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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.,                                                           A136819
         Defendant and Appellant.                                    (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 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.

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       On January 25, 2010, when appellant was 16 years old, a wardship petition (Welf.
& Inst. Code, § 602, subd. (a))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.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 mental health problem. Counsel noted that
he had encouraged appellant‟s grandmother to have appellant undergo a psychological



       1
          Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
        2
          Section 654.2 permits the court to order a six-month program of supervision
without adjudging a minor a ward of the court, with the wardship petition to be dismissed
if the program is successfully completed.

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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


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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.


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       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,


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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


                                             6
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


                                              7
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.)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




       3
         It is strange that respondent makes this argument after citing In re Trevor W.,
supra, 88 Cal.App.4th at page 837, for the proposition that a juvenile hall commitment is
a valid condition of probation “for minors like appellant,” since Trevor W. reversed an
order imposing time in juvenile hall as a condition of probation precisely because the
minor had not been declared a ward of the court.

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and the prosecutor advised the court it could not declare appellant a ward at that time,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

        4
          As indicated above, on August 16 the court continued the matter to August 20
because appellant had not been given notice he faced immediate remand. When the court
stated its intention to declare appellant a ward, appellant‟s attorney stated that the court
could not make a “partial disposition” order without appellant‟s consent, and the
prosecutor agreed.

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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


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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


                                             11
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.




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