In re Andrea H. CA1/1

Filed 10/28/20 In re Andrea H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ANDREA H., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE, A157509

Plaintiff and Respondent, (Contra Costa County
v. Super. Ct. No. J18-00318)
ANDREA H.,
Defendant and Appellant.

Andrea H. appeals from a probation condition imposed by the juvenile
court requiring her to submit her cell phone and other electronic devices
under her control to warrantless searches likely to reveal whether she is
complying with the terms of her probation conditions. Relying on the
California Supreme Court’s decision in In re Ricardo P. (2019) 7 Cal.5th 1113
(Ricardo P.), appellant argues, the probation condition is invalid under People
v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad.
Though an electronics search condition is appropriate here, we conclude the
condition imposed by the court is too broad. We therefore strike the condition
and remand the matter to the juvenile court to consider imposing a revised
condition in light of the principles articulated in Ricardo P.
 I. FACTUAL AND PROCEDURAL BACKGROUND
On April 23, 2019, at approximately 3:30 p.m., J.C. left Antioch High
School and boarded a nearby bus.1 At a subsequent bus stop, appellant and
another girl boarded the bus and situated themselves in the seat directly in
front of J.C. J.C. recognized appellant and her friend from previous contacts,
however, she did not know their names. Pointing at J.C., appellant asked the
other girl, “ ‘Is that the one?’ ” When the second girl replied, “ ‘Yeah, that’s
her,’ ” appellant stood up facing J.C. and began punching J.C. with a closed
fist. Appellant hit J.C. in the face four or five times. Appellant then stood up
on the seat and kicked J.C. twice on the left side of her head, knocking her to
the floor. At this point, the bus driver stopped the bus, walked over to
appellant, and told her and the other girl to leave the bus. The girls
complied.
J.C.’s mother reported the incident to police. Officer Blumberg was
dispatched to J.C.’s residence where he observed a large amount of swelling
under J.C.’s left eye, which appeared to be swollen shut, and a laceration and
abrasion on her forehead above her left eye. J.C. was treated at a hospital.
Medical records revealed that J.C. was diagnosed with a contusion on the
face and a suspected left orbit bone fracture.
Appellant told police she knew J.C. because J.C. was dating an
individual, M., who appellant “used to ‘talk’ to.” When M. started dating J.C.,
she began teasing appellant on social media. Appellant told J.C. she would
fight her the next time they saw each other. According to appellant, when
she and her friend boarded the bus, she saw J.C. sitting there, and as she
walked to her seat, J.C. “ ‘mugged’ ” her, apparently meaning she gave

The facts of the underlying offense are taken from the probation
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department’s report and recommendation to the juvenile court.

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appellant a disapproving look. After appellant took a seat directly in front of
J.C., she turned around and told J.C., “ ‘I’m going to fight you,’ ” and then
punched J.C. in the face with a closed fist. J.C. swung back at appellant,
hitting her in the upper torso but causing no injury. Appellant responded by
kicking J.C. about two times in the upper chest area. No words were
exchanged during the altercation, and appellant was not injured. The bus
driver stopped the bus and ordered appellant to exit. She complied.
A wardship petition was filed pursuant to Welfare and Institutions
Code, section 602, subdivision (a), alleging appellant committed assault with
force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4);
count one). Later, pursuant to a negotiated plea agreement, the juvenile
court granted the prosecutor’s oral motion to amend the petition to add a
count two, battery causing great bodily injury (Pen. Code, § 243, subd. (d)).
That same date, appellant pleaded no contest to count two, and count one
was dismissed.
At the dispositional hearing, the juvenile court adjudged appellant a
ward of the court with no termination date, ordered her to reside with her
mother, and placed her on probation with various terms and conditions,
including an electronics search condition.
II. DISCUSSION
Appellant argues the electronics search condition is invalid under Lent
and Ricardo P. and is unconstitutionally vague and overbroad because it
infringes on her rights to privacy.
A. Imposition of the Electronics Search Condition
Following appellant’s plea of no contest, on May 6, 2019, to battery
causing great bodily injury, defense counsel told the court that appellant, “to
avoid future situations . . . she’d like to delete all her social media accounts as

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soon as she gets released.” The court released appellant from custody and,
pending the disposition hearing, ordered her not to use social media.
Just two days later, on May 8, 2019, a deputy probation officer filed a
“Violation of Court Order/Home Supervision Violation” describing that “just a
few hours after [appellant’s] release, this deputy received information that
[appellant] had used social media. A subsequent search of Instagram
revealed two accounts attributed to [appellant], and indications that she had
used Instagram on 5-6-19.” When the probation officer met with appellant to
discuss her failure to follow the terms of her release, appellant acknowledged
she had posted on Instagram, but claimed she did it only to inform her
friends she would not be using social media. Appellant also acknowledged
she had made a poor decision. A search of appellant’s Instagram account and
cell phone showed no inappropriate contact with the victim. That same day,
appellant appeared in juvenile court and was admonished by the court for not
abiding by the conditions of her release.
For the dispositional hearing, the probation department filed its
“Report and Recommendation to the Juvenile Court.” Among other
conditions of probation, the report recommended that the trial court impose
the following search condition: “Submit your cell phone and any other
electronic device under your control to a search of any medium of
communication reasonably likely to reveal whether you are complying with the
terms of your probation, with or without a search warrant, at any time of the
day or night. Such medium of communication includes text messages,
voicemail messages, call logs, photographs, email accounts, and other social
media accounts and applications such as Snapchat, Instagram, Facebook and
Kik. You shall provide access codes to the Probation Officer or any other
peace officer upon request to effectuate such search.” (Italics added.)

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 During the dispositional hearing, defense counsel objected to the
electronics search condition. Counsel argued there was no allegation
appellant posted, videotaped, or talked about the fight on social media, and
thus no “nexus under Lent.” The prosecutor responded appellant had
violated the court’s prior order not to go on social media. Moreover, the
prosecutor argued, “[T]he electronics had some basis in what prompted the
attack. I think there was some gossip or bullying, according to [appellant],
going on, and I think that was through social media.” The prosecutor
believed the electronics search clause was proper to monitor appellant and
“make sure she’s complying with the Court’s other orders.”
After explaining to appellant that cyberbullying cannot “justify actual
bullying,” the court eventually imposed the electronics search condition,
indicating it was “very clear” that the “origins of the problems” leading to the
criminal activity were “on the Internet.” “Cyberbullying,” according to the
court is a “two-way street perhaps” and if “that happened in some way, then
[the] probation department will become aware of it through such a search,
and it may go one way or another. It may be evidence that [appellant] is
involved with it or that she’s not involved with it and is a victim of such
activity. But it is necessary and it is related to this case very clearly as this
had been mentioned several times by the mother.”
B. Applicable Law
By statute, probation conditions must be “reasonable.” (Pen. Code,
§ 1203.1, subd. (j); Welf. & Inst. Code, § 730, subd. (b).) A reviewing court
may not strike a probation condition as unreasonable 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.” ’ ” (Ricardo P., supra,

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7 Cal.5th at p. 1118; Lent, supra, 15 Cal.3d at p. 486.) The three-part test,
commonly referred to as the Lent test, applies to juvenile and adult probation
cases. (Ricardo P., at pp. 1118–1119.) We review the juvenile court’s
imposition of probation conditions for abuse of discretion. (Id. at p. 1118.)
In Ricardo P., the California Supreme Court addressed an electronics
search condition imposed on a juvenile probationer who had admitted to
participating in two felony burglaries where there was no evidence of the use
of electronic devices. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The
electronics search condition at issue in Ricardo P. required the juvenile
probationer to submit all his electronic devices and passwords to warrantless
searches at any time. (Id. at pp. 1116–1117, 1122–1123.) The juvenile told
the probation officer he was not thinking when he committed the burglaries
and had “ ‘stopped smoking marijuana after his arrest because he felt that
[it] did not allow him to think clearly.’ ” (Id. at p. 1116.) Addressing a Lent
objection, the juvenile court found the condition reasonably related to
preventing future crime because “ ‘minors typically will brag about their
marijuana usage . . . by posting on the Internet’ ” and the juvenile’s
statement to the probation officer had “ ‘made reference to the fact that
marijuana was involved in the commission of this offense.’ ” (Ricardo P., at
p. 1117.)
In its review of the probation condition, our Supreme Court focused its
analysis on the third prong of the Lent test—whether the condition was
reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at
p. 1119.) The court held that the third Lent prong requires a “degree of
proportionality between the burden imposed by a probation condition and the
legitimate interests served by the condition.” (Ricardo P., at p. 1122.) The
court therefore rejected the argument that any search condition that

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facilitated supervision of probationers is necessarily reasonable. It observed
this justification could support sweeping conditions, such as mandating that
probationers wear 24-hour body cameras, that would not be reasonable
because “the burden on the probationer would be disproportionate to the
legitimate interest in effective supervision.” (Id. at p. 1125.)
The Supreme Court concluded the electronics search condition imposed
in Ricardo P. lacked the requisite proportionality because it was “far more
burdensome and intrusive” than probation conditions it had previously found
reasonable. (Ricardo P., supra, 7 Cal.5th at pp. 1124, 1126 [distinguishing
electronics search condition from notification requirement in People v. Olguin
(2008) 45 Cal.4th 375].) The court reasoned the “sweeping” electronics search
condition imposed on the juvenile significantly burdened his “privacy
interests” and thus “requires a correspondingly substantial and
particularized justification.” (Ricardo P., at pp. 1122–1123,1126.) It stated,
“[A] juvenile court imposing such a condition must consider whether, in light
of ‘the facts and circumstances in each case’ [citation], the burdens imposed
by the condition are proportional to achieving some legitimate end of
probation.” (Id. at p. 1127.)
Applying this proportionality standard, the court found the record did
not reflect a substantial and particularized justification for imposing the
expansive electronics search condition. (Ricardo P., supra, 7 Cal.5th at
p. 1124.) The court also addressed the justification used by the juvenile court
that the electronics search condition was reasonable based on the juvenile
court’s observations that the juvenile probationer had used drugs, and in
general, minors typically bragged about drug usage by posting pictures on the
Internet. (Id. at pp. 1122–1123.) The Supreme Court concluded this “very

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limited justification” was insufficient to justify the “very heavy burden on
privacy” imposed by the probation condition. (Id. at p. 1124.)
While the Supreme Court made clear it was not categorically barring
all electronics search conditions, based on the record before it, it ruled the
burden imposed by the electronics search condition on the juvenile’s privacy
was “substantially disproportionate to the countervailing interests of
furthering his rehabilitation and protecting society.” (Ricardo P., supra,
7 Cal.5th at pp. 1119, 1128.) It therefore struck the electronics search
condition and remanded the case for further proceedings. (Id. at p. 1129.)
Following the issuance of Ricardo P., In re Alonzo M. (2019)
40 Cal.App.5th 156 (Alonzo M.) applied the Ricardo P. standard in
considering the propriety of an electronics search condition. The Alonzo M.
court held that an electronics search condition could properly be imposed for
the juvenile court’s stated purpose of addressing the minor’s admitted
susceptibility to negative peer influences, but struck the condition as imposed
because its terms were not limited to monitoring his social contacts, instead
allowing searches of “ ‘any medium of communication reasonably likely to
reveal whether you’re complying with the terms of probation.’ ” (Alonzo M.,
at pp. 163, 166–167.) Holding that the condition “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,” the Court of Appeal struck the condition and remanded the case for
the juvenile court to consider imposing an electronics search condition more
narrowly tailored to searches of communications reasonably likely to reveal
whether the minor was associating with prohibited persons. (Id. at p. 168.)

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 We now turn to whether the electronics search condition imposed on
appellant here is unreasonable based on the standards articulated by the
California Supreme Court in Lent and Ricardo P.
C. Analysis
The parties do not dispute that the electronics search condition
satisfies the first two prongs of the Lent test, and we agree. The condition
does not relate to appellant’s conviction for battery causing great bodily
injury. Nor does the condition relate to conduct that is inherently criminal—
the use of electronic devices. Thus, as in Ricardo P., the issue in this appeal
turns on the third prong of the Lent test: whether the condition “ ‘requires or
forbids conduct which is not reasonably related to future criminality.’ ” (Lent,
supra, 15 Cal.3d at p. 486.)
Applying the standards articulated in Ricardo P. and Lent, we conclude
the electronics search condition, as presently worded, is not reasonably
related to appellant’s future criminality. As in Ricardo P., the plain language
of the condition is expansive and “too broad to survive scrutiny” (Alonzo M.,
supra, 40 Cal.App.5th at p. 167) because it authorizes a search of any
medium of communication reasonably likely to reveal whether appellant is
complying with any of the terms of her probation, rather than those
reasonably tied to the use of electronics in view of appellant’s criminal
conduct. The overbroad nature of this probation condition, however, does not
foreclose the possibility the juvenile court could impose a more narrowly
tailored electronics search condition on appellant.
In this regard, we find In re Amber K. (2020) 45 Cal.App.5th 559
(Amber K.) instructive and similar in many aspects to the instant matter. In
Amber K., Division Two of this court considered an almost identical search
condition. There, Amber snuck up behind another student, grabbed her hair,

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and pulled her down a small flight of stairs. After the victim fell on her back,
Amber got on top of her and began punching her with a closed fist, and when
the victim tried to stand up, Amber stomped on the side of her face near her
eye. (Id. at p. 562.) Two videos of the attack taken “on students’ cell phones”
were introduced into evidence. (Ibid.) Amber testified that the victim, on
several occasions, threated to “stomp her face in,” once over the phone, once
over Snapchat, and several times when she walked past the victim. (Ibid.)
The juvenile court found that Amber had committed assault with force likely
to produce great bodily injury. (Id. at pp. 561, 563.) The court placed her on
probation with an electronics search condition, which like here, required
Amber to “ ‘submit her cellphone or any other electronic device under her
control to a search of any medium of communication reasonably likely to
reveal whether she is complying with the terms of her probation, with or
without a warrant at any time of the day or night.’ ” (Id. at p. 564.)
The appellate court determined the first prong of Lent was satisfied
because the record did not “show a relationship between [Amber’s] use of
electronic devices and the offending conduct sufficient to justify the
electronic[s] search condition.” (Amber K., supra, 45 Cal.App.5th at p. 565.)
Although the court noted “the record suggests that the assault resulted from
hostility between Amber and [the victim] that had played out in part over
social media, we are not persuaded by the Attorney General’s contention that
‘substantial evidence in the record connects appellant’s use of electronic
devices and social media to the assault.’ ” (Ibid.) Because Amber’s use of
electronic devices is “obviously not in itself unlawful,” the court concluded the
second Lent prong was satisfied. (Amber K., at p. 566.)
Turning to the third Lent prong, the court observed that Amber had
previously violated the juvenile court’s stay-away order, and that she had

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expressed hostility toward the victim in face-to-face contact and in social
media posting after the assault. And the juvenile court made clear in a
condition of probation that Amber was prohibited from having contact with
the victim. (Amber K., supra, 45 Cal.App.5th at p. 567.) In these
circumstances, according to the appellate court, “even in the absence of
evidence that Amber ever used electronic devices for any other purpose, we
see no abuse of discretion in the juvenile court imposing an electronic[s]
search condition to make sure that Amber has no contact with [the victim].”
(Ibid.) Nonetheless, the court concluded the juvenile court “went further, by
authorizing electronic searches for the broader purpose of insuring Amber
was complying with all the probation conditions.” (Ibid.) Although the
juvenile court “tailored the condition by identifying examples of the types of
communication subject to search,” the court opined “the condition was
broadly worded to cover media ‘reasonably likely to reveal whether she is
complying with the terms of her probation,’ not limited to the term that
Amber have no contact with [the victim].” (Ibid.) The Court of Appeal
further concluded “ ‘[t]his wide-ranging search clause burdens [Amber’s]
privacy in a manner substantially disproportionate to the . . . legitimate
interest in monitoring [her] compliance with’ the no-contact order’ ” (Ibid.)
The court struck the electronics search condition but remanded the case to
the juvenile court “to consider whether to impose a revised condition
consistent with this opinion.” (Id. at p. 568.)
In considering Amber K.’s application to the instant matter, we first
note the factual similarities between the two cases. In both cases, the minors
violently assaulted another student after they were bullied on social media,
and each claimed they had been provoked—appellant claimed that J.C.
“ ‘mugged’ ” her (i.e., made a disapproving face at her) when she boarded the

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bus, and Amber claimed she walked by the victim who threatened to stomp
her face in. An almost identical electronics search condition was imposed in
both matters. And in each case, the juvenile court ordered the minors not to
have contact with the victims.
Appellant seeks to distinguish Amber K. by arguing that in the instant
matter, “there is no history of appellant violating the court’s stay away order,
as was the case in Amber K.” Rather, appellant argues the juvenile court’s
justification here for the electronics search condition was “the victim used
social media before the battery.” That J.C. bullied appellant on social media,
does not, appellant argues, provide any real or substantial nexus to the
electronics probation condition. Given the factual similarities between
Amber K. and this case and the purpose behind the imposition of almost
identical electronics search conditions to prohibit and prevent contact
between the minors and the respective victims, we are not persuaded these
distinctions are noteworthy.2
Even though there was no evidence appellant used any electronic
devices in connection with the incident, pursuant to Amber K., we too
conclude under the circumstances presented here, that the juvenile court did
not abuse its discretion by imposing an electronics search condition to ensure,
under the no-contact probation condition, that appellant has no further
dealings with J.C. Nonetheless, like Amber K., we believe the court went too
far by authorizing electronics searches for the broader purpose of ensuring
appellant complies with all the conditions of probation because “[t]his wide-

2 Although the juvenile court did not state its purpose in imposing the
electronics search condition, several can be discerned based on the record, one
of which is to monitor “other conditions of probation that are appropriate in
light of the individual’s misconduct or personal history.” (See Alonzo M.,
supra, 40 Cal.App.5th at p. 168, fn. 3.)

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ranging search clause burdens [appellant’s] privacy in a manner
substantially disproportionate to the . . . legitimate interest in monitoring
[her] compliance with” the no-contact probation condition. (Alonzo M., supra,
40 Cal.App.5th at p. 168.) Accordingly, we strike the electronics search
condition and remand to the juvenile court to consider whether to impose a
narrowed condition.
III. DISPOSITION
The disposition order is affirmed, except that the electronics search
condition 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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 MARGULIES, J.

WE CONCUR:

HUMES, J.

BANKE, J.

A157509
In re Andrea H.

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