Overbreadth and vagueness challenges to general property-related probation search condition were forfeited because there was no objection in juvenile court when the condition was imposed. Based on a plea agreement addressing two separate delinquency petitions, R.S. admitted one count of robbery (Pen. Code, § 211) and one count of resisting an executive officer (Pen. Code, § 69). At the disposition hearing, the juvenile court adjudged R.S. a ward and set the terms of his probation. R.S. did not object. On appeal, R.S. challenged a condition permitting warrantless searches of his property as vague and overbroad. Held: Affirmed. While an objection to the reasonableness of a probation condition is forfeited if not raised at the time of imposition, facial constitutional challenges may be raised for the first time on appeal where the circumstances present pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875.) Here, R.S. argued that the property search condition was facially vague because it was unclear whether it encompassed electronic devices. The court disagreed, observing that an electronic device in R.S.’s possession would reasonably qualify as “any property” under the search condition. In any event, if R.S. required clarification as to whether the phrase “any property” encompassed electronic devices, he should have asked the juvenile court. “Where, as here, R.S. did not request clarification when given the opportunity and the condition imposed may not implicate a constitutional question, it is prudent to avoid unnecessary determination of constitutional issues.” The court likewise determined that R.S.’s overbreadth challenge was forfeited because it required consideration of the record and was therefore not a pure question of law. [Editor’s Note: Several cases addressing the constitutionality of electronics search probation conditions are currently pending review in the Supreme Court. (See In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted 2/17/2016 (S230923/A144149) [lead case].]

Vagueness challenge to supervision-related probation condition was also forfeited. The juvenile court also imposed a probation condition prohibiting R.S. from traveling in a car with another juvenile unless a “responsible adult” is present. The court disagreed with R.S.’s argument that the phrase “responsible adult” rendered the condition unconstitutionally vague. Given the fact that R.S. committed his robbery offense while with a juvenile associate, the juvenile court was clearly concerned with whom R.S. associated. “In this context it is sufficiently clear that a ‘responsible adult’ is an adult with a supervisory role, or one who is capable of taking responsibility for R.S. similar to that of a parent or legal guardian.” However, the court ultimately concluded that R.S. forfeited his challenge to this condition by failing to object in the juvenile court.

Editor’s Note: R.S. petitioned for rehearing, arguing the opinion in his case is inconsistent with In re I.V. (2017) 11 Cal.App.5th 249 (D070611), decided by Division One of the Fourth District on the same day. The court denied rehearing, and Justice Haller wrote separately to explain her vote in denying the petition. In I.V., the juvenile also argued that the word “property” was unconstitutionally vague as used in his probation search condition, but the court concluded the challenge was not forfeited based on the circumstances of the case. The court in I.V. went on to hold that the term “property” in the search condition extended only to tangible property, and not to electronic data. Justice Haller explained that R.S.’s case was factually distinguishable from I.V. R.S.’s case involved a stolen cell phone and his failure to seek clarification regarding the scope of the electronic search created case-specific ambiguities as to whether the juvenile court intended the search condition to include electronic devices. In Justice Haller’s view, the court’s “observations regarding a possible reasonable interpretation of the search condition were in the context of explaining [the] forfeiture conclusion, and were merely illustrative of the type of case-specific ambiguity that precluded [the court] from reaching the merits as a purely legal issue.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D071020.PDF