In re L.H. CA1/4 ( 2016 )

Filed 3/2/16 In re L.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 L.H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A144397
v.
L.H., (Alameda County
Super. Ct. No. SJ14023222)
Defendant and Appellant.
INTRODUCTION
L.H., a juvenile adjudicated a ward under Welfare and Institutions Code1 section
602, appeals from the disposition order on grounds that (1) the condition of probation
requiring him to disclose passwords to his electronic devices was not related to his past or
future criminality and violates the rule of People v. Lent (1975) 15 Cal.3d 481 (Lent),
infringes on privacy and expression and is unconstitutionally overbroad, and poses a risk
of illegal eavesdropping under the California Invasion of Privacy Act (Pen. Code, § 630
et seq.) ; (2) probation conditions requiring him to “be of good citizenship and good
conduct” and “be of good behavior and perform well” at school and on the job are vague
and overbroad ; and (3) the court erred by setting a maximum term of confinement
because L.H. was not removed from parental custody.
1
Undesignated statutory references are to the Welfare and Institutions Code.
1
At the outset we confront an issue that has recently divided our colleagues in this
District, namely whether a condition of juvenile probation requiring a delinquent minor
to “submit to . . . a search of [his] . . . electronics including passwords, day or night at the
request of a Probation Officer or peace officer” is a valid condition of probation. After
reviewing five recently published cases, all of which found the probation condition
invalid as written, we agree with our colleagues that the condition cannot stand as
imposed. We conclude that the probation condition here is invalid under the first and
second prongs of Lent, supra, 15 Cal.3d 48. We do not deem it necessary to proceed to
the third prong of Lent or to address the question of overbreadth. All of the cases we
shall discuss have invalidated an identical search clause on one or the other of those
grounds. At least on this record, the condition is not justified as imposed and must be
narrowed if any type of electronic search condition is to be imposed. We therefore
remand for further development of the record and a narrowing modification, if the court
chooses to reimpose an electronic search condition.
Turning to the remaining issues, we find the claim under the California Invasion of
Privacy Act was forfeited by failure to raise it in the court below. We hold the language
“be of good citizenship and good conduct” and “be of good behavior and perform well”
on the job is unconstitutionally vague and must be stricken. We find clerical error in the
inclusion of a maximum term of confinement in the jurisdiction/disposition minute order
and conclude that sentence must be stricken from the February 9, 2015 minute order. In
all other respects we affirm the disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
On May 6, 2014, L.H., then age 15, was observed by a police officer as he
approached a residential address in Alameda, retrieved a package from the front porch
that had been delivered by United Parcel Service, and ran away with the package. Upon
being detained by the officer, L.H. admitted he had taken the package. The officer
searched the minor’s backpack and found a bottle of vodka with a Safeway security tab
still affixed. L.H. admitted he had taken the bottle from Safeway. Both the package and
the bottle of vodka were returned to their owners.
2
On July 9, 2014, the district attorney filed a section 602 petition alleging that L.H.
committed two misdemeanors of concealing stolen property (Pen. Code, § 496) and petty
theft (Pen. Code, § 484). The juvenile court was initially hesitant to grant L.H. informal
probation due to his poor grades. Although he had been disciplined at school on occasion
for being under the influence of marijuana, he was not perceived to have a “large
problem” with marijuana. On October 14, 2014, in part because he had made a
“significant improvement in his academics,” the court placed L.H. on informal probation
under section 654.2 without making a wardship finding. By December 15, 2014,
however, the court noted there were again some “grade problems.” The judge again
admonished L.H., “I’m going to require all passing classes before I grant 654.2.” On
January 22, 2015, the juvenile court set aside informal probation in response to a progress
report showing that L.H. had violated curfew and recently used marijuana.
On February 9, 2015, the court denied the minor’s motion for reinstatement of
informal probation. L.H. admitted the petty theft allegation in exchange for a negotiated
dismissal of the receiving count “with facts and restitution open.” Before the court
accepted the minor’s admission, his own counsel advised him that the “maximum
possible consequence for this admission is up to six months in a locked facility.” In
accordance with the negotiated disposition, the district attorney dismissed count one. The
court then adjudged L.H. a ward of the court under section 602. L.H. waived time and
referral for a social study, preferring to be placed on formal probation the same day. The
court ordered L.H.’s care, custody, control, and conduct to be under the supervision of
the probation officer and placed him in his mother’s home with numerous conditions of
probation.
Among the probation conditions was the following: “You must submit to . . . a
search of your person, any containers you may have or own, your vehicle, residence,
electronics including passwords, day or night at the request of a Probation Officer or
peace officer.” Counsel for L.H. objected in court and in a written memorandum to the
search condition insofar as it included “electronics including passwords” on grounds it
did not have “anything to do with the events here, nothing in the reports the Court has
3
received including informal probation in [the minor]’s case.” Trial counsel cited Lent,
supra, 15 Cal.3d 481, but did not argue the condition was unconstitutionally overbroad,
as does counsel on appeal.
Responding to the objection, the court made clear its reason for imposing the
condition applied to all minors with drug issues: “With regards to the Search Clause, it’s
very clear that minors use the Internet to obtain drugs, and they also use the Internet to
brag and post photos and statements about themselves using drugs and possession of drug
paraphernalia. It’s the only way we can properly monitor our minors with drug issues.”
The court therefore refused to remove the challenged language from the search condition.
This timely appeal followed.
DISCUSSION
I. The Electronic Search Condition
L.H. challenges the electronic search clause on three grounds: (1) it is not related
to his past or future criminality and therefore violates the rule of Lent, supra, 15 Cal.3d at
page 486, (2) it infringes on constitutional rights of privacy and expression and is
unconstitutionally overbroad, and (3) it poses a risk of illegal eavesdropping under the
California Invasion of Privacy Act (Pen. Code, § 630 et seq.).2
A. The State of the Law in this District with Respect to the Electronic Search
Condition
This district has recently been called upon to resolve a number of appeals raising
the same issue raised by L.H.. Five published opinions in the last few months have
considered an identical or nearly identical electronic search condition:3 In re Mark C.
2
The issue under the California Invasion of Privacy Act (Pen. Code, § 630, et
seq.) was forfeited by failure to object on that basis in the trial court. Defense counsel
made no objection during the proceedings on that basis, and his written opposition to the
motion also omitted reference to the Act. (In re Alejandro R. (2015) 243 Cal.App.4th
556, 563 (Alejandro R.).)
3
Two more cases were published but rendered unciteable when review was
granted: In re Ricardo P.(2015) 241 Cal.App.4th 676, review granted February 17, 2016,
S230923, and In re Patrick F. (2015) 242 Cal.App.4th 104, review granted and briefing
deferred February 17, 2016, S231428. (See Cal. Rules of Court, rule 8.1105(e)(1).) The
4
(2016) 244 Cal.App.4th 520 (Mark C.) [Division Two]; Alejandro R., supra, 243
Cal.App.4th 556 (Alejandro R.) (pet. rev. filed Feb. 2, 2016 in S232240) [Division One];
In re J.B. (2015) 242 Cal.App.4th 749 (J.B.) [Division Three]; In re Malik J. (2015) 240
Cal.App.4th 896 (Malik J.) [Division Three]; and In re Erica R. (2015) 240 Cal.App.4th
907 (Erica R.) [Division Two].4 All five cases have concluded that similar conditions
were invalid as imposed, although they followed different routes to that conclusion,
resulting in different dispositions: three have stricken the condition without modification
(Erica R., J.B. and Mark C.), and two have modified it in an effort to narrow its scope,
though not both in the same way (Malik J. and Alejandro R.).
The cases, considered together, address the validity of the electronic search
condition both under the Lent test, and under the constitutional overbreadth doctrine. We
address first their resolution of the issue on the first basis.
1. Validity of the electronic search condition under the Lent test
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 § 730, subd.
(b).) A juvenile probation condition may be more intrusive or more onerous than an adult
condition precisely because juveniles are more in need of guidance and supervision than
Supreme Court’s order in Patrick F. described the issue in Ricardo P. as follows: “Did
the trial court err imposing an ‘electronics search condition’ on minor as a condition of
his probation when it had no relationship to the crimes he committed but was justified on
appeal as reasonably related to future criminality under People v. Olguin (2008) 45
Cal.4th 375 because it would facilitate his supervision?”
4
In Erica R., J.B., Alejandro R., and Mark C. the electronic search conditions of
probation were also imposed by the same judge who imposed the condition on L.H., and
his explanation for its necessity was similar in each of the cases: minors frequently use
social media to “brag about their marijuana usage or drug usage, particularly their
marijuana usage, by posting on the Internet, showing pictures of themselves with
paraphernalia, or smoking marijuana.” (Erica R., supra, 240 Cal.App.4th at p. 910; see
Mark C., supra, 244 Cal.App.4th at pp. 520, 529; Alejandro R., supra, 243 Cal.App.4th at
pp. 556, 561; J.B., supra, 242 Cal.App.4th at pp. 749, 753.)
5
adults and their constitutional rights are more circumscribed than the rights of adults.
(Alejandro R., supra, 243 Cal.App.4th at p. 566; accord, In re Victor L. (2010) 182
Cal.App.4th 902, 910 (Victor L.).) The youthful offender is presumed to be more
malleable and amenable to the development of better habits, so that the state is sometimes
authorized to impose relatively onerous conditions on minors. (Compare In re Luis F.
(2009) 177 Cal.App.4th 176, 189-192 (Luis F.) [upholding condition requiring minor to
take psychotropic medication] with People v. Petty (2013) 213 Cal.App.4th 1410, 1416-
1421 [same division struck similar condition imposed on adult].) “Although the goal of
both types of probation is the rehabilitation of the offender, ‘[j]uvenile probation is not,
as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a
final order for the minor’s reformation and rehabilitation.’ ” (In re Tyrell J. (1994) 8
Cal.4th 68, 81, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.)
“ ‘In light of this difference, 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.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena
K.); see, e.g., Luis F., supra, at p. 189; In re Antonio R., supra, 78 Cal.App.4th at p. 941.)
This rule derives from the court’s role as parens patriae. (In re Frank V. (1991) 233
Cal.App.3d 1232, 1242–1243.) When the juvenile court exercises jurisdiction over a
minor, it “ ‘ “stands in the shoes” ’ ” of the parents, thereby occupying a “ ‘ “unique role
. . . in caring for the minor’s well-being” ’ ” (Erica R., supra, 240 Cal.App.4th at p. 912,
quoting Victor L., supra, at pp. 909–910), subject to our review of any probation
conditions imposed 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
6
test is framed in the conjunctive, so all three criteria must be satisfied 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.)
In Erica R., the first of the cases to be published, the minor had been adjudged a
ward of the court after she was found by a school counselor in possession of 30 to 45
orange pills that tested positive for amphetamine. (Erica R., supra, 240 Cal.App.4th at
p. 910.) Although the counselor believed Erica was selling drugs on campus, an
amended wardship petition alleged, and Erica R. admitted, only misdemeanor possession
of Ecstasy. (Ibid.) Erica R. found “no relationship” between the electronic search
condition and the minor’s misdemeanor possession of Ecstasy and therefore held it failed
the first prong of the Lent test. There was nothing in the record “connect[ing] Erica’s use
of electronic devices or social media to her possession of any illegal substance.” (Id. at
p. 912.) The People argued that “Erica’s cell phone and electronic devices ‘could have
been used to negotiate the sales of the illegal substance,’ ” but the court reasoned that
Erica had admitted only possession, not sale, of Ecstasy, and there was no evidence that
Erica “ever used an electronic device in this way.” (Id. at pp. 912–913.) Because
possession and use of electronic devices is not itself illegal, the electronic search
condition also failed the second Lent criterion. (Id. at p. 913.)
With respect to the third prong, Erica R. acknowledged the juvenile court had
justified the electronic search condition based on “its experience that ‘many juveniles,
many minors, who are involved in drugs tend to post information [on the Internet] about
themselves and drug usage.’ ” (Erica R., supra, 240 Cal.App.4th at p. 913.) But our
colleagues in Division Two found no meaningful link between the probation condition
and the minor’s future criminality and thus found the condition did not meet the third
Lent criterion either. Erica R. reasoned “ ‘[n]ot every probation condition bearing a
remote, attenuated, tangential, or diaphanous connection to future criminal conduct can
7
be considered reasonable.’ ” (Ibid.) Because there was “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,” the link to future criminality was too tenuous to
uphold the probation condition. (Ibid.) “In fact, the record is wholly silent about Erica’s
usage of electronic devices or social media” (id. at p. 913) and Erica’s counsel argued
that she did not even own a cell phone (id. at p. 910). Erica R. struck the probation
condition. (Id. at p. 915.) Because it resolved the issue on Lent grounds, Erica R. did not
address the constitutionality of the condition. (Id. at p. 911.)
In Malik J., supra, 240 Cal.App.4th 896, on the other hand, Division Three found
there was a reasonable connection between an electronic search condition and the minor’s
specific crime under the first prong of Lent. (Id. at pp. 901–902, 904.) Malik had been
on juvenile probation for robbery and violated his probation by robbing in one night, with
one or two companions, three different women near a BART station. (Id. at p. 899.) The
search condition was similar to the one imposed on L.H. (Id. at p. 900.) The People
justified the probation condition based on “Malik’s history of robbing people of their cell
phones and his claim that he does not himself own a cell phone.” (Id. at p. 902.) They
argued the probation condition would allow a probation or police officer to check the
phone to determine whether it had been stolen. (Ibid.) The court recognized “Malik
might use cell phones to coordinate with other offenders, and . . . he had previously
robbed people of their iPhones.” (Id. at p. 905.) For that reason, our colleagues in
Division Three found the condition did not violate Lent because it was valid under the
first prong. (Ibid.; accord, People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173,
1176–1177 [adult electronic search condition valid under first prong of Lent].)
The third prong of Lent―the relationship between the electronic search condition
and the minor’s future criminality―is the one that presents a closer and more difficult
issue, which was addressed in the next case chronologically, J.B., supra, 242 Cal.App.4th
749. J.B. involved facts very similar to our case in that J.B. was declared a ward under
section 602 after he was caught stealing a shirt from a Sears store and was subjected to an
electronic search condition of probation. (Id. at p. 752.) As in this case, the offense
8
leading to J.B.’s wardship did not involve drugs or electronic devices, but J.B. did admit
having used marijuana for two and a half years, he had poor grades, and he had been
“ ‘playing with his cell phone’ ” during an interview with his probation officer. (Id. at p.
753.) Our colleagues in Division Three, applying the third prong of Lent for the first
time, aligned with Erica R. and concluded the electronic search condition was invalid
under Lent, disagreeing with any analysis finding a reasonable relationship to future
criminality. (Id. at pp. 755–759.) As we read the opinion, J.B. did not deny there was
some rational relationship between the electronic search condition and the prevention or
detection of future criminal activity, but it emphasized that the relationship must also be
reasonable. (Id. at p. 757.) J.B. gauged the reasonableness of the relationship of the
condition to future criminality through the lens of the juvenile’s past criminality. (Id. at
pp. 756–757.) It asked, in essence, not simply whether the condition itself would be
reasonably efficacious in preventing future criminality, but whether it could be seen as a
reasonable means for deterring future crime by this particular minor based on the nature
of his past crime. (Id. at p. 757.)
Division One, however, has recently parted company with Erica R. and J.B. at
the third stage of the Lent analysis. In Alejandro R., supra, 243 Cal.App.4th 556, it
disagreed with their analysis and found the third prong of Lent satisfied where the
juvenile admitted a misdemeanor charge of being an accessory after the fact to the
transportation and distribution of marijuana, a drug-related crime more serious than that
committed by L.H.. (Id. at pp. 560, 567.) Alejandro “was found to be in possession of
illegal drugs and a member of a drug sales operation.” (Id. at p. 567.) The condition
failed the first prong of Lent because “there was no evidence [Alejandro] used electronic
devices or social media in the commission of the crime.” (Id. at p. 564; see id. at p. 567.)
But moving to the third prong, Alejandro R. took issue with Erica R., and
especially with J.B., insofar as they concluded the electronic search condition was not
reasonably related to the minor’s future criminality. (Alejandro R., supra, 243
Cal.App.4th at pp. 564–567.) Alejandro R. held instead the condition was related to
future criminality because Alejandro might, as the trial court feared, use his phone in
9
connection with marijuana distribution. (Id. at p. 567.) Moreover, the condition would
assist the probation officer in monitoring Alejandro’s compliance with the conditions of
his probation. The electronic search condition was valid under Lent as a means by which
law enforcement could check the minor’s Internet postings to see if he was “boasting”
about drug activity or was otherwise involved with drugs. (Id. at p. 568.) Alejandro R.
therefore held the electronic search condition met the third requirement of Lent in that it
was reasonably related to the minor’s future criminality. (Id. at pp. 564–567.)
In so holding, Alejandro R. relied chiefly on Olguin, supra, a case involving an
adult probation condition requiring the probationer to “notify his probation officer of the
presence of any pets at [his] place of residence.” (Olguin, supra, 45 Cal.4th at p. 378.)
In that case, our Supreme Court held a probation condition “that enables a probation
officer to supervise his or her charges effectively is . . . ‘reasonably related to future
criminality’ ” and thus passes the Lent test “even if [the] condition . . . has no relationship
to the crime of which a defendant was convicted . . . .” (45 Cal.4th at pp. 380–381.)
According to Alejandro R., the electronic search condition passes the third prong of the
Lent test because it is “ ‘reasonably related to enabling the effective supervision of [the
appellant’s] compliance with his other probation conditions,’ ” thus bringing it within the
ambit of Olguin, supra, 45 Cal.4th 375. (Alejandro R., supra, 243 Cal.App.4th at p. 564;
see id. at p. 560.) In Olguin, although this condition bore no reasonable relationship to
the defendant’s past crime (driving under the influence of alcohol), and although it
applied to all pets “from puppies to guppies,” the Supreme Court concluded it was valid
under Lent because it protected the safety of the probation officer charged with
“supervising [the] probationer’s compliance with specific conditions of probation,” which
required “the ability to make unscheduled visits and to conduct unannounced searches of
the probationer’s residence” to “deter[] future criminality.” (Id. at pp. 380–381, 383.)
By Alejandro R.’s reckoning, Olguin holds it is enough that a condition of probation be
reasonably related to monitoring the probationer for future violations, even if the
defendant’s crime of conviction was unrelated to the condition imposed. (45 Cal.4th at
pp. 378, 380; Alejandro R., at pp. 564–565.) Alejandro R. emphasized the expansive
10
scope of juvenile courts’ supervisory authority over minor probationers and found the
Lent test satisfied without much difficulty. (Id. at pp. 566–567.)
Finally, coming full circle, the most recent published case was Mark C., supra,
244 Cal.App.4th 520, which was authored by the same justice who wrote Erica R. and
reached the same result. Fundamentally, Mark C., like J.B., supra, 242 Cal.App.4th at
pages 757–758, disagreed that Olguin should govern the validity of a probation condition
for a juvenile offender where important privacy interests are infringed by the probation
condition. “We do not read Olguin to hold that every condition that might enable a
probation officer to supervise his or her minor charges more effectively is necessarily
‘reasonably related to future criminality.’ (Olguin, supra, 45 Cal.4th at p. 381.) Such a
reading would effectively eliminate the reasonableness requirement that the court in
Olguin discusses at some length. (Id. at p. 382.) Requiring Mark to copy his probation
officer on all his e-mails, and forward all his postings on social media to his probation
officer might also facilitate his probation officer’s supervision of him, as would requiring
him to wear a body camera. But Olguin no more justifies these hypothetical probation
conditions than the actual electronics search condition in this case.” (Mark C., supra, at
p. 533.) Thus, emphasizing that the supervisorial authority juvenile courts have over
minor probationers, though broad, is not unlimited, Mark C., J.B. and Erica R. gave close
scrutiny to electronic search conditions under the third prong of Lent, and struck these
conditions outright where only tenuously justified by concerns about future criminality.5
(Mark C., supra, at pp. 532-535; J.B., supra, at pp. 755-759; Erica R., supra, 240
Cal.App.4th at pp. 912-915.) As noted, the applicability of Olguin in the present context
is now pending before the Supreme Court. (See fn. 3, ante.)
5
In so doing, Mark C. emphasized that juvenile probationers, unlike adult
probationers, do not have the right to refuse conditions of probation, rather such
conditions are imposed as an ingredient of a final dispositional order. (Mark C., supra, at
pp. 530, 534.) Mark C. emphasized that juvenile conditions of probation are permissible
only if “ ‘ “ ‘ “tailored specifically to meet the needs of the juvenile” ’ ” ’ ” and
concluded, “This restriction has particular application to search conditions imposed on
juveniles.” (Id. at p. 530.)
11
2. Validity of the electronic search condition under the overbreadth doctrine
As explained above, Malik J. was the first case from this district to uphold the
search condition under the Lent test. Division Three then proceeded to an analysis of the
constitutional overbreadth doctrine and concluded, in light of its intrusive nature, the
condition was overbroad and required narrowing. (Malik J., supra, 240 Cal.App.4th at
pp. 902–904.) “Under the overbreadth doctrine, ‘conditions of probation that impinge on
constitutional rights must be tailored carefully and reasonably related to the compelling
state interest in reformation and rehabilitation.’ [Citations.]” (Id. at p. 902; see, e.g.,
Victor L., supra, 182 Cal.App.4th at p. 910.) Malik J. found a “mismatch” in such
tailoring “because the threat of unfettered searches of Malik’s electronic communications
significantly encroaches on his and potentially third parties’ constitutional rights of
privacy and free speech. ‘Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they hold for many
Americans “the privacies of life,” [citation]. The fact that technology now allows an
individual to carry such information in his hand does not make the information any less
worthy of the protection for which the Founders fought.’ ” (Malik J., supra, 240
Cal.App.4th at p. 902, quoting Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473,
2494–2495.)
In view of these significant privacy implications, Malik J. held the electronic
search condition had to be “modified to omit the requirement that Malik turn over
passwords to social media sites and to restrict searches to those electronic devices found
in his custody and control.” (Malik J., supra, 240 Cal.App.4th at p. 902.) But in a twist
not appearing in the other cases, Malik J. focused on whether the content legitimately
accessible to law enforcement was stored on a given device itself, or whether it was
stored remotely, reasoning that “[i]nformation stored in a remote location cannot be
considered in the probationer’s possession nor entirely within his or her control.” (Id. at
p. 903.) Since the probation condition required disclosure of passwords only to
“electronic devices” “within [the minor’s] control,” Division Three construed the
electronic search condition as self-limiting to data stored on the device, and restricted the
12
government’s access to data stored remotely. (Id. at pp. 900, 903-904.) Because
“identifying whether an electronic device is stolen has no relationship to accessing the
content of [the minor’s] social media accounts” (id. at p. 902), Malik J. modified the
condition of probation to allow a search of such electronic devices, so long as they were
not attached to the Internet or a cellular connection (id. at pp. 903, 906).6
Similarly, Alejandro R. concluded the electronic search condition passed the Lent
test and, like Malik J., proceeded to analyze the overbreadth issue. Like Malik J., it also
found the electronic search condition to be unconstitutionally overbroad and held it
required narrowing if it was to survive at all. In both cases, privacy concerns tended to
figure more prominently at the overbreadth stage of the analysis than they did in the Lent
stage. (See Alejandro R., supra, at p. 567 [“the applications and Web sites available
through electronic devices contain information ‘ “about all aspects of a person’s life,”
including financial, medical, romantic, and political’ ”]; Malik J., supra, at p. 902[“unfettered searches of [a minor’s] electronic communications significantly encroaches
on his and potentially third parties’ constitutional rights of privacy and free speech”].)
“Because the probation condition as drawn ‘permits review of all sorts of private
information that is highly unlikely to shed any light on whether [the appellant] is
complying with the other conditions of his probation, drug-related or otherwise,’ ”
Alejandro R. held the condition was overbroad. (Alejandro R., supra, 243 Cal.App.4th at
pp. 567–568.) Accordingly, the court undertook to narrow the condition to bring it
within constitutional bounds. (Id. at p. 568.)
But unlike Malik J., Alejandro R. did not modify the electronic search condition to
ensure the searched devices were disconnected from the Internet. Rather, Alejandro R.
narrowed it to “media of communication reasonably likely to reveal whether appellant is
6
Division Three narrowed the electronic search condition by allowing probation
and police officers to access only “electronic devices in Malik’s custody and control
[and] only after the device has been disabled from any internet or cellular connection and
without utilizing specialized equipment designed to retrieve deleted information that is
not readily accessible to users of the device.” (Malik J., supra, 240 Cal.App.4th at
p. 906.)
13
boasting about drug use or otherwise involved with drugs . . . .” (Alejandro R., supra,
243 Cal.App.4th at p. 568.) Thus, Division One thought the narrowing of the electronic
search condition should be done on the basis of where likely drug evidence or evidence
of forbidden associations might be found, rather than where the data was stored.7
B. We Will Vacate the Electronic Search Probation Condition Imposed On
L.H. And Remand for Further Development of the Record
In terms of the seriousness of the minor’s misconduct, our case is more like Erica
R. and J.B. than Malik J. and Alejandro R. The record in our case contains nothing
indicating a connection between L.H.’s use of marijuana and any electronic device. He
did have two disciplinary incidents at school related to his use of marijuana, he also
tested positive for marijuana in January 2015, and was found in possession of marijuana
on one occasion , but there is no indication he was involved in drug sales.8 There was
also no evidence that L.H. used a cell phone, social media, or the Internet to buy or sell
drugs. Thus, there was even less reason to impose the condition on this minor than there
was in Erica R. The condition was not reasonably related to L.H.’s past criminal
conduct, which amounted to nothing more than petty theft. In light of its close similarity
to J.B., we follow that case in finding the probation condition fails the first prong of the
Lent test. Of course, the probation condition also fails the second prong because
7
Accordingly, Alejandro R. modified the condition to read as follows: the minor
must “[s]ubmit [his] person and any vehicle, room, or property under [his] control to a
search by the probation officer or a peace officer, with or without a search warrant, at any
time of the day or night. Submit all electronic devices under [his] control to a search of
any medium of communication reasonably likely to reveal whether [he is] boasting about
[his] drug use or otherwise involved with drugs, with or without a search warrant, at any
time of the day or night, and provide the probation or peace officer with any passwords
necessary to access the information specified. Such media of communication include text
messages, voicemail messages, photographs, e-mail accounts, and social media
accounts.” (Alejandro R., supra, 243 Cal.App.4th at pp. 569–570.)
8
When L.H. was initially arrested, his companion was in possession of
concentrated cannabis, but there is no indication L.H. possessed any drugs. It was
reported, however, that L.H. was under the influence of marijuana when he was arrested.
14
possession and use of electronic devices is not illegal. (Erica R., supra, 240 Cal.App.4th
at p. 913.)
Having found the probation condition fails to pass the first and second prongs of
Lent, we proceed no further with the analysis. All five of the cases we have discussed
concluded that the condition cannot stand as articulated by the juvenile court. Two
additional cases on this issue are now pending before the Supreme Court (see fn. 3, ante),
Alejandro R. is pending on a petition for review (S232240), and the time has not yet
expired for the filing of a petition for review in Mark C. Given the present unsettled state
of the law, we assume without deciding that the condition as written is invalid under
either the third prong of the Lent test or under the overbreadth doctrine, and will therefore
vacate the condition at issue here, subject to reinstatement upon remand following
additional factual development of the record.
We share some of the concerns about privacy that many of our colleagues have
expressed in the context of both Lent prong three and the Sheena K. issue of narrowing.
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
can be massive, though much of the information revealed would undoubtedly be
unrelated to legitimate monitoring by the probation department. Data stored on
electronic devices or in social media sites that may reflect criminal behavior or forbidden
associations may be 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.
15
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. (In re Jose C. (2009) 45
Cal.4th 534, 555 [“The purposes of 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. [Citation.]” (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). For some wards, in short, there may be no meaningful alternative to having what
amounts to an electronic window into every corner of their lives, at all times. But in the
absence of public safety or officer safety concerns, these conditions ought not to be
imposed routinely.
The record before us is thin. All we know is that L.H. stole a UPS package off of
someone’s porch, shoplifted a bottle of vodka from a store, and had been disciplined at
school for marijuana use and possession. We have no basis to assess the seriousness of
the risk of future criminality by L.H., and there is nothing in the record but the broadest
of generalities to explain why forced turnover of account passwords, in particular, is
required for L.H.’s rehabilitative needs. As a precautionary measure to guard against any
16
worsening of the minor’s involvement with drugs, it was of course fully within the
court’s discretion to put in place an additional, more intensive form of drug monitoring,
but the reasons for employing an electronic search condition to accomplish that—
compared to, say, increased frequency of drug testing—are vague and have no specific
connection to the facts of this case. The juvenile court indicated that “minors use the
Internet to obtain drugs, and they also use the Internet to brag and post photos and
statements about themselves using drugs and possession of drug paraphernalia,” but the
record is bereft of anything to indicate why this particular minor might do any of those
things or why monitoring his behavior on the Internet is “only way” to detect his drug-
related activity.
Equally important, the record here not only contains few details about why an
electronic search condition is justified, it is also silent with respect to what kind of
electronic devices the minor uses, if in fact he uses any such devices at all,9 and if so,
what apps he uses, and how those devices and applications are used by L.H.
Although our colleagues in two of the cases we have discussed have sustained
such conditions under Lent and gone on to resolve overbreadth problems by imposing
modifications on appeal (see Sheena K., supra, 40 Cal.4th at pp. 889–892), we believe it
is inappropriate to take either route here, at least as the record now stands. Before any
decision is made on Lent prong three and, if required, on Sheena K. narrowing,
development of a more robust factual record is necessary, starting with some specifics
around the justification for imposing an electronic search condition in the first place. To
decide either of these issues on the present record would require that we engage in much
speculation about the facts bearing on future criminality, and, if it is necessary to go
further and consider narrowing, about how the scope of permitted electronic search might
best be fitted to the minor’s particular electronic communication usage habits. As a
practical matter, these issues are bound up with one another. Because any saving
9
For a juvenile from an economically disadvantaged background, the answer to
that question could well be that he does not use any because he cannot afford them.
17
modifications should closely track the specific circumstances justifying imposition of the
electronic search condition, thus limiting the scope of permitted search to its justifying
rationale as far as possible, the juvenile court—working with minor’s counsel, and with
the probation department—is best-positioned to assess how any such modifications
should be formulated. We will therefore strike the electronic search condition imposed
on L.H., as it is currently framed, and leave to the juvenile court whether the condition
should be reinstated, with whatever reasonable narrowing modifications it may wish to
adopt after further development of the record.
II. Probation Conditions Requiring “Good Citizenship,” “Good Conduct,”
“Good Behavior,” and Requiring the Minor to “Perform Well” at School and
at Work
L.H. next challenges the conditions of probation insofar as they require him to “be
of good conduct” or “good citizenship and good conduct,” and as part of a condition
requiring him to attend school and his job on time and regularly, that he “be of good
behavior and perform well.” He claims the quoted terms are unconstitutionally vague
and fail to ensure that the minor himself will be able to ascertain what is required of him
and conform his behavior accordingly, and also fail to provide an explicit standard for
those monitoring his compliance, thereby opening the door to subjective enforcement and
the “ ‘ “dangers of arbitrary and discriminatory application.” ’ ” (Sheena K., supra, 40
Cal.4th at p. 890; see Grayned v. City of Rockford (1972) 408 U.S. 104, 108–109.) He
also claims the conditions are overbroad. Because we conclude the terms are in some
respects unconstitutionally vague, we do not address his overbreadth argument.
A. Forfeiture
The People respond that L.H. forfeited this issue by failing to object below and
that the juvenile court explained to L.H. what the challenged language in the conditions
of probation required. An objection to a condition of probation in the trial court is
ordinarily required to preserve that issue for review. Accordingly, People v. Gardineer
(2000) 79 Cal.App.4th 148, 151–152, refused to address a challenge to an “observe good
conduct” condition of probation, finding it waived by failure to object.
18
L.H. argues we should reach the merits of his contentions regardless because,
although conduct-related explanations were provided orally to him by the juvenile court,
he raises now a challenge to the oral and written conditions of probation which added the
specific offending language. The problem with L.H.’s argument with respect to the
“good conduct” condition is that it was initially imposed orally, and defense counsel
failed to object. Had he objected, the court might have explained the conduct
requirement in more detail or might have eliminated the challenged language. L.H.
contends, however, that we should review the written probation conditions on their face
under the rule that probation conditions, unconstitutional on their face and presenting a
pure question of law, may be challenged on appeal despite the failure to object in the trial
court, so long as the alleged error is “capable of correction without reference to the
particular sentencing record developed in the trial court.” (Sheena K., supra, 40 Cal.4th
at pp. 887–888; accord, In re Luis F., supra, 177 Cal.App.4th at p. 181.)
Given the claim of facial invalidity, we exercise our discretion to review the “be of
good citizenship and good conduct” probation condition, in part because we have twice
before suggested to judges of the Alameda County Superior Court that they oversee the
deletion of the “good conduct” condition from the county’s standard forms.10 The court
has not heeded our suggestions. We are mindful that modifying forms of this nature
often takes time and is far more involved than simply making a word processing change,
but we are compelled to reiterate our advice as a respectful reminder.
We also exercise our discretion to review the condition requiring L.H. to “be of
good behavior and perform well” in school and at work. The court did not orally impose
the challenged condition and the court’s minute order does not reflect the complained-of
language. It appears only in a separate written list of “Conditions of Probation and Court
Orders.” Although the written document shows the minor signed a copy, and presumably
received a copy, on the date of the jurisdiction/ disposition hearing, it appears this was
10
In re D.R. (Oct. 28, 2013, A137789) [nonpub. opn.]; In re N.B. (May 21, 2013,
A136160) [nonpub. opn.].
19
not provided to L.H. until after the oral proceedings were concluded. It thus appears
there may not have been an opportunity for his attorney to object to the written
conditions. We therefore address all of L.H.’s arguments relating to conduct and
performance conditions.
B. The “good conduct” condition is unconstitutionally vague and must be
stricken
The challenged language of the probation order “be of good conduct” is very
broad and has been challenged numerous times in this District, oftentimes with success.11
We take judicial notice of nonpublished cases noted in footnotes 10 and 11 not to rely on
their legal analysis as precedent, but to demonstrate the regularity with which the issue
has been litigated in our District. (Evid. Code, §§ 452, 459; cf. Cal. Rules of Court, rule
8.1115.) We find the conjoined phrase “good citizenship” to be equally broad and ill-
defined.
A probation condition is unconstitutionally vague if it is not “ ‘ “sufficiently
precise for the probationer to know what is required of him, and for the court to
determine whether the condition has been violated.” ’ [Citation.] A restriction failing
this test does not give adequate notice—‘fair warning’—of the conduct proscribed.” (In
re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In determining the adequacy of the notice
given, “we are guided by the principles that ‘abstract legal commands must be applied in
a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the
language used must have ‘ “reasonable specificity.” ’ ” (Sheena K., supra, 40 Cal.4th at
p. 890; see generally, In re Kevin F. (2015) 239 Cal.App.4th 351, 357–358.)
11
See, e.g., In re Brandon C. (Feb. 18, 2014, A138960) [nonpub. opn., Division
Two; challenge successful]; In re Adrian B. (Apr. 16, 2013, A131529) [nonpub. opn.,
Division Two; challenge unsuccessful because condition was explained orally]; In re A.V.
(Dec. 12, 2012, A133762) [nonpub. opn., Division Five; challenge unsuccessful because
condition construed as “obey all laws” condition]; In re A.T. (Feb. 21, 2012, A131996)
[nonpub. opn., Division Three; challenge successful]; In re N.R. (Dec. 20, 2011,
A130621) [nonpub. opn., Division Three; challenge successful].
20
With these principles in mind, we conclude that the first probation condition under
scrutiny is impermissibly vague. The condition that L.H. “be of good citizenship and
good conduct” lacks specificity and fails to provide meaningful guidance to L.H. or the
court in determining what conduct is prohibited, and the People have not offered any
suggestions as to what the condition actually requires. They have only argued that the
court gave “comprehensive explanations of the culled phrases . . . challenged on appeal.”
While we agree that the court explained orally what it means to “be of good behavior” at
school, we see nothing in the court’s admonitions clarifying what it means to “be of good
citizenship and good conduct” more generally.
Arguably, the condition serves as a catchall label for other conditions imposed,
such as directives that L.H. obey all laws, obey his parents, attend school, abide by his
curfew, refrain from using drugs or alcohol, stay away from others who use drugs and
alcohol, and the other conduct-related conditions recited above. But since each of the
other conditions was spelled out individually on the “Conditions of Probation and Court
Orders,” adding a separate non-specific catchall for already-imposed specific conditions
is duplicative and unnecessary, and it provides no notice of additional prohibited
behavior. Because it is impermissibly vague and serves no legitimate purpose that we
can discern, the condition instructing L.H. generally to “be of good citizenship and good
conduct” was improperly imposed.
C. The “good behavior and perform well” condition must be stricken as it
applies to the minor’s work, but not as it applies to his school participation
The “good behavior” component of the challenged school and work condition
suffers from the same vagueness concerns present in the “good conduct” condition.
Likewise, the “perform well” language is imprecise and subjective. (See In re Angel J.
(1992) 9 Cal.App.4th 1096, 1101 (Angel J.).) At school, this directive could encompass
more than just grades, such as attendance or participation. Indeed, even a probation
condition requiring the minor to maintain “satisfactory grades” has been held too vague
to be enforced. (Id. at pp. 1101–1102.) The court in Angel J. held that in order to pass
constitutional muster, the term “satisfactory” required a more specific definition. (Id. at
21
p. 1102.) Angel J. defined “satisfactory grades” as passing grades in each graded subject
(i.e., a D or above in an A through F grading system) and modified the condition of
probation accordingly. (Ibid. & fn. 7.)
But we think the court’s detailed oral explanations in this case adequately defined
the terms “good behavior” and “perform well” with respect to school participation so as
to allow the condition to pass constitutional muster. By giving detailed direction for
grades, attendance and more, it gave shape to the vague language contained in the written
probation conditions. We therefore agree with the People that the “be of good behavior
and perform well” condition of probation was adequately explained orally by the judge
insofar as school participation and performance were concerned. Sheena K., supra, 40
Cal.4th at page 891, recognized that “a probation condition that otherwise would be
deemed vague may be constitutional because the juvenile court offered additional oral or
written comments clarifying” its meaning. (Accord, In re Kevin F., supra, 239
Cal.App.4th at p. 358.)
In the present case the court did just that with respect to the challenged condition
as it related to school behavior and performance. Specifically, the juvenile court
instructed L.H. that he is not to be on any campus or school grounds unless enrolled, or
accompanied by an adult, or authorized by the school staff; and he must attend school
“every day on time . . . every class on time, stay through the entirety of every class, do all
. . . homework, and pass all . . . classes.” Additionally, L.H. was told he must “obey all
school rules and regulations,” and he is not to “leave the school campus without
permission of school officials or the Probation Officer.” The court more than once orally
admonished L.H. that his “main focus” should be on “school, school, school,” leaving no
doubt that the court expected him to attend regularly, obey the rules, and attain passing
grades. This same formula for success in school had been driven home by the court from
early on in the proceedings because L.H. had been receiving poor grades (“all Fs and one
D”). L.H. showed significant improvement in school after receiving that advice from the
court. Thus, we infer L.H. understood what was required, and we find the condition as
imposed in this case was not vague or overbroad with respect to the minor’s expected
22
school participation. We do not find it necessary to modify the “be of good behavior and
perform well” clause.
While “be of good behavior and perform well” could be called surplusage in the
context of school performance, given the court’s more specific oral explanation, having
that language embodied in the written conditions of probation (which apparently were
given to L.H.) may serve as a reminder to him that he must not only attend school but
also must do his homework, achieve passing grades, and obey school rules. Accordingly,
we do not deem it necessary to strike the written condition, as that might signal to L.H.
that attendance alone is required, thereby undercutting the court’s supervisory power over
him. Nor do we modify the condition because its scope was defined by the oral
pronouncements. The inclusion of the umbrella phrases “good behavior” and “perform
well” does not offend the constitution. With respect to the “good citizenship and good
conduct” condition, which relates to the minor’s overall behavior and as to which no oral
guidelines were provided, we opt to strike the vague language as unhelpful and
meaningless surplusage. The catchall language in the school attendance and performance
condition is different in that it bears additional meaning by triggering operation of the
orally imposed conditions, which were not otherwise prescribed in writing. Therefore we
conclude the language need not be stricken from the probation condition insofar as school
participation is concerned.
With respect to being of good behavior and performing well at work, on the other
hand, the minor did not receive clarifying instruction. The court’s oral pronouncements
provided no guidance as to how L.H. could “perform well” at a job, which lacks the
structure of the grading system used to define satisfactory performance in Angel J., supra,
9 Cal.App.4th 1096 at page 1102 and footnote 7. Therefore, as applied to work
participation the probation condition remains unacceptably vague and is invalid. The
“good behavior” component is unconstitutionally vague for the same reasons the “be of
good conduct” clause is unconstitutionally vague. The “perform well” component is
vague because standards of performing well vary by work setting and by supervisor.
L.H. was not employed at the time of the hearing, but was seeking employment, and the
23
court’s main advice about work was not to let it interfere with school: “Work is good, and
that’s very important, because it’s a way of getting money, but school is the main focus.
And the nice thing about these [job] programs, they’ll never put you in a work situation
that will in any way make it more difficult to do school. It’s supposed to be a nice
compliment [sic] to school. [¶] So school, school, school.” L.H. was given no standards
by which his behavior on the job would be judged and no explanation of what was
required before the court would consider him to be performing well. The language must
be stricken from the probation condition with respect to work participation. This may be
accomplished simply by striking the words “or job” from the written condition.
III. Maximum Term of Confinement
Finally, L.H. argues that the court erred in setting a maximum term of confinement
because he was not removed from parental custody, and the establishment of a maximum
term of confinement was not only unnecessary, but unauthorized. Section 726,
subdivision (d)(1) provides: “(1) If the minor is removed from the physical custody of
his or her parent or guardian as the result of an order of wardship made pursuant to
Section 602, the order shall specify that the minor may not be held in physical
confinement for a period in excess of the maximum term of imprisonment which could be
imposed upon an adult convicted of the offense or offenses which brought or continued
the minor under the jurisdiction of the juvenile court.” Given the introductory clause,
several cases have held it is improper for a court to set a maximum term of confinement
in a case where the minor is not removed from the parental home. (In re A.C. (2014) 224
Cal.App.4th 590, 592 (A.C.); In re Matthew A. (2008) 165 Cal.App.4th 537, 541
(Matthew A.); In re Ali A.(2006) 139 Cal.App.4th 569, 573–574 (Ali A.).)
In the foregoing cases, the courts agreed that setting such a term at a disposition
hearing is beyond the juvenile court’s statutory authority, but have disagreed whether a
remedy is necessary. As one court noted, the erroneous inclusion of the term has “no
legal effect” and thus causes no prejudice. (Ali A., supra, 139 Cal.App.4th at p. 574.)
Accordingly, the Third District held it was not necessary to order the maximum term of
confinement stricken from the order. (Ibid.)
24
The courts that have provided a remedy have done so for prophylactic reasons.
The Second District, Division Eight, held not only that the statute did not empower
juvenile courts to specify a maximum term if the minor was not being removed from the
parental home, but found that “criticism of this practice in prior opinions without actually
ordering a correction of the disposition seems to have had little effect.” (Matthew A.,
supra, 165 Cal.App.4th at p. 541.) Therefore, the court ordered the statement in the
disposition order stricken. (Ibid.) More recently, the Third District reversed the position
it took in Ali A. and agreed with Matthew A. as to the appropriate disposition. “[T]he
error of including maximum terms in noncustodial orders continues, unnecessarily
depleting the limited resources of the judicial system. To stop this error, and quell the
debate over its effect, we now conclude that where a juvenile court’s order includes a
maximum confinement term for a minor who is not removed from parental custody, the
remedy is to strike the term.” (A.C., supra, 224 Cal.App.4th at p. 592.)
The People rely on In re P.A., supra, 211 Cal.App.4th 23, in which the Fourth
District, Division Two, held it was not error for the court to mention the maximum term
of confinement at a jurisdictional hearing. (Id. at pp. 31–32.) Because “the juvenile
court did not mention a maximum term of confinement at the disposition hearing or in its
dispositional order,” the court found no error and no remedy was necessary. (Ibid.) We
agree that because the court in our case mentioned the maximum term of confinement
only during the plea colloquy at the jurisdictional hearing, there was no judicial error. 12
(Cf. In re M.G. (2014) 228 Cal.App.4th 1268, 1275, fn. 4.)
12
The reporter’s transcript reflects only two mentions of the maximum term of
confinement, both at the jurisdictional phase of the hearing. The defense attorney, not the
judge, first mentioned it. Asked to voir dire his client, defense counsel advised L.H.,
among other things, “The maximum possible consequence for this admission is up to six
months in a locked facility. Do you understand that?” L.H. responded, “Yes.” The
judge thereafter asked L.H. “having all your rights in mind as well as the possible
confinement in a locked facility for up to six months,” whether he admitted or denied the
petty theft allegation of the petition, and L.H. admitted it.
25
The minute order in our case, however, unlike that in In re P.A., supra, does
reflect as one of the court’s orders: “The maximum time the child may be confined in
secure custody for the offenses sustained in the petition before the court is 6 months.”
This appears to have been a clerical error. Because the same written order served as both
a jurisdictional and dispositional order, it should not have included a maximum term of
confinement. Because we remand for other modifications, we will order that sentence
stricken from the minute order under the pragmatic reasoning of A.C., supra, 224
Cal.App.4th at page 592 and Matthew A., supra, 165 Cal.App.4th at page 541.
DISPOSITION
The conditions of probation are modified as follows: (1) by striking the language
“electronic including passwords” from the search condition of probation reflected in the
minute order and the words “electronics and passwords” from the “Conditions of
Probation and Court Orders” (collectively, the “Electronic Search Condition”); (2) by
striking the language “be of good citizenship and good conduct” from the “Conditions of
Probation and Court Orders” each time it appears; (3) by striking the language “or job”
from the condition requiring L.H. to “attend classes or job on time and regularly; be of
good behavior and perform well”; and (4) by striking from the minute order dated
February 9, 2015, the language: “The maximum time the child may be confined in secure
custody for the offenses sustained in the petition before the court is 6 months.” The case
is remanded for fuller development of a record that would support narrowing
modifications to the Electronic Search Condition, should the court decide to reimpose
such a condition. The Electronic Search Condition may be reinstated upon remand,
subject to such modifications. In all other respects the dispositional order is affirmed.
26
_________________________
Streeter, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
A144397/In re L.H.
27