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

• Decision Date: 22 October 2015
• Docket Number: A144149.
• Citation: 241 Cal.App.4th 676
• Parties: In re RICARDO P., a Person Coming Under the Juvenile Court Law.THE PEOPLE, Plaintiff and Respondent, v. RICARDO P., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

241 Cal.App.4th 676

In re RICARDO P., a Person Coming Under the Juvenile Court Law.THE PEOPLE, Plaintiff and Respondent,

v.RICARDO P., Defendant and Appellant.

No. A144149.

Court of Appeals of California, First District, Division One.

October 22, 2015.

Megan Hailey-Dunsheath , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Jeffrey M. Laurence , Acting Assistant Attorney General, Donna M. Provenzano and Ronald E. Niver , Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HUMES, P. J.

Ricardo P. appeals from a juvenile court order finding that he committed two felony counts of first degree burglary, declaring him to be a ward of the court, and placing him on probation. One of his probation conditions requires him to submit to warrantless searches of his "electronics including passwords." He challenges this condition on the grounds that it (1) permits illegal eavesdropping under Penal Code section 632, (2) is not reasonable under People v. Lent (1975) 15 Cal.3d 481 [124 Cal.Rptr. 905, 541 P.2d 545] (Lent), and (3) is unconstitutionally overbroad.¹

Several appeals are pending in this court that involve challenges to similar conditions imposed by the same Alameda County juvenile court.² And three other divisions recently issued opinions, two of which were published, addressing the legality of these types of conditions. In one of the published opinions, Division Two held that a probation condition requiring a juvenile to submit to warrantless searches of her "electronics" and provide her "passwords" to her probation officer was invalid under Lent, supra, 15 Cal.3d 481.

(In re Erica R. (2015) 240 Cal.App.4th 907, 910-911 [___ Cal.Rptr.3d ___] (Erica R.).) In the other published opinion, Division Three held that a probation condition requiring a juvenile to submit to warrantless searches of his "electronic devices" and provide "passwords" to those devices and social media sites was unconstitutionally overbroad.³ (In re Malik J. (2015) 240 Cal.App.4th 896, 899-900 [___ Cal.Rptr.3d ___] (Malik J.).)

Although we employ different reasoning, we agree with our colleagues that a probation condition requiring, without limitation, a juvenile to submit to warrantless searches of electronic devices and accounts cannot be sustained. Although Ricardo's condition does not run afoul of either section 632 or Lent, supra, 15 Cal.3d 481, it is overbroad because it infringes on his rights to privacy and expression without being sufficiently tailored. We therefore strike the condition and remand to the juvenile court for it to tailor a condition to Ricardo's particular circumstances. We otherwise affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 2014, when he was almost 18 years old, Ricardo and two adults broke into two homes in San Jose.⁴ They were chased out of the first home before they could take anything. A few hours later, they stole costume jewelry from the second home, and all three were soon apprehended.

Several months later, the Santa Clara County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) seeking to have Ricardo declared a ward of the court. The petition alleged two felony counts of first degree burglary.⁵ After Ricardo admitted the petition's allegations, the case was transferred to Alameda County for disposition.

At the dispositional hearing, the juvenile court declared Ricardo a ward of the court and placed him on probation with various conditions. These included conditions prohibiting him from using or possessing controlled substances, associating with people he "know[s] to use, deal[,] or possess illegal drugs," and having any contact with the two adult coparticipants in the burglaries. Additional conditions were imposed to facilitate monitoring of Ricardo's compliance with the terms of his probation. These included conditions requiring him to submit to drug testing and 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."⁶ We shall refer to the portion of the latter condition permitting searches of "electronics including passwords" as the electronics search condition.⁷

Ricardo objected to the drug-related conditions on the basis there was no evidence he used drugs. In response, the juvenile court cited the following language from the dispositional report: "In regards to the present offense, the minor reported he wasn't thinking. He continued by saying that he stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly." When Ricardo then objected to the electronics search condition, the court responded, "I think the law is very clear that [such a condition] is appropriate[,] . . . particularly [for] minors or people that are [Ricardo's] age. I find that minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana. It's a very important part of being able to monitor drug usage and particularly marijuana usage."

II. DISCUSSION

A. The Meaning of the Electronics Search Condition.

(1) Before discussing the merits of Ricardo's claims, we address how the electronics search condition should be construed.⁸ In interpreting a probation condition, we rely on "context and common sense" (In re Ramon M. (2009) 178 Cal.App.4th 665, 677 ) and give the condition "`the meaning that would appear to a reasonable, objective reader'" (People v. Olguin (2008) 45 Cal.4th 375, 382 [87 Cal.Rptr.3d 199, 198 P.3d 1] (Olguin)). We may also consider any of the juvenile court's "additional oral or written comments clarifying" the condition. (In re Sheena K. (2007) 40 Cal.4th 875, 891 [55 Cal.Rptr.3d 716, 153 P.3d 282] (Sheena K.).)

The word "electronics" in the electronics search condition is most fittingly defined as "electronic devices." (Merriam-Webster's Collegiate Dict. (11th ed. 2003) p. 402; American Heritage Dict. (4th ed. 2000) p. 576; see Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1122 [29 Cal.Rptr.3d 262, 112 P.3d 647] [courts may rely on dictionaries "to ascertain the ordinary, usual meaning of a word"].) The parties agree that the word covers "electronic devices," and they agree that it should be construed to include both the physical device and the data contained on the device. This construction makes sense. If the term "electronics" did not include data, it would be redundant since Ricardo is separately required to submit to searches of his "property." And the condition's reference to "passwords" further suggests the condition was intended to permit data searches.

The closer question is whether, as both parties contend, the electronics search condition encompasses not just data stored on electronic devices themselves but also electronic accounts, such as social media accounts, that, while not stored on electronic devices, can be accessed through them. Had the juvenile court not explained why it was imposing the condition, we would hesitate to agree that the condition includes such accounts. An account accessible through an electronic device, such as an account on a social media site like Facebook, may be electronic but is not an "electronic." And the inclusion of the word "passwords" is not determinative since, although electronic accounts generally have passwords, many electronic devices do as well (such as smartphones that are unlocked with a password).

Both parties, however, point to the juvenile court's explanation that it intended the electronics search condition to permit monitoring of whether Ricardo was "brag[ging] about [his] marijuana usage or drug usage . . . by posting on the Internet, showing pictures of [himself] with paraphernalia, or smoking marijuana." This explanation clarifies that the condition was meant to include at least electronic accounts through which a person can post information, including photographs, on the Internet. Thus, in evaluating Ricardo's claims, we accept the parties' interpretation of the condition to include both data stored on electronic devices and data in electronic accounts accessed through these devices.⁹

B. Ricardo Lacks Standing to Pursue His Claim Under Section 632.

Section 632, subdivision (a) provides that "[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio," is subject to a fine, incarceration, or both. Ricardo argues that the electronics search condition "must be stricken because it poses a risk of illegal eavesdropping" under section 632 in violation of the rights of anyone "with whom [he] communicates. . . [through] text and social media messaging" and that these people "may have claims under section 632" against the probation department. (Capitalization & boldface omitted.) The argument is unpersuasive.

To begin with, it appears that Ricardo forfeited the claim. Although the Attorney General does not raise the forfeiture issue, nothing in the record indicates that Ricardo argued below that the electronics search condition could give rise to illegal activity under section 632.

(2) But even if we assume that Ricardo preserved the claim, we reject it because he lacks standing. His argument is that the electronics search condition might invade the privacy of the people with whom he communicates, not his own. "Courts are created to resolve cases and controversies and not to render...