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

• Decision Date: 20 July 2016
• Docket Number: A145399
• Citation: 1 Cal.App.5th 795,205 Cal.Rptr.3d 28
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE J.E., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. J.E., Defendant and Appellant.

1 Cal.App.5th 795

205 Cal.Rptr.3d 28

IN RE J.E., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent

v.J.E., Defendant and Appellant.

A145399

Court of Appeal, First District, Division 4, California.

Filed July 20, 2016

Counsel for Defendant & Appellant: Sejal H. Patel, by appointment of the Court of Appeal under the First District Appellate Project.

Counsel for Plaintiff & Respondent: Kamala D. Harris, Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Donna M. Provenzano, Supervising Deputy Attorney General; Hanna Chung, Deputy Attorney General.

Rivera, J. J.E. (Minor) appeals from a post-dispositional order denying his motion to remove an electronic search probation condition imposed upon his plea to misdemeanor second degree burglary (Pen. Code,¹ § 459 ). Minor contends the probation condition requiring him to submit his electronic devices to search upon the request of a probation officer or peace officer is invalid under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent ). He also contends the condition is unconstitutionally overbroad and that it risks violating California's Invasion of Privacy Act (§ 632). We affirm.

I. FACTUAL BACKGROUND²

The underlying factual basis for the plea stemmed from Minor's involvement in a burglary with two of his friends. They entered an Oakland home through a back window and rear door and took a watch, a camera, and loose change from a large jar. A neighbor reported the burglary, and Minor and his friends were apprehended a few blocks away. Upon his arrest, the police found approximately $50 in loose change in Minor's backpack.

The dispositional hearing was held on March 19, 2015. The dispositional report noted that Minor had a “difficult” relationship with his mother after previously residing with his grandmother and that Minor admitted he had experimented with drugs and alcohol in the past; Minor began smoking marijuana when he was nine years old and had begun smoking it almost daily, including the date of his arrest.³ He began drinking alcohol approximately a year earlier, but reported his last drink had been on Christmas 2014. Minor also experimented with Xanax and “syrup,” a mixture of codeine cough syrup, soda, and Jolly Ranchers, in summer of 2014. Minor denied involvement in gangs, but said he associated with members of the Norteños gang a year prior to his arrest.

Additionally, the dispositional report showed Minor was in danger of failing most of his middle school classes. Minor did not turn in class work or attend his classes regularly. He also had various suspensions and reprimands for behavioral issues, including refusing to go to his workshops after class, cursing at the school principal and his staff, taking a knife and other contraband to school, and having gang-related graffiti in his locker; matching graffiti was also found on the wall around the corner from Minor's locker.

The juvenile court placed Minor under the supervision of the probation department and imposed various probation conditions, including a 6:00 p.m. curfew, a no-contact order as to the victim and Minor's co-offenders, and conditions that Minor be on time and attend school on a regular basis, complete his school work, remain drug-free, submit to regular drug testing, and submit to a search of his person, residence, vehicles, containers, and “electronics, including passwords, at the request of a Probation Officer or peace officer.” Counsel for Minor objected to the electronic search condition and indicated that she would file a motion on the issue.

On April 3, 2015, Minor filed a motion to delete the electronic search condition. He argued the condition was invalid because “there is absolutely no evidence in the record to support the conclusion that the minor's use of an electronic device and/or social media account was either one of the reasons that the minor committed the instant offense, or that requiring the minor to submit to a warrantless search of the minor's electronic devices and/or social media accounts would in any way prevent the minor from committing an offense in the future.”

On April 28, 2015, the juvenile court held a hearing to address Minor's progress. The court expressed concerns over Minor testing positive for THC, as well as Minor's failing grades in school.

On May 29, 2015, the court denied Minor's motion to delete the electronic search condition. The court reasoned that Minor was “a classic case of why the electronic [search] condition is a necessity [because], as was basically alluded to, he has some fairly substantial drug issues.” The court further stated, “The Court is very well aware, from experience, that our minors typically communicate much more with their electronics than they do face-to-face. In fact, it's very typical to see minors sitting at a table together, and they're on their electronics.... So, clearly their main method of communication is through the electronics.

“[I]f we can ... supervise the minor, we need to use the electronics to make sure we can monitor the purchase, or sales, usage [of drugs]. There's a lot of minors who like to put the photographs of themselves on the internet, showing themselves with marijuana, with paraphernalia, smoking marijuana, smoking drugs, using other drugs. [¶] So, this is a really critical element in our ability to supervise our minors, and this is from the Court's experience with minors, experience with adult[s], but more particularly with minors. [¶] If we're going to, at all, ever be able to supervise the minor appropriately with drug conditions, we need to be able to have access to their electronics, including their passwords, and any—and other internet source of communication that they use.”

II. DISCUSSION

A. Validity Under Lent

The juvenile court has broad discretion in imposing probation conditions it determines are “fitting and proper to the end that justice may be done and the reformation and rehabilitation of the [minor] enhanced.” (Welf. & Inst. Code, § 730, subd. (b) ; In re Victor L. (2010) 182 Cal.App.4th 902, 910, 106 Cal.Rptr.3d 584.) 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 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 Babak S. (1993) 18 Cal.App.4th 1077, 1084, 22 Cal.Rptr.2d 893.) Thus, a probation condition forbidding conduct which is not itself criminal is valid only if that conduct is reasonably related either to the crime which the minor committed or to the minor's future criminality. (In re Babak S. , at p. 1084, 22 Cal.Rptr.2d 893.) We review probation conditions for abuse of discretion. (In re J.B. (2015) 242 Cal.App.4th 749, 754, 195 Cal.Rptr.3d 589.)

The issue of whether an electronic search probation condition may be imposed upon a juvenile when that condition has no relationship to the crimes committed is currently pending before our Supreme Court.⁴ Electronic search conditions nearly identical to those imposed here were also challenged in several cases within this appellate district. The condition was stricken as invalid under Lent by Division Two in In re Erica R . (2015) 240 Cal.App.4th 907, 192 Cal.Rptr.3d 919 (Erica R. ) after the court found no reasonable connection between the search condition and the juvenile's future criminality. Division Three, in In re J.B., supra, 242 Cal.App.4th 749, 195 Cal.Rptr.3d 589, struck the condition as invalid under Lent and constitutionally overbroad, and, in In re Malik J . (2015) 240 Cal.App.4th 896, 901–903, 193 Cal.Rptr.3d 370, found the condition valid under Lent, but modified it to alleviate its overbreadth. Division One, in In re P.O. (2016) 246 Cal.App.4th 288, 200 Cal.Rptr.3d 841 (P.O. ), likewise found the condition valid under Lent and modified the condition to address its overbreadth.

Here, Minor argues the juvenile court erred in imposing the electronic search condition because the condition is not related to the underlying burglary offense, regulates conduct that is not illegal, and is not reasonably related to his future criminality. The Attorney General concedes the condition is not related to the underlying offense and that the regulated conduct is not criminal, but argues the condition is reasonably related to deterring Minor's future criminality because it allows probation officers to monitor Minor's adherence to his other probation conditions. We agree.

People v. Olguin (2008) 45 Cal.4th 375, 87 Cal.Rptr.3d 199, 198 P.3d 1 (Olguin ) and People v. Ebertowski (2014) 228 Cal.App.4th 1170, 176 Cal.Rptr.3d 413 (Ebertowski ) are instructive. In Olguin, our Supreme Court upheld a probation condition requiring the defendant to inform his probation officer of any pets in his residence. The defendant challenged the condition as invalid under Lent, arguing that pet ownership was not reasonably related to his crime or his future criminality. (Olguin , at p. 380, 87 Cal.Rptr.3d 199, 198 P.3d 1.) Our high court disagreed, explaining that “[p]robation officers are charged with supervising probationers' compliance with the specific terms of their probation to ensure the safety of the public and the rehabilitation of probationers. Pets residing with probationers have the potential to distract, impede, and endanger probation officers in the exercise of their supervisory duties. By mandating that probation officers be kept informed of the presence of [pets], this notification condition facilitates the effective supervision of probationers and, as such, is reasonably related to deterring future criminality.” (Id. at p. 378, 87 Cal.Rptr.3d 199, 198 P.3d 1.)

In Ebertowski, supra, 228 Cal.App.4th 1170, 176 Cal.Rptr.3d 413, our colleagues in the Sixth Appellate District applied similar...