In re J.M. ( 2019 )

Filed 5/31/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re J.M., a Minor, on Habeas Corpus.
THE PEOPLE,
Plaintiff and Respondent,
v. A153296; A156093
J.M., (Sonoma County
Defendant and Appellant. Super. Ct. No. J38898)
J.M., a minor, entered into a plea agreement, pursuant to which she admitted a
felony charge of torture (Pen. Code, § 206). The juvenile court declared J.M. a ward of
the court pursuant to Welfare and Institutions Code section 6021 and committed her to the
Department of Corrections and Rehabilitation, Division of Juvenile Justice (also Division
of Juvenile Facilities; hereafter DJJ)2 for a maximum term of seven years, with credit for
206 days in custody. On appeal, J.M. contends the juvenile court did not make certain
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the Factual Background, Procedural
Background, and parts A, B, C, D, E, F, and H of the Discussion.
1
Undesignated statutory references are to the Welfare and Institutions Code. Under
section 602, “any minor who is between 12 years of age and 17 years of age, inclusive,
when he or she violates any law of this state . . . is within the jurisdiction of the juvenile
court, which may adjudge the minor to be a ward of the court.” (§ 602, subd. (a).)
2
The Department of Juvenile Facilities (DJF) is part of the DJJ, which in turn is
part of the Department of Corrections and Rehabilitation. (In re D.J. (2010)
185 Cal. App. 4th 278, 280, fn. 1.) The parties refer to the authority to which J.M. was
committed as either the DJF or DJJ. For consistency, we will refer to it as the DJJ.
1
legally required findings and abused its discretion. J.M. also contends her admission was
not voluntary and her counsel rendered ineffective assistance. Moreover, in supplemental
briefing, J.M. argues the case should be remanded so that the juvenile court can
determine whether to grant her a mental health diversion under Penal Code sections
1001.35 and 1001.36. In a consolidated petition for writ of habeas corpus, J.M. reiterates
her claims of ineffective assistance of counsel and involuntary admission.
In the published portion of our opinion, we conclude the mental health diversion
law does not apply to juveniles in delinquency proceedings. In the unpublished portion
of our opinion, we order that the juvenile court’s imposition of a registration fee for the
appointment of counsel and the discretionary probation conditions be stricken from the
December 4, 2017, disposition order. We also order that the prohibition against J.M.
possessing a “weapon” until age 30 be amended to substitute “firearm” for “weapon,”
consistent with Penal Code section 29820, subdivision (b). The juvenile court is directed
to amend its records in a manner consistent with this opinion and to forward copies of all
such pertinent documents to the Director of DJJ (see post, part E). We also direct the
trial court clerk to correct the date on the notice of appeal (see post, p. 8, fn. 3). In all
other respects, we affirm the disposition order, without prejudice to J.M. raising the issue
of additional post-disposition credits in the juvenile court (see post, part D, pp. 20–21),
and we deny the petition for a writ of habeas corpus.
FACTUAL BACKGROUND
The facts of J.M.’s offense are taken from the probation report and the video
evidence of the attack. On May 13, 2017, J.M. (aged 14) and another female minor, S.S.,
attacked minor Jane Doe at a cemetery. S.S. and J.M. took turns slapping, punching and
kicking Jane and pulling her hair. Jane estimated that the attack lasted 10 minutes, and
that she was punched 100 times and kicked 50 times. During the attack, Jane lost a large
amount of blood and also lost control of her bladder and bowel functions. Her injuries
included a fractured skull and broken nose.
S.S. and J.M. recorded cell phone videos of the attack and shared them with
friends. Videos obtained by law enforcement depicted J.M. and S.S. repeatedly accusing
2
Jane of “talking shit” as Jane apologized and pleaded with them. In the longer of the two
videos, J.M. was seen urging Jane to fight, punching and slapping her, and pulling her
hair. Jane had blood on her face, and her speech was slurred. At times she appeared
about to faint, prompting J.M. to say, “ ‘Oh, don’t act like you’re gonna faint.’ ” After
Jane lost control of her bladder, J.M. exclaimed, “She peed her pants, bro!” as S.S.
continued to punch Jane in the head. Moments later, S.S. kicked, punched, and shoved
Jane, causing her to fall onto a nearby dirt berm. As she fell, her head “snap[ped]
violently back to front,” and J.M. exclaimed, “Oh shit, [S.S.]!” and laughed as S.S.
continued to punch Jane.
At one point, Jane was seated on the ground with S.S. standing behind and leaning
over her. Jane put her right hand to her face, and J.M. asked “Are you okay?” Jane
responded, “No,” and J.M. said, “No, you’re not okay,” as S.S. continued punching Jane
on the right side of her head. J.M. continued to demand that Jane fight her and hit Jane’s
face and head. During the attack, Jane lost control of her bowel functions, and S.S.
exclaimed, “This bitch shit her pants, she shit her pants, ha!” J.M. then noticed blood on
her shoe and ordered Jane to lick it off. Jane complied. S.S. then ordered Jane to lick the
blood off the bottom of her shoe, and Jane did so. J.M. and S.S. both stated, “Good girl.”
The video ended with Jane fleeing the scene, as J.M. said “Bye!”
In an interview with a sheriff’s deputy after the attack, J.M. said that she had
shared a secret with Jane and trusted her not to tell anyone, but Jane revealed the secret to
others at school. J.M. claimed that she did not want to fight Jane and only wanted to talk
to her, and that S.S. had arranged the meeting at the cemetery. After the deputy showed
J.M. the videos of the attack, J.M. cried, saying “ ‘It’s cruel, what we did,’ ” and stated
she wanted to take responsibility for what happened.
A detective interviewed Trevor, who was J.M.’s boyfriend and Jane’s ex-
boyfriend. Trevor told the detective he believed Jane was spreading rumors about J.M.
and was trying to cause problems between him and J.M. J.M. sent a video of the attack to
Trevor and two others. He provided deputies with his cell phone, which contained a text
3
message from J.M. to Jane three days prior to the attack in which J.M. physically
threatened Jane for “talking shit.”
J.M. denied that she and S.S. planned the attack together. She told an investigator
that she and S.S went dog-walking together and ended up at the cemetery, when S.S. told
J.M. “ ‘to count to five, then walk up.’ ” A few minutes later, J.M. arrived at a bench and
saw S.S. and Jane there. S.S. suddenly yelled at J.M., “ ‘I’m going to fight you, bitch,’ ”
which confused J.M. J.M. also noticed Jane recording them on video and thought it was
a set-up, but S.S. then told J.M., “ ‘Don’t worry, we’re going to get her. Ready?’ ” S.S.
then started attacking Jane. J.M. told investigators she did not understand what was
going on until S.S. started attacking the victim. J.M. also claimed to remember only
certain parts of the attack, but confirmed she was not under the influence of drugs or
alcohol during the offense.
According to the probation report, J.M. disclosed that she suffered from
depression and posttraumatic stress disorder (PTSD) due to a history of abuse and
trauma. J.M. was physically abused by her father and repeatedly raped by her mother’s
boyfriend. J.M. has suffered from mood and behavioral disorders, and has engaged in
self-cutting and attempted suicide multiple times.
J.M. met and befriended S.S. while attending New Directions School, a
therapeutic non-public school. J.M. described S.S. as “ ‘bolder’ ” and “ ‘more out
there’ ” than she was. J.M. later transferred to Casa Grande High School (Casa Grande),
which she found to be overwhelming due to its size and lack of structure, but she
maintained good grades, participated in sports and cheerleading, and was enrolled in
junior college.
J.M. met Jane at Casa Grande. After learning that Jane’s mother sometimes hit
Jane, J.M. confided that she had been physically and sexually abused by her former
“stepfather.” A few days later, J.M. learned that Jane had been telling people at school
that J.M. had sex with her father. When J.M. approached Jane and asked to talk with her,
Jane replied, “I don’t want to talk to you, psycho bitch, go fuck your dad.” Jane also
began spreading rumors about J.M. “giving oral sex to kids at school.” J.M.’s mother and
4
sister advised her to ignore Jane, and J.M. “was ‘already kind of over it,’ ” but S.S.
encouraged J.M. to fight Jane.
J.M. told investigators that she did not want to participate in the attack on Jane, but
felt she had to. She said she had only vague memories of what occurred after S.S. first
grabbed Jane, and during the attack, J.M. “thought of [her stepfather] and her biological
father, who were both violent toward her, and she ‘pictured [her stepfather] there.’ ”
PROCEDURAL BACKGROUND
In May 2017, the People filed a juvenile wardship petition (§ 602) alleging J.M.
committed two felony offenses against Jane: torture (Pen. Code, § 206; count 1), and
assault by means of force (Pen. Code, § 245, subd. (a)(4); count 2), with an enhancement
on count 2 for personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)).
The juvenile court appointed public defender Cristina Hess to represent J.M. and assessed
a $50 registration fee.
On September 11, 2017, Hess informed the juvenile court that J.M. was prepared
to admit the torture allegation and to request dismissal of the balance of the petition. J.M.
and her counsel signed a form entitled “Waiver of Constitutional Rights and Declaration
in Support of Minor’s Motion to Admit/Plead No Contest” (the “waiver form”), and the
juvenile court questioned J.M. extensively on her understanding of the rights she was
waiving. Hess stipulated on the record that a factual basis for the admission existed
based upon her own investigation, and that she consented to J.M.’s admission. In the
waiver form, Hess represented that J.M.’s decision to admit “was made only after a full
discussion with me of the facts and the law of this case.” Following the plea colloquy,
the court found that J.M. was waiving her rights to a hearing on the torture allegation and
her constitutional rights “freely, voluntarily, knowingly, and intelligently.” The court
also determined that J.M. “understands the nature of her conduct alleged in the petition
and the consequences of an admission, and that there’s a factual basis for the admission.”
The juvenile court then informed J.M. that torture carries “under adult law, a life
sentence. So that means you could remain in the [DJJ] up until age 25, and then there
would be a period of parole after you turned 25.” The court also recited the petition’s
5
allegations against J.M. as follows: “[O]n or about May 13, 2017, here, in the County of
Sonoma, you did unlawfully and with the intent to cause cruel and extreme pain and
suffering for the purpose of revenge, extortion, persuasion, or for a sadistic purpose,
inflict great bodily injury on Jane Doe, as defined in [section] 12022.7 of the Penal
Code.” At this point, J.M. admitted the charge of torture. The court accepted the
admission and ordered a psychological evaluation. The court indicated that two doctors
previously used were unavailable, and the court had “call[ed] an additional doctor,” but
the matter was continued for a day to find an available doctor. The next day, the court
appointed Kevin Kelly, Ph.D., to perform the evaluation.
In his report, Dr. Kelly indicated the focus of the evaluation was J.M.’s
“psychological status in light of the possibility of long-term placement or commitment to
DJJ.” He diagnosed her with PTSD stemming from multiple childhood experiences, and
symptoms of anxiety and depression. He noted that J.M. scored moderately high levels
on the submissive scale in his testing, and she characterized herself as a follower. Dr.
Kelly opined that while the prognosis for treatment within the community was favorable,
it was “[u]nknown and undeterminable . . . whether [J.M.] was at risk for acting out in a
violent manner while treatment was in progress.” She “ ‘was not out of the woods yet in
regard to her volatility,’ ” and it would take several years of maturing and therapy for her
to overcome over responsiveness to triggers. Dr. Kelly concluded that treatment of
J.M.’s depressive symptoms through programs of the DJJ “would provide maximal safety
for the community while affording [J.M.] opportunity to complete her education with less
risk of conflict among her peers.” While DJJ placement would have the drawback of
putting J.M. in proximity with more criminally sophisticated juveniles, Dr. Kelly felt J.M.
“had the adaptive skills and psychological defenses that would serve her well, whether in
treatment in the community or through [DJJ].”
Probation officer Victoria Nash issued a report recommending that J.M. be
committed to DJJ. Nash indicated that a probation screening committee had reviewed all
dispositional options and ruled out community-based treatment as too much of a risk to
the public given the severity of the offense. California did not have locked treatment
6
facilities that were appropriate to J.M.’s needs to address public safety, and the only
viable options were out-of-state secured placement. The screening committee noted DJJ
has a small female population at its Ventura facility and uses an “Integrated Behavior
Treatment Model”—“an evidence-based practice that includes trauma-focused cognitive
behavior therapy.” The facility also has a separate mental health unit to serve those with
more intensive therapy and supervision, and parents can take an active role in treatment
and case planning.
At the disposition hearing on November 13, 2017, the juvenile court, on Hess’s
request, continued the matter so that the probation department could conduct a more
thorough evaluation regarding additional placement options. The court also indicated its
intent to review the videos. Thereafter, the probation department submitted a
supplemental report, which discussed various placement options but concluded they were
not of sufficient duration to provide for public safety or J.M.’s rehabilitation.
At the continued hearing on December 4, 2017, the juvenile court declared J.M. a
ward of the court. The court found J.M. came “within the provisions of section 602 and
777 of the Juvenile Court Law and is eligible for the [DJJ].” The court ordered J.M. to
have no contact with S.S. or the victim and her family, to stay away from the victim’s
property, to not annoy, harass, harm or threaten the victim, and to pay a restitution fine
and direct restitution to the victim. The court further ordered that J.M. could not possess
a “weapon” until age 30.
The juvenile court stated it took into consideration J.M.’s best interests, including
her mental health issues, but concluded treatment at the local level or in placement was
not in her best interests due to the callousness and cruelty of the offense and the need to
protect public safety. The court further stated, “This offense of torture was a hate crime
within the meaning of [section 707, subdivision (b)].” The court said it considered the
individual facts and circumstances of the case in determining the maximum period of
confinement pursuant to section 731, subdivision (c), and found it “probable that [J.M.]
will benefit from the reformatory discipline or other treatment as provided by the [DJJ].”
The court also observed that J.M. “is an individual with exceptional needs” and has an
7
Individualized Education Program (IEP) “that will be included in the packet sent to the
[DJJ].” J.M. was committed to the Ventura Youth Correctional Facility in Camarillo,
California, for a maximum period of seven years, with credit for 206 days in custody.
She remained in custody in juvenile hall until February 28, 2018, when she was
transported to the Ventura facility.
J.M. filed a notice of appeal.3 She also filed a petition for a writ of habeas corpus.
We consolidated the habeas petition with the appeal and directed the People to furnish an
informal response to the petition.
DISCUSSION
A. Minor Understands the Nature of the Offense
J.M. contends the juvenile court failed to make the requisite finding that she
understood the nature of the offense she was admitting. Before accepting a minor’s
admission in a case under section 602, the juvenile court must, among other things, “find
and state on the record that it is satisfied that the child understands the nature of the
allegations and direct consequences of the admission.” (Cal. Rules of Court, rule
5.778(c).) “It is a principal purpose of the juvenile court rules that the court ascertain and
assure itself that the minor understands the nature of the charges.” (In re Regina N.
(1981) 117 Cal. App. 3d 577, 585 (Regina N.).)
Regina N. is instructive but, contrary to J.M.’s assertions, does not support her
claim of error. In Regina N., the minor had signed a voluntary admission form that
“referred cryptically to ‘the contents of the Petition,’ and required only that ‘I affirm that
my misconduct is voluntarily admitted by me.’ ” (Regina N., supra, 117 Cal.App.3d at
pp. 586–587.) The juvenile court made no attempt to determine whether the minor
understood the offense she was admitting, and made no finding confirming the minor’s
understanding. (Id. at pp. 584–586.) This was particularly problematic because the
3
Although the notice of appeal was filed-stamped January 4, 2017, both parties
agree this was a clerical error. We deem the notice of appeal to have been timely filed in
January 2018 and direct the trial court clerk to correct the date on the notice of appeal.
(People v. Mitchell (2001) 26 Cal. 4th 181, 186–187.)
8
minor’s comments at the disposition hearing appeared to indicate her misapprehension of
the admitted offense. Specifically, the minor continued to make a factual assertion
“which, if true, would have absolved her of the offense claimed to be admitted.”
(Id. at p. 587.)
Likening her case to Regina N., J.M. argues the waiver form used here was
inadequate because it did not mention the elements of torture. In response, the People
observe that before eliciting J.M.’s admission, the juvenile court did in fact recite the
torture count allegations, which closely tracked the statutory definition of the offense.
We need not decide whether a juvenile court’s pre-plea recitation of the statutory
definition of an offense is sufficient, by itself, to uphold a finding that the juvenile
understood the nature of that offense. Significantly, the totality of the circumstances
leading up to J.M.’s admission supported the juvenile court’s finding that J.M.
understood the nature of the torture count and the direct consequences of her admission.
At the May 16, 2017, detention hearing, the juvenile court read the allegations of
the petition to J.M. for the first time. Just as in the September 11, 2017, plea hearing, the
court’s reading tracked the statutory definition of torture, identified Jane Doe as the
victim, and specified the date of the alleged crimes. J.M.’s counsel informed the court
that she expected entry of the plea “to take more time than usual based on the seriousness
of the offense.” The juvenile court, commenting on the seriousness and troubling nature
of the offense, continued the plea hearing, issued a criminal protective order, and ordered
that J.M. be detained. At a plea hearing on May 31, 2017, the court granted the request
of J.M.’s counsel for a continuance due to counsel’s report of significant outstanding
discovery in the matter. At the June 21, 2017, hearing, J.M.’s counsel informed the court
she had just received the People’s offer on the torture count. J.M.’s counsel requested
more time “to be able to make a decision regarding the matter and the [People’s] offer,”
and the court responded, “I understand that, because Count 1 is a very serious offense.
So certainly if the offer was made today by the District Attorney you would want some
time to speak to [J.M.] about that and explain the ramifications of her admitting the
charge, which is extremely serious.”
9
In light of the discussions at these various hearings, the juvenile court could
reasonably conclude at the plea hearing on September 11, 2017, that J.M.’s counsel
undertook a review of all available discovery and, consistent with her prior
representations in court and her initialed statement on the waiver form, counsel did in fact
fully discuss the facts and the law with J.M. and explain the nature and seriousness of the
torture charge and ramifications of an admission. And when J.M. admitted the torture
charge after hearing a reading of the torture allegations, the court could reasonably find
that J.M. did so with a sufficient understanding of the nature of that charge and the
consequences of her admission. Moreover, in contrast to the facts in Regina N., there is
nothing in the instant record casting doubt on the juvenile court’s finding, i.e., J.M. never
took a position or made any comments indicating a misunderstanding of the crime she
was admitting.
J.M. nonetheless maintains the juvenile court’s handling of her admission was
inadequate. Relying on People v. Wiley (1976) 18 Cal. 3d 162 (Wiley) and the
Department of Justice’s manual for Proposition 115,4 J.M. argues the court’s reading of
the statute-tracking torture allegations failed to convey that the requisite intent for torture
is a calculated and “cold-blooded” state of mind, which is not satisfied when a juvenile
merely engages in a spontaneous fight.
J.M.’s reliance on these authorities is misplaced. Wiley’s discussion of “cold-
blooded” intent, and the references to Wiley in the Proposition 115 manual, are meant to
focus the attention on the perpetrator’s intentional state of mind and away from the extent
of the victim’s suffering—to “dispense with the requirement of proof the victim suffered
pain.” (Raven, supra, 52 Cal.3d at p. 345.) These authorities do not suggest the terms
“calculated” and “cold-blooded” describe a requisite state of mind akin to premeditation,
or one that is not conveyed in the plain statutory language “intent to cause cruel or
4
Proposition 115, the “Crime Victims Justice Reform Act” enacted by voters in
1990, added Penal Code sections 206 and 206.1 “to define the crime of torture, dispense
with the requirement of proof the victim suffered pain, and impose a term of life
imprisonment.” (Raven v. Deukmejian (1990) 52 Cal. 3d 336, 345 (Raven).)
10
extreme pain and suffering.” (Pen. Code, § 206.) Thus, the juvenile court’s reading of
the statute-tracking torture allegations was not insufficient for failing to require
premeditation and deliberation. (See People v. Massie (2006) 142 Cal. App. 4th 365, 371–
372 (Massie) [intent to inflict pain and injury “can be formed without any reflection at
all”]; People v. Pre (2004) 117 Cal. App. 4th 413, 420 (Pre).) Moreover, the remaining
statutory terms “revenge, extortion, and persuasion are self-explanatory” and “[s]adistic
purpose encompasses the common meaning, ‘ “the infliction of pain on another person
for the purpose of experiencing pleasure.” ’ ” (Massie, supra, at p. 371.)
In sum, we conclude the juvenile court’s recitation of the torture allegations,
considered together with the circumstances leading up to and surrounding J.M.’s
admission, amply support the juvenile court’s finding that J.M. understood the nature of
the torture charge and the direct consequences of her admission. (Cal. Rules of Court,
rule 5.778(c); Regina N., supra, 117 Cal.App.3d at p. 585.)
B. Factual Basis for the Admission
J.M. argues there was an insufficient factual basis for her admission because:
(1) she lacked the requisite “cold-blooded” state of mind for torture; (2) her personal
characteristics and history (i.e., submissiveness, history of abuse, PTSD, depression and
anxiety) preclude a finding of the requisite intent to torture; (3) the offense was intended
to apply to hardened criminals for heinous acts, not 14-year-old children; and (4) the
admission was not in J.M.’s best interests.5
5
The People assert that, by her admission, J.M. forfeited many of the challenges she
presents on appeal, including the sufficiency of the plea’s factual basis and the
voluntariness of her plea. J.M. argues her appeal is cognizable under People v. Palmer
(2013) 58 Cal. 4th 110 (Palmer). In Palmer, the California Supreme Court declined to
resolve a dispute among two appellate courts as to whether a challenge to a plea’s factual
basis is cognizable on appeal, finding both cases distinguishable and concluding the
challenge before it was cognizable on appeal notwithstanding defense counsel’s
stipulation to a factual basis. (Palmer, supra, at pp. 115–116.) We likewise need not
weigh in on the split of authorities because, for the reasons discussed below, even if
appellate review of J.M.’s factual basis claim is cognizable and error is assumed, any
such error was harmless. As for J.M.’s other challenges, we find she is permitted to
appeal her admission to criminal conduct on the grounds that it was not voluntary and
11
The juvenile court is required to expressly find a factual basis for a juvenile’s
admission or plea of no contest. (Cal. Rules of Court, rule 5.778(f)(6).) The requirement
of stating a factual basis for the record serves “ ‘to protect against the situation where the
defendant, although [s]he realizes what [s]he has done, is not sufficiently skilled in law to
recognize that [her] acts do not constitute the offense with which [s]he is charged.’ ”
(People v. French (2008) 43 Cal. 4th 36, 50.) The court is permitted to accept a
stipulation from counsel that a factual basis for the plea exists, so long as “the plea
colloquy reveals that the defendant has discussed the elements of the crime and any
defenses with his or her counsel and is satisfied with counsel’s advice.” (Palmer, supra,
58 Cal.4th at p. 118.) The court has “wide discretion” in determining whether a sufficient
factual basis exists, and the exercise of this discretion will be reversed only for abuse.
(Id. at pp. 118–119.)
Here, the juvenile court accepted Hess’s stipulation to a factual basis, but there
was nothing in the waiver form or in the colloquy at the September 11, 2017, plea hearing
indicating that Hess had specifically discussed the elements of the crime or any defenses
with J.M. Consequently, compliance with Palmer and rule 5.778(f)(6) was lacking.
(Palmer, supra, 58 Cal.4th at p. 118.)
Nonetheless, where, as here, counsel below stipulates to a factual basis for a plea,
but appellate counsel disputes its adequacy, we may review the record to determine if it
establishes an adequate factual basis for the plea. (People v. Mickens (1995)
38 Cal. App. 4th 1557, 1564 (Mickens).) In conducting this review, “we are not looking
for evidence sufficient to support a conviction in a trial after a not guilty plea. Instead,
we are seeking to determine whether the [record] contain[s] sufficient information upon
which the trial court could conclude there was a prima facie factual basis for the
charges.” (People v. Wilkerson (1992) 6 Cal. App. 4th 1571, 1579–1580.) In Mickens,
supra, at page 1565, the appellate court found the trial court’s non-compliance with Penal
that it involves the legal impossibility that minors are legally incapable of forming the
intent for torture. (In re M.V. (2014) 225 Cal. App. 4th 1495, 1519.)
12
Code section 1192.56 was harmless based on information contained in the probation
officer’s report alone. (Cf. People v. Tigner (1982) 133 Cal. App. 3d 430, 435 [non-
compliance found prejudicial where appellate court had available for review only a
presentence report in which the defendant denied any culpability].)
Here, we detailed the contents of J.M.’s probation report above (ante, pp. 2–5) and
conclude they support a factual basis finding. Hence, any error in omitting to place these
facts on the record of the plea hearing was harmless. (Mickens, supra, 38 Cal.App.4th at
pp. 1563–1565.)
Regardless of her counsel’s stipulation and the facts recounted in the probation
report, J.M. cites People v. Tubby (1949) 34 Cal. 2d 72 (Tubby) for the position that her
attack on Jane did not constitute torture because she lacked the requisite cold-blooded
intent.7 As indicated, however, the relevant inquiry is whether the juvenile court could
find a prima facie factual basis for the torture charge. (Wilkerson, supra, 6 Cal.App.4th
at p. 1580.) We conclude it could. And unlike the defendant in Tubby, J.M. was not
intoxicated during the attack, and the record here was not devoid of any explanation as to
why she would desire the victim to suffer. (Tubby, supra, at pp. 76–77.) On the
contrary, substantial evidence—including the text message threat to Jane, the comments
and conduct of J.M. captured in the videos, and the statements of J.M. and Trevor to
investigators—supported the inference that J.M. intended to punish and retaliate against
Jane for betraying her trust and/or speaking ill of her.8
6
This statute contains the factual basis requirement for pleas of guilty or nolo
contendere by adult offenders.
7
“[T]orture has two elements: (1) a person inflicted great bodily injury upon the
person of another, and (2) the person inflicting the injury did so with specific intent to
cause cruel and extreme pain and suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose.” (People v. Baker (2002) 98 Cal. App. 4th 1217,
1223.) This specific intent “can be established by the circumstances of the offense and
other circumstantial evidence.” (Pre, supra, 117 Cal.App.4th at p. 420.)
8
J.M. highlights how she asked Jane, “Are you okay?” But it is disingenuous to
suggest this was out of real concern, as J.M. followed by saying, “No, you’re not okay,”
13
Moreover, that J.M. intended to cause cruel and extreme pain and suffering is
supported by the undisputed evidence of the vast number of times Jane was punched and
kicked and the severity of Jane’s injuries, which included a transitory loss of bladder and
bowel control, a large amount of blood loss, a fractured skull, and a broken nose. (See
Pre, supra, 117 Cal.App.4th at p. 421 [condition of victim’s body may establish
circumstantial evidence of intent].) That J.M. acted with a sadistic purpose is reasonably
inferred from her laughter and repeated efforts to humiliate Jane, which included forcing
Jane to lick blood off her shoe.
Relying upon Eighth Amendment cases relating to the sentencing of juvenile
offenders, J.M. also argues there is an implied presumption in the law that adolescents, by
virtue of their developmental immaturity, are incapable of forming the requisite intent of
torture. (E.g., Roper v. Simmons (2005) 543 U.S. 551 [Eighth Amendment prohibits
death penalty for juveniles]; Graham v. Florida (2010) 560 U.S. 48, 82 [Eighth
Amendment prohibits life sentence without parole for juvenile non-homicide offenders];
Miller v. Alabama (2012) 567 U.S. 460, 489 (Miller) [Eighth Amendment prohibits life
sentence without parole for juvenile homicide offenders].) But these cases and the high
court’s recognition of the “ ‘lessened culpability’ and greater ‘capacity for change’ ” of
juvenile offenders (Miller, at p. 465) preclude only the imposition of mandatory
sentences that do not allow for the appropriate mitigating considerations. Because these
cases say nothing about overturning the minors’ convictions for serious crimes, they
provide no support for the existence of an implied presumption that a juvenile offender
cannot commit serious crimes like torture.
J.M. argues the Legislature has chosen to treat minors differently in various
statutes and bills designed to give juvenile offenders added protections and second
chances—i.e., Senate Bill No. 1391 (2017–2018 Reg. Sess.) [amending section 707 to
eliminate transfer authority and jurisdiction of adult criminal court over juveniles aged 14
or 15 at time of offense]; and section 625.6 [consultation with legal counsel prior to
and continued attacking and humiliating Jane. This also demonstrated that J.M. was not
heedless of Jane’s pain and suffering.
14
custodial interrogation cannot be waived by youth 15 years or younger].) But this merely
demonstrates that when the Legislature wants to provide added protections or leniency
for juvenile offenders, it does so expressly. The Legislature has not done so for the crime
of torture. The juvenile court had clear statutory authority to accept J.M.’s admission to
the offense of torture because she was between the ages of 12 and 17 at the time she
violated a “law of this state” (§ 602, subd. (a)), and Penal Code section 206 is a law of
this state that does not limit its application to adult offenders. Moreover, section 707,
subdivision (b)(23), expressly lists torture as an offense that a 14 or 15-year-old can be
charged with, even if he or she cannot be transferred to adult criminal court for
prosecution.9
Finally, J.M. generally argues the crime of torture should apply only to the most
heinous acts by hardened criminals like the defendant in People v. Singleton (1980)
112 Cal. App. 3d 418 (Singleton). She recounts the gruesome details of various torture
cases and contends her offense did not rise to the same level. (See People v. Barrera
(1993) 14 Cal. App. 4th 1555, 1555 (Barrera) [shooting victim in leg and forcing him to
walk]; People v. Hale (1999) 75 Cal. App. 4th 94, 106 [smashing victim’s teeth out with
hammer]; People v. Burton (2006) 143 Cal. App. 4th 447, 452 [inflicting four deep cuts to
victim’s face].)
Barrera, however, expressly rejected the argument J.M. makes here. (Barrera,
supra, 14 Cal.App.4th at p. 1573; Pre, supra, 117 Cal.App.4th at p. 423.) In any event,
even though other victims of torture may have suffered more than Jane, the record
nonetheless discloses a prima facie factual basis for the torture charge, including facts
showing J.M.’s intent to cause Jane severe pain and suffering. Moreover, J.M. provides
9
In supplemental briefing, J.M. cites Penal Code section 415.5 as additional support
for her argument that fights between 14-year-olds do not constitute torture. We find
nothing instructive from this statute, which makes it a misdemeanor for any person, other
than a registered student, to unlawfully fight or maliciously and willfully disturb the
peace of another in school buildings or on school grounds. (Pen. Code, § 415.5,
subds. (a), (f).)
15
no authority supporting a defense to torture based on her PTSD, history of abuse, or
personal characteristics.
C. Voluntariness of the Admission
A juvenile court considering an admission by a juvenile must find “[t]he
admission or plea of no contest is freely and voluntarily made.” (Cal. Rules of Court,
rule 5.778(f)(5).) J.M. argues her admission was not voluntary because: (1) she was not
informed by her counsel or the court about the elements of the offense, and (2) she was
misadvised by the court about the consequences of her admission.
This first contention is based on a premise we have already rejected—that a
juvenile acting out of raw emotion is incapable of having the requisite intent for torture.
As for J.M.’s second contention, the People concede, and we agree, that the juvenile
court was mistaken in advising J.M. that she could remain in the DJJ until age 25. For
minors, such as J.M., who are declared wards and alleged to have committed a section
707, subdivision (b), offense between July 1, 2012 and July 1, 2018, the maximum period
they can be held at the DJJ (assuming no order for further detention) is until age 23.
(§ 1769, subd. (c).)10
Nonetheless, the error was harmless. “[A]n uninformed waiver based on the
failure of the court to advise an accused of the consequences of an admission constitutes
error which requires that the admission be set aside only if the error is prejudicial to the
accused.” (In re Ronald E. (1977) 19 Cal. 3d 315, 321.) To satisfy the prejudice
requirement, the defendant must show a reasonable probability that, but for counsel’s
errors, she would not have pleaded guilty and would have insisted on going to trial.
(Hill v. Lockhart (1985) 474 U.S. 52, 59 (Hill).) J.M. fails to demonstrate a reasonable
probability that she would have been less inclined to admit count 1 had she been
informed the maximum commitment term would be shorter than she was told.
10
While the maximum age has been raised to 25 for certain offenses, those changes
only apply to commitments made on or after July 1, 2018. (§§ 607, subd. (g), 1769,
subd. (d)(3).)
16
D. Abuse of Discretion
J.M. argues the juvenile court abused its discretion in committing her to DJJ
because: (1) there was no substantial evidence of a probable benefit to her or that less
restrictive options were inappropriate; (2) the commitment was not in her best interests
because the Ventura facility was far from her family, and it was inappropriate for her
educational and mental health needs; (3) the commitment was overly punitive and
retributive; (4) the decision was based on an erroneous finding that the offense was a
“hate crime”; (5) the court failed to exercise its discretion in giving J.M. the maximum
term of confinement; and (6) the court failed to account for all custody credits.
“The juvenile court must find a commitment to DJJ to be a probable benefit to the
minor.” (In re Travis J. (2013) 222 Cal. App. 4th 187, 199, citing § 734.) “An appellate
court ‘must indulge all reasonable inferences to support the decision of the juvenile court
and will not disturb its findings when there is substantial evidence to support them.
[Citations.]’ [Citation.] ‘In determining whether there was substantial evidence to
support the commitment, we must examine the record presented at the disposition hearing
in light of the purposes of the Juvenile Court Law.’ ” (In re Jose T. (2010)
191 Cal. App. 4th 1142, 1147.)
The general purpose of the Juvenile Court Law (§ 200 et seq.) “is to provide for
the protection and safety of the public and each minor under the jurisdiction of the
juvenile court and to preserve and strengthen the minor’s family ties whenever possible,
removing the minor from the custody of his or her parents only when necessary for his or
her welfare or for the safety and protection of the public.” (§ 202, subd. (a).) In this
regard, “ ‘ “the Legislature has not abandoned the traditional purpose of rehabilitation for
juvenile offenders,” and “[j]uvenile proceedings continue to be primarily
rehabilitative.” ’ ” (In re Carlos J. (2018) 22 Cal.App.5th 1, 5 (Carlos J.).)
In the instant matter, the factual details and video footage of the offense supported
the juvenile court’s finding of the egregiousness of the offense, which in turn supported
the need to protect public safety. (Carlos J., supra, 22 Cal.App.5th at p. 6 [court may
consider commitment as means of protecting public].) Although the probation
17
department found J.M.’s risk of reoffending to be low, Dr. Kelly’s finding that J.M.’s
volatility and risk of acting out violently during treatment were “[u]nknown and
undeterminable” nonetheless supported continuing concerns for public safety.
The juvenile court’s finding that J.M. would likely benefit from the reformatory
discipline and treatment provided by DJJ was also supported by substantial evidence.
The probation report discussed the availability of programs at DJJ to address J.M.’s
mental health needs, and Dr. Kelly opined that treatment of J.M.’s depressive symptoms
through DJJ programs would balance safety for the community with giving J.M. the
opportunity to complete her education with less risk of conflict among her peers.
Although Dr. Kelly expressed concern about J.M. being in proximity to criminally-
sophisticated juveniles, he concluded she had the adaptive skills and psychological
defenses to deal with this.
J.M. criticizes the probation report as lacking specific evidence of DJJ’s programs
that were expected to benefit her. But “the probation department is not required in its
report and initial testimony to provide in depth information about the [DJJ’s] programs.”
(Carlos J., supra, 22 Cal.App.5th at p. 13.) In Carlos J., the court committed a juvenile
with PTSD and gang affiliations to DJJ despite having no information regarding mental
health or gang intervention services provided by DJJ. (Id. at p. 11.) Our colleagues in
Division Five reversed, holding that in order for the juvenile court to make an informed
assessment, “there must be some specific evidence in the record of the programs at the
[DJJ] expected to benefit a minor.” (Id. at p. 10)
Here, the record was not similarly devoid of such evidence. The probation report
identified and briefly described the Ventura facility’s use of the “Integrated Behavior
Treatment Model” and the availability of a separate mental health unit. And contrary to
J.M.’s suggestion otherwise, the report also indicated the probation screening committee
reviewed all dispositional options but ruled out less restrictive options such as
community-based treatment because they were not of sufficient duration to provide for
public safety or J.M.’s rehabilitation, and there were no locked treatment facilities in
California.
18
While a juvenile court must also consider the nearness of a juvenile placement to
the juvenile’s home in order to achieve the goals of family reunification and
rehabilitation, “a minor’s special needs and best interests may justify a distant
placement.” (In re Nichole H. (2016) 244 Cal. App. 4th 1150, 1156.) Here, substantial
evidence supported the juvenile court’s decision that it was in J.M.’s best interests to be
placed in the Ventura facility, despite its distance from J.M.’s home. The egregiousness
of the offense ruled out community-based treatment, but there were no locked treatment
facilities appropriate to her needs in California, and the probation department’s
supplemental report concluded that the Ventura facility was more accessible to J.M.’s
family than an out-of-state program.
We also conclude the juvenile court did not, as J.M. claims, fail to consider her
educational needs. The probation report included a detailed summary of J.M.’s
educational history, and Dr. Kelly opined that J.M. would be able to focus on her
education in DJJ. The court received and reviewed additional information on J.M.’s
educational history, found that she had “exceptional needs” in this regard, and included
her IEP in the packet sent to DJJ. The court could properly assume DJJ, which is
responsible for assessing the educational needs of each ward upon commitment (§ 1120,
subd. (b)), would fulfill its duty to assess and address J.M.’s educational needs.
J.M. argues the seven-year maximum term of confinement was an abuse of
discretion because the juvenile court apparently believed it had no discretion in this
regard and adopted an erroneous statement in the probation report that torture would
carry a seven-year minimum term. On a silent record, it is presumed the court performed
its statutory duty under section 731, subdivision (c), to determine, in its discretion,
whether to impose either the equivalent of the maximum period of imprisonment that
could be imposed upon an adult convicted of the offense committed by the juvenile, or
some lesser period based on the facts and circumstances of the matter that brought the
juvenile under the court’s jurisdiction. (In re Julian R. (2009) 47 Cal. 4th 487, 498–499
(Julian R.).) Here, the juvenile court explicitly stated it had considered the facts and
circumstances of J.M.’s case pursuant to section 731, subdivision (c), in setting the
19
maximum term, and the court never stated that torture carried a seven-year minimum
term. The egregiousness of the offense, as shown by the probation report, the video
evidence, and the statements of the victim and her mother, along with J.M.’s need for
long-term mental health treatment, provided a sufficient basis for a long-term of
commitment at DJJ.
J.M. argues the juvenile court abused its discretion in finding the “offense of
torture was a hate crime within the meaning of [section] 707, [subdivision] (b).” Hate
crimes are not among the offenses listed in section 707, subdivision (b), but torture is.
(§ 707, subd. (b)(23).) Indulging all reasonable inferences to support the decision, we
conclude the court likely misspoke while attempting to state that torture is an offense
listed in section 707, subdivision (b). Hence, we reject as speculative J.M.’s contention
that this misstatement “was an improper and unsupportable finding that appears to have
affected its determination.”
Finally, J.M. argues the juvenile court abused its discretion by not crediting her for
273 days of dead time and additional credits for her time spent in custody between the
December 4, 2017, disposition hearing and the day she was transported to the DJJ’s
Ventura facility on February 28, 2018. A minor is entitled to credit against his or her
maximum term of confinement for the time spent in custody before the disposition
hearing. (In re Emilio C. (2004) 116 Cal. App. 4th 1058, 1067.) But because the record is
silent on how the juvenile court considered the relevant circumstances in calculating
J.M.’s credits for her time spent in custody before the December 4, 2017, disposition
hearing, we presume the court performed its duties and was aware of and followed the
applicable law. (Julian R., supra, 47 Cal.4th at pp. 498–499.) As for credits after the
disposition hearing, J.M. is generally correct that a minor is entitled to credits for the days
he or she was detained in juvenile hall after the disposition hearing and until his or her
placement. (In re J.M. (2009) 170 Cal. App. 4th 1253, 1256.) However, J.M. fails to
show error on the part of the juvenile court in failing to calculate those credits, since any
such period in custody had not yet occurred at the time the disposition order was made.
(In re Edward B. (2017) 10 Cal.App.5th 1228, 1238–1239.) The issue of whether J.M. is
20
entitled to additional credits for her time in custody after the December 4, 2017,
disposition hearing is best raised with the juvenile court in the first instance.
E. Conceded Errors
1. Public defender fee
J.M. argues, the People concede, and we agree the juvenile court erred in imposing
a $50 public defender fee. Recent amendments to sections 903.1, 903.15 and 903.45
eliminated the $50 registration fee for the appointment of counsel for a juvenile in a
wardship proceeding. (Stats. 2017, ch. 678, §§ 20, 21, 25.5 (Sen. Bill No. 190); § 903.1,
subd. (a)(1)(B)(i); In re D.B. (2018) 24 Cal.App.5th 252, 257–260.) Accordingly, we
strike the imposition of the registration fee.11
2. Section 777
J.M. argues, the People concede, and we agree the juvenile court erred in stating
orally at the disposition hearing that J.M. came within the provisions of section 777.
Section 777 did not apply because J.M. was not already a ward of the court or probationer
under section 601 and was not shown to have violated an order of the court or a condition
of probation. (See § 777, subd. (a)(1), (2); In re Paul R. (1996) 42 Cal. App. 4th 1582,
1588.) However, it appears there was no further consequence to the juvenile court’s
misstatement, and accordingly, the error was harmless.
3. Discretionary probation conditions
J.M. argues, the People concede, and we agree that the juvenile court erred by
imposing discretionary probation conditions following its commitment of J.M. to DJJ. A
juvenile court lacks authority to impose discretionary conditions of probation after
committing a minor to DJJ. (In re Allen N. (2000) 84 Cal. App. 4th 513, 515–516.)
Accordingly, we strike the specific conditions directing that J.M. not associate with S.S.,
have no contact with the victim or her family, stay away from the victim’s property, and
not annoy, harm, harass or threaten the victim. Additionally, the prohibition against J.M.
11
Thus, we need not reach J.M.’s additional argument that the registration fee
violated her equal protection rights, and we deny the related request for judicial notice.
21
possessing a “weapon” until age 30 shall be amended to substitute “firearm” for
“weapon,” consistent with Penal Code section 29820, subdivision (b).
F. Ineffective Assistance of Counsel
J.M. argues on appeal that she received ineffective assistance of counsel from
Hess. “A defendant claiming ineffective assistance of counsel under the federal or state
Constitution must show both deficient performance under an objective standard of
professional reasonableness and prejudice under a test of reasonable probability of a
different outcome.” (People v. Jones (1998) 17 Cal. 4th 279, 309.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) We must “presume
that counsel rendered adequate assistance and exercised reasonable professional
judgment in making significant trial decisions.” (People v. Holt (1997) 15 Cal. 4th 619,
703.) Thus, where 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, these cases are affirmed
on appeal.” (People v. Pope (1979) 23 Cal. 3d 412, 426, overruled in part on another
ground in People v. Berryman (1993) 6 Cal. 4th 1048, 1081, fn. 10.)
J.M. contends her counsel was ineffective because she failed to argue and advise
that the crime of torture is incompatible with J.M.’s age and history. As we have rejected
the premise of this contention, we find no deficiency in counsel’s failure to advance it.
(People v. Price (1991) 1 Cal. 4th 324, 387).
J.M. argues her counsel failed to recognize the significance of Dr. Kelly’s opinion
that she was a submissive follower triggered by issues relating to her past abuse. But in
light of the prosecution’s evidence, including the video which depicted J.M. instigating
certain acts like commanding Jane to lick the blood off her shoes, counsel could have
made a tactical decision to instead show that J.M. was remorseful and willing to take
responsibility for her actions in order to obtain leniency from the court. We do not
“second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.”
(People v. Hinton (2006) 37 Cal. 4th 839, 876.)
22
J.M. argues her counsel failed to advise her of the maximum potential length of
her term at the DJJ. But it appears the juvenile court, not counsel, misadvised her in this
regard. Even if counsel’s performance was deficient for failing to correct the juvenile
court, we see no reasonable probability that J.M. would have been less inclined to admit
to the offense had she been correctly informed about the shorter maximum term.
J.M. argues her counsel was deficient in failing to object to the juvenile court’s ex
parte communications with potential psychiatrists and Dr. Kelly. She contends that, had
her counsel objected and obtained an account of these communications, she could have
advocated for an evaluation more in line with the purposes of the Juvenile Court Law. In
any event, J.M. fails to show any prejudice from the court’s communications with
psychiatrists who were not actually appointed. As for Dr. Kelly, J.M. complains that his
evaluation was skewed to focus on whether J.M. could survive DJJ or another long-term
placement. Even so, any perceived deficiency was harmless given the substantial
evidence supporting J.M.’s need for long-term treatment and the need for public safety
due to the severity of the crime. J.M. does not demonstrate that Dr. Kelly’s evaluation
was otherwise contrary to the purposes of the Juvenile Court Law, and she concedes it
was “defense-favorable.” On this record, J.M. fails to show a reasonable probability of a
different outcome had Hess objected to the ex parte communications.
J.M. additionally argues her counsel’s performance was deficient because she
failed to investigate and present facts showing that DJJ commitment was inappropriate
for J.M.’s needs. In support, J.M. requests judicial notice of publicly-available statistics
for DJJ’s Ventura facility regarding incidents of batteries, fights and drugs, inmate ages
(showing J.M. is younger than most of the population), and inmate participation in
various treatment programs. While we take judicial notice of the fact that DJJ issued this
report, entitled “COMPSTAT DJJ Statistical Report – 13 Month” in July 2018
(Evid. Code, § 452, subds. (c), (h)), we see no reasonable probability of a different
outcome had the report been submitted below. It is not surprising that the types of
incidents identified in the charts would occur at a DJJ facility, and Dr. Kelly already
advised that J.M. would be in proximity to criminally-sophisticated juveniles. Moreover,
23
J.M. fails to provide an adequate foundation to interpret the statistics as they relate to
treatment at the Ventura facility. Without more, we cannot say J.M. demonstrates a
reasonable probability that this data would have led the juvenile court to a different
conclusion about the probable benefits of the programs at the Ventura facility.
G. Pretrial Mental Health Diversion
After the conclusion of appellate briefing, J.M. requested, and we granted, leave to
file a supplemental letter brief. In her supplemental briefing, J.M. argues the case should
be remanded so that the juvenile court can determine whether to grant her a mental health
diversion under Penal Code sections 1001.35 and 1001.36. For the reasons below, we
conclude that the mental health diversion law does not apply to juveniles in delinquency
proceedings, and that this does not violate equal protection.
1. Inapplicability of the Mental Health Diversion Law to Juveniles
Penal Code section 1001.35 specifies that the purpose of the mental health
diversion law “is to promote all of the following: [¶] (a) Increased diversion of
individuals with mental disorders to mitigate the individuals’ entry and reentry into the
criminal justice system while protecting public safety. [¶] (b) Allowing local discretion
and flexibility for counties in the development and implementation of diversion for
individuals with mental disorders across a continuum of care settings. [¶] (c) Providing
diversion that meets the unique mental health and support needs of individuals with
mental disorders.”
Penal Code section 1001.36, subdivision (a), provides for discretionary “pretrial
diversion” to a “defendant” suffering from certain mental illnesses who has been charged
in an “accusatory pleading” with a misdemeanor or felony. “Pretrial diversion” is
defined in relevant part as “the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point at which the accused is
charged until adjudication, to allow the defendant to undergo mental health treatment.”
(Id., subd. (c).)
In order for a defendant to qualify for diversion, the court must be satisfied that all
the following requirements are met: the defendant suffers from a mental disorder as
24
identified in the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders,” including PTSD (§ 1001.36, subd. (b)(1)(A)); the defendant’s mental disorder
was a significant factor in the commission of the charged offense, based on any relevant
and credible evidence (id., subd. (b)(1)(B)); in the opinion of a qualified mental health
expert, the defendant’s symptoms of the mental disorder motivating the criminal behavior
would respond to mental health treatment (id., subd. (b)(1)(C)); the defendant consents to
diversion and agrees to comply with treatment (id., subd. (b)(1)(D), (E)); and the
defendant will not pose an “unreasonable risk of danger to public safety,” as defined in
section 1170.18, if treated in the community, based on the opinions of the district
attorney, the defense, or a qualified mental health expert, the defendant’s violence and
criminal history, the current charged offense, and any other factors that the court deems
appropriate (id., subd. (b)(1)(F)).
After ensuring that the defendant meets the above requirements, a trial court may
order the defendant into a diversion program for “no longer than two years.” (Pen. Code,
§ 1001.36, subd. (c)(3).) If the defendant performs satisfactorily in the program, the
court must dismiss the underlying charges. (Id., subd. (e).)
J.M. argues that the new law, as an ameliorative statute, applies retroactively to
cases pending on appeal, and that she meets all six eligibility requirements. The People
assert that the statute, which became effective June 27, 2018 (Stats. 2018, ch. 34, § 24)—
after J.M.’s admission and the dispositional order—does not apply retroactively. The
People further contend that the mental health diversion statute, by its terms, does not
apply to juvenile cases, and that even if it did, J.M. has not demonstrated a prima facie
case of her eligibility.
Whether or not the new mental diversion law applies to juveniles is a matter of
statutory interpretation. Thus, “ ‘[o]ur first step is to scrutinize the actual words of the
statute, giving them a plain and commonsense meaning.’ ” (Garcia v. McCutcheon
(1997) 16 Cal. 4th 469, 476.) “When the statutory language is clear, we need go no
further. If, however, the language supports more than one reasonable interpretation, we
look to a variety of extrinsic aids, including the objects to be achieved, the evils to be
25
remedied, the legislative history, the statutory scheme of which the statute is a part, and
contemporaneous administrative construction, as well as questions of public policy.” (In
re Derrick B. (2006) 39 Cal. 4th 535, 539–540 (Derrick B.).)
On their face, Penal Code sections 1001.35 and 1001.36 do not state they apply to
juvenile proceedings under the Welfare and Institutions Code. Likewise, the legislative
history of these code sections makes no mention of their possible applicability to juvenile
proceedings.
Penal Code sections 1001.35 and 1001.36 do, however, make frequent use of
terminology applicable to “criminal” proceedings. Notably, a juvenile delinquency
matter is not criminal in nature (§ 203), and unlike the adult justice system, which seeks
to punish, the fundamental purpose of the juvenile justice system is to rehabilitate.
(People v. Vela (2018) 21 Cal.App.5th 1099, 1104.) Furthermore, as the Legislature
recognized in recently amending Proposition 57 to increase the number of minors
retained under juvenile court jurisdiction, the juvenile system is very different from the
adult system in terms of the mandatory age-appropriate treatment, services, counseling,
and education it provides to minors. (Sen. Com. on Public Safety, Analysis of Sen. Bill
No. 1391 (2017–2018 Reg. Sess.) Feb. 16, 2018, p. 4.) “Although courts sometimes
consult the Penal Code for guidance in construing procedural statutes appearing in the
Welfare and Institutions Code [citations], this doctrine does not sanction the wholesale
importation of a procedural Penal Code statute into juvenile court proceedings.” (In re
T.C. (2009) 173 Cal. App. 4th 837, 850.)
In In re M.S. (2019) 32 Cal.App.5th 1177 (M.S.), petition for review filed
April 17, 2019 (S255274), a majority of the Court of Appeal held that, due to the
distinctions between adult criminal prosecutions and juvenile delinquency proceedings,
the mental health diversion law does not apply to juvenile cases. (M.S., at p. 1192.)
These distinctions include the circumstances that: a juvenile proceeding is commenced
by the filing of a petition, not a criminal complaint; there are no jury trials in juvenile
court, but rather, the court presides over jurisdictional hearings; there are no convictions
in juvenile court, and instead, a juvenile court’s findings that the petition’s allegations are
26
true will bring the juvenile within the court’s jurisdiction; and there are no sentences in
juvenile court, but rather, “a wide variety of rehabilitation alternatives” may be imposed
at a disposition hearing. (Ibid.) In short, unlike the adult criminal justice system, in
juvenile proceedings “there is [no] accusatory pleading, no possibility of conviction, and
no punishment.” (Id. at p. 1193.) M.S. further noted that the primary purpose of the
mental health diversion law—“to treat the mentally ill adult outside the criminal justice
system rather than to punish them inside the system”—is unnecessary for juveniles
because the juvenile justice system “is already separate and distinct from the criminal
justice system.” (Ibid.)
J.M. argues M.S. was incorrectly decided for two reasons. First, citing In re Jovan
B. (1993) 6 Cal. 4th 801 (Jovan B.) and its progeny, J.M. contends M.S. failed to address
Jovan B.’s holding that the use of adult procedural terms in a criminal statute does not
demonstrate legislative intent to exclude juveniles from the scope of the statute. Second,
J.M. argues M.S. failed to address equal protection concerns raised by denial of the
benefits of the mental health diversion program to juveniles.
In Jovan B., the California Supreme Court held that Penal Code section 12022.1—
which increases the period of imprisonment for a felony committed while the offender is
out on bail or on his or her own recognizance (O.R.)—applies to juvenile delinquency
proceedings. In so holding, Jovan B. concluded that the statute’s use of criminal
terminology, i.e., information, indictment, complaint, preliminary hearing, and
sentencing, “cannot be dispositive of the question of whether the bail/O.R. enhancement
applies to juvenile wards.” (Jovan B., supra, 6 Cal.4th at p. 812.) Observing that
Welfare and Institutions Code section 726 expressly adopts the Penal Code’s system of
enhancements for purposes of computing a juvenile’s maximum confinement or
commitment, Jovan B. determined that section 726 intends to fully apply the
enhancement scheme to juveniles “except insofar as the focus of a particular
enhancement is manifestly at odds with the principles of juvenile law.” (Jovan B., at
p. 813.) Jovan B. found that the criminal terminology in Penal Code section 12022.1 had
27
“no special technical significance” and that the concerns leading to the enhancement
statute applied equally to juvenile and adult offenses. (Jovan B., at pp. 813–814.)
The Supreme Court distinguished Jovan B. in Derrick B., supra, 39 Cal. 4th 535.
Derrick B. addressed Penal Code section 290, former subdivisions (a)(2)(A), which
required sex offender registration for various offenses including sexual battery, and
(a)(2)(E), which authorized a court to require registration in connection with unlisted
offenses if the court made certain findings and stated reasons for the imposition. In
holding that these registration provisions did not apply to juvenile proceedings, Derrick
B. observed that a different subdivision pertaining to juveniles—Penal Code section 290,
former subdivision (d)(3)—contained its own list of specific sex offenses requiring
juvenile sex offender registration, and that such list did not include sexual battery.
(Derrick B., supra, 39 Cal.4th at p. 546.) Hence, unlike the situation in Jovan B., there
was “no broader context to expand upon the clear language chosen by the Legislature.”
(Derrick B., at p. 543.)
Applying these principles to the instant matter, we agree with J.M. that the use of
adult criminal terminology in the mental health diversion law is not, by itself, dispositive
of whether Penal Code sections 1001.35 and 1001.36 exclude juveniles. But the analysis
does not end there. Derrick B. instructs us to look to the broader context of the statutory
structures involved, especially where, as here, the clear language chosen by Legislature
acknowledges the differences between them. In the cases that J.M. cites which follow
Jovan B., the Legislature’s intent to apply a Penal Code provision to juvenile delinquency
proceedings is evinced in the broad context of the statutory schemes and consistent with
their existing interplay. Thus, in Alejandro N. v. Superior Court (2015) 238 Cal. App. 4th
1209, at pages 1223–1226, disapproved on other grounds in In re C.B. (2018) 6 Cal.5th
118, 125, 129–130, the court held that the offense reclassification provisions of Penal
Code section 1170.18 apply to Welfare and Institutions Code section 602, because
section 602 incorporates the entire body of laws defining criminal offenses as the basis
for juvenile wardship jurisdiction. And in In re E.G. (2016) 6 Cal.App.5th 871, at pages
880–881, Division Five of this district held that Penal Code section 17, subdivision
28
(b)(3), which provides that a “wobbler” offense is a misdemeanor when the court grants
probation without imposition of a sentence, applies to juvenile proceedings because
Welfare and Institutions Code sections 702 and 726 require a minor’s maximum term of
confinement be linked to the adult criminal sentencing laws.
The instant matter, however, is more akin to Derrick B. because juvenile courts are
expressly required to consider “ ‘ “the broadest range of information” in determining how
best to rehabilitate a minor and afford him [of her] adequate care.’ ” (Carlos J., supra,
22 Cal.App.5th at p. 7.) Ensuring access to needed mental health treatment is part of the
juvenile court’s overarching responsibility to provide minors alleged to be wards with the
necessary “care, treatment, and guidance that is consistent with their best interest, that
holds them accountable for their behavior, and that is appropriate for their
circumstances.” (§ 202, subd. (b).). Moreover, the Juvenile Court Law has its own
independent scheme for addressing minors alleged to be wards with serious mental
disorders and other emotional and developmental issues. (§§ 710–713.)
Were we to construe the mental health diversion law as applying to juveniles, it
would conflict with or infringe upon these and other provisions specifically contemplated
by the Legislature to provide an appropriate and comprehensive course of treatment and
rehabilitation for juveniles. (§§ 202, 710–713, 790–796.) As discussed, a mental health
diversion program under Penal Code section 1001.36 may postpone the adjudication of
charges for up to two years. (Pen. Code, § 1001.36, subd. (c).) Allowing a juvenile to be
siphoned off into the mental health diversion program in this fashion would thus serve to
stall a comprehensive disposition that beneficially and timely addresses the juvenile’s
other rehabilitation needs, such as education, counseling, and discipline.
Moreover, we note the Juvenile Court Law’s deferred judgment provisions
(§§ 790–796) resemble a diversion scheme in many respects—i.e., providing for
“treatment, and rehabilitation efforts” (§ 790, subd. (b)); abating the adjudicatory process
(In re Mario C. (2004) 124 Cal. App. 4th 1303, 1308); and potentially resulting in
dismissal of the charges in the wardship petition upon satisfactory completion of the
assigned program (§ 793, subd. (c))—except in the critical respect that it is not available
29
where the offense charged is enumerated in section 707, subdivision (b), which includes
torture. (§ 790, subd. (a)(2); § 707, subd. (b)(23).) In other words, the Legislature, in
crafting the deferred judgment program under the Welfare and Institutions Code, did not
intend to allow diversion for juveniles charged with offenses listed in section 707,
subdivision (b), while the diversion program authorized in the Penal Code does in fact
permit diversion for defendants charged with at least some of those offenses.12 Extending
the reach of Penal Code sections 1001.35 and 1001.36 to juveniles would thus conflict
with the Legislature’s intent to limit the availability of diversion but to timely extend
rehabilitative services for certain juveniles. In the absence of a clear expression of
legislative intent, we are not persuaded the Legislature meant to abandon such differences
between the adult and juvenile statutory schemes. (Derrick B., supra, 39 Cal.4th at
p. 546.)
J.M. contends the failure to find Penal Code sections 1001.35 and 1001.36
applicable to juveniles will impermissibly result in the imposition of harsher punishments
on juveniles. Relying on Welfare and Institutions Code section 726, subdivision (d)(1),
she argues that a minor who committed torture would have to serve an entire sentence at
DJJ, while an adult who successfully completes the diversion program for the same
offense would serve no time at all. That reliance is misplaced. Such circumstances do
not violate section 726, subdivision (d)(1), because that statute simply provides that a
ward may not be held in physical confinement in excess of the maximum term of
imprisonment that could be imposed upon an adult convicted of the same offense.
(Compare Welf. & Inst. Code, § 607, subd. (f) [discharge upon expiration of two-year
period of control or when person attains age 23] with Pen. Code, § 206.1 [torture
punishable by life imprisonment].)
12
For example, Penal Code section 1001.36, subdivision (b)(2), provides that a
defendant charged with various enumerated offenses (i.e., murder, voluntary
manslaughter, rape, etc.) may not be placed into a diversion program, but torture (Pen.
Code, § 206) is not included in the list of offenses precluding diversion.
30
In sum, we conclude juveniles who are not charged as adults are not statutorily
eligible for the mental health program under Penal Code sections 1001.35 and 1001.36.
Disallowing adult–focused mental health diversion to juveniles promotes, rather than
detracts from, the existing rehabilitative and mental health resources available under the
Juvenile Court Law, while properly maintaining the legislatively–enacted distinctions
between the two systems.13
2. Equal Protection
J.M. next argues that excluding juveniles from the mental health diversion law
available to adult offenders would violate the equal protection guarantees in the
Fourteenth Amendment to the United States Constitution and article I, section 7, of the
California Constitution.
The constitutional guarantee of equal protection “ ‘does not preclude the state
from drawing any distinctions between different groups of individuals, but does require
that, at a minimum, classifications which are created bear a rational relationship to a
legitimate public purpose. [Citations.] Moreover, “in cases involving ‘suspect
classifications’ or touching on ‘fundamental interests’ . . . the state bears the burden of
establishing not only that it has a compelling interest which justifies the law but that
distinctions drawn by the law are necessary to further its purpose.” ’ ” (People v. Smith
(2011) 198 Cal. App. 4th 415, 434.) Where a disputed statutory disparity does not involve
a suspect classification or the alleged infringement of a fundamental interest, equal
protection of the law is denied only where there is no “ ‘rational relationship between the
disparity of treatment and some legitimate governmental purpose.’ ” (Johnson v.
Department of Justice (2015) 60 Cal. 4th 871, 881 (Johnson).)
We assume, for purposes of our equal protection analysis, that juveniles in the
juvenile justice system are, as a group, similarly situated to adults in criminal court with
13
In light of our conclusion regarding the inapplicability of the mental health
diversion law to juveniles, we need not reach the issue of retroactivity, which is currently
under review by the Supreme Court. (People v. Frahs, review granted Dec. 27, 2018,
S252220; People v. McDonald, review granted Apr. 17, 2019, S254030.)
31
regard to their interest in accessing mental health treatment and potential pretrial
diversion. Although juveniles have not been recognized as a suspect class, J.M. argues
the strict scrutiny test applies because a fundamental interest (personal liberty) is at stake.
Relying on People v. Olivas (1976) 17 Cal. 3d 236 (Olivas), J.M. essentially reasons that
if juveniles are excluded from the application of Penal Code sections 1001.35 and
1001.36, then she will be subject to a longer period of incarceration than similarly-
situated adults to whom those code sections apply. We are not persuaded.
At issue in Olivas was a statute that granted a trial court discretion to commit a
defendant who was between 16 and 21 years of age and was convicted in an adult
criminal prosecution to the California Youth Authority for a term longer than he or she
would have received had the defendant been sentenced as an adult. Olivas concluded that
statute triggered application of the strict scrutiny standard because the defendant’s
fundamental interest in personal liberty was at stake. (Olivas, supra, 17 Cal.3d at
pp. 250–251.) Importantly, however, the Supreme Court later clarified that Olivas does
not mandate application of the strict scrutiny standard in every equal protection challenge
where the adult and juvenile statutory schemes provide different consequences for
comparable crimes. (People v. Wilkinson (2005) 33 Cal. 4th 821, 837 (Wilkinson).)
“ ‘There is language in the Olivas opinion that emphasizes the narrowness of the holding.
For instance, the court noted that [the statute in question] was constitutionally infirm
because persons committed under the statute had been “prosecuted as adults, adjudged by
the same standards which apply to any competent adult, and convicted as adults in adult
courts.” [Citation.] This language requires only that the boundaries between the adult
and juvenile criminal justice systems be rigorously maintained.’ ” (Wilkinson, at
pp. 837–838.) Accordingly, Olivas provides no authority for applying the strict scrutiny
standard where, as here, the juvenile has always been within the juvenile justice system,
and the boundaries between the adult and juvenile systems have been maintained
throughout.
Applying the rational basis standard, we conclude J.M. fails to demonstrate an
equal protection violation. “ ‘This standard of rationality does not depend upon whether
32
lawmakers ever actually articulated the purpose they sought to achieve. Nor must the
underlying rationale be empirically substantiated. [Citation.] While the realities of the
subject matter cannot be completely ignored [citation], a court may engage in “ ‘rational
speculation’ ” as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review “whether or not” any such speculation has “a foundation in the
record.” ’ [Citation.] To mount a successful rational basis challenge, a party must
‘ “negative every conceivable basis” ’ that might support the disputed statutory disparity.
[Citation.] If a plausible basis exists for the disparity, courts may not second-guess its
‘ “wisdom, fairness, or logic.” ’ ” (Johnson, supra, 60 Cal.4th at p. 881.)
As discussed, there are material differences between the adult and juvenile justice
schemes with regard to their underlying purposes and to the treatment of offenders with
mental health issues. (See ante, part G.1.) Thus, the Legislature could rationally devise
and maintain a separate statutory scheme for juveniles that addresses their rehabilitative
needs in delinquency proceedings and provides different criteria for potential diversion.
(Ibid.) Because J.M. makes no meaningful attempt to negate every conceivable basis that
might support the disputed statutory disparities, her equal protection claim fails.
H. Habeas Corpus Petition (A156093)
1. Allegations
J.M. asserts two main grounds for relief. First, she alleges deprivation of her
constitutional rights because her admission to count 1 was not voluntary, knowing and
intelligent because: she was not advised of and did not understand the specific intent
requirement for torture; she was not advised about the lack of value in the plea
agreement; and she was not properly advised as to the consequences of her admission.
As to this last point, J.M. alleges her admission was based on advice from counsel that
there was no minimum amount of time she would need to serve at the DJJ, that she could
be released whenever her counselor determined she was ready for release, and that she
would likely serve only about half of her term because she would receive a day of credit
for every two days served. J.M. alleges this information was inaccurate because program
credits are limited and discretionary based on DJJ staff recommendations; there is a
33
maximum number of credits that can be applied each cycle; and DJJ regulations mandate
that she will have to serve substantially all of her seven-year term.
Second, J.M. alleges her confinement is unlawful and in contravention of her
constitutional rights because she did not receive effective assistance when her counsel:
failed to properly explain the specific intent requirement for torture; advised and
consented to an unsupported admission that benefited the prosecution; failed to advise
that she could move to withdraw her admission; and failed to investigate and produce
evidence that a DJJ commitment was inappropriate for her. On this last point, J.M.
alleges the following events which post-date her commitment: she has been threatened
and assaulted at the Ventura facility by S.S.; she is not receiving adequate treatment or
therapy other than completing “worksheets”; her educational opportunities and contact
with family are limited; and fights, injuries, suicide attempts and incidents regarding
contraband are common.
2. Relevant law
“Because a petition for a writ of habeas corpus seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden initially to
plead sufficient grounds for relief, and then later to prove them. ‘For purposes of
collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction
and sentence; defendant thus must undertake the burden of overturning them. Society’s
interest in the finality of criminal proceedings so demands, and due process is not thereby
offended.’ ” (People v. Duvall (1995) 9 Cal. 4th 464, 474 (Duvall).)
A petition for habeas corpus “should both (i) state fully and with particularity the
facts on which relief is sought [citations], as well as (ii) include copies of reasonably
available documentary evidence supporting the claim, including pertinent portions of trial
transcripts and affidavits or declarations. [Citation.] ‘Conclusory allegations made
without any explanation of the basis for the allegations do not warrant relief, let alone an
evidentiary hearing.’ ” (Duvall, supra, at p. 474.) In reviewing a habeas corpus petition,
we ask whether, assuming the petition’s factual allegations are true, the petitioner would
be entitled to relief; if no prima facie case for relief is stated, we will summarily deny the
34
petition. (Id. at pp. 474–475.) We have requested and received an informal response
from the People. (Cal. Rules of Court, rule 4.551(b).)
“A defendant’s guilty plea must be knowing, intelligent, and voluntary.” (People
v. Aguirre (2011) 199 Cal. App. 4th 525, 528 (Aguirre).) “Before deciding whether to
plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.’ ”
(Padilla v. Kentucky (2010) 559 U.S. 356, 364.) The two-part Strickland test applies to
ineffective assistance challenges to guilty pleas. The first part requires a defendant to
show the deficiency of counsel’s performance; while the second part focuses on prejudice
and requires the defendant to show “a reasonable probability that, but for counsel’s
errors, [s]he would not have pleaded guilty and would have insisted on going to trial.”
(Hill, supra, 474 U.S. at pp. 58–59.)
“ ‘Surmounting Strickland’s high bar is never an easy task,’ [citation], and the
strong societal interest in finality has ‘special force with respect to convictions based on
guilty pleas.’ [Citation.] Courts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded but for his attorney’s
deficiencies. Judges should instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” (Lee v. United States (2017) 137 S. Ct. 1958, 1967;
In re Alvernaz (1992) 2 Cal. 4th 924, 938, 945–946 [petition’s allegations not sufficiently
corroborated by independent, objective evidence].) The defendant must provide a
declaration or testimony stating that he or she would not have entered into the plea
bargain if properly advised, and the court may reject an assertion that is not supported by
an explanation or other corroborating circumstances. (People v. Martinez (2013)
57 Cal. 4th 555, 565 (Martinez).)
3. Analysis
Because we have rejected J.M.’s arguments regarding the requisite state of mind
for torture, we conclude counsel’s failure to advise J.M. in this regard was not
constitutionally deficient; nor did it lead to an admission that was not voluntary,
intelligent, and knowing.
35
J.M.’s entire second ground for relief is deficient in that she fails to allege
sufficient facts demonstrating prejudice. J.M. simply does not allege she would have
rejected the plea deal and insisted on a contested disposition hearing had she been
advised of alleged adverse conditions at the Ventura facility. (Hill, supra, 474 U.S. at
pp. 58–59; Martinez, supra, 57 Cal.4th at p. 565.)
J.M. alleges she received ineffective assistance of counsel because she was not
advised about the plea deal’s lack of value. This conclusory allegation is insufficient to
state a prima facie case for relief. J.M.’s “bad deal” argument hinges largely on the
premise that she had a strong state of mind defense to torture, a premise we have rejected.
J.M. also argues the plea deal had no value because count 2 (assault by means of force
plus the enhancement for personal infliction of great bodily injury) was a lesser included
offense to count 1, and any custodial time on count 2 would have been stayed under
Penal Code section 654. Neither issue is adequately briefed by the parties.14
In any event, J.M. does not plead or otherwise show facts tending to prove the plea
deal in this case lacked all value. Given the prosecution’s evidence, J.M. likely faced DJJ
commitment, and she was almost certainly not going to be acquitted on both counts
(count 2, with the great bodily injury enhancement, still carried a significant sentence).
J.M. provides no declaration from Hess and no explanation of that omission.
Consequently, as between the two counts, we have no indication why Hess may have
been motivated to recommend J.M.’s admission to torture, including no information
about any potential conversations Hess may have had with the prosecution and others.
On this record, we cannot say it was constitutionally deficient for Hess to advise J.M. to
accept a deal in juvenile court in which J.M. would suffer one less sustained adjudication
14
J.M. relies for her lesser-included-offense argument on dictum in People v.
Martinez (2005) 125 Cal. App. 4th 1035, 1043. The People do not address the issue at all.
We note that in People v. Hamlin (2009) 170 Cal. App. 4th 1412, 1456, the court held
assault by means of force to produce great bodily injury is not a lesser included offense of
torture under the elements test, and People v. Lewis (2004) 120 Cal. App. 4th 882, 887,
held likewise for battery and aggravated battery under the elements and accusatory
pleadings tests. The Supreme Court has left the question open. (People v. Brooks (2017)
3 Cal.5th 1, 77.)
36
while hoping for leniency on count 1. (See Brady v. United States (1969) 397 U.S. 742,
756–757 [pleas often influenced by appraisal of prosecution’s case and likelihood of
leniency].)
Finally, J.M. claims that her admission was based in part on her counsel’s
incorrect advice as to the consequences of her admission, specifically, the likely effect of
DJJ’s credit and release policies on the amount of custodial time she would have to serve.
But J.M. makes only vague and conclusory allegations about Hess’s advice and fails to
provide a declaration from Hess. Consequently, we cannot determine from the pleadings
or the available record whether Hess’s performance was constitutionally deficient.
(Compare Aguirre, supra, 199 Cal.App.4th at p. 528 [counsel’s failure to advise of
limitations on ability to earn credits in prison is a collateral consequence of the plea that
does not render a defendant’s plea not knowing or intelligent] with People v. Huynh
(1991) 229 Cal. App. 3d 1067, 1083 [counsel’s erroneous advice regarding the probable
minimum prison term before parole eligibility supported a prima facie case for habeas
corpus relief].)
For these reasons, we conclude J.M. fails to state a prima facie claim for habeas
corpus relief. The petition is denied.
DISPOSITION
We strike the imposition of the registration fee and the discretionary probation
conditions from the December 4, 2017, disposition order. We also order that the
prohibition against J.M. possessing a “weapon” until age 30 be amended to substitute
“firearm” for “weapon,” consistent with Penal Code section 29820, subdivision (b). The
juvenile court is directed to amend its records in a manner consistent with this opinion
(see ante, part E) and to forward copies of all such pertinent documents to the Director of
DJJ. We also direct the trial court clerk to correct the date on the notice of appeal (see
ante, p. 8, fn. 3). In all other respects, the disposition order is affirmed, without prejudice
to J.M. raising the issue of additional post-disposition credits in the juvenile court (see
ante, part D, pp. 20–21).
The petition for a writ of habeas corpus is denied.
37
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Siggins, P.J.
_________________________
Petrou, J.
A153296; A156093
38
In re J.M., a Minor, on Habeas Corpus.
(A153296; A156093)
Trial court: Sonoma County
Trial Judges: Hon. Kenneth J. Gnoss
Attorneys: First District Appellate Project’s Independent Case System, Amanda
K. Roze for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Jeffrey M Laurence, Senior Assistant Attorney
General, Leif M Dautch, Deputy Attorney General, Huy T. Luong,
Deputy Attorney General
39