Filed 4/15/16 In re R.M. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


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

THE PEOPLE,                                                          A145731

         Plaintiff and Respondent,                                   (Contra Costa County
v.                                                                   Super. Ct. No. J13-01328)
R.M.,
         Defendant and Appellant.


         Appellant R.M., a minor, was found to have committed burglary and felony
vandalism after he and two other boys entered a school over a weekend. Appellant
contends (1) there was insufficient evidence to support a finding that felony vandalism
occurred or that he was personally involved in the vandalism, (2) the juvenile court erred
in failing to refer him for learning disability testing, and (3) an electronic search
condition was improper and overbroad. We affirm the juvenile court’s findings and
disposition, but we direct entry of a narrower electronic search condition.
                                               I. BACKGROUND
         Appellant was the subject of a juvenile wardship petition, filed December 18,
2013, pursuant to Welfare and Institutions Code section 602, subdivision (a). The
petition alleged the minor had committed second degree commercial burglary
(Pen. Code, §§ 459, 460, subd. (b)), vandalism (Pen. Code, § 594, subd. (b)(1)), and
obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)).
        Appellant was detained by police officers after they discovered him and two other
boys vandalizing a schoolroom on a Sunday. When the officers entered the room,
appellant jumped out the window and ran past two of them stationed outside, but he was
caught after a chase.
        As the school district maintenance manager described the damage, the boys had
essentially ransacked the room. Items were upset, paper and debris had been thrown
around, and feces was placed on the teacher’s desk. The boys dusted desktops with
cleanser and smeared paint, glue, and bleach about. Three or four screens had been
removed from the windows, scattered about the grounds, and “sliced.” At least one and
possibly two computers and a printer had been damaged by being doused with water and
paint or glue. A team of three custodians was brought in to clean up, at a cost estimated
by the court at $428. The district maintenance manager estimated the total damage at
$1,000 to $1,800.
        The juvenile court found true each of the allegations. Following the trial,
appellant was permitted to remain at home pending the disposition, but his conduct
during that time caused the juvenile court to order his detention. During the subsequent
period of detention, appellant was involved in four separate incidents demonstrating a
defiant refusal to follow facility rules.
        The probation department recommended appellant be removed from his parents’
custody to a youth rehabilitation facility for a period of six months. The probation report
recognized appellant was articulate, solicitous of his mother, and well-mannered. His
school attendance, however, was spotty, his grades were poor, and he had episodes of
defiant behavior at school. The probation department found appellant “a low risk level
for re-offense,” but it concluded he would benefit from “an intervention that seeks to
improve his academic achievement and behavior at school.” It was believed the
rehabilitation facility would provide accountability and structure that were missing in his
home.
        Appellant’s counsel asked that he be permitted to remain at home. In a letter to
the court, counsel explained appellant had a history of disruptive behavior in school,


                                              2
growing out of an inability to follow classroom instruction. Appellant reported that he
sometimes confuses letters, words, and numbers, and takes longer to read and write than
his peers because of the extra effort required to focus. Counsel suggested appellant’s
conduct was consistent with attention deficit hyperactivity disorder or another learning
disability and his misconduct arose from frustration with his difficulty in learning.
Counsel proposed that appellant be permitted to remain in his school after being tested
for both a learning disability and any other psychological condition that might require
treatment.
       After receiving testimony from appellant, the juvenile court concluded that
appellant’s home life did not provide sufficient discipline and committed him to a six-
month term at a youth ranch. While recognizing the difficulties faced by appellant at
school, the court believed he would receive the necessary testing and attention at the
ranch school. As part of its dispositional order, the court required appellant to submit his
“cell phone, electronic device, including access codes” to the probation department for
warrantless search.
                                    II. DISCUSSION
       Appellant contends the juvenile court erred (1) in concluding he entered the school
with the intent to inflict the minimum required $400 in damage, (2) failing to order
learning disability testing, and (3) imposing the electronic search condition.
A. Evidence of Burglary
       Appellant first contends the juvenile court was not presented with substantial
evidence to support a finding he entered the school with the intent necessary for
commission of felony vandalism, which requires damage in excess of $400, or that he
personally participated in the vandalism.
       “Our review of the minors’ substantial evidence claim is governed by the same
standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of
the evidence, we must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role


                                              3
on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must
presume in support of the judgment the existence of every fact that the trier of fact could
reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant reversal of the judgment.’ ” (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
       “Any person who enters a building or room with the intent to commit larceny or
any felony is guilty of burglary.” (People v. Castaneda (2011) 51 Cal.4th 1292, 1325.)
Felony vandalism, requires the infliction of damage to real property of $400 or more in
value. (People v. Carrasco (2012) 209 Cal.App.4th 715, 719, disapproved on other
grounds as noted in People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518.) “[I]n showing
that a defendant entered the premises with felonious intent, the [prosecution] can rely
upon reasonable inferences drawn ‘from all of the facts and circumstances disclosed by
the evidence,’ since felonious intent is rarely proven through direct evidence.” (In re
Anthony M. (1981) 116 Cal.App.3d 491, 501.)
       Appellant first contends there was no substantial evidence of damage to the school
of $400 or more. As discussed above, however, the damage to the schoolroom included
removal and slashing of several window screens, pouring of liquid into school
electronics, dusting of desks with cleanser, and smearing of paint, glue, and bleach. The
court, provided with the cost and manpower required to clean the room, calculated over
$400 in cleaning costs. Further, the school district maintenance manager estimated the
total damage at $1,000 to $1,800; that testimony alone would provide substantial
evidence to support the court’s finding, since it was consistent with the magnitude of the
damage described.
       Appellant also contends there was no evidence of either his personal intent in
entering the building or his participation in the vandalism. As noted above, however,
burglary cases typically feature no direct evidence of intent. The juvenile court was
permitted to infer appellant’s intent from his entry into the school on a weekend, when
there was no legitimate reason for him to be on school property, and from the extent of


                                              4
the damage subsequently inflicted. In the absence of contrary evidence, these
circumstances suggest appellant entered the room for the specific purpose of causing the
significant damage inflicted.1 Similarly, in the absence of evidence that in any way
distinguished appellant from the two other boys who accompanied him, the juvenile court
could infer he was a full and willing participant. This inference was strengthened by
appellant’s attempt to escape when confronted by police.
      Defendant cites In re Leanna W. (2004) 120 Cal.App.4th 735 (Leanna W.), in
which the court reversed a finding that a minor committed burglary and vandalism after
she and 30 to 40 acquaintances entered her grandmother’s house without permission and
held a party. (Id. at pp. 738–739.) Several items were later found missing and significant
damage was done to the home, but there was no evidence the minor either stole or caused
the damage. (Id. at p. 740.) Given the lack of evidence about the minor’s conduct in the
home, the court concluded the evidence was insufficient to support burglary or
vandalism. (Id. at pp. 741, 743–744.)
      There are critical differences between the present circumstances and those of
Leanna W. that support a contrary inference here. On the evidence presented in
Leanna W., there was no reason to infer the minor harbored an intent to steal or vandalize
when she entered her grandmother’s home. It was undisputed she intended to host a
party. Further, there were 30 to 40 persons present at the party, any one of whom could
have been responsible for the theft and damage. On this evidence, the court held, an
inference of intent on the minor’s part to steal or vandalize required some evidence she
personally participated in these acts. (Leanna W., supra, 120 Cal.App.4th at p. 741.) In
contrast, there is no basis for concluding appellant and his companions had any purpose
when entering the school other than to commit vandalism. Because it was a Sunday, they
had no legitimate reason for being present. Further, there were only three boys present.



      1
         We reject appellant’s argument it was necessary for him to know the value of the
damage he inflicted. The requirement is that he have the intent to do damage requiring at
least $400 to repair, not that he have the intent to do damage he knows to exceed $400.


                                            5
On this evidence, the juvenile court could properly infer both that appellant harbored the
intent to vandalize when entering the school and that he participated in the vandalism.
B. Disability Testing
       Appellant contends that the juvenile court abused its discretion in failing to direct
he be tested for a learning disability, citing California Standards of Judicial
Administration, section 5.40, which directs the juvenile court to “[t]ake responsibility . . .
to ensure that the child’s educational needs are met.” (Id., § 540(h)(1).) “A child who
comes before the court and is suspected of having exceptional needs or other educational
disabilities should be referred in writing for an assessment to the child’s school principal
or to the school district’s special education office.” (Id., § 540(h)(2).)
       “ ‘ “We review a juvenile court’s commitment decision for abuse of discretion,
indulging all reasonable inferences to support its decision.” [Citation.] “ ‘[D]iscretion is
abused whenever the court exceeds the bounds of all reason, all of the circumstances
being considered.’ ” . . .’ [Citation.] . . . [¶] . . . ‘Minors under the juvenile court’s
jurisdiction must receive the care, treatment, and guidance consistent with their best
interest and the best interest of the public. [Citation.] Additionally, minors who have
committed crimes must receive the care, treatment, and guidance that holds them
accountable for their behavior, is appropriate for their circumstances, and conforms with
the interest of public safety and protection. [Citation.] This guidance may include
punishment that is consistent with the rehabilitative objectives.’ ” (In re Khalid B. (2015)
233 Cal.App.4th 1285, 1288.)
       Appellant does not challenge the portion of the juvenile court’s dispositional order
committing him to the youth ranch, and we find no abuse of discretion in that decision.
Appellant’s conduct in the months prior to the dispositional hearing was increasingly
disruptive, leading to his detention immediately before the hearing. Under these
circumstances, the juvenile court could properly conclude that a period of time apart from
his home, with greater supervision and discipline, would be of some benefit.
       On the evidence presented, we find no additional obligation on the part of the
juvenile court to refer appellant for testing under section 5.40 of the California Standards


                                                6
of Judicial Administration. While the standard states that a child “suspected” of having a
learning disability should be submitted for testing (id., § 540(h)(1)), the basis for that
suspicion must be more than speculation by his or her attorney. In In re Angela M.
(2003) 111 Cal.App.4th 1392, for example, a court-appointed psychologist submitted a
report stating that the minor might suffer from bipolar disorder or attention deficit
hyperactivity disorder. (Id. at p. 1395.) The court remanded the matter to the juvenile
court for a determination of the minor’s “special educational needs,” finding the juvenile
court “was clearly on notice that [the minor] may have special educational needs” as a
result of the testimony of the psychologist. (Id. at p. 1398.)
       No similar expert testimony was presented here. While appellant testified he
“ha[s] difficulties reading a couple words and some letters,” there was no evidence
presented to suggest this might be a symptom of a learning disability requiring special
attention. While appellant’s attorney offered her opinion this might be the case, we
decline to find an obligation on the part of the juvenile court to refer a ward for
educational testing solely on the basis of a suggestion by the ward’s attorney.
C. Electronics Search Condition
       Appellant contends the electronics search condition was invalid 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, and is unconstitutionally overbroad.
       We summarized the law applicable to juvenile probation conditions in In re D.G.
(2010) 187 Cal.App.4th 47: “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.’ [Citation.] Consistent with this mandate, the juvenile court is recognized as
having ‘ “broad discretion in formulating conditions of probation” ’[citation], and the
juvenile court’s imposition of any particular probation condition is reviewed for abuse of
discretion. [Citation.]



                                              7
       “While adult criminal courts are also said to have ‘broad discretion’ in formulating
conditions of probation [citation], 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.’
[Citation.] In [In re Tyrell J. (1994) 8 Cal.4th 68, disapproved on other grounds in In re
Jaime P. (2006) 40 Cal.4th 128, 139], 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 . . . .’ ” ’ [Citation.]
       “While broader than that of an adult criminal court, the juvenile court’s discretion
in formulating probation conditions is not unlimited. [Citation.] 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 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.’ ” (In re D.G., supra, 187 Cal.App.4th at pp. 52–
53.)



                                                8
       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. (2009) 177 Cal.App.4th 176, 189.)
       1. Validity Under Lent
       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. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We agree with
appellant that the first two elements of Lent are satisfied here. There was no evidence to
suggest appellant used an electronic device in the commission of the crime, and the use of
electronic devices is not illegal.
       We conclude, however, that the third element of Lent is not satisfied because the
electronics search condition is reasonably related to future criminality.2 In Olguin, our
state Supreme Court held that a probation condition “that enables a probation officer to
supervise his or her charges effectively is . . . ‘reasonably related to future criminality’ ”
and does not satisfy the third prong required to invalidate a condition under Lent “even if
[the] condition . . . has no relationship to the crime of which a defendant was convicted.”

       2
         In reaching this conclusion, we 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.)


                                               9
(Olguin, supra, 45 Cal.4th at pp. 380–381.) There, the challenged condition required the
defendant, who had been convicted of driving under the influence of alcohol, “to notify
his probation officer of the presence of any pets at [the] defendant’s place of residence.”
(Id. at p. 378.) Acknowledging that the challenged condition “ha[d] no relationship” to
the defendant’s crime and did not involve criminal conduct, the Supreme Court held that
the condition was nevertheless 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.” (Olguin, at pp. 380–381.) Unless our state Supreme Court departs from its
holding in Olguin, we are bound to accept the principle that conditions reasonably related
to enhancing the effective supervision of a probationer are valid under Lent.
       Here, the electronics search condition is reasonably related to enabling the
effective supervision of appellant’s compliance with his other probation conditions.
Among those conditions, the juvenile court prohibited appellant from using marijuana,
the use of which he had acknowledged prior to his detention, and other illegal drugs. The
court also precluded appellant from contact with the boys with whom he vandalized the
school, J.C. and C.G. The electronics search condition enables peace officers to monitor
and enforce compliance with these conditions by, for example, allowing text messages or
Internet activity to be reviewed to assess whether appellant is communicating about drugs
or with people associated with drugs or with his two former companions.
       Division Three of this court has rejected the conclusion 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 probationer’s use of electronic


                                              10
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 this analysis 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, subd. (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 In re 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.” (In re
Tyrell J., supra, 8 Cal.4th at p. 87.)


                                             11
       2. 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. (2007) 40 Cal.4th 875, 890.)
       We agree with appellant that the condition imposed by the juvenile court is
overbroad. As phrased, the condition does not limit the type of data on or accessible
through appellant’s cell phone that may be searched in light of the permissible purposes.
“Mobile application software on a cell phone, or ‘apps,’ offer a range of tools for
managing detailed information about all aspects of a person’s life,” including financial,
medical, romantic, and political. (Riley v. California (2014) ___ U.S. ___, ____
[134 S.Ct. 2473, 2490].) The information that might be contained in appellant’s
electronic accounts is similarly broad. The condition therefore permits review of all sorts
of private information that is highly unlikely to shed any light on whether appellant is
complying with the other conditions of his probation, drug-related or otherwise. As a
result, we conclude that it is not narrowly tailored to accomplish appellant’s
rehabilitation.
The condition must limit searches to sources of electronic information that are reasonably
likely to reveal whether appellant is involved with drugs or associating with the
prohibited individuals. To satisfy the juvenile court’s concerns, 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 involved with drugs or
communicating with the other boys involved in the vandalism, 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


                                             12
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.
                                   III. DISPOSITION
       The search condition of the probation order, which currently reads, “Submit
person, property, any vehicle under minor’s control, cell phone, electronic device,
including access codes, and residence to search and seizure by any peace officer any time
of the day or night with or without a warrant,” 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 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 involved with drugs or
associating with [J.C.] or [C.G.], 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 includes text messages,
voicemail messages, photographs, e-mail accounts, and social media accounts.”
       As so modified, the judgment is affirmed.




                                                  _________________________
                                                  Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.



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