In re J.W. CA1/2 ( 2016 )

Filed 8/4/16 In re J.W. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re J.W., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A146017
J.W.,
Defendant and Appellant. (Contra Costa County
Super. Ct. No. J1500777)
J.W. appeals from juvenile court orders declaring him a ward of the court and
placing him on probation. He contends he received ineffective assistance of counsel due
to his attorney’s failure to object to a condition of probation requiring him to submit to
warrantless searches of any cell phones or other electronic devices in his possession. He
argues that the electronics search condition is invalid because it addresses noncriminal
conduct that is not reasonably related to his offense or future criminality, and that the
condition is unconstitutionally vague and overbroad. We conclude the condition must be
modified.
STATEMENT OF THE CASE
On July 10, 2015, the Contra Costa County District Attorney filed a wardship
petition (Welf. & Inst. Code, § 602) alleging that appellant, then 16 years old, committed
one count of first degree residential burglary (Pen. Code, § 459, 460, subd. (a)) and one
1
count of possession of ammunition by a minor (Pen. Code, § 29650). At a pretrial
conference on July 22, the petition was amended to add a third count, felony possession
of stolen property valued at more than $950 (Pen. Code, § 496, subd. (a)). Appellant
entered a plea of no contest to the newly added count 3 and the other two counts were
dismissed. At disposition on August 13, the court imposed a wardship with no
termination date, found that appellant’s welfare required removing him from parental
custody and ordered placement in a court-approved home or institution. Among the
conditions of probation imposed, appellant was required to “submit his person, property,
any vehicle under his control, any cell phone or any other electronic device in his
possession, including access codes, and his residence to search and seizure by any peace
officer at any time of the day or night with or without a warrant.” 1
Appellant filed a timely notice of appeal on August 14, 2015.
STATEMENT OF FACTS
As described in the probation report, at 10:19 p.m. on July 8, 2015, a police officer
was dispatched to “1 Lancaster Circle #27” in Bay Point to investigate a reported
residential burglary. The victim, Penny Arguello, stated that she had left her apartment
about 6:00 p.m. and, as she was leaving, noticed appellant and K.M. loitering in the area.
Appellant and K.M. both lived in the apartment complex; Arguello had known both for
several years and appellant had been inside her home several times. When Arguello
returned home about 10:00 p.m., she realized she had left the front door unlocked. She
noticed items missing from her bedroom and living room: A television, an Xbox, two
electronic tablets, a pair of men’s shoes, and an extra set of car keys.
At appellant’s residence, his mother allowed the officer to speak with appellant,
who appeared very defensive and said he had nothing to do with the burglary. Appellant
1
The search condition preprinted on the court’s minute order does not refer to
electronics; it states, “Submit person, property, any vehicle under minor’s control, and
residence to search and seizure by any peace officer any time of the day or night with or
without a warrant.” Next to the preprinted search condition, a hand-written addition
states, “(access codes, cell phones, electronic devices).”
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consented to the officer searching his bedroom, saying, “There’s nothing in there, go
ahead.” The officer found a television, an Xbox, a pair of men’s shoes and a Glock .40
caliber magazine loaded with 10 rounds of ammunition. The items matched the
description of those stolen from the victim’s home.
Appellant was arrested and, after being given Miranda warnings, said he entered
the victim’s home through the unlocked door, by himself and without permission, took
the items, and hid them in his closet. Asked where the two electronic tablets were,
appellant became upset and said what he had taken was in the closet. His mother insisted
that he tell the officer where the tablets were and he showed the officer where they were
hidden under a tree in the complex. When later interviewed by the probation officer,
appellant said he had not entered the victim’s apartment or taken her things. He said that
after his neighbor left her apartment, the friend he was with, whose name appellant did
not know, checked her door and then asked to borrow appellant’s backpack; appellant
went home, and a little while later the friend came over and gave him the backpack,
which appellant hid in the closet.
Arguello told the probation officer she was shocked to learn appellant had
participated in the burglary, as he had been to her home many times, playing with her
children and sharing meals with the family. She wanted appellant to know she was not
angry with him and wanted him to get the help he needed so he would not commit
another offense.
Appellant was in 11th grade, had completed 60.50 of the 127 credits he had
attempted, and needed 159.5 credits to graduate; he was failing all his classes except one
in which he had a D. He had six unexcused absences from school and had been
suspended for fighting in May 2015. Appellant said he had tried marijuana only once,
about a month before the offense, and denied experimenting with or using alcohol or
other illegal substances. He lived with his mother and admitted he came and went as he
pleased and did not follow his curfew, saying he was bored at home and preferred to
spend his time with friends in the apartment complex.
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Appellant’s mother reported that he had always struggled in school because of
Attention Deficit Hyperactivity Disorder (ADHD), and that he had stopped taking his
prescribed medication. She believed he was easily influenced by peers and sometimes
bullied. The probation officer reported that the mother enabled appellant’s poor behavior
by making excuses for it, and that she had not intervened with his school to initiate
evaluation for an Individualized Educational Plan or other accommodation plan.
At juvenile hall, appellant was having a hard time getting along with peers,
instigated verbal conflicts with peers, and had been sanctioned for talking during quiet
times, peer conflicts, having contraband in his room, “ ‘terrible’ behavior,” covering his
window, and “buzzer abuse.” On one occasion, he was removed from school for not
following a teacher’s directions.
The probation department believed appellant needed “far more” structure and
supervision than he was getting at home, as well as to be held accountable for his offense.
He was screened for a ranch program but found unacceptable because he was pre-diabetic
and the program was not equipped to handle this medical condition, and because he had
said he would run away from placement. The probation officer initially reported that
appellant was found acceptable for a nine-month program at the Orin Allen Youth
Rehabilitation Facility (OAYRF) but, before he could begin, a 30-day assessment at
juvenile hall was required due to the medication he took for pre-diabetes. It was
subsequently reported that OAYRF was unable to accommodate appellant’s medical
needs and the probation department recommended out of home placement in a court
approved home or institution.
DISCUSSION
Conditions of probation are reviewed for abuse of discretion. (People v. Olguin
(2008) 45 Cal. 4th 375, 379 (Olguin).) “Generally, ‘[a] condition of probation will not be
held invalid unless 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 . . . .” [Citation.]’ ([People
v.] Lent [(1975)] 15 Cal.3d [481,] 486.) This test is conjunctive—all three prongs must
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be satisfied before a reviewing court will invalidate a probation term. (Id. at p. 486, fn. 1;
see also People v. Balestra (1999) 76 Cal. App. 4th 57, 68–69 (Balestra).) As such, even
if a condition of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is valid as long as
the condition is reasonably related to preventing future criminality. (See [People v.]
Carbajal [(1995)] 10 Cal.4th [1114,] 1121.)” (Olguin, at pp. 379-380.)
“The permissible scope of discretion in formulating terms of juvenile probation is
even greater than that allowed for adults.” (In re Victor L. (2010) 182 Cal. App. 4th 902,
910 (Victor L.).) “ ‘The state, when it asserts jurisdiction over a minor, stands in the
shoes of the parents’ (In re Antonio R. (2000) 78 Cal. App. 4th 937, 941), thereby
occupying a ‘unique role . . . in caring for the minor’s well-being.’ (In re Laylah K.
(1991) 229 Cal. App. 3d 1496, 1500.) In keeping with this role, section 730, subdivision
(b), provides that the court may impose ‘any and all reasonable [probation] conditions
that it may determine fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.’ ” (Victor L., at pp. 909-910.)
“ ‘[E]ven where there is an invasion of protected freedoms “the power of the state to
control the conduct of children reaches beyond the scope of its authority over
adults . . . .” ’ (Ginsberg v. New York (1968) 390 U.S. 629, 638.) This is because
juveniles are deemed to be ‘more in need of guidance and supervision than adults, and
because a minor’s constitutional rights are more circumscribed.’ ([Antonio R.,] at
p. 941.) Thus, ‘ “ ‘a condition of probation that would be unconstitutional or otherwise
improper for an adult probationer may be permissible for a minor under the supervision
of the juvenile court. ’ ” ’ (In re Sheena K. [(2007)] 40 Cal. 4th 875, 889 (Sheena K.); see
also In re R.V. (2009) 171 Cal. App. 4th 239, 247; In re Frank V. (1991) 233 Cal. App. 3d
1232, 1242-1243 [rule derives from court’s role as parens patriae].)” (Victor L., at
p. 910.)
Appellant did not object to the electronic search condition in the juvenile court,
but now argues it is both unreasonable under the three-prong Lent test described above
and unconstitutionally vague and overbroad. Failure to object to the reasonableness of a
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probation condition results in forfeiture of the claim. (People v. Rodriguez (2013) 222
Cal. App. 4th 578, 585.) Failure to object on the constitutional grounds of vagueness and
overbreadth may be raised for the first time on appeal if they present “ ‘ “pure questions
of law that can be resolved without reference to the particular sentencing record
developed in the trial court[,]” ’ ” but will forfeit the issues where this is not the case. (In
re Sheena K., supra, 40 Cal.4th at p. 889, quoting In re Justin S. (2001) 93 Cal. App. 4th
811, 815, fn. 2.) Consequently, on this appeal appellant frames his challenges as a claim
of ineffective assistance of counsel, urging that his attorney failed to raise a standard
objection that, if made, would have led to a different outcome.2
Despite the general rules just stated, “an appellate court may review a forfeited
claim—and ‘[w]hether or not it should do so is entrusted to its discretion.’ ” (Sheena K.,
supra, 40 Cal.4th at p. 887, fn. 7, quoting People v. Williams (1998) 17 Cal. 4th 148, 162,
fn. 6.) Because of the immense amount of personal information that can be stored on
electronic devices, and even greater amounts to be found on Internet sites the devices can
access, electronic search conditions carry obvious implications for constitutionally
protected privacy interests. (See generally Riley v. California (2014) ___ U.S. ___ [134
S. Ct. 2473, 2494–2495].) Such conditions are being imposed upon juvenile offenders
frequently, the decided cases have reached conflicting conclusions about their
reasonableness, and the issue is currently pending supreme court review. Because of the
2
Appellant asserts that objecting to an electronics search condition in a case like
his “is a standard practice.” In support of this assertion, he points to six cases in which
objections to electronics searches were made, several of which are currently pending
review before the California Supreme Court. (In re Erica R. (2015) 240 Cal. App. 4th
907, 910 (Erica R.); In re J.B. (2015) 242 Cal. App. 4th 749, 752 (J.B.); In re Malik J.
(2015) 240 Cal. App. 4th 896, 900 (Malik J.); In re Ricardo P. (2015) 241 Cal. App. 4th
676, 681, review granted Feb. 17, 2016, S230923 (Ricardo P.); In re Patrick F. (2015)
242 Cal. App. 4th 104, 108, review granted Feb. 17, 2016, S231428 (Patrick F.); In re
Alejandro R. (2015) 243 Cal. App. 4th 556, 561, review granted March 9, 2016, S233340
(Alejandro R.).) As appellant recognizes, all of these cases were decided after his
dispositional hearing. But these cases demonstrate that objections to electronic search
conditions were being raised on a regular basis.
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significant privacy interests at stake, we find it appropriate to exercise our discretion to
consider appellant’s claims.
As we have said, the condition requires appellant to submit to warrantless searches
of “any cell phone or any other electronic device in his possession, including access
codes.” Appellant argues that the condition is ambiguous as to whether he must provide
only the passwords necessary to unlock electronic devices found in his possession or also
passwords to social media and other accounts that can be accessed through the electronic
devices. His argument that the condition is invalid under the Lent test assumes the
broader interpretation. Respondent, seeking to provide clarity, proposes that the
condition be modified to read: “ ‘Submit all electronic devices under your control to a
search of any text messages, voicemail messages, call logs, photographs, email accounts
and social media accounts, with or without a search warrant, at any time of the day or
night, and provide the probation officer or peace officer with any passwords necessary to
access the information specified.’ ” 3
It is not apparent that respondent’s proposed modification is the only reasonable
interpretation of the court’s order. Unlike other cases we will discuss, in which the
juvenile court imposed an electronics condition in similar terms but expressly stated that
probation and law enforcement officers were to have access to both the actual devices in
minors’ possession and social media accounts (In re P.O. (2016) 246 Cal. App. 4th 288,
293; J.B., supra, 242 Cal.App.4th at pp. 752-753; Malik J., supra, 240 Cal.App.4th at
p. 900; Erica R., supra, 240 Cal.App.4th at p. 910), the record in this case reflects
nothing more than the literal terms of the condition. Because appellant’s argument is
based on the broader reading of the condition and respondent urges this as the proper
interpretation, we accept it for purposes of our analysis.
In Erica R., supra, 240 Cal.App.4th at page 910, we considered a probation
condition requiring a juvenile who had admitted misdemeanor possession of ecstasy to
3
Although respondent proposes this modification “to avoid any overbreadth
concerns,” it actually addresses vagueness rather than breadth.
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submit to search of her “electronics” and provide her passwords to her probation officer.
The offense did not involve use of any electronic device, and the minor’s attorney
represented that the minor did not have a cell phone. (Ibid.) The juvenile court believed
the condition was reasonably related to future criminality because it provided a way to
keep track of the minor’s drug usage, explaining that in its experience, “many juveniles,
many minors who are involved in drugs tend to post information about themselves and
drug usage.” (Id. at pp. 910, 913.) After finding the first two Lent factors met because
the condition had no relationship to the minor’s offense and typical use of electronic
devices and social media is not criminal, we rejected the juvenile court’s justification:
“ ‘[B]ecause there is nothing in [Erica’s] past or current offenses or [her] personal history
that demonstrates a predisposition’ to utilize electronic devices or social media in
connection with criminal activity, ‘there is no reason to believe the current restriction will
serve the rehabilitative function of precluding [Erica] from any future criminal acts.’ ”
(Id. at pp. 912-913, quoting In re D.G. (2010) 187 Cal. App. 4th 47, 53.)
We contrasted the situation in Erica R. with People v. Ebertowski (2014) 228
Cal. App. 4th 1170, in which the adult defendant was convicted of making criminal threats
to a police officer. There, the condition requiring the defendant to submit his electronic
devices to search, with passwords to the devices and social media accounts, was
reasonably related to the risk of future criminality because the threats had included
references to the defendant’s gang membership, he had promoted his gang through his
social media account, and his gang membership was related to future criminality in that
his “ ‘association with his gang gave him the bravado to threaten and resist armed police
officers.’ ” (Erica R., supra, 240 Cal.App.4th at pp. 914-915, quoting Ebertowski, at
pp. 1173, 1176-1177.)
Division Three of this court reached the same result as Erica R. in the case of a
minor who admitted committing a petty theft. (J.B., supra, 242 Cal. App. 4th 749.) The
electronic search was imposed by the same juvenile court judge as in Erica R., for the
same reason. (J.B., at p. 752.) The J.B. court found there was “no showing of any
connection between the minor’s use of electronic devices and his past or potential future
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criminal activity” and therefore no reason to believe the condition would serve the
purpose of preventing the minor from committing future criminal acts. (Id. at pp. 756-
757.)
J.B. disagreed with the reasoning of two of the cases currently pending Supreme
Court review, both of which also involved electronics search conditions imposed by the
same juvenile court judge as a means to supervise minors for whom there was some
indication of illegal drug use in the record. (J.B., supra, 242 Cal.App.4th at p. 757,
discussing Ricardo P., supra, 241 Cal. App. 4th 676, and Patrick F., supra, 242
Cal. App. 4th 104.) Those cases were based on Olguin, supra, 45 Cal.4th at pages 380-
381, which upheld a condition of probation that had no relationship to the defendant’s
offense but would “enable[] a probation officer to supervise his or her charges
effectively.” The condition in Olguin required the adult defendant to keep his probation
officer informed of the presence of pets at his residence. The court explained that this
requirement would facilitate unannounced visits to and searches of a probationer’s
residence, which are part of “proper supervision” of a probationer, by enabling the
probation officer to take precautions against possible threats posed by an animal, as well
as avoid having a pet create an opportunity for destruction of evidence of unlawful
activity by alerting the probationer to the officer’s approach. (Id. at p. 382.) “ ‘By
allowing close supervision of probationers, probation search conditions serve to promote
rehabilitation and reduce recidivism while helping to protect the community from
potential harm by probationers.’ (People v. Robles (2000) 23 Cal. 4th 789, 795.) A
condition of probation that enables a probation officer to supervise his or her charges
effectively is, therefore, ‘reasonably related to future criminality.’ ” (Olguin, at pp. 380-
381.)
J.B. questioned whether Olguin “justifies a probation condition that facilitates
general supervision of a ward’s activities if the condition requires or forbids noncriminal
conduct bearing no relation to the minor’s offense that is not reasonably related to
potential future criminality as demonstrated by the minor’s history and prior misconduct.
In our view, such a broad condition cannot be squared with the limitations imposed by
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Lent, supra, 15 Cal.3d at page 486, and in some cases may exceed constitutional
limitations. (See [Sheena K., supra,] 40 Cal.4th [at p.] 890.)” (J.B., supra, 242
Cal.App.4th at p. 757.) We agree. Unlike an adult probationer, a juvenile “ ‘ “cannot
refuse probation [citations] and therefore is in no position to refuse a particular condition
of probation.” [Citation.] Courts have recognized that a “minor cannot be made subject
to an automatic search condition; instead, such condition must be tailored to fit the
circumstances of the case and the minor.” ’ ” (J.B., at p. 756, quoting Erica R., supra,
240 Cal.App.4th at p. 914.)
Additionally, the Olguin court made a point of explaining that the particular
condition at issue—requiring a probationer to keep the probation officer informed of the
presence of pets—was both a reasonable means of facilitating the general search
condition and reasonable in that it did not impose an undue burden on the probationer.
(Olguin, supra, 45 Cal.4th at p. 382.) We do not read Olguin as holding that every
condition that could enable a probation officer to supervise a minor more effectively is
necessarily “reasonably related to future criminality.” (Olguin, at p. 381.) An electronic
search condition that requires a minor to provide access to the wide range of data
potentially stored on electronic devices and accessible on password-protected Internet
sites authorizes a tremendous intrusion into the minor’s privacy, imposing a burden
vastly different in nature and extent from what was at issue in Olguin. Unlike the
condition in Olguin, which only facilitated a residence search condition the defendant did
not challenge, the condition here adds significantly to the scope of the areas subject to
warrantless search. Respondent’s suggestion that the search of a cell phone or other
electronic device is “no different than a search of appellant’s residence or other property
in that it might reveal personal information” ignores the reality of the technology at issue.
As the court observed in Riley, supra, 134 S.Ct. at page 2491, “a cell phone search would
typically expose to the government far more than the most exhaustive search of a house:
A phone not only contains in digital form many sensitive records previously found in the
home; it also contains a broad array of private information never found in a home in any
form—unless the phone is.” As with adult probationers, a search condition diminishes
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but does not altogether foreclose a juvenile probationer’s reasonable expectation of
privacy. (In re Jaime P. (2006) 40 Cal. 4th 128, 136.)
As we recognized in Erica R., supra, 240 Cal.App.4th at page 914, “[o]f course,
there can be cases where, based on a defendant’s history and circumstances, an electronic
search condition bears a reasonable connection to the risk of future criminality.” People
v. Ebertowski, supra, 228 Cal. App. 4th 1170, described above, is one such case, as the
defendant’s use of his social media account directly related to his criminal offense.
Malik J., by contrast, found it necessary to tailor an electronic search condition which, as
imposed by the juvenile court, required the minor to provide passwords to any device in
his custody and control, as well as to social media sites. (Erica R., at p. 900.) The
minor’s offenses were robberies, one of which involved an iPhone, and Division Three of
this court found it reasonable to require the minor to provide passwords for electronic
devices in his custody and control as a means for officers to determine the ownership of
such devices. (Id. at p. 903.) The court was concerned, however, with limiting the search
to information actually within the minor’s custody and control—which social media sites
were not. (Ibid.) “Officers must be able to determine ownership of any devices in a
probationer’s custody or within his or her control, and search them if they belong to the
probationer or if officers have a good faith belief that he or she is a permissive user. But
in performing such searches, officers must show due regard for information that may be
beyond a probationer’s custody or control or implicate the privacy rights of the
probationer or third parties. Officers should not be allowed to conduct a forensic
examination of the device utilizing specialized equipment that would allow them to
retrieve deleted information that is not readily accessible to users of the device without
such equipment. They should also first disable the device from any Internet or cellular
connection. These measures will limit a search to information that is stored on the device
and accessible to the probationer, and thus in the probationer’s possession and subject to
his or her control.” (Id. at pp. 903-904.) The court noted that there was no indication the
minor had used email, texting or social media to facilitate his offenses and expressed no
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opinion as to whether the broad electronics condition would have been valid if he had.
(Id. at p. 904, fn. 2.)
In the present case, as in Malik J., the offense involved theft of electronic devices
but there was no indication appellant used any form of electronic communication in
connection with commission of the offense. The record contains no information as to
whether appellant owns or uses a cell phone or other electronic devices, or has social
media accounts. There was no discussion in the juvenile court about the reasons for the
electronic search condition, which the probation department recommended and the court
imposed as an integral part of the general search condition.
Restricted to its literal terms—meaning electronic devices in appellant’s
possession and the access codes necessary to unlock them—we find the electronic search
condition reasonable as a way for officers to ascertain that any such devices in appellant’s
possession are not stolen. (Malik J., supra, 240 Cal.App.4th at p. 903.) Nothing in the
record, however, supports an electronic search condition that includes access to social
media or other password-protected Internet sites. Appellant was certainly in need of
supervision: His school performance and attendance were poor, the court remarked upon
his inability to follow rules both in his mother’s home and in juvenile hall, and the court
ordered out of home placement because he “needs assistance his mother cannot provide.”
But there is no indication in the record that monitoring social media is a necessary or
appropriate means of supervising appellant. Unlike the situation in People v. Ebertowski,
supra, 228 Cal. App. 4th 1170, here, the only basis for monitoring appellant’s social media
or other online activity would be the speculative assumption that because most minors
actively use electronic devices and the Internet to communicate with peers and document
their activities, appellant must also do so. It seems clear the condition was imposed
automatically, not because of any determination that it was related to future criminality in
appellant’s particular case. (Erica R., supra, 240 Cal.App.4th at p. 913.)
“In an appropriate case, a probation condition that is not sufficiently precise or
narrowly drawn may be modified in the appellate court and affirmed as modified. (See,
e.g., Sheena K., supra, 40 Cal.4th at p. 892; People v. Lopez (1998) 66 Cal. App. 4th 615,
12
629.)” (Malik J., supra, 240 Cal.App.4th at p. 901.) Here, the condition must be
modified to clarify that it does not exceed its literal terms: Appellant must submit to
search of any electronic devices in his possession, and provide the codes necessary to
unlock these devices. (See Malik J., at p. 903.)
DISPOSITION
The electronics search condition is ordered modified to require that appellant
submit “any cell phone or any other electronic device in his possession, including the
access codes necessary to unlock the devices, . . . to search and seizure by any peace
officer at any time of the day or night with or without a warrant.” As so modified, the
orders are affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
In re J.W. (A146017)
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