In re M.F.

Filed 1/12/17
CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re M.F., a Person Coming Under the
Juvenile Court Law.
D068971
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J237131)

v.

M.F., a Minor,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Aaron H.

Katz, Judge. Affirmed in part and reversed in part.

Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon Jr., Randall D.

Einhorn and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts I, II, IV and V.
 Defendant M.F. appeals from the juvenile court's disposition order declaring him a

ward of the court pursuant to Welfare and Institutions Code1 section 602, committing

him to a residential program, and setting probation conditions. He contends that the court

erred by: (1) admitting cumulative and prejudicial testimony and exhibits at the

disposition hearing; (2) committing him to a 480-day residential program;

(3) imposing an unconstitutionally overbroad probation condition restricting his

possession of electronic devices; (4) designating one of his offenses as a felony without a

proper section 702 finding; and (5) failing to deduct his predisposition custody credits

when calculating his maximum term of confinement.

We conclude that the juvenile court erred in imposing an overly broad probation

condition regarding electronic devices and in failing to deduct predisposition custody

credits when determining M.F.'s maximum time of confinement.2 We therefore reverse

the disposition order in part, and remand for the juvenile court to modify its order to

include: (1) a more narrowly tailored probation condition, and (2) a deduction of M.F.'s

1 Unless otherwise specified, all subsequent statutory references are to the Welfare
and Institutions Code.

2 M.F. recently filed a notice of abandonment of appeal and request for
dismissal. Pursuant to California Rules of Court, rule 8.316(b)(2), we retain jurisdiction
to deny a request for dismissal when it occurs after the appellate record has been filed,
particularly if the appeal "poses an issue of broad public interest that is likely to recur."
(People v. Scarbrough (2015) 240 Cal.App.4th 916, 920, fn. 2; see also Lucchesi v. City
of San Jose (1980) 104 Cal.App.3d 323, 326, fn. 2.) In this case, we denied the dismissal
request to address the constitutionality of the electronic device probation condition.

2
predisposition custody credits in its determination of his maximum period of

confinement. In all other respects, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

In May 2015, police detained M.F. at his high school after he gave one of his

teachers a letter stating that she "should be worried about getting shot," and that she "did

not know what her students were capable of or what they may have at home." When

detained, he was wearing an empty holster. The police searched M.F.'s backpack and

found journals that described a plan to kill individuals associated with schools that he had

attended.3 The journals also contained a list of supplies that he would need to carry out

his plan and "hit lists" of potential victims, with various types of "punishments" (such as

wound, torture, death, rape, or a combination thereof) next to each name. In addition,

one journal entry indicated that M.F. had been "faking it" while participating in anger

management and counseling following his 2013 expulsion.

The police searched M.F.'s bedroom and found 20 rounds of live ammunition,

several replica firearms, gun magazines, gun cleaning equipment and gun holsters,

including one for a Glock firearm, a handgun case, a folding knife, black ski masks and a

balaclava (a knit cap that covers the head and shoulders). The police also found tactical

3 In 2013, M.F. was expelled from another school for dressing in tactical gear on
Halloween and carrying a binder that contained materials referencing Columbine High
School. He then attended a Juvenile Court and Community School before enrolling in
the school where he was ultimately detained.
3
gear, including a ballistic helmet, vest and armor plates. Several items found in M.F.'s

bedroom had been checked off on his supply list.

M.F. told police that he had been involved in a militia for several years and said

that he had shot approximately 1,500 rounds of ammunition during firearms training. He

also admitted having borrowed a Glock and a rifle from militia members, which he had

kept hidden, but claimed that he had returned the guns. M.F. made similar statements in

an interview with a probation officer. In addition, he indicated that the militia had given

him body armor, which he said he used "mostly" for his job as a paintball referee. He

claimed that his journal entries were intended to be cathartic and he had no intention of

physically harming anyone. Regarding his participation in anger management and

decision-making counseling in 2014, he admitted that the programs had been ineffective

in helping him appropriately channel his anger.

B. Procedural background

The San Diego County District Attorney filed a juvenile wardship petition (§ 602)

against M.F., alleging that he had made criminal threats (Pen. Code, § 422), threatened a

public employee (Pen. Code, § 71), and possessed ammunition (Pen. Code, § 29650). In

June 2015, he admitted the allegations in the petition.

In August 2015, following a contested disposition hearing, the court declared M.F.

a ward of the court, removed him from his parents' custody and committed him to the

Youthful Offender Unit (YOU) for up to 480 days.

M.F. filed a timely notice of appeal.

4
 DISCUSSION

I. Admission of Evidence at the Disposition Hearing

A. Additional Facts

At the disposition hearing, the prosecution called Officer Garrett, a detective with

firearms experience who was assigned to the case, to testify. M.F.'s counsel objected,

arguing that Officer Garrett's testimony would be irrelevant and more prejudicial than

probative.4 The court overruled the objection, indicating that it wanted to fully

understand the case, including the materials recently discovered following a forensic

investigation of M.F.'s computer, to ensure a proper disposition.

Officer Garrett testified that M.F.'s bedroom contained ammunition that would

work only in real firearms, cleaning equipment for real firearms and a Glock handgun

case. He also testified about notes found in the Glock case, which indicated that the

weapon was hidden elsewhere. He described M.F.'s journal entries in which he referred

to hiding weapons in his mattress and the discovery by police of a slit in his mattress with

a hollowed out space inside. In addition, Officer Garrett testified that M.F.'s tactical gear

appeared to be real, and that one of the firearms shown in a video taken in his bedroom

appeared to be real and was never found by the police. He further testified that the police

had been unable to verify the existence of the militia groups referenced in M.F.'s journals.

4 M.F.'s counsel objected two additional times during the testimony, objecting to
testimony regarding materials found on M.F.'s computer as cumulative and to the exhibits
entered in evidence as cumulative and as more prejudicial than probative.
5
 Officer Garrett also testified regarding his examination of M.F.'s cell phone, which

contained a video of M.F. loading a gun and aiming it at a target in his bedroom. The

phone also contained an album entitled "militia," which included videos of M.F.

conducting target practice, standing at a window and aiming a realistic looking gun at the

head of a bicyclist riding by, and practicing tactical maneuvers, and photographs

depicting violence toward police officers. In addition, the cell phone contained

photographs of school manuals describing procedures for dealing with an armed intruder,

a hostage or barricade situation, and a bomb threat. The cell phone further contained a

text message to M.F.s' girlfriend, sent the day before his arrest, stating that he was

carrying his Glock "concealed."

Officer Garrett also testified regarding information found on M.F.'s computer.

Investigation of the computer revealed a history of Google searches relating to dead

children and school shootings, thousands of photographs of weapons, photographs of one

of his schools, and information regarding how to hide guns or gun magazines. The

computer also contained a pornographic video filmed in M.F.'s bedroom, manuals

referencing violence against women and a Skype video in which he threatened potential

harm to his girlfriend.

Officer Garrett further provided the foundation for the prosecution's exhibits,

which the court accepted into evidence. The exhibits included copies of pages from

M.F.'s journal (including the list of potential victims, the supply list and plans), four

examples of photographs advocating or depicting violence against police officers, a

photograph of his tactical gear, a photograph of M.F. dressed in tactical gear holding a

6
threatening message addressed to his school district. The exhibits also included

photographs of ammunition found in his bedroom and of the notes found in the Glock

case. One of these notes said "Too Late!!! My 2nd Amendment will NOT be

infringed!!" and the other, dated 2014, indicated that the Glock had been moved and that

the airsoft training pistol was a decoy.

B. Argument

M.F. contends that the juvenile court erred in allowing Officer Garrett to testify,

and in admitting exhibits pertaining to evidence contained on his cell phone and

computer, over his counsel's objection, because the evidence was cumulative and

prejudicial.

C. Governing law

In making its disposition ruling, the juvenile court is required to consider public

safety, victim redress and the best interests of the minor. (§ 202, subd. (d).) The court

must also take into account: (1) the minor's age, (2) the circumstances and gravity of the

minor's offense, and (3) any prior history of delinquency. (§ 725.5.) In addition,

pursuant to section 706, "[t]he court shall receive in evidence the social study of the

minor made by the probation officer and any other relevant and material evidence that

may be offered." (See also Cal. Rules of Court, rule 5.785(b) ["The court must receive in

evidence and consider the social study and any relevant evidence offered by the

petitioner, the child, or the parent or guardian."].)

There is therefore a strong public policy of ensuring that a juvenile court judge has

broad access to relevant information about a minor when conducting its disposition

7
analysis. (In re Michael V. (1986) 178 Cal.App.3d 159, 170 (Michael V.).) There is no

statutory requirement that the Evidence Code be applied at a disposition hearing (§ 706).

Rather, the hearing is governed by "less exacting rules" than the jurisdiction hearing

(§ 701), which requires application of the Evidence Code. (In re Eddie M. (2003) 31

Cal.4th 480, 487.) At the disposition hearing, the juvenile court is permitted to consider

evidence that would otherwise be inadmissible, if the evidence is relevant and material.

(Michael V., supra, at p. 170 [illegally obtained evidence]; In re Vincent G. (2008) 162

Cal.App.4th 238, 244 [hearsay evidence].) Although section 706 does not expressly

incorporate the Evidence Code, it has been interpreted as impliedly incorporating

Evidence Code section 352, allowing the court to limit admission of relevant evidence at

disposition hearings when the evidence is cumulative, unduly prejudicial or time

consuming, or likely to confuse the issues, to avoid any possible undesirable

consequences of a literal interpretation of section 706.5 (In re Romeo C. (1995) 33

Cal.App.4th 1838, 1843 (Romeo C.).) The juvenile court has broad discretion in

determining the admissibility of evidence at the disposition hearing. (In re Jordan R.

(2012) 205 Cal.App.4th 111, 121.)

5 As used in Evidence Code section 352, the term "prejudice" does not refer to harm
to a party's case stemming from relevant, probative evidence, but instead refers to the
tendency of certain evidence "to evoke an emotional bias against a party because of
extraneous factors unrelated to the issues." (People v. Cortez (2016) 63 Cal.4th 101, 128
(Cortez).)
8
 D. Standard of review

We review the court's ruling regarding the admissibility of evidence for an abuse

of discretion. (People v. Myers (2014) 227 Cal.App.4th 1219, 1224.) "A court abuses its

discretion when its ruling 'falls outside the bounds of reason.' " (Ibid.)

E. Analysis

M.F. argues that the testimony regarding the contents of his electronic devices did

not add anything to the People's case and that the prosecution had no right to present

potentially prejudicial cumulative evidence. However, the mere fact that evidence is

cumulative does not render it irrelevant. (People v. Smithey (1999) 20 Cal.4th 936, 974.)

Moreover, as discussed above, the court is to have broad access to relevant information at

a disposition hearing and is to consider any evidence that is relevant and material to the

disposition, qualified only by the court's discretion to exclude evidence under Evidence

Code Section 352. (§ 706; Michael V., supra, 178 Cal.App.3d at p. 170; Romeo C.,

supra, 33 Cal.App.4th 1838, 1843; Cal. Rules of Court, rule 5.785(b).) M.F.'s offenses

included threatening to shoot a teacher and possessing live ammunition. Any information

that is probative of whether he harbored the intention and means to carry out such a threat

would be germane to both public safety and his best interests—considerations that are

highly relevant to the court's placement decision. (§ 202, subd. (d).)

Although the juvenile court had considered reports containing general descriptions

of some of the materials that police discovered on M.F.'s electronic devices, Officer

Garrett's testimony provided an overview of the materials that he deemed most

significant and provided information regarding where certain videos had been filmed,

9
including the video of M.F. conducting target practice. Officer Garrett's testimony also

provided the benefit of his experience with firearms, as evidenced by his testimony

regarding the functionality of the firearm depicted in one of the videos.

In his opening brief, M.F. argues that references to pornography and the Skype

video threat were inflammatory and unduly prejudicial. However, Officer Garrett

referred only briefly to one pornographic video (without further description of its

content), focusing instead on his determination that the video had been filmed in M.F.'s

bedroom. This testimony appears probative of the level of parental supervision of M.F.

at home, a fact relevant to the nature of the commitment necessary to serve his best

interests. (§ 202, subd. (d).) Testimony regarding the Skype video threat is relevant to

public safety (§ 202, subd. (d)). To the extent that M.F. contends that this testimony was

"uncorroborated," he had the opportunity to address the lack of corroboration on cross-

examination.

Similarly, the contested exhibits were relevant because they: (1) illustrated,

through four of the photographs found, what the reports meant when referring to

materials advocating violence against police officers; (2) depicted the exact language and

nature of a threat to the school district contained in one of the photographs; and

(3) provided the text of the gun case notes, supplementing other information in the

record. This evidence was not unduly prejudicial because it did not represent extraneous

information tending to evoke emotional bias, but instead supported, supplemented or

illustrated other evidence in the record relating to M.F.'s state of mind, his level of

10
planning and preparation for a violent attack and his potential access to weapons, all of

which are probative to the issue of his proper placement.

The juvenile court did not abuse its discretion in admitting testimonial and

documentary evidence regarding the contents of M.F.'s electronic devices.

II. Propriety of M.F.'s Placement at YOU

A. Additional Facts

M.F. was diagnosed with a serious medical condition following his detention.

Treatment for the condition was expected to continue for several months. The condition

would require around the clock access to medical care, periodic hospitalization, and

isolation from other juvenile hall residents. The juvenile hall staff set up a private suite

for M.F. near the health clinic.

After M.F. received his medical diagnosis, the court heard testimony regarding

how to best accommodate his condition. His treating physician testified that detaining

M.F. apart from his family and away from the hospital's teenager support group, which

was available at the hospital where he was receiving treatment, would be "cruel,"

depriving him of beneficial emotional support. In addition, M.F.'s physician opined that

M.F. would receive greater therapeutic benefit from being surrounded by family than

from visitation and telephone calls with them.

The juvenile hall medical clinic's supervisor testified that she had concerns

regarding the clinic's ability to address M.F.'s psychosocial issues. She worried that he

might become angry and act out, explaining that children in isolation often become sad

and depressed and tend to act out. In addition, the facility would have to expend

11
extensive efforts to prepare for M.F.'s care. The supervisor did not believe that returning

M.F. to juvenile hall upon his release from the hospital would be in his best medical

interest.

At the conclusion of the hearing, the juvenile court stated that it was concerned

about the community, but also concerned about M.F., and commented that the court

would have to design a solution that would accommodate the interests of both. Over the

course of the proceedings, the court followed the situation closely, obtaining numerous

updates on M.F.'s condition and circumstances. The court expressed concern about the

psychological and emotional impact of M.F.'s detention, and indicated that the court

wanted him to "be kept busy" and to have as much visitation as possible. The detention

facility restructured its visiting hours to allow M.F.'s mother to spend most of the day

with him, and he was also allowed visits from other family members.

Prior to the disposition hearing, the court also received and considered several

reports from the probation department. The initial report described M.F. as being "at

high level of risk" for continued delinquency and recommended placement in the

Breaking Cycles program for up to 240 days, followed by participation in the Reflections

program, in which he would be searched daily when arriving at school and have access to

onsite mental health services. The department also recommended the use of cognitive

behavior therapy to address his "dark and malicious thoughts," as reflected in his

journals.

12
 In a subsequent report, the probation department changed its recommendation to

placement in the YOU program for 480 days. The YOU program would provide

evidence-based cognitive behavioral therapy and close monitoring upon M.F.'s release.

The department modified its placement recommendation based on its review of new

evidence suggesting that M.F. had access to hidden weapons and that he had discussed

concealing weapons, referred to violence toward police, and used a targeting scope on

random people through his bedroom window.

In addition, the probation department relied on a report from Dr. B., a

psychologist, who evaluated M.F. and believed that his psychological needs would be

best met through residential treatment. Dr. B. indicated that treatment for cases like

M.F.'s is complicated and often takes "long periods of time." She concluded that he

might benefit from "more intensive interventions" to address his anger. Dr. B. was

concerned about the fact that M.F. was not deterred by his first school expulsion, which

instead appeared to have fueled his rage. She also noted that between his 2013 expulsion

and his May 2015 detention, he had twice been caught carrying a weapon to school (first

a small knife and then pepper spray). Dr. B. believed that the descriptions in M.F.'s

journals were too detailed to be consistent with him merely venting his frustrations, as he

claimed, and opined that given the materials found among his belongings, he presented a

high risk for acting out violently. In addition, Dr. B. expressed concern about the content

of certain online chats that M.F. engaged in regarding violence and planning an attack,

which M.F. claimed were chats with himself. The department found implausible M.F.'s

statement that the online chats were with himself, and viewed it as an attempt to deceive

13
Dr. B. and as evidence of his unwillingness to take accountability for his actions or to

change his mindset. The probation department recommended that M.F. be detained until

he had participated in therapy and rehabilitation sufficient to address his risks and needs.

In a subsequent supplemental report, the probation department addressed three

different placement options: YOU, Breaking Cycles and in-home placement. The report

indicated that, due to M.F.'s medical condition, his current plan for housing, education,

visitation, recreation and free time would remain unchanged irrespective of whether he

was placed in the YOU or Breaking Cycles program. In addition, either placement would

allow him to continue to receive weekly individual therapy from a psychologist during

his detention. In YOU, his medical isolation would preclude him from participating in

much of the programming (designed for group participation), but he could potentially

meet with his counselor more frequently and obtain videos and worksheets from some of

the group programs. The program involves up to 480 days in custody (or a minimum of

nine months, depending on the minor's progress). Although designed to meet the needs

of severe and chronic juvenile offenders, YOU was described as appropriate for M.F.

because of his severe and disturbing behavior, which was seen as posing a threat to both

himself and the community. Under YOU, he would retain the same counselor throughout

the program, with weekly counseling sessions continuing after his release and throughout

his probation. Upon his release, he would also be supervised by the probation department

and would have access to a job developer and to appropriate programs in the community.

The Breaking Cycles program supervisor reviewed M.F.'s case and indicated that

it would not be an appropriate placement for him. However, if he were to be placed in

14
the program, Breaking Cycles could make accommodations by providing individualized

counseling at juvenile hall. In addition, upon his release, he could participate in a

community program with therapeutic services and supervision by the probation

department and a community family monitor, but his health condition would prevent him

from participating in the usual transition programs, Reflections and the Youth Day

Center. The supplemental report also addressed supervised home placement, which

would require periodic probation monitoring and extensive outpatient psychological and

psychiatric counseling.

At the disposition hearing, M.F. presented the testimony of a probation officer

assigned to the Breaking Cycles program. The officer testified that group therapy

comprised the bulk of the custodial programming, but due to M.F.'s situation, the staff

would have to meet with him individually at juvenile hall. Minors without substance

abuse issues would typically be in custody for only three weeks, but could stay for up to

56 additional days if necessary. Upon release, minors with mental health issues would

usually participate in the Reflections program. However, M.F. would age out of that

program upon turning 18, in approximately eight months.

M.F. also presented testimony from Dr. S., the psychologist who had conducted

his initial psychological evaluation. Dr. S. testified that the tests he administered, and

Dr. B.'s test results did not show that M.F. would be at high risk for violence, disagreeing

with Dr. B.'s conclusion. However, he admitted that the test results were based on M.F.'s

truthfulness, and he had noted in his report that in evaluating M.F., he had been "unable

15
to determine the absence or presence of antisocial personality traits or disturbances with

confidence" because M.F. was highly defensive. In addition,

Dr. S. had previously opined that M.F. might be a challenge to treat and that he was

ambivalent about returning to individual therapy. Unlike Dr. B., Dr. S. had not reviewed

the most recent police reports, including those describing the materials found on M.F.'s

computer. When presented with this information, he testified that none of the new

information would have impacted his opinion, because such materials are just

background facts and he relied more heavily on the psychological test findings. He

admitted, however, that a person's journals containing consistent themes of violence and

guns over a five-year period would be a fairly good indicator of the individual's thought

processes.

At the conclusion of the disposition hearing, the juvenile court concluded that

YOU was the appropriate program for M.F., finding that M.F. required "intensive

substantial and significant rehabilitative services" in order to return to the community,

and that YOU could provide such services. The court noted that it had reached its

conclusion after having carefully considered M.F.'s medical needs and spending weeks

developing a plan to accommodate them. The court found M.F.'s behavior concerning, in

that M.F. appeared to have gone beyond journaling fantasies to acting on the fantasies by

collecting ammunition, attempting to contact militia and possibly obtaining a gun. The

court found Dr. S.'s testimony not to be "very credible" in light of his insistence that his

opinion would not be altered by any of the recently obtained information. The court

relied instead on Dr. B.'s opinion because she had reviewed all of the additional materials

16
and examined M.F. after his medical diagnosis. The court determined that it would take

"months and months and months" of rehabilitation to ensure that M.F., his family

members and the community would be safe upon his release. In addition, the court found

that Breaking Cycles would be an inappropriate placement for M.F. because he would

age out of necessary rehabilitative programs after eight months.

B. Argument

M.F. contends that the juvenile court erred in failing to consider the emotional

impact of his prolonged medical isolation while in custody. He further contends that the

probation department's recommendation for the 480-day YOU placement is not supported

by substantial evidence. He characterizes the probation department's recommendation as

"erroneously based on speculation about a gun that was never found and [Dr. B.'s]

inconclusive findings," and argues that the recommendation "lacked a credible basis" for

its conclusion that he was unwilling to take responsibility for his actions. He also

contends that the court's implicit determination that the 240-day Breaking Cycles

program would be ineffective or inappropriate is not supported by substantial evidence

because the record does not show that he would not respond to a less restrictive treatment

with less custody time.

C. Governing law

The purpose of juvenile court law is to protect both the public and the minor "and

to preserve and strengthen the minor's family ties whenever possible." (§ 202, subd. (a).)

A minor must receive "care, treatment and guidance" consistent with the best interest of

the minor and the public and, if the minor has committed crimes, the disposition must

17
hold the minor accountable, be appropriate for the circumstances and conform with the

interest of public safety and protection. (§ 202, subd. (b).) Therefore, in engaging in its

deliberations, the court must consider public safety, victim redress and the best interests

of the minor. (§ 202, subd. (d).)

Juvenile law contemplates a progressively more restrictive placement scheme,

beginning with home placement under supervision and culminating in placement at the

California Division of Juvenile Justice. (In re Nicole H. (2016) 244 Cal.App.4th 1150,

1159 (Nicole H.).) However, the court may consider a more restrictive commitment

without prior recourse to other less restrictive placements. (Ibid.) The juvenile court is

not required to expressly state on the record its reasons for rejecting less restrictive

placements, but the record must contain some evidence that the court appropriately

considered and rejected reasonable alternative placements. (Ibid.)

D. Standard of review

We review a juvenile court's placement decision for abuse of discretion. (Nicole

H., supra, 244 Cal.App.4th at p. 1154.) In doing so, we will affirm if there is substantial

evidence to support the juvenile court's findings, indulging all reasonable inferences in

support of its decision. (In re Jose T. (2010) 191 Cal.App.4th 1142, 1147 (Jose T.).) In

order to determine whether there is substantial evidence to support the court's placement

decision, we examine the disposition hearing record in light of the purposes of the

juvenile court law (§ 200 et seq.). (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.)

18
 E. Application

First, despite M.F.'s argument to the contrary, it is apparent from the record that

the juvenile court considered the impact of detention on M.F.'s psychological well-being.

Prior to the disposition hearing, the court heard testimony regarding the psychological

effects of isolation on someone with his medical condition. The court addressed the issue

by ordering substantial and liberal family visitation, which balanced M.F.'s need for

emotional support with concerns regarding public safety. This balance would be

maintained upon disposition because the YOU supervisor reported that M.F.'s current

visitation plan would remain unchanged. In addition, the court relied on the opinion of a

psychologist, Dr. B., who evaluated M.F. with knowledge of his medical diagnosis and

opined that his needs "would be best met in a residential treatment facility."

Second, although M.F. is a first time offender, the evidence established an

escalating pattern of concerning non-adjudicated behavior leading up to his offense,

beginning in 2013 when he was caught with disturbing materials and expelled from

school, followed by his documenting a detailed plan to harm specific individuals, his

assembly of various items on a checklist associated with the plan and his taking weapons

to school (a knife and pepper spray). In addition, M.F.'s pronounced preoccupation with

gun violence was evidenced in videos showing him aiming a gun at a person outside his

home, images advocating police killings and evidence of an additional threat he made to

a school district. There was also ample evidence that M.F. would likely have access to

firearms if released to the community, creating a public safety concern. For example,

M.F. implied in his threatening note to his teacher that he had access to a gun. In

19
addition, Officer Garrett testified that one of the videos taken in M.F.'s bedroom showed

him holding a real firearm that was never recovered. M.F. was caught wearing an empty

Glock holster and had recently sent a text to his girlfriend saying that he had carried the

weapon the day before. The police found an empty Glock case in his bedroom that

contained notes stating that the gun was hidden where police would not find it. Further,

his journal referenced his hiding weapons.6 In addition, M.F. admitted to having access

to guns through his contact with friends in a militia group.

Dr. B. opined that M.F. presented a high risk of acting out violently, based in part

on the inconsistency between his responses to her questions, and the detailed planning

evidenced in his journals and in other materials in his possession. She indicated that

residential treatment would be the best option and opined that treatment for his condition

is complicated, and was likely to require psychotherapy and behavioral therapy "for long

periods of time." Dr. S. also opined that M.F.'s treatment might be "challenging,"

because he required individual therapy, but was ambivalent about participating in it and

might be defensive in sessions. Additionally, M.F. admitted to "faking" his way through

two months of required counseling and anger management sessions following his 2013

expulsion.

6 M.F. also contends that the juvenile court improperly speculated at the disposition
hearing that M.F. put the notes in the gun case and abused its discretion by considering
such speculation in rendering its decision. However, because there is substantial
evidence that M.F. may have access to guns upon his release, irrespective of who drafted
or placed those notes in the gun case, we conclude that any purported error resulting from
the court's "speculation" would not have been prejudicial.
20
 Dr. B. and the probation department were also concerned about M.F.'s explanation

that his online chats about planning a violent attack were communications that he had

with himself. M.F. argues that the department lacked a credible basis for viewing the

statement as evidence that he was unwilling to take responsibility for his actions.

However, even if M.F. is now willing to attempt to change his patterns of behavior, the

facts summarized above represent substantial evidence supporting the juvenile court's

finding that M.F. will require intensive therapy for a prolonged time period before he

may be safely released into the community.

In issuing its disposition order, the court expressed its concern that M.F. receive

psychological treatment of sufficient duration to allow for his safe release, as well as

appropriate services upon reentry into the community. Both the Breaking Cycles and

YOU program would provide M.F. with the benefit of the recommended individual

therapy during the course of his confinement. However, a Breaking Cycles commitment

for 240 days would typically provide for only a few months of custodial treatment. If the

custodial treatment were to be extended to the full 240 days, M.F. would be too old to

participate in the recommended Reflections reentry program upon his release. In

contrast, the YOU program would allow M.F. to undergo custodial psychotherapy for

several months, followed by a prolonged reentry program involving the same counselor

assigned to him at the outset of the program.

Substantial evidence indicates that M.F. requires prolonged residential therapy to

support his safe release into the community. The YOU program can provide M.F. with a

longer term of confined therapy and appropriate reentry services, in contrast to the shorter

21
duration and reentry limitations associated with the Breaking Cycles program, amply

supporting the juvenile court's findings that the YOU program would be a more

appropriate placement.

III. Constitutionality of Electronic Device Probation Condition

A. Argument

Condition number 49 of the probation conditions that the juvenile court imposed

provides as follows: "The minor shall not knowingly possess an electronic device, such

as a computer, electronic notepad, paging device, or cell phone, except in the course of

lawful employment or for a school-authorized project."7 M.F. argues that the condition

should either be stricken or modified. M.F. contends that this condition is

unconstitutionally overbroad because it implicates his freedom to communicate and

gather information.

B. Governing Law

The juvenile court has broad discretion to impose reasonable probation conditions.

(§ 730, subd. (b); (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.)). Because

juveniles require more guidance than adults do, and their constitutional rights are more

limited, it may be appropriate for the juvenile court to impose a probation condition on a

minor that would be improper or unconstitutional if imposed on an adult. (In re Victor L.

(2010) 182 Cal.App.4th 902, 910 (Victor L.).) However, the juvenile court's discretion is

not unlimited; the court may not order probation conditions that are unconstitutionally

7 M.F.'s counsel objected to imposition of the condition at the disposition hearing.
22
overbroad. (Sheena K., supra, at p. 890.) A probation condition is unconstitutionally

overbroad if it imposes limitations on the probationer's constitutional rights and is not

narrowly tailored and reasonably related to the compelling state interest in reformation

and rehabilitation. (Ibid.)

The right to free speech is a fundamental constitutionally protected right.

(Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1147.) Laws that

attempt to regulate expression are carefully scrutinized because they pose a particular

danger of state abuse. (In re Stevens (2004) 119 Cal.App.4th 1228, 1237 (Stevens).) In

today's society, wireless devices, such as cell phones, are considered an "important media

for communication." (Victor L., supra, 182 Cal.App.4th at p. 919.) In addition, courts

have recognized the increasing importance of computer and Internet access (People v.

Pirali (2013) 217 Cal.App.4th 1341, 1348 (Pirali), and have held that restricting such

access impacts First Amendment rights (Stevens, supra, at p. 1236, citing Ashcroft v.

American Civil Liberties Union (2004) 542 U.S. 656; Clement v. California Dept. of

Corrections (9th Cir.2004) 364 F.3d 1148).

California appellate courts have generally upheld the constitutionality of probation

conditions prohibiting the use of electronic devices as narrowly tailored when they are

closely related to the circumstances of an adult offender's crime. (See Pirali, supra, 217

Cal.App.4th at p. 1343 [upholding prohibition on Internet use without probation officer

preapproval when crime involved possession of child pornography on the appellant's

computer]; People v. Harrisson (2005) 134 Cal.App.4th 637, 641, 647 [upholding

prohibition on Internet access when crime involved Internet use in an attempt to solicit

23
sex with a minor]; but see Stevens, supra, 119 Cal.App.4th at pp. 1238-1239 [reversing

prohibition on computer and Internet access when the appellant's molestation conviction

was unrelated to his computer or Internet use].)

In Victor L., an appellate court considered the constitutionality of probation

conditions prohibiting a juvenile offender from possessing mobile communications

equipment or a computer with Internet access. (Victor L., supra, 182 Cal.App.4th at

pp. 919-927.) The police discovered Victor sitting in a parked car in which weapons

were found, surrounded by fellow gang members, and Victor admitted to possessing a

weapon. (Id. at p. 908.) In upholding the mobile communications devices restriction, the

appellate court noted that such devices are "tools of the trade for gang members," and

concluded that the restriction was narrowly tailored to prevent future crimes because (1)

it did not prohibit use of all communications devices; and (2) it had a legitimate

probationary purpose since the use of a mobile device is more difficult to supervise, and

the court may reasonably have concluded that Victor would not be able to resist using the

device to contact other gang members. Thus, the probation condition at issue would

increase the likelihood that he would comply with other probation conditions. (Id. at pp.

921-922.) The court also noted that the restriction was not an absolute ban on the

possession or use of mobile communications devices because it contained an exception

for use or possession authorized by the probation officer. (Id. at p. 922.) The court

further concluded that the restriction on possessing an Internet-enabled computer was

proper because it served the same purpose as the prohibition of mobile communications

24
devices by preventing use for improper purposes and promoting the enforceability of

other probation conditions. (Id. at p. 926.)

C. Standard of Review

We review constitutional challenges to probation conditions de novo. (In re

Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

D. Analysis

The probation condition prohibiting M.F. from knowingly possessing an electronic

device, except for purposes of employment or school projects, constitutes a restriction on

his freedom of speech, because it interferes with his ability to communicate through the

Internet and via cell phone. (See, Stevens, supra, 119 Cal.App.4th at p. 1236; Victor L.,

supra, 182 Cal.App.4th at p. 919.) We must therefore determine whether the restriction

is narrowly tailored and reasonably related to the compelling state interest in M.F.'s

rehabilitation. (Sheena K., supra, 40 Cal.4th at p. 890.) M.F.'s offenses are threatening

gun violence and possessing ammunition. Evidence established that he routinely used the

Internet to obtain information about guns and how to hide them, as well as other

information that could assist him in planning and carrying out his threat. Thus, to the

extent that the condition prohibits M.F.'s unsupervised use of an electronic device with

Internet access, the restriction appears to be related to the circumstances of his crime and

appropriately tailored to his rehabilitation under the reasoning applied in Victor L.

(Victor L., supra, 182 Cal.App.4th at pp. 921-922.)

25
 However, the condition also appears to prohibit M.F. from using a wireless

telephone handset in his home or a cell phone (irrespective of Internet access or text

messaging capability), to communicate with anyone for any purpose other than education

or employment. Such a prohibition on M.F.'s use of a telephone does not appear to be

closely connected to the circumstances of his crime. His criminal threat was made on a

piece of paper, and to the extent that there was evidence of other threats on his electronic

devices, or of contacts with purported militia members, none is alleged to have occurred

through oral telephonic communication. Unlike the circumstance in Victor L., in which a

cell phone was characterized as a tool of the trade for a juvenile gang member, the record

in this case does not suggest that M.F. would be likely to use an electronic device limited

to oral communications in a way that would hinder his rehabilitation.

We therefore conclude that the probation condition barring M.F.'s knowing

possession or use of all electronic devices, except for the limited purpose of employment

or school projects, imposes a restriction on his freedom of speech that is not narrowly

tailored to the circumstances of his crimes and his rehabilitation. For example, M.F.

should be permitted to use and possess a telephone (without Internet or text messaging

capability), such as a basic cell phone or wireless telephone handset. Accordingly, we

direct the juvenile court to modify the condition to identify more precisely the nature of

the electronic devices that the court seeks to prohibit. In doing so, the court should

consider the purpose that this condition is intended to serve, in the context of his other

probation conditions, and how it may be tailored to best help M.F. avoid repeating his

offense or generally aid in his rehabilitation.

26
IV. Compliance with Section 702 (Designation of Felony or Misdemeanor)

M.F. contends that the trial court erred in failing to declare on the record whether

his violation of Penal Code section 422 (criminal threat) was a felony or a misdemeanor,

as required by section 702. He requests that we remand his case and order the juvenile

court to make the required pronouncement. We conclude that remand for this purpose is

unnecessary because the record is clear that the court determined that the offense was a

felony.

A violation of Penal Code section 422 may be punishable as a misdemeanor or as

a felony. (Pen. Code, §§ 422, subd. (a) & 17, subd. (b).) Under section 702, when a

minor has committed this type of offense, the court is required to designate the offense as

a misdemeanor or felony. The court's express declaration is mandatory. (In re Manzy W.

(1997) 14 Cal.4th 1199, 1204 (Manzy W.); see Cal. Rules of Court, rule 5.778(f)(9) ["the

court must consider which description applies and expressly declare on the record that it

has made such consideration"].) One purpose of the mandatory designation requirement

is to ensure that the court is aware of, and actually exercises, its discretion under section

702. (Manzy W., supra, at p. 1207.) However, the juvenile court's failure to make an

express declaration does not compel an automatic remand; rather, the court's awareness

of its discretion to treat an offense as a misdemeanor may be established from a review of

the record as a whole. (Id. at p. 1209.)

The June 2015 hearing transcript establishes that the juvenile court declared the

criminal threat to be a "violation of Penal Code section 422, a felony," in connection with

M.F.'s admission of the offense. The hearing minutes similarly reflect the court's

27
declaration. In addition, prior to the disposition hearing, M.F.'s counsel indicated that

M.F. had admitted to offenses "that are wobblers," alerting the court to its discretion. At

the disposition hearing, the court referenced the "concerning" nature of M.F.'s conduct

and committed him to custody for up to 480 days in a program appropriate for minors

who have committed "serious felony offenses and or have lengthy criminal histories."

Accordingly, the record as a whole establishes that the juvenile court was aware of its

discretion to treat the criminal threat offense as a misdemeanor and chose not to do so.

(Manzy W., supra, 14 Cal.4th at p. 1209.)

V. Calculation of Predisposition Custody Credits

M.F. contends that the juvenile court erred by not including his predisposition

custody credits when determining his maximum period of confinement. The prosecution

argues that the juvenile court properly made a finding of the maximum term of

confinement, but does not address the issue of predisposition custody credits. The

disposition must specify the minor's maximum term of physical confinement, which must

include credit for time spent in custody prior to the disposition hearing. (§ 726, subd.

(d)(1); see In re A.M. (2014) 225 Cal.App.4th 1075, 1085; see also Cal. Rules of Court,

rule 5.795(b).) The court determined M.F.'s maximum term of physical confinement

(3 years 2 months) at the June 2015 hearing, but neither the June 2015 order nor the

August 2015 disposition order reflects any deduction from the maximum term of

confinement for the time he spent in predisposition custody. On appeal, M.F. contends

that he spent a total of 105 days in custody prior to his disposition hearing. The record

shows that he was taken into custody on May 8, 2015, and remained in custody (either in

28
juvenile hall or under guard at the hospital), until the disposition hearing on August 21,

2015, for a total of 105 days. Thus, M.F. is entitled to 105 days of predisposition custody

credits against his maximum aggregate period of confinement, which must be

documented in the disposition order.

DISPOSITION

The disposition order is reversed as to probation condition number 49 and the

predisposition custody credits to which M.F. is entitled. The matter is remanded to the

juvenile court with directions to modify its order consistent with this opinion. The order

is affirmed in all other respects.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

29