In re J.O. CA6

Filed 9/4/20 In re J.O. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

IN RE J.O., a Person Coming Under the H047070
Juvenile Court Law. (Monterey County
Super. Ct. No. 19JV000510)

THE PEOPLE,

Plaintiff and Respondent,

v.

J.O.,

Defendant and Appellant.

I. INTRODUCTION
The minor, J.O., appeals from a dispositional order placing him on probation with
various terms and conditions, following a finding by the juvenile court that he committed
second degree robbery. On appeal, the minor contends that one of the probation
conditions (condition No. 32), which provides that his electronic devices are subject to
search, is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and
unconstitutionally overbroad. The minor also argues that to the extent these claims are
forfeited due to the failure to object below, his trial counsel rendered ineffective
assistance. Lastly, the minor contends that a $100 restitution fine imposed by the court is
unauthorized where, as here, the minor appeared to come within the juvenile court’s
dependency and delinquency jurisdiction.
For reasons that we will explain, we will reverse the judgment and remand the
matter to the juvenile court with instructions to strike the electronic devices search
condition, to consider whether to impose a more tailored condition consistent with the
principles articulated in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), and to strike
the $100 restitution fine.
II. BACKGROUND
In May 2019, a first amended petition was filed under Welfare and Institutions
Code section 6021 alleging that the minor, then age 17, committed battery for the benefit
of a criminal street gang (Pen. Code, §§ 242, 186.22, subd. (d); count 1) and second
degree robbery (id., § 211; count 2).
A contested jurisdictional hearing was held in June 2019. The prosecutor did not
proceed on the battery count because the victim could not be located. The battery count
was ultimately dismissed. Regarding the robbery count, the evidence reflected that the
minor and several other juveniles approached the victim, who was selling ice cream at a
park. The minor grabbed, or put his arm around, the victim’s neck. One or more of the
other juveniles searched through the victim’s pockets and lunch bag and took his money.
The minor and the other juveniles then ran away. At the conclusion of the hearing, the
juvenile court found true the allegation that the minor had committed second degree
robbery.
Prior to the disposition hearing, the minor’s counsel filed a memorandum
indicating that the minor was the subject of a dependency proceeding. The minor’s
counsel requested that the minor remain a dependent child in order to receive services
and be assigned “a CASA, a positive male mentor.”

1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

2
 A clinical psychologist’s evaluation of the minor was attached to the
memorandum filed by the minor’s counsel. According to the evaluation, the minor
admitted using alcohol, cannabis, and Xanax. He acknowledged that at the time of the
robbery, he was “coming down from Xanax but actively high on weed.” The minor also
admitted that he had brought a BB gun and marijuana to school. He further
acknowledged taking methamphetamine from his mother and her boyfriend so that he
could sell it and “have a little extra money.”
The probation officer filed a report stating that the minor was declared a
dependent child in March 2019. The probation officer indicated that an interagency
placement committee believed the minor would be better served through section 602
proceedings. According to the probation officer’s report, the minor admitted to smoking
marijuana daily and that he had last smoked marijuana prior to the robbery. He also
admitted to using Xanax whenever he had money, and that he had last used Xanax, as
well as consumed alcohol, the day prior to his arrest. Images posted on the Instagram
account of the minor’s sister, and shared on the Facebook page of the minor’s former
legal guardian (who was also the girlfriend of the minor’s brother), showed the minor
holding a firearm. The minor’s own two Facebook pages contained images of guns,
drugs, and money. Copies of the minor’s and the former legal guardian’s Facebook
pages were attached to the probation officer’s report. The probation officer
recommended that the minor’s dependency case be dismissed, that he be declared a ward
of the court, and that he be placed under the supervision of the probation officer with
various terms and conditions. The probation officer recommended 45 terms and
conditions of probation, including that the minor be placed in a youth center program for
365 days; comply with gang conditions2; not consume or possess any intoxicants,

2
On appeal, the minor does not challenge the imposition of gang conditions.
Although the minor denied any gang affiliation, the probation officer reported that the
(continued)

3
alcohol, narcotics, or other controlled substances; not possess any firearm; and, relevant
here, pay a $100 restitution fine pursuant to section 730.6 and abide by an electronic
devices search condition.
A disposition hearing was held on July 2, 2019. At the hearing, the minor’s
counsel reiterated his request that the minor remain a dependent child, rather than being
declared a ward of the court. The minor’s counsel did not expressly object to any other
recommended terms and conditions of probation, including the electronic devices search
condition. The prosecutor argued, and the probation officer recommended, that the minor
be declared a ward under section 602.
The juvenile court agreed with the recommendation of the interagency placement
committee and adopted the probation officer’s recommended disposition. The court
dismissed dependency jurisdiction, declared the minor a ward of the court, and placed
him on probation with various terms and conditions, including that he serve 365 days in
a youth center program, pay a $100 restitution fine pursuant to section 730.6, and abide
by the electronic devices search condition.
The electronic devices search condition (condition No. 32) states: “Submit all
electronic devices under your control to a search by the probation officer or a peace
officer, of any text messages, voicemail messages, call logs, photographs, e-mail
accounts, internet sites and social media accounts, with or without reasonable or probable
cause or the benefit of a search warrant, at any time of the day or night and provide the
probation or peace officer with any passwords necessary to access the information
specified, and you will not change or add any email addresses or passwords without prior
permission of your Probation Officer. The minor shall not knowingly clean or delete
his/her Internet browsing history without prior permission from your Probation Officer.”

minor’s juvenile hall booking sheet reflected that he associated with Sureños. The
probation officer also reported that, according to a police report, the minor approached a
14-year-old and asked him if he associated with Norteños before punching him.

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 III. DISCUSSION
A. Electronic Devices Search Condition
The minor contends that the electronic devices search condition is unreasonable
under Lent, supra, 15 Cal.3d 481, and unconstitutionally overbroad. He also argues that
his trial counsel rendered ineffective assistance by failing to object to the condition. We
first consider the minor’s Lent challenge in the context of his claim of ineffective
assistance of counsel.
1. Lent Challenge
The minor contends that the electronic devices search condition is unreasonable
under Lent because the robbery did not involve an electronic device, and therefore the
condition should be stricken in its entirety. The minor also argues that his trial counsel
rendered ineffective assistance by failing to object to the condition.
The Attorney General contends that the minor forfeited his claim by not objecting
below, and that he cannot establish ineffective assistance of counsel because there may
have been a tactical reason for not objecting. To the extent the minor’s claim on appeal
has been preserved, the Attorney General concedes that the electronic devices search
condition is unreasonable. The Attorney General argues, however, that the condition
may properly be modified, rather than striking it altogether as urged by the minor.
a. Forfeiture
The failure to challenge the reasonableness of a probation condition under Lent in
the trial court forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 230,
237.) Because the minor forfeited his claim by failing to object to the electronic devices
search condition below, we turn to whether the minor has established ineffective
assistance of counsel based on his trial counsel’s failure to object.
b. Ineffective assistance of counsel
“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears
the burden of demonstrating, first, that counsel’s performance was deficient because it

5
“fell below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.”
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966
(Lopez).)
As to the first prong regarding whether a “ ‘ “satisfactory explanation” ’ ” exists
for trial counsel’s failure to object (Lopez, supra, 42 Cal.4th at p. 966), the Attorney
General contends that trial “counsel could have reasonably decided to focus his
disposition argument on maintaining [the minor’s] status as a section 300 dependent . . .
and the appointment of a Court Appointed Special Advocate . . . , points counsel
emphasized in his sentencing memorandum . . . . He may have concluded that the court
would look more favorably upon those requests if he did not raise any objection to the
electronic search condition . . . .”
We are not persuaded by the Attorney General’s argument. At the disposition
hearing, the juvenile court first heard argument from the parties regarding whether the
minor should remain a dependent child under section 300, or be declared a ward under
section 602. After hearing argument from the parties on that issue, the court explained
that it was “going to be declaring [the minor] a ward pursuant to Welfare and Institutions
[C]ode section 602.” The court subsequently asked the parties whether they “ha[d] . . .

6
anything further with regard to the recommendation itself.” The minor’s trial counsel
responded, “No, your Honor. Submit it.” By this point, the juvenile court had already
indicated its intent to declare the minor a ward of the court. There does not appear to be
a satisfactory explanation for why the minor’s trial counsel did not thereafter raise an
objection to the electronic devices search condition. Further, as the minor observes, at
the time of the disposition hearing, the reasonableness of an electronic devices search
condition, when the condition has no relationship to the crimes committed, was an issue
pending before the California Supreme Court. Under these circumstances, and based on
the record in this case, there does not appear to be a satisfactory explanation for why the
minor’s trial counsel did not raise an objection to the electronic devices search condition.
As to whether trial counsel’s failure to object to the condition resulted in prejudice
to the minor (Lopez, supra, 42 Cal.4th at p. 966), both the minor and the Attorney
General analyze the reasonableness/unreasonableness of the probation condition in light
of the California Supreme Court’s opinion in Ricardo P., supra, 7 Cal.5th 1113.
Ricardo P., however, was filed after the disposition hearing in this case. Neither party
addresses the issue of an ineffective assistance of counsel claim where the claimed
prejudice is based on caselaw filed after trial counsel’s purportedly deficient conduct.
Nevertheless, given that Ricardo P. was pending in the California Supreme Court at the
time of the minor’s disposition hearing, and given that the Attorney General concedes
that the electronic devices search condition in this case is unreasonable and requires
modification pursuant to Ricardo P., we exercise our discretion to consider the validity
of the condition. (See People v. Smith (2003) 31 Cal.4th 1207, 1215 [“an appellate court
is generally not prohibited from reaching questions that have not been preserved for
review by a party”].)
c. Reasonableness of the electronic devices search condition
In ordering a ward under its jurisdiction to probation, the juvenile court “ ‘may
impose and require any and all reasonable conditions that it may determine fitting and

7
proper to the end that justice may be done and the reformation and rehabilitation of the
ward enhanced.’ . . . ‘A condition of probation which is impermissible for an adult
criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and
supervision from the juvenile court.’ [Citation.]” (Ricardo P., supra, 7 Cal.5th at
p. 1118.)
Under the Lent test, “ ‘[a] condition of probation will not be held invalid unless 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.” ’ [Citations.] The Lent test ‘is conjunctive—all
three prongs must be satisfied before a reviewing court will invalidate a probation term.’
[Citation.]” (Ricardo P., supra, 7 Cal.5th at p. 1118.)
In this case, the parties agree that the first two prongs of the Lent test are satisfied.
Under these two prongs, the electronic devices search condition has no relationship to the
robbery, and the condition relates to conduct which is not in itself criminal. We therefore
turn to the third prong of Lent regarding whether the condition “ ‘ “requires or forbids
conduct which is not reasonably related to future criminality.” ’ ” (Ricardo P., supra,
7 Cal.5th at p. 1118.)
In Ricardo P., which was filed after the disposition hearing in this case, the
California Supreme Court addressed whether an electronics search condition requiring
the minor to submit electronics (including passwords) to search by a probation officer
met the third prong of the Lent test. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117,
1119.) The minor in Ricardo P. admitted two counts of felony burglary. (Id. at p. 1115.)
There was no indication that an electronic device was used in connection with the
burglaries. However, the probation report indicated that the minor was using drugs at the
time he committed the offense, and the juvenile court further believed that “teenagers
‘typically’ brag about . . . drug use on social media.” (Id. at p. 1119.) The juvenile court
imposed probation conditions prohibiting the minor from using or possessing illegal

8
drugs, as well as an electronics search condition “to enable probation officers to monitor
whether [the minor was] communicating about drugs or with people associated with
drugs.” (Ibid.)
The California Supreme Court concluded that, even assuming the minor was using
drugs at the time he committed the burglaries and that teenagers tend to brag about drug
use online, the electronics search condition satisfied Lent’s third prong. (Ricardo P.,
supra, 7 Cal.5th at pp. 1119-1120.) The condition was invalid under that prong because
“the burden it impose[d] on [the minor’s] privacy [was] substantially disproportionate to
the condition’s goal of monitoring and deterring drug use.” (Id. at p. 1120.)
First, the California Supreme Court explained that there must be a “closer
relationship” between the probation condition and deterring future criminality.
(Ricardo P., supra, 7 Cal.5th at p. 1120.) This relationship must be “more than just an
abstract or hypothetical relationship.” (Id. at p. 1121.) “ ‘Not every probation condition
bearing a remote, attenuated, tangential, or diaphanous connection to future criminal
conduct can be considered reasonable’ under Lent. [Citation.]” (Id. at p. 1127.) The
court explained that the record before it, “which contain[ed] no indication that [the
minor] had used or will use electronic devices in connection with drugs or any illegal
activity, [was] insufficient to justify the substantial burdens imposed by [the] electronics
search condition.” (Id. at p. 1116.) The court explained that “requiring a probationer to
surrender electronic devices and passwords to search at any time is . . . burdensome and
intrusive, and requires a correspondingly substantial and particularized justification.”
(Id. at p. 1126.)
The California Supreme Court clarified that the third prong under Lent does not
require a “nexus” between the probation condition and the underlying offense or prior
offenses. (Ricardo P., supra, 7 Cal.5th at p. 1122.) The court explained that
“ ‘conditions of probation aimed at rehabilitating the offender need not be so strictly tied
to the offender’s precise crime’ [citation] so long as they are ‘reasonably directed at

9
curbing [the defendant’s] future criminality’ [citation]. For example, courts may properly
base probation conditions upon information in a probation report that raises concerns
about future criminality unrelated to a prior offense. [Citation.]” (Ibid.)
Second, the California Supreme Court explained that “Lent’s requirement that a
probation condition must be ‘ “reasonably related to future criminality” ’ contemplates a
degree of proportionality between the burden imposed by a probation condition and the
legitimate interests served by the condition. [Citations.]” (Ricardo P., supra, 7 Cal.5th
at p. 1122.) “A probation condition that imposes substantially greater burdens on the
probationer than the circumstances warrant is not a ‘reasonable’ one.” (Id. at p. 1128.)
Regarding this proportionality requirement, the court explained that a “probationer’s
offense or personal history may provide the . . . court with a sufficient factual basis from
which it can determine that an electronics search condition is a proportional means of
deterring the probationer from future criminality. [Citations.]” (Id. at pp. 1128-1129.)
The California Supreme Court found that such proportionality was lacking in the
case before it. The court explained: “[N]othing in the record suggests that [the minor]
has ever used an electronic device or social media in connection with criminal conduct.
The juvenile court instead relied primarily on indications that [the minor] had previously
used marijuana and its generalization that ‘minors typically will brag about their
marijuana usage or drug usage, particularly their marijuana usage, by posting on the
Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’
Based solely on these observations, the juvenile court imposed a sweeping probation
condition requiring [the minor] to submit all of his electronic devices and passwords to
search at any time. Such a condition significantly burdens privacy interests. [Citations.]”
(Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) In this regard, the court noted that the
the electronics search condition was “expansive in its scope: It allows probation officers
to remotely access [the minor’s] e-mail, text and voicemail messages, photos, and online
accounts, including social media like Facebook and Twitter, at any time. It would

10
potentially even allow officers to monitor [the minor’s] text, phone, or video
communications in real time. Further, the condition lacks any temporal limitations,
permitting officers to access digital information that long predated the imposition of [the
minor’s] probation.” (Id. at p. 1127.)
The California Supreme Court expressed concern that if it “were to find this
record sufficient to sustain the probation condition at issue, it is difficult to conceive of
any case in which a comparable condition could not be imposed . . . . Indeed, whatever
crime a juvenile might have committed, it could be said that juveniles may use electronic
devices and social media to mention or brag about their illicit activities.” (Ricardo P.,
supra, 7 Cal.5th at p. 1123.) The court further explained that “[t]he plain language of this
electronics search condition would require [the minor] to provide probation officers full
access, day or night, not only to his social media accounts but also to the contents of his
e-mails, text messages, and search histories, all photographs and videos stored on his
devices, as well as any other data accessible using electronic devices, which could
include anything from banking information to private health or financial information to
dating profiles. [Citation.] If the juvenile court’s observation that ‘minors typically will
brag about their marijuana usage or drug usage’ online were sufficient to justify the
substantial burdens the condition imposes, it is hard to see what would be left of Lent’s
third prong.” (Id. at pp. 1123-1124.)
The California Supreme Court stated that it was “not decid[ing] whether there is
sufficient basis in the present record to support the Court of Appeal’s suggestion that the
juvenile court, on remand, may restrict the condition to search of ‘electronic information
that is reasonably likely to reveal whether [the minor] is boasting about his drug use or
activity, such as text and voicemail messages, photographs, e-mails, and social-media
accounts.’ Nor [did the California Supreme Court] address how the parameters of such a
condition might be delineated.” (Ricardo P., supra, 7 Cal.5th at p. 1124.) The California
Supreme Court simply affirmed the Court of Appeal’s judgment striking the electronics

11
search condition and directed that the matter be remanded to the juvenile court for further
proceedings. (Id. at p. 1129.)
Subsequent to Ricardo P., the appellate court in In re Alonzo M. (2019) 40
Cal.App.5th 156 (Alonzo M.), summarized “the following guidelines [from Ricardo P.]
for determining when an electronic search condition survives the third prong of Lent in a
juvenile delinquency case. First, there must be information in the record establishing a
connection between the search condition and the probationer’s criminal conduct or
personal history—an actual connection apparent in the evidence, not one that is just
abstract or hypothetical. [Citation.]” (Alonzo M., supra, at p. 166.) Second, “ ‘the
burden imposed by [the] probation condition’ must be proportionate to ‘the legitimate
interests served by the condition.’ [Citation.] Thus, ‘ “[a] condition of probation that
enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably
related to future criminality,’ ” ’ only if its infringement on the probationer’s liberty is not
‘substantially disproportionate to the ends of reformation and rehabilitation.’ [Citation.]”
(Ibid., italics omitted.)
In Alonzo M., supra, 40 Cal.App.5th 156, the purpose of the minor’s electronics
search condition “was to address [his] susceptibility to negative social influences,
including but not limited to the two coresponsibles for whom a stay-away order was
imposed.” (Id. at p. 167.) On appeal, the appellate court determined that “the juvenile
court properly concluded that an electronic search term in some form could be imposed
as a condition of [the minor’s] probation.” (Id. at p. 168.) The appellate court explained
that “[i]n contrast to the nebulous concern about marijuana use in Ricardo P., in the
present case the juvenile court made a reasoned, evidence-based finding that [the
minor’s] successful rehabilitation depends on avoiding negative social influences.” (Id.
at p. 166.) The appellate court determined, however, that the language of the electronic
search condition was “too broad.” (Id. at p. 167.) The appellate court explained that,
based on Ricardo P., “the juvenile court may impose an electronic search condition that

12
is more narrowly tailored to allowing search of any medium of communication
reasonably likely to reveal whether [the minor] is associating with prohibited persons.”
(Alonzo M., supra, at p. 168.) The appellate court struck the electronic search condition
and remanded the matter to the juvenile court to “more narrowly tailor[]” the electronic
search condition, so that the burden on the minor’s privacy would be “substantially
proportionate to the probation department’s legitimate interest in preventing him from
communicating with his coresponsibles or other identified peers who might draw him in
to criminal conduct.” (Ibid., fn. omitted; see In re Amber K. (2020) 45 Cal.App.5th 559,
567 [electronic search condition stricken and matter remanded for juvenile court to
consider whether to impose a more narrowly worded condition].)
Based on Ricardo P., and consistent with Alonzo M., we determine that an
electronic devices search condition is permissible in this case under the third prong of the
Lent test, which requires the condition to be “ ‘ “reasonably related to future
criminality.” ’ ” (Ricardo P., supra, 7 Cal.5th at p. 1118.) The record in this case
reflects that the minor had used drugs including just prior to the robbery, had previously
sold drugs for money, and had possessed a firearm. Regarding the close relationship
between this illegal activity and an electronic device, the minor had images on his
Facebook pages that showed a gun, a gun on top of money, and drugs on top of money.
He was also pictured holding a firearm on the social media accounts of his sister and his
former legal guardian. On this record, there is “more than just an abstract or hypothetical
relationship” between the electronic devices search condition and deterring future
criminality by the minor. (Id. at p. 1121.) Rather, the record “indicat[es] that [the minor]
had used or will use electronic devices in connection with drugs” and guns. (Id. at
p. 1116.)
However, the electronic devices search condition is expansive in its scope as it
requires the minor to submit all of his electronic devices and passwords to search at any
time. “The plain language of this electronics search condition would require [the minor]

13
to provide probation officers full access, day or night, not only to his social media
accounts but also to the contents of his e-mails, text messages, and search histories, all
photographs . . . stored on his devices, as well as any other data accessible using
electronic devices, which could include anything from banking information to private
health or financial information to dating profiles.” (Ricardo P., supra, 7 Cal.5th at
p. 1123.) “Further, the condition lacks any temporal limitations, permitting officers to
access digital information that long predated the imposition of [the minor’s] probation.”
(Id. at p. 1127.)
In view of the probation condition’s significant burden on privacy interests
(Ricardo P., supra, 7 Cal.5th at p. 1123), and the fact that Ricardo P. was decided after
the disposition hearing in this case, we will strike the condition and remand the matter to
the juvenile court to delineate, upon further argument from the parties as necessary, the
proper scope of the condition. (See id. at pp. 1124 [raising as an issue, but not deciding,
whether electronics search condition may properly be delineated to “ ‘electronic
information that is reasonably likely to reveal whether [the minor] is boasting about his
drug use or activity, such as text and voicemail messages, photographs, e-mails, and
social-media accounts’ ”], 1127 [finding that an electronic search condition lacked
“temporal limitations” and thus improperly allowed the probation officer “to access
digital information that long predated the imposition of . . . probation”]; Alonzo M.,
supra, 40 Cal.App.5th at p. 168 [remanding for the juvenile court to impose a more
narrowly tailored electronic search condition].) The burden on the minor’s privacy from
any new electronics devices search condition must be substantially proportionate to the
condition’s apparent goal of monitoring and deterring the minor’s possession or use of
drugs and weapons. (See Ricardo, supra, at p. 1120.)
To the extent that the minor suggests that the electronic devices search condition
should be stricken in its entirety without an opportunity for the juvenile court to
reconsider the scope of the condition on remand, we are unpersuaded by the minor’s

14
argument. In the cases cited by the minor, there was no connection between the use of
electronic devices and past or potential future criminal activity. (See In re Erica R.
(2015) 240 Cal.App.4th 907, 913 [finding “nothing in this record regarding either the
current offense or [the minor’s] social history that connects her use of electronic devices
or social media to illegal drugs”]; In re J.B. (2015) 242 Cal.App.4th 749, 756 [“there is
no showing of any connection between the minor’s use of electronic devices and his past
or potential future criminal activity”]; People v. Bryant (2019) 42 Cal.App.5th 839, 846
[similar to “Ricardo P., there is ‘nothing in the record [that] suggests that [defendant] has
ever used an electronic device or social media in connection with criminal conduct’ ”],
review granted Feb. 19, 2020, S259956; In re David C. (2020) 47 Cal.App.5th 657, 664
[similar to “Ricardo P., here minor did not use electronic devices in connection with his
offenses, and nothing in the record indicates he ‘has ever used electronic devices to
commit, plan, discuss, or even consider . . . any . . . criminal activity’ ”].) In contrast, in
this case as we have explained, the minor had images on his Facebook pages that showed
a gun, a gun on top of money, and drugs on top of money. He was also pictured holding
a firearm on other people’s social media accounts. Unlike the cases cited by the minor,
the record here “indicat[es] that [the minor] had used or will use electronic devices in
connection with drugs” and guns. (Ricardo P., supra, 7 Cal.5th at p. 1116.) We
determine that a remand for the juvenile court to determine the proper scope of the
condition in light of Ricardo P., which was filed after the disposition hearing in the
minor’s case, is therefore appropriate.
2. Constitutional Overbreadth Challenge
The minor also contends that the electronic devices search condition impinges on
his privacy rights and is unconstitutionally overbroad. The minor argues that if his claim
is considered to be an as-applied constitutional challenge, then his trial counsel rendered
ineffective assistance by failing to object to the condition on this ground below.

15
 In view of our conclusion that the condition must be stricken under Lent and
Ricardo P., and that the matter must be remanded to the juvenile court to delineate the
proper scope of the condition, we do not reach the minor’s claim that the condition is
unconstitutionally overbroad. (See Alonzo M., supra, 40 Cal.App.5th at p. 168 & fn. 2.)
B. Restitution Fine
The minor contends that the $100 restitution fine imposed by the juvenile court
pursuant to section 730.6 was unauthorized where, as here, the minor appeared to come
within the juvenile court’s dependency and delinquency jurisdiction. The Attorney
General concedes that the fine should be stricken. We find the Attorney General’s
concession appropriate.
Section 730.6 generally requires the juvenile court to order a minor to pay a
restitution fine upon the minor being adjudged a ward of the court. (§ 730.6,
subd. (a)(2)(A); see § 602.) Section 730.6 requires that the court “waive imposition of
the restitution fine” under specified circumstances, including, as relevant here, “[i]f the
minor is a person described in subdivision (a) of Section 241.1.” (Id., subd. (g)(2).)
Section 241.1, subdivision (a) states: “Whenever a minor appears to come within
the description of both Section 300 and Section 601 or 602, the county probation
department and the child welfare services department shall, pursuant to a jointly
developed written protocol described in subdivision (b), initially determine which status
will serve the best interests of the minor and the protection of society. The
recommendations of both departments shall be presented to the juvenile court with the
petition that is filed on behalf of the minor, and the court shall determine which status is
appropriate for the minor. . . .”
“ ‘A child who has been abused or neglected falls within the juvenile court’s
protective jurisdiction under section 300 as a ‘dependent’ child of the court. In contrast,
a juvenile court may take jurisdiction over a minor as a ‘ward’ of the court under
section 602 when the child engages in criminal behavior. [Citations.] As a general rule,

16
a child who qualifies as both a dependent and a ward of the juvenile court cannot be both.
[Citations.] Instead, section 241.1 sets forth the procedure that the juvenile court must
follow when faced with a case in which it may have dual bases for jurisdiction over a
minor.’ [Citation.]” (In re Aaron J. (2018) 22 Cal.App.5th 1038, 1044-1045 (Aaron J.).)
In this case, the record reflects that a section 241.1 protocol was instituted because
the “minor appear[ed] to come within the description of both Section 300 and
Section 601 or 602.” (§ 241.1, subd. (a).) At the disposition hearing, the juvenile court
observed that, “pursuant to the [section] 241.1 protocol, the team has determined that he
is best served through the probation department and being a [section] 602 ward.” The
court agreed with the recommendation of the interagency placement committee and
adopted the probation officer’s recommended disposition to dismiss dependency
jurisdiction and declare the minor a ward of the court. Nevertheless, where, as here, the
“minor appear[ed] to come within the description of both Section 300 and Section 601 or
602” (§ 241.1, subd. (a)), the restitution fine under section 730.6 may not be imposed
(§ 730.6, subd. (g)(2)), even if the juvenile court ultimately declares the minor a ward of
the court. (See Aaron J., supra, 22 Cal.App.5th at pp. 1044, 1060.) Accordingly, we will
order the $100 restitution fine stricken.
IV. DISPOSITION
The dispositional order of July 2, 2019 is reversed. The matter is remanded to
the juvenile court with directions to strike the electronic devices search condition
(condition No. 32), to consider whether to impose a more tailored electronic devices
search condition consistent with the principles articulated in In re Ricardo P. (2019)
7 Cal.5th 1113, and to strike the $100 restitution fine.

17
 BAMATTRE-MANOUKIAN, J.

WE CONCUR:

PREMO, ACTING P.J.

ELIA, J.

People v. J.O.
H047070