In re D.W.

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Filed 12/13/16 In re D.W. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
In re D.W., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.W.,
Defendant and Appellant.
A146790
(Contra Costa County
Super. Ct. No. J15-01018)
Minor appeals from a dispositional order issued pursuant to Welfare and
Institutions Code section 602 after the court found that he had committed an attempted
robbery. He contends the court unconstitutionally imposed a condition of probation that
requires him to permit searches of, and disclose the access code to, his cell phone. We
conclude that the challenged probation condition is reasonably necessary to ensure
minor’s compliance with the probation condition that forbids him from communicating
with specified individuals, but must be modified to eliminate possible overbreadth and
vagueness. As modified, the order of probation will be affirmed.
Factual and Procedural Background
On August 24, 2015, a juvenile wardship petition was filed alleging one count of
attempted second degree robbery (Pen. Code, §§ 211, 664) and two counts of child
endangerment (§ 273a, subd. (a)). At a contested jurisdictional hearing, evidence was
presented that on the evening of August 22, 2015, the victim was at a park with his

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seven-year-old daughter and nine-year-old son when he encountered minor and his
accomplice. The victim became uncomfortable and left the park with his children after
the minor asked the victim for directions and the accomplice asked the victim for a ride.
About two blocks from the playground, the minor and his accomplice approached the
victim again, this time asking for 50 cents and directions to a bus. The victim was scared
and gave defendant four quarters. Minor and his accomplice began to follow the victim
and his children and as the victim turned to look behind, the accomplice hit the victim in
the face. The victim, who was holding his daughter, fell to the ground. The minor
demanded the victim give him money. The victim grabbed a piece of wood and chased
minor and his accomplice away. The victim reported the incident to the police and the
police apprehended the minor and his accomplice shortly thereafter. The victim identified
minor and his accomplice in a “cold show.”
The court sustained allegations of felony attempted second degree robbery, but
found the child endangerment allegations not true.
On November 2, 2015, the court adjudged defendant a ward and committed him to
Orin Allen Youth Rehabilitation Facility for a six-month program, plus an additional 90-
day conditional release parole period. The court imposed numerous probation conditions,
including school attendance and counseling requirements, residence restrictions, a
curfew, prohibitions against the possession of dangerous or deadly weapons, alcohol, or
drugs, submission to drug/alcohol testing, and reporting police contacts within 24 hours.
The court also prohibited minor from contacting by electronics or otherwise either his
accomplice or the victim’s family and required minor to stay 100 yards away from the
victim’s home.
The probation department also requested imposition of a condition requiring minor
to “submit . . . any cell phone or any other electronic device in his possession [and]
access code . . . to search and seizure by any peace officer at any time of the day or night,
with or without a warrant.” Defense counsel objected to the requested condition on the
ground that minor had not used a cell phone to facilitate the offense. The prosecutor
argued that electronic searches were needed to supervise minor, noting particularly the

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condition that prohibits electronic contact with the victim’s family or with the
accomplice. The trial court struck the language authorizing a search of “any other
electronic device” in minor’s possession but required the minor to submit his “cell phone
and access code” to search and seizure by a peace officer without a warrant.
Minor filed a timely notice of appeal.
Discussion
Minor contends the probation condition authorizing the warrantless search of his
cell phone is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and
unconstitutional. The parties cite the numerous appellate decisions in which the appellate
courts have recently addressed this issue, including some currently pending review before
the California Supreme Court (see e.g. In re Ricardo P., review granted Feb. 17, 2016,
S230923; In re Patrick F., review granted Feb. 17, 2016, S231428; In re Alejandro R.,
review granted March 9, 2016, S232240; In re J.R., review granted March 16, 2016,
S232287; In re Mark C., review granted April 13, 2016, S232849; In re A.S., review
granted May 25, 2016, S233932; In re J.E., review granted Oct. 12, 2016, S236628).
In In re J.B. (2015) 242 Cal.App.4th 749 (J.B.), this court observed that the
juvenile court’s discretion to select appropriate conditions of probation while broad, is
not unlimited. The court’s discretion is constrained by the Lent test which renders a
condition of probation invalid if 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. 754.)
In In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.),the court rejected the
argument that the electronic search condition is reasonably related to future criminality in
that it was designed to help probation officers monitor other probation conditions
prohibiting drinking alcohol or taking drugs. (Id. at p. 913.) The court observed, “the
record does not support a conclusion that the electronic search condition is reasonably
related to future criminal activity by Erica. The juvenile court justified the electronic
search condition solely by reference to its experience that ‘many juveniles, many minors,

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who are involved in drugs tend to post information about themselves and drug usage.’
However, ‘[n]ot every probation condition bearing a remote, attenuated, tangential, or
diaphanous connection to future criminal conduct can be considered reasonable.’
[Citation.] There is nothing in this record regarding either the current offense or Erica's
social history that connects her use of electronic devices or social media to illegal drugs.
In fact, the record is wholly silent about Erica’s usage of electronic devices or social
media. Accordingly, ‘[b]ecause there is nothing in [Erica’s] past or current offenses or
[her] personal history that demonstrates a predisposition’ to utilize electronic devices or
social media in connection with criminal activity, ‘there is no reason to believe the
current restriction will serve the rehabilitative function of precluding [Erica] from any
future criminal acts.’ ” (Ibid.) The court in Erica R. also pointed out the difference
between adult and juvenile probation explaining, “ ‘ “[J]uvenile probation is not, as with
an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final
order for the minor’s reformation and rehabilitation.” ’ [Citation.] A juvenile ‘cannot
refuse probation [citations] and therefore is in no position to refuse a particular condition
of probation.’ [Citation.] Courts have recognized that a ‘minor cannot be made subject to
an automatic search condition; instead, such condition must be tailored to fit the
circumstances of the case and the minor.’ ” (Id. at p. 914.)
In J.B., we adopted this reasoning in finding that an electronic search condition
was unreasonable where there was no evidence that the minor used e-mail, texting or
social networking Web sites to facilitate his offense and there was no showing of any
connection between the minor’s use of electronic devices and his past or potential future
criminal activity. (J.B., supra, 242 Cal.App.4th at pp. 754, 756.)
Since issuing our decision in J.B., , In re P.O. (2016) 246 Cal.App.4th 288, 295,
has been decided, in which the court concluded that insofar as an electronic search
condition “enables peace officers to review P.O.'s electronic activity for indications that
P.O. has drugs or is otherwise engaged in activity in violation of his probation,” it is
reasonably related to deterring future criminal activity as required by the Lent test. The
court also concluded, however, that the electronics search condition was

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unconstitutionally “overbroad in its authorization of searches of cell phones and
electronic accounts accessible through such devices because it is not narrowly tailored to
its purpose of furthering his rehabilitation. According to the juvenile court, the
condition's purpose is to allow monitoring of P.O.’s involvement with drugs, but the
condition does not limit the types of data that may be searched in light of this purpose.
Instead, it permits review of all sorts of private information that is highly unlikely to shed
any light on whether P.O. is complying with the other conditions of his probation, drug-
related or otherwise.” (Id. at p. 298.) Accordingly, the court ordered the condition
“modified to limit authorization of warrantless searches of P.O.’s cell phone data and
electronic accounts to media of communication reasonably likely to reveal whether he is
boasting about drug use or otherwise involved with drugs. In addition, while P.O. must
disclose to peace officers passwords necessary to gain access to these accounts, to the
extent any other types of digital accounts maintained by him are password protected, he
is not required to disclose those passwords.” (Ibid.)
Here, there is no dispute that minor did not use a cell phone in any way in
connection with the offense and no evidence that minor regularly used a cell phone to
contact his accomplice. Indeed, the probation report does not even mention whether
minor has a cell phone. With regard to minor’s social history, the probation department
reported that minor had reconnected with his father about a year prior and that while
spending the summer at his father’s house, he began associating with peers who were a
negative influence on him. His mother reports that he performed poorly in school during
this time and, as a result, he is close to a semester behind in school. The report also notes,
however, that his overall performance in school since being placed in juvenile hall has
been “very good” and he was recently awarded “student of the week.” According to
records from his prior high school, minor has never had any significant attendance or
behavioral problems at school. With respect to drugs and alcohol the report states: “The
minor says that he tried marijuana one time when he was in the 8th grade but didn’t like it.
He therefore has not used it again, he asserts, or tried any other illicit intoxicating
substances, including alcohol.” The probation report ultimately concludes that “this may

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be a case of an otherwise well-adjusted young teen making a very bad decision, a usually
responsible adolescent who acted without fully considering the possible negative
consequences of his conduct.” Given these facts, it is clear that the condition has no
connection to his past criminality. .
Until the Supreme Court finally resolves the issue, we adhere to the views we
expressed in In re J.B. supra. However, unlike the situation in Erica R., and in J.B., 1
here the minor has also been prohibited from contacting by electronics or otherwise his
accomplice and the victim’s family. Given that restriction, which is itself reasonable and
in accord with Lent, it is also reasonable to permit a limited search of his cell phone to
ensure compliance with that restriction. To avoid any possible unconstitutional
overbreadth, the search condition must be closely tailored to its purpose. (In re P.O.,
supra, 246 Cal.App.4th at p. 297.) Accordingly, the electronic search condition must be
modified to authorize only searches of minor’s text messages, e-mail, telephone call
history, voice mail, or other communication programs like FaceTime or Skype, and social
media accounts. The search condition will not permit access to other accounts or data
stored or accessed by minor on his cell phone.2
Disposition
The condition of probation that requires minor to submit his cell phone with
access codes to warrantless search by a peace officer shall be modified to read: “Submit
any cell phone under his control to a search by a peace officer of any text messages,
email, telephone call history, voice mail, or other communication programs like
FaceTime or Skype, and social media accounts, with or without probable cause, and
1 In J.B. the minor had been ordered to stay away from a co-participant in his offense, but
the order did not encompass electronic communications or contacts with the victim or the
victim’s family, and in all events was not the focus of consideration.
2 We retain our reservations as to the efficacy of these limitations (see In re J.B., supra,
242 Cal.App.4th at pp. 758-759), but cannot better define the permissible scope of a cell
phone search while prohibiting excessively broad searches that go beyond what is
reasonably necessary to monitor the terms of probation.

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provide the peace officer with any passwords necessary to access the information
specified.”
As so modified, the order of probation is affirmed.
_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.

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