Filed 3/28/19
Opinion following supplemental briefing
                                CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FIRST APPELLATE DISTRICT

                                          DIVISION FIVE


In re J.C., a Person Coming Under the
Juvenile Court Law.


THE PEOPLE,
         Plaintiff and Respondent,
v.                                                  A154389
J.C.,                                               (Contra Costa County
         Defendant and Appellant.                   Super. Ct. No. J1-800375)



         Minor J.C. (Minor) challenges the juvenile court’s disposition order committing
him to juvenile hall until age 21, but providing for an earlier release if and when he
successfully completes a court-ordered treatment program. We affirm the commitment
order and reject Minor’s contention that it impermissibly delegates to the probation
officer the authority to determine the length of Minor’s commitment.
                                          BACKGROUND
         Following a Welfare and Institutions Code section 602 1 petition, Minor admitted
to carjacking with a personal firearm use enhancement. (Pen. Code, §§ 215, subd. (a),
12022, subd. (b)(2).) The probation officer recommended the juvenile court adjudge
Minor a ward of the court, remove him from parental custody, and commit him to a

1
    All undesignated section references are to the Welfare and Institutions Code.



                                                1
county institution “for a period not to exceed maximum custody time of 12 years, or until
age 21, whichever occurs first.” 2 The probation officer further recommended the juvenile
court order the following: “Minor to participate in the County Institution Program, YOTP
[Youthful Offender Treatment Program], minor must successfully complete all phases of
the program, follow all treatment requirements, and obey all rules and regulations.”
         At the May 2018 disposition hearing, Minor’s counsel requested placement at a
juvenile ranch facility (the Ranch). Minor’s counsel further argued, “If you are leaning
towards YOTP commitment, . . . I’m objecting to an indefinite commitment. YOTP is a
ten-month program. It’s split into three phases. Each is 12-weeks long. Including [an]
orientation phase . . . I believe a commitment then for ten months would be more
appropriate.” The probation officer responded that YOTP is a ten-month program only
“if everything is done correctly and he progresses, but that’s not a guarantee that it’s a
ten-month program. It depends on him.”
         The juvenile court adopted the probation department’s recommendation of a
YOTP commitment: “I believe that the Youthful Offender Treatment Program is the best
program to meet [Minor’s] rehabilitative needs while keeping the community safe . . . .
[¶] I don’t think that there is a lesser restrictive alternative. I don’t think the Ranch is
appropriate. Not only was a firearm involved, this is a . . . 707(b) offense that is, does
make him eligible to go to Department of Juvenile Justice. It’s one that honestly he could
easily be going to the Department of Juvenile Justice.”
         The court declined to order a fixed term of commitment: “YOTP is not a program
that necessarily is a 10-month program. There may be programming or different levels
that add up to ten months, but the reality is everyone goes through YOTP at the[ir]
particular pace. Not everyone progresses to the next level or phase at exactly the same
time and it really depends on how well each person, individual is doing in the program
itself. [¶] . . . YOTP is meant to have programming that is meant to be completed and


2
    Minor was 16 years old at the time of disposition.



                                               2
there are times that one would not advance through the program within this set time
frame. . . . It’s unclear exactly how long it will take to finish the program. So I don’t
believe it was ever meant to be exactly a ten-month program. [¶] . . . [¶] . . . I’m hopeful
that [Minor] will progress through the various phases successfully without any pauses,
but again, I can’t predict exactly when he will finish the program. The key is that he
finish all the programming at YOTP.” The court later noted that if Minor “has what
would be called a perfect program, sounds like it would be closer to ten months. If he
does not have a perfect program I can’t say it will be that amount. It could be longer.
The key is to completely, successfully complete all phases of the program, and obviously
there [is] the maximum period he could be held and that would be basically until his 21st
birthday, and I’m sure he will have completed YOTP before then.” The court adopted
the probation officer’s recommended orders on this issue without modification.
         At the end of the disposition hearing, the court set a “YOTP review date” for
December 2018, seven months away, “to see how [Minor] is doing.”
                                        DISCUSSION
         Minor contends the disposition order delegates to the probation officer the
authority to determine the length of Minor’s commitment, because the probation officer
will determine whether and when Minor successfully completes YOTP, which in turn
will determine when he is released. 3 Minor further contends this delegation is a
separation of powers violation because the authority to determine the length of Minor’s
commitment is a nondelegable power of the juvenile court. Because we disagree with
Minor’s first contention, we need not and do not resolve the second. 4




3
 The court’s comments clearly contemplate that Minor will be released if and when he
successfully completes YOTP, and the parties so assume.
4
    We also need not decide whether Minor forfeited the argument, as the People contend.



                                              3
       To support his contention that the probation officer alone determines whether a
minor successfully completes YOTP, Minor points to YOTP’s location in juvenile hall 5
and to section 852, which provides: “The juvenile hall shall be under the management
and control of the probation officer.” While these factors establish that the probation
officer has day-to-day supervision and control over Minor, under In re Robert M. (2013)
215 Cal.App.4th 1178 (Robert M.), the juvenile court nonetheless retains the ultimate
authority to determine whether and when Minor successfully completes YOTP.
       Robert M. began by noting that, when a minor is committed to juvenile hall, “[i]t
is clear from the statutory scheme . . . that the juvenile court retains supervision and
control over a minor,” and “[t]hat supervision and control is not altered by the minor’s
participation in” a custodial treatment program ordered by the juvenile court. (Robert M.,
supra, 215 Cal.App.4th at p. 1185.) The court continued: “Unquestionably, a ward
placed in a foster home, a residential treatment program, or juvenile hall . . . is
answerable on a daily basis to those who operate the program, but that does not change
the ultimate responsibility of the juvenile court for the ward’s supervision and control.”
(Ibid.) Thus, Robert M. concluded, where the juvenile court “ordered that minor
‘successful[ly] complet[e]’ ” the custodial treatment program, “[t]he court clearly has the
retained jurisdiction to determine whether minor has done so.” (Ibid.) Under Robert M.,
the juvenile court’s commitment order did not delegate to the probation officer the
determination of whether and when Minor successfully completes YOTP.
       Minor argues Robert M. is inapposite because it addressed a different argument
than the one presented here. In Robert M., the juvenile court ordered the minor
committed to juvenile hall but housed at the Division of Juvenile Facilities (DJF)




5
  We grant Minor’s request for judicial notice of a Contra Costa County Probation
Department publication which states, “YOTP is a 30-bed boys treatment program located
inside Juvenile Hall.” The People do not dispute that YOTP is located in juvenile hall.



                                               4
pursuant to section 1752.16. 6 (Robert M., supra, 215 Cal.App.4th at p. 1182.) The court
further ordered the minor “ ‘to complete sex offender counseling’ ” at DJF and, “ ‘upon
completion of that sex offender counseling, he is to be returned to the Stanislaus County
Juvenile Court for possible modification of his sentence.’ ” (Ibid.) The minor challenged
the order as “impermissibly intermingl[ing] the responsibilities of the probation
department and the responsibilities of DJF” in a manner unauthorized by statute and
unconstitutionally vague. (Id. at p. 1185.) The Court of Appeal rejected the argument by
concluding the juvenile court, not probation or DJF, retained ultimate supervision and
control over the minor. (Ibid.) Although the legal arguments in Robert M. and the
instant case are different, both challenge the impact of a commitment order on an
administrative entity’s supervision and control over a minor in a court-ordered custodial
treatment program. Robert M.’s analysis—finding that despite the administrative entity’s
day-to-day supervision of the minor, the juvenile court retains the ultimate authority to
determine whether the minor successfully completed the program—applies equally here.
Accordingly, under Robert M., the juvenile court retains the authority to determine
whether and when Minor has successfully completed YOTP.
       Indeed, the juvenile court exercised that retained authority in scheduling a “YOTP
review hearing” seven months after disposition. This review hearing further undermines
Minor’s assertion that the court delegated to the probation officer the authority to
determine whether Minor has successfully completed YOTP. Following this hearing, the
court will presumably schedule further hearings necessary to the exercise of its retained
authority over whether and when Minor successfully completes YOTP.



6
  Section 1752.16 was enacted in response to a California Supreme Court case limiting
the offenses for which a minor could be committed to DJF, authorizing such
arrangements for wards who were in the custody of DJF when the case was decided.
(See Robert M., supra, 215 Cal.App.4th at pp. 1181–1182.) The challenged disposition
order in Robert M. issued on remand following the California Supreme Court case. (Id.
at p. 1182.)



                                             5
       Minor argues a YOTP “handbook” demonstrates that the probation officer
determines the length of Minor’s commitment. Minor requests that we take judicial
notice of this handbook; the People oppose the request solely on relevance grounds. As
explained below, we find the document relevant. We need not decide whether, as Minor
contends, the handbook’s descriptions of YOTP are judicially noticeable as “[f]acts and
propositions that are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid.
Code, § 452, subd. (h).) Even so assuming, the handbook supports our analysis rejecting
his challenge. Minor points to the handbook’s statement: “Your commitment, as ordered
by the court is for the maximum custody time allowed based on your charges or a period
not to exceed your 21st birthday, whichever comes first. A court review will be set by
your Deputy Probation Officer prior to your successful completion of phase three, your
DPO [Deputy Probation Officer] will then inform the court of your progress, and whether
you should be released to Phase Four, GPS Supervision / Community Aftercare.” 7
(Italics added.) This description plainly contemplates the probation officer will provide
the juvenile court with an opinion about whether the minor has successfully completed
the program and will make a recommendation to the court regarding the minor’s release.
The court will then make the final determination on these issues.
       According to Minor, the handbook provides that “only when probation determines
a child has successfully completed phase three will it set a court review recommending
release to phase four.” In fact, the handbook states the court review will be set “prior to
your successful completion of phase three,” not after successful completion. (Italics
added.) To the extent the handbook assumes the probation officer will determine whether
the minor has successfully completed phases one and two, Minor concedes the juvenile


7
  According to the handbook, YOTP is composed of an orientation followed by four
“phases,” the fourth of which is completed outside of juvenile hall. For convenience, we
will continue to refer to the successful completion needed for Minor’s early release as
that of the YOTP program, rather than of phase three.



                                             6
court could “overrule a phase decision by probation” but argues the authority to
determine a minor’s successful completion has nonetheless been impermissibly delegated
to the probation officer. The logical extension of Minor’s argument is that any decision
impacting a minor’s progress through YOTP cannot be made by probation in the first
instance, even if the court will hold review hearings and retains the authority to overrule
the decision. We see no legal basis for such a conclusion. When a minor is committed to
a county facility and ordered to complete a treatment program, juvenile courts can and do
delegate the day-to-day supervision of the minor, while retaining the ultimate authority to
determine whether the minor has successfully completed the program. (Robert M., supra,
215 Cal.App.4th at p. 1185.)
       We note also that, at the review hearings, Minor may inform the juvenile court if
he disagrees with the probation officer’s assessment of his progress to date. In addition,
at any time, Minor (or his parents or attorney) can file a section 778 petition requesting
the juvenile court modify the disposition order. (§ 778, subd. (a)(1) [“[a]ny parent or
other person having an interest in a child who is a ward of the juvenile court or the child
himself or herself through a properly appointed guardian may, upon grounds of change of
circumstance or new evidence, petition the court in the same action in which the child
was found to be a ward of the juvenile court for a hearing to change, modify, or set aside
any order of court”]; Cal. Rules of Court, rule 5.60(e)(1) [§ 778 petition can be filed by,
inter alia, parent, child, or child’s attorney].) For example, if Minor contends the
probation officer is unfairly assessing Minor’s performance in YOTP, this would appear
to constitute a changed circumstance from the implicit assumption in the dispositional
order that the probation officer will fairly assess Minor’s performance.
       Minor argues a finding that the commitment order is unlawful would not eliminate
YOTP or similar programs because juvenile courts could set a fixed term of confinement
and, if the minor failed to successfully complete the custodial program in that time, the
probation officer could file a notice of probation violation to extend the confinement
period. The availability of an alternative commitment order does not render the current
order unconstitutional.


                                             7
       In sum, the disposition order commits Minor to juvenile hall until age 21, but
provides he will be released earlier if he successfully completes YOTP. Under the
statutory scheme, the juvenile court retains the supervisory authority to determine
whether and when Minor successfully completes YOTP and, therefore, whether and
when he will be released early from juvenile hall. The juvenile court scheduled a review
hearing in the exercise of that supervisory authority. If Minor believes the probation
officer is unfairly assessing his performance in the program, he can bring the issue to the
juvenile court at the scheduled review hearing or by filing a section 778 petition. The
commitment order does not delegate to the probation officer the discretion to determine
the length of Minor’s commitment. 8
                                      DISPOSITION
       The order is affirmed.




8
  Minor also argues that an extended commitment because of his failure to successfully
complete YOTP within ten months is, in effect, a commitment for violating his probation
conditions without notice or a hearing, as required by section 777 and due process.
Section 777 provides: “An order changing or modifying a previous order by removing a
minor from the physical custody of a parent . . . and directing . . . commitment to a
county institution . . . shall be made only after a noticed hearing.” The juvenile court’s
disposition order does not authorize the probation officer to “chang[e] or modify[] a
previous order” or “remov[e]” Minor from the physical custody of his parents. Instead, it
orders Minor committed to juvenile hall until his 21st birthday, unless he successfully
completes YOTP, in which case he shall be released earlier. The noticed hearing for
probation violations required by section 777 and due process has no bearing on the case
at hand.



                                             8
                  SIMONS, J.




We concur.




JONES, P.J.




BURNS, J.




(A154389)




              9
Superior Court of Contra Costa County, No. J18-00375, Hon. Barbara C. Hinton, Judge.


L. Richard Braucher, under appointment by the Court of Appeal, for Defendant and
Appellant.


Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Leif M. Dautch, Eric D. Share,
and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.




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