California Cases April 22, 2020: People v. Paul B. (In re Paul B.)

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Monterey County Super. Ct. No. 18JV000406)

Appellant Paul B. was placed on probation after the juvenile court found true an allegation that Paul had committed a lewd act (Pen. Code, § 288, subd. (a)). On appeal, he contends that his trial counsel was prejudicially deficient in failing to object to two probation conditions, one of which barred him from possessing a cell phone or a pager and the other of which was an electronics search condition. He alternatively contends that the electronics search condition was unconstitutionally vague. We conclude that trial counsel's failure to object to these conditions was a presumptively reasonable strategic choice and that Paul has failed to rebut that presumption. We also reject Paul's

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vagueness challenge to the electronics search condition. Accordingly, we affirm the juvenile court's probation order.

Twelve-year-old Paul and seven-year-old John Doe shared a bedroom with Paul's 11-year-old brother in the home where they lived with Paul's mother and John's father, who were a couple. One morning in 2018, Paul and John were lying on a bunk bed watching Paul's brother play a video game. Paul was lying behind John. John asked Paul for a pillow, and Paul told John "you have to hump me if you want the pillow." John said "no." Paul pulled down John's pants and underwear, pulled down his own pants and underwear, and tried to put his erect penis into John's butt. John told Paul to "stop" and pulled his pants back up. Paul again pulled down John's pants and put his erect penis between John's butt cheeks. John again pulled up his pants, and Paul repeated his conduct a third time. Paul's brother noticed something was happening and asked "what are you guys doing." Paul said "having sex." John again told Paul to "stop." Paul told his brother not to tell their mother, but Paul's brother said he was going to tell their mother. A couple of weeks or months later, Paul's brother told his mother about the incident. In early March 2018, the police learned of the incident when they responded to a report of a "family dispute" between Paul's mother and John's father. John's father told the police about the incident between Paul and John. Paul was interviewed by the police, and he admitted that he had tried to put his penis into John's "butt."

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In April 2018, a Welfare and Institutions Code section 602 petition was filed alleging that Paul had committed a lewd act on John. Paul was not detained. In May 2018, Paul was placed on informal supervision under section 654.2.

In November 2018, the probation department reported that, although Paul's performance on informal supervision had been "mostly satisfactory," he had numerous "unexcused school absences," had been given detention for "tagging on a school desk," and had been suspended from school for "smoking in the school restroom." He also "struggled with honesty" in his treatment sessions and failed to do his household chores. In addition, Paul "require[d] constant redirection to stay on task." The probation officer recommended that Paul's informal supervision either be extended or revoked, and a review hearing was set for January 2019.

On November 9, 2018, Paul was arrested for making a criminal threat and brandishing a weapon at a fellow student at his middle school. Paul had told the fellow student to slap another boy. When the fellow student asked: " 'What if I don't,' " Paul threatened to stab him, took a folding knife that was six or seven inches long out of his backpack, and held the folding knife in his hand, but did not open the blade. When the police contacted Paul, Paul denied that he had held a knife in his hand, claiming that it was instead "a Leatherman tool" of the described length. Paul admitted making the threat, but claimed he was joking. The probation department recommended that Paul's informal supervision be revoked. On November 27, Paul was placed on "TEMP" (apparently electronic monitoring) pending a hearing to review his informal supervision. On November 30, the court revoked Paul's informal supervision, detained him, and placed him on home supervision. A jurisdictional hearing was set for January 2019.

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Paul's trial counsel filed a brief in advance of the jurisdictional hearing arguing that the petition could not be found true because Paul was not aware of the wrongfulness of his conduct. He attached to this brief a May 2018 psychological evaluation of Paul that had been prepared at trial counsel's request by psychologist Carolyn Murphy. Murphy, who had interviewed both Paul and his mother, reported that Paul had been "previously exposed to porn on one or two occasions (once on his phone and once in a magazine) . . . ." Paul told Murphy that he had been "caught looking at porn" the first time when he was nine years old. Paul's mother told Murphy that she "will ground him and take away electronics when he misbehaves

The contested jurisdictional hearing began in January 2019 and continued into February. Murphy testified for the defense as an expert on "evaluating minors for capacity to understand wrongfulness . . . ." She testified that Paul had admitted that he had "seen porn a couple of times." Murphy testified: "I've seen a marked increase in children who are accessing pornography on their phones and viewing it a lot more frequently and then experimenting than before when it was more getting access to mom and dad's computer, for example." "I think it's more children are carrying around with them a means to access this type of information and it's a lot easier for them to look at it and potentially develop addictive patterns of behavior because of that." However, Murphy claimed that she "didn't see that" in Paul. The court found the petition true, referred the matter for a report from the probation officer, and set the disposition hearing for later in February.

The probation officer's report noted that Paul had told the probation officer that he "was going to put my penis in his (John Doe's) butt" and "would have done it" if his brother had not intervened. Paul's mother had told the probation officer that she did not believe that Paul had committed the offense, and she blamed John's father for "putting these ideas" in John's "head." The probation officer reported that Paul was "eligible" for a Division of Juvenile Justice (DJJ) commitment, and he explained in some detail the

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services that the DJJ could provide to Paul and that would be beneficial to Paul. He also noted that a DJJ commitment would likely last for four years. Ultimately, the probation officer recommended that the court declare Paul a ward for an "Open" period and place him on probation in his mother's home with many conditions, including both standard conditions and "Special" conditions.

The "Special" conditions included: "22. You shall not knowingly possess or view any pornographic materials. [¶] 23. You are not to knowingly possess any paging devices or cellular phones. [¶] . . . [¶] 25. Submit all electronic devices under your control to a search by the probation officer or a peace officer, of any text messages, voicemail messages, call logs, photographs, e-mail accounts, internet sites and social media accounts, with or without reasonable or probable cause or the benefit of a search warrant, at any time of the day or night and provide the probation or peace officer with any passwords necessary to access the information specified, and you will not change or add any email addresses or passwords without prior permission of your Probation Officer. The minor shall not knowingly clean or delete his/her Internet browsing history without prior permission from your Probation Officer."

At the February 2019 dispositional hearing, Paul's trial counsel made no objections of any kind and submitted on the probation officer's recommendations, and the prosecutor responded by doing likewise. The court characterized a home supervision behavior report, which had found that Paul had been compliant recently, as "actually quite good." However, the probation report noted that, just since early January, Paul had accumulated 10 tardies or "late arrivals" at school.

The court declared Paul a ward, found him to be "a very good candidate for this program," accepted the probation officer's recommendations, and imposed all of the recommended standard and special conditions. The court asked Paul to confirm that he had gone over "all of these terms and conditions" with his trial counsel, and Paul

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confirmed that he had done so and that he understood and accepted them. Paul timely filed a notice of appeal.

The two probation conditions barred Paul from possessing a cell phone or pager and required him to submit his electronic devices to a search. Paul concedes that the absence of objections forfeited his claims that these two conditions were unreasonable and unconstitutionally overbroad, and he contends that his trial counsel was prejudicially deficient in failing to object to these conditions on reasonableness and overbreadth grounds. He argues that there could have been no "tactical reason for not objecting" because he would have lost no benefit by objecting.

"To succeed on an appellate claim of ineffective assistance, a defendant must establish that his trial counsel's performance was deficient and that his defense was prejudiced by the deficiency. [Citations.] 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] Whenever counsel's conduct can be reasonably attributed to sound strategy, a reviewing court will presume that the conduct was the result of a competent tactical decision, and the defendant must overcome that presumption to establish ineffective assistance. [Citation.]" ( People v . Fromuth (2016) 2 Cal.App.5th 91, 113.) "It is not deficient performance for a criminal defendant's counsel to make a reasonable tactical choice." ( People v . Ochoa (1998) 19 Cal.4th 353, 445.)

Paul has failed to overcome the presumption that his trial counsel's failure to object to the two probation conditions was the result of a reasonable tactical decision aimed at encouraging the juvenile court to grant probation rather than send Paul to the DJJ. This was not a case in which probation was a given. Paul's behavior when he was on informal supervision was highly troubling. He did not regularly attend school, was

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given detention for "tagging" a school desk, was suspended for smoking in a school restroom, was dishonest during his treatment, and threatened to stab a schoolmate and displayed a weapon at school. Paul's mother could not be relied upon to control Paul's behavior given that she continued to believe that Paul had not committed the offense even after Paul had repeatedly admitted it. And the offense was very serious. Paul tried to sodomize a seven-year-old boy, and he continued his attempts multiple times after the boy told him to stop and tried to thwart him. The fact that the probation officer's report discussed the benefits of a DJJ commitment may have indicated to trial counsel that a DJJ commitment was a distinct possibility. Under these circumstances, Paul's trial counsel could have reasonably decided that a challenge to any of the probation conditions might cause the juvenile court to reconsider whether probation was a safe option in this case and to instead select a DJJ commitment. Trial counsel could have reasonably concluded that it was necessary for Paul to present himself as willing to accept each and every recommended probation condition in order to satisfy the juvenile court that he would not pose a danger to the community if permitted to remain in his mother's home on probation.

Paul's trial counsel could also reasonably conclude that Paul had little to gain by challenging the reasonableness or breadth of these two probation conditions. He may well have understood that Paul did not have or need a pager so there was no need to limit that condition to a cell phone. And he could have reasonably believed that the juvenile court was unlikely to permit Paul to possess a cell phone given Paul's admission that he had used a cell phone to view pornography and Murphy's testimony linking the sexual behavior of children to cell phone access to pornography. This same link supported the electronics search condition due to the need to monitor Paul's access to pornography, and Paul's trial counsel could have reasonably concluded that the juvenile court would not be willing to eliminate or limit this condition in light of Paul's troubling behavior on

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informal supervision, the serious nature of his offense, and Paul's mother's inability to accept that Paul had even committed the offense.

We conclude that Paul has failed to satisfy his burden to establish that there was no conceivable tactical justification for his trial counsel's failure to object to these probation conditions. Consequently, Paul cannot prevail on appeal on his claim that his trial counsel was prejudicially deficient, and his ineffective assistance of counsel claim must be rejected.

Paul alternatively claims that the electronics search condition is unconstitutionally vague.

"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions.' " ( In re Sheena K . (2007) 40 Cal.4th 875, 890.) "In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context ,' and that, although not admitting of 'mathematical certainty,' the language used must have ' " reasonable specificity." ' " ( Ibid .) "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.]" ( Ibid .)

Although Paul asserts that he is making a vagueness challenge to this condition, his argument is that the condition was insufficiently precise because it "encompasses all of [Paul's] electronic devices, without limiting the type of device," "fails to limit what

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type of data or information can be seized," and lacks "temporal limitations." The relief he seeks is an order for the juvenile court to restrict the reach of this condition.

None of these arguments concerns a lack of reasonable specificity. His arguments are based on his claim that the condition is overbroad, an argument he has forfeited. Paul cannot argue that this condition was not "sufficiently precise" for him "to know what is required of him" because he expressly assured the court below that he understood the conditions. He fails to explain how it is that this detailed condition lacks sufficient precision for a court to determine whether it has been violated. We therefore reject Paul's contention.

The juvenile court's probation order is affirmed.

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/s/ _________
Mihara, J.

WE CONCUR:

/s/ _________
Premo, Acting P. J.

/s/ _________
Elia, J.