Filed 8/18/20 In re A.W. CA1/1
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                   DIVISION ONE


 In re A.W., a Person Coming Under
 the Juvenile Court Law.
 THE PEOPLE,
           Plaintiff and Respondent,
                                                                       A157072
 v.
 A.W.,                                                              (Contra Costa County
                                                                    Super. Ct. No. J19-
           Defendant and Appellant.
                                                                 00202)



         A.W. appeals from the juvenile court’s dispositional order placing him
on home supervision and imposing various conditions, including an electronic
search condition. His sole contention on appeal is that the electronic search
condition should be stricken pursuant to People v. Lent (1975) 15 Cal.3d 481
(Lent), because it bears no reasonable relationship to his offense or history.
We conclude the juvenile court did not abuse its discretion in imposing an
electronic search condition, but that the language of the condition requires
refinement to comply with In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo
P.), and therefore remand for further consideration.




                                                               1
                                 BACKGROUND
      The Contra Costa County District Attorney filed a Welfare and
Institutions Code section 602 petition alleging A.W. committed felony second
degree burglary of a vehicle. (Pen. Code, § 459.) The probation officer’s
report indicates the allegation arose from an incident in which Oakland
police officers detained A.W. and another individual after the two were found
standing next to the broken window of an open rear-passenger door of a
vehicle in a parking lot. A.W. stated they were “trying to hang out with their
female friends,” and they “needed a ‘whip’ ” because they “did not want to
walk in the cold.” The other individual “used a rock to break the window” but
then “did not know how to start the vehicle.”
      During A.W.’s interview with probation, he expressed remorse for the
crime and stated it was “spontaneous, unplanned, and he was unaware [the
other individual] was going to break into a vehicle.” When asked about his
“ ‘Ghost Town’ ” gang associations, A.W. responded, “ ‘That’s what I bang.’ ”
A.W. confirmed he “associates with” Ghost Town, and the gang’s activities
included “ ‘Shooting [and] Killing.’ ” When asked if these activities bothered
him he replied, “ “Doesn’t bother me. Killing is part of life. If they want to go
kill somebody, they can. I don’t care.’ ” Although he denied participating in
these activities, he acknowledged “other members have tried to recruit him to
participate in these activities.” A.W. had lost three friends to “gang violence”
and stated that after their deaths he was “ ‘ready to kill’ the rival gang
members.” He reported his cousin associated with a different gang, “Murder
Dubs.”
      A.W. had a “good relationship” with his mother who he lived with and
stated that if he does not follow the rules at home, she “will take away his
phone and video games.” A.W. had “sporadic[]” attendance at several
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different schools, one of which reported he “ha[d] been associating with
‘NBM,’ a local street gang.” When school officials suggested a different
school, A.W. “objected because of ‘rivals that attend’ that particular school.”
      Mother stated A.W. had about 10 friends but she “generally does not
allow visitors into their home” and they mostly “spend their time fixing
dilapidated bicycles.” Mother did not know about minor’s gang associations,
and when asked by probation about A.W.’s “gang related statements,” mother
responded, “ ‘This is the first time I’ve heard about this.’ ” She maintained
A.W. was a “good kid who can be easily influenced.”
      Probation concluded an electronic search condition was “necessary to
properly supervise the minor and ensure he was adhering to the terms of his
Probation, particularly disassociating from his negative peers.”
      After admitting to an amended allegation of misdemeanor second
degree burglary, the juvenile court placed A.W. on 120 days’ home
supervision and imposed numerous probation conditions, including a gang
condition to which A.W. did not object and an electronic search condition to
which he did.
      The electronic search condition required A.W. to “[s]ubmit your cell
phone and any other electronic device under your control to a search of any
medium of communication reasonably likely to reveal whether you are
complying with the terms of your probation, with or without a search
warrant, at any time of the day or night. Such medium of communication
includes text messages, voicemail messages, call logs, photographs, email
accounts and other social media accounts and applications such as Snapchat,
Instagram, Facebook, and Kik. You shall provide access codes to the
Probation Officer or any other peace officer upon request to effectuate such
search.”
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      The court was very concerned about A.W.’s gang association claims,
stating, “You are frightening to me when I read this stuff. It’s scary. Your
attorney thinks you’re bragging. I hope she’s right, because you’re
glamorizing death and murder and all sorts of awful things. You’re
glamorizing, certainly, . . . terrible things that you say—terrible things that
you say about people. [¶] . . . [¶] I think the recommendations are very
appropriate, and, given his obsession with the gangs and all his discussion, I
hope [your attorney] is right that it’s just bragging, but I can’t take that
chance. [¶] So I am following all the recommendations. I think the electronic
monitoring is very important, and I certainly think the gang terms– all of
that is very important.”
                                  DISCUSSION
      “Under Welfare and Institutions Code section 730, subdivision (b), the
court ‘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.’ ‘The juvenile court has
wide discretion to select appropriate conditions,’ but ‘[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.’ [Citations.] ‘A condition of
probation which is impermissible for an adult criminal defendant is not
necessarily unreasonable for a juvenile receiving guidance and supervision
from the juvenile court.’ [Citation.] On appeal, we ‘ “review conditions of
probation for abuse of discretion.” ’ [Citation.] Specifically, we review a
probation condition ‘for an indication that the condition is “arbitrary or
capricious” or otherwise exceeds the bounds of reason under the
circumstances.’ ” (Ricardo P., supra, 7 Cal.5th at p. 1118.)
                                        4
      Under Lent, supra, 15 Cal.3d at page 486,1 “ ‘[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.” ’ ” (Ricardo P., supra, 7 Cal.5th at p. 1118.)
      “The Lent test ‘is conjunctive–all three prongs must be satisfied before
a reviewing court will invalidate a probation term.’ ” (Ricardo P., supra,
7 Cal.5th at p. 1118.) The Attorney General concedes “the record does not
show [A.W.] used electronic devices to commit his current offense.” Thus, the
issue in this case concerns Lent’s third prong.
      Ricardo P. guides our analysis. In that case, our Supreme Court held a
broad electronic search condition was not valid under Lent. (Ricardo P.,
supra, 7 Cal.5th at pp. 1115-1116.) In that case, the juvenile was placed on
probation after admitting to two counts of burglary. (Id. at p. 1116.) Nothing
in the youth’s record suggested he had “ever used an electronic device or
social media in connection with criminal conduct.” (Id. at p. 1122.) Yet, the
juvenile court concluded an electronic search condition was necessary to
prevent future crime because “ ‘minors typically will brag about their
marijuana usage or drug usage . . . by posting on the Internet, showing
pictures of themselves with paraphernalia, or smoking marijuana.’ ” (Id. at
p. 1117.)
      This was an insufficient basis for the search condition, said the
Supreme Court, because the “the burden [the electronic search condition]
imposes on Ricardo’s privacy is substantially disproportionate to the


      1 Superseded by statute on other grounds as stated in People v. Moran
(2016) 1 Cal.5th 398.

                                        5
countervailing interests of furthering his rehabilitation and protecting
society.” (Ricardo P., supra, 7 Cal.5th at p. 1119.) If it were sufficient, “[i]n
virtually every case, one could hypothesize that monitoring a probationer’s
electronic devices and social media might deter or prevent future criminal
conduct.” (Id. at p. 1123.)
      The court hastened to add its reasoning did “not categorically
invalidate electronics search conditions. In certain cases, the probationer’s
offense or personal history may provide the juvenile court with a sufficient
factual basis from which it can determine that an electronics search condition
is a proportional means of deterring the probationer from future criminality.”
(Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)
      In In re Alonzo M. (2019) 40 Cal.App.5th 156, 166 (Alonzo M.) our
colleagues in Division Four analyzed Ricardo P. and “glean[ed] the following
guidelines for determining when an electronic search condition survives the
third prong of Lent in a juvenile delinquency case. First, there must be
information in the record establishing a connection between the search
condition and the probationer’s criminal conduct or personal history–an
actual connection apparent in the evidence, not one that is just abstract or
hypothetical. [Citation.] But no nexus between the search condition and the
minor’s underlying offense is required. ‘[C]ourts may properly base probation
conditions upon information in a probation report that raises concerns about
future criminality unrelated to’ past criminal conduct. [Citation.] Finally,
‘the burden imposed by [the] probation condition’ must be proportionate to
‘the legitimate interests served by the condition’. [Citation.] Thus, ‘ “ [a]
condition of probation that enables a probation officer to supervise his or her
charges effectively is . . . ‘reasonably related to future criminality,’ ” ’ only if
its infringement on the probation’s liberty is not ‘substantially
                                          6
disproportionate to the ends of reformation and rehabilitation.’ ” (Id. at
p. 166, italics omitted.)
      The appellate court went on to conclude the juvenile court acted within
its discretion in imposing an electronic search condition. In Alonzo, the
juvenile committed felony grand theft and misdemeanor burglary. While he
spent “a significant amount of his time using electronic devices”, it was not
tied to his criminality. (Alonzo M., supra, 40 Cal.App.5th at pp. 160, 166-
167.) However, he and his mother “attributed [his] delinquent behavior to
the people he socialized with in Oakland.” (Id. at p. 166.) Given the minor’s
“negative peer influences,” the “juvenile court properly concluded that an
electronic search term in some form could be imposed as a condition of
Alonzo’s probation. (Id. at p. 168.)
      However, “[a]pplying the reasoning of Ricardo P.,” the court also
concluded the search condition needed to be narrowed. (Alonzo M., supra,
40 Cal.App.5th at p. 168.) The condition stated: “ ‘[Y]ou must submit your
cell phone or any other electronic device under your control to a search of any
medium of communication reasonably likely to reveal whether you’re
complying with the terms of your probation with or without a search warrant
at any time of day or night. Such medium of communication includes text
messages, voicemail messages, photographs, e-mail accounts and other social
media accounts and applications. You shall provide access codes to probation
or any other peace officer upon request to effectuate the search.’ ” (Id. at
p. 163, italics added.) The italicized language, said the court, exceeded the
permissible bounds of Ricardo P. The court therefore remanded for
refinement of the language to “allow[] search of any medium of
communication reasonably likely to reveal whether Alonzo is associating with
prohibited persons.” (Id. at p. 168.)
                                        7
      Similarly, here the record revealed that A.W. is subject to negative peer
influence. Indeed, he admitted being well acquainted with gang members
and stated he was not bothered by the gang’s activities, including “Shooting
[and] Killing” because “[k]illing is part of life.” A.W.’s mother also expressed
concern that he was easily influenced. Thus, the juvenile court acted well
within its discretion in determining an electronic search condition was
“necessary to properly supervise the minor and ensure he was adhering to the
terms of his Probation, particularly disassociating from his negative peers.”
(See Alonzo, supra, 40 Cal.App.5th at p. 168.) However, as in Alonzo M., the
language of the search condition needs further refinement to specify that the
purpose of any search is to enforce the gang terms and ensure A.W. is not in
contact with gang members or potential gang members. (See Ibid.)


                                 DISPOSITION
      The electronic devices search clause is stricken. We remand the case to
the juvenile court to allow the court to determine (1) whether appellant is
still on probation and (2) determine whether to impose a more narrowly
tailored electronics search condition consistent with this opinion.




                                        8
                                _________________________
                                Banke, J.


We concur:


_________________________
Margulies, Acting P.J.


_________________________
Sanchez, J.




A157072, In re A.W.



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