Opinion
B158276.
7-10-2003
In re JONATHAN H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JONATHAN H., Defendant and Appellant.
Jill D. Lansing, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.
Jonathan H., a minor, appeals from the order continuing wardship (Welf. & Inst. Code, § 602) entered following revocation of probation previously granted upon his admission that he committed a lewd act upon a child (Pen. Code, § 288, subd. (a)). He was ordered placed in the California Youth Authority (CYA) for a maximum theoretical period of confinement of eight years.
In this case, we hold the trial court did not err by finding true the allegations in a Welfare and Institutions Code section 777 notice based on hearsay testimony of appellants probation officer, and appellant was not denied effective assistance of counsel by his trial counsels failure to object to that testimony as inadmissible hearsay violative of appellants rights to confrontation and due process. We hold that Welfare and Institutions Code section 777, subdivision (c), which provides that a preponderance of the evidence standard applies at Welfare and Institutions Code section 777 noticed hearings, does not violate due process. We hold that Welfare and Institutions Code section 777, subdivision (c), which applies that preponderance standard, and permits the admission in evidence of reliable hearsay, at such hearings, does not violate ex post facto principles. Finally, we hold the trial courts order committing appellant to CYA was proper.
FACTUAL AND PROCEDURAL SUMMARY
The record reflects appellant committed the above offense against his five-year-old stepsister in December 1998. A June 1999 petition alleged the offense and, in August 1999, appellant admitted the petition, was declared a ward of the court, and was ordered suitably placed. The court ordered, as probation condition number one, that appellant "Obey all laws. Obey all orders of the Probation Officer and of any court." The court ordered as probation condition number two, that appellant "Obey all instructions and orders of placement staff, school staff, [and] parents." A probation report dated December 19, 2001, reflects that, in October 2001, appellant was placed in the Optimist Home.
A probation officers report and "notice of violation/777 WIC" (some capitalization omitted) (hereafter, notice or report as appropriate) dated February 6, 2002, alleged as count one that appellant violated probation condition numbers one and two "in that: [P] On January 29, 2002, Jonathan is continuously, and consistently disrespectful and defiant towards the placement staff. According to Erin (therapist) Jonathan makes inappropriate sexual comments to the placement staff and peers." The notice alleged as count two that appellant violated probation condition numbers one and two "in that: [P] throughout his residence at optimist group home, the staff reports that he fails to follow instructions." On February 6, 2002, appellant denied the notice.
The report reflects, "Jonathan is 16 years old. He was administratively discharged from five different placements for failure to follow instructions, making inappropriate sexual comments to placement staff and peers, he sets no boundaries. He continues to display an inability to complete a sex offender program. He appears to be more aggressive and resistive to female staff. The placement staff reports that his for re offense [sic] remains moderate to high."
On March 13, 2002, the case was called for probation violation hearing. Appellants probation officer, Renee Atkins, testified without objection as follows. Appellant was under a suitable placement order, and Atkins had been appellants probation officer since June 1999. Atkins spoke with two people regarding appellants performance at the Optimist Home. The two people were Erin, appellants therapist and case manager, and Darrell, the intake officer. Erin and Darrell told Atkins that appellant was failing their program. Erin wrote a termination report to Atkins; the report indicated that appellant would have to be discharged from the facility.
Appellant was failing the program because he was acting out sexually and failing to follow staff instructions, and because his behavior in therapy was unacceptable. Erin told Atkins that appellant was "sex talking," and "masturbating in a group[.]" Appellant would make sexual sounds. Appellant entered "staff personnels [sic] space," made sexual sounds when a female walked by, and said he did not really care about his victims. Atkins testified that "mostly they complained about sexual noises and his masturbating."
Atkins also testified without objection as follows. After about two months, the placement staff, usually Erin, would call Atkins at least once or twice a week to complain about appellants behavior. Appellants inappropriate behavior began about a month after he arrived at the home, and continued during the five month period of his placement until he was discharged. Appellant followed instructions at the home to a certain degree. Upon his initial intake into the home, he was in compliance but, within a month, his program began to fail.
During cross-examination, Atkins testified as follows. Erin told Atkins about specific occasions when appellant talked about sex. Appellant would say that he did not care about the victims. Erin told Atkins about specific dates when appellant talked about sex, and Erin did so in "write ups." Erin gave Atkins specific dates when appellant made sexual sounds. Erin gave Atkins "the specific date in which he masturbated in group sessions[.]" Atkins testified that she did not "have that with me in this file." Erin did not tell Atkins that Erin had seen appellants penis, and Erin did not get into details. In defense, appellant denied ever having masturbated in public at the home. Following argument, the court found true counts one and two in the notice.
There is no dispute that, absent appellants hearsay, right to confrontation, and due process objections to Atkinss testimony, that testimony provided a sufficient basis for the court to find that appellant violated probation.
CONTENTIONS
Appellant contends: (1) "finding the section 777 petition true based solely on hearsay testimony violated appellants due process rights under the Fifth and Fourteenth Amendments, and right to confrontation under the Sixth and Fourteenth Amendments, as well as the requirements of section 777. If the issue was not preserved, appellant was also deprived of the right to effective assistance of counsel"; (2) "appellant was denied due process under the Fifth and Fourteenth Amendments because the court applied the preponderance standard, rather than proof beyond a reasonable doubt, to sustain the petition"; (3) "the courts admission of hearsay evidence and the application of the preponderance of the evidence standard violated ex post facto principles"; and (4) "the court abused its discretion by sending appellant to the California Youth Authority when there was a placement capable of meeting appellants needs."
DISCUSSION
1. The Trial Court Did Not Err By Finding True The Allegations In The Welfare And Institutions Code Section 777 Notice, And Appellant Was Not Denied Effective Assistance Of Counsel.
Appellant claims that Atkinss testimony consisted of inadmissible hearsay violative of Welfare and Institutions Code section 777, and appellants rights to confrontation and due process, and that the trial court prejudicially erred by receiving the testimony. We disagree. Appellant waived the issues by failing to object below on the grounds now urged. (Cf. People v. Williams (1997) 16 Cal.4th 153, 250, 940 P.2d 710; People v. Gutierrez (2000) 78 Cal.App.4th 170, 177; Evid. Code, § 353.)
Moreover, even if the issues were not waived, reliable hearsay is admissible in proceedings, such as the instant one, conducted pursuant to Welfare and Institutions Code section 777, subdivision (a)(2). (Welf. & Inst. Code, § 777, subd. (c).) In People v. Brown (1989) 215 Cal. App. 3d 452, 263 Cal. Rptr. 391, the appellate court stated, "`The revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. (Morrissey v. Brewer (1972) 408 U.S. 471, 480, 33 L. Ed. 2d 484, 92 S. Ct. 2593 . . . .) Despite the relaxed rules of evidence governing probation revocation proceedings, a court is not permitted `"to admit unsubstantiated or unreliable evidence as substantive evidence . . . ." (People v. Maki (1985) 39 Cal.3d 707, 715, 217 Cal. Rptr. 676, 704 P.2d 743 . . ., quoting Egerstaffer v. Israel (7th Cir. 1984) 726 F.2d 1231, 1235.)
Welfare and Institutions Code section 777, states, in relevant part, "An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private institution or commitment to a county institution, or an order changing or modifying a previous order by directing commitment to the Youth Authority shall be made only after a noticed hearing. [P] (a) The notice shall be made as follows: [P] . . . [P] (2) By the probation officer or the prosecuting attorney if the minor is a court ward or probationer under Section 602 in the original matter and the notice alleges a violation of a condition of probation not amounting to a crime. The notice shall contain a concise statement of facts sufficient to support this conclusion. [P] . . . [P] (c) The facts alleged in the notice shall be established by a preponderance of the evidence at a hearing to change, modify, or set aside a previous order. The court may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown, 215 Cal. App. 3d (1989) [sic] and any other relevant provision of law."
"As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. [Citations.] In general, the court will find hearsay evidence trustworthy when there are sufficient `indicia of reliability. (United States v. Penn (11th Cir. 1983) 721 F.2d 762, 765.) Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Ibid.)
"For example, in People v. Maki, supra, 39 Cal.3d 707, the court admitted documents (otherwise inadmissible as hearsay) which were seized from Makis home because there were sufficient indicia of reliability. Specifically, the court relied on the fact that the defendants signature appeared on the car rental invoice and hotel receipt introduced at the hearing. The court determined the presence of these signatures provide sufficient evidence of the documents reliability and that they were thus properly admitted at the hearing. (Id ., at pp. 716-717.) Similarly, in Egerstaffer v. Israel, supra, 726 F.2d 1231, the court admitted an unsworn recorded interview of the victim because the interview was corroborated by witnesses, and the defendant had admitted many of the facts. (Id., at p. 1235.) Finally, in United States v. Penn, supra, 721 F.2d 765, a parole officer was permitted to introduce the results of urine tests even though he had not been involved in the lab test. The court determined the evidence was `trustworthy and reliable because the laboratory reports were `the regular reports of a company whose business it is to conduct such tests and `there was general corroboration that [the defendant] was taking drugs. (Id., at pp. 765-766.) The court reasoned, `in the absence of any evidence tending to contradict Penns drug usage or the accuracy of the lab tests, his confrontation rights were not infringed by the admission of [the probation officers ] testimony . . . . (People v. Maki, supra, 39 Cal.3d at p. 717, quoting United States v. Penn, supra, 721 F.2d at p. 766.) [Fn. omitted.]" (People v. Brown, supra, 215 Cal. App. 3d at pp. 454-455.)
In the present case, Atkins obtained information by speaking directly to Erin, appellants therapist and case manager, and Darrell, the intake officer. At least some of that information was documented. The probation report, which was part of the notice, was a document on which the court was entitled to rely. (See Welf. & Inst. Code, § 281.) Moreover, Erin wrote a termination report to Atkins which indicated that appellant would have to be discharged from the facility.
Indeed, appellants cross-examination confirmed Atkinss testimony, and she testified during cross-examination that Erin told Atkins about specific occasions when appellant talked about sex; Erin told Atkins about specific dates when appellant talked about sex, and did so in "write ups"; Erin gave Atkins specific dates when appellant made sexual sounds; and Erin gave Atkins "the specific date in which he masturbated in group sessions[.]" Atkins also appeared to have had a file present with her in court. Appellant, in his testimony, only denied having masturbated in public at the home. We conclude Atkinss testimony as to statements of Erin and Darrell was reliable hearsay and their admission in evidence did not violate appellants constitutional rights to confrontation or due process. (Cf. People v. Brown, supra, 215 Cal. App. 3d at pp. 454-456.)
People v. Arreola (1994) 7 Cal.4th 1144, 875 P.2d 736 (hereafter, Arreola), does not compel a contrary conclusion. Arreola held, inter alia, that the admission in evidence, at an adult probation revocation hearing, of a preliminary hearing transcript relating hearsay statements violated a defendants right to confrontation absent adequate indicia of reliability of the statements, and good cause. Arreola, distinguishing People v. Maki (1985) 39 Cal.3d 707, 217 Cal. Rptr. 676, 704 P.2d 743, in which the Supreme Court upheld the admissibility of a hotel receipt and car rental invoice at a revocation hearing, stated, "There is an evident distinction between a transcript of former live testimony and the type of traditional `documentary evidence involved in Maki that does not have, as its source, live testimony." (People v. Arreola, supra, 7 Cal.4th at p. 1157, italics added.)
Nor has appellant demonstrated that he was denied effective assistance of counsel by his trial counsels failure to object, on hearsay, confrontation, and due process grounds, to Atkinss testimony relating the statements of Erin and Darrell. If the record 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, an ineffective assistance contention must be rejected. (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.) In the present case, trial counsel was not asked for an explanation concerning why he failed to object on the above grounds, and it is not true that there simply could have been no satisfactory explanation for counsels failure to object. Counsel reasonably might have concluded, e.g., that, had he objected, the People would have had Erin and Darrell testify, and would have introduced into evidence the termination report.
2. Welfare And Institutions Code Section 777, Subdivision (c)s Preponderance Of The Evidence Standard Does Not Violate Due Process.
We have quoted, at footnote three, ante, Welfare and Institutions Code section 777, subdivision (c)s preponderance of the evidence standard. Assuming the trial court used that standard at the March 13, 2002 hearing, that standard did not violate due process. (Cf. People v. Rodriguez (1990) 51 Cal.3d 437, 440-441, 272 Cal. Rptr. 613, 795 P.2d 783 [standard constitutional in adult probation revocation proceedings].)
In re Arthur N. (1976) 16 Cal.3d 226, 127 Cal. Rptr. 641, 545 P.2d 1345 (hereafter, Arthur N.), cited by appellant, does not compel a contrary conclusion. Arthur N. held that when a supplemental petition brought under former Welfare and Institutions Code section 777, and seeking the minors commitment to CYA, alleges new and different criminal misconduct not included in an original petition, due process required proof beyond a reasonable doubt to establish said misconduct. (Arthur N., supra, 16 Cal.3d at pp. 234-235, 240.) Court rules later required proof beyond a reasonable doubt as to all supplemental petitions, whether or not they alleged criminal misconduct; this requirement was not constitutionally based. (In re Antonio A. (1990) 225 Cal. App. 3d 700, 704-706, 275 Cal. Rptr. 482.) No constitutional violation occurs when a law providing protection greater than that constitutionally required is repealed (see Crawford v. Los Angeles Board of Education (1982) 458 U.S. 527, 535, 73 L. Ed. 2d 948, 102 S. Ct. 3211), therefore, Welfare and Institutions Code section 777, subdivision (c)s return to a preponderance standard is not constitutionally infirm.
Moreover, when Arthur N. was decided, juvenile courts were not required to specify a maximum period of confinement when ordering a minor committed to CYA. (In re Arthur N., supra, 16 Cal.3d at pp. 238-239.) Accordingly, the Supreme Court observed, "while the adult whose probation is revoked may not be subjected to any greater punishment than that provided for the original offense," a juvenile delinquent could be "subjected to increasingly severe and restrictive custody which exceeds that which would have been permissible initially, if he is later found on a supplemental petition to have committed additional acts of misconduct." (Arthur N., supra, 16 Cal.3d at p. 237.)
However, after Arthur N. was decided, Welfare and Institutions Code section 726(c), was amended to require that, whenever a juvenile court removes a minor from the custody of his or her parent or guardian, the court must "specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." Probation revocation may result in the imposition of greater restrictions on the minors liberty, but the minor remains a ward of the court subject to the same maximum term of physical confinement, calculated based on the underlying offense that resulted in the sustained original petition.
(Stats. 1976, ch. 1071, § 29, p. 4827; Stats. 1977, ch. 1238, § 1, p. 4158.)
Accordingly, like adult probation revocation, probation revocation under Welfare and Institutions Code section 777 "`deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special [] restrictions. [Citations.] Even though deprivation of this conditional liberty is `a serious deprivation requiring that the [probationer] be accorded due process, [citation], `. . . revocation . . . is not part of a criminal prosecution [citation] and, `accordingly, probation may be revoked despite the fact that the evidence of the probationers guilt may be insufficient to convict him of the new offense. [Citation.]" (People v. Rodriguez, supra, 51 Cal.3d at p. 442.)
This issue is currently pending before the Supreme Court in the case of In re Eddie M., review granted October 23, 2002, S109902.
3. Welfare and Institutions Code Section 777, Subdivision (c), Requiring Preponderance Of The Evidence, And Permitting The Admission In Evidence Of Reliable Hearsay, At A Probation Revocation Hearing, Does Not Violate Ex Post Facto Principles.
Legislation cannot violate ex post facto principles unless it is retroactive in application. (People v. Ansell (2001) 25 Cal.4th 868, 884, fn. 22.) Welfare and Institutions Code section 777, was amended by Proposition 21, effective March 8, 2000 (In re Melvin J. (2000) 81 Cal.App.4th 742, 744), and subdivision (c), thereof was added to read as previously quoted. As appellant concedes, the misconduct on the basis of which appellant was found in violation of probation occurred after March 8, 2000. Therefore, Welfare and Institutions Code section 777, subdivision (c), was not applied retroactively, and no violation of ex post facto principles occurred. None of the cases cited by appellant compels a contrary conclusion.
This includes the case of In re Melvin J., supra. Melvin J. concluded that the provisions of Welfare and Institutions Code section 777, subdivision (c), requiring the preponderance of evidence standard and permitting consideration of reliable hearsay violated ex post facto principles but, in that case, and unlike the present case, both the minors offense resulting in the original wardship order, and the new misconduct giving rise to the probation violation, occurred prior to March 8, 2000. In the present case, the new misconduct occurred after March 8, 2000. This issue is currently pending before the Supreme Court in the case of John L. v. Superior Court, review granted July 18, 2001, S098158.
4. Appellants Commitment To CYA Was Proper.
a. Pertinent Facts.
A June 1999 petition alleged the original December 1998 offense. The probation report pertaining thereto reflects that on May 29, 1999, police arrived at appellants home and his stepmother told police that she was tired of appellant molesting her three daughters. The daughters were two, four, and five years old. When police arrived, appellant fled.
The stepmother told police that, around December 1998, appellant molested the five year old. The five year old told police that in December 1998, appellant put his penis in her mouth and told her to lick it. A few days later, appellant tried to sodomize her.
Appellant later admitted to police that he directed the five year old to lick his penis and she complied. On that occasion, he also laid on top of her between her legs and unsuccessfully attempted to achieve an orgasm. Appellant denied knowledge of any other sexual incident. The report indicates that in 1996, appellant was arrested for battery after he tried to pull down a girls pants. Appellant was molested in about 1997 by two male relatives.
In the past, appellant had consumed about two beers, had smoked marijuana about 20 times, and had used speed three or four times. Appellant last used marijuana in about April 1999, and had last used speed in about 1997. The report indicates appellant did not participate in gang activity. Appellant was diagnosed as having attention deficit hyperactivity disorder.
In June 1999, the probation officer interviewed the detention service officer at juvenile hall. The latter stated that appellant "does `sex talk alot," asked other minors if they engaged in oral copulation, and was more aggressive and difficult with female staff members. The report reflects appellant had a poor school record and numerous suspensions for fighting.
When appellants parents first learned appellant was molesting the daughters, his parents sent him to a three-month church residential treatment program. Shortly after appellant was discharged from that program, appellant was discovered inappropriately kissing the five year old. The report recommended that appellant be suitably placed and that he receive psychological evaluation.
As mentioned, in August 1999, appellant admitted the petition, was declared a ward of the court, and was ordered suitably placed. The probation officers report and "notice of violation/777 WIC" (some capitalization omitted) dated February 6, 2002, indicated that appellant needed a specialized treatment sex offender program. The report stated that if appellant did "not successfully complete treatment, his risk for re-offense remains high. [P] Jonathans behavior is such that the only viable plan is to refer him to the California Youth Authority. The report later expressly recommended that appellant be placed in CYA.
The report then stated, "Camp minor to a camp community placement program. [Sic] The probation officer as well as the court have been very patient with the minors lack of motivation. Due to minors advanced age, camp may be the last attempt for minor to make the necessary adjustments towards a respectable lifestyle." (Sic.) See also footnote one, ante, for additional pertinent information contained in the report.
A July 1999 psychologists report reflected that appellant was not an aggressive sexual predator but the risk of future inappropriate sexual acts by appellant was moderate to high. Appellant needed a specialized treatment program. He appeared suitable for placement in a supervised setting. The psychologist was aware of the Del Amo Sexual Addiction Program, but it was exorbitantly expensive. Other more economically feasible programs offered by the county or state would be more readily accessible to appellant.
We have discussed, in our factual and procedural summary ante, a portion of Atkinss testimony at appellants March 13, 2002 probation violation hearing. Atkins also testified as follows. Atkins investigated the sexual offender program at CYA. Atkins spoke with the programs coordinator, and spoke with Atkinss supervisor, who had coordinated Dorothy Kirbys sexual offender program when Kirby had such a program.
At the hearing, Atkins opined that appellant would benefit from the CYA sexual offender program. The CYA program offered weekly meetings and contained an educational component, and attendance at therapy was mandatory. In the past, appellant had been suitably placed five times, had been unsuccessful in completing any of the placements, and had been discharged from each placement for the same type of behavior at issue with the February 6, 2002 notice. At each placement, appellant, upon his initial intake, would comply to a certain degree but, within a month, he would begin failing the program. Atkins did not believe another suitable placement would benefit appellant. Appellant had failed five of the six sexual offender programs in Los Angeles County.
According to Atkins, the sexual offender program at the Olive Crest home was the only program in which appellant had not yet been placed. Atkins testified he did not believe appellant was capable of "completing a sex offender program within the probation department. We have exhausted our resources." Appellant never had been placed in camp; camp did not offer a sexual offender program. Based on appellants December 1998 offense, Atkins considered appellant to be a sexual predator.
At the conclusion of the March 13, 2002 noticed hearing, the court scheduled the matter for a contested disposition and stated, "Ill be honest with counsel, at this point in time Im of the inclination to have him sent to Olive Crest. I have concerns. I have to make findings and I have to be fully satisfied that his mental and physical condition and qualifications are such to render it probable that he would be benefited by CYA, and that whether sending him to Olive View [sic] is a waste of time in light of his status. I need the benefit of the 730 evaluation addressing that option, as well as other arguments that the People may have. Well address this on March 27."
At appellants March 27, 2002 disposition hearing, the court observed that the probation department still recommended CYA for appellant, appellant had been unsuccessful at five prior suitable placements addressing his sexually deviant behavior, and the court had "read and considered the reports." Appellant urged the court to suitably place appellant at Olive Crest, or at least to refer him there for evaluation. Counsel argued that appellants academic performance in juvenile hall indicated he was a very bright person.
The court rejected these arguments and stated, ". . . The court has read and considered the entire file involving Jonathan and probations efforts to place him. The court is of the opinion that Jonathan is sabotaging every placement he has been to with his unacceptable conduct of sexual acting out. The court views that as a threat to the other minors in the facilities that he has been in. [P] I recognize that camp does not have any available programs for sexual deviant behavior. The court is of the opinion that probation does not have to exhaust all six available facilities for this court to find that they have indeed been exhausted, or that the court is of the opinion that probation has made reasonable efforts to exhaust all available help for Jonathan. [P] The court does find that the mental and physical condition and qualifications of Jonathan are such as to render it probable that he will be benefited by the reformatory educational discipline and treatment addressing sexual deviant behavior provided by the California Youth Authority." The court ordered appellant committed to CYA for a maximum theoretical period of confinement of eight years.
b. Analysis.
The court read the various reports and heard argument of counsel. In the absence of any contrary indication, the court is presumed to have considered all relevant factors and was not required to state reasons for its placement. (Cf. In re John H. (1978) 21 Cal.3d 18, 27; People v. Moran (1970) 1 Cal.3d 755, 762, 83 Cal. Rptr. 411, 463 P.2d 763.) We conclude the juvenile court below considered and rejected less restrictive alternatives and, based on the totality of the circumstances, substantial evidence supported the decision to commit appellant to CYA. The dispositional choice was well within the discretion of the court. (Cf. In re Ricky H. (1981) 30 Cal.3d 176, 182-184, 178 Cal. Rptr. 324, 636 P.2d 13; In re Pedro M. (2000) 81 Cal.App.4th 550, 553, 555-556; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal. App. 3d 1392, 1395-1397, 234 Cal. Rptr. 103; In re James H. (1985) 165 Cal. App. 3d 911, 922-923, 212 Cal. Rptr. 61.) Neither the cases cited by appellant nor his argument compels a contrary conclusion.
DISPOSITION
The order continuing wardship is affirmed.
We concur: KLEIN, P.J., and ALDRICH, J.