Filed 8/25/20 In re Nicholas 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                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 NICHOLAS P., a Person
Coming Under the Juvenile Court
Law.
THE PEOPLE,
         Plaintiff and Respondent,                                      A158426

v.                                                                      (Contra Costa County
NICHOLAS P.,                                                            Super. Ct. No.
                                                                        J18-01060)
         Defendant and Appellant.
                                                                   ORDER MODIFYING OPINION
                                                                   [NO CHANGE IN JUDGMENT]


BY THE COURT:

       It is ordered that the opinion filed herein on July 31, 2020, be modified
as follows:
       On page 2, in the final sentence of the first full paragraph, replace
“treatment programs” with “residential programs”.
      On page 5, in the last sentence of the first full paragraph, replace “as
he previously left other programs” with “based on his history with other
programs,”.
      On page 5, in the second sentence of the last paragraph, replace “She”
with “He”.




                                                               1
      On page 12, in the last sentence of the last full paragraph, replace
“residential treatment programs” with “residential programs.”
      On page 13, in the first paragraph, replace “and in the course of his
psychological assessment he admitted to three suicide attempts by
intentional overdoses on controlled substances” with “the most recent of a
number of self-harm efforts by him.”
     On page 15, in the first full paragraph, third sentence, replace
“dismissed” with “released”.

      There is no change in judgment.




Dated: _______________                      _________________________
                                            Kline, P.J.




                                        2
Filed 7/31/20 In re Nicholas P. CA1/2 (unmodified opinion)
                  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 NICHOLAS P., a Person
Coming Under the Juvenile Court
Law.
THE PEOPLE,
         Plaintiff and Respondent,                                      A158426

v.                                                                      (Contra Costa County
NICHOLAS P.,                                                            Super. Ct. No.
                                                                        J18-01060)
         Defendant and Appellant.



         Nicholas P., 17 years old at the time of the subject incident, appeals
from the juvenile court’s disposition order, issued under Welfare and
Institutions Code section 602, et seq., arguing that the court abused its
discretion by committing him to the Youthful Offender Treatment Program
(YOTP), impermissibly delegated to the probation department its authority to
determine the length of his commitment, ordered him subject to a
constitutionally overbroad probation condition regarding his possession and
use of knives, erroneously imposed a maximum commitment term of five
years, and miscalculated his custody credits. We conclude the court did not
abuse its discretion nor impermissibly delegate its authority, but we agree




                                                               1
with Nicholas that the probation condition, the commitment order and his
custody credits should be modified.
                               BACKGROUND
                                       I.
                   Events Prior to the Present Offenses
      Nicholas repeatedly had come under the jurisdiction of the juvenile
court before he committed the offenses involved in the present case. In 2015,
the juvenile court sustained allegations that he had committed misdemeanor
second degree commercial burglary and misdemeanor petty theft (later
reduced to misdemeanor shoplifting) and adjudged him an indefinite ward of
the court. In 2017, after he violated probation twice by testing positive for
marijuana, the court ordered him to juvenile hall and later placed him on
home supervision. In July 2017, the court sustained a drug possession count
in a supplemental petition and ordered Nicholas placed out of home. He
subsequently entered three different treatment programs and was
terminated from each after only a brief stay.
      Nicholas’ substance abuse continued. In July 2018, he ingested an
unknown substance, hallucinated and was found to pose a danger to himself.
He was held involuntarily for psychiatric evaluation under Welfare and
Institutions Code section 51501 (section 5150), one of “numerous” such holds
since 2014. He spent seven days in the hospital, five of which were in
intensive care, and then stayed in a voluntary residential drug treatment
facility but was released early for poor behavior and given a completion
certificate. In September 2018, the court terminated Nicholas’ wardship
unsuccessfully.


      1All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.

                                       2
      In November 2018, Nicholas’ father (father) called police about
Nicholas vandalizing the family home. Responding police observed Nicholas
engage in erratic and aggressive behavior, which led to him being placed on
another psychiatric hold under section 5150. A wardship petition was filed
alleging drug offenses, and in March 2019 the court again adjudged him a
ward, ordered that he be placed on home supervision and required him to
successfully complete Kaiser Permanente’s out-patient chemical dependency
treatment program.
      On June 17, 2019, Nicholas admitted to violating probation by failing to
submit to three drug tests. Then, on June 20, 2019, after father’s report that
Nicholas had apparently inflicted cuts on his own chest and wrist, he was
placed on another involuntary psychiatric hold under section 5150. On
June 30, 2019, father reported that Nicholas was threatening to cut himself
and his ankle monitor with a knife, and responding police observed blood on
Nicholas’ shirt and wrists, leading to another psychiatric hold under
section 5150.
      At the July 2019 disposition hearing on this new petition, the court
ordered Nicholas to continue in home supervision and in the Kaiser
outpatient program and to enter a dual diagnosis residential treatment
program that could treat his substance abuse and mental disorders,2 as
recommended by Kaiser, if the probation department and his mother could
find one for him. Subsequently, Nicholas was approved by the Muir Wood
dual diagnosis treatment program in Petaluma, California but would not
agree to attend; also, his mother was still working to obtain insurance
coverage to pay for the program.

      2 Prior to the present case, Nicholas was diagnosed as suffering from
major depressive, anxiety, attention deficit hyperactivity, post-traumatic
stress and oppositional defiant disorders.

                                      3
                                        II.
                                The Present Offenses
      On August 8, 2019, the Contra Costa District Attorney filed a notice of
probation violation and a supplemental wardship petition alleging offenses
that were the basis for Nicholas’ tenth referral to the probation department.
The petition alleged that on August 6, 2019, Nicholas, committed assault
with a deadly weapon in violation of Penal Code section 245,
subdivision (a)(1) (count 1); assault by means of force likely to produce great
bodily injury in violation of Penal Code section 245, subdivision (a)(4) (count
2); and felony vandalism in violation of Penal Code section 594,
subdivision (b)(1) (count 3).
      The probation department later reported that, according to police, on
August 6, 2019, Nicholas and friends were at his house when one friend
accused him of stealing marijuana. Nicholas became angry and engaged in a
physical altercation with the friend inside the house. As the friend left the
house, Nicholas ran towards him with “a one foot in length kitchen knife” in
his hand. Nicholas lunged at him with the knife, close enough to force the
friend to jump away, and stabbed the friend’s vehicle, denting it. After the
friend got in the vehicle, Nicholas threw rocks at it, denting it further.
      When the police arrived, Nicholas told them that he had pulled out a
knife when the friend would not leave his property. He was arrested and,
after he repeatedly banged his head against the metal divider in the police
car, placed in the “WRAP restraint system” and taken to juvenile hall.
                                        III.
                           The Detention Hearing
      The juvenile court convened a detention hearing on August 9, 2019.
Nicholas’ counsel denied all allegations and requested that the court release



                                         4
Nicholas to his mother so he could be taken on Monday, August 12, to the
Muir Wood dual diagnosis treatment facility to reside there and participate
in a 60- to 65-day program, which the probation department also
recommended in its disposition report. The court was concerned with the
severity of the present offenses and that this would be a “pre-contest release”
(since jurisdictional and dispositional rulings were yet to be made) that would
leave the case still to be resolved. It also lacked substantial information on
the Muir Wood program and wanted to hear more from Nicholas’ probation
officer, who could not attend the hearing. Therefore, the court continued the
detention hearing to August 12 and ordered Nicholas’ probation officer to be
present. It said it was interested in the Muir Wood program “[i]f we can
reach a point where we feel a lot better about . . . how he’s going to be
supervised while he’s there to make sure he doesn’t leave . . . .”
      At the August 12 detention hearing, Nicholas pleaded no contest to
counts 2 and 3. The court sustained those counts, dismissed count 1 and
dismissed the probation violation petition. Nicholas’ probation officer, who
attended the hearing, recommended that he be committed to a locked facility
because she thought he would not successfully complete Muir Wood and that
she would not be able to properly supervise him there. She was concerned
that Nicholas would leave Muir Wood as he previously left other programs,
putting himself and others at risk.
      Nicholas’ counsel argued Muir Wood could address both Nicholas’
mental health and substance abuse issues but could only hold a spot for
Nicholas until the next afternoon. She highlighted that Nicholas would be
under video surveillance in a 22-bed facility with “pretty much a one-to-one
staff ratio,” wear an ankle monitor and be the subject of weekly updates, and
that the program would immediately contact the sheriff if Nicholas were to



                                        5
leave. Nicholas stated that a locked program was dangerous to his mental
health and that he wanted the opportunity to participate in the Muir Wood
program.
      The court stated that Nicholas needed to be detained because he
became dangerous when he was under the influence, and that it was in his
interest to place him where it could be ensured that he remained safely clean,
sober and crime-free. It indicated that probation might be able to make
persuasive recommendations about a residential program at a later time but
thought it would be putting Nicholas at risk of failure if it permitted him to
go into a treatment program at that time. It denied him release to enter
Muir Wood, set a disposition hearing and ordered a mental health
assessment.
                                        IV.
   Reports and Recommendations Prior to the Disposition Hearing
      The probation department’s dispositional report of August 23, 2019,
reviewed Nicholas’ juvenile wardship and treatment history, which we have
already recounted. The department reported Nicholas had been interviewed.
He told the department that he had ingested five or more Xanax pills and
smoked unknown amounts of marijuana and a mixture of fentanyl and heroin
on the day of the incident and only recalled “ ‘bits and pieces’ ” of it, but
acknowledged fighting with his friend in his house, and then grabbing a
knife. He acknowledged being addicted to drugs and to being mentally ill,
said the serious nature of his offenses had shown him he needed to complete
a rehabilitation program, and said he did not like juvenile hall and thought it
was “making him crazy” to be there, including because some people there
scared him.




                                         6
      The department further reported that Nicholas was attending school at
the hall after previously failing to enroll for the current school year.
Furthermore, he had admitted to an “extensive history of illegal substance
abuse including marijuana, cocaine, methamphetamine, heroin, LSD,
psilocybin mushrooms and various prescription drugs, to include Xanax,
Hydrocodone, Klonopin, Codeine, Promyethazine, Fentanyl and OxyContin,”
and to “experimenting with alcohol.”
      The department also summarized two recent juvenile hall incident
reports. The first report indicated that when he first was admitted to
juvenile hall on the day of the incident, he engaged in aggressive behavior
and tried to run headfirst into a glass door, stated that he wanted to kill
himself and had to be restrained. The second report indicated that about a
week later, juvenile hall staff observed bruising, lines and scratches on his
neck. Nicholas denied hurting himself and was placed on suicide watch.
      The probation department further reported that a mental health
assessment had been conducted and that Nicholas received “a current
primary diagnosis of Polysubstance Abuse, with a secondary diagnosis of
Adjustment Disorder.” The assessing doctor recommended that a more
thorough diagnostic battery be conducted by a treating psychologist to verify
Nicholas’ past diagnoses. The doctor believed Nicholas could benefit from
inpatient substance abuse treatment in conjunction with individual and
family counseling, anger management, emotional education, coping skills
development and social skills development. He thought Nicholas appeared to
have very little in the way of coping skills, making it difficult for him to
identify his feelings and effectively manage his symptoms, leading to his
substance use. Additional work focusing on past trauma would also be
beneficial. The doctor thought that, with treatment and support, it was



                                        7
possible for Nicholas to gain sufficient control over his mental health and
substance abuse; however, he needed inpatient detoxification and treatment,
specialty mental health services, continuing psychiatric medication support,
and structure and consistency, in order to be successful in the community.
      Using a standard evidence-based assessment, the department classified
Nicholas as having a high risk of re-offense. He had been screened for
placement in the Department of Juvenile Justice, residential placement, the
Orin Allen Youth Rehabilitation Facility (Orin Allen) and YOTP. Although
he met the criteria for residential placement, the department did not think it
appropriate because his “use of weapons, level of violence, severe
noncompliance, historic refusal to participate in treatment, and his past
placement terminations during his previous wardship, indicate he would pose
a risk to the foster care environment.” For these same reasons, the
department concluded the open setting of Orin Allen was not appropriate
either. It recommended that he be committed to YOTP because “[Nicholas]
clearly has substance abuse issues and long standing mental health issues
that need to be addressed. Additionally, the danger he poses to community
members when he is under the influence is alarming. Though the YOTP’s
resources are limited in regard to substance abuse treatment, he will be
provided the 39 lesson cognitive behavioral intervention treatment class for
substance abuse. . . . Also, [Nicholas] would benefit from the other cognitive
restructuring treatment classes in YOTP, such as Aggression Replacement
Training (ART) and Thinking for a Change (T4C). Additionally, he will
participate in individual counseling with a mental health therapist, followed
by family therapy after his release. . . . Since he is a threat to community
safety, and given his prior history, it appears best he receive treatment while
in an institutional setting.”



                                       8
      The department further stated, “[Nicholas’] behavior has escalated to a
level where he is placing the safety of himself and others at risk and it is
apparent [he] is at risk of potentially harming himself or someone else, if he
doesn’t receive extensive and intensive treatment immediately. [¶] At this
time, it appears vital that [Nicholas] be placed in a secure institutional
setting, where he will be forced to refrain from illegal substances, where he
will be able to participate in substance abuse treatment and where he can
receive individual mental health counseling.”3 The department also
recommended that, in light of Nicholas’ mental health assessment, he “is in
need of a more in-depth psychological assessment.”
      A letter signed by a Kaiser therapist to Nicholas’ parents dated
August 28, 2019, was also submitted to the court before the disposition
hearing. It states that Kaiser “has recommended for [Nicholas] to attend,
participate and complete a dual diagnosis program to address both his
substance use disorder and his mental health disorder. [Nicholas] has been
referred to several programs through Kaiser. He has been discharged early
from one program and has declined others. [Nicholas] will need an updated
evaluation to determine if Kaiser has the appropriate programs for him.”
                                       V.
                          The Disposition Hearing
      At the disposition hearing on September 4, 2019, Nicholas’ counsel
argued for commitment to a dual diagnosis treatment program. However,
counsel could not identify a program that was then available to Nicholas.
Counsel noted that Muir Wood had previously accepted Nicholas, and there


      3 At the end of the report, the department stated, “A review of the
family’s dynamics indicate that out of home placement is not necessary at
this time.” This sentence appears to have been in error because the
department clearly recommended that Nicholas be placed in YOTP.

                                        9
was some discussion about a continuance that counsel ultimately did not
pursue.
      The court indicated it would commit Nicholas to YOTP because
“nothing is set up to ensure that he won’t do what he’s done in the past and
leave the program . . . .” It thought YOTP gave him “the best chance for
success” and would be best for society as well. The court was also concerned
that Nicholas continued to display the manipulative behaviors of an addict,
such as when he said at the hearing, “[I]f I have a seizure at YOTP and I do
die, for instance, or something does happen, you get brain dead, that it is on
the Court.” The court ordered Nicholas to YOTP for a maximum term of five
years, or age 21, with 29 days credit for time served, and to successfully
complete all phases of YOTP. It set a review hearing to take place in four
months regarding Nicholas’ YOTP performance.
      Nicholas filed a timely notice of appeal.
                                DISCUSSION
                                       I.
          The Court Did Not Abuse Its Discretion in Committing
                          Nicholas to YOTP.
      Nicholas argues the juvenile court abused its discretion in committing
him to YOTP because he required extensive and intensive treatment for his
dual diagnosis condition that he could not receive at YOTP, which he
characterizes as a behavior modification program designed for chronic-
offending, criminally sophisticated wards, unlike him. He further argues the
juvenile court unreasonably rejected his request to be placed in the Muir
Wood program at the detention hearing. The People argue the record
supports the court’s finding that Nicholas required commitment to a locked
facility like YOTP because he posed a serious risk of danger to himself and
the community, and because Nicholas could benefit from the mental health


                                       10
and substance abuse treatment that was available at YOTP. We agree with
the People.
      A. Legal Standards
      A juvenile court has broad discretion in determining the proper
placement for a juvenile ward. (John L. v. Superior Court (2004) 33 Cal.4th
158, 183; see also In re W.B. (2012) 55 Cal.4th 30, 44-45 [discussing the
various options available to the court]; §730.) We review a juvenile court
“commitment decision for abuse of discretion, indulging all reasonable
inferences to support the juvenile court’s decision.” (In re Angela M. (2003)
111 Cal.App.4th 1392, 1396.) We review the court’s factual findings for
substantial evidence (In re Teofilio A. (1989) 210 Cal.App.3d 571, 579), which
is evidence that is “ ‘reasonable in nature, credible, and of solid value.’ ”
(People v. Francis A. (2019) 40 Cal.App.5th 399, 405.)
      Juvenile wards “shall, in conformity with the interests of public safety
and protection, receive care, treatment, and guidance that is consistent with
their best interest, that holds them accountable for their behavior, and that is
appropriate for their circumstances.” (§ 202, subd. (b); In re Ronnie P., (1992)
10 Cal.App.4th 1079, 1087-1088.) “ ‘ “[O]ne of the primary objectives of
juvenile law is rehabilitation, and the statutory scheme contemplates a
progressively more restrictive and punitive series of dispositions starting
with home placement under supervision, and progressing to foster home
placement, placement in a local treatment facility, and finally placement at
the [Division of Juvenile Facilities] . . . .” ’ A juvenile court may properly
consider a ‘restrictive commitment as a means of protecting the public safety.’
” (In re Carlos J., (2018) 22 Cal.App.5th 1, 5-6.) The court must consider the
totality of the minor’s circumstances, including “(1) the age of the minor, (2)




                                        11
the circumstances and gravity of the offense committed by the minor, and (3)
the minor’s previous delinquent history.” (§ 725.5.)
      B. Analysis
         1. The Court’s Disposition Order Committing Nicholas to
         YOTP
      The juvenile court did not abuse its discretion in committing Nicholas
to YOTP. The court could reasonably decide at disposition to order Nicholas
to YOTP because of his numerous juvenile offenses, probation violations and
failures in other less restrictive programs, the serious and violent nature of
his current offense, his suicidal tendencies, the probation department’s
concerns about monitoring him in an unlocked facility, the benefits Nicholas
would receive from the YOTP program, and the lack of an available dual
diagnosis treatment program at the time of the disposition hearing.
      The parties agreed below that Nicholas has a serious substance abuse
problem, as evidenced by, among other things, his history of failed drug tests,
his testing positive for cocaine and opiates just days before the current
offenses, and his admission to being under the influence of Xanax pills,
marijuana, and a mixture of fentanyl and heroin when he committed the
current offenses. His repeated substance abuse and his diagnosed mental
health issues, which in the past included depression, anxiety disorder,
ADHD, PTSD, and ODD, led to him being subject to “numerous” involuntary
psychiatric holds under section 5150. Between 2015 and 2019, he committed
multiple juvenile offenses and probation violations, failed or refused to
submit to drug tests and was terminated from a number of residential
treatment programs.
      Regarding the serious and violent nature of Nicholas’ present offense,
which demonstrated that he posed a danger to the public, Nicholas, while
under the influence of illegal drugs, attempted to stab a friend with a foot-


                                       12
long kitchen knife. He also was a danger to himself. In a span of 10 days less
than two months before the current offense, police responding to emergency
calls from his father twice found indications that Nicholas was cutting
himself, and he was twice placed on involuntary psychiatric holds under
section 5150. While in juvenile hall on the present offense, he was put on
suicide watch after bruises and marks on his neck were observed by staff,
and in the course of his psychological assessment he admitted to three prior
suicide attempts by intentional overdoses on controlled substances.
      The court also rightfully considered the probation department’s
recommendation that Nicholas be committed to YOTP. The department was
concerned that placing him in an unlocked residential facility would pose a
risk to both Nicholas and the public, including because of his “use of weapons,
level of violence, severe noncompliance, historic refusal to participate in
treatment, and his past placement terminations during his previous
wardship.” It believed Nicholas would benefit most in a program where he
would be supervised daily, such as YOTP.
      Furthermore, the record discloses that YOTP offers services from which
Nicholas will benefit. The YOTP Handbook indicates that the program
initially assesses residents’ individual treatment needs and develops an
individualized treatment plan, addresses their substance abuse and provides
mental health counseling and cognitive behavior programming. The
counselors, teachers, mental health specialists and deputy probation officers
working in the program are all specially trained in a cognitive behavioral
approach. All residents are “assessed for services to determine what level of
drug and alcohol counseling is needed” and, “[o]nce assessed, some youth will
be required to attend more intensive counseling.” Residents will have the
opportunity to earn their way through a five-phase program, with the last



                                       13
phase being their release from the institutional setting. Nicholas will be able
to participate in the 39-lesson cognitive behavioral intervention treatment
class for substance abuse and other cognitive behavior programs and will
have the opportunity to participate in individual counseling with a mental
health therapist. And commitment to a locked facility will also give him a
chance to remain clean and sober while he participates in this programming
and treatment.
      The court could reasonably conclude from this record that Nicholas’
substance abuse and mental health issues, history of repeated offenses, and
failures in voluntary treatment programs indicated his issues could be best
addressed at YOTP. Moreover, at the time of the disposition hearing,
Nicholas’ counsel informed the court that he was not prepared to identify any
unlocked residential treatment program that was then available to Nicholas.
      Nicholas’ appellate arguments are nothing less than an effort to
relitigate his disposition. He argues, based on a distorted view of the record,
that the court abused its discretion because YOTP offers no services for his
mental health and substance abuse issues prior to seven months into the
program; that YOTP is designed to contain, rather than treat, sophisticated
criminals and chronic offenders only; and that a mental health specialist will
not be involved in assessing him and developing a treatment plan for him in
YOTP. He also makes scattershot criticisms of the details of the YOTP
program. All of these arguments ignore the substantial evidence that we
have discussed that supports his commitment to YOTP; rather, Nicholas in
effect asks us to reweigh all of the evidence. We decline to do so. (In re K.S.
(2016) 244 Cal.App.4th 327, 342 [“Our role as a reviewing court is not to
reweigh competing evidence. Our task is to determine whether the record




                                       14
contains substantial evidence to support the juvenile court’s disposition
decisions”].)
      Nicholas further contends the court abused its discretion because he
purportedly was doing well in the Kaiser out-patient treatment program
prior to committing the present offenses. This ignores that during this time
he was twice placed on 5150 holds because of apparent self-harm and
engaged in repeated substance abuse, not to mention that he committed the
present offenses. He highlights that a prior treatment program issued him a
certificate of completion, ignoring that the program dismissed him early
because of poor behavior. He points out that the court committed him to
YOTP before conducting a further psychological evaluation of him, which
evaluation was recommended by his assessing doctor and the probation
department. This too ignores the evidence we have discussed that supports
his commitment to YOTP, which includes the serious nature of his offenses
and the danger to others that he posed, his repeated efforts at self-harm, his
repeated previous failures in treatment programs, the risk that he would
leave an unlocked facility, his continuing problematic behaviors, the
assessment that was done, and the lack of any treatment program
alternatives available at the time of the disposition hearing.
                2. The Court’s Denial of Nicholas’ Request That He Be
                Allowed to Enter the Muir Wood Program
      Nicholas also argues that the court unreasonably and in violation of his
due process rights rejected his request that he be released to his mother so he
could enter Muir Wood, an unlocked residential dual diagnosis treatment
facility. Nicholas largely ignores the fact that his counsel requested this
release at a detention hearing, after the court accepted his no contest pleas
and found the supplemental allegations to be true. Nicholas offers no legal
authority, and we are aware of none, that establishes the juvenile court erred


                                       15
when it declined to release him to his mother at that time and instead chose
to order a psychological assessment of Nicholas, await the probation
department’s dispositional recommendation and conduct a disposition
hearing before determining what placement or commitment was in Nicholas’
best interest.
      Furthermore, at the disposition hearing, Nicholas’ counsel did not offer
Muir Wood as a placement option for Nicholas and did not recommend any
such facility that would accept Nicholas at the time of that hearing. In fact,
the court clarified, “But if I hear you right, what you’re saying is, well, we
haven’t done that yet. We hope to get a package together sometime. We
don’t know when we’ll get the package together, and we don’t know what the
package will look like.” Thus, the court had no less restrictive alternative
disposition to YOTP to consider that provided some treatment for Nicholas’
issues. Further, as the court indicated, if circumstances changed and a
facility became available that offered a better placement than YOTP, it would
consider a modification of its order; and Nicholas was entitled to petition the
court for a modification to the dispositional order. (§ 778, subd. (a)(1).)
      In short, in this case there is sufficient evidence in the record, including
Nicholas’ demonstrated danger to himself and to the public, and his history of
poor performance on probation and in prior residential programs, to support
the juvenile court’s order committing Nicholas to YOTP. The juvenile court
did not abuse its discretion.
                                        II.
     The Juvenile Court Did Not Impermissibly Delegate Judicial
              Authority to the Probation Department.
      At disposition, the juvenile court ordered Nicholas to successfully
complete all phases of YOTP as determined by the probation department, and
scheduled a review hearing in four months. Because Nicholas could return to


                                        16
home supervision if he successfully completed the necessary YOTP phases, he
argues the juvenile court improperly delegated to the probation department
the duty to determine the length of his commitment, in violation of the
separation of powers clause of the California Constitution and his state and
federal due process rights. Contrary to his view, we agree with Division Five
of this court that such a commitment to YOTP does not constitute an
improper delegation of authority for the simple reason that while a probation
officer will initially determine whether Nicholas successfully completes
phases of the YOTP program, “ ‘[t]he court clearly has the retained
jurisdiction to determine whether minor has done so.’ ” (See In re J.C. (2019)
33 Cal.App.5th 741, 744-745 (J.C.), quoting In re Robert M. (2013)
215 Cal.App.4th 1178, 1185.) Because we reject the premise on which
Nicholas’ constitutional arguments are based, we need not address those
arguments further. (See J.C., at p. 745.)
      The court in J.C. acknowledged that the probation department had
day-to-day supervision and control over a minor committed to YOTP. (J.C.,
supra, 33 Cal.App.5th at p. 745.) Still the court held, based on In re Robert
M., supra, 215 Cal.App.4th at p. 1185, that the department’s day-to-day
supervision and control was not improper because the court retained the
ultimate authority to determine whether and when minor successfully
completes YOTP, as demonstrated by the court’s scheduling of a YOTP
review hearing seven months after disposition. (J.C., at pp. 745-746.)
Furthermore, “at review hearings, minor may inform the juvenile court if he
disagrees with the probation officer’s assessment of his progress to date.” (Id.
at p. 747.)
      We find J.C. persuasive, and, on similar facts, reach the same
conclusion. Like J.C., here, the juvenile court scheduled a YOTP review



                                      17
hearing, in this case to occur four months after disposition. The juvenile
court thus retained authority to overrule any assessments by the probation
department upon Nicholas’ disagreement with probation’s findings. The
court did not delegate authority to determine the length of Nicholas’
commitment to the probation department.
                                        III.
  The Court’s Probation Condition Regarding Knives Is Overbroad.
      Nicholas next challenges the juvenile court’s imposition of a probation
condition that Nicholas “[n]ot . . . knowingly use or possess any knives or
dangerous/deadly weapons.” Nicholas argues this condition is
unconstitutionally overbroad because it prohibits his lawful use of knives for
eating. We agree to the extent the knives are not dangerous.
      At disposition, a juvenile court “may impose and require any and all
reasonable conditions that it may determine fitting and proper to the end
that justice may be done and the reformation and rehabilitation of the ward
enhanced.” (§ 730, subd. (b).) “ ‘Because of its rehabilitative function, the
juvenile court has broad discretion when formulating conditions of probation.
“A condition of probation which is impermissible for an adult criminal
defendant is not necessarily unreasonable for a juvenile . . . .” [Citation.] . . .
‘Even conditions which infringe on constitutional rights may not be invalid if
tailored specifically to meet the needs of the juvenile [citation].’ [Citations.]
But every juvenile probation condition must be made to fit the circumstances
and the minor.” (In re Binh L. (1992) 5 Cal.App.4th 194, 203.) “A restriction
is unconstitutionally overbroad . . . if it (1) ‘impinge[s] on constitutional
rights,’ and (2) is not ‘tailored carefully and reasonably related to the
compelling state interest in reformation and rehabilitation.’ ” (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.)



                                        18
      Whether a probation condition is unconstitutionally overbroad presents
a question of law that is subject to de novo review. (See In re Shaun R.
(2010) 188 Cal.App.4th 1129, 1143).4 A probation condition that prohibits
owning, possessing, or using any dangerous or deadly weapons, including
firearms, knives, and other concealable weapons, has been held to be
constitutionally sound. (People v. Moore (2012) 211 Cal.App.4th 1179.)
      The juvenile court’s prohibiting Nicholas’ knowing “use or possession of
knives or dangerous/deadly weapons” is understandable in light of his
attempt to stab his friend with a knife he obtained from his kitchen and the
evidence of his repeatedly cutting of himself. Nonetheless, the condition as
written is overbroad because some “knives,” such as unserrated, dull butter
knives, do not necessarily present a danger to Nicholas or to others. (See,
e.g., In re B.M. (2018) 6 Cal.5th 528, 536 [evidence insufficient to show butter
knife was a deadly weapon].) Therefore, we will order the juvenile court to
modify the relevant probation condition to read that Nicholas “[n]ot
knowingly use or possess dangerous/deadly weapons, including knives.”
                                      IV.
            The Maximum Term Imposed Must Be Corrected.
      Nicholas argues, and the People agree, that the court erred in
calculating his maximum term and custody credits. We agree.
      A. The Maximum Term Should Be Four Years and Eight
         Months.
      Welfare and Institutions Code section 726, subdivision (d)(1) provides
that a minor may not be held in physical confinement for longer than the
maximum term of imprisonment that could be imposed on an adult convicted

      4  The court in In re Shaun R. held that “the failure to object on the
ground that a probation condition is unconstitutionally vague or overbroad is
not forfeited on appeal.” (In re Shaun R., supra, 188 Cal.App.4th at p. 1143.)
Thus, we consider Nicholas’ argument even though he did not raise it below.

                                       19
of the same offense. The maximum term for assault by means of force in
violation of Penal Code section 245, subdivision (a)(4), Nicholas’ principal
offense, is four years. (Pen. Code, § 245, subd. (a)(4).) The middle term for
felony vandalism, Nicholas’ subordinate offense, is two years. (Pen. Code,
§§ 594, subd. (b)(1), 1170, subd. (h).) A juvenile court may impose only one-
third of the middle term on a subordinate offense (In re Eric J. (1979)
25 Cal.3d 522, 536-538), which in this case should have been eight months.
Therefore, Nicholas’ maximum term should have been set at four years and
eight months, not five years. We will order a correction of his maximum
term.
        B. Nicholas’ Custody Credits Should Be Corrected to 30 Days.
        “[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 81 Cal.App.4th 1058, 1067.) Nicholas was taken into
custody on August 6, 2019, and remained in custody through the disposition
hearing on September 4, 2019, a total of 30 days. However, the court
awarded him custody credits of only 29 days. Therefore, Nicholas’ credits
must be corrected to 30 days.5
                                       IV.
   Nicholas Has Forfeited His Restitution Fine Claim and Has Not
           Established Ineffective Assistance of Counsel.
        The juvenile court ruled that Nicholas and his parents were liable to
pay a $200 restitution fine under section 730.6, to which Nicholas’ counsel did
not object. Nicholas now claims that, under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), this fine violates his constitutional rights to


        5 The People do not argue Nicholas has forfeited these claims by failing
to first raise them below and, therefore, we do not address that issue.


                                        20
due process and equal protection and that, if he has forfeited this claim, he
received ineffective assistance of counsel (IAC). The People disagree with all
of his arguments.6 We conclude Nicholas forfeited his claim7 and did not
receive IAC.
      The juvenile court set the $200 restitution fine amount without
objection by appellant and without inquiring into his ability to pay.
Section 730.6 provides that a restitution fine “shall be imposed regardless of
the minor’s inability to pay”; for felony offenses, the amount of the fine is at
the court’s discretion and shall not be less than $100 or more than $1,000.
(§ 730.6, subds. (c), (b)(1).) Section 730.6 further provides that, in setting the
amount of the fine, the juvenile court “shall consider any relevant factors
including, but not limited to, the minor’s ability to pay, the seriousness and
gravity of the offense and the circumstances of its commission, any economic
gain derived by the minor as a result of the offense, and the extent to which
others suffered losses as a result of the offense.” (Id., subd. (d)(1).)
Section 730.6 also states that “[t]he consideration of a minor’s ability to pay
may include his or her future earning capacity” and that “[a] minor shall bear
the burden of demonstrating a lack of his or her ability to pay.” (Id.,
subd. (d)(2).)
      The juvenile court imposed a fine close to the $100 minimum fine it was
required to impose. Nicholas could have sought to have the fine reduced to
the minimum of $100 based on inability to pay, but he failed to make any

      6 Nicholas contends that the People, despite their arguing that he did
not receive ineffective assistance of counsel, do not raise forfeiture. Although
the People do not refer to “forfeiture,” their opposition to his IAC claim had
no other purpose but to argue forfeiture. Therefore, we reject Nicholas’
contention.
      7 Dueñas was decided in January 2019, well before the September 2019
disposition hearing.

                                        21
attempt to meet his statutory burden of demonstrating a lack of ability to pay
this fine. By failing to do so, he forfeited his right to challenge the fine on
appeal.8
      As for his IAC claim, “ ‘ “[t]o establish ineffective assistance of counsel,
a defendant must show that (1) counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms,
and (2) counsel’s deficient performance was prejudicial, i.e., there is a
reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.” ’ ” (People v. Rices (2017) 4 Cal.5th
49, 80.)
      “Usually, ‘ineffective assistance [of counsel claims are] more
appropriately decided in a habeas corpus proceeding.’ ” (People v. Hoyt (2020)
8 Cal.5th 892, 958 (Hoyt).) “But . . . a defendant may raise the issue of
counsel’s effectiveness as a basis for a new trial, and, to expedite justice, a
trial court should rule ‘[if] the court is able to determine the effectiveness
issue on such motion.’ ” (Ibid.) “ ‘ “[If] the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged[,] . . . unless
counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation,” the claim on appeal must
be rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; see also In
re S. D. (2002) 99 Cal.App.4th 1068, 1077 [ineffective assistance of counsel
can be raised on direct appeal only “in the rare case where the appellate




      8  Nicholas argues that in any event Dueñas entitles him to an ability to
pay hearing. As the People point out, an appellate court in In re M.B. (2020)
44 Cal.App.5th 281, 282 recently rejected the argument that Dueñas applies
to restitution fines imposed in juvenile proceedings. But we need not decide
this issue because of Nicholas’ forfeiture.

                                        22
record demonstrates ‘there simply could be no satisfactory explanation’ for
trial counsel’s action or inaction”].)
      Nicholas does not show there can be no satisfactory explanation for
counsel’s failure to object to the $200 restitution fine. For example, counsel
could have known that Nicholas was able to pay this fine, which was only
$100 over the amount the court was required to impose regardless of
Nicholas’ ability to pay. Therefore, we reject Nicholas’ IAC claim.
                                 DISPOSITION
      The orders appealed from are affirmed, except that we remand this
matter to the juvenile court with instructions to modify Nicholas’ probation
condition regarding his use of knives to read that he “[n]ot knowingly use or
possess dangerous/deadly weapons, including knives,” change Nicholas’
maximum term to four years and eight months and change his custody
credits to 30 days.




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                                   STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.




In re Nicholas P. (A158426)


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