People v. Jack CA3People v. Jack CA3
BACKGROUND
I.
In May 2021, police were dispatched to Jack‘s residence after his older son reported that Jack had molested the victim, Jack‘s younger son, who was then 13 years old. When police arrived, Jack acknowledged having “slightly molested” the victim by touching his buttocks while cuddling him in bed. The victim told the police that he quickly got out of the bed and that, later that evening, Jack apologized and admitted having wanted to have sex with him at the time.
An amended information charged Jack with one count of committing a lewd or lascivious act on a child under age 14 (
At trial, the jury heard evidence that Jack had been drinking alcohol continuously for at least one week leading up to the incident and was intoxicated and experiencing alcohol withdrawals when he originally spoke with police. Jack testified that he was “a binge drinker” and that he had no memory of his actions that night or of his original police interviews because he was “in a blackout state.” He further testified that during binges he would sometimes try to talk with people through dating applications on his smartphone to try to distract himself enough to taper off drinking. Jack stated that he vaguely recalled using an app called Grindr on the night of the incident. Although he was aware that this app was commonly used for arranging sexual encounters, he would
At trial, the victim, then age 15, denied that Jack had ever touched him inappropriately, stating that it was all a misunderstanding. Both the victim and his older brother, who was age 18 at the time of trial, testified that they had very good relationships with Jack. The victim stated that he wished to return to living primarily with Jack, as hе had since his parents separated except for a few months after Jack‘s arrest and a short time preceding the trial.
Jack was convicted as charged, and the trial court found true the aggravating factor that he abused a position of trust in committing the offense.
II.
Before sentencing, the trial court ordered a psychological evaluation of Jack pursuant to
At the sentencing hearing, the trial court deemed Jack suitable for probation, finding that he was “not a danger to reoffend.” The court found that Jack was not a danger to either the community or his family. The court allowed Jack peaceful contact with his sons, over the People‘s request for a criminal protective order. The court suspended imposition of a prison sentence and placed Jack on a five-year term of probation with 270 days in county jail.
The trial court imposed most of the probation conditions recommended in the presentence report, striking certain conditions, modifying others following discussion with the parties, and adding certain conditions. As relevant here, the court imposed the fоllowing conditions of probation:
Condition 3 required Jack to submit his “person, property and automobile and any object under [his] control to search and seizure” with or without a warrant at any time. At defense counsel‘s request, the trial court limited this condition to searches for alcohol and drugs and for whether any minor was present with Jack. The court declined the People‘s request to add to that list searches for any illegal sexual material, noting its concern about a “lack of nexus.”
Condition 9 stated: “Defendant shall disclose all e-mail accounts, all Internet accounts, and any other means of access to any сomputer or computer network, all passwords and access codes. Defendant shall consent to the search of such e-mail and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause.” The trial court stated that this condition was being imposed “as part of [Jack‘s] sex offender management program,” which he was required to complеte as another condition of probation.
Condition 13 prohibited Jack from “knowingly engag[ing] in volunteer work involving minors without the permission of the probation officer or Court.”
Finally, condition 16 required Jack to submit his “person, place, property, automobile, electronic storage devices, and any object under his[] control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his[] presence or further consent.” This condition further stated that, by accepting probation, Jack “specifically consented to searches of his[] electronic storage devices” and was required to “provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessаry to conduct a search.”
DISCUSSION
Jack contends that the electronics search conditions contained in conditions 9 and 16 should be stricken because they are unreasonable under Lent or, at a minimum, modified as unconstitutionally overbroad. He also claims that condition 5, limiting his association with minors, should be modified due to its unconstitutional overbreadth.
Jack failed to object to, or request modification of, any of these conditions on the grounds now raised on appeal. He argues that his constitutional claims are nevertheless preserved for our review because they present pure questions of law; and to the extent objections were required, he asserts that his trial counsel was ineffective for failing to request to strike or modify the challenged conditions. The People state that they are not invoking forfeiture as to either set of claims so as to avoid Jack‘s alternativе claim of ineffective assistance of counsel.
The failure to object to a probation condition as unreasonable under Lent generally forfeits the contention on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235, 237; In re P.O. (2016) 246 Cal.App.4th 288, 294.) And only facial constitutional challenges to a probation condition that are “capable of correction without reference to the particular sentencing record” are exempt from the general forfeiture rule. (In re Sheena K. (2007) 40 Cal.4th 875, 887; see id. at p. 885.) While Jack‘s constitutional claims do not fit that description, we nеvertheless exercise our discretion to consider the merits of both his Lent and constitutional claims in light of the People‘s concession and Jack‘s alternative contention that his trial counsel‘s failure to make an adequate objection constituted ineffective assistance. (See People v. Mattson (1990) 50 Cal.3d 826, 854 [considering issues not raised in trial court to forestall later claim of constitutionally inadequate representation]; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts may reach unpreserved questions].)
We first address Jack‘s challenges tо the electronics search requirements contained in conditions 9 and 16.
A trial court may impose any “reasonable conditions [of probation], as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probаtioner . . . .” (
We find dispositive the first element of Lent‘s test, which “asks whether the probation condition has no relationship to the conviction.” (People v. Patton (2019) 41 Cal.App.5th 934, 945; see Lent, supra, 15 Cal.3d at p. 486.) Here, the record supports an implied finding that there was a relationship between the offense and Jack‘s use of an electronic device and the internet. Both the evidence at trial and the
Turning next to Jack‘s alternative argument that the electronics search conditions are unconstitutionally overbroad, we agree that they are not adequately tailored. “If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection аs other citizens.” ’ ” (People v. O‘Neil (2008) 165 Cal.App.4th 1351, 1355.) “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., supra, 40 Cal.4th at p. 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—bearing in mind, of course, that рerfection in such matters is impossible, and that practical necessity will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We review
Jack objects to the portion of condition 16 permitting warrantless searches of his “electronic storage devices,” including his cell phones and computers, and condition 9‘s required disclosure of “all e-mail accounts, all Internet accounts,” and “all passwords and access codes.” The People concede that these conditiоns “are not narrowly tailored to achieve their purpose,” which is to ensure Jack‘s compliance with his sex offender management program and other terms of probation. We accept this concession. As written, these conditions permit searches of all manner of Jack‘s digital information, including, for example, health records and financial information lacking any connection to the purpose of the conditions. Given that broad sweep, we agree the electronics search requirements contained in conditions 9 and 16 are not sufficiently tailored. (See In re P.O., supra, 246 Cal.App.4th at p. 298 [finding electronics search condition overbroad because it permitted “review of all sorts of private information that is highly unlikely to shed any light on whether [the juvenile was] complying with the other conditions of his probation, drug-related or otherwise“]; People v. Appleton, supra, 245 Cal.App.4th at pp. 719, 725 [finding overbroad condition that authorized “search[es] of [the] defendant‘s mobile electronic devices [that] could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity,” including “medical records, financial records, personal diaries, and intimate correspondence“].)
The People propose that we modify the electronics search conditions to require Jack to provide his social media accounts and passwords to the probation officer. We decline to order a specific revision and instead remand for the trial court to strike or modify the electronics search conditions and to consider their proper scope in the first instance. (See People v. Bray (2025) 112 Cal.App.5th 494, 503; People v. Appleton, supra, 245 Cal.App.4th at p. 727.)
Jack next contends that condition 5‘s limitation on his association with minors should be modified because it is an unconstitutionally overbroad infringement of his right of association. We review de novo whether this limitation is “closely tailor[ed]” to its purpose. (In re Sheena K., supra, 40 Cal.4th at p. 890; see In re P.O., supra, 246 Cal.App.4th at p. 297.)
Condition 5 prohibits Jack‘s association “with any minor under the age of eighteen (18) without an adult being present who has been approved by the Court,” except for Jack‘s minor son. (Condition 5 also prohibits Jack from knowingly communicating with minors under age 18 without prior court approval, but Jack does not challenge this part of the condition.) Jack argues that condition 5 is overbroad because, first, as the primаry caregiver for his minor son (who was 16 years old at the time this appeal was taken), Jack will need to attend school activities and come in contact with his son‘s friends and, second, as a sign language interpreter by trade, he will sometimes be asked to interpret for a minor or group of minors. He argues that these types of associations do not present any risk to the public and may not involve advance notice, making the presence of a pre-approved chaperone “impractical.” At the same time, Jack acknowledges that “some restriction” on his association with minors is warranted. Jack proposes modifying condition 5 to permit certain activities involving minors with his probation officer‘s permission rather than requiring a pre-approved chaperone, offering condition 13 as an example of this model. He suggests: “Normal parental and work aсtivities can be described and approved, leaving only private one-on-one interactions with a minor subject to the chaperone requirement.”
As to Jack‘s concern with this condition‘s impact on his ability to work as a sign language interpreter, the People question whether Jack is presently working in that capacity, and there is evidence in the record suggesting he is not. But even assuming Jack has constitutionally protected associational interests in both categories of
The chaperone requirement is also adequately tailored to that purpose. (In re E.O., supra, 188 Cal.App.4th at p. 1153 [perfection not required].) It does not forbid associations altogether, but instead simply requires the presence of another adult as a means to prevent repetition of the type of conduct underlying Jack‘s offense. Indeed, at least one court has suggested that this sort of chaperone condition is a more narrowly tailored condition than others that could be imposed when, like here, limits on a probationer‘s contact with minors are warranted. (People v. Bray, supra, 112 Cal.App.5th at p. 503 [striking different condition and observing that there are “other more narrowly tailored conditions that could be imposed to serve the same purpose of protecting childrеn, such as a requirement that [the defendant] not associate with minors unless a responsible adult approved by his probation officer is present“], citing People v. Urke (2011) 197 Cal.App.4th 766, 769, 775 [affirming revocation of probation based on violation of condition prohibiting association with minors without pre-approved responsible adult present].)
Jack likens the burden imposed by condition 5 to those identified in United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, where a probation condition prohibited a father, who had been convicted of attempted sexual abuse, from being in the company of minors without prior written approval from his probation officer. (Id. at p. 1087.) The United States Court of Appeals for the Ninth Circuit found the condition
DISPOSITION
We remand the matter to the trial court to strike or modify probation conditions 9 and 16 in accordance with this opinion. In all other respects, the judgment is affirmed.
/s/
FEINBERG, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
KRAUSE, J.