Filed 10/16/20 In re K.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re K.B., A Person Coming Under
the Juvenile Court Law.
THE PEOPLE OF THE STATE OF A158274
CALIFORNIA,
(Solano County Sup. Ct.
Plaintiff and Respondent, No. J44533)
v.
K.B.,
Defendant and Appellant.
This is an appeal from a dispositional order adjudging K.B. a juvenile court
ward pursuant to Welfare and Institutions Code1 section 602 and placing him in
the home of his mother under various probationary terms and conditions,
including a requirement that he “submit to drug/alcohol testing by any Peace
Officer.” K.B.’s sole contention on appeal is that the drug and alcohol testing
condition in unreasonable under People v. Lent (1975 ) 15 Cal.3d 481 (Lent),
superseded by statute on another ground as stated in People v. Moran (2016) 1
Cal.5th 398, 403, fn. 6 . We disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless
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otherwise specified.
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BACKGROUND
Our description of the underlying offense is taken from the detention
report in this matter which formed the factual basis for K.B.’s admission, with
one exception noted below. On July 5, 2019, 17-year-old K.B. and his friend J.D.
robbed a hair salon in Vallejo. J.D. was armed with a firearm. K.B. and J.D.
demanded money and other valuables from several salon patrons. They
eventually ran off with money and three phones. During a search of the area,
police observed K.B. and J.D.—who matched the description of the suspects—
walk into a residence. The minors were arrested after police called one of the
stolen cell phones and heard it ringing inside the house.
The Solano County District Attorney filed a juvenile wardship petition
alleging that K.B. committed three counts of felony second degree robbery (Pen.
Code, § 211) and that he personally used a firearm in the commission of those
offenses (Id., §§ 12022.5, subd. (a)(1), 12022.53, subd. (b).) On July 24, 2019, the
prosecutor moved to strike the firearm enhancements as to all counts. On July
30, 2019, K.B. admitted to one count of second degree robbery,2 and the juvenile
court, pursuant to the prosecutor’s motion, dismissed the other two counts.
In advance of the dispositional hearing, the probation department filed a
report which noted that K.B. had a history of drug use and poor school
performance. By his own account, K.B. started using marijuana when he was 16
years old and had been using it almost daily since his friend was shot and killed
in June 2018. He had used marijuana two days before committing the robbery at
issue in these proceedings. He had also “experimente[d] with alcohol” once in
2019. The probation department assessed K.B. as a “moderate risk” for
reoffense, due in part to his history of drug use and poor school performance.
2 The parties stipulated that the detention report supplied the factual basis
for the plea. However, that report wrongly suggested that K.B. was the minor
armed with the firearm. The stipulation excluded this erroneous fact.
2
At the dispositional hearing on August 16, 2019, the juvenile court
adjudged K.B. a juvenile court ward and placed him on probation in his mother’s
home. The court imposed various terms of probation, including a condition that
K.B. abstain from using or possessing illegal drugs and alcohol and that he
“submit to drug/alcohol testing by any Peace Officer.” Minor’s counsel objected to
the alcohol and drug testing condition, arguing that there was “no nexus
regarding controlled substances to the underlying offense.” The juvenile court
disagreed, finding “ongoing illegal use of marijuana as recently as July of 2019
according to the minor, so there would be a nexus to his rehabilitation.” This
appeal followed.
DISCUSSION
“ ‘The purposes of juvenile wardship proceedings are twofold: to treat and
rehabilitate the delinquent minor, and to protect the public from criminal
conduct.’ ” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) When
imposing probation conditions, the juvenile court considers the circumstances of
the offense as well as the minor’s entire social history. (In re Tyrell J. (1994) 8
Cal.4th 68, 81, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th
128, 130, 139.) Moreover, “ ‘[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.’ ” (Ricardo P., at p.
1118.)
We review conditions of probation for abuse of discretion. (Ricardo P.,
supra, 7 Cal.5th at p. 1118.) Thus, we will uphold the juvenile court’s order
unless “ ‘the condition is “arbitrary or capricious” or otherwise exceeds the
bounds of reason under the circumstances.’ ” (Ibid.) Under Lent, supra,
15 Cal.3d 481, a probation condition is unreasonable and therefore invalid if it
has no relationship to the crime, relates to conduct which is not itself criminal,
and requires or forbids conduct not reasonably related to future criminality. (Id.
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at p. 486; see Ricardo P., at p. 1118.) “[T]he Lent test governs in juvenile and
adult probation cases alike.” (Ricardo P., at p. 1119.)
K.B. asks us to strike the juvenile court’s drug and alcohol testing
condition as unreasonable under Lent, supra, 15 Cal.3d 481. He contends that
the testing condition is not proper because it is not reasonably related to his
offense or to future criminality. He also claims that under the Supreme Court’s
recent decision in Ricardo P., such a testing condition cannot be justified because
it ensures compliance with other conditions of probation. And, he argues, again
citing Ricardo P., that the burden of the testing condition on his privacy is
substantially disproportionate to its potential impact on his rehabilitation or the
protection of society. We are not convinced.
If, as in this case, a minor is found to be a person described by section 602
and the court does not remove the minor from the physical custody of his or her
parents, section 729.3 expressly permits a juvenile court to “require the minor to
submit to urine testing upon the request of a peace officer or probation officer for
the purpose of determining the presence of alcohol or drugs.” In addition, when
a minor is adjudged a juvenile court ward, section 730 authorizes the juvenile
court to “impose and require any and all reasonable conditions that it may
determine fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.” (Id., subd. (b).) This
statute has been held to authorize probation conditions requiring drug and
alcohol testing by blood, breath, or urine. (In re P.A. (2012) 211 Cal.App.4th 23,
40; see In re Jimi A. (1989) 209 Cal.App.3d 482, 487–488 [upholding probation
condition requiring ward to submit to “ ‘random drug testing’ ”]; In re Jose R.
(1982) 137 Cal.App.3d 269, 278–280 [upholding probation condition requiring
ward to submit to “ ‘any tests’ ” to determine alcohol and drug use].) Given
K.B.’s prior history of experimentation with alcohol and daily marijuana usage,
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including two days before the robbery, the juvenile court acted well within its
discretion in ordering K.B. to submit to drug and alcohol testing.
The question remains whether the testing condition is nevertheless invalid
under the Lent test. In re Kacy S. (1998) 68 Cal.App.4th 704 (Kacy S.) is directly
on point. In that case, two minors admitted they were described by section 602
after participating in a school fight and were placed on six months’ probation in
the physical custody of their parents. (Id. at pp. 707–708.) Although there was
no indication in the minors’ offense or social histories of substance abuse, the
juvenile court ordered each minor to “ ‘submit to urine testing to determine the
presence of alcohol and illegal drugs’ ” as a condition of probation. (Ibid.) The
appellate court concluded that the testing condition was authorized by section
729.3. (Id. at pp. 708–709.)
The Kacy S. court additionally determined that the condition was
permissible under Lent. (Kacy S., supra, 68 Cal.App.4th at pp. 709–710.) It
reasoned that the urine testing condition related to conduct which was itself
criminal because it was “designed to detect the presence of substances whose use
by minors is unlawful.” (Id. at p. 710.) The appellate court also noted that, in
enacting section 729.3, the Legislature expressly declared that alcohol and drug
abuse are among “ ‘[t]he precursors of serious criminality by juveniles.’ ” (Id. at
pp. 708–709, fn. 2, 710; see Stats. 1989, ch. 1117, § 1, subd. (a)(2); see also id. § 1,
subd. (a)(1) [“The problem of juvenile delinquency should be addressed at its
inception rather than after it has progressed to serious criminality.”].) Thus, the
testing condition was reasonably related to future criminality. (Kacy S., at
p. 710.) Because the condition failed two of the three prongs of the Lent
formulation, its imposition was a valid exercise of the juvenile court’s discretion.
(Ibid.)
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The Kacy S. court rejected the argument that the testing condition was an
unreasonable invasion of privacy, subjecting the minors to unreasonable search
and seizure. (Kacy S., supra, 68 Cal.App.4th at pp. 710–711.) Noting that “a
probationer’s expectations of privacy are diminished by [his or her] probation
status and are subordinated to governmental activities which reasonably limit
the right of privacy,” the court concluded that the drug and alcohol testing
condition was “a reasonable intrusion upon a probationer’s expectations of
privacy.” (Id. at p. 711.) Specifically, the court reasoned: “The governmental
interest in testing is strong. The juvenile court’s goals are to protect the public
and rehabilitate the minor. [Citations.] Section 729.3 serves both goals. It
protects the public by establishing procedures to deter or prevent use of alcohol
and unlawful drugs by minors. It advances the rehabilitation of young offenders
by seeking to detect alcohol or drug use as a precursor of criminal activity in
order to facilitate intervention at the earliest time. [Citations.] Although urine
testing constitutes an intrusion on privacy, the effect of the intrusion is
outweighed by the government’s legitimate interest in closely monitoring the
rehabilitation of minors who are granted probation and returned to the custody
of their parents.” (Ibid.)
Like Kacy S., we conclude that the testing condition here is valid under
Lent because it directly relates to conduct which is itself criminal—the unlawful
use of drugs or alcohol by a minor. The testing condition at issue is narrowly
drawn to determine in a direct and definitive way whether K.B. is illegally using
alcohol and drugs. Further, as discussed above, the Legislature has determined
that, at least for juveniles, illegal drug and alcohol use are “ ‘precursors of
serious criminality.’ ” (Kacy S., supra, 68 Cal.App.4th at p. 710.) Thus, while an
alcohol and drug testing condition does represent some level of intrusion upon a
minor’s privacy interests, it also “protects the public by establishing procedures
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to deter or prevent use of alcohol and unlawful drugs by minors” and “advances
the rehabilitation of young offenders by seeking to detect alcohol or drug use as a
precursor of criminal activity in order to facilitate intervention at the earliest
time.” (Id. at p. 711.)
In our view, nothing in Ricardo P., supra, 7 Cal.5th 1113, alters this
analysis. In that case, the juvenile court placed the minor on probation and
imposed a warrantless electronics search condition. (Id. at p. 1115.) The
juvenile court imposed the condition as a means of monitoring Ricardo’s drug
usage and justified it by inferring that Ricardo likely used marijuana during the
offenses at issue and by generalizing that teenagers typically brag about drug
use online. (Id. at pp. 1119–1120.) The minor appealed, challenging the
electronics search condition as both unreasonable under Lent and
unconstitutionally overbroad. (Id. at p. 1116.) The Supreme Court granted
review to address the narrow issue of whether the electronic search condition
was reasonably related to future criminality under Lent. (Id. at p. 1116.) Thus,
for purposes of its opinion, the high court assumed that the electronics search
condition was neither related to the underlying offense nor related to conduct
which was itself criminal. (Id. at pp. 1116, 1118–1119.)
In concluding that the electronics search condition was not reasonably
related to future criminality, the Supreme Court held that the record before it,
“which contain[ed] no indication that Ricardo had used or will use electronic
devices in connection with drugs or any illegal activity, [was] insufficient to
justify the substantial burdens imposed by this electronics search condition.”
(Ricardo P., supra, 7 Cal.5th at p. 1116.) As the Ricardo court explained, “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
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condition.” (Id. at p. 1122.) Since the sweeping electronics search condition
imposed “a very heavy burden on privacy with a very limited justification,” it
was not “ ‘ “reasonably related to future criminality” ’ ” and was therefore invalid
under Lent. (Id. at p. 1124.)
Appellant’s comparison of the electronics search condition in Ricardo P. to
the drug and alcohol testing condition here falls short for several reasons.
Unlike an electronics search condition that intrudes upon a range of otherwise
lawful activity, the drug and alcohol testing condition relates solely to ferreting
out unlawful behavior by the minor. The testing condition is valid under Lent for
that reason alone. (See People v. Olguin (2008) 45 Cal.4th 375, 379 [the three-
part Lent test “is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term”].) In addition, the burdens
imposed by the testing condition are proportional to achieving the legitimate goal
of preventing future criminality by monitoring K.B.’s drug or alcohol use and
establishing the means for early intervention to aid in his rehabilitation. (See
Ricardo P., supra, 7 Cal.5th at p. 1122 [“ ‘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 curbing [the
defendant’s] future criminality.’ ”].)
DISPOSITION
The judgment is affirmed.
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_________________________
Sanchez, J.
WE CONCUR:
_________________________
Humes, P. J.
_________________________
Banke, J.
A158274 In re K.B./People v. K.B.
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