In re Roman P. CA1/3

Filed 10/30/15 In re Roman P. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re ROMAN P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROMAN P., A143468 Defendant and Appellant. (Contra Costa County Super. Ct. No. JV1400053)

Roman P., a minor, appeals from a dispositional order issued pursuant to Welfare & Institutions Code section 602 after the juvenile court sustained a misdemeanor battery allegation. Roman contends a probation condition requiring him to submit any cell phones and other electronic devices to search and seizure is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally vague and overbroad. Roman also contends his attorney’s failure to object to the search condition deprived him of his right to the effective assistance of counsel. We agree the condition is unreasonable and invalid under Lent and modify the dispositional order to strike it. As modified, we affirm.

1

BACKGROUND The battery charge against Roman stemmed from an incident at Alliance Program, a high school for special needs students. On the morning in question Roman had been turned away from the school office several times and told to return to class. Later another student opened the office door and Roman again tried to enter. School secretary Maureen Totah blocked the doorway with her arms and told Roman he could not come in. Roman grabbed and twisted Totah’s arm and tried to push her out of his way. Roman’s version of the incident was that he unintentionally bumped Totah’s arm with his chest when she barred the door as he was heading into the office. The juvenile court found Roman committed a misdemeanor battery on a school employee, adjudged him a ward of the court with no termination date and ordered that he live with his mother with 60 days of supervision by the probation officer. Without objection, the court imposed a probation condition requiring that Roman “[s]ubmit person, property, any vehicle under Minor’s control, any cell phone or any other electronic device in their possession and residence to search and seizure by any peace officer at any time of day or night with or without a warrant.” (Italics added.) Roman timely appealed. DISCUSSION Roman challenges the electronics search condition as unconstitutionally overbroad and vague because (1) permitting officers to search his cell phone and other electronic devices unconstitutionally infringes his and third parties’ privacy rights; and (2) the search condition “captures digital devices such as an electronic photograph frame or a Kindle reader, neither of which is illegal to possess or is likely to contain evidence of crimes.” Roman also contends the probation condition is invalid under the standards articulated in Lent. The People assert the Lent issue was forfeited, but they analyze Roman’s assertion of unconstitutional vagueness and overbreadth as strictly facial challenges to the electronics search condition. We do not believe the search condition can be analyzed for