Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL023669, Richard E. Behn, Judge.
Daphne Sykes Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobek and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Adam A., previously declared a ward of the court, was found guilty of reckless driving and driving without a license. He appeals from a judgment that ordered him committed to a juvenile facility for 30 days, delayed the issuance of a driver’s license, and continued him on probation. Adam argues the commitment order must be reversed because the juvenile court never made a finding necessary before any minor may be removed from parental custody. He also contends the law does not authorize delaying a license for the offenses in issue. We agree with him on the latter point and are unable to find anything in the record to contradict his argument on the former point, so we must reverse.
The instant appeal concerns the second of two wardship petitions against Adam. Since the juvenile court considered the incident that led to the first petition in making the order now challenged, we begin with that incident.
On December 8, 2005, 12-year-old Adam pulled a switchblade knife on a student who was arguing with a friend of his at school, saying ‘“you’d better shut up or else.’” When the accosted student told Adam to “‘chill,’” he put away the knife and said he was “kidding.” The victim’s mother called the school the next day and a campus supervisor was sent to find Adam.
As they were walking to the vice-principal’s office, Adam threw a switchblade knife into the bushes. Adam admitted the incident to the vice-principal, and later to a police officer assigned to the school. Adam said he never intended to hurt the victim, and when he saw the victim had taken the threat seriously, he closed the knife, told him he was only “messing around,” and they shook hands. Adam was detained, taken to the police station, and later released to his mother. This incident led to the first wardship petition but, before it was filed, the incident that prompted the second petition occurred.
On January 25, 2006, around 4:00 a.m., Officer Joseph Connell of the Placentia Police Department was on patrol and noticed a Chevrolet Suburban leave a 7-Eleven parking lot and make a turn without signaling. Connell followed at a distance, ran a registration check, and when it came back showing an outstanding arrest warrant, accelerated in anticipation of stopping the Suburban. At that point, the driver of the Suburban looked out his rear window, then sped off at 85 to 90 miles a hour. With Connell in pursuit, the Suburban made two more illegal turns, one without signaling and the other running through a red light, and then entered the parking lot of an apartment complex. The Suburban’s driver turned off his lights, drove through the lot, stopped, and dashed out of the vehicle, leaving the door open and the engine running. Connell was still 30 or 40 yards behind. Other officers arrived in response to Connell’s call for assistance and searched for the driver without success. The Suburban was impounded. The police in a neighboring city checked at the address listed for the registered owner (believed to be “Lorraine M.”), but were told she no longer lived there.
The following afternoon, January 26, 2006, Sergeant Scott Millsap was at work at the Placentia Police Department when Adam and his mother (Lorraine N.) came in. Millsap went up to the counter and introduced himself. Ms. N. turned to Adam and said ‘“tell him what you told me.’” Adam told Millsap he was “driving the car.” Millsap asked what happened. The minor replied that he got bored in the early morning hours the day before and took his mother’s car to get something to drink at the 7-Eleven. He saw a police car, got scared because he did not have a driver’s license, and tried to get away. Millsap asked Adam where he had gone, and how fast he had been driving. Adam recited the same route and events reported by Connell in his pursuit of the Suburban, and said he did not look at the speedometer, but he knew he was driving above the speed limit. Millsap said Adam told him “he knew it was wrong and apologized to me at that time.” Later that afternoon, Millsap released the Suburban to Ms. N.
The Orange County District Attorney filed the first petition to declare Adam a ward of the court (Welf. & Inst. Code, § 602) on February 22, 2006. It alleged Adam committed three misdemeanors – brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)), carrying a switchblade knife with a blade of two inches or more (Pen. Code, § 653k), and possession of a weapon on school grounds. (Pen. Code, § 626.10, subd (a).)
The second petition was filed on April 3, 2006. It, too, sought to declare Adam a ward of the court, alleging three more misdemeanors. They were unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)), reckless driving (Veh. Code, § 23103, subd. (a)), and driving a motor vehicle without a valid license (Veh. Code, § 12500, subd. (a).)
On April 6, 2006, Adam admitted the allegations of the first petition. The juvenile court sustained the petition, declared Adam a ward of the court, and placed him on probation.
The second petition was tried on June 20, 2006. The People’s evidence was as set out above. At the conclusion of the People’s case, the juvenile court dismissed the unlawful taking of a vehicle count on the ground there was no evidence Adam drove the Suburban without the owner’s permission. The evidence offered by the defense was as follows.
Adam’s brother, Jimmy A., testified that Phillip N., Lorraine’s husband, took the Suburban to drive to a friend’s house around 6:30 p.m. on the evening of January 24, 2006. Jimmy said he and Adam went to sleep in the bedroom they shared around midnight, he slept through the night, and when he woke up around 5:00 a.m., Adam was still asleep.
Adam denied driving the Suburban. He testified his mother told him that if he lied to the police, she would get her car back. The car was his mother’s only way to get to work, and his brother Jimmy’s only ride to school. Adam did not think he would get in trouble by lying, because his mother told him he would just get a ticket and she would pay it. Adam denied telling Sergeant Millsap the route driven by the Suburban, saying he had just answered yes or no to Millsap’s questions. But he admitted telling Millsap he was scared: “[Millsap] asked me why I . . . ran from the car, and I told him I was scared because I would probably [go] to juvenile hall. [¶] . . . [¶] . . . I told him that I was scared because that would happen if they would have caught me.”
The trial judge found Adam was telling the truth at the police station, not in court, and sustained the petition. He ordered a disposition report prepared and set the matter for a disposition hearing.
The Orange County Probation Department reported that it interviewed Adam, who again denied driving the Suburban. Adam told the probation officer “he feels bad about this, especially because he is getting in trouble for something he did not do. He asserted that this experience has taught him not to lie and he would never do anything like this again.” Adam’s mother said her husband was the driver, and he did not want to stop for the police because there was a warrant outstanding for his arrest. The probation officer recommended Adam be continued a ward of the court and released to the custody of his mother, subject to several conditions. Among them were 20 days participation in the juvenile court work program, and ordering the Department of Motor Vehicles to delay issuing a driver’s license to Adam for one year from the date he becomes eligible to drive.
At the disposition hearing, the juvenile court said “I have read and considered this probation report. I have also reviewed the court file that shows that Adam is on probation. And that probation is for a substantial case exhibiting a deadly weapon and possession of a weapon. [¶] . . . [¶] The court believes this is a substantial matter, especially with his history.” The court ordered Adam continued as a ward of the court, committed him to a juvenile facility for 30 days, delayed the issuance of a driver’s license for one year, and continued him on probation.
I
Adam argues a ward may not be removed from parental custody unless the court finds one of the facts set out in Welfare and Institutions Code section 726, and no such finding was made here or may be fairly implied. We have to say he is right.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Section 726 provides, in relevant part, as follows: “(a) [N]o ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon hearing the court finds one of the following facts: [¶] (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor’s parent or guardian.”
The necessary finding need not be stated expressly. But there must be some indication the trial judge had in mind the substance of section 726 (In re Kenneth H. (1983) 33 Cal.3d 616, 620-621; In re John S. (1978) 83 Cal.App.3d 285, 292-293), considered the facts enumerated (In re Ricardo M. (1975) 52 Cal.App.3d 744, 749-750) or it is not reasonably probable the judge could have done anything else but find one of the listed facts. (In re Clyde H. (1979) 92 Cal.App.3d 338, 346-347.)
A brief summary of what has been found sufficient contrasts markedly with the sparse record here. In Kenneth H., the probation department’s recommendations were read into the record. The juvenile court said it would order the recommendations be followed. It signed a disposition order on a form that recited the section 726 facts, with a box next to one of them checked. The Supreme Court held this justified a commitment order. (In re Kenneth H., supra, 33 Cal.3d at pp. 620-621.)
John S. held the trial court found in substance that the welfare of the minor required removal from custody when it said it wanted the minor to ‘“see what the inside of a custodial place looks like and to know what is in store for him,’” that commitment would be “‘definitely therapeutic,’” and “‘that one of the things that the minor is going to have to learn as far as his probation and his rehabilitation is the responsibility that he is going to have to take for his activity.’” (In re John S., supra, 83 Cal.App.3d at p. 293.)
In Ricardo M., a minor was on probation for possession of marijuana when a second wardship petition was filed that charged him with three burglaries. He admitted to one of them. He was continued on probation, with one condition being spending 5 to 20 days in juvenile hall. The reason given by the juvenile court was “[he has a] prior record, [has] been in trouble with the law before, and I think something has to be done to impress [him] with the seriousness of the offense . . . .” (In re Ricardo M., supra, 52 Cal.App.3d at pp. 747-748.) The court held this satisfied section 726: “The juvenile court judge noted that the prior record was the reason for imposing the condition of probation . . . . That notation satisfied the substance of a finding that Ricardo failed on probation and that continued interrupted physical custody of Ricardo by his parent would be detrimental to him.” (Id. at p. 750.)
Finally, in Clyde H., the probation report stated neither the minor’s mother, nor his guardian, could discipline him effectively, saying “‘it would not be possible to rehabilitate [appellant] at home’” and that appellant needed a more structured and secure setting.” (In re Clyde H., supra, 92 Cal.App.3d at p. 347.) The court held this sufficed as a finding that the parent or guardian was incapable of providing proper training, or had failed to do so. It reasoned that had the juvenile court been aware of the need to make a finding prior to commitment, “it is not reasonably probable that the finding would have been favorable to appellant.” (Ibid.)
The problem we have is there is nothing in the record in this case that can be fairly read as showing the juvenile court considered the substance of section 726. The probation report before the court did not recommend commitment, so it cannot be said reliance on that report shows consideration of the section 726 factors. And the court’s explanation for the order was sparse – it said only that Adam already was on probation for “a substantial case exhibiting a deadly weapon” and “[t]he court believes this is a substantial matter, especially with his history.” We cannot glean from these comments a finding that Lorraine failed or neglected to provide proper training, or that the welfare of the minor requires removal from parental custody, the two findings possible on the facts of this case. That the court thought Adam’s acts were “substantial” says nothing about Lorraine’s parenting (or lack of parenting), nor whether Adam needed to spend time in detention to see what might be in store for him if he continues to get in trouble with the law.
The commitment order cannot be justified on the ground that Adam failed to reform while on probation, since the drive to the 7-Eleven (January 2006) took place before Adam was placed on probation for the first incident (April 2006).
The decisions that have implied a section 726 finding all rest on comments that show unmistakably the court was thinking about the substance of the section. Such comments are missing here. The most liberal is Ricardo M., which held it was enough to note the minor there had been in trouble with the law before and the court thought “something had to be done to impress [him] with the seriousness of the offense . . . .” (In re Ricardo M., supra, 52 Cal.App.3d at pp. 747-748.) But there is nothing similar in this case. We cannot find anything to allow us to infer the juvenile court considered the substance of section 726 when it made the instant commitment order, except that this is an experienced and savvy bench officer. That is not enough.
Nor is this a case where we can say it is reasonably probable the juvenile court would have found one of the section 726 facts had it been aware of that statute. In Clyde H., which utilized this rationale, there was a probation report that said the minor could not be rehabilitated at home and needed more structure. (In re Clyde H., supra, 92 Cal.App.3d at p. 347.) The probation report in the instant case, on the other hand, recommended no commitment. So this is not a case where only one conclusion was reasonable on the evidence.
The People argue there is sufficient evidence to support a section 726 finding (lack of proper training, the minor’s welfare requires removal) and that is good enough. We cannot agree.
It is true such a finding could have been made. But it was not, and that is the problem. The Legislature has seen fit to require a specific finding before a minor may be removed from parental custody. That means the record must show not only sufficient evidence, but also consideration of the circumstances in which the Legislature has decided a minor may be removed from parental custody. Since the record here provides nothing upon which we can say, with any degree of confidence, that the court had in mind factors which had not been referred to by probation, were not cited by either party, and were left unmentioned by the court, we must reverse the disposition order.
II
Adam argues, and the People agree, that the order delaying issuance of Adam’s driver’s license was not authorized. Such a penalty may be imposed only after conviction for unlawfully taking a vehicle (Veh. Code, § 13357), and the count of the petition charging Adam with unlawfully taking the Suburban was dismissed. So, the delayed license order was impermissible.
Since the juvenile court neglected to make a finding under section 726 that removal from parental custody was required, and it lacked the authority to delay the issuance of the minor’s driver’s license, the order appealed from must be reversed. The matter is remanded to the juvenile court to conduct a disposition hearing anew.
WE CONCUR: O’LEARY, J. FYBEL, J.