disagree over whether such a condition is reasonably related to future criminality under Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545. We are aware of three decisions, including two from this division, holding that similar conditions were reasonable under Lent but unconstitutionally overbroad. Our state Supreme Court has granted the minors' requests for review in those cases. (In re Alejandro R. (2015) 243 Cal.App.4th 556, 196 Cal.Rptr.3d 651, review granted Mar. 9, 2016, S232240; In re Patrick F. (2015) 242 Cal.App.4th 104, 194 Cal.Rptr.3d 847, review granted Feb. 17, 2016, S231428; In re Ricardo P. (2015) 241 Cal.App.4th 676, 193 Cal.Rptr.3d 883, review granted Feb. 17, 2016, S230923.) The most recent published decision on this issue held that a similar condition was neither unreasonable under Lent nor overbroad in light of the unusual severity of the challenges the minor faced in avoiding reoffense. (In re A.S. (2016) 245 Cal.App.4th 758, 200 Cal.Rptr.3d 100.) Finally, other published decisions have held that similar conditions were not reasonably related to future criminality under Lent, and as far as we are aware, the Attorney General has sought review in only the most recent of those cases. (In re Mark C. (2016) 244 Cal.App.4th 520, 197 Cal.Rptr.3d 865 (Mark C. ), petn. for review pending, petn. filed Mar. 4, 2016; In re J.B. (2015) 242 Cal.App.4th 749, 195 Cal.Rptr.3d 589 ; In re Erica R. (2015) 240 Cal.App.4th 907, 192 Cal.Rptr.3d 919.)

We conclude that the probation condition challenged here satisfies Lent,supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 but is nonetheless overbroad and must be modified. We also agree with P.O. that two other conditions, one requiring him to "be of good behavior and perform well" at school or work and another requiring him to "be of good citizenship and good conduct" are unconstitutionally vague, and we strike them. (Capitalization omitted.) As so modified, the juvenile court's order is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2014, the principal of P.O.'s Pleasanton high school observed that P.O., who was 17 years old at the time, appeared to be under the influence of drugs.¹ P.O. admitted to using hashish oil earlier that morning, and a search revealed 11 tablets of Xanax in his pockets.

A few months later, the Alameda County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) seeking to have P.O. declared a ward of the court. The petition alleged one misdemeanor count of unlawful possession of a controlled substance, and P.O. ultimately admitted to an amended allegation that he committed a misdemeanor count of public intoxication.²

At the dispositional hearing, the juvenile court declared P.O. a ward of the court and placed him on probation with various conditions, three of which are at issue in this appeal. The first requires him to "[s]ubmit person and any vehicle, room[,] or property, electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night."³ We shall refer to the portion of this condition permitting searches of "electronics including passwords" as the electronics search condition. The other two require him to "attend classes or job on time and regularly; be of good behavior and perform well" and "be of good citizenship and good conduct."⁴ (Capitalization omitted.) We shall refer to these conditions as the good-behavior conditions. A number of other conditions that P.O. does not challenge were also imposed, including conditions that he not use or possess illegal drugs, not "associate with anyone [he] know[s] to use, deal[,] or possess illegal drugs," and submit to drug testing.

P.O. objected to the electronics search condition on the basis that there was no evidence to suggest he was buying or selling drugs. In response, the juvenile court emphasized the need to help P.O. avoid substance abuse. It then stated, "[T]o properly supervise these drug conditions, we need to go on your web sites, check what you may be presenting as far as your ability to purchase, to sell drugs, your ability to—we have people who present themselves on the Internet using drugs or ... in possession of paraphernalia, and that's the only way we can properly supervise these conditions[.]"

II. DISCUSSION

A. Although Reasonable Under Lent, the Electronics Search Condition Is Unconstitutionally Overbroad.

P.O. claims the electronics search condition is (1) unreasonable under People v. Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 and (2) unconstitutionally overbroad. We disagree with his first contention but agree with his second.

1. The electronics search condition is reasonably related to future criminality.

When a minor is made a ward of the juvenile court and placed on probation, the court "may 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." (Welf. & Inst. Code, § 730, subd. (b) ; see also id., § 202, subd. (b).) " ‘In fashioning the conditions of probation, the ... court should consider the minor's entire social history in addition to the circumstances of the crime.’ " (In re R.V. (2009) 171 Cal.App.4th 239, 246, 89 Cal.Rptr.3d 702.) The court has "broad discretion to fashion conditions of probation" ( In re Josh W. (1997) 55 Cal.App.4th 1, 5, 63 Cal.Rptr.2d 701 ), although "every juvenile probation condition must be made to fit the circumstances and the minor." (In re Binh L. (1992) 5 Cal.App.4th 194, 203, 6 Cal.Rptr.2d 678.) We review the imposition of a probation condition for an abuse of discretion (People v. Olguin (2008) 45 Cal.4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1 (Olguin )), taking into account "the sentencing court's stated purpose in imposing it." (People v. Fritchey (1992) 2 Cal.App.4th 829, 837, 3 Cal.Rptr.2d 585.)

A juvenile court's discretion to impose probation conditions is broad, but it has limits. (In re D.G. (2010) 187 Cal.App.4th 47, 52, 113 Cal.Rptr.3d 639.) Under Lent, which applies to both juvenile and adult probationers, a 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, 124 Cal.Rptr. 905, 541 P.2d 545 ; In re Josh W., supra, 55 Cal.App.4th at pp. 5–6, 63 Cal.Rptr.2d 701.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, supra, 45 Cal.4th at p. 379, 87 Cal.Rptr.3d 199, 198 P.3d 1.)

Although the Attorney General does not raise the issue, we question whether P.O. preserved this claim. He objected below to the electronics search condition, but he did not specify his basis for doing so. The failure to object that a probation condition is unreasonable under Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 generally forfeits the contention on appeal. (In re Vincent G. (2008) 162 Cal.App.4th 238, 246, 75 Cal.Rptr.3d 526 ; see also People v. Welch (1993) 5 Cal.4th 228, 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.) Even assuming the claim is preserved, however, we reject it on the merits. Although the electronics search condition satisfies the first two prongs under Lent required to invalidate a condition, it does not satisfy the third.

The first prong under Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 that must be met to invalidate a probation condition requires the condition to have no relationship to the offender's crime. P.O. argues that the electronics search condition has no relationship to his crime because the record contains no evidence about his use of electronic devices, much less his use of "electronics or social media to display drug use." The Attorney General effectively concedes that the first prong is met, and we agree that the challenged condition has no relationship to P.O.'s crime of being intoxicated in public.

The second prong required to invalidate a probation condition—that the condition relates to conduct that is not itself criminal—is also met here, because there is nothing inherently illegal about using electronic devices. (In re Erica R., supra, 240 Cal.App.4th at p. 913, 192 Cal.Rptr.3d 919.) The Attorney General agrees that "as a general matter, using electronic devices is not illegal," and she does not contest that the second prong is met.

We conclude that the third prong required to invalidate a probation condition is not met, however, because the electronics search condition is reasonably related to future criminality. Under O...