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In re R.V.

February 19, 2009

IN RE R.V., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
R.V., DEFENDANT AND APPELLANT.



(Napa County Super. Ct. No. JV15340). Trial judge: Honorable Mark Boessenecker.

The opinion of the court was delivered by: Pollak, J.

CERTIFIED FOR PUBLICATION

R.V., a ward of the juvenile court, appeals from a disposition order conditioning his probation on the requirement that he wear a global positioning system (GPS) device. He argues that this condition infringes his constitutional rights to privacy and equal protection of the laws. Although the appeal is now moot, the issue is likely to recur and we therefore address the merits of the argument and affirm.

BACKGROUND

A juvenile wardship petition was filed on September 5, 2007, alleging that R.V. had received stolen property for the benefit of a criminal street gang. (Pen. Code, §§ 496, subd. (a), 186.22, subd. (d).) The minor was 16 years old at the time. According to the probation report prepared for the detention hearing, R.V.'s home was searched in connection with a burglary at Napa High School in which property had been stolen and the walls vandalized "with gang writing." The police "asked the minor if he was in possession of a stereo. He stated yes, a friend of his, 'Speedy' had given it to him a couple of weeks ago. He showed it to the officer. [The officer] then inquired if he had a microscope in his bedroom closet. The minor stated he did not. After receiving permission from the minor, the officer searched the minor's closet, locating the stolen microscope and other stolen items as well. . . . [The officer] located additional stolen items in his dresser and gang writing in [a] notebook. It was later discovered some of the drawing were distinctive and matched the vandalism on the walls of Napa High. . . . The minor admitted smoking marijuana to the officer and stated he did not have any in his possession; however he probably would on any other day." R.V. denied he was involved with the burglary but admitted that he was a member of the Sureño gang. He told the officer that he had shot at Norteño gang members previously "just to warn them." The detention report stated that he "has no employment, is in need of a school placement, is heavily involved in the gang culture, and smokes illegal substances. It does not appear the minor has appropriate supervision in the home or that the minor's mother can control his behaviors. The minor presents a danger to himself and those in the community. It is respectfully recommended the minor be detained by the court pending all further court proceedings with probation given discretion to release the minor on the Electronic Monitoring Program or a Home Detention Agreement." On September 10, 2007, the court ordered the minor detained.

On October 1, 2007, an amended wardship petition was filed charging R.V. with two counts of vandalism for the benefit of a criminal street gang (Pen. Code, §§ 594, subd. (a) and 186.22, subd. (d)) in addition to receiving stolen property (Pen. Code, § 496, subd. (a)). The probation report filed on October 16, 2007, states that "On September 6, 2007, the . . . minor . . . was released from Juvenile Hall to the custody of his mother under standard terms and conditions of a Home Detention Agreement. Almost immediately, the minor began violating these conditions. On September 9, 2007, the minor left home without permission and did not return until September 10, 2007. . . . On October 7, 2007, the minor left his residence without permission. His whereabouts were unknown until his family located him in Los Angeles on October 9, 2007. The minor finally returned home on October 12, 2007." On October 17, 2007 the juvenile court ordered R.V. detained. In another report, the probation officer stated that he had spoken with R.V.'s sister who "indicated she has been 'dealing' with the minor's behavior because their mother does not speak English. . . . She said the minor would frequently leave the house and wouldn't say where he was going and at times would not return home until the next day."

On November 13, R.V. admitted one count of vandalism with the gang enhancement and the count of receiving stolen property without the gang enhancement. The remaining vandalism count was dismissed. At the November 28, 2007, disposition hearing the court again declared R.V. a ward of the court, committed him to juvenile hall for 60 days, and placed him on probation subject to certain standard conditions.

A probation violation report was filed on January 30, 2008, alleging that R.V. "failed to attend school regularly and failed to obey school rules and authorities." A detention hearing was held the same day and the probation report recommended that the court give the probation officer "discretion to release the minor under a Home Detention Agreement or Electronic Monitoring . . . ." At the same hearing, R.V. admitted to the probation violation and the court continued the matter to February 13. On February 13 a probation report was filed that described R.V. as a "moderate risk" and, at an uncontested disposition hearing, the court imposed an additional 20 days of detention and continued R.V. on probation without any new conditions.

On March 28, 2008, a probation violation report was filed alleging that R.V. had "consumed alcohol and associated with known gang members." R.V. admitted violating the terms of his probation and the court sustained the allegation. In the disposition report, the probation officer noted the minor's continued involvement with the Sureño gang and stated, "This officer has serious doubts as to the minor's ability to abide by his terms and conditions of probation. Typically these types of behaviors would be enough to warrant a camp recommendation. However, the minor was able to remain law abiding since his release from juvenile hall. This shows the minor has the ability to stay out of trouble. [¶] To test the minor's ability to remain law abiding the undersigned recommends a plan that will hold the minor accountable and demonstrate his compliance with court orders. The plan would request the minor to be detained for 44 days with credit for 22 days time served. . . . At the end of the juvenile hall time the probation department would request the minor be released on a [GPS] ankle monitor for 90 days. The real time supervision that the GPS can provide will illustrate to the probation department and the courts not only an accurate accounting of the minor's activities, but where and when they are occurring."

At the disposition hearing, counsel for the minor objected to the GPS condition, stating, "I think kids, when they break the law and come in front of the court, I understand they have to give up their rights, but I think that pushes that too far and he is not even deemed a high-risk juvenile offender. And if we are going to start imposing this, it should be on that category, not the moderate-risk kids and this is only on for a violation of probation today for consuming alcohol on one day. . . . I think the additional time is a significant enough deterrent and that the GPS monitor is completely inappropriate." The probation department replied that the minor "is involved in gangs. He blatantly showed his disregard for the court, for probation, when he flashed a gang sign in court for anybody to see him. He has been to court on a prior violation and he has a new violation for which he is in for consuming alcohol. The GPS would allow him to be home and continue with his schooling; however, [it]would allow probation to monitor where he is and to ensure that he is not participating in criminal gang activity and involving himself in these types of situations . . . ." On April 16, 2008, the juvenile court adopted the probation department's recommendation, including the condition of 90 days' GPS monitoring. The court observed, "Frankly, I think the recommendation does you a favor because it's going to be a reminder to you that every moment that you are out that you have this device on you that it keeps track of you."

R.V. timely appealed from this order.

DISCUSSION

R.V. argues that the juvenile court should not have imposed the GPS monitoring condition because it "constitutes a serious deprivation of liberty that intrudes into a constitutionally protected space, the home, and is not reasonably related to [his] offense or history, deterrence, or protection of the public." He contends that the condition infringes on his right to privacy under the Fourth Amendment to the United States Constitution and his right to equal protection under the provisions of the California and United States Constitutions.

The Attorney General first argues that the appeal is moot because the minor has since been sent to a boys' camp and is no longer on probation subject to the disputed condition.*fn1 The minor argues that the issue should be addressed because it is likely to recur, citing In re Sheena K. (2007) 40 Cal.4th 875.In that case, the minor died while the appeal was pending but the Supreme Court retained the "case for argument and opinion in order to resolve the conflict that has arisen in the Courts of Appeal with regard to the first issue, and in view of the recurring nature of both issues." (Id. at p. 879.) "If an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot." (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716.) The GPS technology is relatively new. Although its use is not statutorily authorized for minors as it is for adult probationers (Pen. Code, ยง 1210.7 et seq.), juvenile courts nonetheless may be expected to make increasing use of such devices in their dispositional orders. At the hearing ...


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