Filed 10/26/20 P. v. C.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300993
(Super. Ct. No. 18JV-00241,
Plaintiff and Respondent, 00241A, 00241B)
(San Luis Obispo County)
v.
C.M.,
Defendant and Appellant.
C.M. appeals probation condition orders of the juvenile
court following the sustaining of Welfare and Institutions Code
section 602 (“section 602”) petitions finding that he committed
second degree burglary, vandalism, resisting a peace officer, and
being under the influence of a controlled substance. The court
imposed a condition that he submit to a search of any electronic
device and provide the probation officer or police any passcodes.
We conclude, among other things, that a search condition for
electronic devices is authorized given the facts of this case, but
the condition is too broad and must be narrowed. The court did
not err by ordering the minor’s parents to pay a juvenile
restitution fine. We strike the electronic search condition and
remand to the juvenile court to limit and modify the scope of that
search condition. In all other respects, we affirm.
FACTS
In July 2018, C.M. and his brother went to a residence they
knew was vacant. They entered the house after C.M.’s brother
broke a window. They “stole items which included laptops, a flat
panel TV, four video cameras, an iPhone, a tablet, a violin and
clothing.” C.M. and his brother were arrested.
On July 16, 2018, the People filed a juvenile wardship
petition under section 602. They alleged, among other things,
that C.M. committed second degree burglary (Pen. Code,1 § 459),
a felony; and that on July 13 he committed vandalism (§ 594,
subd. (b)(2)(A)), causing damage less than $400. On March 10,
2018, C.M. unlawfully resisted or obstructed a police officer.
(§ 148, subd. (a)(1).)
On April 11, 2019, the People filed another section 602
petition alleging C.M. committed the crime of using and being
under the influence of a controlled substance (Health & Saf.
Code, § 11550, subd. (a)); on November 9, 2018, he committed the
crime of shoplifting (§ 459.5, subd. (a)); on November 21, 2018, he
received stolen property (§ 496, subd. (a)) and was in possession
of alcohol as a minor (Bus. & Prof. Code, § 25662, subd. (a)).
On August 13, 2019, the People filed another section 602
petition alleging C.M. unlawfully resisted and obstructed police
officers who were discharging their duties.
C.M. admitted the allegations that he committed second
degree burglary, vandalism, resisting a peace officer, and being
All statutory references are to the Penal Code unless
1
otherwise stated.
2
under the influence of a controlled substance. The court declared
him to be a ward of the juvenile court “with the supervision of the
Probation Officer.” It removed him from the physical custody of
his parents. It ordered him to serve one year one month and five
days at juvenile hall. The court ordered that he be placed with
the Coastal Valley Academy to start on September 11, 2019, and
that “[o]ut-of-home foster care shall take place on 9-4-2020 or
shall commence immediately.” The court said, “Youth is notified
that a violation of any of the terms and conditions of probation
can result in a modification or change in terms and
conditions . . . .”
The juvenile court also imposed the following condition:
“[C.M.] [s]hall submit any electronic device, used to store or
transmit digital information, that [he] own[s], possess[es] or
control[s], to a search of any source of electronic data identified
below, at any time, with or without probable cause, by the
Probation Officer or any peace officer, and provide the Probation
Officer or peace officer with any passwords necessary to access
the date source specified”: “Text messages,” “Call Logs,” “Email
accounts,” “Internet browsing history,” “Photographs,” “Social
Media accounts.”
DISCUSSION
Validity of the Electronic Search Condition
C.M. contends the electronic search condition should be
stricken or modified.
“Warrantless searches are justified in the probation context
because they aid in deterring further offenses by the probationer
and in monitoring compliance with the terms of probation.”
(People v. Robles (2000) 23 Cal.4th 789, 795.) “[P]robation search
conditions serve to promote rehabilitation . . . .” (Ibid.)
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But “ ‘[a] probation condition that imposes limitations on a
person’s constitutional rights must closely tailor those limitations
to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.’ ” (People v. Olguin (2008) 45
Cal.4th 375, 384.)
Searches of cell phones “implicate privacy concerns far
beyond those implicated by the search” of other items. (Riley v.
California (2014) 573 U.S. 373, 393 [189 L.Ed.2d 430, 446].) The
cell phone may contain a “digital record of nearly every aspect” of
the owner’s life “from the mundane to the intimate.” (Id. at
p. 395.) Consequently, “the Supreme Court has recently granted
heightened protection to cell phone data.” (United States v.
Wanjiku (7th Cir. 2019) 919 F.3d 472, 484.) Courts have
therefore drawn sharp distinctions between traditional probation
conditions that allow warrantless searches of the probationer’s
property and searches that involve cell phones and stored
electronic data. (In re I.V. (2017) 11 Cal.App.5th 249, 262.)
Probation conditions authorizing warrantless searches of
cell phones must be supported by an adequate factual showing in
the record. (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.)
In In re Ricardo P. (2019) 7 Cal.5th 1113, our Supreme
Court held an electronic device probation search condition for a
juvenile was invalid. It ruled such a condition authorizing
warrantless searches of passwords and cell devices invaded a
significant privacy interest and there was no evidence in that
case to support such an intrusion. The court looked to the
juvenile’s prior history to determine the basis for the justification
for the condition. It concluded, “[N]othing in the record suggests
that Ricardo has ever used an electronic device or social media in
connection with criminal conduct.” (Id. at p. 1122.) In
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determining whether the condition is valid, courts, among other
things, look to whether the condition has a relationship to the
defendant’s crime and whether it is reasonably related to
preventing future criminality. (Id. at p. 1119.) An electronic
search condition is not precluded simply because a defendant did
not use a cell phone in committing a crime. “In certain cases, the
probationer’s offense or personal history may provide the juvenile
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.” (Id. at
p. 1129.)
A “juvenile probationer minor retains a constitutionally
protected expectation of privacy.” (In re Q.R. (2020) 44
Cal.App.5th 696, 703.) But “that expectation is greatly
diminished as long as he remains a ward of the court.” (Ibid.)
Here there was a relationship between the condition that
requires searches of C.M.’s cell phones and his offenses. One of
his offenses involved breaking into a home and then stealing,
among other things, electronic devices, including laptops, an
iPhone, and a tablet. The condition allows probation officers to
determine whether C.M. unlawfully possesses such electronic
devices. The juvenile court also said that, “given his history,” an
electronic device search condition was necessary. The record
supports that finding.
The record reflects that growing up in his home, C.M.
“suffered neglect,” abuse, and severe emotional damage. He was
currently on “anti-anxiety and anti-depressant” medications. He
was receiving therapy. The People noted that he had a history of
running away from placements. In response to one proposed
placement option, C.M. told the court “I would just want to run
5
again.” His history of engaging in criminal behavior was
extensive. The juvenile court found that he “has been tried on
probation while in custody and has failed to reform.” From these
facts the court could reasonably infer that C.M.’s behavior was
largely unpredictable and out of control. Consequently, a more
extensive search condition was needed to monitor his behavior
than in most cases. The court could reasonably infer that an
electronic search condition was a “proportional means of
deterring the probationer from future criminality.” (In re
Ricardo P., supra, 7 Cal.5th at p. 1129.)
Reviewing text messages, call logs, and e-mails would help
a probation officer determine whether C.M. was 1) contacting
drug dealers, 2) communicating with his brother with whom he
previously committed a burglary, 3) continuing efforts to run
away, 4) buying alcohol, 5) trying to obtain stolen property, or 6)
evading probation conditions. Reviewing his Internet browsing
history would reveal whether he visited websites known for drug
or alcohol distribution or other activities that would be
counterproductive for his rehabilitation. “[A]ccess to minor’s
electronic devices is critical to monitor his progress on probation
and to ensure that he is not continuing to engage in the sort of
criminal conduct that led to him being declared a ward of the
court.” (In re Q.R., supra, 44 Cal.App.5th at p. 704.)
An Overbroad Condition?
Reviewing stored electronic data, however, could also
reveal other material that would not be relevant for law
enforcement and that could have a chilling effect on a
probationer’s privacy rights.
C.M. contends the search condition is overly broad. The
juvenile court approved searches of C.M.’s text messages, call
6
logs, e-mail accounts, photographs, social media accounts, and his
Internet browsing history. But this condition is too broad because
it is unrestricted and open-ended. It is not “ ‘tailored to
specifically meet the needs of the juvenile.’ ” (In re Malik J.
(2015) 240 Cal.App.4th 896, 901; see also In re J.B. (2015) 242
Cal.App.4th 749, 758 [“an open-ended search condition
permitting review of all information contained or accessible on
the minor’s smart phone” was invalid].) The Internet browsing
history and browsing history of social media accounts would
allow probation officers or police to find out C.M.’s choice of
music, entertainment, movies, art, literature, political
preferences, Google searches, dating history, legitimate personal
correspondence, etc. But that information would not be relevant
and should not be searched. (J.B., at pp. 758-759; In re P.O.
(2016) 246 Cal.App.4th 288, 298 [search conditions that allow
unrestricted searches of electronic data that may have “ ‘nothing
to do with illegal activity,’ ” such as “ ‘medical records, financial
records, personal diaries, and intimate correspondence,’ ” are
overbroad]; see also People v. Appleton (2016) 245 Cal.App.4th
717, 719.)
In certain cases, there may be a need to review all the
Internet browsing history for a juvenile. But it must be
supported by appropriate fact findings supporting the necessity
or justification for such broad and unrestricted searches. Here
the juvenile court made no findings supporting an open-ended
search and the condition provides no restrictions on the searches
by probation or police officers. Consequently, this search
condition must be narrowed for a more limited electronics search
condition on remand. The court must specify the specific
limitations on the scope of the electronic searches and outline the
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specific areas that the probation officer and police officers may
not search.
The Restitution Fine and Collection Fee
In the trial court, C.M., citing People v. Dueñas (2019) 30
Cal.App.5th 1157, objected to the imposition of a restitution fine.
The court, nevertheless, ordered a “$100.00 restitution fine with
a collection fee of 10%, pursuant to [Welfare and Institutions
Code] Section 730.6(q).” It said the parents are “jointly and
severally 100% liable for the youth’s restitution orders, fines, and
penalty assessments, up to the limits” required by law.
C.M. challenges the restitution fine and collection fee and
notes that their validity may be subject to a future decision by
the California Supreme Court.
The People claim People v. Dueñas, supra, 30 Cal.App.5th
1157 does not apply to juvenile restitution fines. We agree.
Unlike cases in the adult criminal context where the fine is paid
by the defendant, here the restitution fine is essentially the
responsibility of the minor’s parents. In his trial court objection
to the fine, C.M. claimed there was no evidence showing his
ability to pay. But he made no claim with respect to his parents’
ability to pay the fine.
In In re M.B. (2020) 44 Cal.App.5th 281, 283, we held
Dueñas “does not apply to a mandatory minimum juvenile
restitution fine.” C.M. has not shown how the juvenile court
erred regarding its orders involving the restitution fine and
collection fee.
DISPOSITION
The electronic probation search condition is stricken and
the case is remanded to the juvenile court with instructions to
fashion a new, narrower, and limited search condition in a
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manner “consistent with this opinion.” (People v. Appleton,
supra, 245 Cal.App.4th at p. 729.) In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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TANGEMAN, J., Concurring:
I concur in striking the probation condition and
remanding with instructions to narrow the electronic search
condition, but I disagree with the implication that it would be
appropriate to allow unlimited access to text messages, call logs,
and emails. In my opinion, the justification for such searches
proffered by the majority run afoul of the principles articulated in
In re Ricardo P. (2019) 7 Cal.5th 1113 and the cases cited
therein, including In re Erica R. (2015) 240 Cal.App.4th 907 and
In re J.B. (2015) 242 Cal.App.4th 749. “The fact that a search
condition would facilitate general oversight of the individual’s
activities is insufficient to justify an open-ended search condition
. . . [of a] smart phone or other electronic devices.” (Id. at p. 758.)
NOT TO BE PUBLISHED.
TANGEMAN, J.
Charles S. Crandall, Judge
Superior Court County of San Luis Obispo
______________________________
Esther R. Sorkin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.