In re Tommy M.

1
Filed 10/16/18 In re Tommy M. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR
In re Tommy M., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
TOMMY M.,
Defendant and Appellant.
A147813
(San Francisco County
Super. Ct. No. JW 15-6136)
Tommy M., when one month shy of his 18th birthday, participated in the robbery
of a young woman’s cell phone and then ran from the police when they tried to
apprehend him. He was adjudged a ward of the court as a result, with true findings that
he had committed a felony second degree robbery (Pen. Code, §§ 211, 212.5) and resisted
arrest, a misdemeanor (Pen. Code, § 148). He claims on appeal that a police investigator
violated his Miranda rights when he asked Tommy for his phone number as biographical
identifying data, without administering a Miranda warning. (Miranda v. Arizona (1966)
384 U.S. 436 (Miranda).) He further claims the court erred in denying his Marsden
motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) and denying his attorney’s
simultaneous motion to withdraw as counsel due to a “conflict of interest.” He contends
there was insufficient evidence to identify him as one of the robbers. With respect to
disposition, Tommy argues an electronics search condition violated People v. Lent (1975)

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15 Cal.3d 481 (Lent) and was unconstitutionally overbroad insofar as it applied to devices
other than his cell phone. Finally, Tommy suggests the trial court erred in stating a
maximum term of confinement.
With the exception of the last point, we find no error and affirm, with directions to
strike from the reporter’s transcript the court’s stated maximum term of confinement.
I. BACKGROUND
On June 23, 2015, at about 4:30 p.m., two African-American young men forcibly
took a cell phone away from Dan Xie, a 20-year-old Chinese woman, while she sat at a
bus stop at the corner of 18th and Mississippi Streets in San Francisco. The first robber
to grab for her phone was taller than the other. He had dark skin, short black hair, and he
was wearing a dark or black long-sleeved jacket. A second, shorter man, wearing a T-
shirt with a white torso with printed letters and black, mid-length sleeves,1 reached in and
grabbed the phone with both hands as the first man struggled with Xie over the phone.
The two men got the phone away from Xie. Both men then took off running around the
corner, heading north on Texas Street.
Following them, Xie saw a third African-American man standing about two blocks
away, whom she thought was the “lookout.” The two robbers ran to where the third man
was standing near a black car with yellow-paper dealership license plates that was parked
on the street. By the time Xie caught up with them, the shorter second robber was seated
in the driver’s seat. The first, taller robber was standing by the passenger door with Xie’s
phone in his hand. Xie tried to grab her phone away from him, but the man raised his
other hand in a threatening manner toward Xie. He and the third suspect2 then ran off,
going north on Texas Street. The black car pulled away quickly, also heading north on
1 Xie told Officer Jose Calvo-Perez that the second robber was “a black male[,] in
his 20s[,] wearing a multicolored shirt and jeans.” Erica Hollins described D.T. as
wearing: “hightop, blue shirt, blue jeans, young.”
2 The third suspect was identified by the prosecutor as Donte Glenn, an adult.

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Texas Street. Two elderly women asked Xie what had happened and helped her call the
police.3
A motorist passing by, Eric Koczab, saw what was transpiring and drove after the
black car. After a couple of turns, when the black car turned into oncoming traffic, he
abandoned his pursuit and returned to the scene of the robbery, where the victim was still
in distress. He described the robbers as two African-American men, one wearing a
hoodie with a gray upper-half and black bottom-half and dark pants. He could not
describe what the other one was wearing and did not perceive any height difference
between them. During the chase, Koczab thought he saw one of the robbers, the “gray
hooded individual,” running through traffic toward the black car.
Kim Lavalle was standing near her car on the other side of Texas Street when she
heard the commotion and saw several people running north on Texas Street. As the black
car drove away, Lavalle rushed to Xie to see what had happened. Xie had dropped to her
knees and was crying. After speaking with Xie for two seconds, Lavalle got into her car
and followed the black car. She soon decided she could not catch up to it, so she started
following one of the people who had left the scene on foot. She described him as a tall,
slender African-American man with short to medium-length hair. She followed him until
she saw him go into the Center Hardware store on Mariposa. She then returned to Texas
Street where Xie was still waiting and crying. Lavalle announced to those assembled that
she had seen one of the men go into the hardware store on Mariposa.
Koczab drove Xie to Center Hardware. She waited in the car while Koczab went
into the store to see if the two robbers were there. He immediately spotted the man with
the gray-and-black hoodie at the front counter, using the store’s telephone. Koczab told
the store manager what had happened, and the manager approached the man using the
phone. The suspected robber then ran out of the store and across Mariposa, with Koczab
in pursuit.
3 Xie’s native language is Cantonese. She speaks some English, but the police
contacted Language Line for help with translation while interacting with Xie in the field.
Xie testified through an interpreter at the contested jurisdictional hearing.

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The suspect near the hardware store was described by dispatch as a “black male,
late teens, early 20s, with an afro, a black sweater with gray stripes, and red and black
shoes.” Two plainclothes police officers in the vicinity of the hardware store began
pursuing Tommy because he generally fit that description. As they were chasing him,
Officer Eric Eastlund yelled repeatedly, “[P]olice[!] [S]top[!]”, but Tommy did not stop.
The officers gave up the chase after Tommy hopped over two fences and headed into an
open area near 16th Street and Owens. Eastlund’s partner radioed for other officers to
respond to 16th Street, and Tommy soon was found hiding in the area of 16th and Owens
Streets.
Eastlund and his partner, Officer Christopher Leong, went to where Tommy was
detained. Eastlund handcuffed him and searched him, finding no cell phones, no
weapons, and no contraband. Officer Leong asked Tommy his name and birthdate to
identify him. Upon realizing Tommy was a minor, Leong read him his Miranda rights.
Between 5:00 p.m. and 6:00 p.m., Sergeant Stephen Jonas, a police investigator,
arrived where Tommy was detained in the back of a patrol car. He knew the case
involved a stolen cell phone and knew Tommy’s cell phone had not been stolen. He did
not know whether Tommy had been Mirandized. Without giving him a Miranda
advisement, Jonas asked Tommy his name, birthdate, home address, and phone number;
and Tommy answered those questions. Jonas routinely asks the same questions of
everyone he talks to in connection with a case: victims, suspects, and witnesses. He asks
so he can get in touch with them later.
At the same time Lavalle, Koczab and the police were tracking down and
detaining Tommy, other officers were closing in on D.T. While Xie was at the hardware
store, Officer Jose Calvo-Perez let Xie use his cell phone to activate the “Find My
iPhone” application. The initial “ping” from Xie’s cell phone registered on Minnesota
Street between 18th and 19th Streets. Sergeant Sean Frost was in the vicinity of
Minnesota and 18th Streets when he got this information. He continued to travel in
response to the moving “ping” locations until he was at Evans and Jennings. At that
point, Frost realized there was only one car, a silver one, traveling in tandem with the

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pinging phone and concluded the stolen phone was likely in that car. He pulled over the
driver.
It turned out the car was driven by Erica Hollins, who sometimes drove for Lyft
but was not on the job at that time. She told the police that D.T. approached her car and
offered her $20 for a ride, so she accepted. D.T. slid into the passenger seat, and she
headed for Third Street and Palou Avenue. Before she knew it, she was being pulled
over by the police and handcuffed, along with D.T.
Officer Leong, having now responded to the scene of the car stop, continued to
listen for the pinging phone and found it on the floor of Hollins’s car behind the driver’s
seat. Eastlund searched the car and found another cell phone between the passenger’s
seat and the front door, and a third cell phone in D.T.’s pocket. D.T. also had two live
rounds of ammunition in his front pocket. The police also seized Hollins’s cell phone.
When Sgt. Jonas arrived where the car had been stopped, he addressed both Hollins and
D.T., asking them their names, birthdates, addresses, and telephone numbers. Eastlund
turned over the four seized cell phones to Jonas.
Once D.T. and Tommy were both in custody, the police organized an in-field cold
show in which Tommy was viewed individually, with no other suspects, handcuffed
between two police officers. Xie, while “cowering” in the back of a police car about 20
feet away from Tommy, identified him as the first robber: the taller, thinner one who
tried to snatch her phone from her hand. Koczab and Lavalle also both identified Tommy
as one of the robbers in separate in-field cold shows.
When Xie was taken to the place where the silver car had been stopped and was
shown Hollins and Hollins’s car, she said she did not recognize either. She was not
shown D.T. at that location. She was later shown D.T. at the parking lot of San Francisco
General Hospital. She sat in the back of a patrol car, hysterical, shaking, and afraid to
look up. When she saw D.T., she let out a gasp and said, “ ‘That’s him! That’s the
second suspect that took my phone. Same hair[,] face and clothing. He was the driver of
the car.’ ”

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To determine whether any of the recovered phones belonged to Tommy, Jonas
entered the phone number Tommy had given him. One of the phones, an iPhone 4 that
had been recovered from D.T.’s pocket, rang. Tommy was thereby further implicated in
the robbery because it connected him to D.T., who was found in the same car with the
stolen cell phone shortly after the robbery.
After a bench trial, the judge found Tommy had committed the robbery and had
resisted, delayed or obstructed the police in violation of Penal Code section 148. He was
released to his mother’s custody under the supervision of the probation officer.
Conditions of his probation included an electronics search condition covering all his
electronic devices, including but not limited to cell phones, smart phones, computers,
laptops, iPads, and tablets. Tommy timely appealed.
II. DISCUSSION
A. The Alleged Miranda Violation
Tommy claims his rights under Miranda were violated when Sgt. Jonas asked for
his phone number, without first giving him the familiar admonishments. The offending
questions, in Tommy’s view, were posed by Sgt. Jonas, who asked him the preliminary
identifying information of name, birthdate, address, and phone number. Because the
phone number ended up being a crucial link in the chain of proof of Tommy’s
involvement in the robbery, Tommy claims Jonas’s testimony relating to the ringing of
Tommy’s phone, after it had been seized from D.T.’s pocket, should have been
suppressed as the fruit of a Miranda violation.4 Without that evidence, he argues, he
likely would not have been found to have been involved in the robbery.
In fact, Tommy’s answer to Sgt. Jonas’s request for his phone number was not put
before the jury. Thus, he asks us, in effect, to apply the “fruit of the poisonous tree”
4 Tommy argued in his opening brief that his own statement should have been
suppressed. In his reply brief, he admitted the phone number he gave Sgt. Jonas was not
in evidence. He confirmed he was seeking suppression of Jonas’s testimony that, when
he entered the number given him by Tommy, one of the cell phones retrieved from D.T.
rang.

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doctrine in holding that the evidence of his phone ringing in response to the number
Jonas entered should have been suppressed. (Wong Sun v. United States (1963) 371 U.S.
471, 488.) We find it unnecessary to address whether Sgt. Jonas’s question was a
“routine booking question” and subject to an exception to the Miranda requirements
(Pennsylvania v. Muniz (1990) 496 U.S. 582, 601–602), or instead was custodial
interrogation that the “police should [have] know[n] [was] reasonably likely to elicit an
incriminating response from the suspect.” (Rhode Island v. Innis (1980) 446 U.S. 291,
301, fn. omitted; see generally, People v. Elizalde (2015) 61 Cal.4th 523, 531–532, 538–
539), for the fruit of the poisonous tree doctrine simply does not apply.)
People v. Case (2018) 5 Cal.5th 1 recognized that the doctrine applies in the case
of a Miranda violation only when the answers that led to further evidence were a
“product of police coercion.” (Id. at pp. 23–24.) There is no evidence of police coercion
in this case. “The fruit of the poisonous tree doctrine does not apply to physical evidence
seized as a result of a noncoercive Miranda violation (United States v. Patane (2004)
542 U.S. 630, 637–638, 645; People v. Davis (2005) 36 Cal.4th 510, 552; People v.
Whitfield (1996) 46 Cal.App.4th 947, 957) . . . .” (People v. Davis (2009) 46 Cal.4th 539,
598.) Likewise, it does not require suppression of Jonas’s testimony about the ringing
phone. (See Case, at pp. 23–27.) This rule sounds the death knell for Tommy’s Miranda
argument.
B. The Marsden Motion and Counsel’s Motion to Withdraw
1. Background
On the first day of trial, Tommy told the judge he wanted a new attorney because
his appointed attorney was not fighting hard enough for him. Specifically, he complained
his attorney, Mark Friedland, had encouraged him to plead to a strike. At that point,
defense counsel represented to the court that “a conflict ha[d] arisen in [his]
representation of the minor,” and he could not provide Tommy with effective assistance
of counsel under the Sixth Amendment going forward. Friedland asked the court to
appoint substitute counsel. He specifically requested to withdraw as counsel based on a
“conflict of interest.”

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Nevertheless, upon the court’s inquiry, counsel assured the judge he had
“discussed every contingency with [his] client with respect to what could happen in this
courtroom,” and “Tommy ha[d] interpreted [their] discussions in the manner he[]
described to the Court,” which counsel “respect[ed].” Friedland again asked to be
relieved.
The court denied Tommy’s Marsden motion with the comment, “Mr. Friedland
has been working his tail off for Tommy, trying to work in his best interests, trying to get
him out of custody . . . .” The court cited a litany of motions Friedland had argued on
Tommy’s behalf, including multiple motions to release him from custody and a motion
for severance. Stating that “a disagreement regarding potential tactics is not a reason to
grant a Marsden motion,” the court concluded Tommy’s statements did not provide a
basis to grant his motion.
The judge then gave Tommy’s attorney the opportunity to address the court
further, outside of Tommy’s presence, on his motion to withdraw. Friedland told the
judge that Tommy’s mother consistently demonstrated hostility and anger toward him in
the form of shouting, cross-examining him on trial strategy, and interfering with the
attorney-client privilege. These circumstances led to the “complete pollution” of
Friedland’s relationship with Tommy. The attorney-client relationship had broken down
to the point where Tommy was no longer communicating with Friedland and was
reluctant even to sit next to him. Friedland characterized the problem as “more than just
differences of opinions” and described Tommy’s and his mother’s attitude towards him
as “overt hostility.” Friedland said he could not, “in good conscience[,] go on” because
he felt he would never again have confidential communication with Tommy, consistent
with his professional responsibilities. Counsel also told the court “at no time did I advise
my client to plead to a strike. We discussed various options and the context of
release . . . But there was never advice to accept a strike.”
The court queried counsel about his preparation for and readiness to go to trial.
After being assured that counsel had “done [his] due diligence” and was prepared to
proceed with the contested hearing, the court denied the motion to withdraw. The court

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observed, “Mr. Friedland has plenty of experience dealing with tough parents . . . Tommy
did not state anything to the Court that caused it to lose trust. That the relationship
between him and his attorney is so broken, so irrevocably broken that he cannot receive a
fair trial, and that Mr. Friedland will not do his best in terms of what is in the minor’s
best interests.” Tommy contends his Marsden motion and his attorney’s motion to
withdraw were improperly denied.
2. Analysis
The denial of a Marsden motion is reviewed for abuse of discretion. (People v.
Streeter (2012) 54 Cal.4th 205, 230.) “ ‘Denial is not an abuse of discretion “unless the
defendant has shown that a failure to replace counsel would substantially impair the
defendant’s right to assistance of counsel.” ’ ” (Ibid.; accord, People v. Clark (2011)
52 Cal.4th 856, 912.) Likewise, “[t]he determination whether to grant or deny a motion
by an attorney to withdraw is within the sound discretion of the trial court and will be
reversed on appeal only on a clear showing of abuse of discretion.” (People v. Sanchez
(1995) 12 Cal.4th 1, 37 (Sanchez).) We discern no abuse of discretion.
A criminal defendant may request substitute counsel, and an attorney may also
move to withdraw as counsel, based upon a complete breakdown in the attorney-client
relationship. (Marsden, supra, 2 Cal.3d at p. 123 [defendant’s motion]; People v. Cohen
(1976) 59 Cal.App.3d 241, 248–249 [attorney’s motion].) The court here correctly noted,
however, that a disagreement between counsel and his or her client regarding trial tactics
ordinarily is not grounds for granting a Marsden motion.5 (People v. Alfaro (2007)
41 Cal.4th 1277, 1320; People v. Dickey (2005) 35 Cal.4th 884, 922.) Even accepting for
argument’s sake Tommy’s version of the facts, his chief complaint seemed to be that
Friedland had encouraged him to accept a plea to a strike offense. (Pen. Code,
5 Strictly speaking, this was more than a tactical disagreement, since the decision
whether to enter a plea or go to trial ultimately remains the defendant’s, not counsel’s.
(People v. Robles (2007) 147 Cal.App.4th 1286, 1290.) Tommy could simply have
overridden his attorney’s advice—assuming there was such advice—and no
irreconcilable conflict would have resulted, unless his counsel refused to prepare for and
conduct a contested hearing. There was no danger of that in Tommy’s case.

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§§ 1170.12, 1192.7, subd. (c)(19).) A defense attorney’s advice to a defendant that he or
she should accept a plea bargain does not require a trial court to grant the defendant’s
Marsden motion. (People v. Abilez (2007) 41 Cal.4th 472, 485–487 (Abilez).) Counsel
on appeal minimizes Tommy’s complaint about the pressure he felt to admit the robbery
offense and instead focuses on the “complete breakdown” of the relationship occasioned
by Tommy’s mother’s interference. But Tommy never mentioned any conflict arising
from his mother’s attitude toward or advice about Friedland, and the whole subject was
not a part of Tommy’s Marsden motion.
Rarely, a disagreement over tactics or over matters as to which the defendant has
the final word, such as the right to plead or go to trial, “ ‘may signal a breakdown in the
attorney-client relationship of such magnitude as to jeopardize the defendant’s right to
effective assistance of counsel.’ ” (People v. Williams (1970) 2 Cal.3d 894, 905.) This is
not such a case. The record belies Tommy’s complaint that Friedland was not fighting
hard for him. In addition to the various pretrial actions counsel had taken on Tommy’s
behalf, recited by the court, Friedland later filed a Miranda motion and argued it to the
court (albeit unsuccessfully ), made objections at trial, cross-examined witnesses, argued
against admissibility of exhibits related to the cold show identifications, and argued
Tommy’s case to the judge. A general complaint of the not-fighting-hard-enough ilk is
not grounds for substitution of counsel. (See Abilez, supra, 41 Cal.4th at p. 489
[“[d]efendant’s mere allegation that he [does] not trust his defense attorney, without
more, [is] insufficient to compel the trial court to replace him”].) Even the prospect that a
defendant intends to take the stand and perjure himself—and his attorney’s ethical
opposition to such a course—does not amount to an irreconcilable conflict requiring
substitution of counsel. (People v. Brown (1988) 203 Cal.App.3d 1335, 1338.)
A trial court must grant counsel’s motion to withdraw when a “disagreement with
counsel resulted in a complete breakdown in the attorney-client relationship that
jeopardized his right to a fair trial.” (Sanchez, supra, 12 Cal.4th at p. 37.) As with the
denial of a Marsden request, the judge wields great discretion in determining whether the
attorney’s description of the conflict discloses a potential deprivation of Sixth

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Amendment representation for the client. (Ibid.) Tommy points to nothing in the trial
transcript to show he received less than zealous representation, and our own review of the
record suggests nothing of the sort. The trial judge’s confidence in Friedland’s
performance and dedication should not be second-guessed by an appellate court, when no
obvious breakdown in the relationship or deficiency in performance appears from the
record. There is no such evidence in this record, and we affirm the trial court’s ruling on
the Marsden and withdrawal motions.
C. Sufficiency of the Evidence of Identity as a Robber
Tommy also argues the evidence was insufficient to show he was one of Xie’s
robbers. We review such a claim for substantial evidence from which a reasonable trier
of fact could find the minor guilty beyond a reasonable doubt. (People v. Penunuri
(2018) 5 Cal.5th 126, 142; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1359.)
This claim is without merit. Xie, Koczab and Lavalle all identified Tommy as one
of the robbers at separate cold shows. His physical features generally matched the
description given by Xie: Tommy is an African American, 5’8” tall, weighs 140 pounds,
and was almost 18 at the time. He was apprehended in the vicinity of the robbery shortly
after it occurred. His clothing matched the description of the robber’s clothing. He ran
from the police, though they announced their authority and ordered him to stop. He hid
from the police at 16th and Owens Streets. Such behavior is consistent with
consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982–983 [flight alone
is not sufficient to establish guilt, but may be considered evidence of consciousness of
guilt]; People v. Marui (1922) 190 Cal. 174, 179 [“consciousness of guilt might be
inferred from his immediate flight from the scene of the crime and his remaining in
hiding until he was apprehended”]; People v. Vu (2006) 143 Cal.App.4th 1009, 1030.)
And finally, there is the fact that Tommy’s telephone rang when Sgt. Jonas entered
the number Tommy had given him. The phone had been taken from D.T.’s possession.
D.T. was also in constructive possession of Xie’s phone at the time, which solidified
Tommy’s connection to the robbery of Xie. Koczab even testified he thought he saw
Tommy making his way through traffic and approaching the black car as it was driving

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away, which would explain how Xie’s phone (and maybe Tommy’s own phone) got from
Tommy’s hands, when Xie caught up with the robbers near the black car, into D.T.’s
possession. D.T. then evidently ditched the black car and tried to get a Lyft driver to take
him away from the scene. The “pinging’ phone spoiled his plan. Collectively, this was
more than enough evidence of Tommy’s involvement to warrant a true finding on the
robbery allegation.
D. The Electronics Search Condition6
1. Background
At the dispositional hearing on March 15, 2016, the juvenile court imposed several
terms and conditions of probation. One was an electronics search condition covering
“any electronic and/or digital device” in Tommy’s possession or under his custody or
control, including but not limited to “cell phones, smart phones, iPads, computers,
laptops, and tablets.”7 The scope of the search condition included and was not limited to
“any and all text messages, voice mail messages, call logs, photographs, videos, e-mail
accounts, and social media accounts” including but not limited to “Facebook, Instagram,
Twitter, and Snapchat.” Tommy was also ordered to provide “any and all passwords to
the devices” and “any and all passwords necessary to access the information stated by
the Court here on the record.” The court explained it did not authorize search of medical
and financial “apps” such as Kaiser and Wells Fargo, or online games or music libraries.
Defense counsel objected to the imposition of any electronic search condition on grounds
6 The Supreme Court has granted review in many cases dealing with an electronics
search condition, with the lead case being In re Ricardo P., review granted February 17,
2016, S230923. (See Issues Pending Before the California Supreme Court in Criminal
Cases, available at <http://www.courts.ca.gov/13648.htm>.)
7 The written electronics search condition was as follows: “Any electronic and/or
digital device in your possession or under your custody or under your control may be
searched at any time of the day or night, by any peace or probation officer, with or
without a warrant or with or without reasonable or probable cause. Electronic and/or
digital devices include but are not limited to cell phones, smartphones, I Pads, computers,
laptops and tablets. You are also ordered to provide any and all passwords to the devices
upon request to any peace or probation officer, including text/phone messages, Twitter,
Facebook, Instagram or Snapchat accounts.”

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it was not sufficiently related to Tommy’s prior conduct and on constitutional
overbreadth grounds.
Tommy does not claim on appeal the condition must be stricken in its entirety.
Rather, he claims the condition is overbroad insofar as it pertains to electronic devices
other than cell phones and smart phones in his possession or control and violates Lent to
the same extent. He also claims it is overbroad in allowing authorities access to content
on his devices that is unnecessary to detect whether the device was stolen.
2. The Lent Test
The Supreme Court in Lent, supra, 15 Cal.3d 481 set forth three criteria for
assessing the validity of a condition of probation: “A condition of probation will not be
held invalid 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 . . . .’ ” (Id. at p. 486.)
Accordingly, a condition of probation that forbids or requires conduct that is not itself
criminal is valid only if that conduct is reasonably related either to the crime of which the
defendant was convicted or to future criminality. (In re Babak S. (1993) 18 Cal.App.4th
1077, 1084.)
Tommy agrees that, because he stole a cell phone, the court could impose an
electronics search condition of probation allowing limited examination of any cell phone
or smart phone he might have in his possession. (In re Malik J. (2015) 240 Cal.App.4th
896, 901–902, 904 (Malik J.) [finding a relationship between an electronics search
condition and the minor’s specific crime under the first prong of Lent because Malik had
robbed others of their cell phones]; People v. Ebertowski (2014) 228 Cal.App.4th 1170,
1173, 1176–1177 (Ebertowski) [adult electronic search condition valid under first prong
of Lent for defendant who had promoted his gang through social media].) To that extent,
he does not challenge the condition under Lent. But Tommy does challenge, as
unreasonable under Lent, that condition as applied to electronic devices other than cell
phones. Because the only item he stole was a cell phone, he contends he should not be

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required to surrender any of his electronic devices for search by authorities, except any
cell phones or smart phones in his possession.
In People v. Maldonado (2018) 22 Cal.App.5th 138, review granted June 20,
2018, S248800 (Maldonado), the Sixth District recently rejected the argument that an
electronics search condition must be limited to the specific type of device involved in a
defendant’s crime. Maldonado held that a defendant who had used a cell phone in
connection with possession of methamphetamine for sale could be subjected to a broad
electronics search condition, including but not limited to “cellular telephones, computers
or notepads in [his] possession or under [his] control.” (Id. at p. 141.) As with Tommy’s
condition of probation, Maldonado’s focused on the probationer’s communications with
others by authorizing searches of “text messages, voicemail messages, call logs,
photographs, email accounts, social media accounts, including but not limited to
Facebook, Instagram, Twitter, [and] Snapchat.” (Ibid.) Maldonado, like Tommy, argued
that only cell phones could be subject to the search condition, since only a cell phone was
used in his crime. (Id. at pp. 142–143.)
The Sixth District nevertheless approved the condition without modification on the
first prong of Lent, reasoning that to hold otherwise would make it too easy for the
probationer to circumvent the requirement by using a different device for illegal
communications. (Maldonado, supra, 22 Cal.App.5th at p. 143.) We agree with this
reasoning and believe it applies to this case, where Tommy could simply start stealing a
different type of electronic device and thereby avoid search. The condition was
reasonably related to Tommy’s criminal conduct and future criminality. We therefore
hold the court’s imposition of the electronics search condition was not an abuse of
discretion and did not violate Lent.
3. Overbreadth
Tommy also challenges the electronics search condition on constitutional grounds,
which we review de novo. (Malik J., supra, 240 Cal.App.4th at p. 901.) “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

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unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) True,
“parolees and probationers retain some expectation of privacy, albeit a reduced one.” (In
re Jaime P. (2006) 40 Cal.4th 128, 137.) But as a probationer, Tommy’s diminished
expectation of privacy is “markedly different from the broader privacy guaranteed under
the Fourth Amendment to individuals who are not serving sentences or on grants of
probation.” (In re Q.R. (2017) 7 Cal.App.5th 1231, 1238, review granted Apr. 12, 2017,
S240222 (Q.R.).) “It is that preconviction expectation of privacy that was at issue in
Riley v. California (2014) 573 U.S. ___ [189 L.Ed.2d 430, 134 S.Ct. 2473] (Riley),
where the United States Supreme Court announced the general rule that police may not
conduct a warrantless search of a cell phone seized incident to an arrest. (Riley, supra,
573 U.S. at p. ___ [134 S.Ct. at p. 2485].)” (Q.R., at p. 1238.)
Malik J. found an electronics search condition reasonably related to the juvenile’s
offense where he and one or two companions robbed three women in one night, including
stealing one of their cell phones. (Malik J., supra, 240 Cal.App.4th at p. 899.) Still,
applying the overbreadth doctrine, and in light of the significant intrusion on privacy,
Malik J. modified the condition of probation to tailor it more narrowly: “The electronics
condition is ordered modified to omit reference to Malik’s family and passwords to social
media sites, and to authorize warrantless searches of electronic devices in Malik’s
custody and control only after the device has been disabled from any internet or cellular
connection and without utilizing specialized equipment designed to retrieve deleted
information that is not readily accessible to users of the device.” (Id. at p. 906.)
Tommy suggests his probation condition should be similarly modified, arguing it
is not necessary for the authorities to gain such broad access to the content of his
electronic devices in order to determine if they were stolen. He urges us to hold also that
the probation condition was unconstitutionally overbroad insofar as it (1) allowed search
of electronic devices other than his phone, and (2) allowed probation officers or police to
gain access to “any and all text messages, voice mail messages, call logs, photographs,
videos, e-mail accounts, and social media accounts,” including “Facebook, Instagram,
Twitter, and Snapchat.”

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For the same reasons discussed in part II.D.2., ante, we reject Tommy’s argument
that his electronic devices other than his phone should be exempt from search. As for his
second point, we find the following factors sufficient to justify the broad search
condition: (1) the crime (robbery) was a serious one, implicating concerns for public
safety (compare People v. Trujillo (2017) 15 Cal.App.5th 574, 577, 585, review granted
Nov. 29, 2017, S244650 [robbery and assault] with In re Erica R. (2015)
240 Cal.App.4th 907, pp. 909–910 [misdemeanor drug possession]; In re J.B. (2015)
242 Cal.App.4th 749, 752 [petty theft]; In re P.O. (2016) 246 Cal.App.4th 288, pp. 291–
292 [public intoxication]); (2) Tommy and his co-participants stole a cell phone (Malik
J., supra, 240 Cal.App.4th at pp. 901–902, 904); (3) D.T. was found with three cell
phones, including Tommy’s, which supports an inference the co-participants used their
cell phones in planning and executing the robbery (Maldonado, supra, 22 Cal.App.5th at
pp. 144–145); and (4) Tommy was prohibited by the court from having contact with his
co-participants and victims and from using drugs or alcohol, and the condition in question
would help to monitor his compliance (e.g., Ebertowski, supra, 228 Cal.App.4th at
p. 1175).
To be sure, one purpose of the search condition was to allow police and probation
officers to determine whether an electronic device in Tommy’s possession was stolen, but
that was not the only purpose. The government’s interest in the challenged condition also
includes preventing Tommy from using electronic devices in the future to facilitate illegal
activity or to violate the terms of his probation. That Tommy acted in concert with two
others in robbing Xie, and that a co-perpetrator was found in possession of three cell
phones (including Tommy’s) when arrested, further suggests the co-participants either
had communicated or were prepared to communicate wirelessly at the time of the crime.
Even Malik J. is distinguishable on this basis. The court in Malik J. noted “there
is no indication Malik used e-mail, texting or social networking Web sites to facilitate his
criminal activities, and we express no opinion as to whether the electronics search
condition would be valid as imposed if he had. (See, e.g., Ebertowski, supra,
228 Cal.App.4th at pp. 1176–1177 [Lent standard satisfied where evidence showed

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defendant was a gang member who used social media to promote his gang].)” (Malik J.,
supra, 240 Cal.App.4th at p. 904, fn. 2.) Thus, Malik J. left open the possibility that a
broader search condition would pass constitutional muster if there was evidence the
probationer used an electronic device in connection with the commission of his offense.
Because there was such evidence in this case, we do not view the modified
probation condition adopted in Malik J. as establishing the outer limit for a constitutional
electronics search condition. In fact, more recently, Maldonado rejected an overbreadth
challenge to a condition very similar to that in Tommy’s case because the defendant was
found in possession of a cell phone when he was arrested for his crime. (Maldonado,
supra, 22 Cal.App.5th at pp. 141, 144–145; see also, People v. Guzman (2018)
23 Cal.App.5th 53, 65 [condition upheld where, as part of a sting operation, defendant
used his cell phone and a website to arrange for a sexual encounter with what he thought
was a 13-year-old girl]; Q.R., supra, 7 Cal.App.5th at p. 1238, review granted Apr. 12,
2017, S240222 [electronics search condition upheld where solo actor used electronic
device in his crime].) In People v. Valdivia (2017) 16 Cal.App.5th 1130, review granted
Feb. 14, 2018, S245893, on the other hand, the Third District found a probation condition
very like Tommy’s was overbroad in the context of a domestic violence case where there
was no evidence an electronic device played any role in the crime. (Id. at pp. 1136–1139,
1145–1148.)
Significantly, Tommy’s conditions of probation proscribed contact with his co-
participants in the phone robbery and the victims of his offenses,8 and we think the crime
justifies a broader search condition than the one crafted by the appellate court in Malik J.
Tommy also had weapons, drug and alcohol proscriptions. Giving police and probation
officers “robust access” to Tommy’s electronic devices is appropriate to ensure he does
not reoffend while on probation and does not contact his co-participants in or victims of
his crimes. (Q.R., supra, 7 Cal.App.5th at p. 1238; see also, In re Juan R. (2018)
8 At the time of the robbery, Tommy was on probation in San Mateo County for
hitting a car with his dirt bike and leaving the scene of the accident. His conditions of
probation required him to stay away from that victim, as well as Xie.

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22 Cal.App.5th 1083, 1091–1092, review granted July 25, 2018, S249256 [approving
electronics search condition against Lent and overbreadth challenges in part because
minor was subject to associational prohibition under terms of probation];9 People v.
Acosta (2018) 20 Cal.App.5th 225, 234, review granted Apr. 25, 2018, S247656
[electronics search condition valid to monitor forbidden contacts, even where device not
used in the offense].) And because Tommy is a ward of the court, he is subject to more
restrictive conditions than would be lawful for a similarly-situated adult offender. (In re
Victor L. (2010) 182 Cal.App.4th 902, 909–910; see, e.g., In re J.E. (2016) 1 Cal.App.5th
795, 801, review granted Oct. 12, 2016, S236628 (J.E.) [condition valid under Lent’s
third prong and not overbroad, where the minor’s “constellation of issues requir[ed]
intensive supervision”]; Juan R., supra, 22 Cal.App.5th at pp. 1086, 1091 [minor
exhibited similar “constellation of needs”].)10
Gaining access to Tommy’s text messages, call logs and emails would help
authorities to monitor his compliance with his associational conditions of probation.
Access to photographs, videos and social media is sometimes justified in drug, gang and
weapons cases because juveniles and gang members often display photos of themselves
using drugs, handling weapons, engaging in gang activity, or associating with forbidden
contacts. (See In re J.B., supra, 242 Cal.App.4th at pp. 755–757; In re Erica R., supra,
9 The probation condition in Juan R. was more narrowly drafted. It ordered the
minor to “ ‘[s]ubmit [his electronic devices] to search . . . for electronic communication
content information likely to reveal evidence that the minor is continuing his criminal
activities and is continuing his association via text or social media with co-companions.
This search should be confined to areas of the electronic devices including social media
accounts, applications, websites where such evidence of criminality [or] probation
violation may be found.’ ” (Juan R., supra, 22 Cal.App.5th at p. 1094, italics omitted.)
10 Tommy points out he does not have the same “constellation of issues” involved
in J.E. and Juan R. He has strong family ties, a limited juvenile court history, he was a
sports star in high school, had graduated from high school and enrolled in college before
the cell phone robbery, and he participated in various job training programs both before
and after his arrest. Tommy had no known gang involvement, no serious drug problem,
and weapons were not involved in his offense. We agree this distinguishes his case from
J.E. and Juan R., but we do not agree it demands a different outcome.

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240 Cal.App.4th 907, 913; Ebertowski, supra, 228 Cal.App.4th at p. 1175.) Although
Tommy’s history suggests he does not need to be supervised so intensively for gang
activity (see fn. 10, ante), he does have forbidden contacts, as well as weapons, drug and
alcohol conditions, and giving authorities access to his photos, videos and social media
would allow them to monitor his compliance with those conditions. The search condition
is narrowly tailored to satisfy compelling governmental interests. We find no
constitutional overbreadth.
E. Maximum Term of Confinement
At disposition, the court stated Tommy was subject to a maximum term of
confinement of five years, six months. Tommy is correct that a maximum term of
confinement should not have been stated because he was placed in his mother’s home.
Such a statement is called for only when a minor is being removed from parental custody.
(Welf. & Inst. Code, § 726, subd. (d)(1).) When a minor is not removed from the
physical custody of his or her parent at disposition, however, the court has no statutory
authority to state a maximum period of confinement. (In re Matthew A. (2008)
165 Cal.App.4th 537, 541.) When a juvenile court’s dispositional order for a minor not
removed from parental custody includes a maximum term of confinement, the remedy is
to “strike the term.” (Ibid.; accord, In re A.C. (2014) 224 Cal.App.4th 590, 592.) The
Attorney General argues that, because the written dispositional order did not contain a
maximum term of confinement, there was in effect no error, and no correction is needed.
(Cf. In re P.A. (2012) 211 Cal.App.4th 23, 30–32 [court’s statement of maximum term at
jurisdiction hearing required no remedy].) Out of an abundance of caution, we will order
the statement stricken from the transcript of the dispositional hearing.
III. DISPOSITION
The jurisdiction and disposition orders are affirmed. The case is remanded to
superior court with direction to the clerk to strike from the reporter’s transcript, at page
985, the court’s statement of a maximum term of confinement.

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_________________________
Streeter, Acting P.J.
We concur:
_________________________
Reardon, J.
_________________________
Smith, J.*
* Judge of the Superior Court of California, County of Alameda, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A147813/People v. T.M.

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