1

Filed 3/2/16 In re Esteban M. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re Esteban M., a Person Coming Under 

the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

ESTEBAN M.,

Defendant and Appellant.

 A145285

 (Alameda County

 Super. Ct. No. SJ1502457901)

Defendant Esteban M., then age 16, was the subject of a wardship petition filed by 

the district attorney in March 2015 pursuant to Welfare and Institutions Code section 602, 

subdivision (a).1Pursuant to a plea agreement, Esteban admitted an allegation of 

attempted robbery. He was adjudicated a ward of the juvenile court, which imposed 

conditions of probation.

On appeal, Esteban raises two sets of issues: he claims that the juvenile court 

erred in failing to make findings and orders regarding his educational needs, and he 

objects to certain of the probation conditions as vague or overbroad. He objects to 

conditions requiring him to “be of good conduct” and “attend school on a regular basis,” 

a search condition that includes his “electronics and passwords,” and a drug condition 

 

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

specified.
2

that prohibits him from associating with users or dealers of “illegal or intoxicating 

substances” and from possessing such substances or associated paraphernalia.

We conclude that Esteban has forfeited his claim of error as to educational 

findings and orders by failing to raise the issue in the juvenile court. We will modify the 

dispositional order of the juvenile court by striking the phrase “including electronics and 

passwords” from the search condition, and we will remand the matter for the juvenile 

court to consider a tailored electronics search condition. We will also modify the drug 

condition, as we discuss below. In all other respects, we will affirm the dispositional 

order of the juvenile court. 

FACTUAL AND PROCEDURAL BACKGROUND

We draw our brief statement of the facts from reports prepared by the probation 

and police departments. In late February 2015, a 14-year-old male (the victim) reported 

to the police that he had been robbed of his skateboard twice by the same person, a 16 

year old he knew only as “Esteban.” 

The first incident took place the previous month at a skateboard park that Esteban 

frequented. The victim said Esteban told him to give up his skateboard, or Esteban 

would punch him; he gave up the skateboard. About a month later—the day before he 

went to the police—the victim saw Esteban on BART with the stolen skateboard, went 

home and told his father that Esteban would probably be at the skateboard park, and then 

went to the park with his father. They did not see Esteban, but they found and retrieved 

the skateboard.

The next day, the victim was riding the skateboard when he saw Esteban following 

him. Although he tried to avoid Esteban, Esteban followed him, caught up with him, 

grabbed him, and pushed him. The victim pushed back. Esteban then removed an object 

from his waistband area and held it up in the air, at which point the victim feared for his 
3

safety and backed away from Esteban, who took the skateboard and fled.2Later that day,

the victim reported both incidents to the police and provided a description of Esteban.

In the subsequent police investigation, an officer obtained a photograph online, 

“on ‘estabomb91’ Instagram,” showing someone who matched the victim’s description of 

Esteban holding the stolen skateboard. The officer used the photo to create a flyer, which 

he sent to various local law enforcement agencies. A police officer assigned to Esteban’s 

school recognized Esteban in the photograph, and sent the investigating officer 

photographs of Esteban and other students from the school. The victim identified 

Esteban in a photo lineup, and on March 26, 2015, Esteban was detained and informed of 

his Miranda rights, and admitted to the two incidents. 

The district attorney filed a wardship petition pursuant to Welfare and Institutions 

code section 602, subdivision (a), alleging two counts of robbery in violation of Penal 

Code section 211. The petition alleged that Esteban used a deadly and dangerous 

weapon, specifically a metal pipe, in connection with the first count. (Pen. Code,

§ 12022, subd. (b)(1).) 

At the detention hearing on March 30, 2015, the district attorney’s petition was 

amended to allege attempted robbery as the first count. Pursuant to a plea agreement, 

Esteban admitted the allegation of attempted robbery, in exchange for the dismissal of the 

second count and the weapons enhancement. The court ordered that Esteban remain 

detained and scheduled a disposition hearing for April 14, 2015. 

At the disposition hearing, the juvenile court observed: “Obviously, this is very 

concerning, the way he has preyed on this victim over two years younger than him; 

Robbing him, threatening to hit him with a type of deadly, dangerous weapon. [¶] I guess 

I’m also concerned that he reported he received Cs and Bs for his last grading period. 

But I looked at the transcript. It shows he has compiled a GPA of 1.74, which is a C 

minus. In the fall he received two Fs, one D minus, two C minuses, and one C. I’m not 

 

2

The victim identified the object as a short metal pipe. Esteban told the juvenile 

court that the object was “a camera holder used to record when I skate.” 
4

sure why the family or the Minor thinks that he’s receiving Cs and Bs. He certainly 

didn’t receive them in the last full grading period. [¶] However, this is petition 1. He’s 

16.9. So standard probation . . . is appropriate.” 

Esteban’s counsel further addressed Esteban’s status at school: “I’ve indicated to 

the Court and the Probation Department that Esteban does not have the best grades. He is 

aware of that. He also has an I[ndividualized] E[ducational] P[rogram].

[3]

 Despite the 

fact that he doesn’t have great grades, his teachers apparently think that he is a pleasure 

to have in class, and they speak very highly of him.” Esteban’s counsel noted that she 

had attached letters from three of his teachers to her letter to the probation department, 

saying, “You know, it’s not often I get teachers to write such outstanding letters.”4She 

also represented that Esteban “[wa]s going to be working on his grades.” The juvenile 

court acknowledged that the letters were “impressive.”

Esteban was adjudicated a ward of the juvenile court, which ordered him to 

continue to reside with his parents, with his care, custody and control under the 

supervision of the probation department. The court stated that Esteban was subject to 

“the standard probation terms and conditions with the following additional conditions: 

 

3

The probation department report stated that Esteban was in the eleventh grade 

with an active IEP.

4

The record includes a letter from Esteban’s counsel to the probation department, 

asking the department to recommend standard probation. In that letter, Esteban’s counsel 

reported that Esteban “ha[d] an excellent reputation at school,” and that “[h]is teachers 

thin[k] very highly of him . . . . Although, Esteban does not have the best grades, he is 

apparently ‘a pleasure to have in class.’ He also has an IEP that addresses his special 

education needs.”

Attached to the letter were three letters from Esteban’s teachers, including one 

from his special education case carrier, who wrote that he had “years of exposure to 

[Esteban] and have literally researched his life history and carefully digested his IEP.” 

He continued, “I have had the pleasure to work with Esteban on History research, English 

writing assignments, Algebra and other life skills math, and science work and I can 

testify to Esteban’s potential to work hard on school assignments and respect school 

rules.” He asked the juvenile court to “let [Esteban] return to learning at [his regular high 

school] as soon as possible.” 
5

“You shall abide by—after you get off GPS, abide by your curfew set by your 

parents, no later than 7:00 p.m., unless you’re with a parent, legal guardian, or have prior 

permission of the Probation Officer; 

“You’re not to have any contact with the named victim. Stay 100 yards away 

from him. No contact directly or indirectly including by telephonic means, electronic 

means or by third parties. . . . 

“Do not stay away from your residence overnight nor leave Alameda County 

without prior permission of your Probation Officer or parents;

“Report to the Probation Officer as directed;

“Obey all laws of the community and be of good conduct;

“Obey your parents, legal guardian, or caregiver;

“Keep the Probation Officer informed of any changes in your address, phone 

number, family, school, or employment status;

“Attend school on a regular basis. Obey all school rules and regulations. Do not 

leave the school campus during school hours without permission of school officials or the 

probation officer; 

“You and your parents are to cooperate with your Probation Officer in any 

program of guidance, counseling, and therapy, specifically drug counseling and anger 

management;

“I was also concerned you were suspended from school for fighting during this 

school year. We have to take care of that issue, sir;

“With regards to drugs, you’re not to associate with anyone you know or 

reasonably should know is using, dealing, or possessing any illegal or intoxicating 

substances. You yourself must not be under the influence or in possession of any such 

substances or possess any associated paraphernalia. 

“I think it is significant that you were using marijuana even though you claim you 

were just experimenting about two weeks prior to being detained, so I think the drug 

issue is something you definitely have to get under control;
6

“You must submit to a test of your blood, breath, or urine to detect the presence of 

such substances in your system and a search of your person, any containers you may have 

or own, your vehicle, or residence day or night at the request of a Probation Officer or

peace officer, and that includes electronics and passwords. I find that for minors who 

have been using marijuana or drugs, it is important to be able to supervise the concerns 

the Court has using electronics, because minors will purchase or sell drugs on the 

Internet, display themselves using drugs, and in possession of paraphernalia. It’s the only 

logical way of being able—to be able to supervise this important term of probation;

“The parents and Minor must cooperate with the Probation Officer in any other 

program of guidance and counseling; . . . .

“Release him to his parents on GPS today;

“Put it over for 60 days for progress report, discipline report, attendance, and 

determination of restitution.”

After some further discussion among counsel, the juvenile court and the minor, in 

which the juvenile court noted in connection with further scheduling, “We want to get 

final grades,” a hearing was set “for determination of restitution and progress report. The 

juvenile court addressed Esteban: “So that’s very important. You need to get your 

grades, get them right over to the Probation Officer for inclusion in the progress report as 

soon as you receive them. Okay, sir? Thank you.”

This appeal timely followed. 

DISCUSSION

A. Findings and Orders about Esteban’s Educational Needs

Esteban argues that the juvenile court “did not fully consider and determine [his] 

current and future educational needs as required by [California Rules of Court,] rule 

5.651, subdivision (b)(2),” and asks us to remand the matter and order the juvenile court 

to “fully comply with the directives” of the rule. 
7

Rule 5.651 of the California Rules of Court5requires the juvenile court to consider 

information about a minor’s educational needs and to address certain educational issues 

in its findings and orders at dispositional hearings for minors who are the subjects of 

petitions under section 602. (Rule 5.651(a)(1) and (b)(2).6)

The Attorney General argues that Esteban has forfeited this issue because he did 

not raise it in the juvenile court, and that even if he had not forfeited it, there is no need 

 

5 All further unspecified rule references are to the California Rules of Court.

6 Rule 5.651(b)(2) provides that at a disposition hearing, “the court must: [¶] (A) 

Consider and determine whether the child’s or youth’s educational, physical, mental 

health, and developmental needs, including any need for special education and related 

services, are being met; [¶] Identify the educational rights holder on form JV-535; and 

[¶] (C) Direct the rights holder to take all appropriate steps to ensure that the child’s or 

youth’s educational and developmental needs are met. [¶] The court’s findings and 

orders must address the following: [¶] (D) Whether the child’s or youth’s educational, 

physical, mental health, and developmental-services needs are being met; [¶] (E) What 

services, assessments, or evaluations, including those for developmental services or for 

special education and related services, the child or youth may need; [¶] (F) Who must 

take the necessary steps for the child or youth to receive any necessary assessments, 

evaluations, or services; [¶] (G) If the child’s or youth’s educational placement changed 

during the period under review, whether: [¶] (i) The child’s or youth’s educational 

records, including any evaluations of a child or youth with a disability, were transferred 

to the new educational placement within two business days of the request for the child’s 

or youth’s enrollment in the new educational placement; and [¶] (ii) The child or youth is 

enrolled in and attending school. [¶] (H) Whether the parent’s or guardian’s educational 

or developmental-services decisionmaking rights should be limited or, if previously 

limited, whether those rights should be restored. [¶] (i) If the court finds that the parent’s 

or guardian’s educational or developmental-services decisionmaking rights should not be 

limited or should be restored, the court must explain to the parent or guardian his or her 

rights and responsibilities in regard to the child’s education and developmental services 

as provided in rule 5.650(e), (f), and (j); or [¶] (ii) If the court finds that the parent’s or 

guardian’s educational or developmental-services decisionmaking rights should be or 

remain limited, the court must designate the holder of those rights. The court must 

explain to the parent or guardian why the court is limiting his or her educational or 

developmental-services decisionmaking rights and must explain the rights and 

responsibilities of the educational rights holder as provided in rule 5.650(e), (f), and (j); 

and [¶] (I) Whether, in the case of a nonminor or nonminor dependant youth who has 

chosen not to make educational or developmental-services decisions for himself or 

herself or has been deemed incompetent, it is in the best interests of the youth to appoint 

or to continue the appointment of an educational rights holder.” 
8

for remand because “[t]he juvenile court comported with the intent of rule 5.651 when it 

considered [Esteban’s] attendance record and grades at [his school], read the ‘impressive 

letters’ from two of his teachers, and ordered updated information about appellant’s 

educational status for the subsequent progress hearing.” As we discuss below, we agree 

with the Attorney General.

We consider first whether Esteban’s claim of error as to rule 5.651(b)(2) has been 

forfeited. “As a general rule, only ‘claims properly raised and preserved by the parties 

are reviewable on appeal.’ ” (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith), 

quoting People v. Scott (1994) 9 Cal.4th 331, 354.) 

The parties agree that no objection regarding rule 5.651(b)(2) was raised at any 

juvenile court hearing. Esteban argues that the claim has not been forfeited, citing Smith

and In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.) for the proposition that an 

unauthorized sentence is an exception to the forfeiture rule, and contending that a 

juvenile court’s failure to comply with its duties under rule 5.651(b)(2) is equivalent to an 

unauthorized sentence, and is therefore an exception to the waiver rule. However, 

Esteban disregards important statements in the cases he cites, which state that the 

unauthorized sentence exception applies in cases where “obvious legal errors at 

sentencing . . . are correctable without referring to factual findings in the record or 

remanding for further findings.” (Smith, supra, 24 Cal.4th at p. 852; see also Sheena K., 

supra, 40 Cal.4th at p. 882, fn. 3 [acknowledging “a ‘narrow class’ of cases [where] the 

trial court’s omission or erroneous imposition of a particular sentence or term required by 

law results in an ‘unauthorized’ sentence, which is subject to correction by the reviewing 

court despite the absence of an objection by either party in the trial court”], citing Smith, 

supra, at pp. 852-853.) Here, Esteban requests that the case be remanded to the juvenile 

court for further findings, and therefore the unauthorized sentence exception does not

apply. 

Esteban also claims to avoid forfeiture by likening the juvenile court’s duty to 

comply with rule 5.651(b)(2) to the juvenile court’s duty under section 702 to “declare”

whether a wobbler offense is a felony or misdemeanor. The explicit declaration 
9

requirement set forth in section 702 is implemented by California Rules of Court that 

require certain findings to be “noted in the minutes of the court” (rule 5.778(f); see also 

rule 5.795), and certain declarations to be stated “on the record.” (Rules 5.778(f)(9) and 

5.795(a).) Our Supreme Court has held that when a juvenile court does not comply with 

the explicit declaration requirements of section 702, remand is appropriate. (In re Ricky 

H. (1981) 30 Cal.3d 176, 191-192 (Ricky H.), superseded by statute on other grounds as 

stated in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Thus, in Ricky H., the

Supreme Court remanded the case for the trial court to make the necessary declaration, 

even though neither party ever raised the issue. (Ricky H., supra, at pp. 191-192.) 

We decline to extend any exception to the forfeiture rule to claims of failure to 

comply with rule 5.651(b)(2). An exception to the forfeiture rule for failure to comply 

with the explicit declaration requirement of section 702 can be justified by the 

significance of the contents of that declaration. Whether an offense is a felony or a 

misdemeanor determines the maximum period of physical confinement, and “any prior 

felony conviction, whether adult or juvenile, ‘shall . . . be used without limitation for 

purposes of impeachment or enhancement of sentence in any criminal proceeding.’ ” (In 

re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3, quoting Cal. Const., art. I, § 28, subd. 

(f).) Juvenile adjudications may be used as strikes. (In re Ramon M. (2009) 178 

Cal.App.4th 665, 675-676 [time bar does not apply to claim that juvenile court erred in 

failing to make required declaration under section 702], citing People v. Nguyen (2009) 

46 Cal.4th 1007.) Courts are “particularly” unwilling to ignore error “where the 

defendant might otherwise spend too much or too little time in custody.” (People v. 

Welch (1993) 5 Cal.4th 228, 236.) These considerations do not apply to the findings and 

orders regarding the educational and developmental services decision-making rights that 

are described in rule 5.651(b)(2), and we therefore decline Esteban’s invitation to liken 

the requirements of rule 5.651(b)(2) to the requirements of section 702.

Even if Esteban had preserved his claim, we would affirm. “A ‘ “ ‘judgment or 

order of the lower court is presumed correct[, and a]ll intendments and presumptions are 

indulged to support it on matters as to which the record is silent, and error must be 
10

affirmatively shown.’ ” [Citation.]’ ” (In re Julian R. (2009) 47 Cal.4th 487, 498-499 

(Julian R.).) A reviewing court “ ‘appl[ies] the general rule “that a trial court is presumed 

to have been aware of and followed the applicable law. [Citations.]” ’ (People v. Stowell

(2003) 31 Cal.4th 1107, 1114.) ‘This rule derives in part from the presumption of 

Evidence Code section 664 “that official duty has been regularly performed,” ’ and thus 

when ‘a statement of reasons is not required and the record is silent, a reviewing court 

will presume that the trial court had a proper basis for a particular finding or order.’ 

(Ibid.)” (Julian R., supra, at p. 499.) 

Esteban’s argument for remand for additional findings and orders rests on a single 

case, In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.). That case is 

distinguishable and inapplicable. In Angela M., a court-appointed psychologist “opined

Angela’s ‘principal problem’ was ‘extensive drug use,’ which may have been an ‘attempt 

on her part to self-medicate’ chronic symptoms of bipolar disorder or attention deficit 

hyperactivity disorder.” (Id. at p. 1395.) The psychologist “also reported ‘she must 

undergo an IEP . . .’ assessment.” (Ibid.) The juvenile court committed Angela to the 

California Youth Authority (CYA) in view of “her lengthy drug history, heavy gang 

involvement, criminal record, behavioral problems, numerous probation violations and 

repeated unauthorized absences from placements.” (Id. at p. 1397.) Although the 

juvenile court “was clearly on notice that Angela may have special educational needs,” 

(id. at p. 1398), the juvenile court “did not mention this issue when committing her” to 

the CYA. (Id. at p. 1399.) The Court of Appeal affirmed the commitment to the CYA, 

but remanded the matter, directing the juvenile court “to determine whether an evaluation 

of Angela’s special educational needs should be conducted, with the court’s findings to 

be forwarded to the Director of the California Youth Authority . . . together with 

Angela’s individualized education program if one is prepared.” (Ibid.) 

Esteban’s case is different. Esteban’s educational needs and progress were 

addressed in the probation department report, and Esteban’s counsel raised them at the 

disposition hearing in advocating for Esteban to be given standard probation at his home, 

where he could continue attending his high school. Far from failing to mention Esteban’s 
11

educational needs, the juvenile court’s statements on the record reflected its familiarity 

with the contents of the probation department report on Esteban’s progress at school as 

well as the contents of the letters from Esteban’s teachers that were submitted by

Esteban’s counsel. The juvenile court ordered Esteban to attend school regularly and 

obey school rules, to remain on campus during school hours unless he had the permission 

of school officials or his probation officer, and ordered Esteban and his parents to 

cooperate with the probation officer “in any program of guidance, counseling, and 

therapy.” The juvenile court ordered Esteban to provide his final grades to his probation 

officer for inclusion in a progress report. 

In addition, it is significant here that the juvenile court determined that it would 

not designate an educational rights holder other than Esteban’s parents, or place him out 

of his home: Esteban was being returned to his home and his school, not being placed in 

foster care or any other situation that would interrupt the continuity of his education.

Although by its terms, rule 5.651 applies to every minor who is the subject of a petition 

under section 602, as Esteban is here (rule 5.651(a)(1)), rule 5.651 has particular 

application to minors who are in foster care, who are at risk of entering foster care, or 

who are the subject of dependency proceedings, as reflected in the text of the Advisory 

Committee Comment.

7

In sum, we conclude that Esteban has forfeited his claim of error with respect to 

the juvenile court’s compliance with rule 5.651(b)(2). Moreover, we agree with the 

Attorney General that there is no need to remand for additional express findings and 

orders under rule 5.651(b)(2). 

 

7

The Advisory Committee Comment to rule 5.651 notes that the rule applies to 

“[a] child or youth in, or at risk of entering, foster care,” and states that “to protect [a 

child’s statutory right to a meaningful opportunity to meet the state’s academic 

achievement standards], the juvenile court, advocates, placing agencies, care providers, 

educators, and service providers must work together to maintain stable school placements 

and ensure that the child or youth is placed in the least restrictive educational programs 

and has access to the academic resources, services, and extracurricular and enrichment 

activities that are available to other pupils.” 
12

B. Conditions of Probation

In objecting to the conditions of his probation, Esteban asks the court to resolve 

“material inconsistencies between the three versions of the probation conditions in the 

record.” One version is the juvenile court’s pronouncement at the dispositional hearing; 

the second is the minute order signed by the juvenile court judge; the third is a document 

prepared by the Alameda County Juvenile Probation Department, entitled “Conditions of

Probation and Court Orders.” The Attorney General contends that the court’s oral 

pronouncements control over the clerk’s transcript, citing People v. Mitchell (2001) 26 

Cal.4th 181, 185, and Esteban does not object to that approach, so we consider Esteban’s 

objections to his probation conditions only as they apply to the juvenile court’s oral 

pronouncements. 

The Attorney General argues that Esteban has forfeited claims of error as to these 

probation conditions because he did not raise appropriate objections in the juvenile court, 

but we will address the merits because Esteban’s arguments “present pure questions of 

law” and are “easily remediable on appeal.” (In re Victor L., (2010) 182 Cal.App.4th 

902, 907 (Victor L.).) 

In reviewing Esteban’s objections, we bear in mind that the juvenile court is 

authorized 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.” (§ 730, subd. (b).) We generally review the 

conditions imposed by the juvenile court for abuse of discretion. (In re P.A. (2012) 211 

Cal.App.4th 23, 33.) 

1. Requirements of Good Conduct and School Attendance

Esteban challenges the probation conditions requiring him to “be of good conduct”

and “[a]ttend school on a regular basis” on the grounds that they are facially and 

unconstitutionally vague.8 He argues that we should strike or modify the conditions 

 

8 Because the juvenile court’s oral pronouncements control, we do not address 

Esteban’s objections to conditions that do not appear in the oral pronouncements.
13

because they do not provide sufficient notice for him to know in advance what constitutes 

bad conduct or irregular attendance. The Attorney General argues that the challenged 

conditions are not vague when they are read in context with a common-sense 

interpretation. 

To withstand a challenge of vagueness, “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.’ ” (Sheena K., supra, 40 Cal.4th at 

p. 890, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The legal 

principles governing our review of probation conditions that are claimed to be 

unconstitutionally vague are set forth in Victor L.:

“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 . . . .” ’ (Ginsberg v. New York (1968) 390 U.S. 629, 

638.) 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.’ ([In re] Antonio R.[ (2000)] 78 Cal.App.4th [937,] 941.) Thus, ‘ “a 

condition of probation that would be unconstitutional or otherwise improper for an adult

probationer may be permissible for a minor under the supervision of the juvenile court.” ’ 

([Sheena K.], supra, 40 Cal.4th 875, 889 . . . ; see also In re R.V. (2009) 171 Cal.App.4th 

239, 247; In re Frank V. (1991) 233 Cal.App.3d. 1232, 1242-1243 [rule derives from 

court’s rule as parens patriae].)

“Of course, the juvenile court’s discretion is not boundless. Under the void for 

vagueness doctrine, based on the due process concept of fair warning, an order ‘ “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.” ’ (Sheena K., supra, 40 Cal.4th at 

p. 890.) The doctrine invalidates a condition of probation ‘ “ ‘so vague that men of 

common intelligence must necessarily guess at its meaning and differ as to its 

application.’ ” ’ (Ibid.) By failing to clearly define the prohibited conduct, a vague 
14

condition of probation allows law enforcement and the courts to apply the restriction on 

an ‘ “ ‘ad hoc and subjective basis, with the attendant dangers of arbitrary and 

discriminatory application.’ ” ’ (Ibid.)” (Victor L., supra, 182 Cal.App.4th at p. 910.) 

“A probation condition should be given ‘the meaning that would appear to a 

reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382, quoting 

People v. Bravo (1987) 43 Cal.3d 600, 606.) If a vague probation condition can be 

modified “without reference to the particular sentencing record developed in the trial 

court” (Sheena K., supra, 40 Cal.4th at p. 887), an issue of law arises that is subject to de 

novo review on appeal. (People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

(Mendez).) 

We agree with the Attorney General that the requirement that Esteban “be of good 

conduct” is not vague in this case. The juvenile court required Esteban to “Obey all laws 

of the community and be of good conduct; [¶] Obey your parents, legal guardian, or 

caregiver.” The requirements that Esteban obey the law and his parents, as well as the 

requirement that he obey all school rules and regulations, give substance to the condition 

“good conduct.” The “good conduct” condition does not add to those requirements, and 

therefore appears to be nothing more than surplusage. Esteban cites no authority to 

support an argument that we should strike surplusage in probation conditions, and we 

decline to do so here.

Further, the requirement that Esteban “[a]ttend school on a regular basis” is not 

vague, especially when it is read in the context of the entire condition: “Attend school on 

a regular basis. Obey all school rules and regulations. Do not leave the school campus 

during school hours without permission of school officials or the Probation Officer.” The 

meaning of the condition is clear: Esteban is to attend school when it is in session, unless 

he is excused pursuant to the school’s rules and regulations.

Accordingly, we affirm the inclusion of the conditions “be of good conduct” and 

“[a]ttend school on a regular basis” in the juvenile court’s disposition order.
15

2. Electronics Search Condition

During the disposition hearing, Esteban’s counsel objected to any search condition 

that included “electronic devices and/or social media,” stating, “I did note in the report 

that Esteban mentions experimenting with marijuana. He doesn’t seem to have a big

issue with that. So I’m asking the Court not to order drug terms.” The juvenile court, 

however, imposed a search condition requiring Esteban to “submit to a test of [his] blood, 

breath, or urine to detect the presence of [drugs] in your system and a search of your 

person, any containers you may have or own, your vehicle, or residence day or night at 

the request of a Probation Officer or peace officer, and that includes electronics and 

passwords.” The juvenile court explained, “I find that for minors who have been using 

marijuana or drugs, it is important to be able to supervise the concerns the Court has 

using electronics, because minors will purchase or sell drugs on the Internet, display 

themselves using drugs, and in possession of paraphernalia. It’s the only logical way of 

being able—to be able to supervise this important term of probation.” 

Here, Esteban challenges only the portion of the search condition that covers his 

electronic devices and the disclosure of passwords, arguing that the condition is 

unconstitutionally overbroad and violates his privacy and the privacy of third parties.9 

Citing In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), he argues that we should 

strike or modify the condition because it is not narrowly tailored to serve the interests of 

public safety and rehabilitation, and not narrowly tailored to him as an individual.10 

 

9

The Attorney General argues Esteban’s counsel “merely made a general 

objection without specifying the basis for [the] challenge to the electronic search 

condition,” and on that basis argues that Esteban has not preserved his objection to this 

probation condition. We disagree with the Attorney General’s characterization of the 

objection, and accordingly, we reject the argument that the objection has been forfeited. 

10 In Malik J., the defendant argued that a search condition that encompassed his 

electronics and passwords was unreasonable under People v. Lent (1975) 15 Cal.3d 481 

(Lent) and constitutionally overbroad. (Malik J., supra, 240 Cal.App.4th at pp. 901-902.) 

In Malik J., the defendant had stolen a cell phone (id. at p. 900), and the People argued 

that the search condition was justified so that if Malik “ ‘were found in possession of a 

cell phone, a probation or police officer could check the phone to determine whether it 
16

The Attorney General does not dispute that the condition is overbroad. She argues

that we should affirm the condition after it is tailored to facilitate Esteban’s rehabilitation. 

Specifically, she argues that we should modify it so that searches of Esteban’s electronics 

are limited to texts, voicemails, photographs, emails, and social media accounts, which 

might reveal whether Esteban is using drugs.11

In reply, Esteban expresses doubt that such a limitation would be “ ‘any limitation 

at all’ ” as protection of his privacy rights, quoting In re J.B. (2015) 242 Cal.App.4th 749, 

758-759 (J.B.), in which a similar search condition was held to be unreasonable under 

Lent, supra, 15 Cal.3d 48, and therefore invalid. Although Esteban does not oppose in 

principle a modification of the phrase “electronics and passwords” that would tailor the 

condition to monitor his compliance with the no-drugs condition, he does not propose any

language we might use to accomplish such tailoring. Esteban contends that periodic drug 

testing has been effective in monitoring Esteban’s compliance with the condition, and 

that such testing, which does not affect the privacy of third parties, is preferable to the 

electronics search condition imposed by the juvenile court and to the condition proposed 

by the Attorney General. 

a. Applicable Law

As we discussed above, a juvenile court may impose “a ‘ “condition of probation 

that would be unconstitutional or otherwise improper for an adult probationer.” ’ ” 

(Sheena K., supra, 40 Cal.4th at p. 889.) Such conditions “are permissible only if 

 

had been stolen.’ ” (Id. at p. 902.) The Court of Appeal held that the electronics search 

condition imposed by the juvenile court was overbroad because it “[went] considerably 

farther than permitting police to search a cell phone to determine whether Malik is the 

owner. It also require[d] him to turn over his passwords to, and authorize[d] unfettered 

searches of, all of his electronic devices and all of his social media accounts.” (Ibid.) 

The Court of Appeal in Malik modified the electronics search condition; among other 

things, it struck the requirement that he “provide any passwords to any social media 

sites.” (Id. at pp. 900, 906.)

11 Our Supreme Court has recently granted review in the case on which the 

Attorney General primarily relies for her argument that we should modify the electronics 

search condition in this way. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review 

granted Feb. 17. 2016, S230923.) 
17

‘ “ ‘tailored specifically to meet the needs of the juvenile.’ ” ’ ” (In re D.G. (2010) 187 

Cal.App.4th 47, 53 (D.G.).) As we have stated elsewhere, the requirement of tailoring

has particular application to search conditions imposed on juveniles. (In re Mark C.

(2016) 244 Cal.App.4th 520, 530 (Mark C.).) “For adults, probation is a privilege and 

adults may waive their Fourth Amendment rights by consenting to warrantless searches 

‘ “in exchange for the opportunity to avoid service of a state prison term.” [Citation.]’ 

(People v. Balestra (1999) 76 Cal.App.4th 57, 65 . . ., quoting In re York (1995) 9 Cal.4th 

1133, 1150.) For juveniles, however, probation ‘ “ ‘is an ingredient of a final order for 

the minor’s reformation and rehabilitation.’ ” (In re Tyrell J. (1994) 8 Cal.4th 68, 81, 

overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128.) A juvenile 

“cannot refuse probation [citations] and therefore is in no position to refuse a particular 

condition of probation.” (In re Binh L. (1992) 5 Cal.App.4th 194, 202 (Binh).) Courts 

have recognized that “a minor cannot be made subject to an automatic search condition; 

instead, such condition must be tailored to fit the circumstances of the case and the 

minor.” (See People v. Rios (2011) 193 Cal.App.4th 584, 597; see also Binh, supra, 5 

Cal.App.4th at p. 203 . . . .)’ (In re Erica R. (2015) 240 Cal.App.4th 907, 914 (Erica 

R.).)” (Mark C., supra, 244 Cal.App.4th at p. 530.) 

One limit on the juvenile court’s discretion in imposing conditions of probation, 

including search conditions, is set forth in Lent. (D.G., supra, 187 Cal.App.4th at p. 52 

[citing cases “holding the Lent factors are applicable in evaluating juvenile probation 

conditions”].) Under Lent, upon review, “[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[.]’ ” (Lent, supra, 15 Cal.3d at p. 

486.)

b. Analysis

The Attorney General contends that Esteban raises “purely a constitutional 

argument” as to the electronics search condition, and has not preserved arguments of 

invalidity under Lent or Erica R., neither of which Esteban discusses in his opening brief. 
18

The Attorney General concedes that we may decide to consider those issues, and argues 

that the condition is valid under Lent and distinguishable from Erica R., in which we held 

that it was unreasonable under Lent to require defendant to submit to searches of her 

electronics, including passwords “because there was no evidence connecting the 

juvenile’s electronic device or social media usage to her offense or to a risk of future 

criminal conduct.” (Erica R., supra, 240 Cal.App.4th at p. 909.) Yet Esteban does not 

address this argument or these cases in his reply brief, perhaps because Esteban told the 

juvenile court that he used a camera holder to record himself when he skated and because

the police were able to identify Esteban by using a photograph posted on the social media 

site Instagram that showed him holding two skateboards, one of which belonged to the 

victim.12 We agree that Esteban has forfeited any Lent argument on appeal, and we 

therefore move to the question of overbreadth.

We review constitutional challenges to probation conditions de novo. (Malik J., 

supra, 240 Cal.App.4th at p. 901.) “ ‘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.’ ” (Id. at p. 904, quoting In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) 

The “ubiquitous advent of cell phones” as well as other electronic devices, portable and 

not, “and their capacity both to store and to remotely access vast quantities of personal 

information” of all kinds means that the juvenile court must “consider the extent to which 

an officer may search such devices pursuant to a probation search condition without 

violating the probationer’s diminished privacy interests.” (Malik J., supra, 240 

Cal.App.4th at pp. 902-903.) Like Esteban, we question whether the Attorney General’s 

proposed limitation of the search condition to texts, voicemails, photographs, emails, and 

 

12 In this respect, Esteban’s case differs from J.B., which he cites in his reply brief. 

As in Erica R., “there [wa]s no showing of any connection between the minor’s use of 

electronic devices and his past or potential future criminal activity.” (J.B., supra, 242 

Cal.App.4th at p. 756.) 
19

social media accounts provides an appropriate fit between the juvenile court’s purposes in 

imposing the probation and Esteban’s diminished privacy interests as a probationer. 

Accordingly, we will strike the phrase “and that includes electronics and passwords” 

from the search condition, and remand to the juvenile court, which may exercise its 

discretion to impose an electronics search condition that is tailored to Esteban’s 

reformation and rehabilitation.

 3. Drug Condition

The juvenile court imposed a condition of probation that states, “With regards to 

drugs, you’re not to associate with anyone you know or reasonably should know is using, 

dealing, or possessing any illegal or intoxicating substances. You yourself must not be 

under the influence or in possession of any such substances or possess any associated 

paraphernalia.” On appeal, Esteban raises several objections to this condition, each of 

which amounts to a claim of vagueness or overbreadth. We consider Esteban’s various

objections to the drug condition in turn. 

a. Constructive Knowledge in Association Condition

We begin with the association condition, which includes the phrase “you know or 

reasonably should know,” and therefore incorporates both actual and constructive 

knowledge elements. Esteban does not object to the actual knowledge requirement, 

which, as he acknowledges, serves a valid rehabilitative purpose by prohibiting him from 

associating with people he knows are drug dealers or users. He argues that the 

constructive knowledge element “unfairly threatens the loss of [Esteban’s] conditional 

liberty interest, impermissibly infringes upon his constitutional right of association, and 

would allow for ‘ad hoc and subjective’ evaluation by those enforcing the condition,”

13

but he cites no authority to support his contention that the constructive knowledge 

element here is unconstitutionally vague or overbroad. To the contrary, Esteban

acknowledges that constructive knowledge has been likened to a reasonable person 

standard, which is an objective standard; that it may promote rehabilitation to hold 

 

13 Esteban’s argument quotes from Sheena K, supra, 40 Cal.4th at page 890.
20

probationers to a reasonable person standard; and that courts have upheld as 

constitutional constructive knowledge elements in probation conditions restricting an 

adult probationer’s right of association. (Mendez, supra, 221 Cal.App.4th at pp. 1176-

1178.) 

Like the court in Mendez, which rejected a vagueness challenge to a constructive 

knowledge element as part of an association condition, “[w]e foresee no difficulty either 

with a probationer understanding what is required by [a constructive knowledge] 

condition or with a court determining whether such a condition has been violated. It may 

in fact be easier to establish what a probationer reasonably should know than to delve 

into the epistemological depths of what the probationer actually knows.” (Mendez, 

supra, 221 Cal.App.4th at p. 1178.) We see no basis for striking or modifying the 

constructive knowledge element of the association condition in this case.

b. Illegal or Intoxicating Substances 

The drug condition prohibits Esteban from associating with those who use, deal or 

possess “any illegal or intoxicating substances” and prohibits him from being “under the 

influence of or in possession of any such substances.” Esteban objects that the phrase 

“illegal or intoxicating substances” is vague because it is “susceptible of different 

interpretations.” The interpretations that Esteban discusses indicate overbreadth as well 

as vagueness: for example, Esteban expresses concern that the prohibition extends to his 

possession of “household items that have legitimate innocent purposes,” and that he

might violate his probation if he were to “use superglue to repair a broken ceramic, inhale 

the fumes, and feel affected by the chemical ingredients.” 

Esteban proposes that in the association condition, the phrase “any illegal or 

intoxicating substances” should be changed to “illegal drugs,” and in the influence and 

possession condition the phrase should be changed to “any alcohol, any controlled 

substances, or any drugs, excluding legal, non-prescription, over-the-counter drugs or 

prescribed pharmaceutical drugs for which you have a valid physician’s prescription.” 

The Attorney General does not address Esteban’s arguments with respect to the phrase 
21

“any illegal or intoxicating substances” except to state that the juvenile court’s oral 

pronouncement of the drug condition should be affirmed. 

We look first at the association condition. We do not agree that the juvenile 

court’s phrase “illegal or intoxicating substances” is vague or overbroad in the context in 

which it appears: “you’re not to associate with anyone you know or reasonably should 

know is using, dealing, or possessing any illegal or intoxicating substances.” Moreover, 

Esteban’s proposed modification, in which the condition would refer only to “illegal 

drugs,” is underinclusive. Unlike Esteban’s proposed association condition, the condition 

imposed by the juvenile court prohibits Esteban from associating with those who are 

using alcohol or inhalants. We decline to modify that part of the drug condition.

We then turn to the use and possession condition. Esteban notes that “intoxicating 

substances” could include “drugs legally available only by a physician’s prescription, 

over-the-counter medicines and household items that have legitimate innocent purposes.” 

In the interest of clarity and precision we will modify the language of the condition. (See 

Sheena K., supra, 40 Cal.4th at p. 887 [recognizing that an appellate court can modify a 

probation condition to cure vagueness or overbreadth].) But once again we find that the 

language Esteban proposes for the modification is underinclusive. For example, Esteban 

appears to recognize that the influence and possession condition is intended to prohibit 

him from sniffing glue and using other inhalants, but his proposed language, which 

prohibits “any alcohol, any controlled substances, or any drugs, excluding legal, nonprescription, over-the-counter drugs or prescribed pharmaceutical drugs for which you 

have a valid physician’s prescription,” does not capture that prohibition. We therefore 

modify the condition to prohibit Esteban from being under the influence of or in 

possession of “any illegal substance, or any alcohol, or any other intoxicant for the 

purpose of intoxication.” 
22

c. Drug Paraphernalia

The drug condition prohibits Esteban from possessing paraphernalia “associated” 

with the prohibited substances.14 Esteban argues that the phrase is unconstitutionally 

vague, noting that the only substance use reflected in the record is “recent 

experimentation with marijuana,” and arguing that he could “possess a common item 

with a non-illicit use without knowing of or intending to use it as paraphernalia for 

cocaine, methamphetamine, or heroin.” He proposes we modify the condition to prohibit 

possession of “drug paraphernalia for the purpose of using it in such a manner.” 

As was the case for the phrase “any illegal or intoxicating substances,” the 

Attorney General does not address Esteban’s arguments with respect to this phrase or 

express any opposition to his proposed language. We address Esteban’s concern that he 

might possess a common item without knowing of its use as paraphernalia or intending to 

use it as paraphernalia by modifying the condition to prohibit the possession of any item 

that he knows to be “associated paraphernalia” or any item that he intends to use as such. 

(See Sheena K., supra, 40 Cal.4th at p. 887 [recognizing that an appellate court can 

modify a probation condition to cure vagueness or overbreadth].)

d. Knowledge Requirement for Possession

Esteban argues that to ensure due process, we must modify the conditions 

prohibiting him from using or possessing particular items to include language specifying 

that he knowingly use or possess them. He relies on cases including People v. Freitas

(2009) 179 Cal.App.4th 747, 750 (Freitas), in which the defendant challenged as vague 

and overbroad probation conditions that prohibited him from possessing “stolen 

property” and “ ‘firearms or ammunition.’ ” In Freitas, the appellate court modified the 

conditions to prohibit him from knowingly possessing such items. (Id. at p. 753.)

 

14 In his opening brief, Esteban objects specifically to the phrase “related 

paraphernalia,” which appears in the minute order and the document prepared by the 

probation department. Here we consider the similar phrase “associated paraphernalia,” 

which appears in the juvenile court’s oral pronouncement. 
23

The Attorney General does not dispute that there is a mens rea requirement 

associated with prohibitions against use and possession in the drug condition, but says 

there is no need for us to modify the condition. She relies on People v. Patel (2011) 196 

Cal.App.4th 956, 960 (Patel) in which the Third District stated that, in view of the 

“substantial uncontradicted body of case law establishing, as a matter of law, that a 

probationer cannot be punished for presence, possession, association, or other actions 

absent proof of scienter” it construes “every probation condition proscribing a 

probationer’s presence, possession, association, or similar action to require the action be 

undertaken knowingly.”

As the parties acknowledge, our Supreme Court is currently considering whether 

an explicit knowledge requirement is constitutionally required in certain probation 

conditions, including conditions that prohibit the possession of illegal drugs and 

paraphernalia. (People v. Hall (2015) 236 Cal.App.4th 1124, review granted Sept. 9, 

2015, S227193.) In the meantime, the Attorney General urges us to consider the 

“commonsense approach” taken in Patel, which states, “It will no longer be necessary to 

seek a modification of a probation order that fails to expressly include” a knowledge 

requirement. (Patel, supra, 196 Cal.App.4th at pp. 960-961.) Esteban urges us to follow 

the reasoning adopted by Freitas and In re Kevin F. (2015) 239 Cal.App.4th 351, in 

which the appellate court modified a probation condition that prohibited the possession of 

weapons to add requirements that the minor knowingly possess the items at issue.15 (Id.

at p. 366.) 

 

15 Esteban also refers us to Victor L., but the conditions at issue there did not 

concern possession, but rather concerned association and the right to travel. (Victor L., 

supra, 182 Cal.App.4th at pp. 911-913.) For example, one condition imposed by the 

juvenile court prohibited the minor from remaining “ ‘in any building, vehicle or in the 

presence of any person where dangerous or deadly weapons or firearms or ammunition 

exist.’ ” (Id. at p. 912.) The appellate court modified the condition to prohibit him from 

remaining “ ‘in any building, vehicle or in the presence of any person where the Minor 

knows one or more dangerous or deadly weapons or firearms or ammunition exist.’ ” (Id.

at p. 931.) 
24

Esteban does not cite any cases in which a probation condition is modified to 

include an explicit requirement that possession or consumption of drugs or alcohol be 

“knowing,” except for Patel. There, the trial court had imposed a condition of probation 

that prohibited defendant from “drinking alcohol, possessing it, or being in any place 

where it is the chief item of sale.” (Patel, supra, 196 Cal.App.4th at p. 959.) The trial 

court also imposed a condition prohibiting his possession of firearms or ammunition. (Id.

at p. 959.) The “firearms or ammunition” condition included an explicit qualification that 

the conduct be committed knowingly, but the alcohol condition did not, so the appellate 

court, in the Third District, added the qualification to the alcohol condition. (Ibid.) 

Recognizing the body of law holding that “a probationer cannot be punished for presence, 

possession, association or other actions absent proof of scienter,” the appellate court also 

gave “notice of [its] intent to henceforth no longer entertain this issue on appeal,” and 

stated that “[i]t will no longer be necessary to seek a modification of a probation order 

that fails to expressly include” such a requirement. (Id. at pp. 960-961.) 

As we have modified the drug condition, it now states: “With regard to drugs, 

you’re not to associate with anyone you know or reasonably should know is using, 

dealing, or possessing any illegal or intoxicating substances. You must not be under the 

influence or in possession of any illegal substance, or any alcohol, or any other intoxicant 

for the purpose of intoxication. You must not possess any item that you know to be

paraphernalia associated with those prohibited substances, or that you intend to use as 

such.” 

For a probationer to violate a term of probation, the probationer’s conduct must 

“ ‘constitute[] a willful violation of the terms and conditions of probation.’ ” (People v. 

Cervantes (2009) 175 Cal.App.4th 291, 295, quoting People v. Galvan (2007) 155 

Cal.App.4th 978, 982). In view of that established law, and in view of the modifications 

we have made in the drug condition to address Esteban’s concerns about the possible 

vagueness of the terms “illegal or intoxicating substances” and “associated 

paraphernalia,” we are not concerned that Esteban would “violate probation by being 

unaware of the presence of an illegal item in his possession, or by consuming or 
25

possessing a substance that contains some unknown or undetectable amount of a drug or 

alcohol.”

We do not foreclose the possibility that a juvenile court might impose probation 

conditions that are appropriately limited or qualified by the inclusion of an explicit 

requirement that conduct be willful or knowing, but we do not see any need to modify the 

drug condition imposed by the juvenile court here to include a requirement that the

possession of drugs or paraphernalia or the use of drugs be “knowing.” 

DISPOSITION

We modify the juvenile court’s drug condition as follows: “With regard to drugs, 

you’re not to associate with anyone you know or reasonably should know is using, 

dealing, or possessing any illegal or intoxicating substances. You must not be under the 

influence or in possession of any illegal substance, or any alcohol, or any other intoxicant 

for the purpose of intoxication. You must not possess any item that you know to be 

paraphernalia associated with those prohibited substances, or that you intend to use as 

such.” We modify the juvenile court’s search condition by striking the phrase “including 

electronics and passwords,” and we remand so that the juvenile court may, if it so 

chooses, exercise its discretion to impose an electronics search condition that is tailored 

to Esteban’s reformation and rehabilitation. In all other respects, the juvenile court’s 

dispositional order is affirmed. 
26

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

A145285, People v. Esteban M.