Opinion
A157269
08-31-2020
In re V.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. V.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 201935931-01)
V.L. challenges probation conditions permitting a warrantless search of his electronic devices and banning possession of a smartphone imposed in connection with the juvenile court's order granting deferred entry of judgment. (Welf. & Inst. Code, § 790 et seq.) He contends the conditions are unconstitutionally overbroad. Although we conclude the order granting deferred entry of judgment is not appealable, we treat minor's opening brief as a petition for writ of mandate.
A minor against whom a Welfare and Institutions Code section 602 petition has been filed may be granted deferred entry of judgment under certain circumstances. (Welf. & Inst. Code, § 790, subd. (a).) The juvenile court's order granting deferred entry of judgment may impose warrantless search conditions, random drug or alcohol testing, where appropriate, and "any other term of probation authorized by this code that the judge believes would assist in the education, treatment, and rehabilitation of the minor and the prevention of criminal activity." (Welf. & Inst. Code, § 794; see Luis M. Superior Court (2014) 59 Cal.4th 300, 303, fn. 3.) Neither Welfare and Institutions Code section 800 nor any other statutory provision authorizes an appeal from a deferred entry of judgment order, including any component imposed under Welfare and Institutions Code section 794. (See In re T.C. (2012) 210 Cal.App.4th 1430, 1432 [dismissing appeal from restitution order entered in conjunction with juvenile court's grant of deferred entry of judgment].) Because there is no appealable judgment (Welf. & Inst. Code, § 800, subd. (a)), we treat minor's brief as a petition for writ of mandate. (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307-1311 [review by extraordinary writ may be available avenue for appellate review when conditions for relief have been met]; see Luis M. Superior Court, at p. 303, fn. 3.)
We further conclude the juvenile court did not abuse its discretion in imposing the warrantless search conditions. However, the condition imposing a ban on minor's possession of a smartphone may be overly broad. We therefore strike this condition and remand the matter to the juvenile court for it to determine, consistent with this opinion, whether a less restrictive condition is feasible.
BACKGROUND
At the beginning of February 2019, American Canyon Police officers on patrol noticed minor and a passenger on a black motorcycle traveling through a high school parking lot. Minor looked directly at the officers and then "accelerated" away from them. After stopping to let the passenger off the motorcycle, minor continued "through the intersection on a red light and accelerated to approximately 60 miles per hour" in a 25-mile-per-hour zone. Officers pursued, activating their overhead lights and siren. Minor continued to drive "at a high rate of speed," reaching "speeds estimated at 90 to 100 miles per hour." The high-speed chase eventually ended when minor pulled into a mobile home park. Minor stopped the motorcycle, put his hands up, and complied with orders to get on the ground. As he was taken into custody, minor told officers, " 'I'm sorry, I screwed up, I screwed up.' "
A little over two weeks later, the Napa Sherriff's Department received several calls reporting an Instagram page with the name " '02.27.19.' " The page "depicted several threats of gun violence against the students" of a local high school. A profile picture associated with the account showed "a young Hispanic male holding a semi-automatic pistol," and the biography information stated, " 'my user name is the day everyone is dead at school. FUCK [local high school].' " Several students at the school also informed officers they had received "a strange photo," which "had been shared to them, via air-drop." The photo said, " 'Fuck y'all bruh I've been bullied by a ton of y'all. Don't come to school Wednesday.' " "Multiple students" had also received messages from the minor which stated, " 'Im gonna start at A building and try to end up in the D building, I got a AK 47 full mag, glock 17 5 rounds, AD 15 with 100 round, im fucking loaded [D.], he my number 1 target.' " "In a matter of hours," after the students received those messages, "screen shots [of the messages] were distributed to hundreds of students who became fearful of returning to school and believed the person making the threats were credible." During the course of the investigation, "officers were inundated with calls" and visits to the local police station by parents of children at the high school "who were terrified by the series of threats and the manner in which they escalated throughout the day." Officers were able to "identify minor as the responsible party." While serving a warrant at his residence, minor "confessed to the threats claiming he and a friend did it as a joke."
The Napa County District Attorney filed a second amended petition under Welfare and Institutions Code section 602, subdivision (a), alleging minor committed one count of evading a peace officer, a felony (Veh. Code, § 2800.2, subd. (a); count 1), reckless driving, a misdemeanor (id., § 23103, subd. (a); count 2), driving without a license, a misdemeanor (id., § 12500, subd. (a); count 3), and five counts of making a criminal threat, felonies (Pen. Code, § 422; counts 4-8).
At a readiness conference, counsel informed the court the parties had "reached a resolution in this matter." After being advised of his rights, minor admitted counts one (evading a peace officer) and four (making a criminal threat), and the remaining counts were dismissed. The court set the matter for a disposition hearing, and minor's counsel asked that deferred entry of judgment be considered as part of minor's dispositional report.
The probation department interviewed minor as part of preparation for the report. During the interview, minor declined to make any statements in regard to the current offenses. Minor's mother stated the current offenses "made her 'sad.' " She maintained minor was " 'scared and didn't think through' when law enforcement attempted to conduct their traffic stop," in regard to the motorcycle incident and that as to the threats he made them "so he 'wouldn't be home.' " Both mother and minor disclosed minor did "not get along with [stepfather] 'that well,' " and mother had recently obtained a restraining order against stepfather. Mother disciplined minor by "trying to 'talk' " to him and turning off "the phone or house Wi-Fi . . . to prohibit access from the minor, and/or not 'buy him anything.' " She had "attempted to take the minor's phone" but he did not let her and "will 'hide' the phone, which then prompts her to cease Wi-Fi capabilities."
The probation department recommended against deferred entry of judgment and that several probation terms be imposed including:
"17. The minor submit all electronic devices under his control to search and seizure at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. This search should be confined to areas of the electronic devices where evidence likely to reveal criminal activity or probation violations may be found. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device and applications where evidence likely to reveal criminal activity of probation violations may be found as requested by any law enforcement or probation officer. Contraband seized by the probation officer shall be disposed of, store or returned at the discretion of the probation officer;
"18. The minor not use any social media platforms (such as: Instagram, Snapchat, Facebook, etc.) to intentionally view, promote, or publicize any form of harassment or threats of any nature; not have another person conduct such actions for him. This includes, but is not limited to, creating false accounts that are not directly identifiable as himself/under his control, to conduct the above-listed prohibited conditions in this term;
"19. The minor not own or possess a smart cell phone."
At the disposition hearing, the parties discussed the probation conditions and deferred entry of judgment. Minor's counsel objected to the proposed smartphone-ban term (probation term No. 19) as unconstitutionally overbroad. The probation department asserted the condition was appropriate because in addition to minor's use of social media, "there were messages sent that were not sent through social media. They were sent via AirDrop, which is a feature that is contained within a smartphone. . . . AirDrop really created a heightened sense of fear for the victims in this scenario because with AirDrop, that individual has to be within 30 feet in order for that be received. So these students were receiving a threat that from the place they were standing they knew with certainty that the person making [the] threat was in 30 feet of them, and that is a function that is not through a social media aspect or platform. That is a function of a smartphone and the ability to do that, and that is why we really feel as though this term is an important piece of the puzzle of looking at his restriction."
Minor's counsel first argued the condition could be narrowed without banning minor from having a smartphone. Counsel stated, "We're talking about one, like, app—it's not even an app, it's one feature of the phone, so we're going to ban the phone? . . . I would propose [the condition] specify AirDrop be deactivated on his cell phone, or a phone without AirDrop . . . function on a smartphone. But to ban him from a cell phone, well, a smart cell phone . . . [y]ou're effectively barring him from the internet in many cases. Kids use their phone for the Internet. We all rely on our phones for many, many things and to effectively bar [minor] from those services of things he would be entitled to except for this AirDrop would be unconstitutional." The court then asked probation, "what about those concerns prohibiting [minor] from using AirDrop and also requiring him to deactivate AirDrop from a smartphone, to the extent he has a smartphone? Does that address the concerns?" Probation responded, "there are, you know, many different uses for a cell phone. We're not saying that he can't have a cell phone to contact people. . . . It's limiting his capability to interact in an anonymous way from a digital device. And I think that unless we can—when we start making specific statements such as the AirDrop feature and turning off the AirDrop feature, different phones have different names for these capabilities, and unless we have all of those features detailed out, there are loopholes in a term of that nature. Again, we are not saying that he cannot have a cell phone and that he cannot access the Internet. Those two things just cannot happen from the same device. I think in any case, this is an excellent example of where we would ask for this term because of the nefarious purposes when it was used." Minor's counsel reasserted that "we still could address the term specifically describing what [probation] is describing. I don't think that that's too hard for us." The district attorney had no issues "with the terms and conditions."
The court acknowledged term No. 19 "is a broad term," but that "given the nature of the threats and in particular the issue of the AirDrop and being close to potential victims in the matter, the Court will leave the term as is." After making sure minor and mother understood the terms and conditions, the court accepted the terms as recommended by probation, and granted deferred entry of judgment under Welfare and Institutions Code section 790, placed minor on a 12- to 36-month probation term without wardship, and set the matter for a 12-month review hearing.
DISCUSSION
"When a probation condition imposes limitations on a person's constitutional rights, it ' "must closely tailor those limitations to the purpose of the condition" '—that is, the probationer's reformation and rehabilitation—' "to avoid being invalidated as unconstitutionally overbroad." ' ([People v.] Olguin [(2008)] 45 Cal.4th [375,] 384; see In re Victor L. (2010) 182 Cal.App.4th 902, 910 [(Victor L.)].) 'The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the [probationer]'s constitutional rights—bearing in mind, of course, that perfection in such matter is impossible, and that practical necessity will justify some infringement.' [Citation.] ' " 'Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.' " ' " (In re P.O. (2016) 246 Cal.App.4th 288, 297 (P.O.).)
"A probation condition imposed on a minor must be narrowly tailored to both the condition's purpose and the minor's needs, but ' " ' "a condition . . . that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." ' " ' (In re Victor L., supra, 182 Cal.App.4th at p. 910, quoting In re Sheena K. (2007) 40 Cal.4th 875, 889. . . .) 'This is because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed. The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents. And a parent may "curtail a child's exercise of . . . constitutional rights . . . [because a] parent's own constitutionally protected 'liberty' includes the right to 'bring up children' [citation] and to 'direct the upbringing and education of children.' [Citation.]" ' [Citation.] Whether a probation condition is unconstitutionally overbroad presents a question of law reviewed de novo." (P.O., supra, 246 Cal.App.4th at p. 297.) Electronic Search Condition (Probation Condition No. 17)
Initially, we address the issue of forfeiture.
Although minor challenges both the electronics search condition and the prohibition against possessing a smartphone, he did not object to the imposition of the former condition. Generally, an "appellate claim—amounting to a 'facial challenge'—that phrasing or language of a probation condition is unconditionally vague and overbroad . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court" is preserved without an objection, an overbreadth claim premised upon the facts and circumstances of the individual case is generally forfeited absent an objection. (In re Sheena K., supra, 40 Cal.4th at p. 885.)
Minor acknowledges he made no objection to the warrantless electronic search condition but argues the issue "involves pure questions of law" and is therefore not forfeited. We disagree with this characterization. Minor does not assert the condition is per se unconstitutional but rather that the warrantless search condition must be "narrowly tailored to accomplish appellant's rehabilitation." In any event, the Attorney General does not argue this issue is forfeited, and we exercise our discretion to reach the merits. (P.O., supra, 246 Cal.App.4th at pp. 297-298.)
Defendant relies on In re Ricardo P. (2019) 7 Cal.5th 1113. In that case, the juvenile court placed the minor on probation and imposed a warrantless electronic search condition. The minor appealed challenging the condition as invalid under Lent and unconstitutionally overbroad. (Ricardo P., at p. 1116.) The Court of Appeal determined the condition was overbroad and should be narrowed, but held the condition was permissible under Lent. (Ibid.) The Supreme Court granted review to address the narrow issue of whether the electronic search condition was reasonably related to future criminality as is required under Lent. In holding it was not reasonably related, the court pointed out there was no indication in the record that Ricardo had used or would use electronic devices in connection with drugs or any illegal activity sufficient "to justify the substantial burdens imposed" by the electronic search condition. (Ibid.)
People v. Lent (1975) 15 Cal.3d 481, superseded by statute on other grounds as stated in People v. Moran (2016) 1 Cal.5th 398.
The record here is to the contrary. There is abundant evidence of the minor's use of his smart phone in committing the criminal offenses at issue. (See In re Q.R. (2020) 44 Cal.App.5th 696, 705 [distinguishing Ricardo P. because "the Supreme Court limited its review in Ricardo P. to a Lent challenge" and "more significant[ly], the rationale of Ricardo P. does not apply here because the offense Ricardo committed did not involve the use of an electronic device, whereas an electronic device was integral to minor's adjudication"].) And given the seriousness of minor's threats and the means by which he conveyed those threats, the electronic search condition imposed is not unconstitutionally overbroad. Smartphone Ban (Probation Condition No. 19)
Minor contends the ban on "smart" cell phones is "not the least intrusive means available and imposes limitations on [his] constitutional rights to free speech and to internet access (also known as the right to broadband or freedom to connect)" and should therefore be stricken as unconstitutionally overbroad."
It is clear from the record that probation and the trial court were primarily concerned with minor's use of AirDrop to convey his threats. Both below, and on appeal minor's counsel suggests the condition need not include a complete ban of smartphones but rather that the condition can be narrowed to require disabling AirDrop and prohibiting other wireless file-sharing apps.
AirDrop is a file-sharing application available through Apple, Inc. that lets Mac computer, iPhone, iPad, or iPod touch users wirelessly share photographs, documents, Web sites, videos, map locations and more to other nearby Apple devices. To be able to receive information or files via AirDrop certain conditions must be met. These conditions include that: (1) devices must be "within 30 feet (9 meters) of each other and have Wi-Fi and Bluetooth turned on"; (2) devices must use "iOS 7 or later, with Personal Hotspot turned off" for handheld devices; (3) AirDrop only works on devices that were "introduced in 2012 or later (excluding the 2012 Mac Pro)" and are using the OS X Yosemite operating system or later for Mac computers. (Apple Support, AirDrop: How to use AirDrop on your Mac <https://support.apple.com/en-us/HT203106> [as of Aug. 31, 2020].)
Respondent relies on Victor L., supra, 182 Cal.App.4th 902. The minor, a Sureños gang member, was charged with one count of driving without a license and possession of a dangerous weapon. (Id. at p. 908.) Upon his plea to the possession charge, the court imposed several conditions including a complete ban on portable devices except as permitted by probation for work or school and three conditions "limiting access to the Internet." (Id. at pp. 909, 921-922.) The minor challenged these conditions as unconstitutionally overbroad. (Id. at pp. 919, 923.)
Except for a modification to one of the Internet conditions, the court upheld both conditions. (Victor L., supra, 182 Cal.App.4th at pp. 921-922, 926-927.) The court determined the portable device condition—which the court called a "standard 'gang condition' "—was narrowly tailored "to prevent future crimes that might be committed as part of the criminal street gang culture." (Id. at pp. 921-922.) The condition did not prevent the minor from using all communication devices, only portable ones "through which he might be tempted to communicate with gang members or engage in illegal activity." (Id. at pp. 921-922.) The court also rejected a modification on the complete ban, stating a restriction on "the mode of communication is viewed more tolerantly than a restriction on content," and the ban was a "more effective means of deterring improper use" and that there was "no reason to believe the probation department has the resources" to effectively and easily monitor for "potentially prohibited contacts." (Id. at pp. 921-922.) The court found the limitation on Internet access also "reasonably promote[d] enforceability," and with a modification to allow for "legitimate use of a computer" for school or work purposes, upheld the Internet conditions. (Id. at p. 926.)
Respondent asserts the only distinction between Victor L. and minor's case is that Victor's probation conditions were "more sweeping than the one here," and given the court upheld the Victor L. conditions as not overbroad, the smartphone ban at issue here "a fortiori cannot be overbroad either."
There is, however, another distinction to be drawn between Victor L. and the case at hand—time. In the 10-year period since this court (Division Two) decided Victor L., our reliance on cell phones has greatly increased. Considering the increasing importance of cell phones with Internet access (see Riley, supra, 573 U.S. at pp. 403, 393 ["[m]odern cell phones are not just another technological convenience," cell phones "are in fact minicomputers that also happen to have the capacity to be used as telephones"]), and the advanced technology to monitor a person's use, a less restrictive condition may be fashioned to ensure minor does not use the cell phone improperly. We are also cognizant that given the pandemic with which we are now living, smart cell phones have assumed an even more vital role in everyday communication.
Minor suggests, as he did below, the condition might be modified to prohibit the use of wireless file-sharing applications, and if minor had an AirDrop compatible device (see ante fn. 3), he could be required to disable the application and be prohibited from downloading similar wireless file-sharing applications, which he asserts probation could "easily control."
However, nothing in the record, beyond counsel's assertions, evidences whether AirDrop or its equivalent can be disabled; whether there is any technology that would allow the probation department to determine if minor has disabled AirDrop or other similar application; and whether there is any technology that would enable the probation department to determine whether minor has re-enabled and used any file-sharing application and thus violated his probation.
These are precisely the issues that must be addressed on remand, and there may be others, to assess the feasibility of a condition narrower than an outright ban on the possession and use of a smart phone. (See People v. Appelton (2016) 245 Cal.App.4th 717, 725-728 [holding probation condition requiring consent to search electronic devices was unconstitutionally overbroad and remanding "because the trial court may be able to impose a valid condition more narrowly tailored to the states' interest," and nothing in the record showed how and if a more limited search could be done].)
DISPOSITION
Probation condition No. 19 is ordered stricken, and the matter is remanded for further proceedings regarding a possible modification. In all other respects, the order is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.