Opinion
A148056
06-30-2017
In re RAQUEL A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RAQUEL A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1501245, 84631, JW166007)
At a disposition hearing on two sustained juvenile wardship petitions, counsel for minor Raquel A. requested that the matter be set for a contested hearing. The juvenile court granted the request but also stated it "would like Raquel to go into the Girls in Motion program and to get started forthwith." It thus ordered her remanded pending the contested hearing. At the contested hearing two weeks later, the court heard evidence and argument, after which it ordered Raquel to complete the Girls in Motion program. On appeal, Raquel contends the court deprived her of due process by predetermining her disposition before hearing evidence at the contested disposition hearing. While the court committed error by remanding Raquel prior to the contested hearing, her constitutional right to due process was not violated and she did not suffer prejudice. We thus affirm.
BACKGROUND
This appeal stems from two Welfare and Institutions Code section 602 juvenile wardship petitions. The first, filed in August 2015 by the San Mateo County District Attorney, alleged that Raquel (then 15 years old) committed two misdemeanors: shoplifting at Macy's and possession of burglary tools. After Raquel admitted the shoplifting count, the court released her to her mother's custody and transferred the matter to Contra Costa County (Raquel's county of residence) for disposition. The second, filed in January 2016 by the San Francisco County District Attorney, alleged that Raquel committed two felonies: shoplifting and grand theft at Banana Republic. She admitted the grand theft allegation, and the court released her on home detention and transferred the matter to Contra Costa County for disposition.
All statutory references are to the Welfare and Institutions Code.
In advance of a March 10, 2016 disposition hearing on both petitions, the probation department submitted a report and recommendation prepared by Deputy Probation Officer Ryan Tittle. The report provided the following information:
As to the Macy's theft incident, a loss prevention officer monitoring a surveillance system observed Raquel enter the store with a large handbag, walk into the men's department, place three articles of clothing in her bag, walk past four staffed registers, and exit the store. She was apprehended by the loss prevention officer, who discovered that her bag had been lined with tinfoil to prevent activation of the store's antitheft devices. As to the Banana Republic incident, a loss prevention officer apprehended Raquel after she and an accomplice ran out of the store. She was carrying a large bag filled with clothing valued at $2,154.50.
Probation Officer Tittle interviewed Raquel on two occasions, first in January 2016 and again in March. In the first interview, she reported that she had two friends in San Francisco whom she visited every weekend, but as of the second interview, she was no longer going to San Francisco on weekends, instead spending her free time at home. When her mother went to work in San Francisco, which was usually at night, she would stay home and sleep or her aunt would stay with her.
Raquel had a very poor educational record. She initially attended Galileo High School, but in January, she reported she had not attended school since November 2014 because she was being bullied and had been " 'jumped' " twice. Additionally, a nude photograph of her had been circulated around the school. Her Galileo High School records indicated she enrolled in August 2015, had not attended since September 2015, had only completed 30 out of 230 credits required for graduation, and had failed a number of classes. Behavioral entries going back to 2012 reflected shoplifting concerns in 2012 and the discovery of a " 'marijuana mill' " in her possession in 2015.
According to Raquel, her mother was attempting to enroll her in Liberty High School but they were having problems in the enrollment process. According to the Liberty High School registrar, Raquel's mother had gone to the school to enroll her but did not have any information from her prior school. The registrar subsequently received Raquel's transcript, but Raquel and her mother never returned. On February 5, Raquel's mother told Probation Officer Tittle she was going to meet with the Liberty High School registrar that day and was hopeful Raquel would begin classes there on February 8.
When interviewed in March, Raquel reported that she had been attending La Paloma High School for three weeks, going to school every day with some tardies. She was optimistic she was doing well and would be able to quickly earn credits. Per the La Paloma High School secretary, Raquel had enrolled on February 17, but as of March 7, she had been truant from 12 classes and tardy to six.
Raquel initially denied a family history of substance abuse but later admitted her mother used marijuana. She also admitted her own marijuana use, stating she began using it weekly about one year earlier but had not used it for the past six months. Raquel's mother was aware of her marijuana use because she had come home under the influence in the past, prompting her mother to ground her and take her cell phone away. Raquel's mother denied any substance abuse issues, including her own marijuana use.
Raquel's parents were never married. Raquel had always lived with her mother but regularly saw her father until he passed away in July 2015. She had also lived with her brother until about six months earlier, "when he had a psychotic episode and stabbed her mother" and attempted to stab her as well. Raquel described her relationship with her mother as " '[f]abulous.' "
As to Raquel's shoplifting offenses, Raquel's mother reported Raquel was with two older girls the mother did not know. The mother used to take Raquel to San Francisco with her three or four times a week while she was working; Raquel would stay at a friend's house, and sometimes they both stayed at the mother's boyfriend's house. She was no longer taking Raquel to San Francisco with her, however. She reported that Raquel is a funny, good kid, and had no significant behavioral issues at home. Raquel was happy at La Paloma High School and was not having issues with other students.
The family had a history of child welfare referrals, with 12 in the County of San Francisco. A March 6, 2015 referral indicated nude photographs of Raquel were circulating at her school, and the reporting party was worried she was being sexually exploited. Raquel's school scheduled an appointment with her mother but she did not show up. School staff went to their house, but the mother would not open the door right away. When she did, smoke emanated from the house, Raquel appeared to be under the influence of marijuana, and the mother did not speak to the staff member. A May 14, 2015 referral indicated that Raquel was not being supervised. She was staying out late, going to a 50-year-old man's house late at night, using marijuana with her mother, getting into fights, and not attending school. It further indicated that pornographic pictures of her had been posted on Instagram.
Raquel's mother reported that on January 27, 2016, Raquel went to Bay Area Community Resources (BACR) and took tests to determine which services would be appropriate for her. As of March 7, she had been attending BACR three times a week.
In its "analysis of case problems and risks," the probation report summarized:
"It appears the minor's household is lacking structure and firm rules with consequences for poor behavior. We are concerned that many of the minor's [Child and Family Services (CFS)] referrals also indicated a lack of supervision from the minor's mother. [The mother] stated she was not aware of the minor's whereabouts, when the offenses occurred, and she did not approve of the people her daughter was with, however, it appears there is a history of Raquel doing as she pleases, and staying out late at night, with no intervention from her mother. We are also concerned that the minor's mother initially reported she leaves Raquel at her friend's house for several days, at a time, while she works.
"The minor recently enrolled in continuation school, but she is significantly behind on class credits. The minor has a history of poor behavior, attendance, and performance, at school. CFS records confirmed she also has a history of conflicts with her peers. The minor admitted she used marijuana once per week, in the past, but her mother states she did not approve of this behavior. The CFS records indicate otherwise, as it was alleged that the minor and her mother use marijuana together, and Raquel's statement that her mother uses marijuana supports this allegation. Raquel appears to have a more 'sisterly' relationship with her mother, rather than that of a parent and child with strong boundaries, expectations and guidance."
Per the probation report, Raquel had not been screened for out-of-home placement or commitment to the Girls in Motion program because "community resources have not yet been utilized." It recommended the following disposition: "Indefinite Wardship and sixty days on the Home Supervision program [to] hold the minor accountable for her actions and provide her with the services she needs, while allowing her the opportunity to demonstrate improved behavior in a less restrictive environment. Raquel can benefit from programming addressing her academics, marijuana use, and decision making. Community service will allow her the opportunity to give back to the community, and restitution will hold her accountable for the stolen items. The minor's mother must stay in contact with the minor's school to ensure she is attending regularly and obtaining extra assistance if needed. [The mother] must hold her daughter accountable by being aware of her friends, possessions and whereabouts. The minor can benefit from pro-social activities and association with a positive peer group. Lastly, we suggest [the mother] complete a parenting program to learn to set goals and expectations for Raquel, along with consequences, when they are not met."
March 10, 2016 Disposition Hearing
A disposition hearing was held on March 10, 2016. Probation Officer Tittle, who prepared the probation department's report, was not present, with Probation Officer Tamara Taylor appearing on behalf of the department.
At the outset, the prosecutor expressed his disagreement with probation's recommendation, expressing concern about the "lack of structure in the house, lack of consequences. The fact that, I believe, the minor and mother use marijuana together . . . . That they routinely spend time in San Francisco and here and that the mother spends time in San Francisco, overnight stays, for multiple nights, that I don't know how sending her to live with her mom here is appropriate. And I think that even the recommendation today admits that there's a lack of structure and accountability in the household, and if the mother is not there on some nights, I don't know how the minor is being put in a position to succeed by putting her on home supervision to live with the mother." The prosecutor suggested placement as the appropriate disposition.
After Probation Officer Taylor submitted on the report, counsel for Raquel responded that if the court was inclined to adopt the prosecutor's recommendation, she would like to present testimony from Probation Officer Tittle and the counselor who was overseeing Raquel's BACR program.
The court then asked Probation Officer Taylor, "[W]ouldn't the Girls in Motion program be a good program?" Taylor responded, "It's a very good program. The minor could definitely benefit from that. It would definitely give her an opportunity to deal with her substance abuse issues. It would give her an opportunity to catch up in school and to get on track academically. It would allow her to take advantage of—participate in some evidence-based programs that would deal with her—her thinking errors and allow her to make better decisions and to become a little more pro-social. It would also give her and her mother an opportunity to work on an appropriate mother-daughter relationship, in addition to affording the minor counseling with a therapist a minimum number of once of week to deal with any other underlying issues she may have."
As the probation department describes the Girls in Motion program:
"Juvenile Hall has one girl's housing unit. Within that unit, Juvenile Hall staff has developed the 'Girls in Motion Program,' also known as GIM. The Court has the option of ordering female offenders into the treatment program. The mission of the Girls in Motion Treatment Program is to provide a safe and structured environment that will allow adolescent female residents to achieve positive change and personal growth. These goals will be accomplished through individualized treatment plans, individual counseling and group programming focused to strengthen pro-social values/attitudes and restructure anti-social behaviors.
"The girls attend both individual and group counseling. Probation Staff receive training on gender specific issues and lead many of the girl's groups. Counseling is provided by Mental Health Therapists, as well as, Community Violence Solutions, Project Success and other community based organizations. The counseling/treatment groups address trauma issues, relationship development, anger management/conflict resolution, and substance abuse. Treatment is also provided for youth who have been identified as being sexually exploited to address CSEC issues (Commercially Sexually Exploited Children)."
Counsel for Raquel noted that all of those resources would also be available through placement or wardship and requested the court continue the matter for a contested disposition hearing. The court set the matter for a contested hearing on March 25, further stating it "would like Raquel to go into the Girls in Motion program and to get started forthwith." It thus adjudged her a ward of the juvenile court, found that the welfare required her removal from her mother's custody, and ordered her detained in juvenile hall to participate in the Girls in Motion program.
March 25, 2016 Contested Disposition Hearing
Probation Officer Tittle was the first witness at the March 25 hearing. As part of preparing the probation department's report and recommendation, he investigated the CFS referrals, none of which resulted in Raquel's removal from her mother's care. He was aware Raquel had stopped attending school, and both Raquel and CFS reports indicated it was because inappropriate pictures of her had been distributed around the school.
He clarified that some of the 12 referrals related to Raquel's brother.
Tittle was aware that Raquel had been experiencing some personal struggles in her life. Specifically, in July 2015 her father had passed away, in October 2015 she moved from San Francisco to Brentwood due to the issues she was having with her peers at school, and in November 2015 her brother had a psychotic episode.
Tittle was also aware that in January 2016 Raquel had received a referral to BACR to assist her upon her release from custody following the Banana Republic shoplifting incident. In February, she started school at La Paloma High School. He confirmed that as of March 7, she had missed 12 individual classes. This did not cause him to question his recommendation for home supervision, however, as her truancy issues could be addressed by the use of an ankle monitor while on home supervision.
Tittle had recommended home supervision "to implement some structure in her life and monitor her a little bit more closely and to insure that she's following her terms and conditions of probation." He did not recommend Girls in Motion because "at that time . . . other resources had not yet been utilized." Such other resources included "[h]ome supervision and terms and conditions of probation, as well as rehabilitative outpatient treatment and counseling services, as well as drug testing and terms regarding school attendance and everything." If Raquel were placed on home supervision, she would have counseling available to her, including with her mother. She would be required to attend school, and her failure to do so would be a violation of probation. She would have access to services to address her academic, substance use, and decision-making issues. He agreed all those issues could also be addressed in the Girls in Motion program, which would "just [be] more structured and secured . . . ." In recommending home supervision, Tittle also considered that her offenses were nonviolent theft offenses and that the family seemed open to complying with the rules of home supervision.
On questioning by the court, Tittle agreed that CFS reports indicated Raquel's mother was not supervising her and allowed her to stay out late at night; she was going to a 50-year-old man's house late at night, using marijuana with her mother, and getting into fights; and pornographic photographs of her had been posted on Instagram. She had not attended school while they lived in San Francisco, and she continued to have an issue with truancy after the family moved to Brentwood. He also confirmed his statement in his report that Raquel's behavior had escalated due to a lack of intervention and that he had concerns because many of the CFS referrals referenced the lack of supervision by Raquel's mother, her mother did not know her whereabouts when the offenses occurred, and Raquel had a history of doing as she pleased, including leaving for several days. Asked why it would be best for Raquel to be under the supervision of her mother given this history of a lack of supervision, Tittle responded, "At the time, we just believed that the services could be utilized—community-based services could be utilized to help both her and her mother, as well as the home supervision program for a little bit closer monitoring as a way to start at least."
Jasmine Frye, a case manager for BACR, was the second witness. According to Frye, BACR provides programs such as "mental health resources, drug abuse resources, after-school program, workforce development."
Frye testified that on January 28, 2016, Raquel completed an assessment at BACR. Frye accepted her into the program that day because she felt Raquel needed their intensive wraparound case management services and she felt a bond between the two of them because they were both biracial and had similar backgrounds. Frye had placed her in a program that provided life skills training, job skills training, and academic support. Raquel was also expected to attend school and participate in drug and mental health counseling. In February, she began attending trainings, generally three hours on Thursdays and Fridays and six hours on Saturdays. Her program initially involved training sessions about self-sabotage and improving peer-to-peer relationships and communications, with an ultimate goal of having her understand that she needed to go to school, have better relationships with her peers and her mother, and receive mental health and substance abuse services. Raquel voluntarily completed two of the trainings, but then stopped attending because she was in custody. Frye acknowledged she was disappointed Raquel continued to be truant despite attending BACR. She confirmed that Raquel would be able to attend the BACR program after she completed the Girls in Motion program.
Following Frye's testimony, the court received a letter from Raquel's mother in which she noted the recent improvements Raquel had made and vowed to be available to support her and make sure she succeeded. Raquel then addressed the court to say: "I am very remorseful . . . for my actions, and I promise you with everything in me, if you're willing to give me this chance to show you and everybody else helping me through this process, I am very capable of following all terms and conditions of this probation, that I will do everything in my—in my hands to do—to successfully finish probation and do what I have to do, Your Honor."
Turning to argument, Raquel's counsel urged the court to release her on home supervision. Counsel highlighted the traumatic experiences she suffered around the time of the shoplifting incidents, including her father's death, her brother's attack on their mother, and the posting of nude photos of her on Instagram. She argued that Raquel's mother "has tried," relocating the family from San Francisco to Brentwood to move Raquel away from negative influences and peer groups. As to the mother's supervision of Raquel, counsel noted that the mother worked as an Uber driver, often working in the evening hours when she could make the most money. She was, however, willing to make whatever changes were necessary in order to have Raquel placed at home. She would also make sure Raquel attended all required programs. The BACR program would add additional supervision to what Raquel would be receiving at home, and she would be able to continue attending the school in which she was enrolled.
The prosecutor argued that Raquel's best interest would be served by commitment to the Girls in Motion program, followed by the BACR program. He agreed the services BACR provided "sound great," but argued it was too early for Raquel to fully benefit from those services; first, she needed to "get to a better place," and the Girls in Motion program would get her to a position where she could succeed at home and in the BACR program.
The court agreed with the prosecutor, providing this thoughtful rationale for its decision:
"A few weeks ago we were here and the court had read the report and—and felt that the Girls in Motion program was the appropriate program. Ms. Taylor from probation recommended the program. She thought it would be a good program for the minor given her school attendance and her substance abuse issues.
"The—the case itself is a case where we have a minor that has escalating criminal conduct. I don't recall another case—maybe I've had them—but I don't recall another case where there was tinfoil lining as part of a booze bag to defeat the . . . protectors on the clothing to show whether or not they're stolen. So the circumstances of this case show some criminal sophistication.
"The report itself by the probation officer, which the court is adopting with regard to its factual summaries, I disagree with the conclusion, but it does say that she has escalating criminal conduct, and—and that's evident.
"And so—I'm going to back up for a quick second, and that is with regard to the death of your father, I'm so sorry about that and your grandfather, and that's terrible, and those things are very hard, but these—these issues go back to 2012. There's a reference here to your shoplifting in 2012 so this isn't something that's brand new. You're basically a repeat offender with some criminal sophistication.
"And the part of the report that goes to your supervision at home is—is that you've had—you've been allowed to stay out late at night; you've been going to a 50-year-old man's house; the allegation is that you use marijuana, you admitted to using marijuana, allegation is that you use marijuana with your mother; your pornographic photographs taken of you on Instagram; you got into fights; you didn't attend school; and then even after Bay Area Community Resources gets involved, you still are truant. And I applaud that program. I think it's terrific, and I think it is an after-care program that is something that will be very helpful to you, but I am—I'm going to reiterate my finding that you be placed in the Girls in Motion program. I do believe it's the most appropriate program for you. It is in this situation, given everything that's happened in the past, I think it's the—it's the least restrictive alternative given your needs.
"I appreciate your letter, but your history of your poor behavior, attendance performance at school, and everything else that's happened, you know, warrants this. . . .
"And the court will add the after-care from Bay Area Community Resources through probation. I think that's an excellent idea."
This timely appeal followed.
DISCUSSION
Raquel's appeal argues only that the juvenile court abused its discretion and deprived her of her constitutional right to due process by predetermining her disposition before holding the contested disposition hearing. We agree, as does the Attorney General, that the trial court erred in remanding Raquel to Girls in Motion prior to the contested disposition hearing. (See § 706.) We disagree, however, that the error requires reversal.
As a preliminary matter, Raquel did not object below to the court's disposition order on due process grounds, and a due process challenge is generally forfeited in the absence of a timely objection. (See, e.g., People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 424 [failure to object that court's allegedly hostile questions at trial violated defendants' right to due process forfeited the claim on appeal]; People v. Earp (1999) 20 Cal.4th 826, 884 [defendant's constitutional claims not preserved for appeal where defendant failed to object to trial court rulings on constitutional grounds].) Despite Raquel's arguments to the contrary, we could easily consider her argument forfeited. But this is unnecessary because we reject her claim on its merit.
The due process clause protects defendants (and juvenile court wards) in criminal proceedings from fundamentally unfair treatment by the government. (Doggett v. United States (1992) 505 U.S. 647, 666 (dis. opn. of Thomas, J.).) Raquel asserts that she was deprived of due process at the contested disposition hearing because the court had predetermined the disposition outcome, as evidenced by its March 10 order remanding her to Girls in Motion. As she puts it, "The court's comments on March 10, that it wanted to 'get' Raquel 'started' in Girls in Motion [citation] is evidence that it's [sic] decision at the end of the contested hearing on March 25, 2016, was predetermined." We disagree with her interpretation of the record. The comment reflected the court's belief that, as of that date and based on the evidence then before it, Raquel was best served by starting the Girls in Motion program pending the contested hearing. Two weeks later, it held a contested disposition hearing in compliance with the applicable procedures. At that hearing, it heard evidence on Raquel's behalf (testimony of Probation Officer Tittle and counselor Frye), received a letter from Raquel's mother, listened to a statement by Raquel herself, and heard argument by her counsel. Based on that evidence, as well as Tittle's probation report, the court determined that commitment to the Girls in Motion program was in fact the appropriate disposition. This record does not support Raquel's claim that she received fundamentally unfair treatment by the court.
In support of her due process claim, Raquel primarily relies on three cases—In re Ronnie P. (1992) 10 Cal.App.4th 1079 (Ronnie P.), In re J.L.P. (1972) 25 Cal.App.3d 86 (J.L.P.), and In re Jose T. (2010) 191 Cal.App.4th 1142 (Jose T.)—in which the minors were committed to what is now the Division of Juvenile Justice (DJJ) in violation of the rules governing disposition of a ward of the juvenile court. She claims the cases are instructive, as the Court of Appeal in each of those cases reversed because the juvenile court had predetermined the minor's disposition. The cases are not germane to the circumstances here.
Then known as the California Youth Authority (CYA).
Ronnie P., supra, 10 Cal.App.4th 1079, involved a disposition hearing after a sustained section 602 petition. At the hearing, the court " 'suspended' " or " 'stayed' " a commitment to the CYA and ordered the minor into placement. A section 777 petition subsequently alleged that the minor violated the conditions of his probation, which allegation the court sustained. At a disposition hearing on the probation violation, the court made good on its earlier order that the minor would be sent to the CYA if he got into any further trouble and committed the minor to the CYA. (Id. at pp. 1082-1083.)
On appeal, the minor argued, among other things, that the court abused its discretion in committing him to the CYA based on its previous disposition order. (Ronnie P., supra, 10 Cal.App.4th at p. 1086.) We agreed, noting that "a juvenile court errs by purporting to determine dispositional issues in advance of the dispositional hearing." (Id. at p. 1088.) We concluded that the court's failure to consider any of the prescribed disposition factors "constituted the denial of a fair hearing and deprivation of fundamental procedural rights compelling reversal." (Id. at p. 1091.)
In Ronnie P., we relied on J.L.P., supra, 25 Cal.App.3d 86, where our colleagues in Division Three reversed a disposition order committing the minor to the CYA. There, the juvenile court had given the minor a choice: be tried as an adult or proceed under the juvenile court law; if the minor chose the latter and the court sustained the petition, he would be committed to the CYA. The minor chose to proceed in juvenile court, and the court sustained the petition and committed him to the CYA. (Id. at p. 88.) The Court of Appeal concluded this was error because the court's commitment decision was made prior to the jurisdiction and disposition phases in violation of the Welfare and Institutions Code. (Id. at pp. 89-90.) The court thus remanded with directions for "the juvenile court to consider evidence as to the appropriate disposition" for the minor. (Id. at p. 90.)
In Jose T., supra, 191 Cal.App.4th 1142, the court sustained a section 602 petition and ordered the minor to placement, with a suspended DJJ commitment. After the minor absconded from placement, the court sustained a section 777 petition. (Id. at pp. 1145-1146.) At a disposition hearing on the petition, the court expressed its inclination to continue the minor's current placement, as recommended by the probation department. The prosecutor reminded the court that the minor had a suspended DJJ commitment, and the court responded, " 'Well, I think that's where he's going then, [counselor], I'm sorry to say that. I usually keep my promises.' " (Id. at p. 1147.) Citing Ronnie P. with approval, our colleagues in Division Four reversed the commitment, agreeing with the minor that the juvenile court abused its discretion by automatically imposing the suspended DJJ commitment. The court reasoned, "The juvenile court's statement at the time of imposing the previously stayed DJJ commitment on appellant indicates a failure to conduct 'a complete reassessment of dispositional issues in light of then-prevailing circumstances,' and therefore constituted an omission to exercise 'a discretion conferred and compelled by law.' (Ronnie P., supra, 10 Cal.App.4th at pp. 1090-1091.) All reports relating to appellant's progress at [his placement] were positive, and the probation department recommended his return to the program. The juvenile court expressed a willingness to send appellant back to [his placement] before being informed that the court had previously stayed a DJJ commitment. Its comment after being informed about the previously stayed commitment, much like the juvenile court's comment in Ronnie P., necessarily leads us to agree with appellant that the disposition imposing that prior commitment was 'automatic' and thus, was error." (Jose T., supra, 191 Cal.App.4th at p. 1149.)
These cases all involved a situation where the juvenile court failed to consider the evidence at the disposition hearing and instead automatically imposed a predetermined disposition. All three cases were reversed and remanded for the juvenile court to consider the disposition evidence in order to exercise its discretion in ordering a suitable disposition for the minor. (Ronnie P., supra, 10 Cal.App.4th at pp. 1090-1091; J.L.P., supra, 25 Cal.App.3d at p. 90, Jose T., supra, 191 Cal.App.4th at p. 1153.) That is not the situation here, where the court held a contested disposition hearing prior to determining the appropriate disposition for Raquel. As noted, at that hearing, it heard testimony from Probation Officer Tittle and counselor Frye, received a letter from Raquel's mother, heard a statement from Raquel herself, and heard argument from counsel. All of this supplemented Tittle's report, which the court also had before it. The court then provided an informed analysis of the evidence and why that evidence supported placement at Girls in Motion followed by aftercare at BACR. Unlike in Ronnie P., J.L.P., and Jose T., the court's decision was fully informed and based on the evidence, as required by section 706.
In re L.S. (1990) 220 Cal.App.3d 1100 (L.S.), which Raquel also cites, is no more instructive. There, the juvenile court sustained a section 602 petition and set the matter for a disposition hearing. Due to a misunderstanding, the probation officer did not prepare a disposition report in time for the hearing. Nevertheless, the court proceeded with disposition, found that it had considered all less restrictive programs and that the minor would better benefit from the DJJ programs, and committed the minor to the DJJ. (Id. at p. 1103.) The Court of Appeal reversed due to the court's failure to consider a probation report prior to disposition. It rejected the Attorney General's argument that the error was harmless, concluding that if the requirements mandating the probation department's preparation of a disposition report were not complied with, reversal was mandatory. (Id. at pp. 1106-1107.) Again, this was not the situation here, where the court had the disposition evidence before it, including the probation department's report.
In sum, the record does not support Raquel's claim that the juvenile court improperly predetermined her disposition, and she has not shown error that constituted a due process violation. But, as acknowledged above, the court did indeed err by prematurely remanding her to the Girls in Motion program pending the contested disposition hearing. This error was not prejudicial, however, as two weeks later, the court held a contested hearing, at the conclusion of which it ordered her to complete the Girls in Motion program. And that commitment order was supported by substantial evidence. (In re Jorge G. (2004) 117 Cal.App.4th 931, 941-942 [appellate court will affirm disposition order if it is supported by substantial evidence].)
Because we reject Raquel's argument that the court violated her due process rights, we need not address her claim that the harmless error standard does not apply because the error was structural and thus reversible per se.
The probation report detailed Raquel's unsupervised home environment and the consequences of that lack of parental supervision. Those consequences included a complete failure to attend school for nearly a year and a high truancy rate when she did attend school; regular drug use, including with her mother; the commitment of multiple shoplifting offenses while cavorting with girls unknown to her mother; and late night visits to the apartment of a 50-year-old man, among others. In its "analysis of case problems and risks," the report specifically identified a concern over the "lack of supervision from the minor's mother," going on to note that "there is a history of Raquel doing as she pleases . . . with no intervention from her mother." Given this demonstrated history of Raquel's mother failing to provide adequate supervision, the juvenile court was rightly concerned that Raquel would not receive adequate adult oversight if she were released on home supervision. And even though she was participating in the BACR program, truancy remained a problem. Girls in Motion, on the other hand, would provide Raquel a structured, supervised environment where she could deal with her substance abuse issues, catch up in school, and participate in programs that would assist her with her decision-making abilities and social interactions.
We close with the observation that the court's error actually benefited Raquel. By ordering her remanded to the Girls in Motion program two weeks before the contested disposition hearing, she commenced, and had the opportunity to complete, the program earlier than she would have been able to absent the error.
DISPOSITION
The disposition order is affirmed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Stewart, J.