Filed 4/4/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


In re J.G., a Person Coming            2d Juv. No. B287487
Under the Juvenile Court Law.       (Super. Ct. No. 17JV00334)
                                     (San Luis Obispo County)

THE PEOPLE,

     Plaintiff and Respondent,

v.

J.G.,

     Defendant and Appellant.



             The internet is a source of great knowledge and
communication of ideas. Unfortunately, it can be used for
purposes which are not so wonderful. Here the trial court
required a juvenile to consent to a search of electronic devices as
a correctional tool in the juvenile’s reformation and
rehabilitation. It seems obvious that the juvenile court is trying
to keep the juvenile from accessing information which may kindle
his interest in racial hatred and bigotry. This is such a laudable
goal that it is difficult to see the merit in academic counter
arguments. Resolution of the issue should not turn on an
academic analysis of privacy considerations and the relationship
to terms and conditions of juvenile probation. Rather, the
approach should be a practical one to serve this juvenile who is in
need of monitoring for his own good. This kid is in trouble. He
needs guidance. He does not need to access racial hatred which
is so readily available on the internet.
              J.G. participated in a fist fight at his school and,
when a teacher tried to stop the fight, used a racial slur against
that teacher. He called the teacher a “nigger.” He admitted in
juvenile court that he committed the misdemeanor of disturbing
the peace on school grounds. (Pen. Code, § 415.5, subd. (a)(1).)1
The juvenile court judge granted probation on several conditions,
including the condition that his electronic devices would be
subject to search. Appellant contends the electronic search
condition bears no relationship to his offense and is
unconstitutionally overbroad. We affirm.
                                 Facts
              In March 2017, appellant, who was then 15 years old,
got into a fight on school grounds. A teacher stepped in to stop
the fight. Appellant pushed the teacher away using a racial slur
in the process. Appellant admitted disturbing the peace on school
grounds. The probation report reflected numerous past instances
in which appellant displayed “defiant behavior,” used aggressive
or threatening language, refused to do work, or was disruptive in
class. Appellant also admitted to using marijuana.
              The trial court granted probation on a number of
conditions, including that appellant shall, “Submit any electronic

      All statutory references are to the Penal Code unless
      1


otherwise stated.



                                2
device, used to store or transmit digital information, that you
own, possess or control, to a search of any source of electronic
data identified below, at any time, with or without probable
cause, by a peace officer, and provide the peace officer with any
passwords necessary to access the data source specified.” Sources
of electronic data identified in the probation condition are limited
to: text messages, voicemail messages, call logs, photographs,
email accounts, social media accounts and internet browsing
history. The probation order further provides that the
“rehabilitative and/or supervisory concerns addressed by this
search term include the following: [¶] Drug/alcohol use or drug
sales[,] [¶] Threats of violence toward others.”
                             Contentions
             Appellant contends the electronic search condition
bears no relationship to his offense and is unconstitutionally
overbroad. Respondent contends the condition is reasonable
because it relates to potential future criminality and that the
condition is not overbroad. We note that similar issues regarding
electronic search probation conditions are pending in the
California Supreme Court. (In re Ricardo P. (2015) 241
Cal.App.4th 676, review granted Feb. 7, 2016, S230923; see also
People v. Bryant (2017) 10 Cal.App.5th 396, review granted June
28, 2017, S241937; People v. Nachbar (2016) 3 Cal.App.5th 1122,
review granted Dec. 14, 2016, S238210; In re J.E. (2016) 1
Cal.App.5th 795, review granted Oct. 12, 2016, S236628.)
                         Standard of Review
             We review the court’s imposition of a probation
condition for abuse of discretion. (In re Shaun R. (2010) 188
Cal.App.4th 1129, 1143.) We review constitutional challenges to




                                 3
probation conditions de novo. (In re M.F. (2017) 7 Cal.App.5th
489, 495.)
                              Discussion
              Reasonableness. “Welfare and Institutions Code
section 730, subdivision (b) ‘authorizes the juvenile court to
“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.” A juvenile court enjoys broad discretion to fashion
conditions of probation for the purpose of rehabilitation and may
even impose a condition of probation that would be
unconstitutional or otherwise improper so long as it is tailored to
specifically meet the needs of the juvenile.’ [Citation.]” (In re
J.B. (2015) 242 Cal.App.4th 749, 753-754.) Because juveniles are
deemed to be more in need of guidance and supervision than
adults, the trial court has even greater latitude in formulating
the terms of juvenile probation. (In re Victor L. (2010) 182
Cal.App.4th 902, 909-910.) “The reasonableness and propriety of
the imposed condition is measured not just by the circumstances
of the current offense, but by the minor's entire social history.
[Citation.]” (In re J.B., supra, at p. 754.)
              The juvenile court’s discretion is not, however,
unlimited. We will consider a probation condition invalid only if
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 . . . . ’” (People v. Lent (1975) 15
Cal.3d 481, 486.) All three prongs must be satisfied before we
will invalidate a probation condition. (Ibid, fn. 1; see also In re
D.G. (2010) 187 Cal.App.4th 47, 52.)




                                 4
             A probation condition may be justified because it
reasonably relates to future criminality. As our Supreme Court
explained in People v. Olguin (2008) 45 Cal.4th 375 (Olguin), 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), even if the condition “has no
relationship to the crime of which a defendant was convicted[.]”
(Id. at p. 380.)
             We conclude the electronic search condition at issue
here was reasonable. Appellant admitted that he disturbed the
peace by engaging in a fight at school and using a racial slur
toward a teacher. He had prior discipline for “defiant behavior,”
using threatening language and being disruptive in class. The
conditions of his probation require him to refrain from using
drugs, threatening others with violence and visiting school
grounds without prior approval. We conclude the electronic
search condition is reasonable because it will allow law
enforcement to monitor appellant’s compliance with these
conditions.
             Overbreadth. Appellant contends the electronic
search condition is overbroad. We disagree. “A 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; see also
Olguin, supra, 45 Cal.4th at p. 384.) A juvenile court does,
however, have wider latitude in drafting probation conditions for
juveniles than for adults. “‘This is because juveniles are deemed
to be more in need of guidance and supervision than adults, and
because a minor’s constitutional rights are more




                                  5
circumscribed. . . .’ [Citation.] Whether a probation condition is
unconstitutionally overbroad presents a question of law reviewed
de novo. [Citation.]” (In re P.O. (2016) 246 Cal.App.4th 288,
297.)
             The probation condition at issue here permits law
enforcement to search text messages, voicemail messages, social
media accounts, call logs, photographs, e-mail accounts and
internet browsing history. These methods of communication are
reasonably likely to reveal evidence of appellant’s compliance
with other probation conditions, including those that prohibit
drug and alcohol use and threats of violence against others.
Limiting the search condition to these forms of digital
communication reduces the likelihood that law enforcement will
access medical records, financial information or other data
unrelated to criminal activity. We conclude the probation
condition is not overbroad.
                              Conclusion
             The judgment is affirmed.
             CERTIFIED FOR PUBLICATION.



                                    YEGAN, Acting P. J.


I concur:


            PERREN, J.




                                6
TANGEMAN, J.:
             I respectfully dissent. The majority concludes the
condition is justified because “it will allow law enforcement to
monitor [J.G.’s] compliance with [probation] conditions.” (Maj.
opn. ante, at p. 5.) That rationale includes every probationer,
regardless of their offense or social history. It casts too wide a
net to pass muster under In re J.B. (2015) 242 Cal.App.4th 749 or
People v. Lent (1975) 15 Cal.3d 481.
             The probation condition at issue in this case has been
the subject of several published appellate court decisions. The
holdings in those cases are not consistent, and our Supreme
Court has granted review in some of those cases. (Maj. opn. ante,
at p. 3.)
             Courts consistently hold that juvenile courts enjoy
broad discretion to fashion conditions of probation for
rehabilitation purposes, so long as specifically tailored to meet
the needs of the juveniles. (In re J.B., supra, 242 Cal.App.4th at
pp. 753-754.) They also agree that that discretion “is not
unlimited.” (In re Erica R. (2015) 240 Cal.App.4th 907, 912.)
“Courts have ‘consistently held that juvenile probation conditions
must be judged by the same three-part standard applied to adult
probation conditions under Lent.’ [Citations.]” (Ibid.)
             Indisputably, the first two prongs of Lent are
satisfied here. The electronic search condition bears no
relationship to J.G.’s crime of disturbing the peace on school
grounds or his social history. And “the typical use of electronic
devices and social media is not itself criminal.” (In re Erica R.,
supra, 240 Cal.App.4th at p. 913.)
             The majority relies on the third prong, reasoning that
future criminality can be monitored with an electronic search




                                 1
condition. But that is true for every probationer. This rationale
does not justify the condition where nothing in the offense or
social history shows a predisposition to use electronic devices in
connection with criminal activity.
             This case is like In re Erica R., supra, 240
Cal.App.4th 907, in which the defendant juvenile admitted to
misdemeanor possession of Ecstasy, and the court imposed a
similar electronic search probation condition. In its holding
striking the condition, our colleagues in the First Appellate
District, Division Two, wrote: “There is nothing in the record
regarding either the current offense or [appellant’s] social history
that connects her use of electronic devices or social media to
illegal drugs. In fact, the record is wholly silent about
[appellant’s] usage of electronic devices or social media.” (Id. at
p. 913.) The same is true here. Accordingly, the Erica R. court
held that because no evidence existed to show a predisposition to
use electronic devices in connection with criminal activity, “‘there
is no reason to believe the current restriction will serve the
rehabilitative function of precluding [appellant] from any future
criminal acts.’ [Citation.]” (Ibid.; accord, In re J.B., supra, 242
Cal.App.4th 749.)
             The dual justifications advanced by the majority in
this case for upholding this condition—that a minor’s rights are
circumscribed and that the condition will allow law enforcement
to monitor J.G.’s compliance with other probation conditions—
strike at the core of the holdings in In re J.B. and Lent. “[I]t is no
exaggeration to say that many of the [vast numbers of American
juveniles] who own a cell phone keep on their person a digital
record of nearly every aspect of their lives—from the mundane to
the intimate.” (Riley v. California (2014) 573 U.S. 373, 395.) It is




                                  2
therefore difficult to fathom any case in which an electronic
search probation condition would not pass the test used by the
majority here. That result would eviscerate the holdings of In re
J.B. and Lent and render them meaningless.
            CERTIFIED FOR PUBLICATION.



                                    TANGEMAN, J.




                                3
                    Charles Crandall, Judge

           Superior Court County of San Luis Obispo

                ______________________________

            Law Offices of David R. Greifinger and David R.
Greifinger, under appointment by the Court of Appeal for
Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Chung Mar, Analee J. Brodie, David
Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
