In re A.S.

Filed 3/16/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re A.S., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent, A144487
v.
(Alameda County
A.S., Super. Ct. No. SFJ14024003)
Defendant and Appellant.

I.
INTRODUCTION
In this appeal from a disposition order declaring her a ward of the juvenile court,
A.S. (appellant) challenges two conditions of her probation. The first challenged
condition required appellant to submit her “electronics including passwords under [her]
control” to warrantless searches by the probation department and law enforcement
(electronic search condition). Second, appellant challenges a probation condition which
prohibited her from unauthorized or unsupervised presence on school property (school
grounds condition).
Appellant is not the first minor to object to an electronic search condition. In fact
the juvenile court judge who imposed this condition on appellant is the same beleaguered
judge whose substantially identical electronic search condition was: stricken by Division
Two of this appellate district in In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) and
in In re Mark C. (2016) 244 Cal.App.4th 520 (Mark C.); not stricken but found to be
overbroad and modified by Division Three in In re Malik J. (2015) 240 Cal.App.4th 896,

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899-900 (Malik J.); stricken by that same division in In re J.B. (2015) 242 Cal.App.4th
749 (J.B.); not stricken but found to be overbroad and remanded to the juvenile court for
modification by Division One in both In re Ricardo P. (2015) 241 Cal.App.4th 676
(Ricardo P.) and In re Alejandro R. (2015) 243 Cal.App.4th 556; and not stricken but
found to be overbroad and modified by Division Five in In re Patrick F. (2015) 242
Cal.App.4th 104 (Patrick F.)1
Under the particularized facts of this case, we conclude that the electronic search
condition as applied to appellant is reasonable under the test established by People v.
Lent (1975) 15 Cal.3d 481 (Lent), and is not unconstitutionally overbroad. Accordingly,
we affirm the imposition of this probation condition. However, we agree with appellant
that the school grounds condition is unconstitutionally vague because it does not
incorporate a “knowledge” requirement so as to prohibit the unauthorized or
unsupervised presence on property she knows is school property. We order that
probation condition modified accordingly.
II.
PROCEDURAL AND FACTUAL BACKGROUNDS
A. The Wardship Petition and Appellant’s Detention At Juvenile Hall
On December 19, 2014, the Alameda County District Attorney filed a juvenile
wardship petition under Welfare and Institutions Code section 602,2 alleging that 17-
year-old appellant committed a misdemeanor assault by means likely to produce great
bodily injury (Pen. Code, § 245, subd. (a)(4)). The alleged victim of the crime was
appellant’s mother (mother).

1
On February 17, 2016, the Supreme Court granted review in both In re
Ricardo P. (S230923) (2016 Cal.LEXIS 1016) and In re Patrick F. (S231428) (2016
Cal.LEXIS 972). In addition to these decisions, in the last nine months this appellate
district has filed a host of nonpublished decisions relating to this same electronic search
condition imposed by the Alameda County Juvenile Court.
2
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

2
 According to the probation department’s intake report, on December 17, 2014,
Oakland police responded to a report of a family disturbance and battery at mother’s
home. When they arrived mother had visible swelling to her left eye. She reported that
appellant had been away for several days but had returned home and caused a
disturbance. When mother tried to stop appellant from taking property from the home
that did not belong to her, appellant cursed at and threatened mother, saying “I’m going
to take these, get the fuck up out of my way, bitch. I’ll kill you!” She then caused
mother to slip and fall, grabbed her, dragged her out of the house, and punched her in the
face multiple times with a closed fist. Neighbors tried to intervene without success.
Mother crawled back into the house, but appellant continued to threaten her through the
window until police arrived and arrested her. Mother further claimed there were two
prior unreported incidents when appellant assaulted her. In addition, appellant, who had
been diagnosed at age 13 as having bipolar disorder, had not attended school for more
than a year, came and went from the home as she pleased, smoked marijuana, and was
out of control. The probation department recommended that, despite appellant’s
“minimal record,” the severity of the attack on mother and the need to protect mother’s
safety warranted that appellant be detained until disposition.
On December 22, 2014, the juvenile court ordered appellant detained for her own
protection and the protection of others. Crisis intervention was ordered and the matter
was continued to the next day. On December 23, appellant admitted the allegation in the
section 602 petition and the juvenile court exercised jurisdiction over her. Pending
disposition, it was ordered that appellant remain in juvenile hall for the protection of
herself and others. A guidance evaluation was ordered, as well as crisis intervention.
The disposition hearing was set for January 8, 2015.3

3
All further dates are in the calendar year 2015 unless otherwise indicated.

3
 B. Disposition
1. Reports
The probation department’s disposition report included summaries of interviews
with appellant, mother, and other family members. Appellant reported having “issues”
with mother since she was 12, and that her sister and grandmother also had poor relations
with mother. Appellant’s father died before she was born, and she claimed that mother
had kicked her out of the home approximately four times since she was 14. Around that
time, appellant was diagnosed with depression and was prescribed Prozac. But, she
stopped taking it because she did not like the way it made her feel. She received
counseling and had been seeing a therapist for about two years. Appellant admitted that
she smoked marijuana about two times per month to deal with her stress. She denied
using alcohol or other drugs. Appellant told the interviewer that she no longer wanted to
live with mother. Appellant’s role models were her grandmother and sister. She noted
that she did not have friends, but “associates” she met through a youth program. She
hoped to go to college like her sister.
Mother reported that appellant had been having behavioral problems since she was
in the fourth grade when she started having fights with other students and refused to
follow rules. She ran away from home four times since then. Mother also reported that
appellant had been using marijuana and alcohol frequently, and was involved
romantically with a 23-year-old adult. Appellant had been diagnosed with depression,
bipolar disorder, and schizophrenia. Mother was opposed to appellant going to live with
her grandmother, who mother suspected was taking drugs, or with appellant’s 20-year-
old sister (sister), who was unable to look after appellant at night.
Sister was interviewed and reported that she had two jobs and was currently
enrolled in college. Like appellant, sister left home at an early age because of conflict
with, and alleged physical abuse by, mother. Sister stated she wanted appellant to live
with her, and grandmother would share responsibility for appellant by looking after her
while sister worked her graveyard shifts.

4
 Grandmother was also interviewed and agreed with sister that mother’s home was
not good for appellant because of their poor relationship. Grandmother reported that
mother “is a very violent person,” and that sister’s home would be a better placement for
appellant. Grandmother also said she would find a larger apartment if it was determined
that her home was the best placement for appellant.
A risk assessment conducted by the probation department concluded that appellant
had a moderate risk of reoffending within a year. The primary concerns were appellant’s
poor relationship with mother, which had resulted in her living the life of a runaway for
relatively long periods, and the fact that she had not attended school for more than one
and one-half years. The report concluded that appellant was in immediate need of
services to help her resolve her family and social problems. The department did not
oppose a placement with either grandmother or sister, but expressed a preference for
grandmother due to sister’s work schedule. Whatever placement was made, the probation
department recommended that appellant be “intensely monitored,” and provided with
therapy services to help her “get back on track.”
Prior to disposition, the Alameda County Mental Health Department evaluated
appellant and filed a report.4 The mental health department concluded that appellant had
a moderate degree of emotional disturbance, exhibited in part by a long history of having
difficulty with self-regulation in school. It was noted that appellant also had a “high
potential for violence towards her mother,” and a moderate degree of potential for
violence in the community. The report concluded that appellant presented many
challenges including mental health, social/behavioral, and educational needs that would

4
The juvenile court referred appellant to the mental health department for a
psycho-diagnostic evaluation to determine to what extent appellant was “emotionally
disturbed; whether [she] had a potential for violence towards [her]self and others;
identification of family dynamics that contributed to or caused [appellant] to have
delinquent behavior; whether [appellant] has a substance abuse problem; whether
[appellant] needs mental health services; whether [appellant] needs psychological case
management; and identification of what type of setting would be most beneficial for
[her].”

5
best be met by a coordinated, multi-disciplinary team. She needed to be in a family
setting where her daily activities could be monitored. She also needed intensive
therapeutic services, such as day treatment, and a specialized school designed for
emotionally disturbed youths. If family placement resulted in inadequate supervision,
then a higher level of care, such as a residential treatment facility, should be considered
for her.
2. The January 8 Hearing
At the January 8 disposition hearing, the court stated that it had considered the
relevant reports and then conducted a lengthy discussion about how to secure a placement
for appellant outside juvenile hall that would afford her with the “24/7” supervision that
she needed. Ultimately, the court elected to make disposition findings and order that
appellant be released for placement in sister’s home, but to continue the matter for a
home visit and to ensure that appellant was going to receive the stability she needed.
The court then adjudged appellant a ward of the court subject to the care, control
and supervision of the probation department. As is pertinent here, the court included as
conditions of appellant’s probation that she not use or possess any drugs, that she submit
to regular drug testing, that she not associate with anyone who uses, possesses, or sells
drugs, and that she was subject to a “four way search clause” that included her electronic
devices and passwords. In addition, the court ordered the following condition of
probation: “Not be on the campus or grounds of any school unless enrolled,
accompanied by a parent or guardian or responsible adult, or authorized by the prior
permission of school authorities.”
When the juvenile court announced that appellant was subject to an electronic
search condition, her trial counsel produced a legal brief opposing the condition and
requested a hearing on the matter. The brief discussed a number of cases concerning the
court’s power to impose conditions of probation, and decisions extant at the time that
dealt with electronic privacy generally, including the then-recent United States Supreme
Court case of Riley v. California (2014) 134 S.Ct. 2473. However, the brief included no
information about how the electronic search clause might impact appellant’s privacy

6
rights in particular, nor did it suggest how the clause might be made more specific while
still meeting the concerns of the juvenile court.
The juvenile court continued the matter for a hearing so the People would have
time to respond in writing. In the meantime, the court imposed the electronic search
condition. It also referred appellant to anger management and placed her on “home
supervision.”
3. Progress Report
The probation department filed a progress report on February 5. By that time
appellant had begun receiving therapeutic services through the West Oakland Health
Center, and was enrolled in a STARS independent study high school program. The
February 5 report noted too that appellant had tested positive for marijuana on
January 30, although she denied using the drug. Sister reported no problems in the home,
but mother had reported that she had been receiving obscene telephone calls and she
suspected appellant and sister were responsible. Both denied the allegations. Mother
also showed the probation officer postings from Facebook, which discussed appellant’s
drug and alcohol use and her relationship with a 23-year-old adult. A home visit to
sister’s residence revealed that it was well kept with no evidence of drugs or alcohol. It
appeared that appellant had made a good adjustment to sister’s home.
4. The February 27 Hearing
On February 27, after conducting a hearing on appellant’s objection to the
electronic search condition, the juvenile court affirmed that the condition would be
imposed on appellant. The court began its ruling by summarizing factors which indicated
that appellant was suffering from “fairly substantial psychological issues,” including the
fissure between appellant and her mother, appellant’s romantic relationship with a 23-
year-old adult, her smoking marijuana and drinking alcohol frequently, and her diagnoses
of depression, bipolar disorder, and schizophrenia. The court found that appellant’s
“[d]rug usage issues, issues with regards to her safety, also in the area of where she’s
going to stay, and with the fact she at that time was not yet 18 years old and had been

7
involved in a relationship with a 23-year-old adult shows clearly that she needs to be
monitored as closely as possible.”
The juvenile court also made reference to the fact that appellant used Facebook,
which would provide a means for the court to monitor “conduct which can endanger her,
conduct which will be a violation of probation terms and conditions.” In this regard, the
court took particular notice of the reality that many minors on probation use electronics
and the Internet as their primary form of communication. In light of that reality, the court
concluded that monitoring appellant’s use of electronic devices was necessary to give the
court the kind of supervision that was needed to ensure appellant’s success on probation.
Indeed, in light of this broad range of issues, the juvenile court expressed substantial
concern whether appellant’s wardship could be successfully supervised and the
developmental dangers appellant faced could be successfully monitored without
electronic monitoring.
Appellant’s counsel was provided an opportunity to address the electronic search
clause, and did so by stating there was no valid legal basis for its imposition. During his
brief argument counsel made a general reference to the fact that appellant used a cell
phone and had access to social media. However, once again counsel did not specify how
the clause would impact appellant’s particular privacy interest, nor did counsel offer any
suggestion as to how the clause might be narrowed to minimize intrusion on appellant’s
privacy while serving the interest of the juvenile court in preventing future criminality
and facilitating the supervision of appellant’s probation.
After hearing from counsel, the court denied the motion to strike the electronic
search condition.
III.
DISCUSSION
A. Legal Principles and Standard of Review

Section 730, subdivision (b) authorizes the juvenile court to “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.”

8
 “ ‘A juvenile court enjoys broad discretion to fashion conditions of probation for
the purpose of rehabilitation and may even impose a condition of probation that would be
unconstitutional or otherwise improper so long as it is tailored to specifically meet the
needs of the juvenile.’ [Citation.] In In re Victor L. (2010) 182 Cal.App.4th 902 . . . , the
court explained, ‘ “The state, when it asserts jurisdiction over a minor, stands in the shoes
of the parents” [citation], thereby occupying a “unique role . . . in caring for the minor’s
well-being.” [Citation.] . . . [¶] The permissible scope of discretion in formulating terms
of juvenile probation is even greater than that allowed for adults. “[E]ven where there is
an invasion of protected freedoms ‘the power of the state to control the conduct of
children reaches beyond the scope of its authority over adults . . . .’ ” [Citation.] 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.” ’ (Id. at
pp. 909–910.) The reasonableness and propriety of the imposed condition is measured
not just by the circumstances of the current offense, but by the minor’s entire social
history. [Citation.]” (J.B., supra, 242 Cal.App.4th at pp. 753-754.)
However, while the juvenile court’s discretion is broad, it is not unlimited. “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 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 . . . .) In order to invalidate a condition of probation
under the Lent test, all three factors must be found to be present. [Citations.] This three-
part test applies equally to juvenile probation conditions. [Citation.]” (J.B., supra, 242
Cal.App.4th at p. 754.)
“In addition, a juvenile court may not adopt probation conditions that are
constitutionally vague or overbroad. [Citations.]” (Malik J., supra, 240 Cal.App.4th at
p. 901.) “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A
probation condition that imposes limitations on a person’s constitutional rights must

9
closely tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.).)
“We review the juvenile court’s probation conditions for abuse of discretion, and
such discretion will not be disturbed in the absence of manifest abuse. [Citation.] But
‘[w]hile we generally review the court’s imposition of a probation condition for abuse of
discretion, we review constitutional challenges to probation conditions de novo.’
[Citation.]” (J.B., supra, 242 Cal.App.4th at p. 754.)
B. The Electronic Search Condition Is Reasonable and Constitutional
1. The Lent Test
As noted above, the same electronic search clause challenged by appellant has
been addressed in several recent First District Court of Appeal decisions. The analytical
touchstone for all of the cases referred to in our Introduction, as well as others decided in
the relatively short time that appellate courts have been scrutinizing electronic search
clauses as conditions of juvenile probation, are the three so-called Lent factors
summarized above. In virtually all cases, it is the third factor, whether the condition is
“ ‘reasonably related to future criminality’ ” (Lent, supra, 15 Cal.3d at p. 486), that
garners the most jurisprudential attention.
And so it is here. The Attorney General does not argue forcefully or convincingly
that the electronic search clause condition imposed in this case was related to the crime
for which appellant was adjudicated to be a ward of the court—that crime was a physical
assault on appellant’s mother.5 Nor does the Attorney General argue that the electronic
search clause related to conduct that is itself criminal. Like virtually all other cases
involving challenges to this probation condition, it is the third Lent factor that is at issue.

5
The Attorney General does make reference in her brief to the unproven
allegation by mother that appellant and her sister were the source of obscene telephone
calls she had been receiving since the wardship petition was filed. However, this
speculation does not satisfy the first Lent factor as having a “relationship to the crime of
which the offender was convicted.’ ” (Lent, supra, 15 Cal.3d at p. 486.)

10
 At the February 27 hearing on appellant’s objection to the electronic search
condition, the juvenile court spoke in detail about the circumstances that created a serious
challenge to appellant remaining crime-free while on probation:
“Going back to the dispositional report dated January 8th, 2015, the report itself
on page 3 states that [appellant] stated that she no longer wants to live with her mother
. . . but has concerns that her mother will not allow her to see her brother, and that the
mother on page 4 stated that [appellant] was involved in a romantic relationship with a
23-year-old female, that [appellant] was smoking marijuana and drinking alcohol
frequently, and [appellant] has been diagnosed with depression, bipolar [disorder], and
schizophrenia, not inconsistent with the Guidance Clinic report, and that she was
hospitalized in November of 2014 due to smoking quote laced marijuana.
“So there are clearly some fairly substantial psychological issues: Drug usage
issues, issues with regards to her safety, also in the area of where she’s going to stay, and
with the fact she at that time was not yet 18 years old and had been involved in a
relationship with a 23-year-old adult shows clearly that she needs to be monitored as
closely as possible. And this situation, as the cases do allow, the probation terms and
conditions designed to monitor such issues that we have, they’re designed in this
particular case, I believe they’re designed to monitor the terms and conditions to be of
good conduct, obey all laws, the drug conditions, school conditions, curfew, where she’s
going to be, as well as her safety.
“And this person who clearly uses Facebook, that’s one version of the various
electronics that are available to her. And as the cases that are cited by [appellant’s
counsel] do indicate, that these types of terms and conditions are reasonable, because
we’re clearly looking at future criminality, we’re clearly looking at conduct which can
endanger her, conduct which will be a violation of probation terms and conditions.”
After briefly discussing several cases upholding the condition, the juvenile court
made additional references to the record evidence supporting imposition of the clause in
this case:

11
 “And one of the things that we have in dealing with our minors here on probation
is that they are very directly tied to electronics. In so many ways it governs their life, but
it certainly is the primary way they communicate. They communicate more by
electronics than by face-to-face contact. And we can put them—short of putting them in
the Hall when we have them outside, we can put them—even on GPS, we can put them
on our ankle bracelet for electronic monitoring. That’s still not going to give us the kind
of supervision that we need, that being able to access their electronics using their
passwords would provide to us.”
The juvenile court then recited record evidence concerning appellant’s tenuous
home life and social choices that supported the need for close monitoring, including
electronic monitoring:
“And in this particular case, she really has some criminality issues with regards to
drugs. She has safety issues with regards to her behavior and her lack of relationship.
She basically—as you said, [minor’s counsel], I agree she has a dysfunctional
relationship with her mother. She’s living now with her sister, who is very impressive.
She’s very, very solid. I’m so happy she’s been able to step forward. She has two jobs
herself. She’s only a couple years older. She’s 20 years old. Just turned 20
February 19th. As impressive as she is, there’s a lot to be expected of her. She’s not
going to be able to have the kind of direct supervision we’re going to need because of her
own situation.
“There’s a grandmother who is also there, and she’s—she seems to be helpful, but
she’s on the periphery, and she’s going to be able to supplement.
“There’s going to be a lot of concerns about being able to supervise [appellant],
and this prior relationship with this adult female circling, it obviously gives me great
concerns with regards to what danger the female may pose to her and a lot of drugs.
There’s a lot of issues that [appellant] has, and without her ability, my ability, to monitor
her with electronics and passwords, we’re not going to be able to appropriately help her
be successful on probation.

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 “For those reasons, the motion to modify probation terms and conditions, to delete
the search of electronics and passwords, is denied.”
These facts amply justify imposition of the electronic search condition in this
instance. Other cases from this appellate district referred to in our Introduction do not
command otherwise. Indeed, Division Two specifically emphasized that its holding
striking an electronic search clause in Erica R., supra, 240 Cal.App.4th 907 was not
intended to be a blanket precedent condemning such probation conditions under all
circumstances: “Our holding is narrow. Of course, there can be cases where, based on a
defendant’s history and circumstances, an electronic search condition bears a reasonable
connection to the risk of future criminality.” (Id. at p. 914.) In this case, appellant’s
history and circumstances mandate a degree of supervision which reasonably connects
the electronic search condition to the prevention of future criminality.
Our Supreme Court also has placed its imprimatur on the concept that conditions
of probation that facilitate supervision of the probationer can justify their imposition. In
People v. Olguin (2008) 45 Cal.4th 375, the defendant challenged a condition of
probation that required the probationer to “notify his probation officer of the presence of
any pets at [the] defendant’s place of residence.” The defendant contended the
challenged condition was not reasonably related to future criminality, limited his
fundamental rights, and was unconstitutionally overbroad. (Id. at p. 378.) The high court
disagreed, noting 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 such
pets, this notification condition facilitates the effective supervision of probationers and,
as such, is reasonably related to deterring future criminality.” (Ibid.) We reach a parallel
conclusion under these facts; the electronic search condition is reasonably related to
deterring future criminality because it facilitates the type and level of supervision of
appellant which is absolutely necessary for her to succeed on probation.

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 People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) provides
additional support for our conclusion. In that case, the defendant pleaded no contest to
making criminal threats and resisting or deterring an officer and also admitted a gang
allegation. (Id. at p. 1172.) On appeal, he challenged a probation condition requiring
him to submit passwords to all electronic devices and social media sites, and to submit to
probationary searches of those devices and sites. The Ebertowski court concluded that
the electronic search condition was reasonable under the Lent test, not only because it
was related to the defendant’s crimes, but because it “was also necessarily related to his
future criminality.” Closely monitoring the defendant’s gang associations through his use
of social media was, the court found, the “only way” to safely allow him to remain in the
community without posing “an extreme risk to public safety.” (Id. at p. 1177.) By a
parity of reasoning, the electronic search condition imposed on appellant is the best if not
the only way to safely place her with sister without posing an extreme risk to the safety of
herself, her mother and the public.
Appellant is very troubled, torn by serious mental illnesses, a dysfunctional family
life,6 a significant gap in her educational training, and poor social choices that, if not
controlled, would doom her to reoffend and to violate probation. The juvenile court did
not simply impose the electronic search clause reflexively, but with acute awareness of
the need for close supervision of appellant’s daily activities for there to be any hope of
her success on probation. Not only was this the juvenile judge’s conclusion, but the
social and mental health professionals advising the court likewise concluded that close,
daily monitoring of appellant was essential to the success of her wardship, and the safety
of appellant, her estranged family member, and the community. In fact, the department
warned that if sufficient supervision was not available for appellant, a higher level of
care, such as a residential treatment facility, should be considered.

6
Appellant’s biological father committed suicide by hanging and his body was
discovered by mother when she herself was 18 years old.

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 As did the juvenile court, we conclude that the electronic search condition in this
case was not only warranted, but vital to ensure appellant’s compliance with the terms of
her probation. It also represents perhaps the best means by which the panoply of social
and mental challenges that appellant must confront and overcome can be supervised and
monitored. This was necessary, not only for appellant’s sake, but to protect the public.
Thus, the record here stands in stark contrast to Erica R. and Mark C., which
concluded that under the facts of those cases, the risk of future criminality did not justify
imposition of the electronic search clauses. For example, in Erica R. the court found
there was “ ‘no reason to believe’ ” that the electronic search condition would “ ‘serve the
rehabilitative function of precluding [the minor] from any future criminal acts.’
[Citation.]” (Erica R., supra, 240 Cal.App.4th at p. 913.) Similarly, in Mark C. the court
found no reasonable connection between the minor’s criminal behavior (possession of a
folding knife on school property), and the risk of future drug use, sufficient to justify
imposition of the electronic search clause. (Mark C., supra, 244 Ca.App.4th at pp. 525,
535.) Nor is this a case, like J.B., where the court rejected an electronic search clause
because the asserted justification was only to “facilitate general oversight of the
individual’s activities.” (J.B., supra, 242 Cal.App.4th at p. 758.) Here, imposition of an
electronic search clause as a condition of appellant’s probation was a reasonable means
of imposing the level of supervision required to prevent future criminality and, therefore,
it was not an abuse of discretion for the juvenile court to include it.
2. The Overbreadth Doctrine
Appellant alternatively argues that if the electronic search condition is reasonably
related to preventing her future criminal conduct and the supervision of her probation, it
nevertheless is unconstitutionally overbroad because it is not narrowly tailored to achieve
those objectives without unduly impairing her First Amendment rights. We disagree.
Appellant’s broad array of problems mandates intensive supervision in order for
her to have any chance of success on probation. Thus, a broader search condition is
justified here. Again, Ebertowski, supra, 228 Cal.App.4th 1170 reinforces our
conclusion. The electronic search condition in that case was not unconstitutionally

15
overbroad because the defendant’s gang affiliation was undisputed and the “evident
purpose of the password conditions was to permit the probation officer to implement the
search, association, and gang insignia conditions that were designed to monitor and
suppress [the] defendant’s gang activity. Without passwords for [the] defendant’s
devices and social media accounts, the probation officer would not be able to search them
. . . in order to assess [the] defendant’s compliance with the unchallenged association and
gang insignia conditions.” (Id. at p. 1175.) In this case, it was undisputed that appellant
needed intensive supervision if she was released from juvenile hall. A broad electronic
search condition is consistent with that level of supervision.
Appellant now suggests that the electronic search condition imposed on her was
not narrowly tailored in several respects. She notes that the password disclosures
required in Ebertowski were limited to social media accounts, but here the clause covers
all of her electronic passwords “including passwords [relating] to banking, health care,
educational and other accounts.”
We begin by pointing out that constitutional challenges to probation conditions
that do not involve a pure question of law are subject to forfeiture if not raised in the trial
court. As our Supreme Court has stated, “we do not conclude that ‘all constitutional
defects in conditions of probation may be raised for the first time on appeal, 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.”
[Citation.] In those circumstances, “[t]raditional objection and waiver principles
encourage development of the record and a proper exercise of discretion in the trial
court.” [Citation.]’ [Citation.]” (In re Sheena K., supra, 40 Cal.4th at p. 889.)
Whether or not appellant’s particularized arguments regarding overbreadth have
been preserved, this principle serves to highlight the fact that there is nothing in the
record supporting the supposition that 17-year-old appellant has applications relating to
banking, health care, or educational Web sites or accounts, nor does the record offer any

16
information as to how appellant uses electronic devices and how the search clause might
infringe on her daily privacy.7
Appellant also asserts that the clause is overbroad because it creates a risk that
probation department workers could “control and modify her personal accounts.” Again,
there was no evidence presented below that appellant had access to any such accounts.
This conjectural risk simply does not override the importance that the probation
department have access to appellant’s passwords for legitimate rehabilitative and
supervisorial purposes.
Rather than assume such rogue probation supervision is likely to occur, or
speculate as to how appellant’s individualized privacy could be impacted by the
electronic search clause, we will simply point out that appellant is not without a remedy.
If she can articulate specific concerns as to how the electronic search clause actually
impacts her privacy adversely, that matter may be brought to the attention of the juvenile
court in a motion to modify the terms of appellant’s probation. (§ 1203.3, subd. (a) [“The
court shall have authority at any time during the term of probation to revoke, modify, or
change its order of suspension of imposition or execution of sentence.”]; People v.
Cookson (1991) 54 Cal.3d 1091.)8
To be sure, there are cases that have held electronic search clauses imposed as a
condition of probation to be unconstitutionally overbroad, given the circumstances of the
particular case. But, it should be clear from the above recitation from the juvenile court
record that we are reviewing a rather unique constellation of facts in this delinquency
matter. Appellant does not need her electronic devices monitored simply because she is a

7
While there is a record reference to appellant having a cell phone, there is no
information as to whether it is a smart phone that provides broader communication and
Internet access. Also, it is unclear whether appellant’s access to Facebook as referenced
in the record was limited to computer access.
8
To preserve judicial resources and to protect the ward’s rights and to further the
goals and purposes of the juvenile wardship structure, we think it is the better practice to
have the particulars of electronic device access probation conditions raised by the minor’s
counsel and addressed by the juvenile court in the first instance.

17
drug and alcohol user, or a chronic truant, or a person suffering from significant mental
health issues, or someone who is trying to adjust to a new home life with her young
sister, or because she is a potential danger to mother and the public. The clause is
justified here because appellant has all of these challenges and issues.
Under the circumstances, and on this record, the court’s use of the most accessible
tools available to supervise appellant’s progress on probation furthers the juvenile court’s
wardship responsibility and was not unconstitutionally overbroad. “The purposes of
juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor,
and to protect the public from criminal conduct. [Citations.] The preservation of the
safety and welfare of a state’s citizenry is foremost among its government’s interests, and
it is squarely within the police power to seek to rehabilitate those who have committed
misdeeds while protecting the populace from further misconduct.” (In re Jose C. (2009)
45 Cal.4th 534, 555.) With these two purposes in mind, “the juvenile court has statutory
authority to order delinquent wards to receive ‘care, treatment, and guidance that is
consistent with their best interest, that holds them accountable for their behavior, and that
is appropriate for their circumstances.’ ” (In re Charles G. (2004) 115 Cal.App.4th 608,
615.) “All dispositional orders in a wardship case must take into account the best
interests of the child and the rehabilitative purposes of the juvenile court law. [Citation.]”
(In re S.S. (1995) 37 Cal.App.4th 543, 550.)
3. Penal Code section 632
Alternatively, appellant argues that the electronic search condition permits the
intrusion on the privacy of third parties in violation of Penal Code section 632 (section
632).9

9
Section 632, subdivision (a) provides: “Every 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].”

18
 First, appellant forfeited this claim by failing to raise it in the trial court. (People
v. Aguilar (2015) 60 Cal.4th 862, 867-868.) Second, it is based solely on the privacy
rights of third parties under Penal Code section 632. Therefore, appellant lacks standing
to raise the issue. “Courts are created to resolve cases and controversies and not to render
advisory opinions or resolve questions of purely academic interest. Accordingly, courts
will not consider issues tendered by a person whose rights and interests are not affected.”
(B.C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929, 947–948.)
C. The School Grounds Condition is Vague and Must Be Modified
The disposition order also subjects appellant to a school grounds condition which
requires that she “[n]ot be on the campus or grounds of any school unless enrolled,
accompanied by a parent or guardian or responsible adult, or authorized by the prior
permission of school authorities.” She asserts this school grounds condition is
unconstitutionally vague unless it is modified to include a “knowledge” requirement,
such that appellant can only be adjudged to violate her probation if she is on property she
knows is part of a school campus or grounds. Appellant reasons as follows:
“While some school grounds are readily identified as such, that is not always the
case. The boundaries of school campuses can include, for example, athletic fields,
theaters, residence halls, restaurants and churches or other places of worship.
Accordingly, the probation condition requiring that appellant ‘not be on the campus or
grounds of any school unless enrolled, accompanied by a parent or guardian or
responsible adult, or authorized by prior permission of school authorities’ must be
modified to require proof of knowledge. [Citation.]”10
This division recently had occasion to address the “knowledge” or “scienter” issue
in In re Kevin F. (2015) 239 Cal.App.4th 351 (Kevin F.). The minor in that case sought
to modify a condition of probation that prohibited him from possessing “ ‘anything that

10
While appellant concedes that her trial counsel did not object to the school
grounds condition, respondent acknowledges that a facial constitutional challenge to a
probation condition is subject to de novo review and is not forfeited by the failure to
object in the trial court. (Sheena K., supra, 40 Cal.4th at p. 889.)

19
you could use as a weapon or someone else might consider to be a weapon.’ ” (Id. at
p. 357.) We began our analysis of that issue with a review of the origins of the
constitutional prohibition against vague probation conditions:
“The prohibition on vagueness is rooted in ‘ “ordinary notions of fair play and the
settled rules of law,” and a statute that flouts it “violates the first essential of due
process.” ’ [Citation.] This concern for fair warning is aimed at ensuring that a ‘ “person
of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that
he may act accordingly.” ’ [Citation.] The fear is that vague laws will ‘ “trap the
innocent.” ’ [Citation.] More broadly, ‘ “ ‘a law that is “void for vagueness” . . .
impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.” ’ ” ’ [Citation.]” (Kevin F., supra, 239 Cal.App.4th at
pp. 357-358.)
We went on to conclude that the weapon use condition at issue in Kevin F. was
unconstitutional, holding that without a knowledge or scienter modifier the prohibition
quoted above did not provide adequate notice of the prohibited conduct. (Kevin F.,
supra, 239 Cal.App.4th at pp. 360-361.) We pointed out that the language was broad
enough to prohibit possession of an “ordinary household object” that could injure
someone if used as a weapon, even if the minor did not have the intent to use it in that
fashion. (Ibid.)
Applying the rationale of Kevin F. and others like it,11 we conclude the school
grounds condition imposed here is unconstitutionally vague without a knowledge
requirement. Appellant is correct that the clause goes far beyond prohibiting
unauthorized presence in school buildings or other areas where there can be no doubt the

11
Examples of cases in which the court modified conditions of probation to
include a knowledge requirement include: Sheena K., supra, 40 Cal.4th at pp. 891-892
[probation condition limiting association with anyone disapproved by probation
department]; People v. Kim (2011) 193 Cal.App.4th 836, 843 [firearm possession clause];
In re Victor L. (2010) 182 Cal.App.4th 902, 912-913, 931 [weapon and ammunition
possession].)

20
area is part of a school campus (a gymnasium, for example). Instead, it covers any
physical area that comprises part of a school “ground” or campus. Given the diverseness
and expansiveness of some school facilities, it is easy to imagine appellant being present
in an area that is part of a school ground, but where there is no indicia of that association.
For this reason, the school grounds condition is modified to include a “knowledge”
requirement, as set forth below.
IV.
DISPOSITION
The school grounds condition is modified to read: “The minor shall not knowingly
be on the campus or grounds of any school unless enrolled, accompanied by a parent or
guardian or responsible adult, or authorized by the prior permission of school
authorities.” As modified, the judgment is affirmed.

_________________________
RUVOLO, P. J.

We concur:

_________________________
REARDON, J.

_________________________
RIVERA, J.

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Trial Court: Alameda County Superior Court

Trial Judge: Hon. Leopoldo E. Dorado

Counsel for Appellant: Stephanie M. Adraktas, by appointment
of the Court of Appeal under the First
District Appellate Project’s Assisted Case
System

Counsel for Respondent: Kamala D. Harris
Attorney General of California

Gerald A. Engler
Chief Assistant Attorney General

Jeffrey M. Laurence
Acting Senior Assistant Attorney General

Seth K. Schalit
Supervising Deputy Attorney General

Donna M. Provenzano
Supervising Deputy Attorney General

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