1

Filed 3/16/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re A.S., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

A.S.,

Defendant and Appellant.

 A144487

 (Alameda County

 Super. Ct. No. SFJ14024003)

I.

INTRODUCTION

In this appeal from a disposition order declaring her a ward of the juvenile court, 

A.S. (appellant) challenges two conditions of her probation. The first challenged 

condition required appellant to submit her “electronics including passwords under [her] 

control” to warrantless searches by the probation department and law enforcement

(electronic search condition). Second, appellant challenges a probation condition which 

prohibited her from unauthorized or unsupervised presence on school property (school 

grounds condition).

Appellant is not the first minor to object to an electronic search condition. In fact 

the juvenile court judge who imposed this condition on appellant is the same beleaguered 

judge whose substantially identical electronic search condition was: stricken by Division 

Two of this appellate district in In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) and 

in In re Mark C. (2016) 244 Cal.App.4th 520 (Mark C.); not stricken but found to be 

overbroad and modified by Division Three in In re Malik J. (2015) 240 Cal.App.4th 896, 
2

899-900 (Malik J.); stricken by that same division in In re J.B. (2015) 242 Cal.App.4th 

749 (J.B.); not stricken but found to be overbroad and remanded to the juvenile court for 

modification by Division One in both In re Ricardo P. (2015) 241 Cal.App.4th 676

(Ricardo P.) and In re Alejandro R. (2015) 243 Cal.App.4th 556; and not stricken but 

found to be overbroad and modified by Division Five in In re Patrick F. (2015) 242 

Cal.App.4th 104 (Patrick F.)1

Under the particularized facts of this case, we conclude that the electronic search 

condition as applied to appellant is reasonable under the test established by People v. 

Lent (1975) 15 Cal.3d 481 (Lent), and is not unconstitutionally overbroad. Accordingly, 

we affirm the imposition of this probation condition. However, we agree with appellant 

that the school grounds condition is unconstitutionally vague because it does not 

incorporate a “knowledge” requirement so as to prohibit the unauthorized or 

unsupervised presence on property she knows is school property. We order that

probation condition modified accordingly.

II.

PROCEDURAL AND FACTUAL BACKGROUNDS

A. The Wardship Petition and Appellant’s Detention At Juvenile Hall

On December 19, 2014, the Alameda County District Attorney filed a juvenile 

wardship petition under Welfare and Institutions Code section 602,

2

alleging that 17-

year-old appellant committed a misdemeanor assault by means likely to produce great 

bodily injury (Pen. Code, § 245, subd. (a)(4)). The alleged victim of the crime was 

appellant’s mother (mother).

 

1

 On February 17, 2016, the Supreme Court granted review in both In re 

Ricardo P. (S230923) (2016 Cal.LEXIS 1016) and In re Patrick F. (S231428) (2016 

Cal.LEXIS 972). In addition to these decisions, in the last nine months this appellate 

district has filed a host of nonpublished decisions relating to this same electronic search 

condition imposed by the Alameda County Juvenile Court.

2

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

otherwise indicated.
3

According to the probation department’s intake report, on December 17, 2014, 

Oakland police responded to a report of a family disturbance and battery at mother’s 

home. When they arrived mother had visible swelling to her left eye. She reported that 

appellant had been away for several days but had returned home and caused a 

disturbance. When mother tried to stop appellant from taking property from the home 

that did not belong to her, appellant cursed at and threatened mother, saying “I’m going 

to take these, get the fuck up out of my way, bitch. I’ll kill you!” She then caused 

mother to slip and fall, grabbed her, dragged her out of the house, and punched her in the 

face multiple times with a closed fist. Neighbors tried to intervene without success. 

Mother crawled back into the house, but appellant continued to threaten her through the 

window until police arrived and arrested her. Mother further claimed there were two 

prior unreported incidents when appellant assaulted her. In addition, appellant, who had 

been diagnosed at age 13 as having bipolar disorder, had not attended school for more 

than a year, came and went from the home as she pleased, smoked marijuana, and was 

out of control. The probation department recommended that, despite appellant’s 

“minimal record,” the severity of the attack on mother and the need to protect mother’s

safety warranted that appellant be detained until disposition.

On December 22, 2014, the juvenile court ordered appellant detained for her own 

protection and the protection of others. Crisis intervention was ordered and the matter 

was continued to the next day. On December 23, appellant admitted the allegation in the 

section 602 petition and the juvenile court exercised jurisdiction over her. Pending 

disposition, it was ordered that appellant remain in juvenile hall for the protection of 

herself and others. A guidance evaluation was ordered, as well as crisis intervention. 

The disposition hearing was set for January 8, 2015.3

 

3

 All further dates are in the calendar year 2015 unless otherwise indicated.
4

B. Disposition

1. Reports

The probation department’s disposition report included summaries of interviews 

with appellant, mother, and other family members. Appellant reported having “issues”

with mother since she was 12, and that her sister and grandmother also had poor relations 

with mother. Appellant’s father died before she was born, and she claimed that mother 

had kicked her out of the home approximately four times since she was 14. Around that 

time, appellant was diagnosed with depression and was prescribed Prozac. But, she 

stopped taking it because she did not like the way it made her feel. She received

counseling and had been seeing a therapist for about two years. Appellant admitted that 

she smoked marijuana about two times per month to deal with her stress. She denied 

using alcohol or other drugs. Appellant told the interviewer that she no longer wanted to 

live with mother. Appellant’s role models were her grandmother and sister. She noted 

that she did not have friends, but “associates” she met through a youth program. She 

hoped to go to college like her sister.

Mother reported that appellant had been having behavioral problems since she was 

in the fourth grade when she started having fights with other students and refused to 

follow rules. She ran away from home four times since then. Mother also reported that 

appellant had been using marijuana and alcohol frequently, and was involved 

romantically with a 23-year-old adult. Appellant had been diagnosed with depression, 

bipolar disorder, and schizophrenia. Mother was opposed to appellant going to live with 

her grandmother, who mother suspected was taking drugs, or with appellant’s 20-yearold sister (sister), who was unable to look after appellant at night.

Sister was interviewed and reported that she had two jobs and was currently 

enrolled in college. Like appellant, sister left home at an early age because of conflict

with, and alleged physical abuse by, mother. Sister stated she wanted appellant to live 

with her, and grandmother would share responsibility for appellant by looking after her 

while sister worked her graveyard shifts.
5

Grandmother was also interviewed and agreed with sister that mother’s home was 

not good for appellant because of their poor relationship. Grandmother reported that 

mother “is a very violent person,” and that sister’s home would be a better placement for 

appellant. Grandmother also said she would find a larger apartment if it was determined 

that her home was the best placement for appellant.

A risk assessment conducted by the probation department concluded that appellant 

had a moderate risk of reoffending within a year. The primary concerns were appellant’s 

poor relationship with mother, which had resulted in her living the life of a runaway for 

relatively long periods, and the fact that she had not attended school for more than one 

and one-half years. The report concluded that appellant was in immediate need of 

services to help her resolve her family and social problems. The department did not 

oppose a placement with either grandmother or sister, but expressed a preference for 

grandmother due to sister’s work schedule. Whatever placement was made, the probation 

department recommended that appellant be “intensely monitored,” and provided with 

therapy services to help her “get back on track.”

Prior to disposition, the Alameda County Mental Health Department evaluated 

appellant and filed a report.4 The mental health department concluded that appellant had 

a moderate degree of emotional disturbance, exhibited in part by a long history of having 

difficulty with self-regulation in school. It was noted that appellant also had a “high 

potential for violence towards her mother,” and a moderate degree of potential for 

violence in the community. The report concluded that appellant presented many 

challenges including mental health, social/behavioral, and educational needs that would 

 

4

 The juvenile court referred appellant to the mental health department for a

psycho-diagnostic evaluation to determine to what extent appellant was “emotionally 

disturbed; whether [she] had a potential for violence towards [her]self and others; 

identification of family dynamics that contributed to or caused [appellant] to have 

delinquent behavior; whether [appellant] has a substance abuse problem; whether 

[appellant] needs mental health services; whether [appellant] needs psychological case 

management; and identification of what type of setting would be most beneficial for 

[her].”
6

best be met by a coordinated, multi-disciplinary team. She needed to be in a family 

setting where her daily activities could be monitored. She also needed intensive 

therapeutic services, such as day treatment, and a specialized school designed for 

emotionally disturbed youths. If family placement resulted in inadequate supervision, 

then a higher level of care, such as a residential treatment facility, should be considered 

for her.

2. The January 8 Hearing

At the January 8 disposition hearing, the court stated that it had considered the 

relevant reports and then conducted a lengthy discussion about how to secure a placement

for appellant outside juvenile hall that would afford her with the “24/7” supervision that 

she needed. Ultimately, the court elected to make disposition findings and order that 

appellant be released for placement in sister’s home, but to continue the matter for a 

home visit and to ensure that appellant was going to receive the stability she needed.

The court then adjudged appellant a ward of the court subject to the care, control 

and supervision of the probation department. As is pertinent here, the court included as 

conditions of appellant’s probation that she not use or possess any drugs, that she submit 

to regular drug testing, that she not associate with anyone who uses, possesses, or sells 

drugs, and that she was subject to a “four way search clause” that included her electronic 

devices and passwords. In addition, the court ordered the following condition of 

probation: “Not be on the campus or grounds of any school unless enrolled, 

accompanied by a parent or guardian or responsible adult, or authorized by the prior 

permission of school authorities.”

When the juvenile court announced that appellant was subject to an electronic 

search condition, her trial counsel produced a legal brief opposing the condition and 

requested a hearing on the matter. The brief discussed a number of cases concerning the 

court’s power to impose conditions of probation, and decisions extant at the time that 

dealt with electronic privacy generally, including the then-recent United States Supreme 

Court case of Riley v. California (2014) 134 S.Ct. 2473. However, the brief included no 

information about how the electronic search clause might impact appellant’s privacy 
7

rights in particular, nor did it suggest how the clause might be made more specific while 

still meeting the concerns of the juvenile court.

The juvenile court continued the matter for a hearing so the People would have 

time to respond in writing. In the meantime, the court imposed the electronic search 

condition. It also referred appellant to anger management and placed her on “home 

supervision.”

3. Progress Report

The probation department filed a progress report on February 5. By that time

appellant had begun receiving therapeutic services through the West Oakland Health 

Center, and was enrolled in a STARS independent study high school program. The 

February 5 report noted too that appellant had tested positive for marijuana on 

January 30, although she denied using the drug. Sister reported no problems in the home, 

but mother had reported that she had been receiving obscene telephone calls and she 

suspected appellant and sister were responsible. Both denied the allegations. Mother 

also showed the probation officer postings from Facebook, which discussed appellant’s 

drug and alcohol use and her relationship with a 23-year-old adult. A home visit to 

sister’s residence revealed that it was well kept with no evidence of drugs or alcohol. It 

appeared that appellant had made a good adjustment to sister’s home.

4. The February 27 Hearing

On February 27, after conducting a hearing on appellant’s objection to the

electronic search condition, the juvenile court affirmed that the condition would be 

imposed on appellant. The court began its ruling by summarizing factors which indicated

that appellant was suffering from “fairly substantial psychological issues,” including the 

fissure between appellant and her mother, appellant’s romantic relationship with a 23-

year-old adult, her smoking marijuana and drinking alcohol frequently, and her diagnoses 

of depression, bipolar disorder, and schizophrenia. The court found that appellant’s 

“[d]rug usage issues, issues with regards to her safety, also in the area of where she’s 

going to stay, and with the fact she at that time was not yet 18 years old and had been 
8

involved in a relationship with a 23-year-old adult shows clearly that she needs to be 

monitored as closely as possible.”

The juvenile court also made reference to the fact that appellant used Facebook,

which would provide a means for the court to monitor “conduct which can endanger her, 

conduct which will be a violation of probation terms and conditions.” In this regard, the 

court took particular notice of the reality that many minors on probation use electronics 

and the Internet as their primary form of communication. In light of that reality, the court 

concluded that monitoring appellant’s use of electronic devices was necessary to give the 

court the kind of supervision that was needed to ensure appellant’s success on probation. 

Indeed, in light of this broad range of issues, the juvenile court expressed substantial

concern whether appellant’s wardship could be successfully supervised and the 

developmental dangers appellant faced could be successfully monitored without 

electronic monitoring.

Appellant’s counsel was provided an opportunity to address the electronic search 

clause, and did so by stating there was no valid legal basis for its imposition. During his 

brief argument counsel made a general reference to the fact that appellant used a cell 

phone and had access to social media. However, once again counsel did not specify how 

the clause would impact appellant’s particular privacy interest, nor did counsel offer any 

suggestion as to how the clause might be narrowed to minimize intrusion on appellant’s 

privacy while serving the interest of the juvenile court in preventing future criminality 

and facilitating the supervision of appellant’s probation.

After hearing from counsel, the court denied the motion to strike the electronic 

search condition.

III.

DISCUSSION

A. Legal Principles and Standard of Review

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.”
9

“ ‘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 In re Victor L. (2010) 182 Cal.App.4th 902 . . . , the 

court explained, ‘ “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.” ’ (Id. at 

pp. 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.]” (J.B., supra, 242 Cal.App.4th at pp. 753-754.)

However, while the juvenile court’s discretion is broad, it is not unlimited. “A 

probation condition is invalid 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.” ’ 

([Lent, supra,] 15 Cal.3d [at p.] 486 . . . .) In order to invalidate a condition of probation 

under the Lent test, all three factors must be found to be present. [Citations.] This threepart test applies equally to juvenile probation conditions. [Citation.]” (J.B., supra, 242 

Cal.App.4th at p. 754.)

“In addition, a juvenile court may not adopt probation conditions that are 

constitutionally vague or overbroad. [Citations.]” (Malik J., supra, 240 Cal.App.4th at 

p. 901.) “A probation condition ‘must be sufficiently precise for the probationer to know 

what is required of him, and for the court to determine whether the condition has been 

violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A 

probation condition that imposes limitations on a person’s constitutional rights must 
10

closely tailor those limitations to the purpose of the condition to avoid being invalidated 

as unconstitutionally overbroad. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 

890 (Sheena K.).)

“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. [Citation.] But 

‘[w]hile we generally review the court’s imposition of a probation condition for abuse of 

discretion, we review constitutional challenges to probation conditions de novo.’ 

[Citation.]” (J.B., supra, 242 Cal.App.4th at p. 754.)

B. The Electronic Search Condition Is Reasonable and Constitutional 

1. The Lent Test

As noted above, the same electronic search clause challenged by appellant has 

been addressed in several recent First District Court of Appeal decisions. The analytical 

touchstone for all of the cases referred to in our Introduction, as well as others decided in 

the relatively short time that appellate courts have been scrutinizing electronic search 

clauses as conditions of juvenile probation, are the three so-called Lent factors

summarized above. In virtually all cases, it is the third factor, whether the condition is 

“ ‘reasonably related to future criminality’ ” (Lent, supra, 15 Cal.3d at p. 486), that 

garners the most jurisprudential attention.

And so it is here. The Attorney General does not argue forcefully or convincingly 

that the electronic search clause condition imposed in this case was related to the crime 

for which appellant was adjudicated to be a ward of the court—that crime was a physical 

assault on appellant’s mother.5 Nor does the Attorney General argue that the electronic 

search clause related to conduct that is itself criminal. Like virtually all other cases 

involving challenges to this probation condition, it is the third Lent factor that is at issue.

 

5

 The Attorney General does make reference in her brief to the unproven 

allegation by mother that appellant and her sister were the source of obscene telephone 

calls she had been receiving since the wardship petition was filed. However, this 

speculation does not satisfy the first Lent factor as having a “relationship to the crime of 

which the offender was convicted.’ ” (Lent, supra, 15 Cal.3d at p. 486.)
11

At the February 27 hearing on appellant’s objection to the electronic search

condition, the juvenile court spoke in detail about the circumstances that created a serious 

challenge to appellant remaining crime-free while on probation:

“Going back to the dispositional report dated January 8th, 2015, the report itself 

on page 3 states that [appellant] stated that she no longer wants to live with her mother 

. . . but has concerns that her mother will not allow her to see her brother, and that the 

mother on page 4 stated that [appellant] was involved in a romantic relationship with a 

23-year-old female, that [appellant] was smoking marijuana and drinking alcohol 

frequently, and [appellant] has been diagnosed with depression, bipolar [disorder], and 

schizophrenia, not inconsistent with the Guidance Clinic report, and that she was 

hospitalized in November of 2014 due to smoking quote laced marijuana.

“So there are clearly some fairly substantial psychological issues: Drug usage 

issues, issues with regards to her safety, also in the area of where she’s going to stay, and 

with the fact she at that time was not yet 18 years old and had been involved in a 

relationship with a 23-year-old adult shows clearly that she needs to be monitored as 

closely as possible. And this situation, as the cases do allow, the probation terms and 

conditions designed to monitor such issues that we have, they’re designed in this 

particular case, I believe they’re designed to monitor the terms and conditions to be of 

good conduct, obey all laws, the drug conditions, school conditions, curfew, where she’s 

going to be, as well as her safety.

“And this person who clearly uses Facebook, that’s one version of the various 

electronics that are available to her. And as the cases that are cited by [appellant’s 

counsel] do indicate, that these types of terms and conditions are reasonable, because 

we’re clearly looking at future criminality, we’re clearly looking at conduct which can 

endanger her, conduct which will be a violation of probation terms and conditions.”

After briefly discussing several cases upholding the condition, the juvenile court

made additional references to the record evidence supporting imposition of the clause in 

this case:
12

“And one of the things that we have in dealing with our minors here on probation 

is that they are very directly tied to electronics. In so many ways it governs their life, but 

it certainly is the primary way they communicate. They communicate more by 

electronics than by face-to-face contact. And we can put them—short of putting them in 

the Hall when we have them outside, we can put them—even on GPS, we can put them 

on our ankle bracelet for electronic monitoring. That’s still not going to give us the kind 

of supervision that we need, that being able to access their electronics using their 

passwords would provide to us.”

The juvenile court then recited record evidence concerning appellant’s tenuous 

home life and social choices that supported the need for close monitoring, including 

electronic monitoring:

“And in this particular case, she really has some criminality issues with regards to 

drugs. She has safety issues with regards to her behavior and her lack of relationship. 

She basically—as you said, [minor’s counsel], I agree she has a dysfunctional 

relationship with her mother. She’s living now with her sister, who is very impressive. 

She’s very, very solid. I’m so happy she’s been able to step forward. She has two jobs 

herself. She’s only a couple years older. She’s 20 years old. Just turned 20 

February 19th. As impressive as she is, there’s a lot to be expected of her. She’s not 

going to be able to have the kind of direct supervision we’re going to need because of her 

own situation.

“There’s a grandmother who is also there, and she’s—she seems to be helpful, but 

she’s on the periphery, and she’s going to be able to supplement.

“There’s going to be a lot of concerns about being able to supervise [appellant], 

and this prior relationship with this adult female circling, it obviously gives me great 

concerns with regards to what danger the female may pose to her and a lot of drugs. 

There’s a lot of issues that [appellant] has, and without her ability, my ability, to monitor 

her with electronics and passwords, we’re not going to be able to appropriately help her 

be successful on probation.
13

“For those reasons, the motion to modify probation terms and conditions, to delete 

the search of electronics and passwords, is denied.”

These facts amply justify imposition of the electronic search condition in this 

instance. Other cases from this appellate district referred to in our Introduction do not 

command otherwise. Indeed, Division Two specifically emphasized that its holding 

striking an electronic search clause in Erica R., supra, 240 Cal.App.4th 907 was not 

intended to be a blanket precedent condemning such probation conditions under all 

circumstances: “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.” (Id. at p. 914.) In this case, appellant’s 

history and circumstances mandate a degree of supervision which reasonably connects

the electronic search condition to the prevention of future criminality.

Our Supreme Court also has placed its imprimatur on the concept that conditions 

of probation that facilitate supervision of the probationer can justify their imposition. In 

People v. Olguin (2008) 45 Cal.4th 375, the defendant challenged a condition of 

probation that required the probationer to “notify his probation officer of the presence of 

any pets at [the] defendant’s place of residence.” The defendant contended the 

challenged condition was not reasonably related to future criminality, limited his 

fundamental rights, and was unconstitutionally overbroad. (Id. at p. 378.) The high court 

disagreed, noting that “[p]robation officers are charged with supervising probationers’

compliance with the specific terms of their probation to ensure the safety of the public 

and the rehabilitation of probationers. Pets residing with probationers have the potential 

to distract, impede, and endanger probation officers in the exercise of their supervisory 

duties. By mandating that probation officers be kept informed of the presence of such 

pets, this notification condition facilitates the effective supervision of probationers and, 

as such, is reasonably related to deterring future criminality.” (Ibid.) We reach a parallel 

conclusion under these facts; the electronic search condition is reasonably related to 

deterring future criminality because it facilitates the type and level of supervision of 

appellant which is absolutely necessary for her to succeed on probation.
14

People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) provides 

additional support for our conclusion. In that case, the defendant pleaded no contest to 

making criminal threats and resisting or deterring an officer and also admitted a gang 

allegation. (Id. at p. 1172.) On appeal, he challenged a probation condition requiring 

him to submit passwords to all electronic devices and social media sites, and to submit to 

probationary searches of those devices and sites. The Ebertowski court concluded that 

the electronic search condition was reasonable under the Lent test, not only because it 

was related to the defendant’s crimes, but because it “was also necessarily related to his 

future criminality.” Closely monitoring the defendant’s gang associations through his use 

of social media was, the court found, the “only way” to safely allow him to remain in the 

community without posing “an extreme risk to public safety.” (Id. at p. 1177.) By a 

parity of reasoning, the electronic search condition imposed on appellant is the best if not 

the only way to safely place her with sister without posing an extreme risk to the safety of

herself, her mother and the public.

Appellant is very troubled, torn by serious mental illnesses, a dysfunctional family 

life,

6

a significant gap in her educational training, and poor social choices that, if not 

controlled, would doom her to reoffend and to violate probation. The juvenile court did 

not simply impose the electronic search clause reflexively, but with acute awareness of 

the need for close supervision of appellant’s daily activities for there to be any hope of 

her success on probation. Not only was this the juvenile judge’s conclusion, but the 

social and mental health professionals advising the court likewise concluded that close, 

daily monitoring of appellant was essential to the success of her wardship, and the safety 

of appellant, her estranged family member, and the community. In fact, the department 

warned that if sufficient supervision was not available for appellant, a higher level of 

care, such as a residential treatment facility, should be considered.

 

6

 Appellant’s biological father committed suicide by hanging and his body was 

discovered by mother when she herself was 18 years old.
15

As did the juvenile court, we conclude that the electronic search condition in this 

case was not only warranted, but vital to ensure appellant’s compliance with the terms of 

her probation. It also represents perhaps the best means by which the panoply of social 

and mental challenges that appellant must confront and overcome can be supervised and 

monitored. This was necessary, not only for appellant’s sake, but to protect the public.

Thus, the record here stands in stark contrast to Erica R. and Mark C., which 

concluded that under the facts of those cases, the risk of future criminality did not justify 

imposition of the electronic search clauses. For example, in Erica R. the court found

there was “ ‘no reason to believe’ ” that the electronic search condition would “ ‘serve the 

rehabilitative function of precluding [the minor] from any future criminal acts.’ 

[Citation.]” (Erica R., supra, 240 Cal.App.4th at p. 913.) Similarly, in Mark C. the court 

found no reasonable connection between the minor’s criminal behavior (possession of a 

folding knife on school property), and the risk of future drug use, sufficient to justify 

imposition of the electronic search clause. (Mark C., supra, 244 Ca.App.4th at pp. 525, 

535.) Nor is this a case, like J.B., where the court rejected an electronic search clause 

because the asserted justification was only to “facilitate general oversight of the 

individual’s activities.” (J.B., supra, 242 Cal.App.4th at p. 758.) Here, imposition of an 

electronic search clause as a condition of appellant’s probation was a reasonable means 

of imposing the level of supervision required to prevent future criminality and, therefore,

it was not an abuse of discretion for the juvenile court to include it. 

2. The Overbreadth Doctrine

Appellant alternatively argues that if the electronic search condition is reasonably 

related to preventing her future criminal conduct and the supervision of her probation, it 

nevertheless is unconstitutionally overbroad because it is not narrowly tailored to achieve 

those objectives without unduly impairing her First Amendment rights. We disagree.

Appellant’s broad array of problems mandates intensive supervision in order for 

her to have any chance of success on probation. Thus, a broader search condition is 

justified here. Again, Ebertowski, supra, 228 Cal.App.4th 1170 reinforces our 

conclusion. The electronic search condition in that case was not unconstitutionally 
16

overbroad because the defendant’s gang affiliation was undisputed and the “evident 

purpose of the password conditions was to permit the probation officer to implement the 

search, association, and gang insignia conditions that were designed to monitor and 

suppress [the] defendant’s gang activity. Without passwords for [the] defendant’s 

devices and social media accounts, the probation officer would not be able to search them 

. . . in order to assess [the] defendant’s compliance with the unchallenged association and 

gang insignia conditions.” (Id. at p. 1175.) In this case, it was undisputed that appellant 

needed intensive supervision if she was released from juvenile hall. A broad electronic 

search condition is consistent with that level of supervision.

Appellant now suggests that the electronic search condition imposed on her was

not narrowly tailored in several respects. She notes that the password disclosures 

required in Ebertowski were limited to social media accounts, but here the clause covers 

all of her electronic passwords “including passwords [relating] to banking, health care, 

educational and other accounts.”

We begin by pointing out that constitutional challenges to probation conditions 

that do not involve a pure question of law are subject to forfeiture if not raised in the trial 

court. As our Supreme Court has stated, “we do not conclude that ‘all constitutional 

defects in conditions of probation may be raised for the first time on appeal, since there 

may be circumstances that do not present “pure questions of law that can be resolved 

without reference to the particular sentencing record developed in the trial court.” 

[Citation.] In those circumstances, “[t]raditional objection and waiver principles 

encourage development of the record and a proper exercise of discretion in the trial 

court.” [Citation.]’ [Citation.]” (In re Sheena K., supra, 40 Cal.4th at p. 889.)

Whether or not appellant’s particularized arguments regarding overbreadth have 

been preserved, this principle serves to highlight the fact that there is nothing in the 

record supporting the supposition that 17-year-old appellant has applications relating to 

banking, health care, or educational Web sites or accounts, nor does the record offer any 
17

information as to how appellant uses electronic devices and how the search clause might 

infringe on her daily privacy.

7

Appellant also asserts that the clause is overbroad because it creates a risk that 

probation department workers could “control and modify her personal accounts.” Again, 

there was no evidence presented below that appellant had access to any such accounts. 

This conjectural risk simply does not override the importance that the probation 

department have access to appellant’s passwords for legitimate rehabilitative and 

supervisorial purposes.

Rather than assume such rogue probation supervision is likely to occur, or 

speculate as to how appellant’s individualized privacy could be impacted by the 

electronic search clause, we will simply point out that appellant is not without a remedy. 

If she can articulate specific concerns as to how the electronic search clause actually 

impacts her privacy adversely, that matter may be brought to the attention of the juvenile 

court in a motion to modify the terms of appellant’s probation. (§ 1203.3, subd. (a) [“The 

court shall have authority at any time during the term of probation to revoke, modify, or 

change its order of suspension of imposition or execution of sentence.”]; People v. 

Cookson (1991) 54 Cal.3d 1091.)8

To be sure, there are cases that have held electronic search clauses imposed as a 

condition of probation to be unconstitutionally overbroad, given the circumstances of the

particular case. But, it should be clear from the above recitation from the juvenile court 

record that we are reviewing a rather unique constellation of facts in this delinquency 

matter. Appellant does not need her electronic devices monitored simply because she is a 

 

7

 While there is a record reference to appellant having a cell phone, there is no 

information as to whether it is a smart phone that provides broader communication and 

Internet access. Also, it is unclear whether appellant’s access to Facebook as referenced 

in the record was limited to computer access.

8

 To preserve judicial resources and to protect the ward’s rights and to further the 

goals and purposes of the juvenile wardship structure, we think it is the better practice to 

have the particulars of electronic device access probation conditions raised by the minor’s 

counsel and addressed by the juvenile court in the first instance.
18

drug and alcohol user, or a chronic truant, or a person suffering from significant mental 

health issues, or someone who is trying to adjust to a new home life with her young 

sister, or because she is a potential danger to mother and the public. The clause is 

justified here because appellant has all of these challenges and issues.

Under the circumstances, and on this record, the court’s use of the most accessible 

tools available to supervise appellant’s progress on probation furthers the juvenile court’s 

wardship responsibility and was not unconstitutionally overbroad. “The purposes of 

juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, 

and to protect the public from criminal conduct. [Citations.] The preservation of the 

safety and welfare of a state’s citizenry is foremost among its government’s interests, and 

it is squarely within the police power to seek to rehabilitate those who have committed 

misdeeds while protecting the populace from further misconduct.” (In re Jose C. (2009) 

45 Cal.4th 534, 555.) With these two purposes in mind, “the juvenile court has statutory 

authority to order delinquent wards to receive ‘care, treatment, and guidance that is 

consistent with their best interest, that holds them accountable for their behavior, and that 

is appropriate for their circumstances.’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 

615.) “All dispositional orders in a wardship case must take into account the best 

interests of the child and the rehabilitative purposes of the juvenile court law. [Citation.]”

(In re S.S. (1995) 37 Cal.App.4th 543, 550.)

3. Penal Code section 632

Alternatively, appellant argues that the electronic search condition permits the 

intrusion on the privacy of third parties in violation of Penal Code section 632 (section 

632).

9

 

9

 Section 632, subdivision (a) provides: “Every person who, intentionally and 

without the consent of all parties to a confidential communication, by means of any 

electronic amplifying or recording device, eavesdrops upon or records the confidential 

communication, whether the communication is carried on among the parties in the 

presence of one another or by means of a telegraph, telephone, or other device, except a 

radio, [is subject to a fine, incarceration, or both].”
19

First, appellant forfeited this claim by failing to raise it in the trial court. (People 

v. Aguilar (2015) 60 Cal.4th 862, 867-868.) Second, it is based solely on the privacy 

rights of third parties under Penal Code section 632. Therefore, appellant lacks standing 

to raise the issue. “Courts are created to resolve cases and controversies and not to render 

advisory opinions or resolve questions of purely academic interest. Accordingly, courts 

will not consider issues tendered by a person whose rights and interests are not affected.” 

(B.C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929, 947–948.)

C. The School Grounds Condition is Vague and Must Be Modified 

The disposition order also subjects appellant to a school grounds condition which 

requires that she “[n]ot be on the campus or grounds of any school unless enrolled, 

accompanied by a parent or guardian or responsible adult, or authorized by the prior 

permission of school authorities.” She asserts this school grounds condition is 

unconstitutionally vague unless it is modified to include a “knowledge” requirement,

such that appellant can only be adjudged to violate her probation if she is on property she 

knows is part of a school campus or grounds. Appellant reasons as follows:

“While some school grounds are readily identified as such, that is not always the 

case. The boundaries of school campuses can include, for example, athletic fields, 

theaters, residence halls, restaurants and churches or other places of worship. 

Accordingly, the probation condition requiring that appellant ‘not be on the campus or 

grounds of any school unless enrolled, accompanied by a parent or guardian or 

responsible adult, or authorized by prior permission of school authorities’ must be 

modified to require proof of knowledge. [Citation.]”

10

This division recently had occasion to address the “knowledge” or “scienter” issue 

in In re Kevin F. (2015) 239 Cal.App.4th 351 (Kevin F.). The minor in that case sought 

to modify a condition of probation that prohibited him from possessing “ ‘anything that 

 

10

 While appellant concedes that her trial counsel did not object to the school 

grounds condition, respondent acknowledges that a facial constitutional challenge to a

probation condition is subject to de novo review and is not forfeited by the failure to 

object in the trial court. (Sheena K., supra, 40 Cal.4th at p. 889.)
20

you could use as a weapon or someone else might consider to be a weapon.’ ” (Id. at 

p. 357.) We began our analysis of that issue with a review of the origins of the 

constitutional prohibition against vague probation conditions:

“The prohibition on vagueness is rooted in ‘ “ordinary notions of fair play and the 

settled rules of law,” and a statute that flouts it “violates the first essential of due 

process.” ’ [Citation.] This concern for fair warning is aimed at ensuring that a ‘ “person 

of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that 

he may act accordingly.” ’ [Citation.] The fear is that vague laws will ‘ “trap the 

innocent.” ’ [Citation.] More broadly, ‘ “ ‘a law that is “void for vagueness” . . . 

impermissibly delegates basic policy matters to policemen, judges, and juries for 

resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and 

discriminatory application.” ’ ” ’ [Citation.]” (Kevin F., supra, 239 Cal.App.4th at 

pp. 357-358.)

We went on to conclude that the weapon use condition at issue in Kevin F. was 

unconstitutional, holding that without a knowledge or scienter modifier the prohibition 

quoted above did not provide adequate notice of the prohibited conduct. (Kevin F., 

supra, 239 Cal.App.4th at pp. 360-361.) We pointed out that the language was broad 

enough to prohibit possession of an “ordinary household object” that could injure 

someone if used as a weapon, even if the minor did not have the intent to use it in that 

fashion. (Ibid.)

Applying the rationale of Kevin F. and others like it,

11 we conclude the school 

grounds condition imposed here is unconstitutionally vague without a knowledge 

requirement. Appellant is correct that the clause goes far beyond prohibiting 

unauthorized presence in school buildings or other areas where there can be no doubt the 

 

11

 Examples of cases in which the court modified conditions of probation to 

include a knowledge requirement include: Sheena K., supra, 40 Cal.4th at pp. 891-892

[probation condition limiting association with anyone disapproved by probation 

department]; People v. Kim (2011) 193 Cal.App.4th 836, 843 [firearm possession clause]; 

In re Victor L. (2010) 182 Cal.App.4th 902, 912-913, 931 [weapon and ammunition 

possession].)
21

area is part of a school campus (a gymnasium, for example). Instead, it covers any 

physical area that comprises part of a school “ground” or campus. Given the diverseness 

and expansiveness of some school facilities, it is easy to imagine appellant being present 

in an area that is part of a school ground, but where there is no indicia of that association. 

For this reason, the school grounds condition is modified to include a “knowledge”

requirement, as set forth below.

IV.

DISPOSITION

The school grounds condition is modified to read: “The minor shall not knowingly

be on the campus or grounds of any school unless enrolled, accompanied by a parent or 

guardian or responsible adult, or authorized by the prior permission of school 

authorities.” As modified, the judgment is affirmed.

_________________________

RUVOLO, P. J.

We concur:

_________________________

REARDON, J.

_________________________

RIVERA, J.
22

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Leopoldo E. Dorado

Counsel for Appellant: Stephanie M. Adraktas, by appointment

of the Court of Appeal under the First

District Appellate Project’s Assisted Case

System

Counsel for Respondent: Kamala D. Harris

Attorney General of California

Gerald A. Engler

Chief Assistant Attorney General

Jeffrey M. Laurence

Acting Senior Assistant Attorney General

Seth K. Schalit

Supervising Deputy Attorney General

Donna M. Provenzano

Supervising Deputy Attorney General