Filed 4/26/16 In re A.D. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re A.D., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A146136
v.
A.D., (Alameda County
Super. Ct. No. SJ15025001)
Defendant and Appellant.
In this case we are asked to review two conditions of probation imposed by the
juvenile court after appellant admitted to misdemeanor possession of marijuana, a
violation of Health and Safety Code section 11357, subdivision (a). After due
consideration we modify the “electronic device” condition and affirm the “weapons”
condition.
STATEMENT OF THE CASE
On May 22, 2015, appellant and several of his companions were found in
Kennedy Park during normal school hours. The police observed the youths were of
school age, and possibly truant. As the officers approached appellant and his friends, the
police noticed the smell of marijuana and asked the youths if anyone was in possession of
marijuana. Appellant admitted he had marijuana in his pocket. He then removed a
backpack and permitted the officers to search it.
An officer found a white plastic container of concentrated marijuana in appellant’s
pocket. He also discovered a plastic container of hash oil. Appellant’s wallet contained
$116 in various denominations. When the officer searched appellant’s backpack he
found 11 plastic containers of marijuana and marijuana residue, as well as several plastic
baggies and a scale with marijuana residue. Additionally, appellant had a cell phone, but
the officer was not able to explore the contents of the device.
On June 8, 2015, the District Attorney of Alameda County filed a wardship
petition against appellant pursuant to Welfare and Institutions Code section 602. The
petition alleged felony possession of marijuana for sale, a violation of Health and Safety
Code section 11359. On June 30, the petition was amended to allege misdemeanor
possession of marijuana, a violation of Health and Safety Code section 11357,
subdivision (a). The minor admitted to this amended offense.
The disposition hearing was held on August 17, 2015. The court adjudged the
minor a ward of the court and placed him on home probation. The court imposed several
conditions while the minor was on probation, including the two now challenged. The
court required appellant to submit to “a search of . . . [his] electronics, and passwords, all
being provided according to the request of the Probation Officer or Peace Officer . . .,”
and that the minor “not own, possess, or handle any firearm, knife, weapon, fireworks,
explosives, or chemicals that can produce explosives, or any other deadly or dangerous
weapon.”1 Appellant objected to these conditions. The trial court stated it was imposing
the conditions based on the court’s own experience with the connection between drugs
and guns, and drugs and electronic devices. The court stated further, “[W]hen you have
people involved in drugs, they use electronics to connect with maybe their suppliers and
connect with clients to display themselves in the possession of marijuana.” The
1
Both conditions are worded slightly differently in the clerk’s minutes, but appellant
acknowledges both versions convey essentially the same ideas.
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probation report provided at the disposition hearing indicated there were 88 grams of
marijuana in the backpack. The concentrated cannabis found weighed 4.2 grams and the
hash oil was 0.2 grams.
DISCUSSION
Appellant challenges the electronic device condition on grounds with which we
have recently become quite familiar. Indeed, each division of the First District has
perhaps become overly familiar with the two specific issues raised by appellant regarding
this social media access condition. We are asked to find the electronics condition
improper because it violates People v. Lent (1975) 15 Cal.3d 481 (Lent); and because the
specific condition is also overbroad.
Regarding the Lent issue, we previously expressed our view on the issue in In re
Alejandro R. (2015) 243 Cal.App.4th 556. Our Supreme Court has granted review of this
case (review granted Mar. 9, 2016, S232240). We believe this current appeal presents a
better instance where the electronic device restriction was necessary to properly supervise
the minor potentially involved in drug dealing; we noted that drug sellers and users often
use social media for their sales and to advertise their product. The electronic device
condition provided more than sufficient nexus between the offense and the condition to
satisfy the Lent requirements. (Lent, supra, 15 Cal.3d 481.) Appellant’s claim here is
there is no “relationship” between the finding of marijuana possession and the probation
condition imposed. He alleges the condition does not relate to future criminality.
As a general rule, a trial judge in delinquency court has authority 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.” (Welf. & Inst. Code, §730, subd. (b), italics added; see id., §202, subd. (b).)
“Nothing in this section shall be construed to limit the authority of a juvenile court to
provide conditions of probation.” (Welf. & Inst. Code § 729.1, subd. (a)(1).) In deciding
what conditions to place on a juvenile probationer, “ ‘ “the juvenile court must consider
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not only the circumstances of the crime but also the minor’s entire social history.” ’ ” (In
re Jason J. (1991) 233 Cal.App.3d 710, 714, overruled on another point in People v.
Welch (1993) 5 Cal.4th 228, 237.) “ ‘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.’ ” (In re J.B. (2015) 242 Cal.App.4th 749,
753–754.) The conditions of probation fashioned by a juvenile court are distinguishable
from the determinations of an adult court. In the juvenile setting, as here, a probation
condition “is an ingredient of a final order for the minor’s reformation and
rehabilitation.” (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1089.) “ ‘[J]uvenile
probation is not an act of leniency, but it is a final order made in the minor’s best
interest.’ ” (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on another point in In re
Jaime P. (2006) 40 Cal.4th 128, 130.) In “appreciating” the final order of the juvenile
court in this case, we observe appellant had not only a substantial quantity of various
illegal drugs but also a scale and packaging suggesting the contraband was possessed for
future transactions. Monitoring illicit use of an electronic device is rationally based to
assess future suspected dealing by the minor. This access by law enforcement or
probation is consistent with the above statutory and precedent-based goals. Under the
facts here, the sentencing court’s decision to permit access to social media devices
possessed by appellant is reasonably based and appropriate.
There has been an increased number of cases dealing with probation conditions
permitting the review of cell phones and other such devices by probation and law
enforcement. The fact remains giving probation access to electronic devices allows law
enforcement to monitor future conduct. Recently, cases have found no Lent violation
when this condition was used to regulate an individual’s relationships after her assault
against her parent was sustained (In re A.S. (2016) 245 Cal.App.4th 758 (A.S.), or the
defendant engaged in a consensual encounter with a 16-year-old boy (People v. Appleton
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(2016) 245 Cal.App.4th 717 (Appleton). In each case the appellate court concluded the
trial court appropriately imposed the electronic device condition to regulate future
behavior.
We acknowledge that in each of these cases, the facts evidenced use of an
electronic device in the history of the case. Yet the minor in A.S. was not using a cell
phone during her assault of her mother (A. S., supra, 245 Cal.App.4th 758, 762).
Appleton had not used a cell phone when he reached out to the teenager on the date of
sexual misconduct (Appleton, supra, 245 Cal.App.4th 717, 719–720). Still, in today’s
world, the potential use of electronic devices, even if not evidenced in the facts of a
particular case, is highly likely. Appellant cannot credibly argue monitoring cell phone
use in Appleton or A.S. is proper but not valid in this case, where the appellant
demonstrates strong circumstantial evidence he is dealing in illegal drugs and has a cell
phone in the same backpack with his scale and baggies of marijuana.
Much of the recent complaint is a result of language in Riley v. California (2014)
___U.S.___ [134 S.Ct 2473, 2488–2489], dealing with cell phone devices. However,
Riley dealt with a search incident to an arrest of a person who had no probation condition.
It was not a case dealing with a minor who has admitted wrongdoing and has been
granted probation to ensure his rehabilitation. Appleton specifically addressed the
condition at issue in light of Riley. The case recognized the probation issue was outside
the context of Riley. (Appleton, supra, 245 Cal.App.4th at pp. 724–725.) As the
Supreme Court in Samson v. California (2006) 547 U.S. 843, 853 recognized, “[T]his
Court has repeatedly acknowledged that a State’s interests in reducing recidivism and
thereby promoting reintegration and positive citizenship among probationers and parolees
warrant privacy intrusions that would not otherwise be tolerated under the Fourth
Amendment.” (See United States v. Bare (9th Cir. 2015) 806 F.3d 1011, 1018 [search of
electronic devices condition not an abuse of discretion for a defendant convicted of
weapons possession].)
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As an appellate court, we recognize deference must be ascribed to probation
conditions imposed by the trial courts as part of juvenile dispositions. The court below
explained its reasons for the electronic device condition. Under the facts and
circumstances of this case, most reasonable minds would agree it makes sense to allow
probation review of cell phone usage by this appellant. Therefore, Lent’s third prong
aiming to prevent future criminality is satisfied. (Lent, supra, 15 Cal.3d at p. 486; see
People v. Olguin (2008) 45 Cal.4th 375, 379–380.)
On the issue of overbreadth, the issue is the “closeness of the fit between the
legitimate purpose of the restriction and the burden it imposes on the defendant’s
constitutional rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.” (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.) In this case, the condition regarding electronic
devices focuses on instruments used by people selling drugs that assist in the transactions.
These items are used to set up deals, display product, contact suppliers of drugs and like
features of contemporary criminal drug trafficking. Therefore, once we acknowledge the
validity of a condition permitting the inspection of social media, the issue becomes
drafting a condition that makes inspection constitutionally correct. In other words, we do
not want an overbroad and constitutionally infirm condition on appellant’s social media
devices.
In this case, the trial court required appellant to submit to “a search of . . . [his]
electronics, and passwords” at the request of a probation officer or peace officer. We
shall correct this language to avoid its overbreadth relative to the phrase “electronics
including passwords” to words addressing the conduct for which the minor was placed on
probation and which aim at avoiding similar behavior in the future; i.e., making sure the
appellant does not reoffend while on probation for a drug offense. The new condition on
electronic devices should now read: “The minor shall submit all electronic devices under
your control to a search of any medium of communications reasonably likely to reveal
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whether you are boasting about your drug use or otherwise involved with drugs, with or
without a search warrant, any time day or night, and provide the probation or peace
officer with any passwords necessary to access the information specified. Such media of
communications include text messages, voicemail messages, photographs, e-mail
accounts, and social media accounts.” We believe this language, while not as terse as the
condition challenged in the appeal, provides the minor, as well as law enforcement, with
a proper understanding of the particular condition enforceable in this probation. Clarity
sometimes necessitates greater detail.
The weapons condition challenged here states appellant is “not [to] own, possess,
or handle any firearm, knife, weapon, fireworks, explosives or chemicals that can
produce explosives, or any other deadly or dangerous weapon.” Appellant alleges this
language is improperly vague and needs to be modified to include a scienter requirement.
We do not agree.
We have previously discussed the subject of weapons conditions in People v.
Gaines (2015) 242 Cal.App.4th 1035, which is now pending before the California
Supreme Court (review granted Feb. 17, 2016, S231723).
When dealing with weapon conditions, we are not considering items or behavior a
probationer does not fully appreciate and understand. Items such as firearms, knives,
fireworks, and explosives are sufficiently specific to allow a common understanding
among all probationers. We all know what these items are and why a person would be
prohibited from possessing them. “Case law confirms the plain meaning definition of
‘deadly weapon’ as ‘ “any object, instrument, or weapon which is used in such a manner
as to be capable of producing, and likely to produce, death or great bodily injury.” ’ ”
(In re R.P. (2009) 176 Cal.App.4th 562, 567 (R.P.), first italics added, second italics in
original.) CALCRIM defines a deadly weapon as “any object, instrument, or weapon that
is inherently deadly or one that is used in such a way that it is capable of causing and
likely to cause death or great bodily injury.” (CALCRIM Nos. 875, 2503, 3130.) As
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R.P. concluded, “As a result of these well-defined terms, the phrase ‘dangerous or deadly
weapon’ is clearly established in the law. Accordingly, the ‘no-dangerous-or-deadly-
weapon’ probation condition is sufficiently precise for R.P. to know what is required of
him.” (R.P., at p. 568. )
Generally, especially with this condition, a person can only be in violation of
probation if he willfully possesses the prohibited item. (People v. Galvan (2007)
155 Cal.App.4th 978, 983.) “[A] trial court may not revoke probation unless the
defendant willfully violated the terms and conditions of probation.” (People v. Moore
(2012) 211 Cal.App.4th 1179, 1186 (Moore).) This weapons condition approved here
provides appellant with advance notice of what conduct is prohibited, and therefore is
narrowly drawn. As the court in Moore observed, “Moore’s concern is not that he is
unable to discern what conduct is prohibited. Instead, he worries that he might
accidentally possess an item he would readily recognize as prohibited by the probation
condition. Under these circumstances, the requirement that a violation of the weapons
condition must be willful and knowing adequately protects him from being punished for
innocent possession. The addition of an express knowledge requirement would add little
or nothing to the probation condition.” (Id. at p. 1188.) While the scienter element has
been imposed in a weapons condition in a recent case (In re Kevin F. (2015)
239 Cal.App.4th 351, 366), the general rule of willfulness has been the standard for a
considerable period, especially when the condition identifies “deadly or dangerous”
weapons. (R.P., supra, 176 Cal.App.4th at pp. 567–568; Moore, supra, 211 Cal.App.4th
at p. 1186.)
In this case, the weapons condition imposed is very explicit as to prohibited
weapons. Here the condition obviously lists specific weapons of violence and then adds
the catch-all prohibition against “other deadly or dangerous weapon[s].” It only tells
appellant in a common sense way what he cannot have in his possession. No more is
needed.
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CONCLUSION
In summary, we find the probation condition imposed here dealing with electronic
devises does not violate Lent, supra, 15 Cal.3d 481. We also conclude the weapons
condition as stated is not overbroad and does not require an express scienter modification.
We do modify the electronic device condition to state the following: “The minor shall
submit all electronic devices under your control to a search of any medium of
communications reasonably likely to reveal whether you are boasting about your drug use
or otherwise involved with drugs, with or without a search warrant, any time day or night,
and provide the probation or peace officer with any passwords necessary to access the
information specified. Such media of communications include text messages, voicemail
messages, photographs, e-mail accounts, and social media accounts.” In all other
respects the judgment is affirmed.
DISPOSITION
The judgment is affirmed as modified.
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_________________________
DONDERO, J.
We concur:
_________________________
MARGULIES, Acting P.J.
_________________________
BANKE, J.
A146136
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