Filed 11/20/15
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION TWO


In re AMANDA A., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
        Plaintiff and Respondent,
v.                                                  A144797
AMANDA A.,                                          (Solano County
        Defendant and Appellant.                    Super. Ct. No. J-42562)



        Appellant Amanda A. appeals from orders of the juvenile court continuing her as a
ward of the court under Welfare and Institutions Code1 section 602 and committing her to
the custody of the probation officer for placement in New Foundations. She contends
there was insufficient evidence to support the court‟s finding that she resisted or
obstructed a peace officer; the court erred in failing to dismiss the section 602 petition,
which she claims impermissibly increased her maximum confinement time; and the court
abused its discretion in terminating her status as a section 300 dependent child and
adjudging her a delinquent minor. We agree with her first contention and therefore
reverse the orders.
                      STATEMENT OF THE CASE AND FACTS
        Appellant, 16 years old when the petition underlying this appeal was filed, has a
troubled history. Since 1999, her family has had 36 child welfare referrals from Lake,

        1
        Further statutory references will be to the Welfare and Institutions Code unless
otherwise specified.


                                              1
Shasta, Siskiyou and Solano Counties;2 it had five voluntary family maintenance cases
between 2002 and 2014 but did not fulfill any of the suggested or requested services. At
the time of these proceedings, appellant‟s parents were no longer in a relationship. Her
mother had a criminal history dating to 1995,3 but reportedly was currently stable, had
appropriate housing and was working full time. Appellant‟s father had a lengthy criminal
history including theft, drug, weapons and assault convictions,4 and appellant had a
restraining order against him.
       Prior to the present case, appellant was adjudged a ward of the Shasta County
Juvenile Court on September 29, 2009, after she admitted unlawfully causing a fire to a
structure (Pen. Code, § 452, subd. (c)). According to the probation report in the present
case, on April 12, 2012, the court found appellant not competent to assist in her defense
after she was referred for a competency evaluation but the doctor was unable to interview
her due to her uncooperativeness. Because of limited placement options, it was decided
that appellant would be best served by staying with her parents and seeking mental health
services in the community, and the wardship was terminated on May 2, 2012. Also in


       2
         These consisted of 16 general neglect referrals, two found substantiated, three
inconclusive, six unfounded and five “evaluated out”; nine physical abuse allegations,
one substantiated, one inconclusive, one unfounded and six evaluated out; six “At Risk,
sibling abused” allegations, one substantiated, two unfounded and two evaluated out;
three emotional abuse allegations, two unfounded and one evaluated out; seven
“Substantial Abuse” allegations, two substantiated and five evaluated out; one sexual
abuse allegation evaluated out; and one “Exploitation” allegation found inconclusive.
       3
         Appellant‟s mother had a juvenile arrest for petty theft and had been convicted of
delivering a check with insufficient funds twice in 2001 and 2002, and in 2004 had been
granted deferred entry of judgment, successfully completed in 2006, for being under the
influence of a controlled substance.
       4
         These consisted of a 1988 conviction for receiving stolen property, convictions
for petty theft, possession of a controlled substance and assault with a deadly weapon in
1993 to 1999, convictions for unlawful carrying and possession of a weapon and
possession of a controlled substance for sale in 1999 to 2003, a 2004 conviction for
possession of a controlled substance for sale, and convictions for being under the
influence of a controlled substance, cruelty to a child, assault with a deadly weapon and
possession of concentrated cannabis from 2009 to 2014.


                                             2
2012, appellant was granted informal probation for possession of marijuana (Health &
Saf. Code, § 11357, subd. (e)).
       Appellant reported that she was raped by an acquaintance at a party at age 12. In
2012, about age 14, she “fell in love with a 28-year-old man,” ran away from home, and
lived with him in various places in California for two years, selling drugs and prostituting
herself to survive. The boyfriend was physically and emotionally abusive. Appellant
admitted long term drug and alcohol abuse. She told the probation officer that she started
using drugs when she was about 14 years old, and did so daily, “whatever she can get her
hands on.”
       In April 2014, appellant was arrested in Reno, Nevada; she was reported to have
been living in a homeless community, prostituting and engaging in daily drug use. She
was returned to her mother‟s custody, then ran away again. On May 31, she was cited for
petty theft (Pen. Code, § 488) in Santa Clara County and placed at a facility, but ran away
several hours after being checked in.
       On June 10, 2014, appellant‟s mother reported to the police that appellant had
been pounding on the sliding glass door of her home, brandishing a small handgun and
demanding money. When she was refused, appellant hit her mother‟s car with a hard
object as she left, damaging the door. Appellant‟s mother said that appellant had run
away from a drug rehabilitation unit in Santa Clara the previous month and had since
been living on the streets in Vallejo. Appellant was arrested on June 19, after she was
contacted by police officers who found her loitering in an alley with two other people.
She appeared to be under the influence of alcohol, denied having identification and gave
a false name to the police, tried to run away, and was arrested. Asked again for her real
name, she gave her mother‟s name and birth date. She told nurses at the hospital where
she was taken for medical clearance that she had ingested methamphetamine and alcohol
prior to being stopped by the police.
       On June 20, 2014, the Solano County District Attorney filed a petition alleging
that appellant came within the juvenile court‟s jurisdiction under section 602 in that she
had committed one count of vandalism (Pen. Code, § 594, subd. (b)(2)(A), one count of


                                             3
exhibiting a firearm (Pen. Code, § 417, subd. (a)(2)), and one count of giving false
information to a police officer (Pen. Code, § 148.9, subd. (a)). The court referred the
case to the Department of Social Services and the probation department for a section
241.15 assessment to determine whether the case should proceed under the delinquency
or dependency system, and for an evaluation of competency under section 709. On July
23, consistent with the conclusion of the evaluator, the court found appellant competent.
       The section 241.1 report recommended that appellant and her family be afforded
services through the child welfare department because they did “not meet the criteria for
services offered via the probation department.” The court ordered county counsel to file
a section 300 dependency petition. On July 31, the court dismissed the section 602
petition and found that appellant would be best served under section 300. The court‟s
minute order indicates she was to be picked up by group home staff or a social worker,
but she “absconded from CPS placement within just a few hours.”
       Appellant was subsequently found to be in custody in Shasta County, having been
arrested on October 21 for intoxication. On October 23, at the suggestion of the court,
the prosecutor re-filed the section 602 petition alleging the three misdemeanor offenses
alleged in the June 20 petition. Appellant ran away when the social worker picked her up
from Shasta County, and a bench warrant was issued on October 24.
       On December 12, appellant was arrested in Shasta County for trespass (Pen. Code,
§ 602, subd. (o)(2)) and providing a false name to a peace officer (Pen. Code, § 148.9,
       5
           Section 241.1, subdivision (a), provides:
       “(a) Whenever a minor appears to come within the description of both Section 300
and Section 601 or 602, the county probation department and the child welfare services
department shall, pursuant to a jointly developed written protocol described in
subdivision (b), initially determine which status will serve the best interests of the minor
and the protection of society. The recommendations of both departments shall be
presented to the juvenile court with the petition that is filed on behalf of the minor, and
the court shall determine which status is appropriate for the minor. Any other juvenile
court having jurisdiction over the minor shall receive notice from the court, within five
calendar days, of the presentation of the recommendations of the departments. The
notice shall include the name of the judge to whom, or the courtroom to which, the
recommendations were presented.”


                                               4
subd. (b)). Shasta County declined to prosecute and appellant was transported to Solano
County and booked on the active warrant on December 16. On December 18, the court
referred the case for another section 241.1 report. Appellant filed a motion to suppress
evidence, arguing that the detention underlying the three misdemeanor counts was
unlawfully instituted and prolonged.
       On January 12, 2015, in an “addendum/memo to court,” the probation officer
reported that, after speaking with the social worker, it was agreed it would be in
appellant‟s best interest to afford her the services offered by the probation department.
Appellant objected that the memo was inadequate to satisfy the statutory requirement of a
section 241.1 report and argued that she should remain a section 300 dependent due to
her documented history of abuse, neglect and trauma. After a hearing on January 12, the
court held the matter would proceed under section 602, denied appellant‟s motion to
suppress, granted the prosecution‟s motion to dismiss counts 1 and 2 of the petition, and
sustained count 3, giving false information to a police officer.
       On February 5, 2015, the juvenile court adjudged appellant a ward of the court and
placed her on probation, finding that her welfare required taking custody from her parents
and ordering that she be placed in a suitable foster home or institution. Meanwhile, she
was committed to juvenile hall. As of February 20, the probation department was still
waiting for responses from group homes it had contacted.
       On February 27, the probation officer filed a notice of probation violation alleging
that appellant had violated the court‟s February 5 order by refusing to be released to the
group home. According to the probation officer‟s supplemental report, appellant was
interviewed on February 24 by a group home that accepted her into their program;
appellant agreed this group home would be a good fit for her and she was to be released
to the home on February 26. When the probation officer arrived to speak with appellant




                                              5
just prior to her release, however, appellant refused. She was not released “for fear that
she would be combative or run away from group home staff during transport.”6
       On March 10, the Solano County District Attorney filed a section 602 petition
alleging one count of misdemeanor obstructing a peace officer (Pen. Code, § 148, subd.
(a)(1)) based on her conduct with the probation officer. Appellant filed a demurrer,
arguing that a probation violation cannot be charged as a new charge in order to increase
confinement time, and asked the court to consider it as a motion to dismiss as well. The
demurrer was denied, and the motion to dismiss was denied without prejudice.
       At the hearing on March 20, Probation Officer Shannon West testified that when
she went to meet with appellant prior to appellant being released to the group home,
appellant said that she was going to refuse to go with the group home staff because she
had everything she needed in custody, she did not want to be on probation, and her
attorney said that if she waited in custody until April, she would go to child welfare and
be able to return home. West reminded appellant of their previous conversations, in
which appellant had said she wanted to “get her life together,” graduate from high school,
not be on the streets and stop using drugs, and they discussed appellant‟s previously
expressed fear of being released because it was too early in her recovery. The probation
officer urged appellant to give the program a try, but appellant “pretty much just was
closed off. She wasn‟t hearing it. She would shrug her shoulders, say she had everything
she needed in custody.” Seeing they were getting nowhere, West told appellant that she
was preventing her from being able to comply with the court‟s order and that she would
have to “put [appellant] back before the court for a violation” because she could not carry

       6
         As described in the probation officer‟s report, appellant “firmly indicated that
she would not go to a group home” and “explained that her attorney told her that if she
were to remain in custody until April and „max out my time‟ she would be allowed to go
back to the [c]hild [w]elfare system.” The probation officer reminded appellant about
previous conversations in which she had said that she wanted to remain clean and sober,
finish school and return home, and that she was “fearful of being released” but “willing to
work on herself in the group home.” Appellant remained unwilling to be released, saying
“ „I have everything I need in here [custody].‟ ” When told her release was planned for
shortly after the meeting, appellant “clearly stated she would refuse to be released.”


                                             6
out the order. Appellant said, “Do what you‟ve got to do.‟ ” West called the group home
to cancel the transportation. She did not let them come and attempt to get appellant into
the car because she was concerned that appellant would “outright refuse” or run away.
West testified that she would not have appellant “dragged out”: “[I]t needed to be an
amenable situation. And her willingness for treatment needed to be pretty high and
agreeable for me to release her, because she would be released from custody to
transportation staff, and I was unsure of what would happen if she was so against going
into placement.” West told appellant that group home staff were on the way to pick her
up but acknowledged that appellant did not disobey a directive to physically go with the
group home staff, physically refuse to come out of her room to talk to West, “hold onto a
chair,” or refuse to interview with the group home.
       The court sustained the probation violation and the section 602 petition. At
appellant‟s attorney‟s request, the court ordered another section 241.1 evaluation and, for
disposition, ordered the probation department to look into group homes specializing in
victims of sexual exploitation and into placement with appellant‟s grandmother.
       The Solano County Department of Health and Social Services and the probation
department filed an “Agreed Joint Assessment Report” recommending that appellant and
her family be afforded services solely through the probation department. Appellant was
unwilling to go to a group home placement. West had contacted several group homes
specializing in trauma and sexual exploitation of children and all had long wait lists. The
paternal grandmother wanted to have appellant live with her, but outpatient substance
abuse services were assessed to be insufficient and there were concerns about appellant‟s
runaway history and ability to complete treatment in a nonsecure environment.
Appellant‟s mother did not want her at home until appellant “ „gets help.‟ ” The most
appropriate placement was deemed to be New Foundations, where she could complete
substance abuse treatment, receive counseling, attend school, and begin to formulate
plans for the future. According to the 241.1 report, appellant said she began using
methamphetamine at age five; when pressed further because this seemed “unbelievable,”
appellant insisted, saying her use increased to “every day, all day since she was seven


                                             7
years old.” She said she began using marijuana at age seven and by age 12 was using
heroin every day, as well as “various opiates.” She said she consumes alcohol regularly,
had used cocaine experimentally, and overdosed on four occasions.
       Appellant objected to the 241.1 report and sought a stay of sentence pending
appeal, arguing that she should be a section 300 dependent. Appellant noted that aside
from providing false information to a police officer, her only alleged crime was the
“alleged 148(a)(1) based on her statement that she did not want to go to the group home.”
Appellant argued that based on her “documented history of abuse, neglect, and trauma, it
would be a pure legal fiction to say that [appellant‟s] dalliance with the court system is
based on her own delinquency and not of a systematic failure by both the child welfare
departments of various counties and, most notably her parents, to protect her basic human
rights.”
       At the hearing on April 6, 2015, the court held that the case would proceed under
section 602, explaining that the attempt to proceed under the dependency system had
failed when appellant ran away within hours of placement, and that the services appellant
needed were not available in the dependency system. The court continued appellant as a
ward and ordered that she be placed at the New Foundations program. Her maximum
period of confinement was one year and two months.
       Appellant filed a notice of appeal on April 6, 2015.
       On April 16, the probation department reported that appellant remained in juvenile
hall; there was a waiting list for New Foundations and appellant was expected to enter
that program on April 22.
       On April 20, appellant filed a petition for writ of supersedeas in this court. We
entered a temporary stay of the juvenile court‟s April 6 order.
       At a juvenile court hearing on April 24, the probation officer reported that
appellant had refused to enter New Foundations. In light of the temporary stay, the court
noted that appellant‟s custodial time prior to the April 6 court order would expire on
April 26, concluded that its earlier general placement order of February 5 was in effect,
and directed the probation department to attempt to place appellant in a group home by


                                              8
April 26. If it was unable to do so, appellant would have to be released to her mother or
any person authorized by her mother.
       In a declaration accompanying the People‟s opposition to the petition for writ of
supersedeas, filed on May 4, counsel stated she had been informed that appellant had
been released to her grandmother in Lake County on April 26, then left her
grandmother‟s home on May 2, with her current whereabouts unknown.
       On July 2, this court granted the petition for writ of supersedeas, staying the
juvenile court proceedings pending resolution of this appeal.
                                          DISCUSSION
                                                  I.
       Appellant contends the evidence was insufficient to support the court‟s finding
that she violated Penal Code section 148, subdivision (a)(1), because she did nothing
more than verbally refuse to go to the group home. According to appellant, she had a
constitutional right to express her disagreement with the placement, and her “act of
stating a preference regarding [her] own placement” did not rise to the level of the
criminal offense of resisting or obstructing a peace officer.
       The applicable standard of review is the same as for adult criminal appeals. (In re
Muhammed C. (2002) 95 Cal.App.4th 1325, 1328 (Muhammed C.).) “In addressing a
challenge to the sufficiency of the evidence supporting a conviction, the reviewing court
must examine the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—evidence that is reasonable, credible and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The appellate court
presumes in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v.
Pensinger (1991) 52 Cal.3d 1210, 1237.)” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“ „ “Reversal on this ground is unwarranted unless it appears „that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].‟



                                              9
[Citation.]” ‟ ” (People v. Manriquez (2005) 37 Cal.4th 547, 577, quoting People v.
Hughes (2002) 27 Cal.4th 287, 370.)
       Penal Code section 148, subdivision (a)(1), provides: “Every person who willfully
resists, delays, or obstructs any public officer, peace officer, or an emergency medical
technician, . . . in the discharge or attempt to discharge any duty of his or her office or
employment, when no other punishment is prescribed, shall be punished by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment.” “The legal elements of a
violation of section 148, subdivision (a) are as follows: (1) the defendant willfully
resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the
performance of his or her duties, and (3) the defendant knew or reasonably should have
known that the other person was a peace officer engaged in the performance of his or her
duties.” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.) “The offense is a
general intent crime, proscribing only the particular act (resist, delay, obstruct) without
reference to an intent to do a further act or achieve a future consequence.” (Muhammed
C., supra, 95 Cal.App.4th at p. 1329.)
       “Section 148 is most often applied to the physical acts of a defendant. (Cf. In re
Andre P. (1991) 226 Cal.App.3d 1164, 1175.) For example, physical resistance, hiding,
or running away from a police officer have been found to violate section 148. (People v.
Allen (1980) 109 Cal.App.3d 981, 986-987; see In re Gregory S. (1980) 112 Cal.App.3d
764.) But section 148 „is not limited to nonverbal conduct involving flight or forcible
interference with an officer‟s activities. No decision has interpreted the statute to apply
only to physical acts, and the statutory language does not suggest such a limitation.‟
(People v. Quiroga (1993) 16 Cal.App.4th 961, 968 [(Quiroga)].)” (Muhammed C.,
supra, 95 Cal.App.4th at pp. 1329-1330.)
       In sustaining the petition in the present case, the juvenile court easily found that
West was a probation officer, a probation officer is a peace officer (Pen. Code, § 830.5,
subd. (a)), and appellant knew West was a probation officer engaged in effecting
appellant‟s placement. Appellant does not dispute these points. As to whether appellant


                                              10
willfully resisted, obstructed or delayed West in the performance or attempted
performance of her duties, the court noted that physical conduct was not required and
acknowledged that constitutionally protected speech could not be the basis for a violation
of Penal Code section 148. The court found that the speech at issue was not
constitutionally protected: “I mean, the speech consisted of a refusal to follow a lawful
directive that Ms. West was giving her.” Viewing West‟s duties as including effecting
the court‟s order for placement of a ward, the court found that appellant was “defiant”
and obstructed West in carrying out the court‟s order.
       Respondent relies upon two cases to illustrate how Penal Code section 148 can be
violated without a component of physical resistance. In Muhammed C., supra, 95
Cal.App.4th at page 1328, while police officers were processing the car of a person they
had arrested and placed in the back of a patrol car, the minor began to speak with the
arrestee through the open patrol car window and an officer ordered the minor to step
away. The minor continued his conversation and other officers ordered him away; the
minor then extended his right hand, palm toward the officers, and an officer told him to
step away or he would be taken to jail. (Ibid.) As one of the officers began to approach,
again ordering the minor to step away, the minor walked toward the officer and was
escorted across the street. (Ibid.) There, during a brief verbal exchange with a fourth
officer, that officer grabbed the minor‟s hand and announced he was under arrest, the
minor pulled his arm away and other officers grabbed him. (Ibid.)
       Rejecting the argument that the minor‟s conduct did not amount to a violation of
Penal Code section 148 because he did nothing to prevent the detention or arrest of the
person in the patrol car and posed no safety threat, the Muhammed C. court held that the
facts supported a reasonable inference that the minor willfully delayed the officers‟
performance of duties by refusing to step away from the patrol car. (Muhammed C.,
supra, 95 Cal.App.4th at pp. 1329-1330.) The court explained: “Appellant affirmatively
responded to the police orders with defiance. Though appellant has a benign
interpretation of his hand gesture, the trial court was entitled to interpret the gesture as
one of defiance and we must accept the interpretation in support of the trial court‟s


                                              11
finding. Similarly, appellant‟s point that he should not be criminally culpable for doing
no more than temporarily distracting the officers from the performance of duties is
simply an interpretation of the evidence. The trial court was entitled to conclude that
appellant‟s defiant behavior constituted more than a temporary distraction. That
appellant did not pose a safety threat or a threatened interference with the officers‟
investigation, as appellant urges, is simply circumstantial evidence from which appellant
could argue that he did not delay the officers.” (Id. at p. 1330.) In short, the minor
violated Penal Code section 148 by disobeying police orders to step away from the patrol
car in a manner that, while involving only a hand gesture communicating defiance and no
threat of violence, distracted and delayed the officers from performing their duties. 7
       In Quiroga, supra, 16 Cal.App.4th at page 961, police officers investigating a
complaint about a noisy party smelled marijuana and saw a person with what appeared to
be a marijuana cigarette, then entered and asked for the cigarette. The defendant
approached and an officer ordered him to sit back down; the defendant argued, telling the


       7
         Appellant attempts to distinguish Muhammed C. on the basis that, in addition to
the hand gesture and refusal to step away from the patrol car, the minor physically pulled
his arm out of an officer‟s grasp. This fact, however, played no part in the court‟s
discussion and was separated in time from the events the court did discuss. As related in
the “background” section of the opinion, the minor pulled his arm away from Lieutenant
Lumpkin‟s grasp only after three other officers ordered the minor to step away from the
patrol car, the minor made the hand gesture, one of the officers began to cross the street
toward the patrol car and again ordered the minor to step away, and the minor walked
toward the officer and was escorted across the street. In explaining its conclusion that “a
reasonable inference could be drawn that appellant willfully delayed the officers‟
performance of duties by refusing the officers‟ repeated requests that he step away from
the patrol car,” the court stated, “three officers ordered appellant five times to step away
before appellant complied; they had interrupted processing [the arrestee‟s] car to attend to
appellant; and Officer Baggett specifically affirmed that the elapsed time had delayed the
Robinson investigation.” (Muhammed C., supra, 95 Cal.App.4th at p. 1330.) The facts
discussed by the Muhammed C. court in upholding the determination that the minor
violated Penal Code section 148 were exclusively those related to his conduct before he
eventually complied with the orders to step away from the car; his physical pulling away
occurred after this compliance, in an interaction with a different officer, was never
mentioned in the court‟s discussion.


                                             12
officers they could not come in without a warrant, before complying with the order. (Id.
at p. 964.) Once sitting, the defendant engaged in some furtive movements and when
ordered to put his hands on his lap, was “uncooperative” before “finally” complying.
Officers found a plastic bag containing cocaine under the cushion of the couch where the
defendant had been reaching, and arrested him. The defendant refused to tell the officer
his name both before and after arriving at the jail for booking, acknowledging his identity
only when a correctional officer recognized him about 30 minutes after his arrival for
booking.
       Quiroga upheld the conviction under Penal Code section 148 based on the
defendant‟s refusal to provide his name during booking, finding that the refusal
“unquestionably served to resist, delay and obstruct the responsible peace officer in the
discharge of his duties.”8 (Quiroga, supra, 16 Cal.App.4th at p. 972.) The defendant‟s
other conduct, however, was not sufficient to support the charge: The court refused to
view Penal Code section 148 as criminalizing the failure to comply with police orders
“with alacrity,” the defendant had a constitutional right to dispute the officer‟s actions
verbally, and his refusal to give his name before arriving at the jail did not thwart or delay
his arrest or booking. (Quiroga, at p. 966.)
       The present case differs from Muhammed C. and Quiroga in significant details.
Appellant told West that she refused to go to the group home when West told her group
home staff were on their way to pick her up. But at the point she refused, the directive
with which she did not comply—to go to the group home—concerned a future (albeit
imminent) situation. The group home personnel had not yet arrived; appellant did not
refuse a directive to get into the waiting vehicle. She simply stated her intent to refuse to




       8
        This would not have been the case if the offense for which the defendant had
been arrested had not been a felony, as other statutes address the consequences of
nondisclosure in the context of minor offenses and Penal Code section 148 applies only
“ „when no other punishment is prescribed.‟ ” (Quiroga, supra, 16 Cal.App.4th at
pp. 969-971.)


                                               13
go. This is a significant step removed from disobeying a direct and immediate order to
get away from the car (Muhammed C.) or provide a name (Quiroga) now.
       The difference is significant because there is no way to know (as opposed to
assume) that appellant in fact would have refused to get into the vehicle when it arrived.
Had West allowed the group home staff to arrive and instructed appellant to leave
juvenile hall with them, a direct refusal to get into the waiting vehicle would support
finding a violation of Penal Code section 148, subdivision (a)(1). As it was, appellant‟s
refusal did not actually obstruct West‟s performance of her duties, although it clearly
threatened to do so in the near future. The refusal did not even delay West, since the
group home staff were on their way but had not yet arrived.
       Aside from the fact that a statement of intent to refuse does not amount to actual
refusal, upholding the juvenile court‟s finding on the facts presented here would
effectively condone criminal charges based on a peace officer‟s subjective evaluation of a
subject‟s oppositional attitude rather than the subject‟s actual conduct. In essence, West
made a subjective and speculative determination that appellant would disobey her
directive (and the court‟s placement order). West‟s testimony demonstrates the
speculative nature of her assessment: She testified that she did not allow the
transportation staff to arrive and attempt to have appellant get into their vehicle because
she was “concerned that she was going to outright refuse or she was going to run away
from the transportation staff. . . . I was unsure of what would happen if she was so
against going into placement.” West was concerned about what appellant might do;
appellant had not yet done any of the things West feared. Allowing such speculative
assessments to form the basis of criminal charges would create an obvious potential for
abuse of law enforcement officers‟ discretion, as such charges would be easy to make and
often difficult to refute.
       We are sympathetic with the position West was put in by appellant‟s behavior.
West did not want to force a confrontation; she recognized that the group home
placement could not succeed without some degree of acceptance by appellant; and
appellant‟s history demonstrated a clear potential for another runaway situation even if


                                             14
appellant did comply to the extent of leaving juvenile hall with the group home staff.
Allowing the situation to play itself out—having the group home staff arrive and waiting
to see whether appellant would refuse to get into the vehicle—very likely would have
been a waste of time and effort for all involved, and could have resulted in further
complications if appellant initially complied and then ran away. But none of these
considerations justify criminalizing a minor‟s expression of opposition that does not in
fact amount to resisting, delaying or obstructing a peace officer‟s performance of duty.
West could have allowed the transportation staff to arrive and seen whether appellant in
fact refused to leave. This course of action would not have required dragging appellant to
the car—the situation West and respondent urge was necessary to avoid: In the face of
the waiting transportation, appellant‟s statement of refusal to comply would have been
sufficient to establish the charged violation. Her statements of intent to refuse to comply
were not.
       We do not mean to condone appellant‟s conduct. Her characterization of her
conduct as simply expressing disagreement with the placement plan, “stating her
preference for an option counsel communicated to her” and engaging in a conversation is
not persuasive. West was not discussing options with appellant: The court had ordered a
placement, and West was there to oversee appellant‟s release from juvenile hall to the
custody of the group home staff. West told appellant that staff was on the way to pick
her up and, after attempting to persuade appellant to comply, warned her that she would
have to charge appellant with a violation because appellant was preventing her from
carrying out the court‟s order.
       Nor are we persuaded by appellant‟s attempt to liken her refusal to the
constitutionally protected speech discussed in Quiroga, supra, 16 Cal.App.4th at page
966. (See Muhammed C., supra, 95 Cal.App.4th at pp. 1330-1331.) Quiroga, in finding
that the defendant had a First Amendment right “to dispute Officer Stefani‟s actions,”
explained: “ „[T]he First Amendment protects a significant amount of verbal criticism
and challenge directed at police officers.‟ (Houston v. Hill (1987) 482 U.S. 451, 461.)
Indeed, „[t]he freedom of individuals verbally to oppose or challenge police action


                                            15
without thereby risking arrest is one of the principal characteristics by which we
distinguish a free nation from a police state.‟ (Id. at pp. 462-463.) While the police may
resent having abusive language „directed at them, they may not exercise the awesome
power at their disposal to punish individuals for conduct that is not merely lawful, but
protected by the First Amendment.‟ (Duran v. City of Douglas, Ariz. (9th Cir. 1990) 904
F.2d 1372, 1378.)” (Quiroga, at p. 966.) Accordingly, the defendant could not be found
to have violated Penal Code section 148 by challenging the officers‟ entry into the
apartment.
       Appellant was not disputing the legality of the placement order or West‟s attempt
to effectuate the order. If, as her brief insists, she was “disputing West‟s choice for her
and stating her preference for an option counsel communicated to her”9 any basis for her
belief that she had a choice in the matter was negated when West told her that her refusal
was preventing West from implementing the court‟s order and the basis of a violation.
Appellant knew there was a court order and she knew West was there to see it
effectuated, and she repeatedly stated her refusal to comply with it.
       Nevertheless, we are aware of no case suggesting that the statement of an intent to
refuse to comply with the directive of a peace officer is sufficient to satisfy the elements

       9
         As we have described, West related appellant having said that her attorney had
told her if she remained in custody until her confinement time ran out in April, she would
be put back into the child welfare system and would be able to return home. Noting
appellant‟s attorney‟s comment at the hearing on February 20, 2015, that she “hope[d]
she gets placed as soon as possible,” respondent asserts that “either counsel
misrepresented her position to the court regarding appellant‟s placement, or appellant
misrepresented counsel‟s views to the probation officer.” The aspersion is unfounded
and unnecessary. Appellant‟s remark had a basis in reality: As the outcome of this case
ultimately demonstrated, it was true that if she was not placed in a group home before
expiration of her maximum confinement time, appellant would remain in juvenile hall
until released home. Counsel may have informed appellant of this without describing it
as an “option” appellant could exercise, and there would be nothing inconsistent about
counsel hoping for a prompt placement and recognizing the consequence of it not
happening. Appellant could have misunderstood what counsel told her. Certainly
nothing in the record supports the inference of intentional misrepresentation respondent
asks us to draw.


                                             16
of the criminal offense defined in Penal Code section 148, subdivision (a). Further, if the
facts here are sufficient, it is difficult to imagine what refusal to follow the directive of a
probation officer (or, say, a corrections officer, who is also a peace officer under Pen.
Code, § 830.5, subd. (a)) would not constitute a criminal offense. Even a comparatively
minor refusal to comply could result in the delay or obstruction of a peace officer‟s
ability to perform his or her duties.
       In sum, appellant‟s behavior was oppositional and impermissible; even she does
not suggest it did not amount to a probation violation. But it did not rise to the level of
the crime of resisting a peace officer.10
                                              II.
       Appellant additionally argues that the juvenile court abused its discretion in
terminating her status as a dependent under section 300 and adjudging her a ward under
section 602. As a general rule, a child who qualifies as both a dependent and a ward of
the juvenile court cannot be both. (In re M.V. (2014) 225 Cal.App.4th 1495, 1505.) “We
review the juvenile court‟s determination under section 241.1 for abuse of discretion. (In
re Joey G. (2012) 206 Cal.App.4th 343, 346 . . . .) „To show abuse of discretion, the
appellant must demonstrate the juvenile court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a miscarriage of justice.‟ (Ibid.)
Throughout our analysis, we will not lightly substitute our decision for that rendered by
the juvenile court. Rather, we must indulge all reasonable inferences to support the
decision of the juvenile court and will not disturb its findings where there is substantial
evidence to support them. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)” (In re
M.V., at pp. 1506-1507.)




       10
          Having reached this conclusion, it is not necessary for us to address appellant‟s
second contention, the court should have dismissed the petition in “the interests of justice
and the welfare of the person who is the subject of the petition” (§ 782) because the
petition impermissibly increased her maximum confinement time from six months to one
year and two months.


                                              17
       Appellant contends the juvenile court abused its discretion in treating her as a
delinquent whose primary problem is substance abuse rather than as victim of abuse and
sexual exploitation. Quoting the juvenile court‟s statement that she had been “abusing
drugs her whole life, which has led her to the unfortunate circumstances of being yet
another victim on the streets,” appellant argues that she did not start using drugs until she
was 12 years old, after the first time she was raped, and that the court improperly blamed
her for her own victimization rather than seeing her as the victim of her parents, the
rapist, the 28-year-old she ran away with, and whoever supplied her with drugs.
       The court considered the question of which system this case should proceed under
on several occasions. The first section 241.1 report recommended providing services
through the child welfare department and the court dismissed the section 602 petition,
finding appellant would be best served under section 300. Appellant absconded from her
placement within a few hours.
       After appellant was arrested in Shasta County for intoxication, the court suggested
the prosecutor re-file the section 602 petition. Appellant ran away when the social
worker picked her up from Shasta County and was later returned to Solano County after
another arrest. The court referred the case for another section 241.1 assessment and the
probation officer reported in an “addendum/memo to the court” that the probation officer
and social worker agreed it would be in appellant‟s best interests to offer services through
the probation department “considering the totality of the circumstances.”11 The court
held the case would proceed under second 602. Finally, after the court sustained the
second section 602 petition, the court obtained another section 241.1 assessment. The
joint recommendation was to proceed under section 602 because the “minor‟s delinquent
behavior, poor decision making, including but not limited to her runaway behaviors, and
substance abuse issues are the primary treatment concerns in this case” and the most
appropriate placement was New Foundations, a secure environment in which she could

       11
         As indicated above, appellant objected that the memo was inadequate to satisfy
section 241.1, and that she should remain in the dependency system due to her history of
abuse, neglect and trauma.


                                             18
“complete substance abuse treatment and receive additional individual counseling to
address issues related to trauma,” as well as attend school and “begin to formulate a plan
for her future regarding completing her high school education.”
       Appellant complains that the court put too much focus on her substance abuse and
too little on her physical abuse and exploitation. She notes that the court never addressed
section 300, subdivision (b)(2), which includes within the definition of a dependent child
of the court “a child who is sexually trafficked, as described in Section 236.1 of the Penal
Code, or who receives food or shelter in exchange for, or who is paid to perform, sexual
acts described in Section 236.1 or 1165.1 of the Penal Code, and whose parent or
guardian failed to, or was unable to, protect the child . . . . These children shall be known
as commercially sexually exploited children.”
       The court‟s remarks make clear that it did not ignore appellant‟s traumatic history.
Describing the case as “heartbreaking,” the court stated: “I don‟t think there‟s anybody
in this courtroom who would disagree that she‟s the victim. [Appellant] is the victim.
She‟s the victim of a household that gave her no real advantage. Yes, indeed, she‟s got a
restraining order against her father. And, yes, indeed, her mother essentially has
abandoned her. [¶] According to her own account, she‟s been abusing drugs her entire
life, which has led her to the unfortunate circumstances of being yet another victim on the
streets. She hasn‟t been in school in two years. She certainly doesn‟t have a normal life.
[¶] . . . [¶] And, yes, indeed, I understand why she would like to be a 300, and why the
300 system, at least on paper, looks like that would be a fit. But we found out very
quickly that it‟s not. We tried that, and she ran within eight hours. And I can only
conclude that the reason that she runs—I mean, is she really running so she can be out on
the streets and be victimized more? I don‟t think so. I think she‟s running for the drugs,
and the drugs lead her to the circumstances that lead her to be a victim again. And what
I‟d like to do is try to stop this circle that she‟s in and give her an opportunity to find her
way. [¶] I don‟t think we can do it with the 300 system. I agree with the report and
recommendation jointly made. [¶] And, yes, indeed, as far as her grandmother is
concerned, yes, that is someplace that I would like to see her end up. But as of right now,


                                              19
that is not going to give her the help that she needs [¶] I think her problems are primarily
drug-related. I think that this is really the only realistic way that we can help her. I
recognize that she doesn‟t want that. I recognize that she views it as a form of
punishment. [¶] But I want to assure her that that‟s not my intention, because I do
believe that she is the victim. I want to get her some help, the help that she needs.”
       We do not read the court‟s remarks as blaming appellant for her delinquent
behavior or as minimizing her victimization. Rather, we understand both the joint
recommendation in the 241.1 report and the court as recognizing that both appellant‟s
delinquent behavior and her substance abuse were entrenched: She was in desperate need
of substance abuse treatment, and, given her history of running away, she was not going
to get it in a nonsecure environment. The point was perhaps best made by appellant
herself after the court explained the reasons for keeping her within the section 602 system
and sending her to New Foundations: When the court told appellant it hoped she would
be able to take advantage of the opportunity to change her life, appellant responded, “The
bottom line is, no matter what you guys do, I‟m still going to do what I want to do at the
end of the day. If I want to go out and get high, then I‟ll go out and get high.” Appellant
was already 17 years old, she was not willing to go to a group home, and the group
homes specializing in trauma and sexual exploitation of children had long wait lists. The
court‟s conclusion that appellant was in need of services available only in the section 602
system, not in the dependency system, was not only within its discretion but inescapable.
                                      DISPOSITION
       The orders are reversed and the matter remanded to the juvenile court for
proceedings consistent with the views expressed herein.




                                              20
                                 _________________________
                                 Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




In re Amanda A. (A144797)




                            21
Trial Court:                            Solano County Superior Court

Trial Judge:                            Hon. D. Scott Daniels


Attorney for Defendant and Appellant:   By appointment of the Court of Appeal
                                        Under the First District Appellate Project
                                        Maureen M. Bodo

                                        Lesli M. Caldwell
                                        Solano County Publice Defender

                                        Cheryl M. McLandrich
                                        Deputy Public Defender

Attorneys for Plaintiff and Respondent: Kamala D. Harris
                                        Attorney General of California

                                        Gerald A. Engler
                                        Chief Assistant Attorney General

                                        Jeffrey M. Laurence
                                        Acting Senior AssistantAttorney General

                                        Donna M. Provenzano
                                        Supervising Deputy Attorney General

                                        Joan Killeen
                                        Deputy Attorney General




                                          22
