Filed 9/28/15
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                       DIVISION 2


In re ERICA R., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
        Plaintiff and Respondent,
v.
                                                   A143215
ERICA R.,
        Defendant and Appellant.                   (Alameda County
                                                   Super. Ct. No. SJ14023084)




                                     INTRODUCTION
        A juvenile defendant admitted to misdemeanor possession of ecstasy after a school
counselor found a baggie of pills in the juvenile’s purse. As a condition of probation, the
juvenile court required defendant to submit to a search of her electronic devices, and to
turn over her passwords to her probation officer. We are called on to decide whether this
search condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent).
We conclude that because there was no evidence connecting the juvenile’s electronic
device or social media usage to her offense or to a risk of future criminal conduct, it was
an unreasonable condition. Accordingly, we will modify the judgment to strike this
condition.
                    FACTUAL AND PROCEDURAL BACKGROUND
        Our brief statement of the facts is taken from the Alameda County Probation
Department’s dispositional report.


                                             1
       On March 27, 2014, defendant Erica R. attended a meeting with her school
counselor. The counselor noted that Erica was fidgety and her pupils were dilated,
leading the counselor to believe Erica had taken an illegal drug. Erica eventually left the
meeting, but left her purse behind. The counselor opened Erica’s purse and found a
sandwich bag containing 30-45 orange pills. The counselor took one of the pills and put
the rest of the pills back in Erica’s purse. When Erica returned, the counselor accused
Erica of selling drugs on campus. Erica grabbed her purse and left the office. The school
counselor called the police. The pill taken by the counselor tested positive for
amphetamine.
       The district attorney filed a juvenile wardship petition pursuant to Welfare and
Institutions Code section 602, subdivision (a), alleging that Erica had possessed ecstasy
in violation of Health and Safety Code section 11377, subdivision (a), a felony. The
wardship petition was later amended to allege misdemeanor possession of ecstasy, a
charge which Erica admitted.
       At the disposition hearing, the juvenile court adjudged Erica a ward of the court
and placed her under the supervision of the probation office, with various conditions.
One of them was this: “You must submit to a test of your blood, breath, or urine to detect
the presence of [drugs] in your system and a search of any containers you may have or
own, your vehicle, residence, or electronics day or night at the request of a Probation
Officer or peace officer[.]” The court stated that “part of that search will include giving
your passwords to your [probation officer.]” Erica’s counsel objected that the electronic
search condition was overbroad, that there had not been any “issue with social media,”
and that Erica did not have a cell phone. The court was not persuaded: “I found in
practice that many juveniles, many minors, who are involved in drugs tend to post
information about themselves and drug usage. They post photos of themselves using




                                             2
drugs and drug paraphernalia. This is the way of keeping track [of] her drug usage, not
just a way of testing her.”1
                                       DISCUSSION
       Erica challenges the probation condition requiring her to submit her electronic
devices to search and to provide her electronic passwords to her probation officer. She
contends that this condition is invalid under Lent, supra, 15 Cal.3d 481; that it is
unconstitutionally overbroad; and that it creates a risk of illegal eavesdropping under the
Invasion of Privacy Act, Penal Code section 630, et seq. We agree that the condition is
invalid under the Lent standard and therefore do not reach Erica’s constitutional or
statutory arguments. (See Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 671
[“Principles of judicial restraint . . . require us to avoid deciding a case on constitutional
grounds unless absolutely necessary[.]”])
A.     Whether this Appeal is Moot
       On March 9, 2015, Erica’s attorney informed us that the juvenile court had
dismissed Erica’s case following her successful completion of probation. Erica’s counsel
acknowledged that this development rendered the appeal moot, but requested that we
nonetheless address the merits of the appeal as this case raises issues of broad public
interest that are likely to recur. Counsel cited a number of appeals from judgments of the
same juvenile court that are pending in this District and which challenge an electronic
search condition identical to the one at issue here.
       Because Erica is no longer subject to the search condition, her challenge is moot.
However, “ ‘[i]f an action involves a matter of continuing public interest and the issue is
likely to recur, a court may exercise an inherent discretion to resolve that issue, even
though an event occurring during its pendency would normally render the matter moot.’

       1
         In its disposition report, Alameda County Probation did not recommend a search
condition covering electronic devices. Rather, it recommended the following typical
probationary search condition: “Consent to the search of her person, vehicle, property, or
place of residence at any time, day or night, with or without a search warrant and with or
without probable or reasonable cause, on the direction of the probation officer or a peace
officer.”


                                               3
[Citation.]” (In re R.V. (2009) 171 Cal.App.4th 239, 245.) Here, it appears that the
juvenile court has made the challenged search condition a standard condition in drug-
related cases. Accordingly, this appeal presents issues that are likely to recur, and we
exercise our discretion to reach the merits of Erica’s challenge to the electronic search
condition.
B.     Whether the Electronic Search Condition Is Invalid Under Lent
       Welfare and Institutions Code section 730, subdivision (b) empowers 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.” In In re Victor L. (2010) 182 Cal.App.4th 902, we
discussed the principles underlying the imposition of probation conditions on minors:
“ ‘The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents’
[citation], thereby occupying a ‘unique role . . . in caring for the minor’s well-being.’
[Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile
probation is even greater than that allowed for adults. ‘[E]ven where there is an invasion
of protected freedoms “the power of the state to control the conduct of children reaches
beyond the scope of its authority over adults.” ’ [Citation.] 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 circumscribed.’ [Citation.] Thus, ‘ “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.]” (Id. at pp. 909-910.)
       We review the juvenile court’s probation conditions for abuse of discretion, and
such discretion will not be disturbed in the absence of manifest abuse. (In re P.A. (2012)
211 Cal.App.4th 23, 33; In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
       While the juvenile court’s discretion is broad, it is not unlimited. Our Supreme
Court in Lent stated the criteria for assessing the validity of a condition of probation as
follows: “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


                                              4
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.) The Lent test is conjunctive – all three prongs
must be satisfied before we will invalidate a term of probation. (People v. Olguin (2008)
45 Cal.4th 375, 379.) Courts have “consistently held that juvenile probation conditions
must be judged by the same three-part standard applied to adult probation conditions
under Lent[.]” (In re D.G. (2010) 187 Cal.App.4th 47, 52 (D.G.); see also In re Josh W.
(1997) 55 Cal.App.4th 1, 6.)
       The challenged electronic search condition has no relationship to the crime of
misdemeanor possession of ecstasy. There is nothing in the original or amended juvenile
petitions or the record that connects Erica’s use of electronic devices or social media to
her possession of any illegal substance. The Attorney General argues that Erica’s cell
phone and electronic devices “could have been used to negotiate the sales of the illegal
substance.” The problem with this argument is that there is no evidence suggesting that
Erica—who was convicted of misdemeanor possession, not selling any illegal
substance—ever used an electronic device in this way.
       Obviously, the typical use of electronic devices and of social media is not itself
criminal. “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[.]’ ” (Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 2494-2495].) The
Attorney General nonetheless argues that a “cell phone can be the instrumentality of a
crime.” True enough, but the “second part of the Lent test is not satisfied merely because
a condition precludes conduct that can occur in a manner that is illegal. Rather, it is
satisfied only by a condition that precludes conduct that is ‘itself’ criminal.” (D.G.,
supra, 187 Cal.App.4th at p. 55.) Under the Attorney General’s theory, Erica could have
been barred from possessing power tools, opening a checking account, or driving a



                                              5
vehicle because all could be used as an instrumentality of a crime. (See ibid.) We reject
such a broad application of the second prong of Lent to the facts of this case.
       Finally, the record does not support a conclusion that the electronic search
condition is reasonably related to future criminal activity by Erica. The juvenile court
justified the electronic search condition solely by reference to its experience that “many
juveniles, many minors, who are involved in drugs tend to post information about
themselves and drug usage.” However, “[n]ot every probation condition bearing a
remote, attenuated, tangential, or diaphanous connection to future criminal conduct can
be considered reasonable.” (People v. Brandao (2012) 210 Cal.App.4th 568, 574.)
There is 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. In
fact, the record is wholly silent about Erica’s usage of electronic devices or social media.
Accordingly, “[b]ecause there is nothing in [Erica’s] past or current offenses or [her]
personal history that demonstrates a predisposition” to utilize electronic devices or social
media in connection with criminal activity, “there is no reason to believe the current
restriction will serve the rehabilitative function of precluding [Erica] from any future
criminal acts.” (D.G., supra, 187 Cal.App.4th at p.53.)
       Finally, we note that in her brief and at oral argument, the Attorney General
argued that Erica’s electronic search condition is valid under People v. Ramos (2004) 34
Cal.4th 494 (Ramos). The defendant in Ramos was on probation for a prior DUI
conviction when police conducted a search of his home and truck pursuant to a probation
search condition. (Id. at pp. 504-505.) The search revealed incriminating evidence –
including a body, blood stained clothing, ammunition, and a firearm – tying defendant to
multiple murders. Prior to pleading guilty to three counts of murder, Ramos moved to
suppress evidence arguing, among other things, that the search condition was overbroad
and should not have been imposed. (Id. at p. 505.) In upholding the validity of the
probation search condition in the context of the motion to suppress, the court found it
“reasonably related to the DUI conviction” (ibid.) and stated that the “ ‘level of intrusion
is de minimis and the expectation of privacy greatly reduced when the subject of the


                                              6
search is on notice his activities are being routinely and closely monitored. Moreover,
the purpose of the search condition is to deter the commission of crimes and to protect the
public, and the effectiveness of the deterrent is enhanced by the potential for random
searches.’ ” (Id. at p. 506, quoting People v. Reyes (1998) 19 Cal.4th 743, 753.)
       The observation in Ramos that a probationer’s expectation of privacy is reduced
and that a search condition serves to deter the commission of crime could be cited in
support of any probation search condition. However, Ramos involved an adult
probationer, not a juvenile probationer, such as Erica. “ ‘[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 another ground in In re Jaime P. (2006) 40 Cal.4th 128.) A
juvenile “cannot refuse probation [citations] and therefore is in no position to refuse a
particular condition of probation.” (In re Binh L. (1992) 5 Cal.App.4th 194, 202 (Binh).)
Courts have recognized that a “minor cannot be made subject to an automatic search
condition; instead, such condition must be tailored to fit the circumstances of the case and
the minor.” (See People v. Rios (2011) 193 Cal.App.4th 584, 597; see also Binh, supra, 5
Cal.App.4th at p. 203.) For the reasons discussed above, Erica’s electronic search
condition is not properly tailored to her circumstances under Lent and is therefore
invalid.2
       Our holding is narrow. Of course, there can be cases where, based on a
defendant’s history and circumstances, an electronic search condition bears a reasonable
connection to the risk of future criminality. For example, in People v. Ebertowski (2014)
228 Cal.App.4th 1170, a defendant was convicted of making criminal threats to a police
officer. The threats included references to his status as a gang member, and at sentencing
the prosecution introduced copies of posts defendant made on his social media account
promoting his gang. As a condition of defendant’s probation, the trial court required

       2
         Erica did not challenge the validity of the search condition to the extent it
requires her to submit to drug tests or to submit her person and any vehicle, room and
property to search by a probation or peace officer.

                                              7
defendant to submit his electronic devices, along with electronic and social media
passwords, to his probation officer for search at any time. (Id. at p. 1173.) On appeal,
the court upheld this condition. After noting that defendant’s underlying offense was
gang related, the court stated that defendant’s “association with his gang was also
necessarily related to his future criminality. His association with his gang gave him the
bravado to threaten and resist armed police officers.” (Id. at pp. 1176-1177.) Thus, in
Ebertowski, the record tied the use of social media to the facts of the underlying offense,
making the connection between social media and future criminality reasonable. The
record in this case, by contrast, contains no such connection for the reasons stated above.
       The requirement that Erica submit her electronic devices for search and provide
her probation officer with her electronic passwords is invalid under Lent and the juvenile
court abused its discretion in imposing it in this case.
                                        DISPOSITION
       The disposition is modified to strike the probation condition requiring Erica to
submit “any electronic[s] with passwords under your control” to search. In all other
respects the disposition is affirmed.




                                              8
                                _________________________
                                Miller, J.


We concur:


_________________________
Kline, P. J.


_________________________
Stewart, J.




                            9
Trial Court: Superior Court of Alameda County


Trial Judge: Hon. Leopoldo Dorado


Attorney for Defendant and      Johathan Soglin
Appellant                       L. Richard Braucher
                                By Appointment of the Court of Appeal
                                Under the First District Appellate Project
                                Case Management System


Attorneys for Plaintiff and     Kamala D. Harris
Respondent                      Attorney General
                                Gerald A. Engler
                                Chief Assistant Attorney General
                                Jeffrey M. Laurence
                                Acting Senior Assistant Attorney General
                                Donna M. Provenzano
                                Supervising Deputy Attorney General
                                Ronald E. Niver
                                Deputy Attorney General




                                         10
