Filed 11/5/21 In re Nicholas P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re NICHOLAS P., a Person
Coming Under the Juvenile Court
Law.
THE PEOPLE,
Plaintiff and Respondent, A161091
v. (Contra Costa County
NICHOLAS P., Super. Ct. No. J18-01060)
Defendant and Appellant.
Nicholas P. appeals on multiple grounds from the juvenile court’s
July 23, 2020 finding that he committed a probation violation and the court’s
related August 6, 2020 dispositional order. Specifically, he challenges the
court’s finding that he violated probation by possessing drugs for which he
had no prescription, an allegation to which he admitted. We conclude the
juvenile court’s finding and order must be reversed for lack of a factual basis
to support them. Nicholas did not admit to conduct that violated the terms of
his probation; nor did the evidence support a finding that he did. This is
because the drugs found in his possession were neither admitted nor shown
to be prescription drugs.
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Nicholas challenges certain probation conditions subsequently imposed
by the juvenile court. We conclude that these challenges are moot because
the court has terminated his wardship for reasons unrelated to them, and
dismiss those parts of Nicholas’s appeal.
BACKGROUND
This is the third appeal by Nicholas in a matter initiated in December
2018 by the Contra Costa County District Attorney’s filing of a wardship
petition under Welfare and Institutions Code section 602. In the petition, the
district attorney alleged that Nicholas, then 17 years old, committed felony
vandalism (Pen. Code, § 594, subd. (b)(1)) and misdemeanor possession of a
controlled substance (Health & Saf. Code, § 11375, subd. (b)(2).)
The juvenile court dismissed the drug possession count in the petition
and found that Nicholas had committed misdemeanor vandalism. It
adjudged Nicholas a ward of the court with no termination date and ordered
him to reside with his parents under the supervision of the probation
department. Nicholas appealed from these rulings, which we affirmed on
August 25, 2020, in an unpublished opinion, In re Nicholas P. I (Aug. 25,
2020, A157056.)
In August 2019, the Contra Costa County District Attorney filed a
supplemental wardship petition alleging that Nicholas committed assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), assault by means likely
to produce great bodily injury (id., § 245, subd. (a)(4)) and felony vandalism
(id., § 594, subd. (b)(1).) Nicholas pleaded no contest to charges of vandalism
and assault by means likely to produce great bodily injury. The court found
these allegations to be true and dismissed the count alleging assault with a
deadly weapon. The court committed Nicholas to the Youthful Offender
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Treatment Program (YOTP) for a period not to exceed five years or until
Nicholas reached age 21. Nicholas appealed from these rulings, which we
affirmed with modifications to a probation condition prohibiting Nicholas’s
use of knives, Nicholas’s maximum term of confinement and his custody
credits. (See In re Nicholas P. II (Jul. 31, 2020, A158426).)
In December 2019, Nicholas filed a motion to modify the YOTP
commitment order so as to order him placed in a drug treatment program.
After some months of delays in considering Nicholas’s motion, the probation
department reported that Nicholas had made significant progress in YOTP
and was nearing the completion of the institutional portion of his YOTP
commitment. It recommended that upon his completion of that portion of his
commitment, the court order that he advance to the aftercare phase of YOTP,
reside with his parents in Brentwood, California, receive certain services and
participate in an intensive outpatient substance abuse and mental health
treatment program. On June 25, 2020, the juvenile court adopted the
department’s recommendations and ordered, among other things, that
Nicholas continue as a ward of the court participating in YOTP aftercare
while residing at his parents’ residence.
Less than a month later, on July 20, 2020, the probation department
filed a notice of probation violation regarding Nicholas. The department
alleged that Nicholas was subject to the following probation order: “Obey all
laws. [Nicholas] not knowingly use or possess any illegal drugs, marijuana,
synthetic marijuana, drug paraphernalia, alcohol or any prescription drugs
for which he does not have a current prescription from a duly licensed
physician.” The department further alleged that Nicholas “violated the
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provisions of said order by the following act oromissions [sic]: Said minor is
in possession of the drugs [sic] that are not prescribed to him.”
In a July 23, 2020 report to the court, the probation department
described Nicholas’s general circumstances: “Historically, [Nicholas] has
been diagnosed with ADHD, Epilepsy, Depression, Anxiety and PTSD. He
has had numerous [Welfare and Institutions Code section] 5150 holds, and
has a history of drug use and self-harm. He has received a plethora of
services . . . .” The department also wrote: “Although [Nicholas] has multiple
diagnoses, [he] has also exhibited manipulative behavior as evidenced in the
YOTP institutional portion of the program and in the community. . . . [He]
regularly requests changes in his medication and has admitted to not needing
all the medication he is prescribed. And, in the past has stated he would stop
taking them if he could be released from juvenile hall. . . . [¶] Kaiser mental
health staff believes a dual diagnosis residential treatment will be most
effective for [Nicholas], but only when he is ready for sobriety, is not drug
seeking and his criminal escalation while using illicit substances has passed.”
The probation department reported that Nicholas was prohibited from
taking anything but prescribed substances. Nonetheless, the department had
recently learned that Nicholas had posted photos online that indicated he
was in possession of a firearm and drugs that were not prescribed for him.
He had used social media to promote his sale of Xanax and “Clonazolam,”
which the department described as “a benzodiazepine” that was “sold online
as a ‘designer drug’ ” and a “Schedule 1 drug.” In a probation search of
Nicholas’s residence, police did not find a firearm, but they did find a 30-
milliliter bottle of Clonazolam, which had been featured in Nicholas’s social
media posts. Nicholas said he purchased the Clonazolam from Amazon and
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that he could take it legally. However, Nicholas’s Kaiser health professional
told the department, “ ‘We would never approve of such drug use and all
prescriptions go through our psychiatrist,’ ” said it appeared that Nicholas
was “ ‘drug seeking,’ ” and reported that Nicholas had inquired about meeting
with a psychiatrist to request new prescriptions. Nicholas was detained and
placed in juvenile hall. The next day, he tested positive for
methamphetamines.
The department attached documents to its report that it did not
describe. The copies of these documents in the record are of inconsistent
quality, but they appear to be copies of the social media posts by Nicholas
that were described in the department’s report and of photographs of items
found in the probation search of Nicholas’s residence.
At a warrant hearing in the matter, Nicholas’s counsel indicated that
Nicholas was “prepared to admit to the violation today as written.” The court
advised Nicholas of his rights and the court’s likely rulings if he admitted to
the violation, and questioned Nicholas about whether he was voluntarily
making his admission. Counsel then stipulated to a factual basis for the
admission, which Nicholas’s counsel described as “the discovery provided”;
upon further questioning by the court, counsel indicated these were the
documents attached to the department’s report. The court then engaged in
the following dialogue with Nicholas:
“THE COURT: What’s alleged here is that . . . you were continued as a
ward of the court with conditions of probation that required you to obey all
laws; not knowingly use or possess any illegal drugs, marijuana, synthetic
marijuana, drug paraphernalia, alcohol, or any prescription drugs for which
you don’t have a current prescription issued by a duly licensed physician.
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“It’s further alleged that you violated the provisions of that order by the
following act or omissions: You were in possession of drugs that were not
prescribed to you.
“As to those allegations, what’s your plea?
“[NICHOLAS]: I plead guilty.
“THE COURT: So you admit that that’s true?
“[NICHOLAS]: I ordered stuff off of Amazon.
“THE COURT: But you admit that these allegations are true?
“[NICHOLAS]: Yeah.
“THE COURT: I find all notices have been given as required by law;
that Nicholas knowingly and intelligently waived his right to a hearing and
freely and voluntarily admitted to the allegations.
“I find there is a factual basis for the plea as stipulated by Counsel;
and, based on the plea and factual basis, I find the allegations true.
“I sustain the probation violation notice . . . .”
Nicholas filed a timely notice of appeal.
DISCUSSION
I.
The Court’s Probation Violation Finding Is Without a Factual Basis.
Nicholas argues, among other things, that the juvenile court’s order
must be reversed for lack of a factual basis to support it. We agree. The acts
Nicholas admitted do not amount to a probation violation because what the
department alleged, Nicholas admitted and the juvenile court found was that
Nicholas was in possession of “drugs” for which he had no prescription.
There was no allegation, admission or finding that he was in possession of
“prescription drugs” for which he had no prescription. The prosecution
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offered no evidence that Clonazolam, the only drug alleged to have been
found in Nicholas’s possession, is a prescription drug. On appeal, the People
concede that it is not.
Although Nicholas admitted to the department’s allegation, he may
raise a sufficiency of evidence argument on appeal without obtaining a
certificate of probable cause from the juvenile court. (See In re Joseph B.
(1983) 34 Cal.3d 952 [no certificate of probable cause required for juvenile to
contest adjudication based on admission]; cited approvingly in People v.
Garcia (1999) 21 Cal.4th 1, 24, In re Damien V. (2008) 163 Cal.App.4th 16,
21.) Further, the People do not contend that Nicholas forfeited his claim by
any action or inaction in the court below.
Appellate review of a minor’s lack of evidence claim is governed by the
same standard applicable to adult criminal cases. Trial courts have “very
broad discretion” in determining whether a probationer has violated
probation and thus “ ‘only in a very extreme case should an appellate court
interfere with the discretion of the trial court in the matter of denying or
revoking probation.’ ” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
Generally, when a finding of a probation violation is challenged based upon
sufficiency of the evidence, the reviewing court’s role is to decide “whether,
upon review of the entire record, there is substantial evidence of solid value,
contradicted or uncontradicted, which will support the trial court’s decision.
In that regard, we give great deference to the trial court and resolve all
inferences and intendments in favor of the judgment. Similarly, all
conflicting evidence will be resolved in favor of the decision.” (People v. Kurey
(2001) 88 Cal.App.4th 840, 848–849.) The prosecution must prove a minor’s
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probation violation by a preponderance of the evidence. (In re Eddie M.
(2003) 31 Cal.4th 480, 501; Welf. & Inst. Code, § 777, subd. (c).)
Here, the probation department’s notice of probation violation states
that Nicholas was prohibited from possessing “any prescription drugs for
which he does not have a current prescription from a duly licensed
physician.” (Italics added.) The notice further states that he violated this
condition by possessing “the drugs” for which he did not have a prescription.1
This statement of violation omits the critical term “prescription” in describing
the drugs Nicholas purportedly possessed. By doing so, it fails to state a
violation of the probation condition cited in the notice. The violation, as thus
described, would include possession of such “drugs” as aspirin, Robitussin
cough syrup or Pepto Bismol, none of which would violate the probation
condition. Therefore, Nicholas’s admission to the allegation, “as written” that
he possessed “drugs that were not prescribed” for him, was not an admission
that he violated a probation condition.
Further, as the People acknowledge, contrary to the probation
department’s report to the court, the only drug found in Nicholas’s
possession, Clonazolam, is not a “Schedule 1” drug. The department’s
reference to “Schedule 1” presumably was to the controlled substances listed
in Health and Safety Code section 11054 (entitled “Schedule 1 list of
controlled substances”). (See People v. Davis (2013) 57 Cal.4th 353, 358 [“The
Health and Safety Code lists the various substances it controls in five
extensive schedules. ([Health & Saf. Code,] §§ 11054–11058.)” Clonazolam is
1 The probation condition also prohibited Nicholas from possessing
illegal drugs, marijuana, synthetic marijuana, drug paraphernalia and
alcohol. However, the department did not allege that Nicholas violated his
probation by possession of any of those items.
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not among the substances listed in Health and Safety Code section 11054.
Nor is it among those listed in Health and Safety Code sections 11055
through 11058. Further, the parties do not identify any evidence in the
record that Clonazolam is either an illegal or a prescription drug. Indeed, the
People agree on appeal that it is not a prescription drug.2
In short, the court’s finding that Nicholas violated his probation by
possessing drugs for which he had no prescription must be reversed for lack
of a factual basis to support it. In light of our conclusion, we do not address
the remainder of Nicholas’s arguments for reversal of that finding.
II.
Nicholas’s Probation Condition Claims Are Moot
The juvenile court ordered as probation conditions that Nicholas “[n]ot
knowingly use or possess any knives or dangerous/deadly weapons” and
follow the orders of his probation officer. Nicholas argues that two probation
conditions are constitutionally overbroad and should be stricken or modified.
We might consider these issues if Nicholas’s wardship remained active in the
juvenile court because of the possibility the court would continue to impose
these conditions. Here, however, we conclude these issues are moot because
Nicholas is no longer on probation or a ward of the juvenile court.
“A case is considered moot when ‘the question addressed was at one
time a live issue in the case,’ but has been deprived of life ‘because of events
occurring after the judicial process was initiated.’ [Citation.] . . . The pivotal
2 Possession of Schedule I and Schedule II substances (those listed in
Health and Safety Code sections 11054 and 11055) is a criminal offense, and
possession of Schedule III, IV and V substances (sections 11056 through
11058) without a prescription is a criminal offense. (Health & Saf. Code,
§ 11350, subd. (a).)
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question in determining if a case is moot is . . . whether the court can grant
[the plaintiff] any effectual relief . . . . [Citations.] . . . If events have made
such relief impracticable, the controversy has become ‘overripe’ and is
therefore moot.” (Wilson & Wilson v. City Council of Redwood City (2011)
191 Cal.App.4th 1559, 1574; see also In re N.S. (2016) 245 Cal.App.4th 53, 60
[“[T]he critical factor in considering whether a dependency appeal is moot is
whether the appellate court can provide any effective relief if it finds
reversible error”].) “However, a reviewing court may exercise its inherent
discretion to resolve an issue rendered moot by subsequent events if the
question to be decided is of continuing public importance and is a question
capable of repetition, yet evading review.” (In re Yvonne W. (2008)
165 Cal.App.4th 1394, 1404.)
On May 18, 2021, when Nicholas was 19 years old, the court
terminated his probation as unsuccessful and vacated his wardship. The
record as augmented by the parties indicates the court’s May 18, 2021 rulings
were not related to the probation conditions Nicholas challenges in this
appeal, but instead resulted from Nicholas’s persistent substance abuse.
Because Nicholas is no longer on probation, he is no longer subject to the
probation conditions he challenges. Therefore, striking or modifying them
would grant Nicholas no practical relief. Further, Nicholas’s claims do not
present issues of continuing public importance that would consistently evade
review if left unresolved and require that we exercising our discretion to
overlook mootness.
In short, Nicholas’s challenges to these two probation conditions are
moot.
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DISPOSITION
Nicholas’s claims regarding his probation conditions are dismissed as
moot. The juvenile court’s July 23, 2020 finding that Nicholas committed a
probation violation and its related August 6, 2020 dispositional order are
reversed.
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_________________________
Stewart, J.
We concur:
_________________________
Kline, P. J.
_________________________
Miller, J.
In re Nicholas P. (A161091)
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