Filed 12/30/15
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION ONE


In re ALEJANDRO R., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,                                        A144398

        Plaintiff and Respondent,                  (Alameda County
v.                                                 Super. Ct. No. SJ11017351)
ALEJANDRO R.,
        Defendant and Appellant.


        Appellant Alejandro R., a minor, admitted to being an accessory to illegal drug
sales and was found to be a ward of the court. In addition to typical conditions of
probation, the juvenile court imposed a condition requiring appellant to submit to the
warrantless search of his electronic devices and his use of social media. Appellant
challenges the condition as substantively invalid and unconstitutionally overbroad. We
conclude, following our recent decision in In re Ricardo P. (2015) 241 Cal.App.4th 676
(Ricardo P.), that the condition, while valid under People v. Lent (1975) 15 Cal.3d 481
(Lent), superseded on other grounds as stated in People v. Wheeler (1992) 4 Cal.4th 284,
290–292, is overbroad as imposed by the juvenile court. We affirm the juvenile’s court
order with appropriate modification of the electronics search condition.
                                    I. BACKGROUND
        Appellant, the subject of a juvenile wardship petition under Welfare and
Institutions Code section 602, subdivision (a), admitted a misdemeanor charge of being
an accessory after the fact to the transportation and distribution of marijuana, a violation
of Health and Safety Code section 11360, subdivision (a). The police report from
appellant’s arrest stated he approached undercover officers outside a concert venue and
“said something similar to, ‘yo $10 bucks for a blunt.’ ” When an officer expressed
interest, appellant directed him to another person seated nearby, from whom the officer
purchased two marijuana cigarettes. At the time of his detention, appellant was in
possession of 0.4 grams of presumed cocaine and two pills of presumed
methamphetamine.
       At the dispositional hearing, the juvenile court found appellant to be a ward of the
court, but allowed him to remain at home. In addition to typical conditions of juvenile
probation, the court imposed the following two conditions, which appellant challenges in
this appeal: appellant must (1) “submit to a search of your . . . electronics day or night
and passwords day or night at the request of a Probation Officer or peace officer” and
(2) “attend school on a regular basis.”1 When appellant’s counsel objected generally to
the electronics search condition, the court explained, addressing appellant, “As in this
case with drugs, I find it’s very important [and] the best way of supervising individuals
like yourself [who] have drug cases, that we check your electronics, because that’s where
you buy and sell and very often boast with photos about your drug usage and drug
paraphernalia.”
                                    II. DISCUSSION
       We summarized the law applicable to juvenile probation conditions in In re D.G.
(2010) 187 Cal.App.4th 47 (D.G.): “Under Welfare and Institutions Code section 730,
subdivision (b), the juvenile court, in placing a ward on probation, ‘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.’ (See In re Sheena K. (2007) 40 Cal.4th 875, 889.) Consistent with this
mandate, the juvenile court is recognized as having ‘ “broad discretion in formulating

       1
        In the minute order from the hearing, these conditions were transcribed as,
“Submit . . . any . . . property, electronic including passwords under your control to
search by Probation Officer or peace office[r] with or without a search warrant at any
time of day or night” and “Attend school everyday [sic].”


                                              2
conditions of probation” ’ (In re Tyrell J. (1994) 8 Cal.4th 68, 81 (Tyrell J.), disapproved
on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 139), and the juvenile court’s
imposition of any particular probation condition is reviewed for abuse of discretion. (In
re Walter P. (2009) 170 Cal.App.4th 95, 100.)
       “While adult criminal courts are also said to have ‘broad discretion’ in formulating
conditions of probation (People v. Carbajal (1995) 10 Cal.4th 1114, 1120), the legal
standards governing the two types of conditions are not identical. Because wards are
thought to be more in need of guidance and supervision than adults and have more
circumscribed constitutional rights, and because the juvenile court stands in the shoes of a
parent when it asserts jurisdiction over a minor, juvenile conditions ‘may be broader than
those pertaining to adult offenders.’ (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.)
In Tyrell J., the Supreme Court explained another aspect of the difference: ‘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.” [Citation.] . . .
[¶] 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. [Citations.] “ ‘Even conditions which infringe on
constitutional rights may not be invalid if tailored specifically to meet the needs of the
juvenile. . . .’ ” ’ (Tyrell J., supra, 8 Cal.4th at pp. 81–82.)
       “While broader than that of an adult criminal court, the juvenile court’s discretion
in formulating probation conditions is not unlimited. (In re Walter P., supra,
170 Cal.App.4th at p. 100.) Despite the differences between the two types of probation,
it is consistently held that juvenile probation conditions must be judged by the same
three-part standard applied to adult probation conditions under Lent, supra, 15 Cal.3d
481: ‘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 . . . .” [Citation.] Conversely, a condition of probation which requires


                                                3
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.’ (Id. at
p. 486, fn. omitted; see, e.g., In re Luis F. (2009) 177 Cal.App.4th 176, 188; [citations].)”
(D.G., supra, 187 Cal.App.4th at pp. 52–53.)
       In addition to satisfying the Lent test, juvenile probation conditions that infringe
constitutionally protected rights must be clearly stated and no more restrictive than
necessary to achieve their purpose. “Under the void for vagueness constitutional
limitation, ‘[a]n order must be sufficiently precise for the probationer to know what is
required of him, and for the court to determine whether the condition has been violated.’
[Citations.] In addition, the overbreadth doctrine requires that 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.] ‘If available
alternative means exist which are less violative of the constitutional right and are
narrowly drawn so as to correlate more closely with the purposes contemplated, those
alternatives should be used . . . .’ ” (In re Luis F., supra, 177 Cal.App.4th at p. 189.)
A. Electronics Search Condition
       Appellant contends the electronics search condition violates Penal Code
section 632, is invalid under Lent, and is unconstitutionally overbroad. In Ricardo P., we
addressed the same arguments regarding an identical electronics search condition and
affirmed the imposition of a narrowed version of the condition. For the reasons
explained below, we find this case materially indistinguishable from Ricardo P., and we
therefore follow that decision.2
       The appellant in Ricardo P. admitted felony violations of the burglary statute after
breaking into two homes. (Ricardo P., supra, 241 Cal.App.4th at p. 680.) The juvenile
court imposed an identical electronics search condition to that imposed here and
articulated the same drug-related rationale. (Id. at pp. 680–681.)


       2
         The reasoning of Ricardo P. was recently adopted by Division Five of this court
in In re Patrick F. (2015) 242 Cal.App.4th 104, 109.


                                              4
       The Ricardo P. court initially determined the meaning of the condition and
concluded the court’s reference to “electronics” included not only electronic devices and
the data contained on the devices, but also “electronic accounts, such as social media
accounts, that, while not stored on electronic devices, can be accessed through them.”
(Ricardo P., supra, 241 Cal.App.4th at p. 682.) The court based this construction on the
juvenile court’s reference, as here, to monitoring the appellant’s activity on such
accounts. (Ibid.) We understand the electronics search condition at issue here to have
the same meaning.
       1. Penal Code Section 632
       Addressing the appellant’s claim that the electronic search condition violates
Penal Code section 632, subdivision (a), which prohibits eavesdropping on confidential
electronic communications, Ricardo P. found the claim forfeited because the appellant
had not raised section 632 below. The decision also concluded the appellant lacked
standing to raise the claim, since it was based on the argument the condition “might
invade the privacy of the people with whom he communicates, not his own.”
(Ricardo P., supra, 241 Cal.App.4th at p. 683.) On both grounds, that reasoning applies
here, since appellant did not raise section 632 below and now asserts only the privacy
interests of third parties.
       2. Validity Under Lent
       Appellant’s claim the electronics search condition is invalid under Lent was also
addressed in Ricardo P. As noted, a probation condition is invalid under Lent if it has no
relationship to the crime committed, relates to conduct that is not criminal, and is not
reasonably related to future criminality; all three elements must be present before a
condition will be found invalid. (Ricardo P., supra, 241 Cal.App.4th at p. 684.) As to
the first Lent element, Ricardo P. found that “nothing in the record permit[ed] an
inference that electronics played a role in [the appellant’s] crimes.” (Id. at p. 684.)
Accordingly, the court concluded the electronics search condition satisfied the first
element of Lent, in that it had no demonstrated relationship to the offenses at issue.
(Ricardo P., at p. 685.) Here, as in Ricardo P., there was no evidence appellant used


                                              5
electronic devices or social media in the commission of the crime. Similarly, Ricardo P.
found the second element of Lent satisfied, since the use of electronic devices is not
illegal. (Ricardo P., at p. 685.)
       Ricardo P. found the electronics search condition valid under Lent, however, on
the ground it was reasonably related to future criminality. In doing so, the court followed
People v. Olguin (2008) 45 Cal.4th 375 (Olguin), in which the Supreme Court considered
the validity of a probation condition requiring an adult probationer to inform the
probation officer of the presence of pets in his residence. The court noted that it was
important for a probation officer conducting a warrantless search of the probationer’s
residence, which was permitted by a separate probation condition, to know whether he or
she would encounter pets at the residence. It concluded a probation condition “that
enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably
related to future criminality.’ ” (Id. at pp. 380–381.) Because an electronics search
condition is “reasonably related to enabling the effective supervision of [the appellant’s]
compliance with his other probation conditions,” the Ricardo P. court held, it was valid
under the reasoning of Olguin. (Ricardo P., supra, 241 Cal.App.4th at pp. 686–687.)
The court expressly rejected the reasoning of In re Erica R. (2015) 240 Cal.App.4th 907,
which, without considering Olguin, concluded a similar electronics search condition
imposed in similar circumstances did not reasonably relate to future criminality.
(Erica R., at pp. 913–914; Ricardo P., at p. 687.)
       Division Three of this court has recently issued a decision rejecting the conclusion
in Ricardo P. that an electronics search condition satisfies the third element of Lent
because it permits monitoring of a juvenile’s compliance with other probation conditions.
(In re J.B. (2015) 242 Cal.App.4th 749 (J.B.).) While acknowledging the rationale of
Olguin, J.B. noted that, in discussing the third element of Lent, the Olguin court stated
that “ ‘the relevant test is reasonableness.’ ” (J.B., at p. 757, quoting Olguin, supra,
45 Cal.4th at p. 383.) Applying this test, J.B. found the electronics search condition to be
unreasonable because (1) there was no showing of a connection between the



                                              6
probationer’s use of electronic devices and his past or potential future criminal activity
and (2) the condition burdened the minor’s privacy interests. (Id. at pp. 757–758.)
       We are unpersuaded by the analysis of J.B. for two reasons. First, in adopting a
generic test of reasonableness, J.B. disregarded the actual holding of Olguin. In that case,
the Supreme Court’s conclusion that the probation condition reasonably related to future
criminal conduct was unrelated to any connection between the condition and the
probationer’s past or future crimes. On the contrary, the probationer’s keeping of pets
was entirely unrelated to any crime he did or likely would commit. Rather, Olguin
concluded a probation condition is reasonably related to future criminal conduct if it
permits more effective monitoring of the probationer’s compliance with other probation
conditions.3 (Olguin, supra, 45 Cal.4th at pp. 380–381.) Nothing more was required.
       Second, contrary to the impression created by J.B., Olguin did not announce a
generic test of reasonableness for probation conditions. While all juvenile probation
conditions must, of course, be “reasonable” (Welf. & Inst. Code, § 730, sub. (b)), the
three-part test of Lent and the constitutional tests of vagueness and overbreadth have been
developed to determine whether this overarching standard has been met. Nothing in
Olguin suggests the court intended to supplant these tests with a subjective determination
of reasonableness. While Olguin did mention reasonableness, that reference arose in the
context of a discussion of the burden imposed on the probationer by compliance with the
probation condition. It was this burden that the court held must be “reasonable,” rather
than the probation condition itself. (Olguin, supra, 45 Cal.4th at pp. 383–384.) Under
the portion of Olguin cited by J.B., therefore, the relevant burden for measuring the
reasonableness of a probation condition is the practical burden of complying with the
condition, not the extent to which the condition infringes the probationer’s rights.


       3
        This was consistent with the Supreme Court’s earlier approval of the imposition
of a warrantless search condition on juveniles in Tyrell J., which found the considerable
infringement of civil rights represented by such a condition to be justified because the
condition served “the important goal of deterring future misconduct.” (Tyrell J., supra,
8 Cal.4th at p. 87.)


                                              7
       In rejecting the rationale of J.B., we do not mean to minimize the invasion of
privacy inherent in the electronics search condition. Cell phones and social media have
become the primary means for young people to communicate. Although an electronics
search condition thereby effects a substantial invasion of constitutionally protected
interests, it is not clearly greater than that created by other juvenile probation conditions
approved in the past. Foremost among these is the condition permitting warrantless
searches of a juvenile’s person, property, and residence, a commonly imposed condition
whose validity has been accepted for decades, despite its potential for invasion of the
minor’s most private matters. (See In re Tyrell J., supra, 8 Cal.4th 68, 87 (Tyrell J.); In
re Binh L. (1992) 5 Cal.App.4th 194, 203–204 (Binh L.).) Other approved conditions
include a ban on the juvenile’s association with persons disapproved by the probation
officer or other adults (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018); a curfew
(Welf. & Inst. Code, § 729.2, subd. (c); In re Laylah K. (1991) 229 Cal.App.3d 1496,
1499, 1502, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962,
fn. 2); GPS monitoring of the juvenile’s location (In re A.M. (2013) 220 Cal.App.4th
1494, 1500–1501); “blood, breath, or urine” testing at the discretion of the probation
officer (In re P.A. (2012) 211 Cal.App.4th 23, 32, 40); a ban on tattoos (In re Victor L.
(2010) 182 Cal.App.4th 902, 927–930); and forced administration of psychotropic
medication (In re Luis F., supra, 177 Cal.App.4th at p. 192). Division Two of this court
has even approved probation conditions entirely forbidding the juvenile from possession
of a cell phone and use of the Internet. (Victor L., at pp. 920–921, 923–927.) While a
wholesale ban on cell phone and Internet use represents less of an infringement of a
minor’s privacy rights than the electronics search condition, that is only because the ban
strips the minor of any opportunity for private communications by these means. An
invasion of privacy interests is thereby avoided by an equal or greater infringement on
liberty interests.
       Courts have been more willing to approve intrusive probation conditions in
juvenile cases in part because even law-abiding children have a more limited right to
privacy than adults. (In re Carmen M. (2006) 141 Cal.App.4th 478, 492–493.) “[A]s a


                                              8
general matter, the right to privacy of an unemancipated minor is more limited than that
of an adult. An unemancipated minor has limited privacy rights as against the state.”
(American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 394.) When a child
is declared a ward, these rights are permissibly limited even further because the child has
engaged in criminal behavior, and the juvenile court acts in parens patriae, thus
“assum[ing] the parents’ authority to limit the minor’s freedom of action.” (In re Eric J.
(1979) 25 Cal.3d 522, 530; see Leroy T. v. Workmen’s Comp. Appeals Bd. (1974)
12 Cal.3d 434, 439 [juvenile system is “fundamentally different from the adult penal
system” because it is “designed to place the state in the status of in loco parentis”].) As
diligent parents recognize, monitoring social media communications is an important tool
in tracking the activities of a wayward minor. While acknowledging parents have greater
leeway than the courts in regulating a minor’s conduct (In re Byron B., supra,
119 Cal.App.4th at p. 1017), we conclude the adoption of a well-tailored electronics
search condition is similarly a permissible, and potentially critical, tool in helping the
juvenile court, acting in loco parentis, to determine whether the ward is complying with
the terms of his or her probation.
       As J.B. rightly notes (J.B., supra, 242 Cal.App.4th at pp. 757–758.), another
distinction between the imposition of adult and juvenile probation conditions is that
“[u]nlike a parolee, a minor cannot be made subject to an automatic [probation]
condition. . . . [E]very juvenile probation condition must be made to fit the
circumstances and the minor.” (Binh L., supra, 5 Cal.App.4th at p. 203; see Tyrell J.,
supra, 8 Cal.4th at p. 82 [probation conditions infringing on a minor’s constitutional
rights must be tailored specifically to meet the needs of the minor].) Contrary to the
suggestion of J.B., however, this principle does not limit the imposition of an electronics
search condition to cases in which the juvenile’s criminal violation involved cell phones
or digital communications. In the present case, for example, appellant was found to be in
possession of illegal drugs and a member of a drug sales operation. Although there was
no evidence he used electronics in connection with these violations, that does not mean
appellant’s electronic devices and social media use are irrelevant to the rehabilitative and


                                              9
reformative purpose of the juvenile court. As the court stated, in its experience, cell
phones and social media are used to further, and even to celebrate, juvenile drug use.
The court imposed the electronics search condition in an attempt to ensure appellant did
not use electronics and social media for such purposes. Given our deferential standard of
review, we are unwilling to hold that the condition was so unrelated to the juvenile
court’s goal of preventing appellant from selling and consuming illegal drugs as to
constitute a manifest abuse of discretion.
       3. Overbreadth
       While we conclude the electronics 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 875, 890.) Although
finding the electronics search condition valid under Lent, the Ricardo P. court concluded
it could not uphold the condition in the form imposed by the juvenile court because it
failed this test.4 (Ricardo P., supra, 241 Cal.App.4th at p. 687.) As the court explained,
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.” (Id. at p. 689.) 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,” the court concluded the condition was overbroad. (Id. at pp. 689–690.) The
court held the juvenile court should “limit searches to sources of electronic information
that [are] reasonably likely to reveal whether [the appellant] is boasting about his drug
use or otherwise involved with drugs, such as text and voicemail messages, photographs,
e-mails, and social media accounts. Such a limitation would prohibit searches of data

       4
        As in Ricardo P., appellant here did not object on grounds of overbreadth below,
but the Attorney General does not argue forfeiture. We therefore consider the argument.
(Ricardo P., supra, 241 Cal.App.4th at pp. 688–689.)


                                             10
found in applications and Web sites involving matters like personal finance or medical
care.” (Id. at p. 690.)5
       The electronics search condition imposed by the juvenile court here suffers from
the same deficiency. To satisfy the court’s concern that appellant might use a cell phone
and social media to communicate about drug use and sales, the scope of the electronics
search condition can and 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 appellant is boasting about drug use
or otherwise involved with drugs, such as text messages, voicemail messages,
photographs, e-mail accounts, and social media accounts. While appellant 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 appellant are password
protected, he is not required to disclose those passwords.
B. School Attendance Condition
       Appellant also contends the probation condition requiring him to attend school is
unconstitutionally vague and overbroad because the two formulations of the condition,
requiring him to attend “on a regular basis” and “every day,” do not make allowance for
excused absences. In imposing the condition, the juvenile court told appellant, “With
regards to school, attend school on a regular basis. Obey all school rules and regulations.
Do not leave the school campus during school hours without permission of school
officials or the Probation Officer.” In determining the constitutionality of the condition,



       5
         The court rejected the appellant’s argument that no condition was necessary
because the other probation conditions constituted less restrictive means to achieve the
same end, explaining, “in our view, a condition authorizing warrantless searches of some
of [the appellant’s] cell phone data and electronic accounts allows for monitoring of his
compliance with his other probation conditions in a way that a standard search condition
simply cannot.” (Ricardo P., supra, 241 Cal.App.4th at p. 690.)


                                             11
we may consider the clarification provided by these additional comments. (In re
Sheena K., supra, 40 Cal.4th at p. 891.)
         In interpreting a probation condition, it “should be given ‘the meaning that would
appear to a reasonable, objective reader.’ ” (People v. Olguin, supra, 45 Cal.4th 375,
382.) “Also, the probation condition should be evaluated in its context, and only
reasonable specificity is required.” (People v. Forrest (2015) 237 Cal.App.4th 1074,
1080.)
         We find the condition to be neither vague nor overbroad. The juvenile court’s
condition is plainly a shorthand reference to the statutorily prescribed condition of
Welfare and Institutions Code section 729.2, subdivision (a), which ordinarily must be
imposed on all minors found to be wards under sections 601 and 602 and permitted to
remain with their family: “Require the minor to attend a school program approved by the
probation officer without absence.” (Welf. & Inst. Code, § 729.2, subd. (a).) The
“reasonable, objective meaning” of the court’s requirement that appellant attend school
“on a regular basis” or “every day” and the statutory requirement “without absence,”
evaluated in the context of juvenile school attendance, is that appellant must be at school
when it is in session unless he has a reason recognized as valid by the school for failing to
be present. That is what is expected of all students, and nothing in the court’s condition
suggests it was intended to impose additional or different requirements from those
applicable to other students. The court’s explanation confirms this commonsense
meaning. Appellant’s proposal of an alternative meaning that is “belied by both context
and common sense” does not make the condition either vague or overbroad. (In re
Ramon M. (2009) 178 Cal.App.4th 665, 677.)
                                    III. DISPOSITION
         The search condition of the probation order, which currently reads, “Submit
person and any vehicle, room or property, electronic including passwords under your
control to search by Probation Officer or peace office [sic] with or without a search
warrant at any time of day or night,” is modified to read: “Submit your person and any
vehicle, room, or property under your control to a search by the probation officer or a


                                              12
peace officer, with or without a search warrant, at any time of the day or night. Submit
all electronic devices under your control to a search of any medium of communication
reasonably likely to reveal whether you are boasting about your 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.”
       As so modified, the judgment is affirmed.




                                                 _________________________
                                                 Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.




                                            13
Trial Court: Alameda County Superior Court

Trial Judge: Hon. Leopoldo E. Dorado

Counsel:

Mark R. Wilson, Jonathan Soglin and Paula Rudman, under appointment by the Court of
Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence,
Assistant Attorneys General, Donna M. Provenzano and Joan Killeen, Deputy Attorneys
General for Plaintiff and Respondent.




                                         14
