Filed 9/25/20 In re Daniel L. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re DANIEL L., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL L., A157515
Defendant and Appellant.
(Solano County
Super. Ct. No. J44480)
Daniel L., an identified member of the Norteño street gang, appeals a
disposition order entered after he and another gang member who is a friend
and schoolmate were arrested together in gang territory, each in possession
of a concealed gun. As part of a plea agreement, Daniel admitted to one
misdemeanor count of carrying a concealed firearm (Pen. Code, §
25400(a)(2)). He now appeals, contending the juvenile court abused its
discretion by imposing as a condition of his probation the requirement that
he submit his electronic devices to warrantless searches. He argues the
condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), as
recently construed by In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).
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We agree. The electronics search condition imposed here allows
unfettered access to all of Daniel’s electronic information, without limitation.
Its burden is disproportionate to any legitimate purpose it seeks to
accomplish, which the People argue is that of ensuring his compliance with a
stay-away order and the gang terms of his probation. Accordingly, it must be
stricken.
BACKGROUND
On May 16, 2019, local police in Vallejo, California responded to a
report of someone showing a handgun to other individuals in an area known
to be territory of the Norteño gang. Upon arriving at the scene, they
encountered Daniel (16 years old at the time), his friend D.B. whom police
recognized as a validated member of the Norteño gang, and a third person,
L.R. All three were wearing red clothing and had past gang-related contacts.
D.B. was on juvenile probation and had been arrested several weeks earlier
for concealing a loaded revolver in his waistband in the company of other
gang members.
Upon arriving at the scene, police executed a probation search of D.B.
and found in his possession a loaded handgun and an unloaded magazine.
Daniel admitted he had a gun too, which was found in his waistband and was
registered to someone else. Both teens were arrested. Daniel denied being in
or affiliated with a gang, but during the investigation of this case local police
validated him as a member of the Norteño gang.
A juvenile wardship petition was filed charging Daniel with one felony
count of carrying a concealed firearm (Pen. Code, § 25400(a)(2)), and one
felony count of carrying a loaded firearm by someone not in lawful possession
of the firearm or prohibited from possessing a firearm (id., § 25850,
subds. (a), (c)(4)). Pursuant to a negotiated resolution, the concealed firearm
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possession count was reduced to a misdemeanor and Daniel admitted it, and
the loaded firearm charge was dismissed.
At the subsequent disposition hearing on June 10, 2019, the juvenile
court adjudged Daniel a ward of the court and placed him on probation
subject to various terms and conditions. One was a stay-away order,
prohibiting Daniel from having contact with his two co-responsibles, D.B. and
L.R. (other than incidental contact at school, and getting driven together with
D.B. to and from school by either teen’s parents). Over the objection of
Daniel’s defense counsel, the juvenile court also imposed gang terms which
prohibit a variety of conduct. Among the restrictions, the gang terms prohibit
Daniel from associating with or contacting anyone identified to him by his
parents or probation officer as someone he may not associate with, as well as
“post[ing], display[ing] or transmit[ing] through a computer, cellular phone or
other means of electronic communication any symbols, photographs or other
information that the Minor knows to be, or that the Probation Officer informs
the Minor to be, gang-related.”
The electronics search condition challenged here also was imposed over
defense counsel’s objection. The probation report had recommended this “to
ensure his compliance with gang terms.” And at the hearing, the district
attorney elaborated as follows (italics added): “I believe that the probation
department is requesting the search of the electronic search criteria [sic]
because of the gang association and that is generally the kids will have
postings on social media with gang signs and gang paraphernalia. They will
communicate with fellow gang members. And in order for probation and the
police department to enforce the gang terms—which I think is very important
in this case. [¶] If it is as he says that he is not a gang member, then none of
this should be a problem for him. And if he is a gang member, the gang
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terms generally help them to disassociate by being able to say ‘I cannot hang
out with you guys because then I get arrested because it is part of my
probation that I don’t hang out with you guys.’ [¶] I think it’s useful and
important in his rehabilitation that the Court not only impose the gang terms
but also the electronic search condition to go along with it and help the police
department and the probation department enforce those gang terms.”
Noting that the propriety of electronics search conditions was then
pending before the Supreme Court, a reference to In re Ricardo P., the
juvenile court conditioned the electronics search term on the outcome of that
case. As ordered, the electronics search condition requires Daniel to submit
to warrantless searches “any electronic devices [he] owns/possesses/has
access to, and to provide passwords, provided that this term is deemed legal
by the California Supreme Court.”
This timely appeal followed.1
DISCUSSION
Daniel’s sole contention is that the search condition must be stricken in
its entirety as unreasonable under Lent, supra, 15 Cal.3d 481, as recently
construed by Ricardo P., supra, 7 Cal.5th 1113. He argues the lack of any
connection in the record between his use of electronic devices and criminal
activity renders it invalid.2 The People argue that the search condition is
justified by the need to monitor Daniel’s compliance with both the gang terms
1 The parties are in agreement that Daniel’s general waiver of his right
to appeal as part of his plea agreement does not preclude our review of this
issue. We have considered the point and conclude the same; extended
discussion is unnecessary.
2In an argument heading, he also asserts the condition is
unconstitutionally vague. That argument is not developed, however.
Moreover, in light of our disposition the point also is moot.
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and the stay-away order prohibiting him from having contact with his friend
and co-participant, D.B., and that given the seriousness of Daniel’s offense
and the negative social influence of his friend, it is not unduly burdensome.
Our discussion presumes the parties’ familiarity with the Lent factors,
the general legal standards that apply to the imposition of juvenile probation
conditions, and the abuse of discretion standard of review. (See In re Amber
K. (2020) 45 Cal.App.5th 559, 564-565 (Amber K.).) Zeroing in, the pertinent
issue here is whether the challenged electronics search condition satisfies
Lent’s third prong: whether it is reasonably related to Daniel’s future
criminality. (See Lent, supra, 15 Cal.3d at p. 486.)
In Amber K., we summarized the law pertaining to electronics search
conditions under Lent’s third prong, as recently clarified by our Supreme
Court:
“In Ricardo P., our Supreme Court discussed the Lent requirement of
reasonable relatedness to future criminality in the context of an electronic
search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) There, the
defendant admitted allegations that he committed two felony burglaries. (Id.
at p. 1116.) The probation conditions imposed by the juvenile court included
drug testing, prohibitions on using illegal drugs and alcohol, and prohibitions
on associating with people whom Ricardo knew to use or possess illegal
drugs. (Ibid.) The juvenile court also imposed a condition requiring the
minor to submit his electronics, including passwords, to warrantless search
at any time of the day or night. (Id. at pp. 1116-1117.) The condition was
imposed solely to allow probation officers to monitor whether Ricardo was
communicating about drugs or with people associated with drugs (id. at
pp. 1116-1117), but the language of the search condition did not reflect its
limited purpose. In the absence of any evidence that electronic devices were
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connected to the commission of the burglaries, or that Ricardo used electronic
devices in connection with drug use or any other criminal activity, our
Supreme Court concluded that the electronic search condition was invalid
under Lent because the burden it imposed on his privacy was ‘substantially
disproportionate to the condition’s goal of monitoring and deterring drug use’
(id. at pp. 1119-1120) and therefore not reasonably related to future
criminality. (Id. at p. 1122.) Although our Supreme Court emphasized that
it was not categorically invalidating electronic search conditions, it affirmed
the Court of Appeal’s judgment striking the condition and directed that the
case be remanded to the juvenile court for further proceedings. (Id. at
pp. 1128-1129.) The Supreme Court did not reach the issue whether the
record might support a narrower search condition, such as one limited to
electronic information reasonably likely to reveal whether Ricardo was
communicating about drugs, nor how such a condition might be phrased.
(See id. at p. 1124.)
“Our colleagues in Division Four applied the Ricardo P. standard in In
re Alonzo M. (2019) 40 Cal.App.5th 156, 160 (Alonzo M.), a case where the
minor admitted grand theft of a person, taking property valued at more than
$950, and pleaded no contest to misdemeanor burglary. The juvenile court
imposed various conditions of probation, including that Alonzo stay away
from his co-responsibles and from other people of whom his parents or the
probation officer disapproved, and an electronic search condition for the
purpose of addressing Alonzo’s admitted susceptibility to negative social
influences. (Id. at pp. 166-167.) The actual terms of the search condition,
however, reached beyond the stated purpose and, though not as broad as the
condition in Ricardo P., authorized the search of any medium of
communication reasonably likely to reveal whether the minor was complying
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with any of the terms of his probation, not limited to terms related to Alonzo’s
susceptibility. (Id. at p. 167; compare Ricardo P., supra, 7 Cal.5th at
pp. 1116-1117.) Even though the record in Alonzo M. showed that minor
spent a significant amount of time using electronic devices, and the Court of
Appeal concluded that an electronic search condition would be permissible as
reasonably related to minor’s future criminality, our colleagues concluded
that the challenged condition was invalid because it ‘burden[ed] Alonzo’s
privacy in a manner substantially disproportionate to the probation
department’s legitimate interest in monitoring Alonzo’s compliance with the
stay-away orders.’ (Alonzo M., supra, 40 Cal.App.5th at p. 168.) The Court of
Appeal struck the condition and remanded the case to the juvenile court ‘so
the court may consider whether to adopt an electronic search condition
consistent with this opinion.’ (Ibid.)” (Amber K., supra, 45 Cal.App.5th at
pp. 566–567.)
In Amber K., we faced a similar issue. In that case, a teenage girl
physically attacked a schoolmate and then immediately afterwards, posted
profanity-laced comments about the assault and photographs of herself
flipping off the camera on social media. The juvenile court sustained
allegations of felony assault, adjudged her a ward of the court and imposed
various terms of probation, including a provision prohibiting the minor from
having any contact with her victim, including by electronic means, and an
electronics search condition.3 (Amber K., supra, 45 Cal.App.5th at pp. 561-
3 The condition permitted the warrantless search “of any medium of
communication reasonably likely to reveal whether [the minor] is complying
with the terms of her probation,” including “text messages, voice-mail
messages, photographs, email accounts and other social media accounts and
applications such as Snapchat, Instagram, Facebook and Kik.” (Amber K.,
supra, 45 Cal.App.5th at p. 564.) It also required the minor to “provide
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564.) Applying the foregoing authorities, we held the juvenile court had not
abused its discretion in imposing an electronics search condition to ensure
the minor refrained from contacting the victim. (Id. at p. 567.) But we
concluded the court had erred because the electronics search condition that it
imposed was not limited to that probation condition. Rather, it broadly
permitted electronic searches for the purpose of ensuring the minor was
complying with all her probation conditions. This, we held, “ ‘burdens [the
minor’s] privacy in a manner substantially disproportionate to
the . . . legitimate interest in monitoring [her] compliance with’ the no-contact
order.” (Ibid.) Therefore, we struck the electronics search condition and, as
in Alonzo M., remanded the matter with directions the juvenile court
“consider whether to impose a revised condition” consistent with our opinion.
(Amber K. at p. 568.)
Most recently, in In re David C. (2020) 47 Cal.App.5th 657, our
colleagues in Division Three reached a similar result in a case involving a
minor who committed sexual offenses at school against his classmates. (Id.
at pp. 659-660.) The juvenile court imposed an electronics search condition
that was argued to be necessary to monitor the minor’s compliance with
conditions prohibiting him from contacting his victims, possessing sexually
explicit material, or accessing sexually explicit internet sites. (Id. at pp. 661-
662, 664.) The Court of Appeal struck it down, because there was no evidence
the minor had used electronics in connection with his crimes, and the People
“did not articulate a specific justification” for the electronics search condition.
(Id. at p. 663.) Rather, the People argued only that minors in sex offender
treatment typically are subject to them so that “ ‘we . . . have the ability to
access codes to probation or any other peace officer upon request in order to
effectuate such a search.” (Ibid.)
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see what they’re looking at on the Internet.’ ” (Ibid.) The Court of Appeal
concluded “[t]his general statement alone is insufficient to find that the
electronics search condition is ‘ “reasonably related to future criminality” ’ in
this case, and, thus, the condition fails the Lent test. (Ricardo P., at
p. 1124.)” (Id. at pp. 663-664.) Nor did it matter that the condition was
limited in scope to “ ‘ “areas of the electronic devices where evidence likely to
reveal criminal activity or where probation violations may be found.” ’ ” (Id.
at p. 664.) That limitation did not “meaningfully” narrow its scope, the court
reasoned, and “still imposes a ‘very heavy burden’ (Ricardo P., supra,
7 Cal.4th at p. 1124) on minor’s privacy interests because it permits searches
of social media accounts, e-mails, text messages, search histories, and digital
photos and videos.” (Ibid.) In striking down the condition, however, our
colleagues left the juvenile court free to fashion a more narrow search
condition “tailored to the court’s specific concerns regarding minor’s
involvement in future criminal activity” and to decide for itself the
parameters of such a condition. (Id. at p. 665, fn. 4; see also id. at p. 674,
fn. 13 [similar].)
In this case, there is no evidence in the record that Daniel used
electronics in connection with his firearms offense, and no evidence either he
or his gang generally use social media or electronic means to transmit gang-
related information. Nor is there anything in the record to suggest Daniel
communicates with his co-responsibles through electronic means or social
media. Yet the juvenile court broadly authorized warrantless searches,
without limitation (subject only to the caveat “that this term is deemed legal
by the California Supreme Court”), of “any electronic devices [he]
owns/possesses/has access to, and to provide passwords.” The district
attorney recommended this broad condition based on nothing other than
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generalizations about typical teenage gang member behavior: that “generally
the kids will have postings on social media with gang signs and gang
paraphernalia. They will communicate with fellow gang members.” This is
precisely the kind of ‘abstract or hypothetical” connection deemed insufficient
by the Supreme Court in Ricardo P. (See Ricardo P., supra, 7 Cal.5th at
pp. 1121, 1124.)
The People argue that there is an evidentiary basis for this broad
electronics search condition, but we disagree. The People stress a statement
in the probation report that Daniel’s friend and co-responsible D.B.
supposedly “was featured on social media throwing gang signs,” and a
statement that Daniel’s parents take his phones or electronic devices away as
a form of discipline. Leaving aside that those were not the justifications for
the electronics search condition the People proffered below, they are
insufficient. Regarding Daniel’s friend D.B., the People mischaracterize the
record; the probation report says nothing about D.B.’s use of social media or
electronic devices, it says only D.B. “has . . . been depicted in photos”
throwing gang signs. Although it is possible that some such photos were
located on social media, we are unwilling to speculate. Moreover, there is no
evidence that Daniel used or accessed any social media that may have been
used by D.B.
Evidence that Daniel’s parents use electronics as a form of discipline is
not sufficient to support such a broad and sweeping search clause, either. It
is simply unreasonable to infer that Daniel’s use of electronics “may be
problematic,” as the People assert. In Alonzo M., there was similar evidence
that restrictions on the minor’s use of electronic devices was used as a form of
discipline and, unlike here, evidence that the minor spent a significant
amount of time using electronics. Yet our colleagues in that case struck down
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an electronics search condition that was not as broad as this one (it was
limited to a search on the minor’s devices “of any medium of communication
reasonably likely to reveal whether you’re complying with the terms of your
probation”), because it was not sufficiently tailored to its legitimate purpose
of preventing the minor from communicating with his co-responsibles or
other peers that had a negative influence on him. (See Alonzo M., supra,
40 Cal.App.5th at pp. 163, 166-168.) Nor can we, under Lent or Ricardo P.,
sanction such a substantial intrusion into Daniel’s privacy based on such a
tenuous ground. If parents taking a teen’s cell phone away as a form of
discipline were enough to support such a broad electronics search condition,
virtually every teen on juvenile probation would be subject to one. (See
Ricardo P., supra, 7 Cal.5th at pp. 1123-1124.)
The People also argue that the only way to enforce the gang conditions
and the stay-away order is to permit a search of Daniel’s electronic devices.
We agree that these are legitimate considerations. But, as in the authorities
we have discussed, this condition sweeps far more broadly. The juvenile
court did not tailor this search condition to the specific purposes of
monitoring Daniel’s contact with his co-responsibles or his compliance with
the gang terms. Rather, it allowed blanket access to everything on (or,
apparently, accessible from) his electronic devices. We do not minimize the
seriousness of Daniel’s gang ties, or the legitimate need to monitor his
compliance with those terms. But allowing a blanket search of all his
electronics, with unfettered access to every detail of his private life, goes too
far. “ ‘[T]his wide-ranging search clause burdens [Daniel’s] privacy in a
manner substantially disproportionate to the . . . legitimate interest in
monitoring [his] compliance with’ ” the stay-away order and the gang terms.
(Amber K., supra, 45 Cal.App.5th at p. 567.)
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DISPOSITION
The disposition order is affirmed except the electronic search condition,
which is stricken. The matter is remanded to the juvenile court to consider
whether to impose a revised condition consistent with this opinion.
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STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
In re Daniel L. (A157515)
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