In re K.B.

Filed 8/10/17 In re K.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re K.B., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
K.B.,
Defendant and Appellant.
A149813
(Napa County
Super. Ct. No. JV18248)
Appellant K.B., a minor, admitted to committing assault with a deadly weapon.
K.B. was declared a ward of the court and placed on formal juvenile probation.
Following multiple violations of her probation, the court modified the terms of K.B.’s
probation to include, among other terms, an electronic search condition. K.B. now
appeals from this postdisposition order, arguing the electronic search condition is not
reasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), and is unconstitutionally
overbroad. We conclude the condition is reasonable but overbroad, and we modify it
accordingly.
I. BACKGROUND
Since the age of 11, K.B. has resided in a number of out-of-home placements due
to escalating behavior associated with threats of physical violence against others, self-
harm, lying, and stealing. It is apparent K.B. suffers from various mental health issues,
potentially associated with her traumatic early childhood.

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While attending a youth program, K.B. became angry, located a piece of broken
glass and began cutting herself. When a staff member sought to intervene, she put the
glass against the staff member’s throat and threatened to cut her. In a separate incident,
K.B. broke various windows and damaged a vehicle while angry with another staff
member. The district attorney filed a Welfare and Institutions Code1 section 602 petition
against K.B., alleging felony assault with a deadly weapon and vandalism. K.B. admitted
the felony assault.
The juvenile court subsequently declared K.B. a ward of the court, and she was
placed in a residential treatment program. The terms of K.B.’s probation required her,
among other conditions, to remain in the residential treatment program, obey reasonable
directives from the residential treatment program, probation officers and juvenile hall
staff, and obey all laws.
Shortly thereafter, K.B. absconded from her placement with a peer from the
program and an unknown individual. Upon her arrest by law enforcement, she informed
them she had consumed stolen pain medication and began cutting herself with a broken
CD in her possession. About two months later, K.B. absconded from her placement,
obtained a sharpened stick with barbed wire from a neighbor’s property, and threatened
to kill staff members. Upon the arrival of law enforcement, K.B. began cutting herself.
A few weeks later, K.B. again absconded from her placement, threatened to harm staff
members and then threatened to harm herself. Following this third escape, K.B. was
transported to juvenile hall for violating her probation.
The district attorney filed a supplemental section 602 petition, alleging two counts
of escape from a juvenile facility and violating probation. K.B. admitted one count of
escape and the probation violations. The probation department began looking for a new
placement that would be appropriate given K.B.’s history of violent and aggressive
behavior, coupled with her multiple abscondences. During this time, the juvenile court
1 All statutory references are to the Welfare and Institutions Code.

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continued K.B.’s wardship and ordered K.B. to remain in juvenile hall pending
placement.
Despite the probation department’s efforts to locate a suitable treatment program
to accept K.B., it was unable to do so. The probation department subsequently
recommended that K.B. remain in juvenile hall for six additional months, to be followed
by renewed efforts to locate an appropriate residential placement. The probation officer
also recommended additional terms and conditions of probation, including the electronic
search provision.
At the subsequent hearing on the probation department’s recommendations,
defense counsel argued the proposed electronic search condition was “overly broad.”2 In
response, the probation officer noted, “We have ongoing concerns about the minor, and
when she . . . has been in a placement, her behavior, runaway behavior, she’s
inappropriately contacted numerous people via cell phone and other means.” The
juvenile court accepted the probation department’s recommendation and modified its
order of probation. In doing so, the court imposed an electronic search condition, which
ordered K.B. to submit all electronic devices, including “contents contained on any
device or cloud or internet connected storage,” to a warrantless search at the request of a
probation or law enforcement officer.
II. DISCUSSION
A. The Electronic Search Condition Is Reasonable
K.B. argues the electronic search condition is invalid pursuant to the criteria
established in Lent. Recognizing trial counsel’s failure to object to the condition results
in forfeiture of the argument (In re Sheena K. (2007) 40 Cal.4th 875, 885), K.B. argues
trial counsel was ineffective for failing to do so.3
2 Trial counsel also argued the probation department failed to explain the change
in circumstances justifying the modification of the earlier probation order as required by
section 778. However, K.B. has not asserted this argument on appeal.
3 K.B. also argues her Lent challenge was not waived if an objection would have
been futile. But neither of the cases she cites supports her position. K.B. has not

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“Establishing a claim of ineffective assistance of counsel requires the defendant to
demonstrate (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’
that, but for counsel’s failings, defendant would have obtained a more favorable result.
[Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in
the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid the
distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s
perspective at the time. [Citation.] A court must indulge a strong presumption that
counsel’s acts were within the wide range of reasonable professional assistance.
[Citation.] . . . Nevertheless, deference is not abdication; it cannot shield counsel’s
performance from meaningful scrutiny or automatically validate challenged acts and
omissions.” (People v. Dennis (1998) 17 Cal.4th 468, 540–541.)
The first step in the analysis is to determine whether trial counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms.
In this case, that requires us to determine if the electronic search condition fell within the
parameters of Lent.
The juvenile 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.” (§ 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 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
demonstrated that “the pertinent law later changed so unforeseeably that it is
unreasonable to expect trial counsel to have anticipated the change.” (People v. Turner
(1990) 50 Cal.3d 668, 703.) Nor does this case involve misconduct for which an
objection and admonition could not cure the resulting prejudice. (People v. Perkins
(2003) 109 Cal.App.4th 1562, 1567.)

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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.)
A trial court’s discretion to determine probation conditions, “although broad, is
nonetheless subject to the limitation that [such] conditions must be ‘reasonable.’ ”
(People v. Beal (1997) 60 Cal.App.4th 84, 86.) Under Lent, a condition is valid 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.) “This
test is conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term. [Citations.] As such, 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.” (People v. Olguin (2008) 45 Cal.4th 375, 379–380
(Olguin).) Probation conditions are reviewed for an abuse of discretion. (Id. at p. 379.)
Neither of the first two Lent prongs support the electronic search condition. The
condition has no relationship to K.B.’s offenses because there is no evidence she used
electronic devices or social media in connection with her offenses. Likewise, “the typical
use of electronic devices and of social media is not itself criminal.” (In re Erica R.
(2015) 240 Cal.App.4th 907, 913 (Erica R.).)
Instead, we focus on the third prong under Lent—future criminality. (Lent, supra,
15 Cal.3d at p. 486.) The People contend the condition is reasonable because the
electronic search condition will enable probation officers to “ensure that she is complying
with her probation conditions, particularly the condition that she remain in placement.”
In contrast, K.B. maintains the condition is not reasonably related to future criminality
because there is no reasonable nexus between K.B.’s offenses, the use of the Internet or
social media, and any future criminality.

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We conclude the third prong supports the electronic search condition entered in
this case. In Olguin, our state Supreme Court held a probation condition “that enables a
probation officer to supervise his or her charges effectively is . . . ‘reasonably related to
future criminality,’ ” even if it “has no relationship to the crime of which a defendant was
convicted.” (Olguin, supra, 45 Cal.4th at pp. 380–381.) We adopted this reasoning in In
re P.O. (2016) 246 Cal.App.4th 288 (P.O.), which involved a challenge to a substantially
similar electronic search condition. In that case, we concluded the electronic search
condition “reasonably relates to enabling the effective supervision of [the minor’s]
compliance with other probation conditions. Specifically, the condition enables peace
officers to review [the minor’s] electronic activity for indications that [the minor] has
drugs or is otherwise engaged in activity in violation of his [or her] probation.” (Id. at
p. 295.)
As K.B. notes, a split in authority exists among the divisions of our appellate
district regarding the reasonableness of similar electronic search conditions. (See, e.g.,
Erica R., supra, 240 Cal.App.4th 907 [Division Two striking condition as unreasonable];
In re J.B. (2015) 242 Cal.App.4th 749 [Division Three striking condition as
unreasonable]; In re Malik J. (2015) 240 Cal.App.4th 896 [Division Three holding
condition reasonable but overbroad].) However, we believe recent decisions from this
district, including specifically from this division, have correctly concluded a probation
condition need not relate to the crime for which a defendant was convicted so long as the
condition enables probation officers to effectively supervise their charges. (See, e.g.,
P.O., supra, 246 Cal.App.4th at p. 296.)
Here, the electronic search condition is reasonably related to the effective
supervision of K.B.’s compliance with her probation. Her current probation conditions
prohibit her from leaving placement without prior permission, and require her to obey all
laws and follow all reasonable and proper instructions from the juvenile hall staff and her
probation officer. K.B. has an extensive history of disregarding these conditions,
absconding from placement, threatening violence against others, and harming herself.
The record shows a strong need to closely supervise K.B. because of this history. The

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electronic search condition will allow the probation department to monitor K.B.’s
compliance with her probation by, for example, allowing text messages to be reviewed to
assess whether K.B. is threatening violence or planning to abscond from her placement.
Because the electronic search condition is reasonably related to K.B.’s future
criminality, trial counsel’s representation of K.B. did not fall below an objective standard
of reasonableness when he failed to object to the reasonableness of the condition.
Accordingly, we reject K.B.’s claim that trial counsel was ineffective.
B. The Electronic Search Condition Is Overbroad
While we conclude the electronic search condition’s infringement on privacy
rights is permissible in these circumstances, that does not end the issue. Any “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 re Sheena K., supra, 40 Cal.4th at p. 890.) “ ‘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.’ ” (P.O., supra,
246 Cal.App.4th at p. 297, quoting In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
“Whether a probation condition is unconstitutionally overbroad presents a question of
law reviewed de novo.” (P.O., at p. 297.)
In asserting the electronic search condition is overbroad, K.B. relies on Riley v.
California (2014) ___ U.S. ___ [134 S.Ct. 2473]. We agree with the People that Riley is
distinguishable because the arrestee in that case had not yet been convicted of any crime,
whereas K.B. admitted to committing a crime and is a ward of juvenile court. However,
the discussion in Riley regarding the expansive scope of information available through
electronic devices is applicable. In Riley, the court distinguished a search of a modern
cell phone’s contents from a typical search of other property because of the “broad array
of private information” contained on a cell phone. (Id. at p. 2491.) “Mobile application
software on a cell phone, or ‘apps,’ offer a range of tools for managing detailed

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information about all aspects of a person’s life,” including financial, medical, romantic,
and political. (Id. at p. 2490.)
We agree with K.B. the condition imposed by the juvenile court is overbroad. The
information that may be contained in K.B.’s electronic devices and accounts is similarly
broad. As phrased, the condition does not limit the type of data on or accessible through
K.B.’s electronic devices that may be searched in light of the permissible purposes. The
condition therefore permits review of private information that is highly unlikely to shed
any light on whether K.B. is complying with her probation. As a result, we conclude it is
not narrowly tailored to accomplish K.B.’s rehabilitation.
Nor does In re J.E. (2016) 1 Cal.App.5th 795, which is cited by the People, alter
this analysis. J.E. involved a minor who was extensively involved in gangs, had
significant drug problems, and had an unstable family life. (Id. at p. 798.) As a result,
the court concluded “[a] broad electronic search condition is appropriate for the level of
supervision Minor requires.” (Id. at p. 807.) While K.B. faces challenges stemming from
her past abuse and current mental health issues, we note she appears to have a supportive
family and is not involved in any drug or gang activity.4
The condition must limit searches to sources of electronic information that are
reasonably likely to reveal whether K.B. is complying with the terms of her probation.
To satisfy this scope, the electronic search condition should be limited to programs used
for interpersonal communication. It need not include other accounts and information that
may be contained in or accessed through a cell phone or other electronic device. We
therefore modify the condition to limit the probation officer’s search authority to media
of communication reasonably likely to reveal whether K.B. is in compliance with her
probation, such as text messages, voicemail messages, photographs, e-mail accounts, and
4 The People also argue we should follow In re Q.R. (2017) 7 Cal.App.5th 1231, in
which the Sixth Appellate District refused to limit an electronic search condition to only
the minor’s cell phone. (Id. at pp. 1236–1237.) We agree the electronic search condition
should not be limited to a cell phone, but this does not resolve the broader issue regarding
the scope of information accessible through electronic devices.

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social media accounts. While K.B. must provide the probation officer with passwords
necessary to gain access to these accounts, to the extent any other types of digital
accounts maintained by K.B. are password protected, she is not required to disclose those
passwords.
III. DISPOSITION
The search condition set forth at the October 19, 2016 hearing is affirmed as
modified. The condition is modified to read: “The minor shall submit all electronic
devices under her control to a search by the probation officer or law enforcement of any
medium of communication reasonably likely to reveal whether she is complying with the
terms of her probation, with or without a search warrant, at any time of the day or night,
and provide the probation or law enforcement officer with any passwords, password
patterns, fingerprints, or other information necessary to access the information specified.
Such media of communication includes text messages, voicemail messages, photographs,
e-mail accounts, and social media accounts.”

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_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Dondero, J.
A149813
In re K.B.

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