In re Javier P.















Filed 7/9/13 In
re Javier P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 JAVIER P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. JAVIER P., Defendant and Appellant.	A136819 (Sonoma County Super. Ct. No. 36299-J)

Javier
P. appeals from a juvenile court order committing him to juvenile hall for a
period of 112 to 142 days. He contends
the court abused its discretion in removing him from his grandparents’ custody
and placing him in juvenile hall without services necessary to treat his href="http://www.sandiegohealthdirectory.com/">mental illness; failed to
give proper consideration to less restrictive or more rehabilitative
dispositional alternatives; and failed to award predisposition credit for time
served. We shall order the disposition
order modified to award 29 days of predisposition credit and otherwise affirm
the order.

STATEMENT OF THE
CASE AND FACTS

Appellant,
18 years of age at the time of the proceedings presently under review, had
lived with his paternal grandmother from the time he was about three months
old, due to his father’s incarceration and his mother’s substance abuse issues.

On
January 25, 2010, when appellant was 16 years old, a wardship petition (Welf.
& Inst. Code, § 602, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1]
was filed alleging that he was unlawfully in public under the influence of
alcohol in violation of Penal Code section 647, subdivision (f). The court imposed conditions of informal
probation under section 654.2, which appellant successfully completed in August
2010, and the wardship petition was dismissed.href="#_ftn2" name="_ftnref2" title="">[2]

On
March 1, 2012, a new wardship petition was filed alleging that appellant,
age 18, committed a battery on a school employee in violation of Penal
Code section 243.6. Appellant admitted
the allegation and was placed on formal probation.

On
June 15, 2012, a notice of violation (§ 777) was filed alleging that
appellant tested positive for marijuana on several occasions, stayed away from
home all night without permission, failed to contact his probation officer as
directed and failed to follow the probation officer’s directives. On July 3, appellant admitted the marijuana
allegations and the others were dismissed.
Appellant was continued on formal probation.

Another
notice of violation was filed on
August 14, alleging that appellant stayed out past midnight on several
occasions, failed to contact his probation officer, was reported by his
grandmother to be in possession of alcohol, failed to submit to chemical
testing on specified dates and tested positive for marijuana on several
dates. Appellant admitted the
allegations on August 16. The prosecutor
and probation officer requested that appellant be remanded immediately to
juvenile hall. Defense counsel urged
that appellant’s violations were due to his substance abuse problems, and that
he was self-medicating for what was likely a diagnosable href="http://www.sandiegohealthdirectory.com/">mental health problem. Counsel noted that he had encouraged
appellant’s grandmother to have appellant undergo a psychological examination
at Kaiser, where the family had insurance, and that the probation department
had made some effort to get appellant help for his substance abuse, but that
appellant had not taken advantage of these efforts. Acknowledging that appellant needed a
consequence for his conduct, counsel argued that detention in juvenile hall was
not going to improve his situation and appellant was “sinking between the
cracks,” and suggested the court order 60 to 90 days on community detention and
terminate probation. The prosecutor
asked that appellant be remanded to juvenile hall and the matter put over until
after the weekend, when the judge already familiar with the case would return
and be able to consider it, but noted that appellant “is 18 now and there’s not
much left that is available to him.”

The
court set the matter for a disposition hearing and stated that appellant would
be remanded to juvenile hall meanwhile, but because appellant had not been
given notice that he faced immediate remand, the matter was continued to August
20. On August 20, the court released
appellant to his grandmother. The
court’s minute order reflects that appellant was declared a ward of the court
and that the court made the requisite findings to remove physical custody from
the legal guardian and place appellant under the care, custody and control of
the probation department.

A
third notice of violation was filed on September 4, alleging that appellant had
again tested positive for marijuana and had failed to contact his probation
officer as ordered. Appellant was
detained in juvenile hall. On September
6, he admitted the marijuana allegation and the other allegation was
dismissed. The probation department
recommended that appellant be detained in juvenile hall for 120 to 150
days. The court stated that it believed
the minimum detention should be 150 days “[b]ecause at 19 probation would
transport [appellant] over to the big house.
And he can get a look at it for a little bit and see if that’s how he
wants to live his life, in the county jail, or whether he wants to finally give
up smoking marijuana.” Defense counsel
asked that the probation department have appellant undergo a psychiatric
evaluation before making a final recommendation on disposition. Counsel asked the court about appellant being
able to contact “TASC” (Treatment Accountability for Safer Communities) and the
court suggested counsel call the person who handled screening for this program.

The
probation report prepared for the disposition hearing stated that appellant
reported having no behavioral issues in school prior to high school, when he
started “acting out and getting into trouble.”
He had an Individualized Educational Plan and for the last three school
years had been on an independent study program, with a teacher coming to his
house once a week to pick up a completed work packet and give him a new
one. He had not graduated as planned and
at the time of his arrest was “in the process of re-enrolling at Windsor High
School.” Appellant reported having
smoked marijuana daily for the past two years.
He had attempted to stop on a couple of occasions to please his
grandmother but did not succeed because “ ‘it’s so available.’ ” He wanted to stop in order to please his grandmother
and make it easier to find a job.
Appellant’s grandmother told the probation officer she was concerned
about appellant’s use of and inability to abstain from using drugs and alcohol,
and believed he needed a residential treatment program to address the issue.

The
probation report further related that appellant had been in counseling “on and
off” since he was about eight years old, most recently at the directive of his
high school. He was prescribed Zoloft
for stress relief but stopped taking it after one year. Appellant’s grandmother believed he was
depressed, but when asked if she had made any medical or psychiatric
appointments for him at Kaiser, she said “she ‘had not thought about it’ and
‘thought you would just do it since he is here.’ ” The probation officer encouraged her to make
an appointment for appellant, noting that appellant’s previous probation
officer had also encouraged the family to contact Kaiser to facilitate mental
health and substance abuse counseling.
Appellant denied being depressed but acknowledged that other people
thought he was; he described feeling “ ‘stressed out.’ ” He stated that counseling had never helped
him because he did not want to go and “ ‘just sat there,’ ” but admitted he had
no one to talk to about his problems, believed it might be beneficial to have
someone, and said he was willing to participate in counseling if
court-ordered.

The
probation report stated that appellant was not eligible for probation camp and
placement services due to his age. The
department continued to recommend that appellant be committed to juvenile hall
for 120 to 150 days. According to the
report, appellant had been “unwilling or unable to follow basic probation and
court directives,” had continued to smoke marijuana despite being “explicitly
told of the consequences,” and had not taken advantage of “support and intervention via several
community resources” that the department had offered him. Regarding the suggestion that appellant
suffered from mental health issues, the probation report noted that appellant
had been to counseling and continued to have access to it, but admitted he had
not been interested or willing to participate.
While “pleased to see the minor is motivated to change,” the probation
officer stated, “it continues to be our belief that we have exhausted our
efforts in assisting him in doing so. At
nearly nineteen years old, if [appellant] truly wants to make positive changes
to his life, then he will reap the benefits of doing so . . . in the adult
system, should that be the case.”

On
September 25, appellant submitted the report of Dr. Megan Burns, who had
evaluated him for mental illness at the request of the defense. Appellant told Dr. Burns that he had started
smoking marijuana in middle school and acknowledged drinking alcohol. According to Burns’s report, appellant was
“hyperactive and moved constantly,” “rocked,” made “rapid chopping motions to
his legs” with his hands held “rigid and straight,” bit his nails, and was
“disheveled.” His eye contact was poor,
his speech was “vague and laconic,” he mumbled to himself twice and he was
“internally preoccupied” at one point.
His affect was flat but he became alarmed when Dr. Burns asked him if he
had ever heard voices, at which point he looked directly at her and asked, “
‘Do you think I have schizophrenia?’ ”
Appellant’s grandmother told Dr. Burns that there were “ ‘brain
disorders in her family’ ”:
Appellant’s uncle had schizophrenia and appellant’s father had told her
that appellant’s mother had been in a mental hospital. The grandmother reported that the family did
not believe appellant was “like this” due to marijuana but appellant disagreed
and refused to go to the doctor.
Appellant had been a responsible, shy and self-motivated child who enjoyed
school and was a good student. Since age
16, however, he had become “irritable, mad and defensive,” frequently talked
and yelled although no one was with him, and once “was talking to himself and
then hit a hole in the wall.” He had
become slovenly, accused his grandmother of watching him and was no longer
social. Appellant’s grandmother said
that she would greatly appreciate appellant receiving mental health services,
would agree to medication to help him and had not been able to convince him to
obtain help. Dr. Burns stated that
appellant had been using “significant” amounts of marijuana, which could alone
cause psychotic states, but she doubted this was the cause of his psychotic
thinking. Appellant had shown all of the
symptoms she listed for schizophrenia and Burns believed he “probably has
developed schizophrenia like his uncle.”


At
the disposition hearing on September 28, the court began by stating that Dr.
Burns’s report offered “a lot of enlightenment.
However, I don’t know what else might be available to the Court.” The probation officer agreed that the report
was “concerning” but, “as the Court indicated, I’m not sure what’s left for him
now as far as resources go in the juvenile delinquency system.”

Appellant’s
attorney disagreed that options had been exhausted, stating that appellant was
“quite frightened and upset” about the schizophrenia diagnosis, that he was an
“under-served child” who had come late to the system, and that because he was
still 18, placement would be possible at camp and “PACT” and “WRAP” programs
would be available. Counsel asked the
court to consider a “WRAP” program or help appellant connect with Sonoma County
mental health services, urging that committing appellant for 120 to 150 days
would do nothing to help him and would effectively penalize him for being an
“untreated schizophrenic.”

The
court responded that appellant was being penalized not for his schizophrenia
but for the battery he committed and his inability to comply with the basic
requirements of probation. The court
told appellant that schizophrenia
was a treatable disease that would cause nothing but problems for him and his
family if not treated and urged him to get treatment, expressing concern that
appellant and his family appeared to “want to run from that diagnosis because
you’re afraid that it brands you with something.” The court then stated, “So I think the
referral to Sonoma County mental health is appropriate. I would hope that probation will follow
through with that while he’s in the hall.
I would like probation to take a look at if there are programs that he
can be referred to. [¶] And if you become aware of those, [defense counsel], bring
his matter back to me. [¶] But at this point I think that there’s nothing more
that this court can offer him in terms of programs through the juvenile
court.” After ordering that appellant be
retained a ward of the court and serve 112 to 142 days in addition to time
already served, the exact time to be determined by the juvenile hall director,
the court stated, “It is my hope that probation will find something that
perhaps we can refer him to and will bring the matter back before me before
that 112 days.” Defense counsel asked
the court to consider allowing appellant to remain in juvenile hall when he
turned 19 on January 12, rather than being transferred to county jail; the
court stated that appellant would be released before he turned 19 if he served
the 112 days, giving appellant the incentive to do well or have to move to the
adult facility. The court ordered Dr.
Evans to check in with appellant. The
court’s minute order states, “Dr. Evans to check w/ minor ASAP” and “referral
to So. Co. Mental Health ASAP per the cts orders.”

Appellant
filed a timely notice of appeal on October 9, 2012.

I.

Appellant
contends the juvenile court failed to make the findings required by section 726
for removing him from his grandmother’s custody—that his grandmother had failed
to provide proper care, probation in his grandmother’s custody had failed, or
allowing him to remain with his grandmother would be detrimental.

Section
726, subdivision (a), provides: “In all cases in which a minor is adjudged a ward or
dependent child of the court, the court may limit the control to be exercised
over the ward or dependent child by any parent or guardian and shall in its
order, clearly and specifically set forth all those limitations, but no ward or
dependent child shall be taken from the physical custody of a parent or
guardian, unless upon the hearing the court finds one of the following facts:
[¶] (1) That the
parent or guardian is incapable of providing or has failed or neglected to
provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in
custody and has failed to reform.
[¶] (3) That
the welfare of the minor requires that custody be taken from the minor’s parent
or guardian.”

Curiously, respondent argues that
the trial court was not required to make express findings under section 726,
subdivision (a), because appellant was never declared a ward of the court. According to respondent, the reporter’s
transcript establishes that appellant was never adjudged a ward and simply was
placed on probation with the condition that he spend a specified period of time
in juvenile hall.

This argument is curious both
because the court could not have ordered such a disposition and because the
record affirmatively demonstrates that appellant was adjudged a ward of the court on August 20, 2012. The court could not have made the order
respondent claims it did because if a minor is not adjudged a ward of the
court, the court may not order the
minor confined in juvenile hall. (>In re Trevor W. (2001) 88 Cal.App.4th
833, 838-839; §§ 725, 726, 730.) To
impose time in juvenile hall as a condition of probation, the court must first
adjudge the minor a ward. (In re Trevor,
supra, at pp. 838-839.)href="#_ftn3" name="_ftnref3" title="">[3]

As for the record, respondent’s
contention that appellant was never adjudged a ward of the court is based on
the following: At the August 16 hearing,
appellant’s attorney stated that appellant was not a ward of the court, and
both appellant’s attorney and the prosecutor advised the court it could not
declare appellant a ward at that time,href="#_ftn4" name="_ftnref4" title="">[4]
and the transcript of the disposition hearing on September 28 does not reflect
the court declaring appellant a ward.
Respondent acknowledges several minute orders in the record indicating
that appellant was “retained” a ward of the court, but argues that these are not controlling
because the clerk’s minute order cannot supplement the judgment actually
pronounced by the court. (People v.
Zackery (2007) 147 Cal.App.4th 380, 387-388.)

Respondent ignores the minute order
for the hearing on August 20, which clearly states that appellant was declared
a ward of the court. The record does not
include a reporter’s transcript for the August 20 hearing. We have no reason to doubt that appellant was
adjudged a ward of the court at the August 20 hearing, as the minute order so
states. Both the reporter’s transcript and clerk’s minute order for the
September 28 disposition hearing reflect that the court “retained” appellant as
a ward at that time.

Appellant’s argument that the trial
court failed to make proper findings under section 726 is based largely upon
former rule 1372 of the California Rules of Court—a rule long since superseded
in both number and content. The portion
of this rule of apparent significance to appellant—requiring the court to make
a finding of “detriment” in addition to findings tracking the language of
section 726—is not a part of the currently effective rule 5.790(d). In re
Cindy E. (1978) 83 Cal.App.3d 393, upon which appellant relies, was
concerned with the juvenile court’s failure to make the express finding of
detriment required by then-controlling rule 1372.

Given the change in language of the
rule of court, the lasting significance of In
re Cindy E. is simply a general holding that the court errs if it fails to
make the findings required by a rule of court.
Cindy E. also held, however,
that such an error can be harmless if the record demonstrates there is no
reasonable probability of a more favorable outcome. (In re
Cindy, supra, 83 Cal.App.3d at pp. 408-409; In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.)

In the present case, the court did
not expressly make the findings required by section 726 and California Rules of
Court, rule 5.790(d) at the disposition hearing on September 28. It did continue in effect its prior
orders. The August 20 minute order
includes findings that appellant’s welfare required removing him from his
guardian’s physical custody, continuance in his guardian’s home would be
contrary to his welfare due to “behavioral issues” and “substance abuse
issues,” return would create a substantial risk of detriment, and reasonable
efforts to eliminate the need for removal had been made through probation
intervention. Although not stated in the
language of section 726, these findings address the substance of those section
726 requires in order for the court to remove a minor from the guardian’s
physical custody—either that the
guardian “is incapable of providing or has failed or neglected to
provide proper maintenance, training, and education for the minor,” that the
minor has failed to reform while on probation in the guardian’s custody, or
that the minor’s welfare requires taking custody from the guardian. The evidence before the court would have
supported any of these findings, as appellant repeatedly violated probation
while living with his grandmother, his grandmother had been unable to prevent
him from continuing to use marijuana, and his grandmother had failed to arrange
counseling for him at Kaiser, despite the probation department’s request that
she do so. The trial court made clear its belief that appellant needed to spend
a period of time in custody to impress upon him the need to stop his marijuana
use. There is no reasonable probability
that the court would not have removed appellant from his grandmother’s custody
if it had explicitly addressed the findings required by section 726.

Appellant further argues that the
court made no findings indicating it considered removal of appellant from his
grandmother’s custody a matter of last resort, as he believes was required by
the societal interest in keeping families together. He offers several cases recognizing the
“overriding societal interest in preserving the family” (In re Jeannie Q. (1973) 32 Cal.App.3d 288, 297) and juvenile court
philosophy of disturbing the normal family relationship only as, and to the
extent, necessary to insure protection of the public and welfare of the minor (>County of Alameda v. Espinoza (1966) 243
Cal.App.2d 534, 548, disapproved on other grounds in In re Jerald C. (1984) 36 Cal.3d 1, 11), and viewing removal from
parental custody as “a matter of last resort” to be ordered only after other
means have failed (In re Donna G. (1970)
6 Cal.App.3d 890, 894.) The disposition
order here is not inconsistent with this emphasis. Appellant had been on probation in his
grandmother’s home, he continued to violate probation, and his grandmother had
not attempted to arrange counseling for him.
He was already 18 years old, soon to turn 19. As the court stated, this was the last chance
for appellant to address his substance abuse and other problems within the
juvenile court system.

The real issue appellant is raising
is not the findings but the court’s decision to remove him from his
grandmother’s custody and confine him in juvenile hall in light of the mental
health issues discussed in Dr. Burns’s report.
He argues the court did not consider less restrictive alternatives; he
could have been placed in a probation camp or released and referred to Sonoma
County Mental Health; and placement at juvenile hall denied him medical and
rehabilitative care. “[J]uvenile
placements need not follow any particular order under section 602 and section
777, including from the least to the most restrictive.” (In re
Eddie M. (2003) 31 Cal.4th 480, 507.)
Moreover, in this case,

the
probation report stated that appellant was not eligible for probation
camp and placement services due to his age.
The court was aware of and concerned about the matters raised by Dr .
Burns’s report: It directed the
probation department to refer appellant to Sonoma County Mental Health and look
into whether other programs might be available, and expressed the hope that
some program would be found for the court to consider before appellant
completed the minimum term at juvenile hall.
But the reality was that appellant was 18 years old and his grandmother
had been unable to obtain help for him despite her awareness, as reflected in
the probation report and in Dr. Burns’s report, of his mental health issues and
of mental health issues in the family.
The evidence supported the court’s determination that removal from the
home was necessary. There was no abuse
of discretion.

>III.

Appellant
additionally contends the trial court improperly failed to award him 29 days of
predisposition credit. Respondent
agrees. A “minor is entitled to credit
against his or her maximum term of confinement for the time spent in custody
before the disposition hearing.” (>In re Emilio C. (2004) 116 Cal.App.4th
1058, 1067.) Appellant was initially
confined in juvenile hall on August 31, 2012.
As of the disposition hearing on September 28, he had served 29
days. The disposition order shall be
modified to reflect an award of 29 days of predisposition credit.

>DISPOSITION

As
so modified, the disposition order is affirmed.











_________________________

Kline,
P.J.





We
concur:





_________________________

Haerle,
J.





_________________________

Lambden,
J.