Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. JV122701
MORRISON , J.
The Sacramento County Juvenile Court found that minor Jonathan S. was within the provisions of Welfare and Institutions Code section 602 in that he possessed ecstasy for sale. (Health & Saf. Code, § 11378; further undesignated statutory references are to the Health and Safety Code.) He was committed to the care and custody of his parents, ordered to complete 90 days of electronic monitoring with credit for 25 days, and ordered to “[n]ot associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or be in places where such substances are present.”
On appeal, the minor contends (1) there was insufficient evidence that he possessed ecstasy for sale, (2) the condition that he not be in places where illegal drugs “are present” must be construed to include a knowledge requirement, and (3) he is entitled to an additional day of credit for electronic monitoring. We shall modify the judgment.
FACTS
On May 8, 2006, at about 2:00 p.m., Sacramento Sheriff’s Deputy Kenny Lee was on routine patrol. He saw a white car make two turns without signaling and run through a stop sign without stopping.
Deputy Lee stopped the car, contacted its driver, and saw the minor sitting in the front passenger seat. The minor stated he was not attending school, and a records check revealed that he was a missing juvenile. At that point, Deputy Lee intended to cite and release the driver and take the minor into protective custody. Deputy Lee asked the minor whether he had any personal belongings in the soon-to-be-released car, and the minor responded that he had a blue fanny pack under the passenger seat.
Officer A.J. Jenkins, who was at the scene, retrieved the fanny pack. Deputy Lee observed that the pack was open. Visible inside the pack was a clear plastic cellophane baggie tied in a knot, containing blue colored tablets.
The minor was placed under arrest and advised of his Miranda rights. He thereafter admitted that the tablets were ecstasy and that they belonged to him. A search of his person revealed $1,700 cash and a cellular telephone. A further search of the fanny pack revealed additional cellophane baggies. A total of about 300 ecstasy tablets were retrieved. Deputy Lee tested the tablets and obtained positive findings for “Methedrine.”
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Debra Henry, a criminalist for the Sacramento County District Attorney’s crime laboratory, testified that confirmation testing on several of the seized tablets confirmed that they were 3, 4-methylenedioxymethamphetamine, or MDMA, commonly known as ecstasy.
DISCUSSION
I
The minor contends the prosecution presented insufficient evidence that he possessed ecstasy for sale. Specifically, he claims there was insufficient proof that ecstasy is “an analog of a substance controlled by Health and Safety Code section 11378[.]” (Fn. omitted.) We disagree.
Background
After both counsels finished questioning Debra Henry, this exchange ensued:
“THE COURT: And ecstasy is a controlled substance under the Health and Safety Code; is that right?
“THE WITNESS: Um, ecstasy is tucked in in a supplement under an Appellate Court decision under the analog law, which means a slightly altered controlled substance that is controlled under the Health and Safety Code.
“And it was done that way because it is what’s referred to as a designer drug.
“And we have a copy of that supplement at the crime lab.”
At the close of the prosecution case, the minor’s counsel made a motion for dismissal. (Welf. & Inst. Code, § 701.1.) She argued, “ecstasy is not listed as a controlled substance. MDMA is not listed as a controlled substance. [¶] MDMA -- in order to qualify for this code, the Petitioner has the additional duty of proving that MDMA is an analog to a controlled substance listed in the schedule. [¶] The District Attorney has not proven that element of this offense.”
The prosecutor countered that MDMA is a controlled analog, citing Health and Safety Code sections 11400 and 11401, and People v. Silver (1991) 230 Cal.App.3d 389. She noted that “[t]here was testimony from the expert witness that it is an analog.”
The juvenile court ruled: “I’m satisfied in response to the Court’s question that the expert testified that it is an analog and it is listed. [¶] To satisfy the requirements of 11378 as being a controlled substance, that was a direct question by the Court. She answered it directly. I’m satisfied with her answer.”
Analysis
“The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] Thus, the standard of appellate review as delineated in People v. Johnson (1980) 26 Cal.3d 557, 562[], is applicable in considering the sufficiency of the evidence in a juvenile proceeding. This court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]” (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)
Section 11378 provides in relevant part: “[E]very person who possesses for sale any controlled substance which is . . . specified in subdivision (d) . . . of Section 11055, shall be punished by imprisonment in the state prison.” Methamphetamine is listed in section 11055, subdivision (d)(2). Ecstasy, however, is not.
Nevertheless, section 11401, subdivision (a) provides in relevant part that a “controlled substance analog” shall be treated the same as the controlled substance listed in section 11055 of which it is an analog.
Section 11401 provides in relevant part: “(a) A controlled substance analog shall, for the purposes of Chapter 6 (commencing with Section 11350), be treated the same as the controlled substance classified in Section 11054 or 11055 of which it is an analog. “(b) Except as provided in subdivision (c), the term ‘controlled substance analog’ means either of the following: “(1) A substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance classified in Section 11054 or 11055. “(2) A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance classified in Section 11054 or 11055.”
In this case, it was undisputed that the tablets the minor possessed were ecstasy. It was also undisputed that witness Debra Henry qualified as an expert on the chemical analysis of controlled substances.
Henry opined that ecstasy fell under the “analog law,” and thus is controlled by the Health and Safety Code. Although Henry did not identify the “analog law,” it is undisputed that the law is section 11401. She did not identify the “Appellate Court decision,” but the parties agree that it is People v. Silver (1991) 230 Cal.App.3d 389. Henry did not identify the controlled substance of which ecstasy is an analog, but her reference to Silver allows an inference that it is methamphetamine, the only such substance at issue in that case. (Id. at p. 392.)
We thus reject the minor’s contention that, “Since there was no testimony here regarding any drug named in the code section of which [ecstasy] is the analog, the prosecution entirely failed to establish this element of the crime.”
The question whether ecstasy is substantially similar to methamphetamine in chemical structure or effect must be resolved by the trier of fact. (People v. Silver, supra, 230 Cal.App.3d at pp. 396-398.) In Silver, the parties presented experts on both sides of the issue. (Ibid.) Here, only the single expert testified. Henry’s testimony that ecstasy was “under an Appellate Court decision under the analog law” allows an inference that ecstasy is an analog of methamphetamine because the two are substantially similar, either in chemical structure or effect. (§ 11401, subd. (b).)
Section 11401 does not require a determination whether the requisite similarity exists with respect to structure, or effect, or both. Henry’s failure to address that issue does not render her testimony insufficient.
Henry did not explain the nature of the “supplement,” into which ecstasy had been “tucked,” other than to say that she had “a copy” of it at her laboratory. But the nature of the supplement was not at issue and the lack of explanation does not require reversal.
Because the supplement was not in evidence and is not a part of the appellate record, we disregard the minor’s argument as to what is stated in the supplement.
The minor’s section 11378 adjudication is supported by substantial evidence. (In re Jose R., supra, 137 Cal.App.3d at p. 275.)
II
The minor contends the juvenile court violated his due process rights by ordering a vague and overbroad probation condition. The Attorney General responds that the minor has forfeited his claim by failing to assert it in the juvenile court. Following the completion of briefing in this case, the California Supreme Court decided In re Sheena K. (2007) 40 Cal.4th 875, which rejected an identical claim of forfeiture. We shall modify the probation condition.
Background
After it sustained the petition, the juvenile court placed the minor on probation subject to special and general conditions. As stated in the court’s minute order, one of the general conditions was: “l. Not associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or be in places where such substances are present.”
At the hearing, the juvenile court asked the minor’s counsel whether she would like the court to “just summarize” the general conditions “real quickly.” Counsel replied, “Yeah. That would be nice. Thank you.” The court went on in dialog and in a summary fashion to inform the minor of his probation conditions.
As to the nonassociation condition, the juvenile court stated: “You can’t associate with people that use them or be in places where they’re being used.” To emphasize the provision, the court stated, “And again a non-association with drug users.” Analysis
Overlooking the juvenile court’s comment that it was “just summariz[ing]” the written probation conditions “real quickly,” the minor claims the court’s oral comments “verbally [sic] modified” the written conditions “by removing the element of knowledge.” The contention is frivolous.
The juvenile court never stated that it was making an oral modification to the terms of the written probation order. The record as a whole makes plain that the court did not intend, or accomplish, any such modification.
The minor next claims the knowledge element of the written probation condition is inadequate because it forbids him to “be in places where [illegal drugs, including marijuana] are present,” even if he is not informed, and does not know, of their presence. As he correctly notes, the Attorney General has overlooked this portion of the minor’s argument and has failed to address it.
The probation condition properly allows the minor to associate with a person whom he does not know, and is not told, is a user or seller of illegal drugs. This provision is required by existing law, which holds that probation conditions requiring a defendant to refrain from associating with persons not known to the defendant to be users and sellers of narcotics, or felons, or ex-felons, are overbroad. (People v. Garcia (1993) 19 Cal.App.4th 97, 102-103; see People v. Lopez (1998) 66 Cal.App.4th 615, 627; see In re Sheena K., supra, 40 Cal.4th at pp. 891-892.)
The right to associate with persons not known to be users or sellers of unlawful drugs would be rendered hollow if those persons’ clandestine possession of drugs at the place of an otherwise-permissible association with the minor were sufficient to constitute a probation violation. To assure himself that he was complying with probation, the minor would have to refrain from associating with the very persons that Garcia and Lopez allow him to associate with. (People v. Garcia, supra, 19 Cal.App.4th at pp. 102-103; People v. Lopez, supra, 66 Cal.App.4th at p. 627.)
We shall modify general probation condition l. to require that the minor “[n]ot . . . be in places where you know, or where the Probation Officer informs you, that marijuana or other illegal drugs are present.” (In re Sheena K., supra, 40 Cal.4th at pp. 891-892.)
III
The minor contends the juvenile court incorrectly calculated his pre-commitment custody credit. This claim has merit.
The juvenile court warned the minor that his compliance with “ankle bracelet” electronic monitoring was “not going to be easy for” him. The court ordered monitoring for “Ninety days,” and explained that the minor would “do 90 days, and then they’ll take it off.”
The minor’s counsel then asked, “You are going to give him credit for the 25 that he’s done in custody?” The court replied, “I think that’s only fair.” After consulting with the probation officer, the court ordered, “Let’s give him 25 days credit. Ninety really is a chunk of time on that bracelet. So we’ll take 25 off of that. Okay. Give you credit.”
On appeal, the minor contends he “was arrested in this case on May 8, 2006, and the disposition hearing was held on July [sic; June] 2, 2006. Given that both the day of arrest and the day of sentencing are counted as full days of custody, minor was entitled to 26 days of custody credit on the date of disposition. He was granted 25.” (Citations omitted.)
The Attorney General responds that the rule deeming the dates of arrest and sentencing to be full days of custody (Pen. Code, § 2900.5; People v. Smith (1989) 211 Cal.App.3d 523) applies to an adult defendant’s “term of imprisonment,” rather than to conditions of juvenile probation. But the Attorney General offers no sound basis for the juvenile court to have applied a different formula. Even if the court had discretion to award anywhere from 0 to 90 days of credit, the exchange with the minor’s counsel suggests that the court would have ordered 26 days if counsel had represented that the minor had been in custody for that period. We shall modify the judgment to award the minor 26 days of pre-commitment credit.
DISPOSITION
The judgment (general probation condition l.) is modified to require that the minor “Not associate with persons whom you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana; or be in places where you know, or where the Probation Officer informs you, that marijuana or other illegal drugs are present.” The judgment is further modified to award the minor 26 days of pre-commitment credit. As so modified, the judgment is affirmed.
We concur: BLEASE , Acting P.J. DAVIS , J.