People v. I.V.

Filed 4/28/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re I.V., a Person Coming Under the
Juvenile Court Law.
D070611
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J236560)

v.

I.V.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H.

Katz, Judge. Affirmed.

Daniel Brian Yeager, under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Alastair J.

Agcaoili and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
 Minor I.V. appeals a dispositional order adjudging him a ward of the court

pursuant to Welfare and Institutions Code1 section 602 and placing him on formal

probation, subject to various terms and conditions. On appeal, I.V. argues that the

juvenile court erroneously imposed a probation condition requiring him to enroll in the

Reflections Day Center Treatment Program (Reflections) without making necessary

findings about his special educational needs under California Rules of Court,2 rule

5.651(b)(2)(D). I.V. also argues that a probation condition allowing warrantless searches

of his "person, property, vehicle, and any property under his/her immediate custody or

control" is unconstitutionally vague and overbroad because it may encompass searches of

his electronic devices and data. We affirm the judgment.3

FACTUAL AND PROCEDURAL SUMMARY

In May 2016, 15-year-old I.V. became angry with his mother when she would not

give him shopping money. He went into his bedroom in his grandfather's home, punched

and kicked the walls, and threatened his grandfather when his grandfather tried to

intervene. I.V.'s mother called the police, who arrived to find a broken lock on I.V.'s

bedroom door, a damaged bed frame, holes in the wall, and damaged furniture.

1 Further statutory references are to the Welfare and Institutions Code, unless
otherwise specified.

2 Further rule references are to the California Rules of Court.

3 The disposition order is the final step in a section 602 proceeding and constitutes
an appealable judgment. (In re Z.A. (2012) 207 Cal.App.4th 1401, 1404, fn. 2.)

2
 The San Diego County District Attorney filed a petition pursuant to section 602,

alleging that I.V. had committed felony vandalism (Pen. Code, § 594, subd. (a)(b)(1)).

The juvenile court ordered that I.V. be detained outside the home and that he undergo a

psychological evaluation.

Psychologist Richard Jordan evaluated I.V. and submitted a report. I.V. informed

Dr. Jordan that he had previously been diagnosed with ADHD (attention deficit

hyperactivity disorder) and ODD (oppositional defiant disorder), but he claimed to no

longer experience ADHD symptoms and said that he had not taken medication in two

years. I.V. told Dr. Jordan that he had an individualized education program (IEP) at

school but did not state the reason.4 I.V.'s K-BIT25 test results indicated that he had a

composite I.Q. in the 7th percentile and was "functioning in the below-average range

intellectually, with . . . no significant strengths or weaknesses." I.V.'s WRAT-46 scores

indicated that he was "performing in the average range, with no significant strengths or

weaknesses" and that he did not have a learning disorder. Dr. Jordan concluded that

I.V.'s cognition "appeared normal and intact"; his memory was good, and his insight and

judgment were fair. He diagnosed I.V. with Disruptive Behavior Disorder and

4 An IEP is a comprehensive statement of a disabled child's educational needs and
the specifically designated instruction and related services that will meet those needs. (In
re Carl R. (2005) 128 Cal.App.4th 1051, 1067; see discussion, post.)

5 The Kaufman Brief Intelligence Test, Second Edition, is used to measure verbal
and nonverbal cognitive ability.

6 The Wide Range Achievement Test, Fourth Edition, measures reading, sentence
comprehension, spelling, and math computation abilities.

3
recommended individual therapy, but he found I.V. to be "stable and symptom-free" and

did not recommend a "psychotropic medical evaluation."

At the settlement conference in early June, I.V. asked the court to release him on

home supervision. His trial counsel stated that I.V. had to attend an IEP appointment at

school, attend individual counseling, and see a psychiatrist to inquire about ADHD

medication. The court granted the request and released I.V. on home supervision.

At the adjudication hearing on June 16, 2016, the juvenile court heard testimony

from I.V.'s mother, grandfather, and the responding police officer and received in

evidence a video recording of the incident. The court determined that the People had not

proven beyond a reasonable doubt that the damage exceeded $400 so as to sustain the

felony vandalism allegation in the petition. However, the court sustained the petition,

finding that I.V. had committed the lesser included offense of misdemeanor vandalism

(Pen. Code, § 594, subd. (b)(2)(A)).

In late June, the probation department submitted a social study evaluating I.V. for

the disposition hearing. The social study noted I.V.'s history of damaging property when

upset and his mother's tendency to downplay his volatile behavior. The social study

indicated that I.V. entered special education during his elementary school years but did

not take advantage of available services, and that he had an IEP of an unknown date.

4
I.V.'s mother reported that I.V. had had an IEP in place since elementary school.7 The

probation department requested a copy of I.V.'s current IEP, but the high school registrar

did not honor the request. I.V.'s high school did send a record of his grades, attendance,

and disciplinary actions. I.V. received failing grades in all of his classes in his first

semester of high school, and he had a history of truancy. He was suspended for

possessing marijuana and was subsequently expelled from his high school. He finished

his freshman year at San Diego S.O.A.R. Academy, where he received slightly better

grades. I.V.'s mother reported that her son did not drink alcohol, consume illicit

substances in the last year, or have any gang affiliations.

Given I.V.'s poor academic performance and history of truancy, the social study

recommended that the court order him to participate in Reflections as a condition of

probation, suggesting that I.V. would benefit from the structured environment,

psychiatric and counseling services, and wraparound services that the program would

provide. The probation department attached a copy of Dr. Jordan's psychological

evaluation to the social study.

At the disposition hearing on June 30, 2016, the juvenile court adopted the

probation department's recommendations, adjudged I.V. a ward of the court pursuant to

section 602, and placed him on supervised probation under his mother's care. Among the

7 The social study questioned I.V.'s mother's credibility; although she told the
probation officer that I.V. attended monthly therapy to treat his ADHD, ODD, and
"Impulsivity Disorder," she previously told Dr. Jordan that I.V. had not seen a
psychiatrist for a year.

5
conditions of probation was a requirement that I.V. participate in the Reflections program

(the Reflections condition):

"The minor . . . shall successfully complete the Reflections Day
Center Program and abide by the rules and conditions of the
program. If, for the protection of the minor, staff, or other wards, the
Reflections staff deems it necessary to temporarily remove minor
from the program, the minor may be detained in Juvenile Hall for a
period not to exceed 36 hours for stabilization and mental health
crisis intervention."

I.V. objected to the Reflections condition, but the court overruled his objection and

denied his request to set a contested disposition hearing to assess his special educational

needs.8 In addition to the Reflections condition, the juvenile court imposed the following

search condition:

"Minor shall submit his/her person, property, or vehicle, and any
property under his/her immediate custody or control to search at any
time, with or without probable cause, with or without a search
warrant by any law enforcement officer or peace officers, probation
officers, school officials or officers, and any other state security
officers or agents engaged in the lawful performance of their duties."

I.V. timely appealed.

DISCUSSION

On appeal, I.V. challenges the Reflections condition, arguing that the juvenile

court failed to make necessary findings under rule 5.651(b)(2) as to his special

educational needs. He also challenges the search condition as unconstitutionally vague

and overbroad because it could permit warrantless searches of I.V.'s electronic devices

and data. We disagree with both contentions and conclude that: (1) the juvenile court

8 To avoid repetition, we include additional procedural history in our discussion.

6
sufficiently considered I.V.'s educational needs when it imposed the Reflections

condition; (2) I.V. forfeited his overbreadth challenge by failing to object in the juvenile

court; and (3) reasonably construed, the search condition does not encompass searches of

electronic data and is not unconstitutionally vague.

A. The Reflections Condition

I.V. contends that the juvenile court failed to comply with rule 5.651(b)(2)(D)

when it imposed the Reflections condition. As we explain, we conclude that the court

complied with the rule by sufficiently considering I.V.'s educational needs.

1. Legal Principles

Special education law involves an interplay of state and federal statutes. Pertinent

here, at the federal level, Congress enacted the Individuals with Disabilities Education

Act (IDEA) "to ensure that all children with disabilities have available to them a free

appropriate public education that emphasizes special education and related services

designed to meet their unique needs . . . ." (20 U.S.C. § 1400(d)(1)(A).) Pursuant to the

IDEA, a "child with a disability" is a child who needs "special education and related

services" on account of "intellectual disabilities, hearing impairments (including

deafness), speech or language impairments, visual impairments (including blindness),

serious emotional disturbance. . . , orthopedic impairments, autism, traumatic brain

injury, other health impairments, or specific learning disabilities[.]" (20 U.S.C.

§ 1401(3)(A); see 34 C.F.R. § 300.8(a)(1).)

The IDEA lays out a substantive procedure for developing an individualized

education program (IEP) for children with disabilities. (County of San Diego v.

7
California Special Ed. Hearing Office (9th Cir. 1996) 93 F.3d 1458, 1461.) A parent or

local educational agency may request an initial evaluation. (20 U.S.C. § 1414(a)(1)(B).)

If a child is deemed to be a "child with a disability," an IEP Team consisting of parents,

teachers, and local agency representatives then prepare an IEP for the student. (20 U.S.C.

§ 1414(d)(1)(A)-(B).) The IEP describes how the student's disability affects his or her

performance in the general education curriculum, recommends specifically designed

instruction and related services "reasonably calculated to enable a child to make progress

appropriate in light of the child's circumstances," and sets measurable annual goals. (20

U.S.C. § 1414(d)(1)(A)(i); Endrew F. ex rel. Joseph F. v. Douglas County School Dist.

RE-1 (2017) 137 S.Ct. 988, 1001; see In re Carl R., supra, 128 Cal.App.4th at p. 1067.)

At the state level, Education Code section 56000 provides that "all individuals

with exceptional needs have a right to participate in free appropriate public education."

An "individual with exceptional needs" is one who has been identified by an IEP Team as

a "child with a disability" under the IDEA; has an impairment that "requires instruction

and services, which cannot be provided with modification of the regular school program";

and meets certain eligibility criteria. (Ed. Code, § 56026, subds. (a)-(d); see Cal. Code

Regs., tit. 5, § 3030.) Students "whose educational needs are due primarily to limited

English proficiency; a lack of instruction in reading or mathematics; temporary physical

disabilities; social maladjustment; or environmental, cultural, or economic factors" are

not individuals with exceptional needs. (Ed. Code, § 56026, subd. (e).)

The California Rules of Court implement these federal and state mandates in

juvenile delinquency proceedings. "Rules of court have the force of law and are as

8
binding as procedural statutes as long as they are not inconsistent with statutory or

constitutional law." (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.) Rule

5.651 incorporates federal and state laws regarding education and developmental services

but does not purport to create new rights. (Rule 5.651(a).) Pursuant to rule

5.651(b)(2)(A), at the disposition hearing or any subsequent hearing affecting the minor's

education, the juvenile court must determine whether the minor's educational needs,

including the need for special education and related services, are being met. The court's

findings and orders must address whether the minor's educational needs are being met

and indicate any special education and related services, assessments, or evaluations the

minor may need. (Rule 5.651(b)(2)(E).)9

Before a dispositional hearing, the juvenile court "must ensure that, to the extent

the information was available, the social worker or the probation officer provided

[certain] information in the report for the hearing." (Rule 5.651(c), italics added.) In

particular, where available, reports must: indicate whether the child has "physical,

mental, or learning-related disabilities or other characteristics indicating a need for

9 Rule 5.651(b)(2) provides, in relevant part: "At the dispositional hearing and at all
subsequent hearings described in (a)(2), the court must: [¶] (A) Consider and determine
whether the child's or youth's educational, physical, mental health, and developmental
needs, including any need for special education and related services, are being met; [¶]
(B) Identify the educational rights holder on form JV-535; and [¶] (C) Direct the rights
holder to take all appropriate steps to ensure that the child's or youth's educational and
developmental needs are met. [¶] The court's findings and orders must address the
following: [¶] (D) Whether the child's or youth's educational, physical, mental health, and
developmental-services needs are being met; [¶] (E) What services, assessments, or
evaluations, including those for developmental services or for special education and
related services, the child or youth may need . . . ."

9
developmental services or special education and related services"; indicate whether the

child "is receiving special education and related services or any other services through a

current [IEP]"; and attach a copy of the minor's current IEP. (Rule 5.651(c)(5) & (c)(8).)

Although both parties suggest that the de novo standard of review applies to

evaluate the court's compliance with rule 5.651, we conclude that the correct standard is

abuse of discretion. The juvenile court has broad discretion to select appropriate

conditions of probation. (§ 730, subd. (b); see In re Sheena K. (2007) 40 Cal.4th 875,

889 (Sheena K.).) " 'A discretionary order that is based on the application of improper

criteria or incorrect legal assumptions is not an exercise of informed discretion, and is

subject to reversal even though there may be substantial evidence to support that order.' "

(In re Ray M. (2016) 6 Cal.App.5th 1038, 1051.) Under this standard, we find no error.

2. Application

At the dispositional hearing, the court indicated that it was inclined to follow the

recommendations set forth in the probation department's social study. I.V. objected to

the Reflections condition and requested that he instead be allowed to return to his high

school. I.V.'s mother argued that I.V. would do better in a "regular school environment,"

whereas Reflections would "set him back." She acknowledged his poor school

attendance record but claimed that I.V. took longer than others to recover from illnesses.

By contrast, the People argued that I.V.'s actions demonstrated his need for a more

structured environment, which Reflections would provide.

The court then imposed the Reflections condition. The court found that I.V.'s

grades and behavior were poor and observed that his psychological evaluation, which

10
was attached to the social study, "indicates that he could use the additional support that

will be provided at Reflections." The court found I.V. to be "a young man who

definitely needs the structure and support that Reflections will provide."

Those findings satisfy rule 5.651(b)(2)(D)'s requirements. The juvenile court

considered and rejected I.V.'s argument that his educational needs would be better met at

his high school and credited the probation department's contrary recommendation that

Reflections would provide him the support and structure that he needed. In making its

findings, the court appropriately relied on the probation department's social study and the

psychological evaluation. The psychological evaluation stated that, based on I.V.'s test

scores, he was "performing in the average range" and further stated that "[a] learning

disorder is not indicated"; the evaluation indicated that I.V. had normal cognition, good

memory, and fair insight and judgment. The social study noted I.V.'s failing grades,

truancy, poor behavior, and expulsion and recommended the Reflections condition in the

hope that the program's structured environment would lead to an improvement in his

academic performance and behavior.10 The juvenile court reasonably followed that

recommendation.

I.V. contends that the court erred when it imposed the Reflections condition

"without a single detail about his IEP," and suggests that the court was required to

10 In particular, the probation department believed that Reflections would provide a
structured environment with "psychiatric and counseling services on site, as well as
wraparound services, that may prove beneficial for the minor in addressing his aggressive
behavior, family trauma, and untreated ADHD." The probation department hoped that
Reflections would redirect I.V.'s behavior and help him perform better at school.

11
procure a copy of the IEP. Although the social study stated that I.V. had been a special

education student during his elementary school years and that he had an IEP of an

unknown date, there is no indication that the court failed to consider this information in

making its findings. Rule 5.651(b)(2)(D) requires merely that the court address the

minor's educational needs and does not specify the information on which the assessment

must rest. Consistent with rule 5.651(c), the probation department requested a copy of

I.V.'s current IEP to attach to the social study and provided his educational history "to the

extent the information was available." The court was not obligated to procure I.V.'s IEP

in order to make findings under rule 5.651(b)(2).11

I.V. also argues that the juvenile court failed to complete the JV-535 form, as

required under rule 5.651(b)(2)(B). The form does not appear to be part of the "normal

record" on appeal (rule 8.407(a)), but the law presumes that an official duty has been

regularly performed (Evid. Code, § 664). We therefore presume that the appropriate

form was completed.12

After the court made its ruling, I.V. requested a contested disposition hearing to

challenge the Reflections condition but made no proffer as to what new information he

11 An IEP sets forth a disabled child's educational needs. (In re Carl R., supra, 128
Cal.App.4th at p. 1067.) Given the statement in the psychological evaluation that "[a]
learning disorder is not indicated," the juvenile court have reasonably believed that I.V.
was not a disabled child and that any IEP on file was out of date. (See 20 U.S.C.
§ 1414(d)(4)(A) [IEP Team reviews a child's IEP at least once per year and revises as
appropriate to address a disabled child's needs].)

12 Rule 5.651(b)(2)(B) requires the court to "[i]dentify the educational rights holder
on form JV-535." The social study, which the court admitted into evidence, identified
I.V.'s mother as the educational rights holder.

12
might present at such a hearing. Counsel suggested that I.V. could meet with an

education specialist and high school representative to determine whether he could benefit

from educational services. However, in seeking release on home supervision three weeks

prior, I.V. stated that he had to attend similar meetings, including an IEP appointment at

school, a counseling session, and a psychiatric appointment. These appointments, which

were scheduled to take place before the dispositional hearing, did not result in new

information presented to the court regarding his educational needs. In the absence of a

proffer of new relevant information that would be presented at a contested hearing, the

court could have reasonably concluded that there was no reason to schedule a hearing at

that time.

Moreover, I.V. remained free to revisit the Reflections condition through an

appropriate petition for modification. (§ 778.) The juvenile court specifically stated that

I.V. could present new information to the probation department to challenge the

Reflections condition and that if the probation department suggested a need to do so, the

court would be willing to set a special hearing to reevaluate the condition.

In arguing that the juvenile court failed to make required findings, I.V. relies

chiefly on In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.). In that case, the

juvenile court committed the minor to the California Youth Authority (CYA)13 after she

admitted to having violated the terms of her probation. (Id. at p. 1392.) The minor's

13 Effective 2005, CYA is now California Department of Corrections and
Rehabilitation, Division of Juvenile Justice (DJJ). (In re D.J. (2010) 185 Cal.App.4th
278, 280, fn.1.)

13
evaluating psychologist strongly believed that she had a learning disability and

recommended an IEP assessment. (Id. at p. 1395.) Despite being "clearly on notice" that

the minor may have had special educational needs, the juvenile court "did not mention

this issue when committing her to the CYA." (Id. at pp. 1398-1399.) The appellate court

concluded that by doing so, the court failed to fulfill its obligation to consider the minor's

educational needs and ordered a limited remand "to permit the juvenile court to make

proper findings, on a more fully developed record, regarding [minor's] educational

needs." (Id. at p. 1399.)

Angela M. stands for the proposition that where the juvenile court is on notice that

special attention to a minor's educational needs is appropriate, the court must make

adequate findings on a sufficient record as to whether the minor has special educational

needs before it commits the minor to DJJ. (Angela M., supra, 111 Cal.App.4th. at p.

1398.) Here, the court expressly considered I.V.'s educational needs, particularly his

need for greater structure and support, in imposing the Reflections condition, and the

psychological evaluation revealed no indications of a learning disability. Unlike in

Angela M., a "more fully developed record" is not required.

B. The Search Condition

I.V. challenges the probation condition requiring him to submit his "person,

property, or vehicle, and any property under [his] immediate custody or control to search

at any time, with or without probable cause, with or without a search warrant." He argues

that the condition is unconstitutionally vague and overbroad because it may encompass

14
searches of electronic devices and data.14 We conclude that I.V. forfeited his

overbreadth challenge by failing to object in the juvenile court, and that the search

condition is not unconstitutionally vague. As we explain, reasonably construed, the

condition does not encompass searches of electronic data.

Although the juvenile court has broad discretion to impose reasonable conditions

of probation (§ 730, subd. (b)), it may not impose a condition that is unconstitutionally

vague or overbroad. (Sheena K., supra, 40 Cal.4th at p. 889.) Vagueness considers

whether a condition is sufficiently precise to give the probationer fair warning of what

conduct is required or prohibited; overbreadth considers the closeness of fit between the

state's interest in reformation and rehabilitation and the burden imposed on the minor's

constitutional rights. (Id. at p. 890; In re Victor L. (2010) 182 Cal.App.4th 902, 910.)

I.V. did not object to the search condition in the juvenile court, but claims to bring

a facial constitutional challenge that may be raised for the first time on appeal. (Sheena

K., supra, 40 Cal.4th at p. 889.) I.V. contends that "no probationer would be adequately

notified of the scope of the term 'property' as it relates to electronic devices" and that the

condition is overbroad, "invariant to his circumstances." "[G]enerally, given a

14 Several cases addressing the constitutionality of electronic search probation
conditions are currently pending review in the Supreme Court. (See, e.g., In re Ricardo
P. (2015) 241 Cal.App.4th 676, 680-681, review granted February 17, 2016, S230923; In
re Patrick F. (2015) 242 Cal.App.4th 104, 108, review granted February 17, 2016,
S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, 561, review granted March 9,
2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review granted April 13,
2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016,
S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted October 12, 2016,
S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14,
2016, S238210.)

15
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." (Ibid.) At the disposition hearing, the court asked I.V. if he had "any other

concerns as to any of the other conditions." I.V. did not voice any concerns or seek

clarification of the search condition.

Although I.V. purports to raise a facial challenge, we conclude that he forfeited his

overbreadth claim by failing to object in the juvenile court. I.V. contends that the search

condition serves no rehabilitative purpose and "threatens to reveal private information

unlikely to shed any light on whether he is complying with his other conditions of

probation." To address that claim, we would have to review the record to assess whether

the condition is sufficiently tailored to I.V.'s rehabilitative needs. (See People v.

Kendrick (2014) 226 Cal.App.4th 769, 777-778 [although presented as a facial challenge,

defendant in fact advanced an as-applied challenge, forfeited on appeal].) An alleged

constitutional defect that is "correctable only by examining factual findings in the record

or remanding to the trial court for further findings" is not a facial constitutional challenge,

and traditional forfeiture principles apply. (Sheena K., supra, 40 Cal.4th at p. 887.)

By contrast, I.V.'s vagueness claim does present a facial constitutional challenge.

I.V. contends that the word "property" in the search condition is unconstitutionally vague

as to whether it encompasses electronic devices and data. Because this challenge may be

addressed without examining the record, it is not subject to forfeiture. (Sheena K., supra,

40 Cal.4th at p. 887.)

16
 We apply de novo review to evaluate constitutional challenges to probation

conditions. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.) To withstand a

vagueness challenge, "a probation condition must be sufficiently defined to inform the

probationer what conduct is required or prohibited, and to enable the court to determine

whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th

494, 500 (Hall).) A probation condition is not impermissibly vague " ' "simply because

there may be difficulty in determining whether some marginal or hypothetical act is

covered by its language." ' " (People v. Morgan (2007) 42 Cal.4th 593, 606.) We give

the condition " 'the meaning that would appear to a reasonable, objective reader' "

(People v. Olguin (2008) 45 Cal.4th 375, 382), and may consider the juvenile court's

"additional oral or written comments clarifying" the condition (Sheena K., supra, 40

Cal.4th at p. 891). A probation condition survives a vagueness challenge if it can be

given any reasonable and practical construction. (Hall, at p. 501.)

Applying those principles, we conclude that the search condition is not

unconstitutionally vague. At the outset, we observe that probation conditions authorizing

searches of a probationer's person, property, and vehicle are "routinely imposed." (In re

P.O. (2016) 246 Cal.App.4th 288, 296.) In other wardship proceedings, juvenile courts

have expressly imposed specific electronics and password conditions in addition to the

standard search condition where they intend to subject a minor's electronic data to search.

(See, e.g., id. at p. 292; In re Erica R. (2015) 240 Cal.App.4th 907, 910; In re J.B. (2015)

242 Cal.App.4th 749, 752.) There is no indication in this case that in imposing the

17
standard search condition, the juvenile court intended to authorize searches of I.V.'s

electronic data.15

As imposed, the condition authorizes warrantless searches of I.V.'s "person,

property, [and] vehicle." Reasonably construed, the search condition applies only to

tangible physical property, and not to electronic data. We find support for this conclusion

in United States v. Lara (9th Cir. 2016) 815 F.3d 605 (Lara). Lara considered whether a

probation condition that allowed warrantless searches of a probationer's "person and

property, including any residence, premises, container or vehicle under [his] control"

encompassed searches of his cell phone data. (Id. at p. 610.) The Ninth Circuit

concluded that it did not, explaining that the types of objects named in the probation

condition were "physical objects that can be possessed," whereas cell phone data were

"not property in this sense." (Id. at p. 611.) The court further noted that some data, such

as medical and banking records, were held by third parties and could neither be

"possessed physically" nor be under the probationer's "control," as the probation

condition specified. (Ibid.) Consequently, the court held that evidence obtained from a

search of the defendant's cell phone data (images, text messages, and GPS data) should

have been suppressed despite the probation search condition. (Id. at pp. 607, 614.)

Giving the search condition its reasonable and practical construction, we conclude

that it extends only to tangible property, and not to electronic data. As so construed, the

15 At oral argument, counsel stated that although I.V.'s electronic data had not yet
been searched, I.V. could not be certain that the search condition would not be interpreted
to authorize such searches of his electronic data in the future.

18
condition is not unconstitutionally vague. (Hall, supra, 2 Cal.5th at p. 501 ["a probation

condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and

practical construction can be given to its language' " ' "].) In recent years, the digital

revolution has effected a sea change in how people store and carry around their private

information and communications. Given this reality, we conclude that it would not be

reasonable to construe the standard property search condition, the origin of which

precedes the digital era, to encompass searches of electronic data. If a court intends to

authorize warrantless searches of a probationer's electronic data, the procedure is

straightforward—the court must impose an explicit search condition pertaining to

electronic data.16

I.V. asks this court to modify the search condition to provide, "The minor shall

submit for suspicionless search his person, vehicle, and the physical aspects of his

property and of any property under his immediate custody or control at any time." We

decline to do so. "At core, what [I.V.] seeks through modification is 'absolute clarity in

the text of the condition itself, without the need to rely on 'a judicial construction.' But

the question before us is not whether this degree of precision would be desirable in

principle, but whether it is constitutionally compelled." (Hall, supra, 2 Cal.5th at p. 503.)

16 This interpretation is consistent with California's recently enacted Electronic
Communications Privacy Act (Pen. Code, § 1546 et seq.), which limits government
entities' access to "electronic device information." Although the statute generally
requires "specific consent" or a warrant before a government entity may access electronic
device information, a government entity may also access such information "if the device
is seized from an authorized possessor of the device who is subject to an electronic
device search as a clear and unambiguous condition of probation, mandatory
supervision, or pretrial release." (Pen. Code, § 1546.1, subd. (c)(10), italics added.)

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The vagueness doctrine demands no more than a reasonable degree of certainty. (Ibid.)

Given our decision today, the condition is properly construed as authorizing warrantless

searches of I.V.'s person, vehicle, and tangible property. "[W]e decline [I.V.'s] invitation

to modify [the search condition] simply to make explicit what the law already makes

implicit." (Ibid.)

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.

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