In re A.A.

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Filed 6/25/19 In re A.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 A.A., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.A.,
Defendant and Appellant.
A155561
(Contra Costa County
Super. Ct. No. J1800793)
This is an appeal from the juvenile court’s dispositional order of October 2, 2018,
following A.A.’s admission of one count of grand theft in violation of Penal Code
section 487, subdivision (a).1 Pursuant to this order, A.A. (minor) was placed on
probation subject to various terms and conditions, including a condition requiring his
submission to warrantless searches of his electronic devices. On appeal, minor
challenges this probation condition as unreasonable under People v. Lent (1975) 15
Cal.3d 481 and as unconstitutionally overbroad. For the reasons set out below, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 7, 2018, a juvenile wardship petition was filed by the San Joaquin County
District Attorney pursuant to Welfare and Institutions Code section 602, alleging that
minor committed grand theft (Pen. Code, § 487, subd. (a)) (count 1), shoplifting (Pen.
1 Unless otherwise stated, all statutory citations are to the Penal Code.

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Code, § 459.5, subd. (a)) (count 2), and receiving stolen property (Pen. Code, § 496,
subd. (a)) (count 3).
These counts arose from the following events occurring on February 23, 2018.2
At about 9:00 a.m., police officers responded to a report of a theft and assault with a
deadly weapon at the Home Depot in the City of Tracy. According to a subsequently
prepared police report, minor and another individual had left the store with a shopping
cart full of power tools and were approaching a white Chevy Impala with paper license
plates when a customer tackled and detained minor. Another customer attempted to
apprehend the second suspect but was not successful. This suspect was able to enter the
Chevy Impala and drive away, nearly striking the second customer.
On August 3, 2018, minor admitted count 1, grand theft, and the remaining counts
were dismissed. The matter was then transferred to Contra Costa County for disposition.
On August 24, 2018, the Contra Costa Juvenile Court accepted the transfer and, on the
same day, issued a bench warrant for minor due to his failure to appear.
The probation department filed a report in anticipation of the disposition hearing
recommending that minor receive home supervision and formal probation. Among other
things, the report noted minor’s poor school performance, truancy and marijuana use.
The report also detailed minor’s involvement in another recent criminal incident in which
he and three other minors were detained after attempting to flee in a vehicle with two
firearms (one of which was stolen) and high-capacity magazines. At the time the report
was written, these charges were pending.
On October 2, 2018, the juvenile court declared minor a ward of the court and
placed him on probation with home supervision for 90 days with service of 10 weekends
in juvenile hall. The juvenile court also imposed numerous terms and conditions on
minor’s probation. In doing so, the juvenile court expressed several concerns regarding
minor’s conduct, including his “escalating” criminal behavior, his poor school attendance
and academic performance, and the lack of control in his home. The probation condition
2 The facts are taken from the probation report dated October 2, 2018.

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under challenge on appeal (electronics search condition) relates to warrantless searches of
minor’s electronic devices and requires him to “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 text messages, voicemail messages, photographs, e-mail
accounts and other social media accounts and applications such as Snapchat, Instagram,
Facebook and Kik. You must provide access codes to probation or any other peace
officer upon request to effectuate the search.”
Defense counsel objected to the electronics search condition as “not meeting the
requirements of People v. Lent [(1975) 15 Cal.3d 481, 486].” (Italics added.) The
juvenile court disagreed, explaining, “It is clearly a tool to ensure that [minor] does not
continue in his behavior and conduct that is considered criminal if engaged in by adults,
and also to enforce the stay-away provisions of the conditions of probation.”3 This
appeal followed.
DISCUSSION
Minor challenges the electronics search condition as unreasonable under People v.
Lent (1975) 15 Cal.3d 481, 486 (Lent) and overbroad in violation of his constitutional
rights to privacy and private association. The following general principles of law are not
in dispute.
Where the juvenile court places a minor on probation following the minor’s
commission of a crime, it “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.” (Welf. & Inst. Code, § 730,
3 Another condition of probation was a stay-away provision requiring minor “to
have no contact whatsoever, directly or indirectly, with [C.C] or [L.L.],” the two
juveniles besides minor’s brother who were with minor in the separate incident described
above in which they were detained in a car with two firearms and high-capacity
magazines. (Ante, p. 2.)

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subd. (b).) “ ‘Because of its rehabilitative function, the juvenile court has broad
discretion when formulating conditions of probation. “A condition of probation which is
impermissible for an adult criminal defendant is not necessarily unreasonable for a
juvenile receiving guidance and supervision from the juvenile court.” [Citation.] “[I]n
planning the conditions of [a juvenile’s] supervision, the juvenile court must consider not
only the circumstances of the crime but also the minor’s entire social history.
[Citations.]” [Citation.]’ [Citations.] ‘Even conditions which infringe on constitutional
rights may not be invalid if tailored specifically to meet the needs of the juvenile
[citation].’ [Citations.] But every juvenile probation condition must be made to fit the
circumstances and the minor.” (In re Binh L. (1992) 5 Cal.App.4th 194, 203.)
Despite the greater latitude afforded juvenile courts in ordering probation
conditions, however, it remains the law in all cases that a probation condition imposing
limitations on a minor’s constitutional rights “must closely tailor those limitations to the
purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In
re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); see also In re Spencer S. (2009)
176 Cal.App.4th 1315, 1331.)
Generally, the appellate court reviews a juvenile court’s imposition of a probation
condition for abuse of discretion. (In re Juan G. (2003) 112 Cal.App.4th 1, 7.) However,
whether a probation condition is unconstitutionally overbroad presents a question of law
reviewed on appeal de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
A. Reasonableness
In Lent, supra, the California Supreme Court held that a probation condition
should be stricken as invalid only 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 . . . .’ ” (15 Cal.3d at p. 486, italics added; accord, In re R.V. (2009) 171
Cal.App.4th 239, 246–247 (R.V.) [applying the three Lent factors conjunctively in the
case of a juvenile challenge to a probation condition].) According to minor, the
electronics search condition fails each of these prongs because, first, his use of

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electronics has no relationship to his felony grand theft crime, which did not involve
electronics; second, it relates to conduct not itself criminal (electronics possession or
use); and, third, it requires conduct (his submission to electronics search) not reasonably
related to his future criminality given the lack of evidence that he used electronics to
commit any crime or to communicate with his alleged criminal partners, C.C. and L.L.
The Lent standard has been applied in cases like this involving electronics search
conditions for juvenile probationers with different results. Minor notes, in particular, two
cases from this Appellate District, In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.)
and In re J.B. (2015) 242 Cal.App.4th 749 (J.B.), in which the reviewing court rejected
electronics search conditions as unreasonable based on the lack of evidence of any
connection between the minor’s offense and his or her use of electronic devices or future
criminality. (See J.B., at p. 756 [“there is no showing of any connection between the
minor’s use of electronic devices and his past or potential future criminal activity”];
Erica R., at p. 913 [“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”].)
Other cases, however, have applied a less narrow reading of the Lent
requirements. For example, in In re P.O. (2016) 246 Cal.App.4th 288 (P.O.), our
colleagues in Division One of this District found an electronics search condition
reasonably related to the minor’s future criminality although his offense did not involve
any electronic device. (Id. at pp. 294, 296.) In so finding, the court cited People v.
Olguin (2008) 45 Cal.4th 375 for the proposition that “a probation condition that enables
probation officers ‘to supervise [their] charges effectively is . . . “reasonably related to
future criminality.” ’ ” (P.O., at p. 295.) Applying this holding, the P.O. court concluded
that, notwithstanding the lack of relationship between the electronics search condition
and the current offense, “the condition reasonably relates to enabling the effective
supervision of P.O.’s compliance with other probation conditions” by authorizing officers
to “review [his] electronic activity for indications that [he] has drugs or is otherwise

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engaged in activity in violation of his probation.” (Ibid.) “It may well be that a probation
condition requiring a minor to forward all electronic communications to the probation
officer or to wear a body camera would be unreasonable under Lent [citation], but it
would be so because of the burden it imposed on the minor—not because it invaded the
minor’s privacy (a constitutional concern better addressed by the overbreadth doctrine),
and certainly not because it lacked a connection to preventing future criminality.” (Id. at
p. 296.)
And more recently, in In re Juan R. (2018) 22 Cal.App.5th 1083, review granted
July 25, 2018, S249256 (Juan R.), our Division Five colleagues upheld an electronics
search condition because the third Lent prong was not satisfied after concluding “[t]he
condition ‘reasonably relates to enabling the effective supervision of [Juan’s] compliance
with other probation conditions.’ [Citation.] Most importantly, it will deter Juan from
planning future crimes with the other minors who participated in the instant offense. . . .
[¶] . . . [¶] . . . Juan committed a violent felony while on informal supervision, thereby
raising larger public safety concerns.” (Id. at p. 1091.) Also noting Juan’s truancy and
disciplinary issues at school and his admissions of regular drug use and association with
known gang members, our colleagues concluded: “The juvenile court imposed the
electronic search condition precisely because it enhanced its ability to monitor Juan’s
complex constellation of needs.” (Ibid.; see also In re Ricardo P. (2015) 241
Cal.App.4th 676 [holding that an electronics search condition was reasonable under Lent
but unconstitutionally overbroad], review granted Feb. 17, 2016, S230923.)
Here, we likewise conclude the electronics search condition is valid under the Lent
test because the third prong is not satisfied on this record. The juvenile court could have
properly found based on the circumstances of minor’s offense and his overall social
history that the electronics search condition “reasonably relates to enabling the effective
supervision of [his] compliance with other probation conditions.” (P.O., supra, 246
Cal.App.4th at p. 295; accord, Juan R., supra, 22 Cal.App.5th at pp. 1089–1090, rev.
granted.) In particular, the juvenile court could have reasonably understood, based on the
seriousness and escalating nature of minor’s criminal conduct, his abysmal school

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performance, the apparent inability of his mother to command obedience, and the
significant risk he therefore posed to public safety, that a broad search condition was
needed to ensure his rehabilitation and to deter his involvement in future criminal
activity.4 (R.V., supra, 171 Cal.App.4th at p. 246 [when exercising its broad discretion to
set a juvenile’s probation terms, the court “ ‘should consider the minor’s entire social
history in addition to the circumstances of the crime’ ”].) Moreover, these factors, and in
particular the seriousness and escalating nature of the offense, distinguish this case from
Erica R. and J.B., where our colleagues found electronics search conditions unreasonable
under Lent. (See Erica R., supra, 240 Cal.App.4th at pp. 910, 913–914 [invalidating
condition where minor admitted misdemeanor drug possession, yet recognizing: “Of
course, there can be cases where, based on a defendant’s history and circumstances, an
electronic search condition bears a reasonable connection to the risk of future
criminality”]; J.B., supra, 242 Cal.App.4th at pp. 752, 757–758 [invalidating condition
where minor admitted petty theft after concluding his prior marijuana use “[did not
provide] sufficient justification . . . to require him to submit his electronic devices to
warrantless searches”].)
For these reasons, we reject minor’s challenge under Lent and turn to his
remaining constitutional challenge based on the overbreadth doctrine.
B. Overbreadth Challenge
“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
[minor’s] constitutional rights—bearing in mind, of course, that perfection in such
4 In his reply brief, minor insists the juvenile court imposed the electronics search
condition “for the sole specific purpose of enabling the probation officer to enforce the
stay-away [from C.C. and L.L] provisions of probtion [sic]” and, as such, that the
condition could and should have been more narrowly drawn to address that one concern.
We conclude minor reads the record too narrowly. When imposing the various terms and
conditions of probation, the court noted several significant areas of concern, including
minor’s need for behavioral control and improved decisionmaking skills, and the
significant risk he poses to public safety.

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matters is impossible, and that practical necessity will justify some infringement.” (In re
E.O. (2010) 188 Cal.App.4th 1149, 1153; accord, Erica R., supra, 240 Cal.App.4th at
p. 914 [every juvenile probation condition must be “ ‘tailored to fit the circumstances of
the case and the minor’ ”].) According to minor, the “license to search for evidence of
any criminal activity or probation violation—given the privacy and personal association
rights associated with text messages, voicemail messages, photographs, e-mail accounts
and social media accounts—renders the [electronics search condition] overbroad.”
The People respond that minor has forfeited this challenge by failing to object to
the condition on overbreadth grounds in the juvenile court. We agree. The law is clear
that to preserve this type of challenge on appeal, a timely and specific objection must be
made in the lower court. (People v. Welch (1993) 5 Cal.4th 228, 234–235 [“A timely
objection allows the court to modify or delete an allegedly unreasonable condition or to
explain why it is necessary in the particular case. . . . A rule foreclosing appellate review
of claims not timely raised in this manner helps discourage the imposition of invalid
probation conditions and reduce the number of costly appeals brought on that basis”];
People v. Smith (2017) 8 Cal.App.5th 977, 987.) Here, minor concedes no such objection
was made. Had minor’s counsel raised an overbreadth objection below it would have
provided the juvenile court the opportunity to consider whether a narrower version of the
electronics search condition was appropriate. However, this opportunity did not arise due
to counsel’s silence, and we decline minor’s request to modify the condition in the first
instance.5 (Cf. P.O., supra, 246 Cal.App.4th at p. 294 [stating the general rule that failure
to object to a probation condition on a specific basis usually forfeits the claim on appeal,
before turning to the merits in a case where the Attorney General did not raise a forfeiture
argument].)
5 Minor concedes he has not raised a facial constitutional challenge to this
condition. (Cf. Sheena K., supra, 40 Cal.4th at p. 888 [declining to apply the forfeiture
doctrine where the “[d]efendant’s challenge to her probation condition as facially vague
and overbroad presents an asserted error that is a pure question of law, easily remediable
on appeal by modification of the condition”].)

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In so concluding, we also reject minor’s ancillary claim that his counsel’s failure
to object to the electronics search condition as overbroad constitutes ineffective
assistance of counsel in violation of his Sixth Amendment rights. The law in this area is
well established. “ ‘In assessing claims of ineffective assistance of trial counsel, we
consider whether counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms and whether the defendant suffered
prejudice to a reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome. [Citations.]’ ” (People v. Carter (2005) 36 Cal.4th 1114,
1189.) However, where, as here, “the record on appeal fails to show why counsel acted
or failed to act in the instance asserted to be ineffective, unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th
978, 1068–1069.) This is consistent with the strong presumption under California law
that counsel’s conduct falls within the wide range of reasonable professional assistance.
“ ‘ “[T]he defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” ’ ” (People v. Burnett
(1999) 71 Cal.App.4th 151, 180, quoting People v. Bunyard (1988) 45 Cal.3d 1189,
1215, and Strickland v. Washington (1984) 466 U.S. 668, 689.)
In this case, the appellate record contains no explanation for defense counsel’s
failure to object to the electronics search condition as overbroad. At no time was defense
counsel asked to explain this failure, nor did counsel offer an explanation for it, either
directly or indirectly. As a result, under the above standards, we must reject minor’s
claim of ineffective assistance of counsel on direct appeal “ ‘unless there simply could be
no satisfactory explanation.’ (People v. Pope [(1979)] 23 Cal.3d 412, 426.)” (People v.
Kipp (1998) 18 Cal.4th 349, 367.) Here, we conclude minor has not met this standard.
Defense counsel did object to the electronics search condition as unreasonable
under Lent, suggesting counsel was aware of the law governing juvenile probation
conditions. Further, as the People note, this particular electronics search condition,
unlike other search conditions challenged in other courts, was restricted in one important

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regard. Per the court’s order, minor is required to submit his cell phone or other
electronic device under his control “to a search of any medium of communication
reasonably likely to reveal whether you are complying with the terms of your
probation . . . .” (Italics added.) Minor is not required to submit all his electronic
communication to search, but only that “reasonably likely to reveal” his overall
compliance with the probation conditions. Given this restrictive language already
imposed by the court, defense counsel could have reasonably assumed that an
overbreadth objection was not necessary or likely to succeed.
In applying the presumption that counsel’s performance at the disposition hearing
fell within the wide range of professional competence and that his actions and inactions
can be explained as a matter of sound trial strategy (People v. Carter, supra, 36 Cal.4th at
p. 1189), we find no basis for disturbing counsel’s sound professional judgment that no
overbreadth objection was warranted. As a result, minor’s challenge for ineffective
assistance of counsel fails. (People v. Bunyard, supra, 45 Cal.3d at p. 1215.)
DISPOSITION
The juvenile court’s dispositional order is affirmed.

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_________________________
Wiseman, J.*
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Fujisaki, J.
A155561/In re A.A.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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