In re Richard V.

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Filed 5/31/19 In re Richard V. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 TWO
In re RICHARD V., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD V.,
Defendant and Appellant.
A155535
(Contra Costa County
Super. Ct. No. J18-00711)
Richard V. appeals from a dispositional order following his plea of no contest to
one count of misdemeanor battery. On appeal, he challenges a condition of probation
authorizing searches of his electronic devices, arguing that the condition is both
unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally
overbroad. He also contends the court erred when it set a maximum term of confinement.
We shall strike the maximum term of confinement, but shall otherwise affirm the court’s
dispositional order.
BACKGROUND
On July 25, 2018, a juvenile wardship petition was filed against appellant,
pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging three
counts of misdemeanor battery (Pen. Code §§ 242, 243, subd. (a)).

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The allegations of the petition arose from an incident that took place on the
afternoon of July 23, 2018, which the probation officer summarized as follows, based on
a Concord Police Department report: “[O]fficers responded to reports of a physical
altercation involving several subjects at Sun Valley Mall. Upon arrival, officers found
the two victims, Megan [D.] and James [Q.] on one side of the parking lot and four
juveniles, including [appellant] and codefendant Miguel [A.], standing on the opposite
side of the parking lot. The officer instructed the juveniles to sit down. While sitting
down [appellant] and codefendant Miguel began moving around, reaching into their
pockets, after being instructed not to do so. The officer placed [appellant] and
codefendant Miguel in handcuffs.
“The officer contacted victim [James Q.] and he indicated to the officer he and his
girlfriend, victim [Megan D.], had driven to the mall [where they] observed the juveniles
jumping on vehicles and sliding on their hoods. According to [James Q.], it appeared the
juveniles were checking door handles, as if attempting to burglarize the vehicles. In
addition, he observed the juveniles firing fireworks in the parking structure. [James Q.]
did not want his vehicle burglarized; therefore, he decided to stay by his vehicle, while
[Megan D.] went inside JC Penny to shop and inform a security guard of the events
taking place. When [Megan D.] was walking away, [James Q.] heard one of the juveniles
state, ‘Look at that ass! That Slut!’ [James Q.] told the juveniles to leave his girlfriend
alone. The juveniles approached [James Q.] and surrounded him, stating ‘Nigga, You
bitch, I’m strapped.’ Codefendant Miguel, then grabbed his waistband and partially lifted
his sweatshirt, as if he was drawing a firearm. [James Q.] stated he believed codefendant
Miguel had a firearm, and he feared he would be hurt. [Appellant] then pushed [James
Q.] with both hands, causing him to fall backwards. Codefendant Miguel attempted to
tackle [James Q.] by grabbing his waist and legs, attempting to knock him down to the
ground. Upon seeing this, [Megan D.] attempted to stop them by getting in between her
boyfriend and the juveniles. [Appellant] grabbed [Megan D.] and ‘threw her five to eight
feet away’ causing her to strike one of the garage pillars. [Megan D.] began to cry after
hitting the ground and [appellant] walked over, standing over her as if he was going to hit

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her[.] [James Q.] then pushed [appellant] away from her. Codefendant Miguel grabbed
[James Q.] by the waist again and punched him. [Appellant] also punched him once, in
the face with his right fist. At that point, a witness intervened, yelling for everyone to
stop fighting. All four juveniles left the area; however, they returned about five minutes
later to the scene.
“According to [James Q.], [appellant] and codefendant Miguel were the primary
aggressors. He indicated the other two juveniles . . . struck him with their hands, but he
did not know where they were striking him, as they ‘boxed’ him and [Megan D.] in while
[appellant] and codefendant Miguel attacked them.
“The officer observed a large contusion on [James Q.’s] face and a possible
broken nose. [James Q.] declined medical attention at the scene, indicating he was
planning on going to the hospital after providing his statement. [¶] . . . [¶]
“The officer contacted [appellant] and he was ‘extremely agitated and
confrontational.’ [Appellant] was previously handcuffed, but had slipped his hands out
of the cuffs and they were now in front, on his lap. [Appellant] challenged the officer to
fight and would not inform the officer what had transpired.” While an officer was
transporting appellant and Miguel to juvenile hall, he heard appellant tell Miguel, “ ‘Man,
that dude was a bitch. I punched him once and he fell back.’ ”
When interviewed by the probation officer, appellant said he had only recently
tried marijuana and had smoked it a few times. He said “he smokes alone and purchases
the marijuana ‘off the streets.’ . . . The minor stated on the day of the offense, he
‘accidentally’ took a sip of [S]prite containing Xanax.” Appellant’s mother told the
probation officer that, “[a]s a consequence for [appellant’s] involvement [in the offense],
he . . . no longer has a cell phone . . . .”
On August 10, 2018, pursuant to a negotiated disposition, appellant pleaded no
contest to the first count of the petition and the court dismissed the remaining two counts.
On September 7, 2018, the court adjudged appellant a ward of the court and placed
him on probation consisting of 60 days of home supervision with various conditions.
On September 24, 2018, appellant filed a notice of appeal.

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DISCUSSION
I. Electronic Search Condition
Appellant contends the probation condition authorizing searches of his electronic
devices is both unreasonable under Lent, supra, 15 Cal.3d 481 and unconstitutionally
overbroad.1
A. General Legal Principles
“When a minor is made a ward of the juvenile court and placed on probation, the
court ‘may impose and require any and all reasonable conditions that it may determine
fitting and proper to the end that justice may be done and the reformation and
rehabilitation of the ward enhanced.’ [Citations.] ‘ “In fashioning the conditions of
probation, the . . . court should consider [appellant’s] entire social history in addition to
the circumstances of the crime.” ’ [Citation.] The court has ‘broad discretion to fashion
conditions of probation’ [citation], although ‘every juvenile probation condition must be
made to fit the circumstances and [appellant].’ [Citation.] We review the imposition of a
probation condition for an abuse of discretion [citation], taking into account ‘the
sentencing court’s stated purpose in imposing it.’ [Citation.]
“A juvenile court’s discretion to impose probation conditions is broad, but it has
limits. [Citation.] Under Lent, which applies to both juvenile and adult probationers, a
condition is ‘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.” ’ [Citations.] ‘This test is
conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a
probation term.’ [Citation.]” (In re P.O. (2016) 246 Cal.App.4th 288, 293–294 (P.O.),
citing Lent, supra, 15 Cal.3d at p. 486.)
1 We observe that the law in this area is unsettled and there are conflicting court of
appeal opinions, as well as a number of cases pending review in the Supreme Court on
the issue of reasonableness of electronic search conditions. (See, e.g., In re Juan R.
(2018) 22 Cal.App.5th 1083, 1089 & fn. 3 [citing cases in this District reaching different
conclusions regarding electronic search conditions and cases in which Supreme Court has
granted review on this issue], review granted Jul. 25, 2018, S249256.)

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“When a probation condition imposes limitations on a person’s constitutional
rights, [the court] ‘ “must closely tailor those limitations to the purpose of the
condition” ’—that is, the probationer’s reformation and rehabilitation—‘ “to avoid being
invalidated as unconstitutionally overbroad.” ’ [Citations.] ‘The essential question in an
overbreadth challenge is the closeness of the fit between the legitimate purpose of the
restriction and the burden it imposes on the [probationer]’s constitutional rights—bearing
in mind, of course, that perfection in such matters is impossible, and that practical
necessity will justify some infringement.’ [Citation.] ‘ “ ‘Even conditions which infringe
on constitutional rights may not be invalid [as long as they are] tailored specifically to
meet the needs of the juvenile.’ ” ’ [Citations.]
“A probation condition imposed on a minor must be narrowly tailored to both the
condition’s purposes and [appellant’s] needs, but ‘ “ ‘ “a condition . . . that would be
unconstitutional or otherwise improper for an adult probationer may be permissible for a
minor under the supervision of the juvenile court.” ’ ” ’ [Citations.] ‘This is because
juveniles are deemed to be more in need of guidance and supervision than adults, and
because a minor’s constitutional rights are more circumscribed. The state, when it asserts
jurisdiction over a minor, stands in the shoes of the parents. And a parent may “curtail a
child’s exercise of . . . constitutional rights . . . [because a] parent’s own constitutionally
protected ‘liberty’ includes the right to ‘bring up children’ [citation] and to ‘direct the
upbringing and education of children.’ [Citation.]” ’ [Citation.] Whether a probation
condition is unconstitutionally overbroad presents a question of law reviewed de novo.
[Citation.]” (P.O., supra, 246 Cal.App.4th at p. 297.)
B. Legal Analysis
The challenged electronic search condition in this case, imposed over defense
counsel’s objection that it was both unreasonable under Lent and constitutionally
overbroad, provides: “You must submit your cell phone or any other electronic device
under your control to a search of any medium of communication reasonably likely to
reveal whether you are complying with the terms of your probation, with or without a
search warrant, at any time of day or night. Such medium of communication includes

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text messages, voicemail messages, photographs, email accounts [and] other social media
accounts and applications such as Snapchat, Instagram, Facebook, and Kik. You shall
provide access codes to Probation or any other peace office upon request to effectuate
such search.”
The juvenile court explained its reason for imposing the condition: “I am going to
impose an electronic search condition because I’m—the stay away orders and no contact
with co-responsible.” The related conditions of probation to which the court referred
included the condition that appellant have no “contact whatsoever, either directly or
indirectly, through any third party or any other electronic means, with Miguel [A.],” the
other two minors involved in the attack, or the two victims.
1.
An electronic search condition, such as the one imposed here, may be reasonably
related to future criminality in a particular case, even where the underlying offense is not
directly tied to the use of electronic devices, when a minor’s history and overall
circumstances make it reasonable for the probation department to search electronic
devices and/or internet activity to monitor compliance with conditions such as refraining
from use of drugs (as in P.O., supra, 246 Cal.App.4th 288) or avoiding contact with
specified individuals or prohibited locations. But if there is nothing in a minor’s current
offenses, criminal history, or personal circumstances demonstrating a predisposition to
use electronic devices in connection with criminal activity, there is no basis for
concluding an electronic search condition “ ‘will serve the rehabilitative function of
precluding [the minor] from any future criminal acts.’ ” (In re Erica R. (2015) 240
Cal.App.4th 907, 913.) The condition thus must be reasonably related to future
criminality in that it would be a reasonable means of deterring future crime by this
particular minor, based on all the circumstances of this particular case. Moreover, a
condition that authorizes searches of cell phones and electronic accounts accessible
through such devices may be constitutionally overbroad if it is not limited to the types of
data likely to further a minor’s rehabilitation, such as whether the minor is complying
with other conditions of probation. (P.O., at p. 298.)

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In this case, appellant committed the battery offense with three other minors, and
the court expressly imposed the electronic search condition to enable the probation
officer to monitor appellant’s use of electronic means of communication to ensure that he
was complying with other probation conditions requiring that he stay away from Miguel
A., the other two minors with whom he participated in this violent offense, and the
victims. Appellant’s electronic devices (e.g., a cell phone, tablet, or computer) are the
obvious means by which he could communicate with prohibited individuals. Thus, the
electronic search condition, which was intended to prevent appellant from committing a
similar offense with this same group of perpetrators or against these same victims, was
reasonably related to potential future criminal activity, and its imposition was not an
abuse of discretion. (See P.O., supra, 246 Cal.App.4th at p. 295; see also People v.
Olguin (2008) 45 Cal.4th 375, 380–381 [“[a] condition of probation that enables a
probation officer to supervise his or her charges effectively is . . . ‘reasonably related to
future criminality’ ”]; compare In re Erica R., supra, 240 Cal.App.4th at pp. 910–911,
913 [where juvenile court imposed electronic search condition based, not on specific
circumstances of minor whose crime was misdemeanor possession of Ecstasy, but on fact
that “ ‘many minors, who are involved with drugs tend to post information about
themselves and drug usage,’ ” there was “ ‘no reason to believe the current restriction
[would] serve the rehabilitative function of precluding [the minor] from any future
criminal acts’ ”].)
2.
We also find that the electronic search condition was narrowly tailored to the
condition’s purposes and appellant’s needs. (See P.O., supra, 246 Cal.App.4th at p. 297.)
The condition does not allow for unfettered access to all of appellant’s electronic
information, but instead is limited to means of communication that would reveal whether
he is in contact with any of the people included in the stay away conditions. In the
circumstances of this case, the electronic search condition was not overbroad, considering
its narrow focus on means of communication, appellant’s rehabilitative needs, and the
deterrent purpose of the condition. (See ibid.)

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II. Maximum Term of Confinement
Appellant contends the court’s statement at the dispositional hearing that he is
subject to a maximum term of confinement of 180 days2 must be stricken because
appellant was not removed from parental custody. Respondent agrees.
Pursuant to Welfare and Institutions Code section 726, subdivision (d)(1), the
juvenile court shall specify a maximum term of confinement only if the minor is removed
from the physical custody of his or her parent or guardian. (See In re Matthew A. (2008)
165 Cal.App.4th 537, 541 [when minor is not removed from parent’s physical custody,
court has no statutory authority to specify a maximum term of confinement].)
We agree with the parties that because appellant was not removed from his
parents’ physical custody, the court improperly set a maximum term of confinement. The
appropriate remedy in this situation is to strike the term. (See In re A.C. (2014) 224
Cal.App.4th 590, 592; In re Matthew A., supra, 165 Cal.App.4th at p. 541.)
DISPOSITION
The maximum term of confinement is stricken from the juvenile court’s order. In
all other respects, the court’s dispositional order is affirmed.
_________________________
Kline, P.J.
2 The court specifically said, “I do find the court has authority to impose 177 days
of remaining custodial time [after three days in custody]. The maximum exposure being
180.”

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We concur:
_________________________
Richman, J.
_________________________
Miller, J.
In re Richard V. (A155535)

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