In re R.F.

1
Filed 12/29/16 In re R.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 R.F., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
R.F.,
Defendant and Appellant.
A146082
(City & County of San Francisco
Super. Ct. No. JW126300)
Appellant R.F. appeals from a judgment in juvenile delinquency proceedings
declaring him to be a ward of the court and placing him on probation with various
conditions, including conditions subjecting to search, upon demand, any electronic or
digital devices in his possession, and directing him to turn over to his probation officer
and to law enforcement officers, upon demand, all passwords to such devices. The sole
issue raised in this appeal is a challenge on constitutional grounds to the electronic search
conditions. We reject that challenge and affirm.
I. BACKGROUND
A. 2012 Offenses and Wardship Petitions
On August 21, 2012, appellant, age 15, chest-butted a fellow student and

-- 1 of 12 --

2
threatened to shoot his brother. The victim was so intimidated that he transferred to
another school. Relatives of appellant and the victim were in rival gangs. Appellant
denied being in a gang, but admitted that his cousins were from “Double Rock,” and
one cousin had been “killed.” Following the chest-butting incident, on August 23,
2012 the District Attorney filed an original wardship petition (Welf. & Inst. Code,
§ 602) charging appellant with making criminal threats (Pen. Code, § 422) (count 1)
and battery (Pen. Code, § 243.2) (count 2).1 On August 29, appellant was released to
his mother’s custody after agreeing to certain conditions and agreeing to participate
in various programs through the Detention Diversion Advocacy Program (DDAP).
(Welf. & Inst. Code, § 628.1.)
On October 18, 2012, witnesses saw and videotaped appellant approach a
group of students, pick up a male student, and throw him to the ground, causing
serious injury to his face and head. On October 31, 2012, the District Attorney filed
a second wardship petition, this time alleging that appellant committed aggravated
assault by inflicting great bodily injury on another student. (Pen. Code, § 245,
subd. (a)(4).) Appellant, who had been detained in juvenile hall after the incident,
was nonetheless released again to his mother on November 7 and permitted to
continue his participation in the DDAP.
On December 13, 2012, the police saw appellant in a public housing area take
something from his waistband and dispose of it in a recycling bin. It turned out to be
a concealed firearm. When the police approached appellant, he fled. The officers
retrieved the gun, which was loaded. During booking, police found a pill in
appellant’s pocket that tested preliminarily as Ecstasy, and they discovered an
electronic device appellant was carrying contained photographs of him and his
cohorts holding handguns and flashing gang signs. The disposition report filed on
January 8, 2013, said that appellant had acknowledged he was a member of the
1 Appellant was arrested in 2011 for robbery and conspiracy to commit
robbery of a woman on a bus, but the matter was ultimately dismissed without a
declaration of wardship.

-- 2 of 12 --

3
“Sunnydale” or “Up the Hill” gang.
On December 17, 2012, a third wardship petition alleged that appellant carried
a loaded firearm (Pen. Code, § 25850, subd. (a)) (count 1), carried a concealed
firearm on his person (Pen. Code, § 25400, subd. (a)(2)) (count 2), and possessed
methamphetamine while armed with a loaded gun (Health & Saf. Code, § 11370.1,
subd. (a)) (count 3). On December 19, appellant admitted committing criminal
threats (count 1 in the original petition), and both weapons allegations (counts 1 and
2 in the third petition), in exchange for dismissal of the second petition and
remaining counts in the first and third petitions. At a contested dispositional hearing
on January 28, 2013, the juvenile court declared appellant a ward of the court and
placed him in the care and custody of the probation department, to be committed to
the six-month program at Log Cabin Ranch (LCRS).
B. 2013–2014 Probation Violations
A progress review of appellant’s performance at LCRS in April 2013 noted
his mother’s concern about his “affiliat[ion]” with “the TRE-4 gang.” While at
LCRS, appellant and several others were alleged to have tampered with another
minor’s water bottle by urinating in it. Based on this incident, appellant was
expelled from the LCRS program. On June 17, 2013, a notice of probation
violation (Welf. & Inst. Code, § 777) alleged that appellant was terminated from
LCRS. At disposition on July 12, the court sustained the probation violation,
continued appellant as a ward, and committed him to the care and custody of the
probation department, for placement in a group home. On July 30, appellant was
placed at Mary’s Help group home (Mary’s Help) in Vallejo.
On February 7, 2014, appellant absconded from Mary’s Help. Shortly
thereafter, he was terminated from Mary’s Help and a warrant issued for his arrest.
On June 13, appellant, age 16, was taken into custody on the outstanding arrest
warrant and the warrant was recalled. At a placement hearing (Welf. & Inst. Code,
§ 737) on July 1, the juvenile court reinstated appellant on probation and ordered that

-- 3 of 12 --

4
he be placed at Boy’s Republic in Southern California.
On November 26, 2014, appellant graduated high school and successfully
completed Boy’s Republic. On December 5, the juvenile court placed appellant on
home probation with various terms and conditions, including GPS monitoring.
C. 2015 Petitions and Probation Violations
On March 10, 2015, plainclothes officers arrested appellant and several others on
gun possession charges. A search of the vehicle they were riding in yielded three
handguns, including one that appeared to be an assault rifle with an extended magazine.
Photos found on cell phones confiscated in the arrest showed appellant “in possession of
a firearm or something that looked like a firearm/weapon, could be used as a
firearm/weapon, or could reasonably be considered to be a firearm/weapon.” On March
13, 2015, a new notice of probation violation alleged that appellant was in possession of a
firearm. The trial court released appellant on home detention, with orders not to possess
any weapons.
On July 3, 2015, a probation search of appellant took place at his home. A
Glock 27 .40 caliber firearm was found on his person. A few days later, the District
Attorney filed a fourth wardship petition, this time alleging that appellant, age 17,
carried a concealed stolen firearm (Pen. Code, § 25400, subds. (a)(2) & (c)(2)) (count
1), carried a concealed firearm where he was not the registered owner and the gun
had a large capacity magazine (Pen. Code, § 25400, subds. (a)(2) & (c)(6)(A) & (B))
(count 2), carried a stolen, loaded firearm (Pen. Code, § 25850, subds. (a) & (c)(2))
(count 3), carried a loaded firearm where he was not the registered owner (Pen.
Code, § 25850, subds. (a) & (c)(6)) (count 4), possessed a firearm as a minor (Pen.
Code, § 29610) (count 5), and possessed a large capacity magazine (Pen. Code,
§ 32310, subd. (a)) (count 6).
Prior to the hearing on these charges, his probation officer submitted a report
stating that because R.F. “has a high level of criminal sophistication[,] . . . Out of
Home Placement should not be considered as an option in that [appellant] has many

-- 4 of 12 --

5
weapon related circumstances around his detention which elevates the risk level in a
residential unlocked facility.” Due to gang threats against him, the probation officer
stated, “[he] is not safe in the community nor is he safe for the community at this
juncture of his life.” The probation officer then recommended as follows: “With the
advancement in technology through the internet, social media has become an
instrument to facilitate crimes, and to communicate with victims, witnesses and
accomplices/associates. Access to [appellant’s] digital electronic devices and social
media accounts may be necessary to check for continued criminality. Therefore it is
recommended that the court impose the disclosure of passwords for digital/electronic
devices . . . [¶] . . . [and that] any digital or electronic device in [appellant’s]
possession or control is subject to search at any time by a probation officer and law
enforcement officers/peace officers on demand without warrants or suspicion.”
On July 16, 2015, appellant admitted counts 2 and 6 in exchange for dismissal
of the remaining counts and the pending probation violation petition. At a contested
dispositional hearing in August 2015, appellant’s probation officer testified that
appellant was believed to be a member of the “Tray 4” gang from Sunnydale
Housing. The court continued appellant, by then age 18, as a ward of the court,
reinstated probation, and committed him to a year in juvenile hall. The court also
imposed various terms and conditions of probation on appellant, including gang
terms, a warrantless search condition, and, on the recommendation of his probation
officer, in light of his history, the following electronic search conditions: (1) “That
[appellant] disclose passwords for digital devices in his possession or control and for
his social media accounts to probation officer and law enforcement officers/peace
officers on demand without warrants or suspicion”; and (2) “That any digital or
electronic device in [appellant’s] possession or control is subject to search at any
time by a probation officer and law enforcement officer/peace officers on demand
without warrants or suspicion.”
Appellant filed a timely notice of appeal.

-- 5 of 12 --

6
II. DISCUSSION
Appellant challenges the electronic search conditions imposed on him on the
grounds that they are (1) not related to his past or future criminality and therefore violate
the rule of People v. Lent (1975) 15 Cal.3d 481 (Lent), and (2) they infringe on his
constitutional rights of privacy and expression and are unconstitutionally overbroad, both
on their face and as applied.
Juvenile courts have broad discretion in establishing conditions of probation.
“The court may impose ‘any . . . 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.’ ” (In re Antonio R. (2000) 78 Cal.App.4th 937, 940, citing Welf. & Inst.
Code, § 730, subd. (b).) We review the juvenile court’s probation conditions for abuse of
discretion. (In re P.A. (2012) 211 Cal.App.4th 23, 33.)
The juvenile court’s discretion is not unlimited, however. The Supreme Court in
Lent 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 . . . .’ ” (Lent, supra, 15 Cal.3d at p. 486.) The Lent test applies as well to
conditions of juvenile probation. (In re D.G. (2010) 187 Cal.App.4th 47, 52–53.) The
test is framed in the conjunctive, so all three criteria must be absent before a condition of
probation will be deemed unreasonable under Lent. (People v. Olguin (2008) 45 Cal.4th
375, 379 (Olguin).) Accordingly, a condition of probation that forbids or requires
conduct which 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. (Lent,
supra, 15 Cal.3d at p. 486; In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.)
Even where the Lent test is satisfied, “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 unconstitutionally overbroad.” (In

-- 6 of 12 --

7
re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “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 defendant’s constitutional rights—bearing in
mind, of course, that perfection in such matters is impossible, and that practical necessity
will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Under
Sheena K., we are empowered to entertain facial overbreadth challenges to the language
of a probation condition, whether or not objection was interposed in the trial court, and
our review is de novo. (Sheena K., supra, 40 Cal.4th at pp. 886–889.)
The courts of appeal have published a welter of recent opinions addressing
constitutional challenges to electronic search conditions in juvenile probation cases under
Lent and Sheena K.2 These cases are not entirely uniform in their approach, but in
general most have upheld the challenged electronic search conditions under Lent, while
many have invoked Sheena K. and either imposed narrowing language on appeal or
remanded with instructions that the juvenile court should craft narrowing language.
2 Every division of this court has weighed in, with the Supreme Court granting
review in five of the cases (In re Ricardo P. (2015) 241 Cal.App.4th 676, 679–680,
review granted February 17, 2016, S230923 [Division One]; In re Alejandro R. (2015)
243 Cal.App.4th 556, review granted and briefing deferred March 9, 2016, S232240
[Division One]; In re P.O. (2016) 246 Cal.App.4th 288 [Division One]; In re Erica R.
(2015) 240 Cal.App.4th 907, 911 [Division Two]; In re Mark C. (2016) 244 Cal.App.4th
520, review granted and briefing deferred April 13, 2016, S232849 [Division Two]; In re
Malik J. (2015) 240 Cal.App.4th 896 [Division Three]; In re J.B. (2015) 242 Cal.App.4th
749 [Division Three]; In re A.S. (2016) 245 Cal.App.4th 758, 761, review granted and
briefing deferred May 25, 2016, S233932 [Division Four]; In re J.E. (2016) 1
Cal.App.5th 795 [Division Four]; In re Patrick F. (2015) 242 Cal.App.4th 104, review
granted and briefing deferred February 17, 2016, S231428 [Division Five]), as have a
number of our colleagues around the state (In re George F. (2016) 248 Cal.App.4th 734,
review granted and briefing deferred Sept. 14, 2016, appellant’s motion to dismiss
granted Nov. 9, 2016, S236397 [Fourth District, Division One]; People v. Nachbar
(2016) 3 Cal.App.5th 1122, review granted and briefing deferred Dec. 14, 2016 [Fourth
District, Division One]; People v. Ebertowski (2014) 228 Cal.App.4th 1170 [Sixth
District]; People v. Appleton (2016) 245 Cal.App.4th 717 [Sixth District].)

-- 7 of 12 --

8
There is a broad consensus that the technology employed in carrying out monitoring and
surveillance pursuant to these types of type of search conditions raises novel issues, as
noted in a related context by the United States Supreme Court in Riley v. California
(2014) 573 U.S.__, 134 S.Ct. 2473, 2485 (“Cell phones . . . place vast quantities of
personal information literally in the hands of individuals. A search of the information on
a cell phone bears little resemblance to . . . [a] brief physical search” incident to arrest.).
We share the concerns about privacy that many of our colleagues have expressed in
addressing electronic search clauses, whether the issue is analyzed under Lent prong three
or as a matter of overbreadth under Sheena K.
Content available on a probationer’s electronic device or social media Web site
may include intimate messages and photos, posts from other Web sites which may
disclose the probationer’s or the third party’s political and religious affiliations,
memberships in clubs or organizations, and other sensitive personal information having
nothing to do with drug use or forbidden associations. Once a minor has been forced to
divulge his or her passwords to a probation or police officer, the intrusion upon the
minor’s privacy rights is massive, though much of the information revealed would
undoubtedly be unrelated to legitimate monitoring by the probation department. Data
stored on electronic devices or on social media sites that may reflect criminal behavior or
forbidden associations is so intermingled with other entirely unrelated private information
that it is not technologically possible to segregate out the protected information from that
legitimately open to view by government authorities.
But we also recognize that these privacy concerns must be balanced against a
strong countervailing state interest in effective juvenile probation supervision. That state
interest is two-fold. First, juvenile probation serves to protect the public by monitoring
wards for future criminality. Second, juvenile wardships are designed to provide
maximum opportunity for minors to turn their lives around, while satisfying the vital
need to give the probation department the tools it needs to help maximize this
rehabilitative goal. (See In re Jose C. (2009) 45 Cal.4th 534, 555 [“The purposes of

-- 8 of 12 --

9
juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor,
and to protect the public from criminal conduct. [Citations.] The preservation of the
safety and welfare of a state’s citizenry is foremost among its government’s interests, and
it is squarely within the police power to seek to rehabilitate those who have committed
misdeeds while protecting the populace from further misconduct.”].)
To further these goals, “the juvenile court has statutory authority to order
delinquent wards to receive ‘care, treatment, and guidance that is consistent with their
best interest, that holds them accountable for their behavior, and that is appropriate for
their circumstances.’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 615.) “All
dispositional orders in a wardship case must take into account the best interests of the
child and the rehabilitative purposes of the juvenile court law.” (In re S.S. (1995) 37
Cal.App.4th 543, 550.) The basis for imposing an electronic search condition in service
of the objectives of juvenile probation will sometimes be manifestly plain, given the
nature of the ward’s criminal record (e.g., a history of violent conduct) or the ward’s
particular rehabilitative needs (e.g., a history of mental illness posing risks to others).
Electronic search conditions ought not to be imposed by rote, but where justified, there
may in some situations be no meaningful alternative to having what amounts to an
electronic window into every corner of a ward’s life, at all times.
Here, the record shows a longstanding history of assaultive conduct, illegal
possession of guns, gang association, and digital images found in his possession showing
appellant displaying guns while in the company of others. Under any of the various
approaches the appellate courts have taken, we have no difficulty rejecting the Lent
arguments appellant advances. On this record, there is a clear connection between the
electronic search conditions imposed here and the need to monitor potential future
criminality of the type appellant has shown a propensity to engage in over the course of a
number of years. We also see no need for Sheena K. narrowing. This is one of those
cases, in our view, where, in the interest of public safety, on top of the always present
rehabilitative interest for wards, the juvenile court was justified in concluding there was

-- 9 of 12 --

10
no meaningful alternative to keeping tabs on this minor in an intensive—and unavoidably
intrusive—way.
III. DISPOSITION
The judgment is affirmed

-- 10 of 12 --

11
_________________________
Streeter, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.

-- 11 of 12 --

12
A146082/In re R.F.

-- 12 of 12 --