Filed 3/4/14 In re E.H. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re E.H., a Person Coming Under the
Juvenile Court Law.
                                                                 D063318
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J229024)

         v.

E.H.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Browder A.

Willis III, Judge. Affirmed.

         Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr. and Susan Miller, Deputy Attorneys General, for Plaintiff and

Respondent.
       E.H. appeals an order adjudging him a ward of the court under Welfare and

Institutions Code1 section 602 and committing him to the San Diego County Camp

Barrett program (Camp Barrett). He contends the order should be vacated because it is

based on a previous invalid order, which deprived him of his due process rights under the

United States Constitution as well as violated the separation of powers.

       We decline to reach the constitutional questions raised by E.H. because they are

unnecessary to resolve this case. The order committing E.H. to Camp Barrett occurred

after a noticed hearing in which E.H. was permitted to present evidence and argument.

Further, the alleged constitutional infirmities are unrelated to E.H.'s violations of the

subject previous order. We therefore affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On August 2, 2011, the San Diego County District Attorney filed a juvenile court

petition, under section 602 alleging E.H. committed residential burglary (Pen. Code,

§ 459; count 1) and misdemeanor vandalism (Pen. Code, § 594, subd. (a)(b)(2)(A);

count 2). On September 1, 2011, E.H. admitted count 1. The juvenile court dismissed

count 2 with a Harvey2 waiver. E.H. failed to appear for the dispositional hearing on

September 23, 2011. The juvenile court issued a bench warrant for E.H.'s appearance.

       On October 4, 2011, E.H. was detained on the bench warrant and appeared for a

detention hearing. The juvenile court adjudged E.H. a ward of the court and removed

1      Statutory references are to the Welfare and Institutions Code unless otherwise
specified.

2      People v. Harvey (1979) 25 Cal.3d 754.
                                              2
him from his mother's custody under section 726, subdivision (a)(2). The court placed

E.H.'s care, custody, and control under the supervision of the probation officer. The court

ordered and stayed a commitment to the Breaking Cycles program (Breaking Cycles) not

to exceed 150 days, pending a review hearing, and placed E.H. with his mother on the

condition that he complete 30 days on home supervision as directed by the probation

officer. The court also imposed several probation conditions.

       Breaking Cycles is a comprehensive services program that began in 1998.

Administered by the County of San Diego Probation Department (Probation

Department), Breaking Cycles has three tracks, commitment to the program can be for

150, 240, or 365 days. Breaking Cycles can use the entire period ordered by the court as

custody time, yet rarely does so. After a dispositional hearing, Breaking Cycles assesses

the subject minor and develops an individualized case plan. The assessment team is

comprised of probation officers, alcohol and drug services counselors, youth and family

counselors, and the minor's family members. Participation of family members is critical

to the program. The assessment process can last up to 21 days.

       A case plan under Breaking Cycles could include sending a minor to home

supervision, the Short Term Offender's Program (STOP), or a juvenile ranch facility.3 A

STOP commitment allows for a maximum of 90 days in custody, to be spent in juvenile



3      A juvenile ranch facility is a behavioral and drug/alcohol rehabilitative facility
serving male youths between the ages of 13 and 18. The facility is comprised of two
camps: Ranch Del Campo and Rancho Del Rayo. (See <http://www.sdcounty.ca.gov/
probation/jrf.html>.)

                                             3
hall, but is generally limited to 21 days. Breaking Cycles also has the option of sending a

minor home while he is within the program. If a minor fails to comply with the case

plan, however, Breaking Cycles would reassess and evaluate the efficacy of the minor's

individualized case plan or send the minor back to the juvenile court, depending on the

nature of the misconduct or violation. For minor violations, Breaking Cycles would

adjust the case plan to increase supervision or time in the Reflections Day Center

program (Reflections )4 as long as there is program time remaining. Such violations

could include failure to partake in the program and follow the individualized case plan.

For major violations, Breaking Cycles would bring the minor back to the juvenile court.

       On October 27, 2011, the juvenile court issued an ex-parte order that required E.H.

to complete Reflections. E.H. was continued a ward of the court.

       On December 2, 2011, E.H. failed to appear for his review hearing. The juvenile

court issued a bench warrant for E.H.'s appearance. On December 15, 2011, the juvenile

court recalled the bench warrant, continued E.H. a ward of the court, and placed his care,

custody and control under the supervision of the probation officer. The court placed E.H.

with his mother and set an annual review hearing.

       On January 24, 2012, E.H. was alleged to have violated several probation

conditions, including E.H.'s failure to follow his mother's rules and instructions, refusal to

attend school regularly, and testing positive for the drug "Spice."     At a special hearing


4      Reflections is a program "for adolescent offenders who are in need of a structured
day-treatment program with intensive counseling, education, mental health, and family
therapy as well as other intervention where needed." (See <http://www.sdcounty.ca.gov/
probation/juvenile_information_community_supervision.html>.)
                                              4
on March 9, 2012, E.H. admitted the probation violations. The juvenile court continued

E.H. a ward of the court, and placed his care, custody, and control under the supervision

of the probation officer, and committed him to Breaking Cycles for a period not to exceed

240 days. The court imposed other probation conditions. E.H. was detained in juvenile

hall pending commitment. Upon E.H.'s completion of the program, the court ordered

E.H. to be placed in his mother's custody.

       Following E.H.'s disposition hearing on March 9, 2012, Breaking Cycles

performed its initial assessment of E.H. and placed him in Rancho Del Campo (Campo).

E.H. completed Campo on May 14, 2012, and was then transitioned to Reflections North

Day Center program (Reflections North) and the community unit while E.H. resided in

his parent's home. On July 18, 2012, following E.H.'s failure to attend Reflections North,

he was reassessed by Breaking Cycles and placed in STOP.

       E.H. spent about 20 days in STOP, during which he was placed in juvenile hall.

He then was released on home supervision. On the evening of August 8, 2012, home

supervision officers attempted to visit E.H. at his home, but learned he left home without

telling his mother where he was going.

       On August 16, 2012, E.H. was picked up by probation officers at his home and

transported to juvenile hall. On August 17, 2012, the Probation Department filed a

detention report alleging E.H. violated a court order by leaving his placement without

permission. In a probation violation report filed August 20, 2012, the Probation

Department considered E.H.'s "advanced age, his continued delinquent behavior, his

needs, and the limited impact Breaking Cycles appear[ed] to have made on his behavior,"

                                             5
and recommended E.H. be committed to Camp Barrett for a period not to exceed 365

days. Camp Barrett was to provide "therapeutic intervention for substance abuse

treatment, behavior modification, educational opportunities, independent living skills,

and world readiness programs."

       E.H. appeared for a detention hearing. His counsel objected to the previous order

committing E.H. to Breaking Cycles and filed a motion, arguing that its administrative

removal procedure was improper. The court heard E.H.'s motion wherein E.H. advanced

the same arguments contained in his opening brief here, specifically that the

administrative removal procedure violated section 777 as well as the United States

Constitution (due process and separation of powers). The prosecutor called the director

of Breaking Cycles to testify about the program. After considering the evidence and the

argument of counsel, the juvenile court denied E.H.'s motion objecting to Breaking

Cycles. The court explained, "[o]nce the order was made to Breaking Cycles, all aspects

of the disposition order were set, and they were set in stone." Thus, the court stated the

order "cannot be modified by probation or one party[,]" and any change to the order "can

only be made by the Court." The court further explained that "everything that happens

during that Breaking Cycles program is monitored and supervised by probation" within

the parameters of Breaking Cycles. In contrast, when a minor requires "higher sanctions"

or when he commits violations that necessitate removal of the minor from the community

for a prolonged period of time, section 777 probation violation hearings are required.

Otherwise, the court explained it did not see why placing a minor in his home limits

probation from making temporary, "minute adjustments in the individual programming."

                                             6
Thus, the court concluded Breaking Cycles does not violate a minor's due process rights

when it makes "minute adjustments in programming." The court also rejected E.H.'s

separation of powers argument.

       The juvenile court subsequently held an evidentiary hearing regarding the

Probation Department's recommended commitment of E.H. to Camp Barrett. E.H.

appeared at the hearing with his attorney, but presented no evidence to dispute the alleged

probation violations. After hearing argument, the juvenile court committed E.H. to Camp

Barrett. The court further ordered E.H. be placed in his mother's custody after he

completed his time at Camp Barrett.

       E.H. timely appealed.

                                       DISCUSSION

       E.H. challenges the November 20, 2012 minute order committing him to Camp

Barrett. He argues that minute order should be vacated because it flowed from an alleged

violation of the home supervision portion of a Breaking Cycles commitment order, and

that dispositional order was invalid in the first instance. Specifically, he contends the

order committing him to Breaking Cycles allowed the Probation Department to

summarily determine any program noncompliance as well as unilaterally determine

E.H.'s placement and commitment level, allowing the Probation Department to remove

E.H. from his home, without a noticed hearing, after he was placed there as part of

Breaking Cycles. E.H. maintains these aspects of Breaking Cycles violate section 777 as

well as his due process rights and the separation of powers under the United States

Constitution.

                                              7
       Section 777 states in part:

          "An order changing or modifying a previous order by removing a
          minor from the physical custody of a parent, guardian, relative, or
          friend and directing placement in a foster home, or commitment to a
          private institution or commitment to a county institution, or an order
          changing or modifying a previous order by directing commitment to
          the Youth Authority shall be made only after a noticed hearing."

If a section 777 notice is not filed within 48 hours (excluding noncourt days) after the

minor was taken into custody, the minor must be released. (In re Greg F. (2012) 55

Cal.4th 393, 403; § 631, subd. (a).)

       Here, E.H. argues that his removal from home supervision into STOP during his

Breaking Cycles commitment violated section 777. However, by its express terms,

section 777 is only triggered by an order or modification of an order without a noticed

hearing. In the instant action, there was neither an order modifying the previous

Breaking Cycles order nor an order committing E.H. to STOP. Thus, section 777 was not

implicated when E.H. was placed in STOP.

       Further, even if section 777 does not require a new order or a modification of an

existing order, E.H.'s challenge would still be without merit. Here, E.H. already was

released from STOP; therefore, any challenge under section 777 is moot as well.

       E.H. also brings two constitutional challenges to a portion of the Breaking Cycles

order. First, he claims that his due process rights were violated when he was removed

from his home and placed in STOP, which subjected him to about a 20-day stay in

juvenile hall. E.H. contends that he was not given the opportunity to challenge the

alleged violations leading to his STOP commitment. In other words, he was not


                                             8
permitted to present evidence to contradict the alleged parole violations in a noticed

hearing. Second, E.H. maintains the portion of the Breaking Cycles order that allows the

Probation Department to determine the existence of a parole violation and reassess his

placement under Breaking Cycles, which could include a new service and/or more

restrictive confinement, violates the separation of powers in the United States

Constitution. Because of these alleged constitutional infirmities in the order committing

E.H. to Breaking Cycles, he asserts the order committing him to Camp Barrett, based on

a violation of the Breaking Cycles order, is invalid.

       In considering constitutional questions, we tread lightly. "As a prudential matter,

we routinely decline to address constitutional questions when it is unnecessary to reach

them." (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control

Appeals Bd. (2006) 40 Cal.4th 1, 17, fn. 13.) "Generally, courts should not pass on

constitutional questions when a judgment can be upheld on alternative, nonconstitutional

grounds. Courts should follow a policy of judicial self-restraint and avoid unnecessary

determination of constitutional issues." (California Teachers Assn. v. Board of Trustees

(1977) 70 Cal.App.3d 431, 442; see also Santa Clara County Local Transportation

Authority v. Guardino (1995) 11 Cal.4th 220, 230; Sanchez v. City of Modesto (2006) 145

Cal.App.4th 660, 671; People v. Pantoja (2004) 122 Cal.App.4th 1, 10.)

       Here, E.H.'s constitutional challenges to the Breaking Cycles order have little

connection to the violations that led to his Camp Barrett commitment. In its report

recommending a Camp Barrett commitment, the Probation Department listed two

violations:

                                             9
          "Violation #1: On 7/18/12, [E.] was reassessed by the Breaking
          Cycles program to participate in STOP and Reflections North
          followed by the Community Unit with two weeks of Home
          Supervision following his failure to attend the Reflections North Day
          Center Program.

          "On 8/7/12, [E.] was released on Home Supervision upon
          completion of his STOP commitment. However, on 8/8/12, at about
          6:10 p.m., Home Supervision officers attempted to contact [E.]l at
          his residence with negative results. The minor's mother reported he
          had left about three hours earlier and his whereabouts were
          unknown. As a result, [E.] was placed on the Juvenile Hall Hot
          Sheet. On 8/16/12, at about 9:15 a.m., Oceanside police arrested the
          minor and his brother at their home following information from the
          mother that the minor and his brother, [Evan H.], were present."

The first violation describes the parole violation (failure to attend Reflections) that led to

E.H.'s reassessment under Breaking Cycles and his commitment to STOP. The second

concerns E.H. leaving home without permission and without telling his mother his

destination. Both of these violations occurred while E.H. was home and not in a more

restrictive confinement. Put differently, neither violation involves the due process

challenge E.H. now raises.

       Moreover, E.H. was given the opportunity at an evidentiary hearing to provide

evidence to contradict the allegations of the violations. Therefore, he was provided with

sufficient due process to challenge the allegations that led to the Camp Barrett order. He

chose not to do so and presented no evidence in his favor. In addition, one of the

violations simply repeated the infringement that led to E.H.'s STOP placement. E.H.

complains he was not given an opportunity to present evidence to refute this alleged

violation prior to being reassessed and placed in STOP. Ironically, when he was given a

chance to refute the allegation, he did not do so. Although we appreciate that at that time

                                              10
it was too late to prevent his commitment to STOP, we find it curious that when given an

opportunity to present evidence to contradict the allegation, E.H. declined after

complaining he had no such opportunity in the first instance.

       Also, E.H.'s separation of powers argument is not linked to the order committing

him to Camp Barrett. A noticed hearing was held where the parties were able to present

evidence and argument regarding E.H.'s commitment. It was not the Probation

Department determining the existence of a violation and placing E.H. in a more

restrictive confinement. Instead, the court held a hearing, considered argument from the

parties, and allowed the parties to present evidence before making its order.

       In summary, E.H. is not directly attacking the order committing him to Camp

Barrett. Instead, he is using that order as a conduit to bring a constitutional challenge to

the previous order committing him to Breaking Cycles. Based on the record before us,

we decline to address that constitutional issue because we find it unnecessary to resolve

the issue before us. (See Department of Alcoholic Beverage Control v. Alcoholic

Beverage Control Appeals Bd., supra, 40 Cal.4th at p. 17, fn. 13.) Twice, the juvenile

court ordered E.H. to be committed to Breaking Cycles. At neither hearing giving rise to

those orders did E.H. raise any constitutional challenge. Instead, he waited until the

Probation Department sought a new order with a more restrictive confinement before he

objected. E.H. was presented with an opportunity to dispute the allegations giving rise to

the Probation Department's recommendation that he be committed to Camp Barrett. The

court, not the Probation Department, ultimately determined Camp Barrett was the proper

commitment for E.H. The constitutional ailments of which E.H. complains played no

                                             11
role in the juvenile court's determination. It may be that parts of Breaking Cycles raise

constitutional issues that need to be addressed. However, this case is not the vehicle for

us to do so, not on the record before us.

                                      DISPOSITION

       The order is affirmed.



                                                                            HUFFMAN, J.

WE CONCUR:



             BENKE, Acting P. J.


                  McDONALD, J.




                                            12
