In re Kyle C.

Filed 7/14/17 In re Kyle C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re KYLE C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
KYLE C.,
Defendant and Appellant.
D071318
(Super. Ct. No. J238452)
APPEAL from a judgment of the Superior Court of San Diego County, Roderick
Ward Shelton, Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

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As part of a plea bargain, Kyle C. admitted to committing indecent exposure as to
one minor victim and misdemeanor sexual battery as to another. The juvenile court
adjudged him a ward and imposed several probation conditions. On appeal, he
challenges certain of those conditions relating to his use of electronic devices and
submission of their contents to search. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Kyle was charged in 2016 with five sex offenses stemming from two incidents
(one in June 2014, the other in April 2015) that involved different victims.
June 2014 Incident
In 2015, victim F.R. reported to authorities an incident involving Kyle that
occurred in June 2014, when she was 13 and he was 14. F.R. was sleeping over at Kyle's
house as the guest of his twin sister (Sister). While F.R. was watching television, Kyle
put his hand down her shirt and attempted to climb on top of her. She borrowed a
sweater from Sister to cover herself.
Later, when F.R. went to the bathroom to change clothes, Kyle used his iPod to
take photos of her underneath the bathroom door. He showed her the photos, which were
blurry and indistinct. F.R. also reported "that Kyle takes photos of his penis," which she
saw when she and Sister took his iPod.
Kyle also blocked F.R. as she was on the stairs heading to Sister's bedroom. When
she tried to go around him, he pushed her down onto the stairs and pulled down his pants,
1 Because this appeal follows an admission of guilt, we base our factual summary
on the probation officer's report.

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exposing his penis. When F.R. tried to get away, Kyle got on top of her and pulled her
pants down to her mid-thigh, exposing her buttocks. She thought Kyle was trying to
insert his penis into her vagina. F.R. screamed for help, but no one responded. She was
able to get away and ran to Sister's room, where she told Sister what Kyle had been
doing. Sister apologized for Kyle's behavior, and asked F.R. not to tell Kyle and Sister's
mother (Mother).
At some point that day, Kyle asked F.R. to have sex with him. She refused.
The next morning, after Sister left her bedroom and F.R. remained there visiting a
social media site on a computer, Kyle entered the room and tried to touch her again. F.R.
told him she would tell on him if he didn't stop. Kyle said he didn't care.
When F.R.'s mother picked her up later that morning, F.R. told her about Kyle's
conduct. F.R.'s mother confronted Mother, "who appeared disinterested" and responded
that she (Mother) "had been molested as a child and it was not a big deal." However,
after learning of the later incident (discussed below), Mother stated "that she believed
Kyle had done something to" F.R.
In connection with his conduct toward F.R., Kyle was charged with one count of
committing a lewd and lascivious act by force on a child under 14 (Pen. Code,2 § 288,
subd. (b)(1) (count 1)); two counts of committing lewd and lascivious acts on a child
under 14 (§ 288, subd. (a) (counts 2 and 3)); and one count of misdemeanor sexual
battery (§§ 243.4, subd. (a), 17, subd. (b)(4) (count 5)).
2 Undesignated statutory references are to the Penal Code.

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April 2015 Incident
On April 15, 2015, while authorities were investigating the June 2014 incident
involving F.R., a different victim (15-year-old K.S.) reported to authorities that Kyle
exposed his penis to her. Kyle and K.S. lived in the same apartment complex. As K.S.
was walking toward the complex's laundry room, Kyle opened his apartment's security
screen, called K.S.'s name, and asked her twice to come toward him. When K.S. looked
over, Kyle had his penis exposed. K.S. immediately told her mother, who notified the
police.
Kyle was charged with one count of misdemeanor indecent exposure (§ 314.1
(count 4)) as to K.S.
Police Interviews
Police questioned Kyle. He denied any wrongdoing in connection with F.R.'s
allegations. However, he admitted he showed his penis to K.S. He also "admitted having
urges that he had previously had difficulty controlling," but claimed he was on
medication that gave him "more control."
When a police officer contacted Kyle's father (Father) to notify him of Kyle's
arrest, the officer "was taken aback" by Father's "dismissive and immature" response to
the situation. Father accused F.R. and her mother of fabricating the complaint, and
minimized Kyle's alleged conduct by stating "it's not like what happened is as bad as a lot
of that other stuff going on out there."

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Plea Bargain
Kyle and the prosecutor entered into a plea bargain under which Kyle admitted to
counts 4 and 5 (indecent exposure as to K.S., and misdemeanor sexual battery as to F.R.,
respectively). In exchange, the prosecutor dismissed the remaining charges subject to a
Harvey waiver,3 which allowed the juvenile court to consider the entire background of
the case at the dispositional hearing.
Probation Report
Kyle was interviewed by his probation officer and underwent a psychological
evaluation. He admitted to exposing his penis to K.S., but denied F.R.'s allegations.
However, the probation officer noted that F.R. "was deemed a believable victim by police
and the forensic interviewer and it appears as though her allegations against Kyle are
truthful."
In his interview with the probation officer, Kyle denied viewing pornography.
However, during his psychological evaluation, he admitted "to looking at pornography
but 'not a lot.' "
The psychologist observed the presence of "[s]everal risk factors" for recidivism,
such as Kyle's "reported past urge to expose himself," there being "possibly more than
one victim," and "a high level of familial distress." The probation officer was "concerned
that Kyle may not have been particularly truthful with [the psychologist] with regard to
3 People v. Harvey (1979) 25 Cal.3d 754.

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his sexual impulses." Overall, the psychologist stated that Kyle's risk factors were
"considered to be mild."
According to the probation report, Kyle's parents are separated, but Mother
"live[s] with the family as a roommate." Father "is responsible for the majority of family
responsibilities." The probation officer observed that Father appears "heavily invested in
minimizing" and "excusing" Kyle's behavior.
The probation officer recommended that Kyle be granted probation, subject to
certain conditions regarding (among other things) his use of electronic devices and
submission of their contents to search. He challenges the following conditions in this
appeal (hereafter, the electronic search conditions):
"30. The minor shall not knowingly access the Internet or any
on-line service through use of an electronic device such as a
computer, electronic notepad or cell phone, at any location
(including school) without the prior approval by the probation
officer.
"31. The minor shall provide all passwords and pass phrases to
unlock or unencrypt any file, system, or data of any type, on any
electronic devices, such as a computer, electronic notepad, or cell
phone, to which the minor has access. Minor shall submit those
devices to a search at any time without a warrant by any law
enforcement officer, including a probation officer.
"32. The minor shall provide all passwords or pass phrases to
any [I]internet sites or social media sites, such as Facebook, Twitter,
SnapChat, or Google+, used or accessed by the minor. When asked
by any law enforcement officer, including a probation officer, the
minor shall submit those websites to a search at any time without a
warrant. The minor shall not knowingly clean or delete his or her
Internet browsing activity.
[¶] . . . [¶]

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"35. The minor grants consent to any Internet service provider,
telecommunications provider, or electronic communications service
provider to provide any law enforcement officer, including the
probation officer, with subscriber information and content of any
data related to or held on behalf of the minor during the probationary
period."
Dispositional Hearing
At the dispositional hearing, Kyle's counsel objected that the electronic search
conditions lacked a nexus to Kyle's offenses:
"With regard to the [electronic search conditions], there's absolutely
no nexus to the misdemeanor crimes that Kyle admitted to, to
indicate that such restrictions need to be placed on him with regard
to any social media accounts, with regard to any Internet restrictions
to the degree that probation is asking for. [¶] These incidents
occurred separate from any social media. There[ ] [are] absolutely
no allegations there's been any harassment, sexual harassment or any
communication whatsoever between the victims and Kyle via
electronic communication via the Internet or via any social media
account. So I'd ask the court to strike all those conditions.
[¶] . . . [¶]
"There's absolutely no reason or no indication through the
psychological evaluation . . . , as well as Kyle's own interview with
probation that he looks at pornography, [or] that he is interested in
looking at contacting people online."
The prosecutor responded that the electronic search conditions were appropriate in
light of Kyle's youth and the nature of his offenses:
"[S]ex offenses are such that . . . in order to properly supervise [the]
minor, probation has to be able to have access to the minor's
passwords and access to what the minor is doing online. [¶]
Oftentimes when there's a sex offense, either minors are watching
pornography that's inappropriate or they are contacting underaged
victims online. That is a very common way for people to seek out
inappropriate sexual conduct. So in order for probation to be able to
properly monitor this minor, it is necessary [for] them to have access

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to his passwords as well as to be able to properly monitor what he
does online."
The probation officer agreed with the prosecutor's assessment.
After hearing argument, the juvenile court adjudged Kyle a ward of the court
(Welf. & Inst. Code, § 602) and placed him in Father's custody, subject to supervision by
the probation department and to the electronic search conditions. After imposing the
probation conditions, the court asked Kyle and Father, "[W]hat questions do you have at
this time?" They both responded that they had none.
DISCUSSION
Kyle challenges the electronic search conditions on two grounds. First, he
contends they are not reasonable under the standards enunciated in People v. Lent (1975)
15 Cal.3d 481 (Lent). Second, he contends they are unconstitutionally overbroad. The
Attorney General counters that the conditions are reasonable, and that Kyle forfeited his
constitutional challenge by failing to assert it in the juvenile court. We agree in both
respects.
I. Reasonableness Under Lent
A. Relevant Legal Principles
When a court adjudges a juvenile a ward of the court, the court may impose "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, subd. (b).) The juvenile court has broader discretion over juveniles
than superior courts do over adults because juveniles are " 'more in need of guidance and

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supervision than adults, and because a minor's constitutional rights are more
circumscribed.' " (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) "Thus, ' " 'a
condition of probation that would be unconstitutional or otherwise improper for an adult
probationer may be permissible for a minor under the supervision of the juvenile
court.' " ' " (Ibid.) "In fashioning the conditions of probation, the juvenile court should
consider the minor's entire social history in addition to the circumstances of the crime."
(In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
"Of course, the juvenile court's discretion is not boundless." (In re Victor L.,
supra, 182 Cal.App.4th at p. 910.) Under Lent, " '[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 . . . ." . . . .' " (People v.
Olguin (2008) 45 Cal.4th 375, 379, quoting Lent, supra, 15 Cal.3d at p. 486; see In re
D.G. (2010) 187 Cal.App.4th 47, 52 ["juvenile probation conditions must be judged by
the same three-part standard applied to adult probation conditions under Lent"].) "This
test is conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term." (Olguin, at p. 379.) Thus, "even if a condition of probation
has no relationship to the crime of which a defendant was convicted and involves conduct
that is not itself criminal, the condition is valid as long as the condition is reasonably
related to preventing future criminality." (Id. at p. 380.) This standard is met if "[a]
condition of probation . . . enables a probation officer to supervise his or her charges
effectively . . . ." (Id. at pp. 380-381.)

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"We review the juvenile court's probation conditions for abuse of discretion, and
such discretion will not be disturbed in the absence of manifest abuse." (In re Erica R.
(2015) 240 Cal.App.4th 907, 912.)
B. Analysis
Kyle's challenge to the electronic search conditions fails under the first and third
Lent prongs. As to the first prong (relation to the crime of which he was convicted), the
record shows Kyle used an electronic device (his iPod) to photograph F.R. while she was
changing clothes in the bathroom. Although Kyle was not convicted of photographing
F.R. (he admitted to sexually battering her), he agreed by virtue of his Harvey waiver that
the juvenile court could consider this conduct in determining the appropriate disposition.
A probation condition that allows searches of electronic devices like the one Kyle used to
surreptitiously photograph F.R. relates to the conduct with which Kyle was charged and
which he agreed the juvenile court could consider.
The electronic search conditions are also valid under the third Lent prong because
they reasonably relate to potential future criminality. Kyle has a history of exposing his
penis to nonconsenting minors (both F.R. and K.S.). He also had photographs of his own
penis on his iPod. We are not so naïve as to believe he did not intend to show those
photographs to someone else, either in-person, online, or via text message. Indeed, it is
difficult to imagine any legitimate purpose for which Kyle would have stored
photographs of his own penis on an electronic device. The electronic search conditions
will facilitate preventing Kyle from engaging in behavior reasonably related to future
criminality.

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Kyle also admitted he watched pornography. In this day and age, it is reasonable
to presume he did so using some type of electronic device. The challenged conditions
will facilitate Kyle's rehabilitation by ensuring he does not access or store potentially
illegal materials online.
These connections between electronic devices and Kyle's past and potential future
sexual misconduct distinguish this case from those on which he relies to support the
contention that the electronic search conditions fail under the third Lent prong. (See In
re Erica R., supra, 240 Cal.App.4th at p. 913 ["There is nothing in this record regarding
either the current offense [of misdemeanor drug possession] or [the juvenile]'s social
history that connects her use of electronic devices or social media to illegal drugs. In
fact, the record is wholly silent about [her] usage of electronic devices or social media."];
In re J.B. (2015) 242 Cal.App.4th 749, 752, 756 [where juvenile admitted to shoplifting a
shirt from a department store and to having a history of marijuana usage, "there [was] no
showing of any connection between the minor's use of electronic devices and his past or
potential future criminal activity"].) In any event, our court has upheld similar probation
conditions under the third Lent prong even when the underlying offense did not involve
the use of electronic devices. (See In re George F. (2016) 248 Cal.App.4th 734, 740-
741, review granted Sept. 14, 2016, S236397.)
More generally, the record shows a strong need to closely supervise Kyle. First,
Father, who is his primary caregiver, appears dismissive of the seriousness of Kyle's
repeated sexual misconduct. Second, Kyle misled his probation officer regarding his
pornography-viewing habits. Finally, Kyle's probation officer suspected he was not

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forthcoming with the psychologist about his inability to control his sexual impulses. In
light of Kyle's apparent lack of candor, the electronic search conditions will be necessary
tools in ensuring Kyle's successful rehabilitation.
II. Forfeiture of Constitutional Overbreadth Challenge
In addition to his Lent challenge, Kyle also contends on appeal that the electronic
search conditions are unconstitutionally overbroad. He acknowledges he "did not use the
word '[C]onstitution' " in his objection below, but argues "he implicitly raised the
objection by stating that the conditions bore no relation to his crimes or future
criminality." We disagree. Nothing in the record indicates Kyle intended the wording of
this objection to refer to anything other than Lent's standard for determining
reasonableness. Kyle's failure to raise this constitutional challenge below forfeited it on
appeal.
"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise the claim on
appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena).) This rule applies to
both constitutional and Lent reasonableness challenges. (Sheena, at pp. 880-881; People
v. Welch (1993) 5 Cal.4th 228, 234-238.) " 'The purpose of this rule is to encourage
parties to bring errors to the attention of the trial court, so that they may be corrected.
[Citation.]' " (Sheena, at p. 881.)
In Sheena, the California Supreme Court recognized an exception to the general
forfeiture rule for facial challenges to the constitutionality of probation conditions.
(Sheena, supra, 40 Cal.4th at pp. 887-889.) The court reasoned that whereas a trial court

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is "characteristically . . . in a considerably better position than the Court of Appeal to
review and modify a . . . probation condition that is premised upon the facts and
circumstances of the individual case," a facial challenge that requires only "the review of
abstract and generalized legal concepts" is a "task that is well suited to the role of an
appellate court." (Id. at p. 885.)
Applying these principles, the Sheena court found the defendant had not forfeited
her challenge to a probation condition that she "not 'associate with anyone disapproved of
by probation' " (Sheena, supra, 40 Cal.4th at p. 880) because her challenge presented "a
pure question of law"—whether, in the abstract, such a condition was overbroad without
a knowledge requirement (id. at pp. 885, 888). But the Sheena court issued this caveat:
"We caution, nonetheless, that our conclusion does not apply in
every case in which a probation condition is challenged on a
constitutional ground. As stated by the court in [In re Justin S.
(2001) 93 Cal.App.4th 811], we do not conclude that 'all
constitutional defects in conditions of probation may be raised for
the first time on appeal, since there may be circumstances that do not
present "pure questions of law that can be resolved without reference
to the particular sentencing record developed in the trial court."
[Citation.] In those circumstances, "[t]raditional objection and
waiver principles encourage development of the record and a proper
exercise of discretion in the trial court." [Citation.]' (Justin S.,
supra, 93 Cal.App.4th at p. 815, fn. 2.) We also emphasize that
generally, given a meaningful opportunity, the probationer should
object to a perceived facial constitutional flaw at the time a
probation condition initially is imposed in order to permit the trial
court to consider, and if appropriate in the exercise of its informed
judgment, to effect a correction." (Sheena, supra, 40 Cal.4th at p.
889.)
We find unpersuasive Kyle's assertion that his constitutional challenge presents "a
pure question of law because the facts are undisputed." To the contrary, certain of his

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assertions on appeal—e.g., that "[n]othing in the record suggests [he] used the Internet
or . . . any electronic device for any activities related to his crimes or for viewing
pornography"—demonstrate the existence of factual disputes. (In fact, the record
disproves this particular assertion.) As this illustrates, Kyle's challenge to the electronic
search conditions is not a facial challenge because he does not contend these conditions
will always be overbroad; rather, he contends they are overbroad only as applied to him
under the facts of this case. Therefore, the challenge does not fall within Sheena's facial-
challenge exception to the forfeiture rule.
We reject Kyle's request that we exercise our discretion to consider his
constitutional challenge—despite its forfeiture—due to the claimed need for "[a]ppellate
guidance" in light of the novelty of electronic search conditions. As Kyle acknowledges,
our court has already issued published decisions on the topic (see, e.g., People v.
Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210; In re
George F., supra, 248 Cal.App.4th 734), and the issue is presently under review by the
California Supreme Court (see, e.g., In re Ricardo P. (2016) 241 Cal.App.4th 676, review
granted Feb. 17, 2016, S230923).
Finally, we are mindful—particularly in light of the prevalence of electronic
devices, social media platforms, and online content and storage—of the potential
invasiveness of an electronic search condition that requires disclosure of passwords.
However, because many electronic devices and online platforms are (or can be)
password-protected, it would be virtually impossible without a password-disclosure
requirement to ensure compliance with an otherwise appropriate electronic search

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condition. Moreover, concern regarding the potential invasiveness of electronic search
conditions is ameliorated by the restriction against arbitrary, capricious, or harassing
probation searches. (See People v. Woods (1999) 21 Cal.4th 668, 682; People v.
Cervantes (2002) 103 Cal.App.4th 1404, 1408.)
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.

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