People v. N.F. CA1/2 ( 2021 )

Filed 3/12/21 P. v. N.F. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157676
v.
N.F., (Contra Costa County
Super. Ct. No. J19-00495)
Defendant and Appellant.
At issue in this appeal is whether the electronic search condition
imposed on N.F. as a condition of probation is unreasonable under People v.
Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad as applied.
The Attorney General agrees with N.F. that the condition as written is both
unreasonable and overbroad. We will strike the condition and remand for the
juvenile court to consider whether to impose a narrower electronic search
condition that is consistent with Lent and our Supreme Court’s decision in In
re Ricardo P. (2019) 7 Cal.5th 1113, which was filed after the juvenile court’s
order in this case.
FACTUAL AND PROCEDURAL BACKGROUND
The Sacramento County District Attorney filed a juvenile wardship
petition against N.F. alleging he committed first degree burglary (Pen. Code,
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§ 4591; count 1) on or about May 22, 2018, a serious felony within the
meaning of section 1192.7, subdivision (c); and first degree robbery on or
about July 13, 2018 (§ 212.5; count 2) in concert with others within an
inhabited structure (§ 213, subd. (a)(1)(A)), and that N.F. had been a
principal in a felony in which one or more principals had been armed with a
firearm (§ 12022, subd. (a)). As we shall explain, count 1 was eventually
dismissed.
The July 13, 2018 Incident
We describe the facts relating to the allegations of count 2, which was
subsequently amended and to which N.F. pleaded guilty. Our description is
based on the probation department’s report, which itself drew on police
reports.
On July 13, 2018, at about 6:30 a.m., officers responded to a residence
in Sacramento after a report of a home invasion robbery. Two adults (each 18
years old) and two young children (ages 7 and 2) were in the home. One of
the adults (Daniel) was the older brother of the two young children. Daniel’s
parents had already left for work.
Daniel gave a statement to police. He was asleep in his bed and
awakened when three suspects with hooded sweatshirts and masks started
punching him in the face. They had broken into the house and were going
through his drawers. They “kept asking him where the money was”; he said
he did not know. Daniel was grabbed by the suspects before he could get
away. One of the suspects was armed with a black handgun, which he
pointed at Daniel’s head and “demanded he take them to the money.” Daniel
took them upstairs to his parents’ bedroom and to a locked fireproof box in
the closet, which the three suspects grabbed, along with a sewing kit. Daniel
1 All further statutory references are to the Penal Code.
2
said the box contained about $20,000 in cash and $50,000 in jewelry,
including diamonds and gold.
The other 18-year-old in the house was a family friend who had been
asleep in a bedroom when she heard Daniel screaming downstairs. She saw
his face bloodied, with one suspect holding him and another pointing a gun at
him. She went to the parents’ bedroom where the young children were. The
probation officer’s report continues:
“She then saw those two suspects and a third suspect, walk Daniel
upstairs and enter the master bedroom, with the suspect with the gun telling
Daniel, ‘I’ll shoot, I’ll shoot.’ While the suspect with the gun stood nearby, the
other two suspects walked Daniel to the closet. She said the suspect with the
gun told her he wasn’t going to hurt her, and when she asked if she could
take the children to her room, he let her. She stated she did not hear any
talking between Daniel and the suspects. She waited until Daniel came into
her room after the suspects had left, and she called the police. She mentioned
Daniel had sold his Camaro car the day before for $25,000 cash, and he had
taken a photo of himself holding the money to his head like a phone. Then he
had posted the photo on Instagram, while bragging about all the money he
had made.”
The seven-year-old victim told law enforcement that he heard his
brother call the suspects by name.
Home security videos appeared to show the suspects arriving in a red
Dodge van or SUV just before the incident; a witness and other security
videos showed the three suspects running back to the vehicle after the
incident.
A few days later, Daniel’s mother told law enforcement that one of the
suspects was named “Maurice.” Daniel was reinterviewed by law
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enforcement (Detective Elliott) on August 1. The probation reports states:
“He said he wanted to clarify the suspects had been going through his
drawers, before they woke him up and started hitting him. He acknowledged
having posted a photo before the incident on Instagram and Snapchat. He
mentioned he was on ‘ankle’ with a pending case of his own, and he did not
really want to talk about the incident. He repeated several times he did not
want to press charges, and he stated he did not want to ‘give up any other
names,’ as it was ‘not worth the risk.’
“He then said he did know a Maurice, who had just been arrested with
an old friend of his, who was very familiar with his parent’s house. He the[n]
stated he knew it was Maurice who had been in the house and he knew
Detective Elliott knew the other suspects, who he referred to as brothers
named M[.] and A[.][2] He also mentioned hearing ‘bits and pieces,’ including
that the driver of the suspects had been suspect [M.’s] sister. He then stated
Maurice was a friend of his on social media, and he was certain would have
seen the photo he posted, and who knew where he lived and knew his parents
went to work early. Daniel then identified the friend who had been arrested
with Maurice, as Matthew Bamford, born November of 1998. He then
repeated that Matthew knew the layout of the house and knew his parents
left for work early.”
In late September 2018, Maurice Scott was arrested for “Vehicular
Evasion,” and fled to a house on Button Court. While Detective Elliot was at
that address, he saw a red Dodge Journey that appeared to match the vehicle
in the security videos; it was being driven by N.F.’s older half-sister, Anita
Suafai.
2 M. and A. are minors. “M.” is N.F.’s nickname.
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Meanwhile, Detective Elliott had connected N.F. to the Button Court
home and believed N.F. might be the “M[.]” connected to the incident. Daniel
was shown a photo line-up with N.F.’s picture in it, and positively identified
N.F. as having been involved in the offense.
N.F.’s Admission and Factual Basis for Plea
On April 30, 2019, N.F. admitted to felony assault with force likely to
produce great bodily injury (§ 245, subd. (a)(4)) as a lesser included or
reasonably related offense to count 2, and count 1 was dismissed.
As part of the plea agreement, N.F. admitted as the factual basis for his
plea that he “did willfully and unlawfully commit an assault upon Daniel [ ]
by means of force likely to produce great bodily injury,” and that “[p]rior to
July 13th, 2018, accomplices Matthew Bamford and Maurice Scott[3] had
messaged back and forth setting up a robbery, as evidenced in cell phone
extractions. On July 13th, 2018, the minor assisted Scott by entering the
victim’s house, along with Scott and another subject. Outside Anita Suafai
waited in a red Dodge Journey, as captured on the surveillance video.
Throughout the event, Scott had been armed with a firearm. The subjects
confronted the victim in his bedroom and attacked him. Scott forced the
victim at gunpoint to take them to where valuables were hidden. They were
led to another bedroom where a small safe was hidden. Inside that bedroom
were two other household members. The minor, Scott, and the third subject
took the safe and fled to the red Dodge Journey, which is also captured on
surveillance.”
The case was transferred to Contra Costa County, N.F.’s legal
residence, for disposition. There the juvenile court declared N.F. a ward of
At the time of the crime, N.F. was 15 years old; Maurice Scott was 20;
3
Matthew Bamford was about 19.
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the court and committed him to the County’s Youthful Offender Treatment
Program for a maximum period of four years or until age 21, whichever came
first, and imposed various terms of probation. One of those terms was an
electronic search condition. The term required N.F. to “[s]ubmit [his] cell
phone and any other electronic device under [his] control to search of any
medium of communication reasonably likely to reveal whether [he] [is]
complying with the terms of his probation.” The probation term “includes
text messages, voicemail messages, call logs, photographs, email accounts
and other social media accounts and applications such as Snapchat,
Instagram, Facebook, and Kik,” and required N.F. to provide access codes
necessary to conduct the search to the probation officer or any other peace
officer upon request.
Addressing N.F., the court offered two bases for the search condition:
“This is a case in which you worked in concert with other offenders, and it
is—you’d have to have your head buried in the sand to [not] realize that
young people in this day and age communicate with each other by using
electronic devices. It’s likely that events like the ones that were involved in
this case involved that kind of communication. [¶] Furthermore, you will be
ordered to not have any affiliation with people who are not approved of by
your parents or probation, including those who are involved in this crime,
and not have any contact with the victims. And in order to make sure that
you’re obeying those terms of probation, we must check—be able to check
your cell phone and other electronic devices. It is—I cannot imagine a case in
which it’s more appropriate to be able to check on that sort of thing, because
if you don’t check and you become involved with folks like that again, it’s all
over.”
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N.F.’s counsel objected to the electronics search condition at the time it
was imposed.4
N.F. had been interviewed by the probation officer in advance of the
disposition. He was asked about the Instagram photos showing Daniel
“holding a large chunk of cash.” N.F. “initially said he did not know about it,
but as he was asked more specifics about it, he acknowledged having seen the
photo before the robbery. He also said that he knew the two co-responsibles
who were with him in the house . . . had planned to go into the victim’s house
to rob the victim of the large amount of money. He did not seem to want to
deny or admit to being part of that planning.”
This appeal followed.
DISCUSSION
N.F. argues on appeal that the electronics search condition is
unreasonable under Lent and unconstitutionally overbroad as applied to him,
and that it must be stricken. The Attorney General does not disagree. The
parties’ only dispute is whether, as the Attorney General urges, the matter
should be remanded to the juvenile court to consider whether a more
narrowly drawn condition may be imposed. We shall strike the condition and
remand.
A. Applicable Law
We presume the parties are familiar with the Lent factors and the legal
standards that apply to probation conditions in juvenile cases. (See In re
Amber K. (2020) 45 Cal.App.5th 559, 564-565.) Under Lent a condition of
probation is not invalid unless it “ ‘(1) has no relationship to the crime of
4 Therefore we need not address N.F.’s alternative argument based on
ineffective assistance of counsel for failure to adequately object to the search
condition.
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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.) “Conversely, a
condition of probation which requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably related to the crime of which
the defendant was convicted or to future criminality.” (Ibid.)
We review a condition of probation for abuse of discretion. (Ricardo P.,
supra, 7 Cal.5th at p. 1118.)
B. Analysis
Our focus here is on the second and third Lent factors. The Attorney
General concedes and we agree that the search condition does not appear to
relate to the crime of assault to which N.F. pleaded guilty (the first Lent
factor). N.F. admitted to having seen the Snapchat photo of the victim,
Daniel, holding the money, and to knowing of the plan to rob the victim.
However, the probation office report indicates N.F. was equivocal as to
whether he was part of the planning. In connection with planning for the
robbery, N.F.’s co-responsibles had messaged each other, as reflected by cell
phone extraction records, but there were no facts developed in this record
that N.F. had himself used electronic devices to plan or carry out the assault.
In imposing the electronics search condition, the trial court generalized that
since most young people use electronic devices, and N.F. worked in concert
with others who used electronic devices, he must have, too, but the record
does not support that assumption.
As to the third factor, the Attorney General concedes, and again we
agree, that the electronics search condition is not reasonably related to
preventing N.F.’s future criminality (the third Lent factor). The juvenile
court’s stated reason for imposing the electronics search condition was to
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ensure that N.F. was obeying the terms of his probation, specifically, that he
stay away from certain individuals (including his co-responsibles).
Here we are guided by our Supreme Court’s more recent decision in
Ricardo P. in assessing the requirement of reasonable relatedness to future
criminality. In Ricardo P., defendant admitted that he committed two felony
burglaries. The juvenile’s probation conditions included drug testing,
prohibitions on using illegal drugs and alcohol, and prohibitions on
associating with people who Ricardo knew used or possessed illegal drugs.
On top of that, the juvenile court imposed a broad electronics search
condition subjecting his devices to warrantless search any time of the day or
night. The juvenile court’s stated reason for the electronics search condition
was to monitor whether Ricardo was communicating about drugs or with
people associated with drugs, although the language of the search condition
was not so tailored. Our Supreme Court held that in the absence of any
evidence that electronic devices were connected to the commission of the
burglaries or that the juvenile used them in connection with drug use or
other criminal activity, the electronics search condition was invalid because
the burden on the juvenile’s privacy was “substantially disproportionate to
the condition’s goal of monitoring and deterring drug use,” (Ricardo P., supra,
7 Cal.5th at pp. 1119-1120) and therefore not reasonably related to future
criminality. (Id. at p. 1122.) Our Supreme Court emphasized that it was not
categorically invalidating electronic search conditions, but affirmed the Court
of Appeal’s judgment striking the condition and remanding to the juvenile
court for further proceedings. (Id. at pp. 1128-1129.) In so doing, the
Supreme Court in Ricardo P. did not reach the issue whether the record
might support a narrower search condition, or how it might be phrased. (See
id. at p. 1124.)
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The Attorney General concedes, and we agree, that the juvenile court’s
justification for the broad electronics search condition here—to enforce the
stay away order—cannot survive scrutiny under Ricardo P., since “the
burden on the probationer would be disproportionate to the legitimate
interest in effective supervision.” (Ricardo P., supra, 7 Cal.5th at p. 1125.)
In light of our conclusion that the search condition as stated cannot
stand, we need not reach N.F.’s argument on appeal that the search condition
is unconstitutionally overbroad.
We thus conclude that the electronics search condition imposed by the
juvenile court is invalid under Lent and Ricardo P. N.F. argues that this
must end the inquiry, and the case may not be remanded. We disagree. It is
possible that a narrower electronic search condition may be appropriately
imposed, based on facts that are not reflected in this record. (See People v.
Cota (2020) 45 Cal.App.5th 786, 791, review denied May 13, 2020, S261543.)
The juvenile court did not have the benefit of Ricardo P. at the time the
probation terms were initially imposed. We will strike the electronics search
condition without prejudice to the People, who may attempt to demonstrate
on remand with additional facts that a more narrowly tailored electronics
search condition would be proportionate to the burden on N.F.’s privacy. (See
ibid.)
DISPOSITION
The disposition order is affirmed except the electronics search
condition, which is stricken. We remand to the juvenile court to consider
whether to impose a revised electronics search condition that is consistent
with Lent and Ricardo P. and with this opinion.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A157676, People v. N.F.
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