Opinion
A149818
09-19-2017
In re S.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1600703)
S.F., a 15-year-old minor (age 14 at the time of her offenses), appeals from a disposition order of the juvenile court adjudging her a ward of the court, removing her from her mother's custody and placing her in an out-of-home, secured facility after she committed a string of offenses in San Francisco and engaged in other delinquent conduct as well. The sole issue she raises in this appeal concerns an electronics search condition of probation the juvenile court imposed, which she contends for the first time on appeal is unconstitutionally overbroad. We reject her challenge and affirm the disposition order.
BACKGROUND
The juvenile court's wardship over S.F. arose from three incidents that took place in San Francisco within a five-month period when S.F. was 14 years old, each the subject of a separate petition pursuant to Welfare and Institutions Code section 602.
We take our facts principally from the probation reports in the record.
The first incident took place on the afternoon of November 13, 2015, when S.F. was one of approximately 45 minors involved in a physical altercation on a Muni bus in the area of Lombard and Fillmore Streets in San Francisco. Three minors were screaming and yelling, and were asked to get off the bus for being disruptive. When a Muni security guard who was on board began video recording the situation, one of the minors pulled the guard's iPhone out of her hand and all three then began punching her in the head. Several other minors on the bus then joined in the attack. Approximately ten days later, during the ensuing police investigation, S.F. admitted she had been one of the people involved in the assault and apologized. She later admitted to one misdemeanor count of assault by force likely to produce great bodily injury (Pen. Code, §245, subd. (a)(4)).
Several months later, on the night of February 20, 2016, S.F. was arrested by San Francisco police in the North Beach neighborhood of San Francisco, after a married couple reported S.F. had stolen the wife's cell phone while they were eating dinner at a restaurant on Columbus Avenue, at a table outside on the sidewalk. S.F., who was accompanied by another minor, had grabbed the phone off the table and run away but was apprehended by bystanders. A single misdemeanor count of petty theft (Pen. Code, §§ 484, 490.2) was later dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, at the same time S.F. admitted to the count arising from the earlier Muni bus assault.
Two months after the restaurant incident, on the evening of April 30, 2016, S.F. and two other minors were arrested by San Francisco police after a young woman reported having been robbed of her iPhone while standing outside her apartment building on Eddy Street in San Francisco. One of the minors grabbed it out of her hand, and all three fled. As the victim chased after them, S.F pulled the victim's hair and tried to trip her. S.F. was uncooperative with police after her arrest and refused to identify herself. After a contested jurisdiction hearing later on, allegations of one felony and two misdemeanor counts against S.F. were sustained: for second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), battery (id., § 242), and petty theft (id., § 484, subd.(a)).
These wardship proceedings were initiated in San Francisco County Superior Court, in May 2016, where they remained pending for approximately two months until July 11, 2016, when the San Francisco juvenile court transferred the matter to Contra Costa County for disposition, because S.F.'s mother had moved there. When the San Francisco juvenile court transferred the case, it also ordered S.F. released from custody to her mother on home detention. S.F. had previously been released on home detention once before in San Francisco, but after approximately three weeks she had been arrested on a warrant issued by her probation officer and re-detained at Juvenile Hall, because she had violated the terms of her GPS monitoring program and other terms and conditions of her home detention, including her curfew and orders to stay away from certain areas.
After transfer of the case, the disposition hearing took place in Contra Costa Superior Court on October 20, 2016.
In the report it prepared for the hearing, the Contra Costa County probation department painted a worrisome picture of a troubled 10th-grade girl. S.F. missed her initial interview with the Contra Costa County probation department because, according to her mother, she hadn't returned home from San Francisco. When her probation officer did meet with S.F., S.F. was "reserved," it was "difficult" to elicit any answers from her, and she initially refused to discuss her offenses. But she did say, just as she had previously told her probation officer in San Francisco, that she liked to earn money whether it was legal or not, and indicated she was prone to peer pressure from friends. She said she would commit crimes so she could buy nice clothes and shoes. When her probation officer instructed her to go to school after their interview, she lied to him and said she would but he later discovered she hadn't gone to school that day.
According to the report, S.F. had done well academically while in middle school, but her grades and attendance began plummeting in ninth grade while attending high school in San Francisco after she and her mother ended up living in a homeless shelter, and by the time of the disposition hearing, she was failing all her classes in 10th grade in Contra Costa County. She reported to her probation officer that she didn't like school and refused to go, and she was absent for almost all of her classes. She reported, too, that she used marijuana once or twice a week, and had begun in eighth grade.
The probation report also described two uncharged incidents that took place during the same five-month period as the three incidents for which charges had been filed in the wardship proceedings. In December 2015, S.F. was caught stealing at a Macy's store in Richmond, and then reportedly brandished a folding pocket knife at the store security guard who detained her; she was cited but no charges were filed. (It was later explained at the disposition hearing that the Contra Costa County District Attorney decided not to file charges because charges against S.F. were already pending in San Francisco.) Some months later, in April 2016, she and another youth were cited in San Francisco for stealing a quadricycle, and the District Attorney later dismissed the matter.
The probation report concluded S.F. was "out of control and . . . rapidly escalating in a negative manner." And since she had been uncooperative with the probation departments of both counties, "it is difficult to gauge whether she takes any responsibility for her actions, or if she feels any remorse for the victims." In addition, she "appears to have a complete disregard for authority, since she did not seem to abide by any of the [San Francisco] court's orders." The probation report also noted S.F.'s "lack of regard for authority, easily lying and not cooperating with Probation."
S.F. reportedly wanted to be returned to San Francisco and placed in a group home there but the probation department was decidedly opposed. "Under no circumstances should the minor return to San Francisco," it reported. "She is out of control and this is ground zero for her delinquency and anti-social peer group."
Due to the nature of S.F.'s offenses, her poor compliance while on home detention, and her "minimal cooperation" with her probation officers, the probation department recommended a more secure setting for S.F. than an out-of-home placement. She was screened and found eligible for a commitment to the Department of Juvenile Justice (DJJ). Instead, though, the probation department recommended S.F. be placed in a program called Girls in Motion which was a highly structured, secure setting where she could receive counseling and other needed services, following which the department recommended she return home under the supervision of the probation department. It cautioned, though, that "should she continue to lie and to demonstrate disregard for her probation directives and court orders, . . . a commitment to DJJ[] remains possible with a probation violation."
To effectuate S.F.'s return to the community, the probation department also recommended, among other things, the electronics search condition challenged here, which we quote in full, post. It did so because S.F. "seems to target iPhones, to sell. The search clause will assist in assuring [she] is using her own cell phone, and not conducting other business transactions to sell stolen phones."
At the dispositional hearing, the juvenile court declared S.F. a ward of the court with no termination date, placed her on probation with directions she be committed to the Girls in Motion program for a period not to exceed 5 years, 165 days, and imposed a number of terms and conditions of probation including, over a limited defense objection, the recommended electronics search condition. In objecting to that search condition, defense counsel stated only that, "I don't think there's a link between [the condition] and the offenses here . . . ." The juvenile court expressed "extreme concern" about S.F., noting "[i]t is not the time for her to be back on the street or back out there. Public safety dictates, as well as her needs dictate, that she have . . . serious treatment" in the Girls in Motion program. In imposing the search condition, it explained: "I've reviewed the report, and I note that [appellant] has been stealing telephones for the purpose of selling those phones. It is important that we have the ability for Probation to search any electronic device that [appellant] has after she's released from the Girls in Motion program to ensure that she is not engaging in the selling of telephones, what telephones are used for, text messages, and for the monitoring of all of her conduct to ensure that she's complying with the terms and conditions of probation."
This timely appeal followed.
DISCUSSION
The electronics search condition the juvenile court imposed requires S.F. to "[s]ubmit all electronic devices under [her] control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts, with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified." (Italics added.)
S.F. does not contend that electronic monitoring of her devices is unwarranted but only that this provision is unconstitutionally overbroad. She asks us to modify it in accordance with the remedy fashioned in In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), which narrowed an electronics search condition on appeal to permit searches of "electronic devices in [your] custody and control only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information that is not readily accessible to users of the device." (Id. at p. 906.)
This issue has been forfeited. S.B. did not object to the condition below on the ground it was overbroad, much less raise any of the constitutional privacy concerns that she now contends are implicated. And, responding to the Attorney General's contention that her defense counsel's objection was not sufficiently specific to preserve the constitutional overbreadth issue for appeal, she concedes in her reply brief that she did not "adequately preserve the issue," but asks us to exercise our discretion to reach the issue nonetheless.
We decline to do so. In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), our Supreme Court emphasized that "generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Id. at p. 889.) Sheena K. explained, too, that departures from this practice might be warranted where "[a] challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth . . . is capable of correction without reference to the particular sentencing record developed in the trial court," because issues of that sort present a pure question of law. (Id. at p. 887.) "Correction on appeal of this type of facial constitutional defect in the relevant probation condition . . . may ensue from a reviewing court's unwillingness to ignore 'correctable legal error.' " (Ibid.) Nevertheless, Sheena K. cautioned that its "conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground . . . 'since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Id. at p. 889.) S.F. does not argue that her constitutional overbreadth challenge falls into the category of facial challenges contemplated by Sheena F. On the contrary, her appellate arguments do depend on the specifics of the record developed below, including the circumstances of her offenses and the trial court's comments at the disposition hearing.
A probation condition must be narrowly tailored to a minor's reformation and rehabilitation. (See In re Victor L. (2010) 182 Cal.App.4th 902, 910.) Put another way, to avoid constitutional overbreadth, "[a] probation condition imposed on a minor must be narrowly tailored to both the condition's purposes and the minor's needs . . . ." (In re P.O. (2016) 246 Cal.App.4th 288, 297 (P.O.).) We decline to undertake this factual inquiry in the first instance.
S.F. "is not raising a pure facial challenge to the constitutionality of the probation condition that can be determined based on abstract or general legal principles," but instead invites a fact-driven inquiry based upon the specifics of her offenses and personal circumstances, amounting to an argument that "the probation condition is, as applied to [her], unconstitutional." (People v. Kendrick (2014) 226 Cal.App.4th 769, 778.) So her constitutional argument "is one that cannot be resolved 'without reference to the particular sentencing record developed in the trial court [and thus does not] present a pure question of law.' " (Id. at p. 777, quoting Sheena K., supra, 40 Cal.4th at p. 887.)
In particular, we cannot say as a matter of law that the narrow approach undertaken in Malik J. is appropriate in this case. Malik J. held that an electronics search condition that encompassed a juvenile's electronic devices and passwords was unconstitutionally overbroad, and substantially narrowed it on appeal (i.e., by striking the requirement the juvenile provide passwords to social media sites, and also modifying it to permit searches only of offline data and prohibiting the retrieval of deleted information "that is not readily accessible" without the use of specialized equipment). (See Malik J., supra, 240 Cal.App.4th at pp. 900, 902-906.) But the electronics search condition in Malik J. was justified solely on the ground it was necessary to enable authorities to determine whether the minor had stolen another cell phone. (See id. at p. 902.) Here, though, that was not the juvenile court's only stated purpose.
We agree with our colleagues in the Fourth District who recently put it this way in declining to consider a minor's constitutional overbreadth challenge to an electronics search condition for the first time on appeal: "to evaluate [minor's] overbreadth claim, we need to consider his subject crime. Such an analysis does not present a pure question of law, but instead, requires a consideration of the record. Such contemplation of the record is precisely why the California Supreme Court emphasized the importance of raising constitutional challenges in the lower court to allow that court to consider the specific argument instead of asking the appellate court to address the issue in the first instance on a cold record. (See Sheena K., supra, 40 Cal.4th at p. 889.)." (In re R.S. (2017) 11 Cal.App.5th 239, 247, review granted July 26, 2017, S242387.) The same is true here.
Even if the issue weren't forfeited, we would conclude S.F. failed to meet her burden as the appellant to persuade us of an error. As noted, the juvenile court articulated two reasons for imposing the challenged search condition: to deter S.F. from stealing and selling cell phones and also, more generally, "to ensure that she's complying with the terms and conditions of probation." S.F.'s arguments in her opening brief solely address the first purpose relating to cell phone theft but entirely ignore the court's second purpose. We could say that omission, in and of itself, is yet another waiver but we needn't go so far. One probation condition, as the Attorney General explains, was that S.F. have no contact with five other minors who were involved in her offenses in San Francisco. And it convincingly argues that the condition is reasonable, and not overbroad, in light of that purpose alone. Indeed, as we have noted, the probation report expressed grave concerns with S.F.'s social environment in San Francisco and the negative influence of her San Francisco peer group. S.F.'s only response in her reply brief is speculation that similar no-contact conditions must have been imposed in other reported cases where electronics search conditions were held overbroad, but she cites no case where the question was actually at issue, and held that monitoring a probationer's compliance with a no-contact order was a constitutionally insufficient justification for imposing an electronics search condition (of any breadth). At bottom, S.F. does not explain why the search condition here is overbroad in light of the need to ensure she complies with court orders prohibiting any contact with the youths who contributed to her descent into a delinquent lifestyle, particularly after she'd violated the terms of her probation in the past, and proved herself to be uncooperative (and even untruthful) with her probation officers.
Because we decide this case on the basis of appellate forfeiture, we refrain from extensive discussion of the law. The parties' briefing discusses the principal leading authorities, and this opinion presumes the parties' familiarity with them.
S.F.'s challenge also would fail on the merits because much of her appellate brief is addressed to constitutional privacy concerns that are not implicated by what the juvenile court actually ordered. For example, she emphasizes that "[i]nternet browsing history can reveal the carrier's most private interests and concerns, such as medical issues, political affiliation, and religious views," and (citing statistical information about adult cell phone usage, not juveniles) that "[c]ell phone data . . . reveals the carrier's location, which can allow probation officers to precisely reconstruct a probationer's movements." But the probation condition at issue here does not authorize a search of internet browsing histories. And the only cell phone data permitted to be searched are "call logs," so it's unclear how such information could reveal S.B.'s whereabouts. Likewise, S.F. contends that "most cell phones have application software capability . . . for managing private detailed information" such as "apps tailored for political affiliation, addiction treatment, tracking pregnancy symptoms, budgeting, and romantic life." But again, the search condition does not authorize a search of any such applications on S.F.'s electronic devices; it is limited to "text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts." She also alludes to "interrelated privacy concerns" implicated by the fact that "cell phones contain several types of information, such as bank records, notes, address books, contact history, videos and pictures, which can reveal more in conjunction with one another." Here again, though, the juvenile court did not authorize a search of bank records, notes, address books or videos. We think her characterization of this condition as "[a]n all-access electronics search condition" is a considerable overstatement.
On the other hand, S.F. concedes that social media "has become the primary form of communication for many young people," which is why, she contends, its importance "cannot be overstated." But far from demonstrating this type of warrantless search is unconstitutionally overbroad, her concession suggests the opposite: in order to monitor her compliance with a probation condition prohibiting her from communicating with the other teens who shared her delinquent ways, what could be more narrowly tailored than a warrantless search of her "primary" form of communication?
People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), a case S.F. cites involving an adult criminal defendant, noted it would be permissible to authorize a warrantless search of social media accounts if the purpose were to monitor a defendant's communications. (See id. at p. 727.) --------
We also agree with the Attorney General that S.F.'s authorities are distinguishable. (See P.O., supra, 246 Cal.App.4th 288; People v. Appleton, supra, 245 Cal.App.4th 717; In re J.B. (2015) 242 Cal.App.4th 749 (J.B.); Malik J., supra, 240 Cal.App.4th 896.) To start with, the conditions struck down as unconstitutionally overbroad in those cases were considerably broader than this one, which is limited to specific types of data (i.e., "text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts") that for the most part encompass only communications and would not include, for example, internet browsers or browsing history, videos, books, banking or medical applications, games and/or a wide variety of other mobile applications suitable for use on a smart phone. (Compare P.O., at p. 292 [" 'electronics including passwords' "]; Appleton, at p. 721 [" '[a]ny computers and all other electronic devices belonging to the defendant' " which " 'shall be subject to forensic analysis search for material prohibited by law,' " and prohibiting defendant from deleting internet browsing activity on his electronic devices]; J.B., at p. 752 [minor's " 'electronics including [his] passwords' "]; Malik J., at p. 900 [" 'any electronic devices' " including passwords, including to social media sites].) And in none of those other cases was the search condition justified in part on the need to supervise a minor's compliance with a condition of probation forbidding the minor from communicating with accomplices. Nor did the minors in those cases already have a poor track record of complying with the terms of their probation, being truthful with their probation officers and, indeed, even cooperating with their probation officers.
Electronic monitoring of electronic devices, including social media accounts, is not unconstitutional as a matter of law; the question is whether the invasion of privacy occasioned by such electronics search conditions is justified by countervailing state interests on the particular facts. (See, e.g., People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175-1177 [upholding probation condition requiring monitoring of gang member's electronic devices and social media accounts]; see also P.O., supra, 246 Cal.App.4th at p. 298 [upholding electronics search condition justified by need to supervise juvenile's drug use but narrowing it to apply only to data and communications "reasonably likely to reveal whether [juvenile] is boasting about drug use or otherwise involved with drugs"].) What is constitutionally impermissible in one case might be entirely appropriate in another, because the concept of narrow tailoring is not a one-size-fits-all proposition. Simply put, the more severe a minor's needs are, the broader an electronics search condition may be. (Compare, e.g., In re J.E. (2016) 1 Cal.App.5th 795, 798, 803-807 [rejecting constitutional overbreadth challenge to probation condition permitting warrantless search of minor's " 'electronics, including passwords, at the request of a Probation Officer or peace officer,' " because "[m]inor's circumstances and needs are numerous and fairly severe" and "[a] broad electronic search condition is appropriate for the level of supervision Minor requires"], review granted Oct. 12, 2016, S236628; In re Q.R. (2017) 7 Cal.App.5th 1231, 1238 [rejecting constitutional overbreadth challenge, because "[i]n the context of this case, robust access to minor's electronic devices is critical to monitor his progress on probation and to ensure that he is not continuing to engage in the sort of criminal conduct that led to him being declared a ward of the court"], review granted Apr. 12, 2017, S240222 with, e.g., P.O., at p. 298 [electronic search condition held constitutionally overbroad because "[minor's] needs are less severe"].) In this case, even S.F.'s attorney acknowledged at the hearing she "had a really tough period in San Francisco where she made a lot of really, really big mistakes" and "had a pattern of really bad behavior . . . before she moved."
As said, we are not reaching the merits of this issue. We note, though, that it is by no means clear this electronics search condition, which is more limited than S.F. makes it out to be, is not overbroad in light of S.F.'s pressing rehabilitative needs and the juvenile court's two stated purposes. We will not address whether any particular aspect of it should be more narrowly tailored, because that was a job for the trial court had a specific overbreadth concern been brought to its attention.
DISPOSITION
The October 20, 2016 disposition order is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.