In re T.M.

Filed 8/15/17 In re T.M. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SIXTH APPELLATE DISTRICT
In re T.M., a Person Coming Under the
Juvenile Court Law.
H043964
(Santa Clara County
Super. Ct. No. 314-JV41005)
THE PEOPLE,
Plaintiff and Respondent,
v.
T.M.,
Defendant and Appellant.
T.M., a ward of the juvenile court, appeals following his admission to the crimes
of carjacking (Pen. Code, § 215), receiving a stolen vehicle (id., § 496d), and possession
of a dirk or dagger (id., § 21310). T.M. asserts that the court erred in imposing a
probation condition that required him to turn over passwords to his social media
accounts, because the condition is unreasonable and unconstitutionally overbroad.
STATEMENT OF THE FACTS AND CASE
On December 16, 2014, the victim was sitting in her car that was parked in the
Valley Fair Mall parking lot. T.M. and his friend walked up to the victim’s car, opened
the car door, and pointed a handgun in her face. They ordered the victim to get out of her
car. She complied, and the boys got into the car. T.M. drove the car and fled the scene
with his friend.

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T.M. was arrested two days later and gave officers permission to search through
his cell phone. They found several digital photographs of T.M. holding guns.
On December 22, 2014, a juvenile wardship petition was filed pursuant to Welfare
and Institutions Code section 602, alleging that T.M. committed carjacking (Pen. Code,
§ 215), and second-degree robbery (id., §§ 211, 212.5, subd. (c)). On February 26, 2015,
T.M. admitted that he committed carjacking, and the robbery allegation was dismissed.
On March 11, 2015, the court adjudged T.M. a ward of the court, and ordered him to
spend six to eight months at the Juvenile Rehabilitation Facilities’ Enhanced Ranch
Program and placed him under the supervision of the juvenile probation department.
After spending approximately eight months confined in a juvenile institution, T.M.
was released to the care of his grandparents on December 4, 2015 and placed in a
juvenile pre-release program. T.M. did not perform well on probation. On April 14,
2016, T.M.’s probation officer searched through his phone and found a photograph of
him posing with a handgun tucked into his belt. On June 9, 2016, T.M. was caught
driving a stolen vehicle with a friend. Upon his arrest, T.M. possessed a three-inch
dagger and stolen jewelry.
On June 13, 2016, while T.M. was still on probation, a second juvenile petition
was filed, alleging that T.M. was in receipt of a stolen vehicle (Pen. Code, § 496d), and
possessed a dirk or dagger (id., § 21310). T.M. admitted the allegations.
On July 5, 2016, the court continued his wardship, and ordered him to receive
wraparound services with permission to move in with his older sister. After amending
the probation department’s recommended conditions, the court imposed the following as
condition No. 12: “The minor must supply all passwords to any social media website
such as Mocospace, Facebook, Snapchat, Tinder, Twitter, or any other social media site

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in which the minor may receive, send or store photos or text messages relating to
firearms.”1
T.M. filed a timely notice of appeal challenging the probation condition.
DISCUSSION
T.M. argues that the social media search condition in this case is unreasonable
because it is not related to his offenses, prohibits conduct that is not itself criminal, and is
not related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) In
addition, T.M. asserts that the condition is unconstitutionally overbroad because it
unlawfully infringes on his right to privacy.
Reasonableness
“In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety . . . .” (People v. Carbajal (1995) 10 Cal.4th
1114, 1120.) This broad discretion, however, “is not without limits.” (Id. at p. 1121.) A
condition of probation is generally “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.) “This test is conjunctive—all three
prongs must be satisfied before a reviewing court will invalidate a probation term.”
(People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We review the imposition of
probation conditions for abuse of discretion. (Ibid.)
There is no dispute that the second prong of the Lent test is satisfied here, because
“it is beyond dispute that the use of electronic devices and of social media is not itself
criminal.” (In re J.B. (2015) 242 Cal.App.4th 749, 755 (J.B.).)
1 The court also imposed condition No. 11 related to passwords for all of T.M.’s
electronic devices. While T.M. purports to challenge this condition No. 11 in the
argument heading of his opening brief, the actual substance of the argument relates to the
social media search stated in condition No. 12.

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With regard to the first Lent factor, we disagree with the People that T.M.’s crimes
were related to the use of social media. The People argue that the nature of T.M.’s
crimes indicate that it was “likely that he communicated with his co-participant and
arranged to be picked up in the stolen vehicle by means of social media accounts,” and
that such accounts are “a potential instrumentality of the offense.” We find the People’s
argument to be based entirely on speculation. There is nothing in this case showing that
T.M.’s crimes were connected to his use of social media. We find that the first factor in
Lent, that the condition have “ ‘no relationship to the crime of which the offender was
convicted,’ ” is met in this case. (Lent, supra, 15 Cal.3d at p. 486.)
The issue remains as to whether the third prong of the Lent test is met. T.M.
argues that there is nothing in the record that connects his crime of carjacking, possession
of a stolen car and dirk or dagger to his use of electronic devices or social media.
Reasonableness under the third prong of the Lent test exists when a probation condition
“enables a probation officer to supervise his or her charges effectively . . .” (Olguin,
supra, 45 Cal.4th at pp. 380-381), even if the condition “has no relationship to the crime
of which a defendant was convicted.” (Id. at p. 380.)
T.M. argues that we should follow the rationale of two recent juvenile cases that
have reviewed probation conditions similar to the electronic search conditions here. T.M.
cites In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) and J.B., supra, 242
Cal.App.4th 749. These cases declined to read Olguin as sanctioning imposition of
electronic search conditions without evidence the probationer is likely to use his or her
electronic devices or social media for proscribed activities. Because there was no
evidence in the record connecting the minor’s conviction for drug possession with her use
of electronic devices, the court in Erica R., rejected the juvenile court’s justification that
“ ‘many juveniles, many minors, who are involved in drugs tend to post information
about themselves and drug usage.’ ” (Erica R., supra, at p. 913.) The court explained
that “ ‘[n]ot every probation condition bearing a remote, attenuated, tangential, or

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diaphanous connection to future criminal conduct can be considered reasonable.’ ”
(Ibid.) Similarly in J.B., the court rejected the juvenile court’s imposition of electronic
search conditions on a minor convicted of petty theft who also had admitted to using
marijuana: “[T]here is no showing of any connection between the minor’s use of
electronic devices and his past or potential future criminal activity. As in Erica R.,
‘ “there is no reason to believe the current restriction will serve the rehabilitative function
of precluding [J.B.] from any future criminal acts.” ’ ” (J.B., supra, at p. 756.)2
We find that J.B. and Erica R. are distinguishable from the present case. In those
cases, there was no evidence that the minors used electronic devices or social media to
record, demonstrate or promote their criminal activity. Here, in contrast, T.M. had
numerous pictures on his phone showing him possessing a firearm. Such photos could
easily be used to promote T.M.’s crimes on social media.
Moreover, both J.B. and Erica R. stand in contrast with In re P.O. (2016) 246
Cal.App.4th 288, 296 in which the appellate court upheld a comparable condition under
Lent despite no direct evidence that the minor was inclined to use electronic devices or
social media. The minor in P.O. admitted to a misdemeanor count of public intoxication.
The juvenile court imposed an electronic search condition, reasoning that “ ‘we have
people who present themselves on the Internet using drugs or . . . in possession of
paraphernalia, and that’s the only way we can properly supervise these conditions.’ ” (Id.
at p. 293.) The court affirmed the juvenile court’s finding that the condition was
reasonably related to future criminality because it “enables peace officers to review
P.O.’s electronic activity for indications that P.O. has drugs or is otherwise engaged in
activity in violation of his probation.” (Id. at p. 295.)
2 The California Supreme Court has granted review in a third case that followed
the reasoning in J.B. and Erica R. (In re Mark C. (2016) 244 Cal.App.4th 520, 535, rev.
granted Apr. 13, 2016, S232849.)

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Here, the electronic search conditions’ effectiveness as it relates to future
criminality is to monitor T.M.’s activity and communications associated with weapons
possession and theft crimes through the use of his electronic devices and social media.
We find that the social media search condition is reasonably related to future criminality
and the court did not abuse its discretion in imposing it.
Overbreadth
In addition to his argument that the electronic search condition was unreasonable,
T.M. also asserts that it is unconstitutionally overbroad because it unlawfully infringes on
his right to privacy.
“A probation condition that imposes limitations on a person’s constitutional rights
must closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875,
890.) “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 . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
We review de novo the constitutional challenge to the probation conditions. (In re Shaun
R. (2010) 188 Cal.App.4th 1129, 1143.)
In People v. Ebertowski (2014) 228 Cal.App.4th 1170, this court rejected an
argument similar to T.M.’s regarding privacy, and determined that the “[d]efendant’s
constitutional privacy rights are not improperly abridged by the password conditions any
more than they are by the search condition.” (Id. at p. 1176.) We note that in
Ebertowski, the defendant used electronic devices and social media to promote his gang
activity. This court found that the probation department needed to monitor the
defendant’s gang communications and that the conditions did not unreasonably infringe
on the defendant’s privacy rights any more than a standard search condition. (Id. at
p. 1175.)

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Here, the electronic search condition is tailored to achieve the probation
department’s interest in deterring T.M.’s proclivity to photograph himself possessing
weapons. Specifically, the condition limits searches to “social media website such as
Mocospace, Facebook, Snapchat, Tinder, Twitter, or any other social media site in which
the minor may receive, send or store photos or text messages relating to firearms.” The
condition is tailored to reveal T.M.’s personal communications regarding weapons, and
does not allow all-encompassing searches of T.M.’s social media accounts. As such, the
condition is sufficiently limited so as not to unlawfully infringe on defendant’s right to
privacy.
DISPOSITION
The judgment is affirmed.

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Premo, Acting P.J.
WE CONCUR:
Elia, J.
Grover, J.

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