IN RE S.D.

No. C081882.

In re S.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.D., Defendant and Appellant.

Court of Appeals of California, Third District, Yolo.


NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

DUARTE, J.

S.D. (the minor) admitted she committed petty theft and vandalism. The juvenile court placed her on probation, and among other terms and conditions imposed a general search condition over her objection. The minor contends on appeal that the search condition was unconstitutionally overbroad. The Attorney General disagrees but nevertheless asks us to modify the condition at issue.

As we will explain, this general search condition is standard and appears proper. We decline to modify or remand for reasons we explain. We shall affirm.

BACKGROUND

We dispense with a recitation of the facts of this case, as knowledge of the underlying facts is not necessary to the resolution of this appeal. It suffices to say that in February 2016 the minor was charged in San Francisco County with making criminal threats and petty theft. (Welf. & Inst. Code, § 602; Pen. Code, §§ 422, 490.2, subd. (a).) At the detention hearing, a vandalism charge was added (Pen. Code, § 594, subd. (b)(2)(A)), which the minor admitted together with a petty theft charge. The remaining charges were dismissed, and the case was transferred to the Yolo County Superior Court for disposition due to minor's change in residence.

The probation officer prepared a disposition report wherein the minor was assessed as posing a low risk to reoffend. However, she was identified as at high risk for sexual exploitation, and admitted she drank alcohol and used marijuana. Her school attendance was sporadic and she was often truant. Her father suspected she was abusing drugs and alcohol, and tried to assert leverage over her by grounding her and removing privileges such as her cell phone and allowance. The minor circumvented these consequences by stealing.

The probation report recommended as one of the minor's conditions of probation a general search condition which read: "The minor shall submit her person, property or place of residence to search by the probation officer or any other peace officer at any time of the day or night without a search warrant." Minor's counsel objected to the imposition of this boilerplate condition, claiming it was often used "to search minors' cell phones without limits, and to force minors to provide passwords, and to also log into social media on all electronic services." The People argued permitting search of the minor's cell phone was significant to her rehabilitation as she had a history of running away and also to keep her in compliance with her conditions of probation.

On March 24, 2016, the juvenile court placed the minor on six months of nonwardship probation. (Welf. & Inst. Code, § 725, subd. (a).) Among the terms and conditions thereof, the court imposed the disputed general search condition as recommended, noting the condition was "important [] for rehabilitation purposes, that Probation be able to search the minor's personal property or place of residence. [¶] There is an indication that the minor has a history of running away, that cell phone has been used to try to find where she may be, so I'm going to keep that order."

DISCUSSION

As we have detailed ante, the general search condition at issue required in pertinent part only that the minor submit her property to warrantless search. It did not authorize the search of items to which the minor merely had access or some limited degree of control. Although the minor contends the search condition "permitting a warrantless search of [the minor's] electronics and social media accounts is unconstitutionally overreaching," we see nothing here other than a general search condition.

The record is not clear as to whether the minor owned any electronics, including the cell phone she used or any other electronic devices that might be subject to search under this general search condition. The record is likewise silent as to her use, if any, of social media. As relevant here, the record shows only that the minor used a cell phone that her father regularly removed from her possession as leverage or punishment; this deprivation raises the inference that the cell phone belongs to the minor's father rather than to her. Thus it is unclear how the scope of this condition as written applies to the specific facts of this case. The condition's potential application is further muddied by the arguments and findings below as well as the parties' briefing and arguments on appeal.

We therefore examine only the precise language of the search condition as imposed, and disregard the hypothetical applications and implications presented and argued in both parties' briefing.1

When challenged, juvenile probation conditions are judged by the three-part conjunctive test set forth in People v. Lent (1975) 15 Cal.3d 481, 486. (In re D.G. (2010) 187 Cal.App.4th 47, 52-53.) Under Lent, a condition of probation will be upheld 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. . . .' [Citation.]" (Lent, at p. 486, fn. omitted.) A probation condition also may be challenged for constitutional infirmity. (In re Sheena K. (2007) 40 Cal.4th 875, 889-891.) A juvenile court's imposition of a probation condition is generally reviewed for abuse of discretion, except a constitutional challenge to a condition is reviewed de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901.)

General search conditions such as the one at issue here are routinely upheld in juvenile cases. (See, e.g., In re P.O. (2016) 246 Cal.App.4th 288, 296; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 968-969 [aiding assault with a deadly weapon]; In re Binh L. (1992) 5 Cal.App.4th 194, 204 [auto theft]; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502-1503 [disturbing the peace by minors who admitted alcohol and drug use].)

The general search condition in this case satisfies the Lent test as it is reasonably related to the minor's supervision—she admitted to theft, and the search condition ensures that law enforcement may monitor her person, possessions, and residence for stolen items or other evidence of theft. This aids in her supervision and rehabilitation; it also serves to protect the public against her future criminality. (See In re Jaime P. (2006) 40 Cal.4th 128, 134 ["The very existence of a probation search condition, whether for adults or juveniles, should deter further criminal acts"]; People v. Balestra (1999) 76 Cal.App.4th 57, 67 [a "warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement . . . that a probationer `obey all laws'"].) As the court stated in In re Binh L., "[a] probation search condition [in a case involving larceny] was rational both to assure that the minor would correct his behavior and in this sense be rehabilitated, and to protect the public against the possibility he would not." (In re Binh L., supra, 5 Cal.App.4th at p. 204.)

Further, at the time the juvenile court placed the minor on probation, she had a history of truancy, she admitted to drug and alcohol use, and she was at high risk of sexual exploitation. These collective circumstances justify the juvenile court's imposition of a general search condition as a means of adequately supervising minor's compliance with her probation conditions and for her protection. In light of the record here, the search condition as imposed was reasonable and permissible as a means of preventing minor's future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.)

Although the parties assumed in the trial court—as did the trial court itself—that this general search condition specifically authorized the search of any cell phones, social media accounts, and disclosure of any passwords merely possessed or used by the minor, this degree of authorization is not apparent from the plain language of the disputed condition. Both parties continue to assume this broad coverage on appeal, although the Attorney General asks us to modify the condition to add language that would actually broaden the condition's stated scope by requiring the minor to submit for search any devices under her control and to actually provide any passwords. The Attorney General makes this request, which he characterizes as a "limitation," despite the fact that the search condition at issue does not require the minor to provide passwords or access to all property under her control, but in relevant part merely authorizes search of her property. We decline to broaden the condition.

We also note that the cases relied on by the minor to challenge this general search condition involve search conditions that are specific to electronics and expand the relationship between the probationer and the property to be searched beyond ownership. (See In re Erica R. (2015) 240 Cal.App.4th 907, 910 ["`You must submit to a . . . search of any containers you may have or own, your vehicle, residence, or electronics day or night at the request of a Probation Officer or peace officer. . . .' `[P]art of that search will include giving your passwords to your [probation officer]'"]; In re Malik J., supra, 240 Cal.App.4th at p. 900 ["`Minor is ordered to provide all passwords to any electronic devices, including cell phones, computers or [notepads], within your custody or control, and submit such devices to search at any time without a warrant by any peace officer'"]; In re J.B. (2015) 242 Cal.App.4th 749, 752, fn. 1 ["The disputed condition orders minor to submit to `a search of your person, any containers you may have or own, your vehicle, your residence, and your electronics including your passwords.' The minute order states: `Submit . . . electronics including passwords under your control to search by probation officer or peace officer with or without a search warrant at any time of day or night'"].) These cases are not on point as to the general search condition actually imposed in this case. The Attorney General also fails to cite relevant authority, and assumes the disputed condition is much broader than it appears upon close inspection, arguing confusingly in defense of the condition that the juvenile court "could impose a condition that allows monitoring of cell phone and social media communications."

Beneath the persistent confusion surrounding the proper scope and application of this condition as applied to this minor's situation and needs, there is but a general search condition, which, as we have explained, was properly imposed as a condition of probation on this record.

DISPOSITION

The judgment is affirmed.

Butz, Acting P. J. and Mauro, J., concurs.

FootNotes


1. We note that the minor's original probationary period of six months expired less than two weeks after the filing of her opening brief. Neither party has asked us to dismiss this case as moot. Given the representations made by both parties in the trial court, this appears to be an issue likely to recur; therefore, we reach the merits.

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