Filed 7/11/19
                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



In re J.S., a Person Coming Under the
Juvenile Court Law.
                                              D074139
THE PEOPLE,

        Plaintiff and Respondent,             (Super. Ct. No. J241043)

        v.

J.S.,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County,

Robert J. Trentacosta, Judge. Affirmed.

        Christine M. Aros, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C.

Cavalier and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and

Respondent.
                                              I.

                                     INTRODUCTION

     Minor J.S. appeals a dispositional order adjudging him a ward of the court pursuant

to Welfare and Institutions Code section 602 and placing him on formal probation,

subject to various terms and conditions. On appeal, J.S. argues that certain probation

conditions that permit searches of his electronic devices and impose limitations on his use

of computers, the Internet, and social networking Web sites are unconstitutionally

overbroad and should be stricken in their entirety. In the alternative, J.S. contends that

the conditions at issue should be stricken and the case remanded to allow the trial court to

determine whether the conditions can be narrowly tailored to serve the state's interest in

rehabilitation.1 We affirm the judgment.

                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

       1. The prosecution's evidence

       At the time of the incident that led to the charges against J.S., in October 2017, the

victim, John Doe, was nine years old and lived with his grandmother in San Ramon,

which is located in Contra Costa County, California. That month, a family friend and her

son and two nephews, 12-year-old J.S. and his brother R.R., were temporarily staying at

Doe's home. The family friend's nephews stayed in Doe's room with him.


1     J.S. initially presented a second argument for relief in his opening brief, but he has
withdrawn the argument.
                                              2
       On the morning of October 30, 2017, Doe woke up and turned on the light in his

room. At that time, R.R. was still sleeping and J.S. was in the bathroom getting ready for

school. When J.S. returned to the bedroom, he told Doe to suck his "private part," and

said that if Doe did not do it, J.S. would hurt Doe. J.S. exposed his penis and "showed"

Doe what he wanted Doe to do. Doe was afraid that J.S. would hurt him, so he got on the

ground and began to orally copulate J.S.

       Doe did not know how long J.S.'s penis was in his mouth, but at some point, Doe's

grandmother walked by and witnessed Doe on the floor with his head moving back and

forth while J.S.'s penis was in his mouth. Doe's grandmother screamed, " 'What the

fuck!' " She immediately started crying. At that point, J.S. jumped back from Doe and

with his penis still exposed said, "It's not what you think."

       An officer arrived on scene and spoke with J.S. The officer asked J.S. to

"give [the officer] the rundown of the events in his own words." J.S. said that he had

awakened and left the room. He returned to the room to retrieve his backpack, and when

he turned around, he noticed that Doe had been behind him. He then said that Doe "went

down to his knees in front of him," and that Doe "went down and grabbed one of his

legs." J.S. grabbed Doe's head and "moved it away from him," and that this was when

Doe's grandmother walked by the room and said, " 'What the fuck?' "

       2. The defense

       J.S. testified that he did not tell Doe to suck his penis, and also denied that Doe

had sucked his penis. J.S. testified that after getting ready for school in the bathroom, he

went back into the bedroom to get his backpack. Doe was sitting on his bed with the

                                              3
lights off. J.S. grabbed his backpack and when he turned around, Doe was on the floor

near him. Doe grabbed J.S.'s shin. J.S. asked Doe what he was doing, but Doe did not

answer. Doe began moving his hand up to J.S.'s thigh and J.S. again asked what he was

doing. Doe did not answer, and J.S. grabbed Doe's head and pushed him away. That was

when Doe's grandmother walked by and yelled out. J.S. told her, " 'It's not what it looks

like' " because he thought it may have looked like he had just hit Doe. J.S. stated that his

penis was never out of his shorts during the incident.

B. Procedural background

       On March 2, 2018, the Contra Costa District Attorney filed an amended juvenile

wardship petition pursuant to Welfare and Institutions Code section 602, alleging that J.S.

had committed one count of forcible oral copulation upon a person under the age of 14

(§ 288a, subd. (c)(2)(B)), and one count of lewd conduct with a child under the age of 14

(§ 288, subd. (a)).

       The trial court sustained the petition as to both counts and ordered J.S. detained in

juvenile hall. The matter was then transferred to the court in San Diego County for

disposition.

       In April 2018, the trial court adjudged J.S. a ward of the court pursuant to Welfare

and Institutions Code section 602 and placed him on probation. The court set a number

of terms and conditions of probation.

       J.S. filed a timely notice of appeal on June 8, 2018.




                                             4
                                             III.

                                       DISCUSSION

       Among other conditions of probation, the trial court imposed the following

conditions, which J.S. challenges on appeal:

          "The minor shall provide all passwords and pass phrases to unlock
          or unencrypt any file, system, or data of any type, on any electronic
          devices, such as a computer, electronic notepad, or cell phone, to
          which the minor has access. Minor shall submit those devices to a
          search at any time without a warrant by any law enforcement officer,
          including a probation officer."

          "The minor's 4th Amendment waiver extends to any electronic
          device, such as a computer, electronic notepad, or cell phone, which
          the minor uses or to which the minor has access. The minor's 4th
          Amendment waiver also extends to any remote storage of any files
          or data which the minor knowingly uses or to which the minor has
          access. The minor agrees to submit to a search of any electronic
          device, such as a computer, electronic notepad, or cell phone, at any
          time without a warrant by any law enforcement officer, including a
          probation officer."2

          "The minor shall not have a MySpace page, a Facebook page, or any
          other similar page and shall delete any existing page. The minor
          shall not use MySpace, Facebook, or any similar program."

          "The minor shall not knowingly access the Internet or any on-line
          service through use of an electronic device such as a computer,
          electronic notepad or cell phone, at any location without the prior
          approval by the probation officer."

          "The minor is not to use a computer for any purpose other than
          school related assignments. The minor is to be supervised when
          using a computer in the common area of his/her residence or in a
          school setting. Minor will be allowed to play video games online



2      For ease of discussion, we will refer to these first two conditions as the "electronic
search conditions" throughout the remainder of this opinion.
                                               5
          under the supervision of his mother. Minor is not to play games
          with other individuals online."3

       J.S. contends that the electronic search conditions are unconstitutionally overbroad

because they give officers access to vast quantities of private, irrelevant information, and

therefore, are not narrowly tailored to any state interest. J.S. contends that the computer,

Internet and social networking conditions are also unconstitutionally overbroad because

they "impermissibly impinge[ ] on his First Amendment rights."

       A juvenile court "has wide discretion to select appropriate conditions and may

impose ' "any reasonable condition that is 'fitting and proper to the end that justice may

be done and the reformation and rehabilitation of the ward enhanced.' " ' [Citations.]" (In

re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) "A probation condition may be

'overbroad' if in its reach it prohibits constitutionally protected conduct." (People v.

Freitas (2009) 179 Cal.App.4th 747, 750, disapproved of on other grounds in People v.

Hall (2017) 2 Cal.5th 494, 503, fn. 2.) The essential question in an overbreadth challenge

"is the closeness of the fit between the legitimate purpose of the restriction and the

burden it imposes on the defendant's constitutional rights—bearing in mind, of course,

that perfection in such matters is impossible, and that practical necessity will justify some

infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)




3     For ease of discussion, we will refer to these three conditions jointly as the
"computer, Internet and social networking limitations" throughout the remainder of this
opinion.
                                              6
A. The electronic search conditions4

       J.S. concedes that he did not object to the imposition of the electronic search

conditions in the trial court. J.S. contends, however, that "his claim [regarding the

electronic search conditions] is cognizable on its face as it restricts his constitutional

rights."

       Challenges to probation conditions ordinarily must be raised in the trial court; if

they are not, appellate review of those conditions will be deemed forfeited. (People v.

Welch (1993) 5 Cal.4th 228, 234–235 [extending the forfeiture rule to a claim that

probation conditions are unreasonable when the probationer fails to object on that ground

in the trial court].) However, a defendant who did not object to a probation condition at

sentencing may raise a challenge to that condition on appeal if the defendant's appellate

claim "amount[s] to a 'facial challenge' " (italics added), i.e., a challenge that the

"phrasing or language . . . is unconstitutionally vague and overbroad," and the

determination whether the condition is constitutionally defective "does not require

scrutiny of individual facts and circumstances but instead requires the review of abstract

and generalized legal concepts—a task that is well suited to the role of an appellate

court." (Sheena K., supra, 40 Cal.4th at p.885.)




4      A number of cases addressing the constitutionality of electronic search probation
conditions are currently pending review in the Supreme Court. (See, e.g., In re
Ricardo P. (2015) 241 Cal.App.4th 676, 680–681, review granted February 17, 2016,
S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, 108, review granted February 17,
2016, S231428.)
                                               7
       Because J.S. did not object to the imposition of the electronic search conditions in

the trial court, he has forfeited any as-applied constitutional objections that he may be

attempting to raise on appeal. Although J.S. characterizes his claim with respect to the

electronic search conditions as constituting a facial constitutional challenge, it is clear

that J.S.'s overbreadth claim with respect to these conditions does not present a pure

question of law. Specifically, J.S. argues that "[u]nless the defendant has a history of

storing illegal content on his computer, utilizing electronic means to embezzle money,

stalking, hacking, or otherwise perpetrating an offense that is related to usage of a

computer, the government does not have a compelling and unqualified interest in

accessing all of this information." Although J.S. avoids making any reference to himself

or the particulars of his case, the clear implication of the above statement is that his case

involves none of the circumstances that he mentions as circumstances that could support

the application of the electronic search conditions. However, in order to assess whether

any of these circumstances are present in J.S.'s case, we would have to look to the

sentencing record developed in the trial court, and in particular, those pertaining to J.S.'s

criminal history and the circumstances of his crime. Thus, his contention presents an as-

applied challenge to the electronic search conditions rather than a facial challenge, and

any claim that the electronic search conditions are overbroad as-applied has been

forfeited.

       To the extent that J.S.'s challenge to the electronic search conditions on

constitutional overbreadth grounds could be viewed as one that " 'present[s] "[a] pure

question[ ] of law that can be resolved without reference to the particular sentencing

                                               8
record developed in the trial court," ' " (Sheena K., supra, 40 Cal.4th at p. 889), we reject

that contention. The question at issue in a facial overbreadth challenge to an electronic

search condition is whether the search condition permitting searches of a probationer's

computers and/or recordable media, in the abstract, and not as applied to the particular

probationer, is insufficiently narrowly tailored to the state's legitimate interest in

reformation and rehabilitation of probationers in all possible applications. (See id. at p.

885 [appellate claim that the language of a probation condition is unconstitutionally

vague or facially overbroad "does not require scrutiny of individual facts and

circumstances but instead requires the review of abstract and generalized legal

concepts"].) When the electronic search conditions are viewed in this light, they may be

understood as not being facially overbroad. Although it is readily apparent that

application of this search condition could be constitutionally overbroad as applied to

certain probationers in some circumstances, it is equally apparent that such a search

condition may be entirely appropriate, and constitutional, in other circumstances. J.S.

essentially concedes this point by listing circumstances in which he believes application

of such conditions would be constitutionally sound—i.e., where the "defendant has a

history of storing illegal content on his computer, utilizing electronic means to embezzle

money, stalking, hacking, or otherwise perpetrating an offense that is related to usage of a

computer." We agree that certain probationers may require more intensive supervision

and monitoring—in particular, with respect to their use of computers and other electronic

and recordable media—based on the specific facts of the case. For this reason, we reject



                                               9
J.S.'s constitutional challenge to the electronic search conditions to the extent that he

contends they are facially overbroad.

B. The computer, Internet and social networking conditions

       As with the electronic search conditions, J.S. concedes that he did not object to the

trial court's imposition of the computer, Internet and social networking conditions.

However, he also asserts that he may challenge these restrictions on appeal because

"where a condition of probation, on its face, unconstitutionally restricts a defendant's

constitutional rights, trial counsel's objection is not required for this court to . . . strike or

modify the term to comport with constitutional standards."

       Although J.S. attempts to characterize his claim with respect to the computer,

Internet, and social networking conditions as constituting a facial constitutional

challenge, as J.S.'s argument makes clear, his claim is actually one in which he is

contending that these conditions are unconstitutional as applied to him. For example, he

argues that these "restrictions are not narrowly tailored to the compelling state interest in

J.S.'s rehabilitation" because "J.S.'s offense, while serious in nature, did not involve use

of a computer or the Internet." J.S. further argues that "[t]he conditions restricting his

computer, Internet, and social media usage, [in contrast with probation conditions that

'appear to be related to the circumstances of J.S.'s crimes and appropriately tailored to his

rehabilitation'], do not appear to be closely connected to the circumstances of his crimes

and there is no basis in the record to conclude they would serve a rehabilitative purpose."

It is clear that an analysis as to whether the computer, Internet, and social networking

conditions are related to J.S.'s crimes and would serve a rehabilitative purpose as to J.S.

                                                10
based on this record would "require scrutiny of individual facts and circumstances."

(Sheena K., supra, 40 Cal.4th at p. 885.) Thus, the failure to raise the objection in the

trial court results in its forfeiture.

       Although we conclude that J.S.'s challenge to the computer, Internet and social

networking conditions constitute an as-applied challenge as set forth in his briefing—a

challenge that we have determined is forfeited—we nevertheless also conclude that to the

extent that one could understand the claim to truly be a facial challenge—i.e., one that

" 'present[s] "[a] pure question[ ] of law that can be resolved without reference to the

particular sentencing record developed in the trial court," ' " (Sheena K., supra, 40

Cal.4th at p. 889), we must reject such a contention, largely for the same reasons that we

rejected such a contention with respect to the electronic search conditions. The question

is whether in all possible applications the conditions limiting a probationer's use of

computers, the Internet, and various social networking or social media Web sites are

insufficiently tailored to the state's legitimate interest in reformation and rehabilitation of

probationers. (See id. at p. 885.) The answer is clearly no. We can envision

probationers for whom such restrictions may be necessary to ensure their effective

reformation and rehabilitation, and in such circumstances, the imposition of such

probation conditions would be constitutional.

       In this regard, with respect to the social networking condition, we diverge from the

conclusion of the court in In re L.O. (2018) 27 Cal.App.5th 706, 712–714, on which J.S.

relies in his reply brief. The In re L.O. court determined that a probation condition

imposed on a minor that stated " '[t]he Minor shall not access or participate in any Social

                                              11
Networking Site, including but not limited to Facebook.com" was facially

unconstitutional in every potential application. (Id. at pp. 711, 713.) In reaching this

conclusion, the In re L.O. court relied on language in Packingham v. North Carolina

(2017) 582 U.S. ___ [137 S.Ct. 1730, 1735, 198 L.Ed.2d 273] (Packingham), a case in

which the United States Supreme Court struck down on First Amendment principles a

state law making it a felony for registered sex offenders " 'to access a commercial social

networking Web site where the sex offender knows that the site permits minor children to

become members or to create or maintain personal Web pages.' " (Packingham, 137

S.Ct. at pp. 1733, 1738.)

       We are not convinced that Packingham, which involves the blanket

criminalization of First Amendment activity on the part of those previously convicted of

certain crimes and who have already completed their sentences, can or should be used to

assess whether there may be a particularized circumstance in which a probationer may be

prohibited from utilizing social networking sites in a manner consistent with

constitutional principles during the period of probation. The relevant question for

purposes of assessing whether a particular probation condition is unconstitutionally

overbroad is "the closeness of the fit between the legitimate purpose of the restriction and

the burden it imposes on the defendant's constitutional rights—bearing in mind, of

course, that perfection in such matters is impossible, and that practical necessity will

justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In certain

circumstances, a complete prohibition on the use of a probationer's access to social

networking Web sites during the term of probation could be a close fit between the

                                             12
legitimate purpose of the restriction—i.e., the reformation and rehabilitation of that

probationer—and the burden that such a condition would impose on that probationer for

the duration of the probationary term. For instance, it would seem appropriate and

constitutionally sound to impose such a complete prohibition in cases in which the

defendant used social networking sites to lure or taunt victims, or where a defendant used

social networking sites to perpetrate the crime for which he is on probation. As applied

to a defendant who has utilized social networking sites in such a manner, imposition of a

complete prohibition with respect to social networking sites would be sufficiently tailored

to the state's legitimate interest in reformation and rehabilitation of that probationer.

Therefore, we do not agree with the In re L.O. court that a probation condition that

prohibits a defendant from accessing social networking sites for the duration of the term

of his probation is unconstitutional in every potential application.5

       We thus reject a constitutional challenge on the ground that the computer, Internet

and social networking conditions are facially overbroad.




5       To the extent that the probation conditions that J.S. challenges limit his access to
the Internet or use of a computer, we note that these provisions do not entirely prohibit
such usage. For example, the Internet usage condition allows use with the prior approval
of the probation officer, and the computer usage condition allows use for school work,
and permits the probationer to play video games under his mother's supervision. The In
re L.O. court acknowledged that similar allowances with respect to social networking
access and usage would render the social networking probation condition in that case "not
facially overbroad." (See In re L.O., supra, 27 Cal.App.5th at p. 713.) In our view, the
Internet and computer use conditions imposed in this case are not facially overbroad,
particularly considering that they do not entirely prohibit the use of the Internet or
computers.
                                              13
                                     IV.

                                 DISPOSITION

     The judgment is affirmed.



                                               AARON, Acting P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.




                                     14
