Filed 10/28/13 In re Giovanni C. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re GIOVANNI C., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137752
v.
GIOVANNI C.,                                                         (Alameda County
                                                                     Super. Ct. No. SJ12185861)
         Defendant and Appellant.



         The issue briefed by the parties is whether the juvenile court has the power under
the contempt provision of the Juvenile Court Law (Welf. & Inst. Code, § 213) to order the
minor remanded into custody—in plain language, detained or incarcerated—for persistent
violation of the court‟s order directing the minor to attend school. During the pendency
of this appeal, Division Three of this District held that a juvenile court remand order is
not appealable, and that the juvenile court must follow the contempt procedures specified
in the Code of Civil Procedure. The period of the minor‟s remand has ended, making this
purported appeal from the remand order moot. Thus, in accordance with well-established
precedent, we dismiss the appeal.
                                                 BACKGROUND
         Giovanni C. does not like attending school. After being declared an habitual
truant by his school district, truancy mediation with the probation officer and the



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prosecuting attorney failed to correct the problem. This led to the prosecuting attorney
filing a wardship petition under Welfare and Institutions Code section 601,
subdivision (b).
       On May 4, 2012, Giovanni admitted the allegations of the petitions, expressly
acknowledging that he was in court “because of my lack of going to school,” and that he
would “be ordered to attend school each day, every day, every class, on time.” His
admission came after the court told him, “If you were to violate court orders, you could
be ordered to participate in the weekend training academy. [¶] . . . [¶] And you could
spend time in juvenile hall on the weekends if you were to violate court orders.”
Giovanni was declared a ward of the juvenile court, and admitted to probation upon
specified conditions, among which were: “You‟re to attend school each day, every day,
every class, on time and remain in those classes while they are in session. [¶] You‟re not
to leave school until you finish your classes. [¶] You are to notify your probation officer
of any tardies, absences, or disciplinary actions by school officials within seven days.”
       The following month the probation officer advised the court: “Since Giovanni last
appeared in Court he has accumulated 4 days of absences, 38 missed periods, 11 tardies,
and 3 tardies more than 30 minutes late . . . . [¶] . . . [T]he Assistant Principal . . .
suspended Giovanni on May 11, 2012 for cutting school and he was supposed to return
on Monday May 14, 2012 and Giovanni still cut class without any improvement in his
attendance. Giovanni has completed his first year of high school and has completed 0 of
the 55 credits attempted. He has received all F‟s in every class this entire school year. . .
If the Court is so inclined, this Deputy is not opposed to remand.”
       On Friday, June 15, 2012, Giovanni‟s counsel advised the court that Giovanni
“doesn‟t know why, but he always feels like staying up all night and sleeping all day and
not getting out of bed to go to school. I think there may be some depression or some
other mental health thing going on,” and recommended “I think this is another case where
his family should be required to get him medically evaluated.” The court ordered
Giovanni‟s father to “get him a medical evaluation to find out why he wants to stay up



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and doesn‟t want to go to school.” Giovanni was “remanded for the weekend” to the
juvenile justice camp.
       Matters appeared to improve when the new school year started. In October, the
probation officer advised the court that since the new year began on August 28, Giovanni
“. . . has accumulated 21 missed periods, 16 tardies, and 4 unexcused tardies more than
20 minutes late,” but was involving himself in some school activities. At the progress
hearing held on October 5, the court complimented Giovanni on these activities, but told
him that the absences were “completely” unacceptable. The court concluded that “I‟m
going to have you do one WETA [Weekend Training Academy] and that‟s the
consequence for those 21 missed periods.” This was explained as an “out-of-custody”
arrangement: “You‟re not going to stay overnight . . . and you‟re not going to be locked
up . . . Basically what happens is you go out, they give you classes about different things,
you do something physical” like “clean up at a park.” Giovanni was cautioned by his
counsel that “the judge expects you to turn it around; otherwise, we may be talking about
in-custody time in the future.” The court stated “in-custody time, . . . I only go there
when I see somebody that just is not making any effort to do what they need to do.
That‟s not the case here with you . . . But in any event, 21 missed periods is not okay. I
want you to have some consequences for that . . . Now you have a weekend that‟s gone
. . . [¶] We‟re going to put this matter over . . . for further progress report and you‟re
going to have to do one out-of-custody WETA.”
       On November 2, the probation officer reported that Giovanni failed to complete
the ordered WETA. In addition, “Giovanni has improved his attendance since the last
time he appeared in Court. He has been attending school daily, however he needs to
reduce the tardies and get to each and every class on time. In reference to Giovanni‟s
grades, he is currently receiving F‟s in each class.” With respect to the missed WETA,
the court noted “it looks like he‟s just blown it off.” The court told Giovanni “you came
awfully close to going into custody,” but ordered him to do another out-of-custody WETA
over a weekend.



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       In December, the probation officer reported to the court that Giovanni was
backsliding and had again been suspended: “Since Giovanni last appeared in Court he
has accumulated 7 unexcused absences, 27 missed periods, 16 tardies, and 2 tardies
arriving more than 30 minutes late” “with no valid reason as to why he missed school.”
“Giovanni‟s attendance is below satisfactory.”
       At a progress hearing on December 21, the court stated that Giovanni was
“disrespecting his parents, missing several days of school. When his mother tries to talk
to him about that, he tells her to shut up and gives her the middle finger. . . . So he is out
of control [the description used by Giovanni‟s mother] sounds like to me. [¶] The
recommendation is for remand.” Giovanni‟s counsel responded strongly to the possibility
“the court is inclined to remand, that is, incarcerate Giovanni.” In addition to the
unresolved issue “that there may be a severe mental health problem here,” counsel argued
“the law does not allow this court to incarcerate this minor under the normal Welfare and
Institutions Code sections. There‟s no such power. There is contempt power” but only if
the court “meet[s] the due process requirements” of the Code of Civil Procedure.
Although the court continued to maintain it had the power to order a remand, it agreed to
do “further investigation.” For the moment, “I am going to order that he do three
additional WETAs. Those are out of custody . . . You [Giovanni] should be on notice
that we‟re going to escalate here and that if you continue to do what it seems . . . is your
course of conduct . . . . [¶] . . . [¶] . . . The court thinks that it warrants your spending
time in juvenile hall, so be aware of that. . . . [¶] We‟re going to put the matter over till
January the 18th. And I expect you to have those WETAs completed.”
       The probation officer‟s final progress report painted a bleak picture:
       “Since Giovanni last appeared in Court, his attendance has made very little
improvement. From January 7, 2013 through January 15, 2013, he has accumulated
15 unexcused missed periods. . . . [¶] . . . [¶] Giovanni seems to be arriving at school
whenever he feels like going to school. When the undersigned spoke to mom on several
occasions, she is never aware or approved Giovanni to be out of school during the periods
he missed.


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       “Giovanni continues to disobey the orders of the Court. He has not made the
improvement in his attendance that he needs to. The minor has not completed any of the
3 WETAs that were ordered at his last court hearing. His family has been assessed to
work with the Lincoln‟s Child Center to begin counseling services and he has failed to
make contact with his Community Liaison [Herbert Smyer]; despite all efforts that have
been made by Mr. Smyer to make contact with Giovanni. In addition, his behavior in the
home is unacceptable; he still disrespects his mother and doesn‟t comply with her house
rules and the Court‟s curfew of 6:00 p.m. [¶] Giovanni continues to disregard the efforts
of the Court, Probation, Lincoln Child Center, [high school] officials, and his mother. If
the Court is so inclined, this Deputy is not opposed to remand.”
       The final progress hearing was held on January 18, 2013. Counsel for Giovanni
referred to “arguments I‟ve made to the court in other cases, . . . that I believe the court
has no authority in the current posture to incarcerate my client. Based on the court‟s
comments in other similar situations . . . I‟ve given the court my brief that was submitted
on the . . . case which presents all the arguments.” Counsel reiterated his position that the
exercise of the court‟s contempt power must be guided by the contempt provisions in the
Code of Civil Procedure. Giovanni, who was present at the hearing, was remanded to the
juvenile justice center, until the afternoon of January 20, when he would be released to
his mother.
       On January 30, Giovanni filed a timely notice of appeal from the remand order.
                                       DISCUSSION
       One of the “other cases” mentioned by Giovanni‟s counsel at the January hearing
was then being appealed. That case too involved a weekend remand for failure to attend
WETAs as ordered by the same judicial officer. After Giovanni‟s appeal was briefed, our
colleagues in Division Three held that the remand order was not appealable, but the
defective appeal would be treated as a petition for an extraordinary writ. (In re M.R.
(2013) 220 Cal.App.4th 49, 65.) Division Three further held that “Although the appeal is
technically moot” because the remand period had expired, “we shall exercise our inherent



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discretion to resolve an issue of broad public interest that is likely to recur while evading
appellate review.” (Id. at p. 56.)
       “When no effective relief can be granted, an appeal is moot and will be dismissed.
[Citation.] „ “ „[T]he duty of this court . . . is to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law which cannot affect the
matter in issue in the case before it.‟ ” ‟ [Citation.] . . . “[W]hen, pending an appeal from
the judgment of a lower court, and without any fault of the [respondent], an event occurs
which renders it impossible for this court, if it should decide the case in favor of
[appellant], to grant him [or her] any effectual relief whatever, the court will not proceed
to a formal judgment, but will dismiss the appeal. [Citations.]” ‟ [Citation.]” (In re
Jessica K. (2000) 79 Cal.App.4th 1313, 1315 -1316.)
       “An exception to this rule exists where the question to be decided is of continuing
public importance and is one „ “ „capable of repetition, yet evading review.‟ ” ‟
[Citations.] Accordingly, „if a pending case poses an issue of broad public interest that is
likely to recur, the court may exercise an inherent discretion to resolve that issue even
though an event occurring during its pendency would normally render the matter moot.‟
[Citations.]” (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.)
       This exception was used in M.R. to address the issue in what was conceded by all
sides to be a moot case. (In re M.R., supra, 49 Cal.App.4th 49, at p. 56.) Giovanni‟s
purported appeal is from the identical type of nonappealable moot order. Now that the
merits of the issue have been addressed by Division Three, there is no basis for this court
not following its duty to dismiss. (In re Jessica K., supra, 79 Cal.App.4th 1313,
1315-1316; In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204; 9 Witkin, Cal. Procedure
(5th ed. 2008) Appeal, § 749, p. 814.)
                                       DISPOSITION
       The purported appeal is dismissed.




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                                              _________________________
                                              Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




*
 Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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