1

Filed 10/16/20 In re K.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re K.B ., A Person Coming Under

the Juvenile Court Law.

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Plaintiff and Respondent,

v.

K.B

.,

Defendant and Appellant. A15 8274

( Solano County Sup. Ct.

No. J 44533 )

This is a n appeal from a dispositional order adjudging K.B. a juvenile court

ward pursuant to Welfare and Institutions Code 1 section 602 and placing him in

the home of his mother under various probationary terms and conditions,

including a requirement that he “submit to drug/alcohol testing by any Peace

Offi cer

. ” K.B.’s sole contention on appeal is that the drug and alcohol testing

condition in unreasonable under People v. Lent ( 1975 ) 15 Cal.3d 481 ( Lent )

,

superseded by statute on another ground as stated in People v. Moran (2016) 1

Cal.5th 398, 403, fn. 6

. W e disagree and affirm.

1 All statutory references are to the Welfare and Institutions Code unless

otherwise specified.2 BACKGROUND

O ur description of the underlying offense is taken from the detention

report in this matter which formed the factual basis for K.B.’s admission , with

one exception noted below . On July 5, 2019, 17

- year

- old K.B. and his friend J.D.

robbed a hair salon in Vallejo. J.D. was armed with a firearm. K.B. and J.D.

demanded money and other valuables from several salon patrons. They

eventually ran off with money and three phones. During a search of the area,

police observed K.B. and J.D.

— who matched the description of the suspects

—

walk into a residence . The minors were arrested after police called one of the

stolen cell phones and heard it ringing inside the house.

T he Solano County District Attorney filed a juvenile wardship petition

alleging that K.B. com mitted three counts of felony second degree robbery (Pen.

Code, § 211) and that he personally used a firearm in the comm ission of those

offenses ( Id., §§ 12022.5, subd. (a)(1), 12022.53, subd. (b).) On July 24, 2019, the

prosecutor moved to strike the firearm enhancements as to all counts. O n July

30, 2019, K.B. admitted to one count of second degree robbery, 2 and the ju venile

court, pursuant to the prosecutor’s motion, d ismissed the other two counts

.

In advance of the dispositional hearing, the probation department filed a

report which noted that K.B. had a history of drug use and poor school

performance. By his own account , K.B. started using marijuana when he was 16

years old and had been using it almost daily since his friend was shot and killed

in June 2018. He had used marijuana two days before committing the robbery at

issue in these proceedings. He had al so “experimente[d] with alcohol” once in

2019. The probation department assessed K.B. as a “moderate risk” for

reoffense, due in part to his history of drug use and poor school performance.

2 T he parties stipulated that the detention report supplied the factual basis

for the plea. However, that report wrong l y suggested that K.B. was the minor

armed with the firearm. The stipulation excluded this erroneous fact.3

At the dispositi o nal hearing on August 16 , 201 9

, the juvenile court

adjudged K.B. a juvenile court ward and placed him on probation in his mother’s

home. The court imposed various terms of probation, including a condition that

K.B. abstain from using or possessing illegal drugs and alcohol and that he

“submit to dru g/alcohol testing by any Peace Officer.” M inor’s counsel objected to

the alcohol and drug testing condition, arguing that there was “no nexus

regarding controlled substances to the underlying offense.” The juvenile court

disagreed , finding “ongoing illegal use of marijuana as recently as July of 2019

according to the minor, so there would be a nexus to his rehabilitation.” Th is

appeal followed.

DISCUSSION

“ ‘The purposes of juvenile wardship proceedings are twofold: to treat and

rehabi litate the delinquent minor, and to protect the public from criminal

conduct.’ ” ( In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 ( Ricardo P. ).) When

imposing probation conditions

, the juvenile court consider s the circumstances of

the offense as well as the minor ’ s entire social history. ( In re Tyrell J. (1994) 8

Cal.4th 68, 81, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th

128, 130, 139.) Moreover, “ ‘[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.’ ” ( Ricardo P.

, at p.

1118.)

We review conditions of probation for abuse of discretion. ( Ricardo P.

,

supra , 7 Cal.5th at p. 1118.) Thus, we will uphold the juvenile court’s order

unless “ ‘the condition is “arbitrary or capricious” or otherwise exceeds the

bounds of reason under the circumstances.’ ” ( Ibid. ) U nder Lent

, supra

,

15 Cal.3d 481, a probation condition is unreasonable and therefore invalid if it

has no relationship to the crime, relates to conduct which is not itself cr iminal,

and requires or forbids conduct not reasonably related to future criminality. ( Id.4

at p. 486; see Ricardo P. , at p. 1118.) “[T]h e Lent test governs in juvenile and

adult probation cases alike. ” ( Ricardo P. , at p. 1119.)

K.B. asks us to strike the juvenile court’s drug and alcohol testing

condition as unreasonable un der Lent

, supra , 15 Cal.3d 481. He contends that

the testing condition is not proper because it is not reasonably related to his

offense or to future criminal ity. He also claims that under the Supreme Court’s

recent decision in Ricardo P.

, such a testing condition cannot be justified because

it ensures compliance with other conditions of probation. And, he argues, again

citing Ricardo P., that the burden of t he testing condition on his privacy is

substantially disproportionate to its potential impact on his rehabilitation or the

protection of society

. We are not convinced

.

If, as in this case, a minor is found to be a person described by section 602

and th e court does not remove the minor from the physical custody of his or her

parents, section 729.3 expressly permits a juvenile court to “ require the minor to

submit to urine testing upon the request of a peace officer or probation officer for

the purpose of determining the presence of alcohol or drugs.” In addition, when

a minor is adjudged a juvenile court ward, section 730 authorizes the juvenile

court to “ impose and require any and all reasonable conditions that it may

determine fitting and pro per to the end that justice may be done and the

reformation and rehabilitation of the ward enhanced. ” ( Id.

, subd. (b).) This

statute has been held to authorize probation conditions requiring drug and

alcohol testing by blood, breath, or urine. ( In re P. A. (2012) 211 Cal.App.4th 23,

40; see In re Jimi A. (1989) 209 Cal.App.3d 482, 487

– 488 [upholding probation

condition requiring ward to submit to “ ‘random drug testing’ ”]; In re Jose R.

(1982) 137 Cal.App.3d 269, 278

– 280 [upholding probation condition requiring

ward to submit to “ ‘any tests’ ” to determine alcohol and drug use].) Given

K.B.’s prior history of experimentation with alcohol and daily marijuana usage,5

including two days before the robbery, the juvenile court acted well within it s

discretion in ordering K.B. to submit to drug and alcohol testing

.

The question remains whether the testing condition is nevertheless invalid

under the Lent test. In re Kacy S. (1998) 68 Cal.App.4th 704 ( Kacy S. ) is directly

on point. In that case, t wo minors admitted they were described by section 602

after participating in a school fight and were placed on six months’ probation in

the physical custody of their parents

. ( Id. at pp. 707

– 708 .) Although there was

no indication in the minors’ offense or social histories of substance abuse, the

juvenile court ordered each minor to “ ‘submit to urine testing to determine the

presence of alcohol and illegal drugs’ ” as a condition of probation. ( Ibi d .) The

appellate court concluded that the testing condition was authorized by section

729.3. ( Id. at pp. 708

– 709 .)

The Kacy S. court additionally determined that the condition was

permissible under Lent. ( Kacy S.

, supra

, 68 Cal.App.4th at pp. 709

– 710 .) It

reasoned that the urine testing condition related to conduct which was itself

criminal because it was “ designed to detect the presence of substances whose use

by minors is unlawful

. ” ( Id. at p. 710 .) T he appellate court also noted that, in

enacting section 729.3, the Legislature expressly declared that alcohol and drug

abuse are among “ ‘[t]he precursors of serious criminality by juveniles.’ ” ( Id

. at

pp. 7 0 8

– 7 0 9, fn. 2

, 710 ; see Stats

. 1989

, ch. 1117, § 1, subd. (a)(2) ; see also id. § 1,

subd. (a)(1) [“ The problem of juvenile delinquency should be addressed at its

inception rather than after it has progressed to serious criminality.”].) Thus, the

testing condition was reasonably related to future criminality. ( Kacy S. , at

p. 710. ) Because the condition failed two of the three prongs of the Lent

formulation, its imposition was a valid exercise of the juvenile court’s discretion.

( Ibid. )6

The Kacy S. court rejected the argument that the testing condition was an

unreasonable invasion of privacy, subjecting the minors to unreasonable search

and seizure. (

Kacy S.

, supra

, 68 Cal.App.4th at pp. 710

– 711.) Noting that “ a

probationer ’ s expectations of priva cy are diminished by [his or her] probation

status and are subordinated to governmental activities which reasonably limit

the right of privacy ,” t he court concluded that the drug and alcohol testing

condition was “ a reasonable intrusion upon a probationer ’ s expectations of

privacy .” ( Id. at p. 711.) Specifically, t he court reasoned: “ The governmental

interest in testing is strong. The juvenile court ’ s goals are to protect the public

and rehabilitate the minor. [Citations.] Section 729.3 serves both goals. It

protects the public by establishing procedures to deter or prevent use of alcohol

and unlawful drugs by minors. It advances the rehabilitation of young offenders

by seeking to detect alcohol or drug use as a precursor of criminal ac tivity in

order to facilitate intervention at the earliest time. [Citations.] Although urine

testing constitutes an intrusion on privacy, the effect of the intrusion is

outweighed by the government ’ s legitimate interest in closely monitoring the

rehabili tation of minors who are granted probation and returned to the custody

of their parents. ” ( Ibid. )

Like Kacy S.

, we conclude that the testing condition here is valid under

Lent because it directly relates to conduct which is itself criminal

— the unlawful

use of drugs or alcohol by a minor. T he testing condition at issue is narrowly

drawn to determine in a direct and definitive way whether K.B. is illegally using

alcohol and drugs. Further, as discussed above, the Legislature has determined

that, at least for juveniles, illegal drug and alcohol use are “ ‘ precursors of

serious criminality .’ ” ( Kacy S.

, supra

, 68 Cal.App.4th at p. 710.) Thus, while an

alcohol and drug testing condition does represent some level of intrusion upon a

minor’s privacy interests, it also “ protects the public by establishing procedures7

to deter or prevent use of alcohol and unlawful drugs by minors ” and “ advan ces

the rehabilitation of young offenders by seeking to detect alcohol or drug use as a

precursor of criminal activity in order to facilitate intervention at the earliest

time. ” ( Id. at p. 711.)

In our view, nothing in Ricardo P.

, supra , 7 Cal.5th 1113 , alters this

analysis. In that case, the juvenile court placed the minor on probation and

imposed a warrantless electronic s search condition. ( Id. at p. 1115. ) The

juvenile court imposed the condition as a means of monitoring Ricardo’s drug

usage and j ustified it by inferring that Ricardo likely used marijuana during the

offenses at issue and by generalizing that teenagers typically brag about drug

use online. ( Id. at pp. 1119

– 1120 .) The minor appealed, challenging the

electronics search condition as both unreasonable under Lent and

unconstitutionally overbroad. ( Id. at p. 1116 .) The Supreme Court granted

review to address the narrow issue of whether the electronic search condition

was reasonably related to future crim inality under Lent . ( Id. at p. 1116 .) Thus,

for purposes of its opinion, the high court assumed that the electronic s search

condition was neither related to the underlying offense nor related to conduct

which was itself criminal. ( Id. at pp. 1116, 1118

– 1119 .)

In concluding that the electronics search condition was not reasonably

related to future criminality

, the Supreme Court held that the record before it,

“ which contain [ed] no indication that Ricardo had used or will use electronic

devices in conne ction with drugs or any illegal activity, [was] insufficient to

justify the substantial burdens imposed by this electronics search condition.”

( Ricardo P.

, supra , 7 Cal.5th at p. 1116 .) As the Ricardo court explained, “ Lent ’ s

requirement that a probation condition must be ‘ “reasonably related to future

criminality” ’ contemplates a degree of proportionality between the burden

imposed by a probation condition and the legitimate interests served by the8

condition.” ( Id. at p. 1122.) Since the swe eping electronics search condition

imposed “a very heavy burden on privacy with a very limited justification ,” it

was not “ ‘ “ reasonably related to future criminality” ’ ” and was therefore invalid

under Lent. ( Id. at p. 1124.)

Appellant’s comparison of the electronics search condition in Ricardo P. to

the drug and alcohol testing condition here falls short for several reasons.

Unlike an electronic s search condition that intrudes upon a range of otherwise

lawful activit y , the dr ug and alcohol testing condition relates solely to ferreting

out unlawful behavior by the minor. The testing condition is valid under Lent for

that reason alone. ( See People v. Olguin ( 2008) 45 Cal.4th 375, 379 [the three

part Lent test “is conjunctive

— all three prongs must be satisfied before a

reviewing court will invalidate a probation term”] .) In addition , the burdens

imposed by the testing condition are proportional to achieving the legitima te goal

of preventing future criminality by monitoring K.B.’s drug or alcohol use and

establishing the means for early intervention to aid in his rehabilitation. ( See

Ricardo P.

, supra , 7 Cal.5th at p. 1122 [ “ ‘conditions of probation aimed at

rehabilitating the offender need not be so strictly tied to the offender ’ s precise

crime’ [citation] so long as they are ‘ reasonably directed at curbing [the

defendant ’ s] future criminality.’ ” ]

. )

DISPOSITION

The judgment is affirmed

.9 _________________________ Sanchez, J.

WE CONCUR:

_________________________ Humes, P. J.

_________________________ Banke, J.

A158274 In re K.B./People v. K.B.