Opinion
Pedro M., the appellant herein, was declared a ward of the juvenile court (Welf. & Inst. Code, § 602) 1 on May 20, 1997, after admitting that he had committed a forcible lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)), a lewd act upon a child under the age of 14 yеars (Pen. Code, § 288, subd. (a)) and second degree commercial burglary (Pen. Code, § 459). The court ordered him suitably placed subject to a variety of conditions of probation, including that he obey all orders of the court and probation officer, and that he “[cjooperate in a plan for psychiatric, psychological testing or treatment.”
Appellant was placed in the Rancho San Antonio sexual offender program on June 11, 1997, as recommended by the juvenile court, and was removed 18 months later for purportedly “refusing to comply with the treatment plan and staff.” A supplemental petition (§ 777, subd. (a)) was filed on December 14, 1998, alleging that the suitable placement disposition had been ineffective in appellant’s rehabilitation and requesting that he be committed to the California Youth Authority (the CYA). Following an adjudication hearing on February 4, 1999, the juvenile court sustained two counts of the supplemental petition, finding that appellant had failed to obey the orders of the court and prоbation officer by refusing to comply with his treatment plan at Rancho San Antonio, and had failed to cooperate in a plan for psychiatric and psychological treatment as ordered by the court, thereby violating conditions of probation Nos. 1, 2, and 26. At the disposition hearing on February 26, 1999, the juvenile court continued appellant’s wardship and ordered him committed to the CYA. The court declared appellant’s maximum period of confinement to be 11 years 8 months and awarded him prеdisposition credit, without specifying the number of days to which he was entitled.
Appealing from the latter orders relating to the supplemental petition, appellant contends: “I. The evidence in this matter was not sufficient to support the juvenile court’s true findings. . . . [¶] II. The juvenile court abused its discretion by committing appellant [to] the California Youth *554 Authority. ...[![] III. The juvenile court erred in failing to determine appellant’s predisposition credits.”
Appellant initially contends that the testimony of Judy Brevaire, his therapist аt Rancho San Antonio, was erroneously admitted after he invoked the psychotherapist-patient privilege (Evid. Code, §§ 1012, 1014), and that the evidence was insufficient in any event to establish that he had committed the probation violations alleged in the supplemental petition and that his previous placement had failed to rehabilitate him. We find his claims to be unpersuasive.
It is, of course, well settled that “[a] juvenile court enjoys broad discretion to fashion conditions of probation for the purpоse of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.]”
(In re Josh W.
(1997)
Quite obviously, the court’s ability to evaluate appellant’s compliance with this particular condition of the court’s disposition order and its effect on his rehabilitation would be severely diminished in the absencе of some type of feedback from the therapist, and it would be unreasonable for appellant to think otherwise. (Contrast
In re Eduardo A.
(1989)
Brevaire’s testimony was also sufficient
(In re Babak S.
(1993)
Brevaire placed appellant’s lack of progress in the Rancho San Antonio program squarely at appellant’s own feеt, citing his lack of motivation to change despite a number of interventions by Rancho San Antonio staff, the fact that he had “[l]ittle to no” empathy or remorse, and his passive-aggressive attitude toward his peers inside and outside the group therapy sessions. She also testified that appellant sometimes failed to complete his written therapy assignments and that he continually had to redo assignments because of his dishonesty. An additional measure of support for Brevaire’s opinion about apрellant’s lack of motivation was found in the testimony of appellant’s probation officer, though Brevaire’s testimony was sufficient in and of itself to prove the allegations of the supplemental petition.
Appellant’s second contention, сhallenging his commitment to the CYA, is likewise without merit. A decision by the juvenile court to commit a minor to the CYA will not be deemed to constitute an abuse of discretion where the evidence “demonstrate^] probable benefit to the minor from
*556
commitment to the CYA and that less restrictive alternatives would be ineffective or inappropriate. [Citation.]”
(In re George M.
(1993)
The evidence established that notwithstanding an 18-month placement in one of the best sex offender treatment programs available at the county level, аppellant had made virtually no progress toward rehabilitation and readily admitted on the date he was removed from Rancho San Antonio, “ ‘Yes, I know I wasn’t doing my program. I haven’t been honest to myself and to others.’ ” Given the ineffectiveness of the Ranсho San Antonio placement and the probation officer’s indication that he knew of no other program apart from the CYA which could offer appellant “anything else that he has not been offered so far,” the juvenile court was not requirеd to send appellant to another suitable placement program, particularly when the probation officer opined that the CYA offers a sex offender treatment program of the sort that would most likely benefit appellant, “a seсure setting with the comprehensive resources that will be able to meet his needs for correction and rehabilitation, such as participation in individual and small group . . . counseling sessions with a psychologist.”
Appellant’s third contention challenges thе juvenile court’s failure to determine appellant’s precommitment custody credit. While we agree that the juvenile court should have set forth the amount of precommitment custody credit to which appellant was entitled
(In re John. H.
(1992)
The detention report prepared on December 7, 1998, following appellant’s removal from Rancho San Antonio, recommends that appellant be detained at juvenile hall pending the filing of a supplemental petition. Consistent with that recommendation, the court’s minute order of December 9, 1998, reflects “Minor is/remains detained JH.” However, the supplemental petition which *557 was executed and filed five days later on Decеmber 14, 1998, states, “Minor is not detained. The present whereabouts of minor is Home.” (Original boldface.) On the other hand, the probation report of December 15, 1998, identifies appellant’s whereabouts as “juvenile hall.” The court’s minute order of the same date says, “Minor is/remains detained except for preplacement visits JH” and also bears the notation “released this pet.” Subsequent minute orders dated January 7, 1999, February 3, 1999, February 4, 1999, and February 26, 1999, indicate that appellant was detained in juvenile hall on those dates.
At the very least, there are serious questions regarding appellant’s whereabouts between the dates of December 9, 1998, and December 15, 1998. That being so, this court obviously cannot resolve the precommitment custody credit issue with certitude. It-is a matter that should be directed to the trial court. (See
In re Ricky H.
(1981)
Disposition
The orders sustaining the supplemental petition and committing appellant to the CYA are affirmed. However, the case is remanded to the juvenile court with directions: (1) to calculate the amount of precommitment custody credit to which appellant is entitled; (2) to prepare an amended commitment order reflecting such credit; and (3) to forward a certified copy of the amended commitment order to the CYA.
Cooper, J., and Mallano, J., * concurred.
A petition for a rehearing was denied July 5, 2000, and appellant’s petition for review by the Supreme Court was denied September 27, 2000.
Notes
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
This conclusion renders it unnecessary for this сourt to address the effects on pending cases of recent amendments to section 777 resulting from the passage of Proposition 21. (See Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, pp. 32-33 <http://vote2000.ss.ca.gov/VoterGuide/Propositions/21text.htm> [as оf Apr. 25, 2000].) As both parties appear to acknowledge in their letter briefing calling this statutory change to our attention, a new disposition may be ordered under the current version of section 777 upon proper proof that a minor has violated an order of the court.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.