Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD06-119
NICHOLSON, J.
B.P. (the minor) was adjudicated a ward of the juvenile court after she pled no contest to first degree burglary (Pen. Code, § 459) and vehicle theft (Veh. Code, § 10851, subd. (a)). Thereafter, two notices of hearing were filed pursuant to Welfare and Institutions Code section 777, subdivision (a)(2), each alleging that the minor had not returned home and her whereabouts were unknown. The minor admitted she had not returned home on one of these occasions, and the juvenile court ordered her into out-of-home placement.
Further undesignated statutory references are to the Welfare and Institutions Code.
On appeal, the minor contends the juvenile court erred by ordering her removed from the home of her grandmother and by failing to declare the vehicle theft offense a felony or a misdemeanor. We agree with only the second of these contentions, and remand the matter for the juvenile court to declare the vehicle theft either a felony or a misdemeanor.
PROCEDURAL AND FACTUAL BACKGROUND
In February 2006, the then 14-year-old minor pled no contest to first degree burglary and vehicle theft. The remaining counts in the 15-count petition -- charging an array of crimes that included theft offenses of various sorts, vandalism, resisting peace officers and criminal gang activity -- were dismissed with a “Harvey” waiver.
People v. Harvey (1979) 25 Cal.3d 754, held that, for purposes of aggravating or enhancing a defendant’s sentence, a trial court may not consider charges that have been dismissed as part of a plea agreement unless those charges are transactionally related to the offenses admitted or there is a “contrary agreement.” (Id. at pp. 758-759.)
According to the probation officer’s report, the burglary charge stemmed from an incident in which the minor and four others forced entry into a residence, where they ate food and stole wine. The victim’s car keys and $20 were also missing from the residence. With regard to the vehicle theft offense, the minor and friends stole money and two vehicles from the minor’s grandmother. In addition, in 2005, the minor had pled no contest to charges of vandalism, second degree burglary and theft.
The minor admitted to the probation officer that she had taken her grandmother’s and great-grandmother’s vehicles without permission on numerous occasions. She also admitted to daily marijuana use and involvement in gang activity.
The probation officer considered recommending out-of-home placement for the minor, but due to her young age and the fact that she had not had an opportunity to participate in community-based services, the probation officer recommended that the minor remain in the custody of her grandmother, who was her legal guardian, with a period of time on an electronic monitoring program. The minor’s case plan identified numerous problems the minor had to address, including anger management, poor impulse control, gang identification, family conflict, substance abuse, mental health problems and delinquent behavior. The plan also identified numerous services “that could be provided” to maintain the minor in the home, such as intensive supervision, gang violence intervention, periodic home visits, family counseling, and a substance abuse program. According to the case plan, the probation officer was to conduct “[m]onthly visits” and monthly monitoring of the minor’s compliance with the case plan.
At the dispositional hearing in March 2006, the court adjudged the minor a ward and adopted the recommendations of the probation officer.
In September 2006, a notice of hearing was filed concerning the minor, alleging she had not returned home after school and her whereabouts were unknown. The minor was arraigned on the new allegations four days later.
A second notice of hearing was filed in October 2006, alleging that the minor again had failed to return home. The minor appeared before the juvenile court in custody nearly three weeks later and entered an admission to these allegations. In separate proceedings, the juvenile drug court ordered a mental health evaluation of the minor.
The minor told the probation officer that, during her most recent period away from her grandmother’s home, she used marijuana and the drug ecstasy. She explained that she left her grandmother’s house after they had arguments. The minor acknowledged that her involvement in juvenile drug court had helped her but believed that a return to her grandmother’s home would lead to the same outcome that she currently was facing. She felt she would benefit from out-of-home placement “to get herself back on track.”
The minor’s grandmother, however, felt that the minor would benefit from psychiatric treatment and group counseling, as well as continued participation in drug court, and that she should be returned to the grandmother’s home. She expressed concern that the minor might be suffering from depression and anxiety, as well as “exceptionally low” self-esteem.
The probation officer concluded that “the minor would best be served by an out-of-home placement where she could receive intensive services for [her] myriad delinquency issues including substance abuse, gang affiliation, and repeated[ly] leaving home.”
At the dispositional hearing, the probation officer testified that an out-of-home placement could address the minor’s mental health problems, substance abuse, delinquency and gang affiliation with a “comprehensive group of services . . . in one location.” In addition, an out-of-home placement would help the minor “disassociate from some of these individuals who she has been related to by gang affiliation and by prior criminal behavior.”
The minor’s attorney questioned the probation officer about the services provided to the minor while she was placed with the grandmother. The probation officer testified that the minor “receive[d] some initial services that included recommendations for anger management, some gang counseling.” In June 2006, the minor was referred to juvenile drug court, which included substance abuse counseling and intensive supervision, after she began having problems complying with her terms of probation. The following month, the minor also began treatment at John H. Jones, a recovery program. The probation officer, who had worked for the probation department for only three months, acknowledged he did not know whether the minor ever began family counseling.
The minor’s grandmother testified that she had asked “probation” for family counseling and mental health referrals but they had not received them; nor had they received monthly visits from the probation officer. The grandmother felt that, as a result of the probation officer’s lack of assistance, she had not had an opportunity to utilize all of the resources available in the community to maintain the minor at home. The grandmother also testified that the psychological evaluation ordered by the juvenile drug court had not been completed and that an assessment would help identify the emotional problems underlying the minor’s behavior.
According to the grandmother, the minor had changed during the preceding 10 months, in that she had stayed “clean and sober” for several months and had attended 12-step meetings, a recovery program and counseling. The grandmother believed the minor would not run away again if returned to her care because she had “learned this time that each time it’s harder and scary and more dangerous.” The grandmother stated she had made arrangements for the family to work with a psychiatrist and a youth services agency. She also had arranged places for the minor to stay when they have disagreements as an alternative to running away.
Following testimony, the minor’s attorney noted the grandmother’s opposition to out-of-home placement and her belief that adequate services had not been provided. The attorney argued that a completed psychological evaluation was needed to determine the best resolution for the minor.
The juvenile court ordered out-of-home placement and adopted the recommendations in the probation report, which included a finding that the “guardian[] . . . cannot or ha[s] failed to provide proper maintenance, training or education.”
DISCUSSION
I
The minor claims the juvenile court abused its discretion by ordering out-of-home placement. We disagree.
Section 726, subdivision (a), provides that a minor cannot be removed from a parent or guardian unless the court makes one of the following findings: “(1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor’s parent or guardian.”
Here, the juvenile court adopted the recommended findings of the probation officer, which included a finding that the grandmother had failed to provide proper maintenance, training or education. The minor asserts that, “[i]n light of the probation department’s failure to follow through on its obligations to provide appropriate referrals for [the minor], there was no substantial evidence that [the grandmother] could not or had not ‘provided proper maintenance training, and education for [the minor].’”
We disagree with the minor’s contention that the probation officer failed to provide appropriate referrals. The minor initially received some gang counseling and a recommendation for anger management. Three months into her probation, the minor was being provided with a number of services, including juvenile drug court (which involved drug and alcohol counseling and intensive supervision) and treatment at a recovery program. The probation officer was not obligated to provide the minor with all recommended services as soon as probation commenced. In fact, imposing on the minor a myriad of drug programs and counseling services may well have been overwhelming and counterproductive to her success on probation. In light of the minor’s history, it was appropriate to focus on her substance abuse and gang affiliation first, as these appeared to be the most direct causes of her delinquent behavior. Unfortunately, the minor’s problems proved too great, ingrained, and varied to safely maintain her in the grandmother’s home.
To the extent there is any question whether the evidence supports the juvenile court’s finding that the grandmother failed to provide proper maintenance, training or education for the minor, any error in this regard is harmless because “a finding of a probation violation satisfies section 726, subdivision (b), which permits removing a minor from parental physical custody when a court finds the minor has been tried on probation in such custody and has failed to reform.” (In re Nathan W. (1988) 205 Cal.App.3d 1496, 1502; In re Robert M. (1985) 163 Cal.App.3d 812, 819.) The juvenile court’s reliance on a different basis for removing the minor from the grandmother’s home did not result in prejudice to the minor.
The minor also contends the juvenile court should not have proceeded with the dispositional hearing without the previously ordered mental health evaluation. However, the evaluation was not ordered by the juvenile court, but by the drug court, which was considering terminating the minor from the program. At the dispositional hearing, no one disputed that the minor suffered from mental health problems that must be addressed as part of her treatment in placement. What the minor fails to explain is how additional information concerning these problems might have affected the determination that she required out-of-home placement.
“A juvenile court’s commitment order may be reversed on appeal only upon a showing the court abused its discretion.” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) The juvenile court, here, did not abuse its discretion by ordering out-of-home placement.
II
The minor claims, and the People concede, that the juvenile court erred by failing to make a determination whether the minor’s vehicle theft adjudication was a felony or a misdemeanor. We agree.
Section 702 provides, in part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” Remand for compliance with section 702 is required where the juvenile court fails to make the required felony/misdemeanor declaration concerning a “‘wobbler’” offense and the record fails to show that the court was aware of its discretion to impose a misdemeanor sentence. (In re Manzy W. (1997) 14 Cal.4th 1199, 1208; In re Nancy C. (2005) 133 Cal.App.4th 508, 512.)
Vehicle theft can be a felony or a misdemeanor (Veh. Code, § 10851, subd. (a); Pen. Code, § 17, subds. (a), (b)), yet the juvenile court did not make an express determination as to whether the minor’s adjudication for this offense was a felony or a misdemeanor. As this determination affects the minor’s maximum term of confinement for purposes of certain out-of-home placements (see § 726, subd. (c)), the issue is properly before us in this appeal.
DISPOSITION
The matter is remanded with directions to the juvenile court to designate the minor’s vehicle theft adjudication a felony or a misdemeanor. In all other respects, the juvenile court’s orders are affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.