Opinion
A152858
11-09-2018
In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. JV18601)
I.
INTRODUCTION
J.G. appeals from an order declaring her a ward of the court. (Welf. & Inst. Code, § 602.) J.G. was charged with being unlawfully under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and public intoxication (Pen. Code, § 647, subd. (f)). She contends she was not given sufficient notice of the charges against her and there was insufficient evidence to support her conviction. J.G. further argues the court erred in imposing an electronic search condition which is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad.
All subsequent references are to the Welfare and Institutions Code unless otherwise identified.
We disagree and affirm the juvenile court's disposition order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
On September 12, 2017, the Napa County District Attorney filed a wardship petition charging then 14-year-old J.G. with being unlawfully under the influence of a controlled substance. The court held a contested jurisdictional hearing on October 3, 2017 and found the allegation to be true. The court declared J.G. a ward of the court and placed her on probation.
B. Factual Background
1. Jurisdictional Hearing
At the contested jurisdiction hearing, Napa County Sheriff's Deputy Jacob Glashoff testified he was dispatched for a juvenile who had run away from home. He saw J.G. walking with her belongings and her mother walking 50 to 100 yards behind her. J.G.'s mother told Deputy Glashoff that J.G. was under the influence of Xanax. Deputy Glashoff approached J.G. and asked her to stop. When he began speaking to her, he noticed "slurred speech and delayed response." She also had an "unsteady gait" and her physical actions were slow.
J.G. "had a bit of a blank stare" and "dilated pupils." Dilated pupils generally mean a person is under the influence of a depressant. The California Highway Patrol issues cards with pupil sizes on them and Deputy Glashoff used the card to estimate that J.G.'s pupils were dilated to approximately seven millimeters. They were very large compared to an average person's.
J.G. told Deputy Glashoff that she had taken Xanax at school. He could not remember precisely but thought J.G. told him she took two pills. She said she acquired the pills from someone at school and they had a connection in Antioch.
Deputy Glashoff explained that he had been a narcotics detective for two and a half years and had attended narcotics training. He estimated he had interviewed a thousand narcotics users. Based on his training and experience, he believed J.G. was under the influence of a controlled substance. He testified: "I concluded based on her symptoms and her admission to taking Xanax that she was in fact under the influence of Xanax."
On cross-examination Deputy Glashoff stated, based on J.G.'s symptoms, she could be under the influence of any number of controlled substances. Her statement that she had taken Xanax caused him to determine that was what she had taken. Deputy Glashoff was not trained as a Drug Recognition Expert (DRE).
At the end of Deputy Glashoff's testimony, defense counsel made a motion under section 701.1 that the People had failed to prove J.G. had not taken a prescribed medication. Defense counsel cited CALCRIM No. 2400, which states that the People have the burden of proving that a defendant did not have a valid prescription for Xanax. The court responded if defendant refused to release her medical records then it was impossible for the People to demonstrate any prescription. The prosecutor stated that J.G. had admitted getting the Xanax from someone at school through a connection in Antioch. The court stated that it was the defense burden to raise a reasonable doubt that the medication had been properly prescribed. The court denied the section 701.1 motion.
Defense counsel argued there was sufficient evidence J.G. was under the influence of a drug, but the prosecution had not proved beyond a reasonable doubt what that specific drug was. The fact that J.G. believed she had taken Xanax did not mean she had, in fact, taken Xanax.
The court found that "the charges are proven that the minor was under the influence of Xanax. She admitted it. Her symptoms were completely consistent with that substance. And in fact, she admitted it more than once . . . . She had delayed responses, slurred speech, blank stare, dilated pupils. And the officer had interviewed over a thousand people suspected of being under the influence and he has the knowledge and experience to determine that was the drug and that's the symptoms she displayed."
2. Disposition and Probation Conditions
The probation department's dispositional report concluded J.G.'s substance abuse was of "great concern." J.G. admitted to taking Xanax one to three times per week and to taking up to five pills at a time. She smoked marijuana two to three times per month. She had also experimented with cocaine, acid, ecstasy, and psilocybin mushrooms. The probation report recommended the court impose an electronic search condition.
At the dispositional hearing, defense counsel argued that the proposed electronic search condition was overbroad. Counsel stated there was "no indication in the record that [J.G.] used her cell phone in the commission of her offense." The prosecutor argued it would be "hard to believe that she's doing this without the use of a cell phone." Probation should be able to access her phone to see who she is talking to and if she is using it to obtain drugs.
The court ordered J.G. to submit to "search of all electronic devices that she may possess or have access to." The court stated it was ordering the condition because of the use of intoxicants. "I think that obtaining those means that a person has to find out where to get them. And that's how we do our communications nowadays, is by using our electronic devices to locate others and to locate intoxicants."
The court's written order stated: "The minor submit all electronic devices under their control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer." This condition mirrors the probation officer's recommended terms and conditions.
III.
DISCUSSION
A. Under the Influence Charge
J.G. raises two arguments regarding the charge that she was under the influence of a controlled substance. First, she argues that the section 602 petition did not specify the type of controlled substance at issue. Second, J.G. argues the prosecution failed to prove she was under the influence of Xanax beyond a reasonable doubt.
1. Section 602 Petition
J.G. contends the prosecution failed to identify the class of controlled substance she was charged with using in the section 602 petition. The petition does not classify the type of controlled substance or list a drug by name. J.G. argues due process required she have notice of the charges against her and the petition failed to allege the category or type of controlled substance.
The petition states: "On or about September 8, 2017 in the County of Napa, State of California, the crime of UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE in violation of section 11550(a) of the Health and Safety Code, a Misdemeanor, was committed by [J.G.], who did unlawfully use and be under the influence of a controlled substance." The petition was issued along with the detention report which provided a detailed description of the offense including the fact Deputy Glashoff believed J.G. had ingested Xanax and J.G. admitted to taking Xanax. The arrest/detention report also stated J.G. had taken Xanax.
"A defendant's right to be informed of the charges 'is satisfied when the accused is advised of the charges against [her] so that [she] has a reasonable opportunity to prepare and present a defense and is not taken by surprise by the evidence offered at trial.' " (People v. Stone (2009) 46 Cal.4th 131, 141; Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 790 (Lamadrid).)
The People argue that J.G. has forfeited any argument about a defect in the petition by failing to raise it before the juvenile court. If J.G. believed there was a defect in the section 602 petition, she had a duty to challenge the petition. (See In re Jamil H. (1984) 158 Cal.App.3d 556, 560; In re Rudolfo A. (1980) 110 Cal.App.3d 845, 847, 857.) "By failing to demur, a defendant waives any argument that a pleading couched in statutory language did not give him adequate notice for purposes of trial. [Citation]." (In re Jamil H., supra, at p. 560.) J.G.'s claim that she was not provided adequate notice is forfeited because she failed to raise it before the juvenile court.
However, if we were to consider the claim on the merits, it still fails. J.G. cites to Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, which held that a complaint alleging Health and Safety Code section 11550 violations against 25 defendants that charged each defendant did " 'unlawfully and willfully use and was under the influence of a controlled substance' " without alleging the controlled substance was a violation of due process. (Id. at pp. 739-740.) Each defendant would have to be prepared to defend against approximately 120 proscribed drugs or substances. (Id. at pp. 741-743.) Unlike Sallas, J.G. did not have to guess at which of 120 controlled substances were at issue. (Id. at p. 744.) J.G. had good reason to know that she was charged with being under the influence of Xanax. Both J.G. and her mother told Deputy Glashoff that she had taken Xanax and could surmise that this was the basis for the charge against her. J.G. also told her probation officer that she had ingested two Xanax pills " 'at the rally' " during school hours. She said she had two additional pills but was unsure if she took them also. In addition, the Sallas court stated: "Our holding goes no further than to declare that the Health and Safety Code section 11550 complaints at issue fall short of compliance with recognized standards of due process of law. We do not hold, or suggest, that in such prosecutions the charge must pinpoint one of the many controlled substances of the statute." (Ibid.)
In Ross v. Municipal Court (1975) 49 Cal.App.3d 575, the court reached the opposite conclusion. Ross argued the complaint violated his due process rights because it alleged a violation of Health and Safety Code section 11550 but did not specify which controlled substance he was accused of having used. (Ross, at p. 577.) The court concluded: "The complaint before us gave petitioner fair notice of the crime of which he was accused. True, it did not tell him the means by which he committed the crime, but we would suppose, unless the accused happens to be a frequent user of several controlled substances, he would already have good reason to know the identity of the controlled substance involved." (Id. at p. 579.)
Here J.G. had actual notice of the identity of the controlled substance at issue. Both the arrest report and the detention report filed along with the petition identified the controlled substance that J.G. had taken as Xanax which was based upon statements she and her mother had made to the police as well as her symptoms. (See Lamadrid, supra, 118 Cal.App.3d at p. 791 [a police report filed with the complaint or incorporated by reference may provide actual notice]; Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 653.)
2. Sufficiency of the Evidence
J.G. argues there was insufficient evidence to prove she was under the influence of a controlled substance as opposed to a legal drug or drug outside the purview of Health and Safety Code section 11550.
In assessing the sufficiency of the evidence, "[o]ur review is governed by the same principles applicable to adult criminal appeals. [Citation.] Our function is 'to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding.' [Citation.]" (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) " 'Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact . . . .' " (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.) "The term 'substantial evidence' means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. [Citation.]" (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
J.G. does not dispute that she was "under the influence of something": her eyes were dilated, her speech was slurred, she was slow to respond to questions, and she was unsteady on her feet. But J.G. argues it could have been an over-the-counter medication such as Benadryl. J.G. argues there was insufficient evidence she was under the influence of Xanax.
There was nothing in the record before the juvenile court about J.G. taking Benadryl. Respondent argues that J.G. improperly cites to numerous articles and sources about the effects of Benadryl in her brief that are not properly part of the record on appeal.
First, J.G. contends the prosecution failed to provide any blood or urine test results to demonstrate what she had ingested and failed to prove she had not taken a prescription or over-the-counter medication. Prior to the jurisdictional hearing, the court held a hearing on J.G.'s medical records. Defense counsel argued that the prosecutor had failed to provide J.G. appropriate notice when subpoenaing her medical records from her post-arrest hospital visit. Defense counsel argued the hospital had violated the Health Insurance Portability and Accountability Act (HIPAA) by releasing the records to the court and the court should not look at them. The People argued that noticing a hearing on the issue constituted notice. In a somewhat convoluted hearing, defense counsel argued the information was admissible but not discoverable. In essence, the defense claimed the prosecution had not complied with HIPAA and improperly obtained the medical records and the hospital improperly produced them. The court stated it needed to research the issue, so it proposed going forward with the hearing and then deciding on the records. Both parties objected. Finally, the prosecutor asked Deputy Glashoff if either a blood or urine test was conducted on J.G. at the hospital and he stated he did not believe any tests were done so the whole argument was moot. Defense counsel stated the court could not look at the records to confirm whether this was true. Ultimately, the court ruled based on the uncertainty, it was not going to allow introduction of the medical records.
At the end of the jurisdictional hearing defense counsel made a section 701.1 motion that the People had failed to prove J.G. had not taken a prescribed medication. The court responded if defendant refused to release her medical records then it was impossible for the People to demonstrate any prescription, and moreover it was the defense burden to raise a reasonable doubt that the medication had been properly prescribed. The court denied the section 701.1 motion.
Having a prescription for the controlled substance is a defense, not an element of the prosecution's burden of proof. Health and Safety Code section 11550, subdivision (a) provides a person shall not be under the influence of any controlled substance "except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception." (Health & Saf. Code, § 11550, subd. (a).) The relevant California jury instruction provides: "It is a defense if the use of a controlled substance was lawful, namely, that the controlled substance was administered by or under the direction of a person licensed by the State to dispense, prescribe, or administer controlled substances. To establish this defense, the burden is on the defendant to raise a reasonable doubt that the use was unlawful." (CALJIC No. 16.061 (7th ed. 2005).) In the analogous contexts of possession of a controlled substance under Health and Safety Code section 11350, courts have held "it is up to the defendant to prove the existence of a prescription; the prosecution need not prove the nonexistence of a prescription." (People v. George (1994) 30 Cal.App.4th 262, 276; People v. Martinez (1953) 117 Cal.App.2d 701, 708.) J.G. failed to prove she had taken a lawful prescription or over-the-counter medication.
Next, J.G. argues Deputy Glashoff was not a DRE and could not adequately evaluate her. Deputy Glashoff had been a narcotics detective for two and half years, attended narcotics training, and had interviewed a thousand narcotics users. He testified that based on his training and experience, he believed J.G. was under the influence of a controlled substance. Based on her symptoms and her admission to taking Xanax, he concluded she was under the influence of Xanax. The juvenile court properly permitted Deputy Glashoff to testify and give his opinion as to whether J.G. was under the influence of the controlled substance Xanax based on the fact that he had "interviewed over a thousand people suspected of being under the influence and he has the knowledge and experience to determine that was the drug and that's the symptoms she displayed."
Finally, J.G. argues the juvenile court should not have relied on her statements because she may not have known what she was taking, and her statements were not corroborated by other evidence. J.G. provides no reason we should discount her statements to Deputy Glashoff other than she was 14 years old at the time and there was no indication she was a sophisticated drug user. J.G., however, stated she took Xanax regularly and acquired the pills from a source in Antioch. She also admitted to regularly smoking marijuana and experimenting with cocaine, ecstasy, and mushrooms. Per the testimony of Deputy Glashoff, J.G.'s symptoms—slurred speech, dilated pupils, unsteady gait and slow movements—were all consistent with Xanax use, corroborating her testimony.
Based on J.G's statements and Deputy Glashoff' s testimony, there was sufficient evidence before the court that J.G. took Xanax. First, J.G. admitted to taking Xanax twice to Deputy Glashoff. J.G. also told the probation officer that she took Xanax one to three times per week and took up to five pills at a time. J.G.'s mother also told Deputy Glashoff that J.G. had taken Xanax. Although J.G. argues now that she might not have known the identity of the drug that she ingested at the time, we view that argument with skepticism. By the time she was 14, J.G. was using marijuana two to three times a month and had tried snorting cocaine, "Acid," "Molly" (ecstasy), and Psilocybin (mushrooms). She was able to describe to her probation officer how she ingested or used each drug as well as the frequency. The juvenile court found that "the charges are proven that the minor was under the influence of Xanax. She admitted it. Her symptoms were completely consistent with that substance. And in fact, she admitted it more than once . . . . She had delayed responses, slurred speech, blank stare, dilated pupils." Viewing the evidence in the light most favorable to the disposition, there was sufficient evidence to conclude J.G. was under the influence of a controlled substance, namely Xanax.
B. The Probation Condition
J.G. argues the electronic search condition is invalid under Lent and unconstitutionally overbroad because it restricts her constitutional rights.
" [T]he divisions of this appellate district have reached different conclusions regarding electronic search conditions. (See, e.g., In re J.E. (2016) 1 Cal.App.5th 795 [Div. Four upholding condition as reasonable and not unconstitutionally overbroad], review granted Oct. 12, 2016, S236628; In re P.O. (2016) 246 Cal.App.4th 288 (P.O.) [Div. One holding condition reasonable but overbroad]; In re J.B. (2015) 242 Cal.App.4th 749 (J.B.) [Div. Three striking condition as unreasonable]; In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) [Div. Two striking condition as unreasonable]; In re Malik J. (2015) 240 Cal.App.4th 896 [Div. Three holding condition reasonable but overbroad].)" (In re Juan R. (2018) 22 Cal.App.5th 1083, 1089, review granted July 25, 2018, S249256 (Juan R.).)
Numerous other cases raising this issue are pending before our Supreme Court: In re Ricardo P. (2015) 241 Cal.App.4th 676, 679-680, review granted February 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, 107, review granted February 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, 560, review granted March 9, 2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, 529, review granted April 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, 761-762, review granted May 25, 2016, S233932 (A.S.); In re R.F. (July 28, 2016, A145723) (nonpub. opn.), review granted October 12, 2016, S237070; In re J.R. (Dec. 28, 2015, A143163) (nonpub. opn.), review granted March 16, 2016, S232287; In re R.F. (Dec. 29, 2016, A146082) (nonpub. opn.), review granted March 15, 2017, S239950; In re Q.R. (2017) 7 Cal.App.5th 1231, 1233, review granted April 12, 2017, S240222.
C. Reasonableness under Lent
" 'A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.' [Citation.]" (J.B., supra, 242 Cal.App.4th at pp. 753-754.) "The reasonableness and propriety of the imposed condition is measured not just by the circumstances of the current offense, but by the minor's entire social history. [Citation.]" (Id. at p. 754.) A probation condition is invalid if it: " '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.' " (Lent, supra, 15 Cal.3d at p. 486.) All three prongs must be found to invalidate a probation condition. (P.O., supra, 246 Cal.App.4th at p. 294.) We review the juvenile court's probation conditions for abuse of discretion, and such discretion will not be disturbed in the absence of manifest abuse. (J.B., supra, 242 Cal.App.4th at p. 754.)
The challenged electronic search condition here fails the first two Lent factors: it has no relationship to the crime of being under the influence of a controlled substance and using an electronic device is not itself criminal. (See P.O., supra, 246 Cal.App.4th at p. 294.) The issue is whether it is reasonably related to J.G.'s future criminality. J.G. argues that there is no evidence that she used an electronic device to locate or procure the Xanax she took prior to her arrest.
In P.O., Division One found an electronic search condition valid under Lent where the minor's offense was a public intoxication not involving the use of electronics. (P.O., supra, 246 Cal.App.4th at p. 291.) The "condition reasonably relates to enabling the effective supervision of P.O.'s compliance with other probation conditions. Specifically, the condition enables peace officers to review P.O.'s electronic activity for indications that P.O. has drugs or is otherwise engaged in activity in violation of his probation. We cannot say that the juvenile court's given reason for imposing the condition—that minors are apt to use electronic devices to show off their drug use or ability to procure drugs—was speculative or otherwise constituted an abuse of discretion." (Id. at p. 295.) Division Five recently reached a similar conclusion in Juan R. (Juan R., supra, 22 Cal.App.5th 1083.) Juan committed robbery and assault and had a history of truancy, poor grades, alcohol and drug use, and associated with gang members. (Id. at p. 1086.) Division Five concluded the condition reasonably related " ' to enabling the effective supervision of [Juan's] compliance with other probation conditions.' [Citation to P.O.] Most importantly, it will deter Juan from planning future crimes with the other minors who participated in the instant offense. Because other conditions of Juan's probation prohibit drug and alcohol use, and forbid association with coparticipants or gang members, the electronic search condition will also serve to enforce such prohibitions." (Id. at p. 1091.) "Given Juan's social history and the circumstances that led to his wardship, the juvenile court could reasonably believe monitoring his use of electronic communication and social media would deter future criminal behavior." (Id. at p. 1092)
This division also recently upheld an electronic search condition in A.S., supra, 245 Cal.App.4th 758. Seventeen-year-old A.S. was declared a ward of the court after striking her mother. (Id. at p. 762.) A.S. had bipolar disorder, had not attended school in over a year, smoked marijuana, and was subject to violence in the home. (Ibid.) The juvenile court identified A.S.'s " 'fairly substantial psychological issues,' " drug use, safety issues, and lack of family supervision as reasons she must be closely monitored. (Id. at p. 766.) The court cited the need to monitor her electronics in order to prevent drug use, keep her safe, and allow her to be successful on probation. (Id. at p. 770.) We concluded A.S's "history and circumstances mandate a degree of supervision which reasonably connects the electronic search condition to the prevention of future criminality." (Ibid.)
However, we note that other divisions of this court have reached a contrary conclusion and found electronic search conditions invalid under Lent. (See In re Erica R. (2015) 240 Cal.App.4th 907, 912-913 [justification that "cell phone and electronic devices 'could have been used to negotiate the sales of the illegal substance' " is insufficient to justify electronic search condition where there was nothing in the record regarding the current offense for drug possession or the minor's social history that "connects [her] use of electronic devices or social media to illegal drugs."]; In re J.B. (2015) 242 Cal.App.4th 749, 756-758 [J.B.'s use of marijuana was not a justification for an electronic search condition because there was "no showing of any connection between the minor's use of electronic devices and his past or potential future criminal activity."].)
We conclude the case before us is like P.O., Juan R., and A.S. The probation report stated J.G.'s substance of abuse was of "great concern." J.G. admitted to taking Xanax one to three times per week and taking up to five pills at time; she admitted regular marijuana use and experimentation with other serious drugs such as acid, cocaine, ecstasy, and psilocybin. She admitted to using alcohol when she was twelve and still drank occasionally. She stated she acquired the Xanax pills from " 'people from Pittsburg and Antioch.' " even though she was living in Napa with her parents some distance away.
Also troubling is J.G.'s runaway behavior. After ingesting Xanax at school and falling asleep in class, J.G. was told to leave school and was taken to the hospital by her parents where she refused a drug test. At home, she got into an argument with her parents and, after her father pushed her against the wall and slapped her, she packed her bags and left home. J.G. did so while still under the influence of Xanax. J.G. ran away from home again several weeks later. On that day, her mother reported that J.G. was being very difficult and she was not sure why, so she asked J.G. to give her J.G.'s phone which J.G. refused to do. After J.G. ran away from home that evening, her parents reported to probation that she had absconded. J.G. was not located until the next day after which she was detained in juvenile hall. When asked why she ran away from home, J.G. said " 'because I just wanted to.' " J.G. also admitted to using marijuana when she left home.
J.G. also had serious behavioral issues at school. She was suspended from her middle school because of these behavioral issues and was attending a different school at the time of this incident. She had several disciplinary entries on her school record which included class disruptions, using profanity, inappropriate comments to teachers, being rude, fighting, truancy, smoking marijuana on campus, admitting to furnishing the drug to at least two other students, and the unauthorized use of electronic devices.
The probation department recommended the search condition and the juvenile court cited J.G.'s drug use as a reason for the electronic search condition. The court stated it was ordering the condition because of J.G.'s use of intoxicants. "I think that obtaining those means that a person has to find out where to get them. And that's how we do our communications nowadays, is by using our electronic devices to locate others and to locate intoxicants."
We cannot conclude the juvenile court's reasoning that J.G. would use her electronics to discuss or acquire drugs is "speculative or otherwise constituted an abuse of discretion." (See P.O., supra, 246 Cal.App.4th at p. 295.) Given J.G.'s admitted drug use, her troubled school records which included an admission to furnishing drugs to other students, and her history of runaway behavior, the juvenile court could reasonably believe the electronic search condition would help deter future criminality. (See Juan R., supra, 22 Cal.App.5th at p. 1092.)
D. The Electronic Search Condition as Written Is Not Overbroad
J.G. contends the electronic search condition infringes on her expectation of privacy requiring her to provide unrestricted access to all her electronic devices. She argues the condition is not reasonably related to her rehabilitation.
" '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 [probationer]'s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.] ' " 'Even conditions which infringe on constitutional rights may not be invalid [as long as they are] tailored specifically to meet the needs of the juvenile.' " ' [Citations.]" (P.O., supra, 246 Cal.App.4th at p. 297.) "Whether a probation condition is unconstitutionally overbroad presents a question of law reviewed de novo. [Citation.]" (Ibid.)
In P.O., Division One found the electronic search condition valid under Lent, but concluded it was overbroad. "According to the juvenile court, the condition's purpose is to allow monitoring of P.O.'s involvement with drugs, but the condition does not limit the types of data that may be searched in light of this purpose. Instead, it permits review of all sorts of private information that is highly unlikely to shed any light on whether P.O. is complying with the other conditions of his probation, drug-related or otherwise. [Citation.]" (P.O., supra, 246 Cal.App.4th at p. 298.) Division One ordered the juvenile court to modify the condition "to limit authorization of warrantless searches of P.O.'s cell phone data and electronic accounts to media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs." (Ibid.)
The electronic search condition in Juan R. was not overbroad because it was more limited and required Juan to submit his electronic devices to search " 'for electronic communication content information likely to reveal evidence that the minor is continuing his criminal activities and is continuing his association via text or social media with co-companions. This search should be confined to areas of the electronic devices including social media accounts, applications, websites where such evidence of criminality [or] probation violation may be found.' " (Juan R., supra, 22 Cal.App.5th at p. 1094, italics omitted.)
In contrast, a slightly different result was reached in A.S. where we found that the electronic search condition, very similar to the one in this case, was not overbroad because the minor, A.S., needed to have intensive probation supervision, including a broad electronic search condition, in order for her to be successful on probation. (A.S., supra, 245 Cal.App.4th at p. 774.)
Although she has no previous delinquency history, J.G. presents as a troubled teen with a serious substance abuse problem. Her probation officer stated "[o]f utmost concern is the minor's safety, as she attempted to run away from her parent's home while under the influence of Xanax and clearly had no control over her behavior." Her school records give us a glimpse of a minor who is struggling with depression and behavioral issues, including instances where she has distributed marijuana to other students. The juvenile court concluded that J.G. used her electronic devices to communicate with others and that she likely relied on those devices to communicate with others who supplied her with controlled substances. The electronic search condition would also assist probation and law enforcement in monitoring J.G.'s runaway behavior and ascertaining her whereabouts if she absconds from home again. The search condition is thus narrowly tailored to its purpose of furthering J.G.'s rehabilitation.
We recognize the issue of the exact breadth and scope of electronic search conditions imposed in these kinds of cases is still pending before the Supreme Court. We acknowledge that the electronic search condition, as written, would implicate J.G.'s privacy rights as argued by J.G. But we believe the intrusion is minimal balanced against J.G.'s need for intensive probation supervision. In A.S., we upheld a similar electronic search condition finding it was not overbroad based upon the "'rather unique constellation of facts.' " (P.O., supra, 246 Cal.App.4th at p. 298, citing A.S., supra, 245 Cal.App.4th at p. 774.) Likewise, we find here that the electronic search condition ordered by the juvenile court is narrowly tailored to address J.G.'s myriad of issues, to prevent future criminality, and to promote her rehabilitation and is not overbroad.
IV.
DISPOSTION
The juvenile court's order is affirmed.
/s/_________
LEE, J. We concur: /s/_________
REARDON, J. /s/_________
TUCHER, Acting P. J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------