In re J.A. CA5 ( 2021 )

Filed 10/19/21 In re J.A. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re J.A., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F082452
Plaintiff and Respondent, (Super. Ct. No. 19JQ0006A)
v.
OPINION
J.A.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Jennifer Lee
Giuliani, Judge.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Two recent senate bills have made significant changes for minors deemed wards
of a juvenile court. On September 30, 2020, Senate Bill No. 823 (2019-2020 Reg. Sess.)
(Senate Bill 823) became effective. This bill initiated the significant changes, which we
explain below. On May 14, 2021, Senate Bill No. 92 (2021-2022 Reg. Sess.) (Senate Bill
92) became effective. This bill made some amendments to the laws implemented by
Senate Bill 823.1
Through these bills, the Legislature has reduced the maximum period of
confinement a juvenile ward faces when committed to the Department of Corrections and
Rehabilitation, Division of Juvenile Justice (DJJ). Before this change in law, a ward
could be committed for the maximum term an adult would face if convicted of the same
offense. (Former Welf. & Inst. Code, § 731, subd. (c).)2 Under the current law,
however, a ward shall not be committed to DJJ “for a period that exceeds the middle term
of imprisonment that could be imposed upon an adult convicted of the same offense.”
(§ 730, subd. (a)(2), italics added.)
In addition, the Legislature has announced its intent to close DJJ, which will be
effective June 30, 2023. (§ 736.5, subd. (e).) Commencing July 1, 2021, responsibility
for all juvenile wards will shift to county governments. (Id. at subd. (a).)
Finally, the Legislature has announced that, beginning July 1, 2021, a juvenile
court (with certain limited exceptions) may no longer commit a ward to DJJ.3 (§ 736.5,
subd. (b).)
1 Senate Bill 823 was operative from September 30, 2020, to July 1, 2021. As of
January 1, 2022, it will be deemed repealed. (See former Welf. & Inst. Code, § 731,
subd. (d).)
2 All future statutory references are to the Welfare and Institutions Code unless
otherwise noted.
3 The exceptions are as follows: “Pending the final closure of [DJJ], a court may
commit a ward who is otherwise eligible to be committed under existing law and in
2.
In the present matter, appellant was adjudged a ward of the juvenile court on
February 10, 2021, well after the effective date of Senate Bill 823. He was committed to
DJJ because, according to the juvenile court, local services were not helping him and his
criminal behavior was increasing in severity.
On April 12, 2021, the juvenile court was made aware that the maximum period of
confinement it had imposed was erroneous, and it modified that term to comply with the
new law. The court, however, did not reconsider its decision to commit appellant to DJJ.
Appellant asks this court to reverse his disposition in light of Senate Bill 823. He
contends the juvenile court failed to exercise informed discretion when considering his
placement at DJJ because the court never considered Senate Bill 823 or its policy
changes.
We disagree that remand is appropriate. Although the juvenile court did not
address Senate Bill 823 when committing appellant to DJJ, the court made a very
thoughtful and reasoned decision. At the time of this disposition, the DJJ placement was
authorized and it was appropriate based on appellant’s particular needs. The court
modified appellant’s maximum period of confinement to comply with the change in law.
We find neither legal error nor an abuse of discretion. We affirm.
BACKGROUND
We provide a relevant summary of the procedural history of this matter, along
with the juvenile court’s reasons for committing appellant to DJJ.
I. Appellant Admits Certain Charges Against Him.
In December 2020, an amended juvenile wardship petition was filed pursuant to
section 602 alleging that appellant committed the following four crimes:
whose case a motion to transfer the minor from juvenile court to a court of criminal
jurisdiction was filed. The court shall consider, as an alternative to commitment to the
[DJJ], placement in local programs, including those established as a result of the
implementation of Chapter 337 of the Statutes of 2020.” (§ 736.5, subd. (c).)
3.
(1) Attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1);
(2) Shooting at an occupied motor vehicle (Pen. Code, § 246; count 2);
(3) Assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b);
count 3);4 and
(4) Misdemeanor possession of a controlled substance (Health & Saf. Code,
§ 11375, subd. (b)(2); count 4).
In January 2021, appellant admitted the allegation in count 3, along with an
accompanying firearm enhancement. The prosecution dismissed the remaining counts
and allegations.
II. The Facts Supporting The Charge In Count 3 And The Firearm
Enhancement.
The prosecution informed the juvenile court that facts supported appellant’s
admission. According to the prosecutor, the People would present evidence, through
testimony and video, that appellant was walking near a particular street on November 10,
2020, when he fired a handgun multiple times at a passing vehicle. Officers located the
victim’s vehicle, and “a fresh bullet hole” was observed in the driver’s side door.
After the prosecutor made this offer of proof, appellant admitted to the court that
these facts had occurred. The court found that a factual basis existed for appellant’s
admission, and it found true the allegation in count 3, along with the firearm
enhancement.
III. The Disposition Hearing.
The disposition hearing occurred on February 10, 2021. We summarize the
relevant portions of that hearing.
4 Enhancements for benefiting a gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and
personal use of a firearm (Pen. Code, § 12022.5, subd. (a)) were alleged in connection
with count 3.
4.
A. The report from probation.
Prior to that hearing, the probation department submitted a disposition report. The
probation report listed appellant’s criminal history, and it listed two possible options for
appellant: (1) an undefined “out-of-home” placement and (2) DJJ. The probation officer,
however, stated that an “out-of-home” placement was not being considered, but if
appellant was granted probation, appellant would be “referred to local services to assist in
his rehabilitation.”
The probation report indicated that, in January 2021, the probation officer had
received a response from a parole agent regarding appellant’s eligibility for placement at
DJJ. Appellant was eligible for a commitment to DJJ, with eligibility for parole at 18
months following acceptance, with jurisdiction ending at age 25.
The probation officer recommended that appellant be committed to DJJ because of
his “criminal history” and the “egregiousness” of the current matter. The officer stated it
appears appellant “may have exhausted all his opportunities at the local level for further
growth.” The officer believed that appellant’s behavior “is escalating more violently
with each referral/petition.” The officer noted that DJJ would expose appellant with
“victim awareness, gang offender program, educational and future employment
opportunities should he meet the appropriate stages and levels of treatment.”
The probation report was silent regarding Senate Bill 823, which had already gone
into effect.
B. The comments from appellant’s counsel at the hearing.
At the disposition hearing, appellant’s counsel asked the court to leave appellant
“in the juvenile center for the maximum amount of time” and not to send him to DJJ.
Appellant’s counsel admitted that appellant “has been here several times before and has
done all of the programs here before .…” His counsel admitted that appellant had
experienced “behavior problems” at the juvenile center, both previously and currently.
5.
Nevertheless, counsel asked the court “to consider leaving [appellant] here in the juvenile
center.”
C. The juvenile court’s comments at the hearing.
At the disposition hearing, the juvenile court noted that appellant’s mother and
grandmother did not believe appellant had committed the offense for which he had
admitted was true. According to the court, the mother requested a second chance for
appellant.
The court reviewed appellant’s history, which was detailed in the probation report.
He had been involved with probation since April 2017, when it was alleged he had
committed a battery by punching another person in the face. The probation department
had warned appellant, and the case was closed.
In February 2018, it was alleged he had possessed a concealed dirk or dagger, and
he had a curfew violation. An eight-inch knife had been located in appellant’s pocket.
The probation department warned him, and the case was closed.
In June 2018, it was alleged appellant had committed battery by striking another
victim in the face. He was cited by the police department, and the probation department
gave him a warning. The case was closed.
A little over one month later, in July 2018, appellant was reported as a runaway by
his mother. The probation department warned him and the case was closed.
In January 2019, appellant was adjudged a ward of the juvenile court for carrying
a loaded firearm on his person in a city, and for possession of the firearm with its
identifications removed. He was placed in custody at the juvenile center for 78 days.
In June 2019, appellant appeared before the juvenile court for a violation of
probation when he absconded from home. He had failed to attend school on a daily basis
and he had failed to attend a court hearing. He was again adjudged a ward of the court,
and he was ordered to complete 120 days in the local juvenile center. While he was in
6.
the juvenile center, appellant received 37 rule violation reports. Those violations
included (1) threatening other youth; (2) disrespecting staff; (3) refusing to participate in
programming; (4) gang-related tagging in instructional books; and (5) using inappropriate
language. The probation department filed a violation of probation, and the court
extended his commitment for an additional 90 days.
On May 26, 2020, approximately three months after appellant was released from
custody on his prior violations of probation, another violation of probation was filed over
various concerns, including (1) his termination from a particular class; (2) his failure to
enroll in school; (3) his failure to enroll in counseling; and (4) his failure to advise
probation of his status. Appellant was ordered to complete 60 days in the local juvenile
center.
On September 10, 2020, appellant violated probation while in the juvenile center.
“He and two other coparticipants conspired to attack three other in-custody youths.”
During this incident, appellant shouted, “This is Norte! Fuck Crips!” An officer ordered
appellant to stop, and appellant again shouted, “This is Norte!” Due to this altercation,
appellant was again adjudged a ward of the court, and he was ordered to complete his
maximum confinement time that had been previously ordered for the prior violation of
probation.
On November 10, 2020, a few weeks after appellant ended his custody time in
October 2020, the present incident occurred wherein appellant fired a handgun multiple
times at a passing vehicle on a public street.
Given the number of his prior “chances,” the court stated its belief that appellant
had not shown he wanted “to change his behaviors or move in a different direction.” The
court noted that appellant’s actions had been escalating. The court saw nothing to
suggest appellant “has any desire to or will even try to participate in the local services
that have been provided to him.” According to the court, it was “uncommon” for a minor
in the juvenile center to receive 37 negative write-ups. The court was concerned that, if
7.
appellant could not comply with the rules while he was being supervised 24 hours a day,
seven days a week, there was no reason to believe he would comply if he was not in
custody. The court expressed concern that appellant had “been given lots of
opportunities to show the Court that he can comply with probation and he has not done so
yet.”
The court agreed with the recommendations of probation. The court considered
appellant’s past conduct, and the nature of the present matter. Appellant was adjudged a
ward of the court, and he was committed to DJJ. The court determined that the maximum
period of confinement was 19 years.5 The court stated it found that appellant’s “mental
and physical condition and qualifications are such” that he would benefit “by the
reformatory educational discipline and other treatment provided” by DJJ.
The court addressed appellant directly. The court stated that having him remain in
the local juvenile center for a longer period of time would not benefit him because it did
not have a lot of programming for him. According to the court, DJJ “has a ton of stuff”
that would help appellant “decide whether or not you are going to continue down the road
that you’ve been going on or whether or not you are going to decide that you want to do
something different.” The court stated, “I don’t think that putting you in the juvenile
center and sort of warehousing you there for a year would do anything to help you. In
fact, given sort of your performance and behaviors in the juvenile center while you’ve
been there in the past, I’m pretty confident it wouldn’t help you at all. So I’m hopeful
that [DJJ] will offer you programing that will allow you to complete school, will allow
you to perhaps learn a vocation or a trade, will get you mental health treatment, will kind
of help you do those things that we haven’t been able to do for you locally here because it
5 The maximum period of confinement of 19 years was based on the upper term of
nine years for assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and the
upper term of 10 years for the personal use of a firearm (Pen. Code, § 12022.5, subd. (a)).
8.
just hasn’t worked out, okay?” Appellant answered, “All right.” The court wished him
“nothing but the best.”
Following the disposition on February 10, 2021, appellant filed the present appeal
on March 1, 2021.
IV. DJJ Alerts The Juvenile Court About The Maximum Period Of Confinement.
Via a letter dated March 29, 2021, DJJ alerted the juvenile court that appellant had
been accepted into DJJ, but his delivery would be delayed due to COVID-19 related
issues. Via a second letter dated March 29, 2021, DJJ also alerted the court that
appellant’s maximum period of confinement warranted reconsideration due to a recent
change in law to former section 731, subdivision (c).6
V. The Juvenile Court Reduces Appellant’s Maximum Period Of Confinement.
On April 12, 2021, the juvenile court conducted a hearing regarding the status of
appellant’s transfer to DJJ. During that hearing, the court was alerted about the letter
from DJJ regarding the maximum period of confinement. The court noted that, under the
amended law, appellant could not be committed to DJJ for a period that exceeds the
middle term of imprisonment that can be imposed upon an adult convicted of the same
offense. The court asked both parties if they had any objection to reducing appellant’s
maximum period of confinement. Neither side objected so the court reduced appellant’s
maximum period of confinement to 10 years.7
6 Senate Bill 823 brought about this change. Under the amendment to section 731, a
court may not commit a ward to DJJ for a period that exceeds the middle term of
imprisonment that could be imposed upon an adult convicted of the same offense. This
change in law is now expressed in section 731, subdivision (c).
7 The amended maximum period of confinement of 10 years was based on the
middle term of six years for assault with a semiautomatic firearm (Pen. Code, § 245,
subd. (b)) and the middle term of four years for the personal use of a firearm (Pen. Code,
§ 12022.5, subd. (a)).
9.
The court spoke directly to appellant, explaining that the law had changed. The
court stated it previously “made an order that your maximum confinement time was 19
years. And the law has changed that indicates that I can only sentence for the middle
term. There’s a low, a middle, and a high. And, traditionally, the juvenile court would
sentence on the high term. That was the law at the time. And, now, it’s changed recently
to indicate that it needs to be the middle term. And the middle term for the offense is ten
years, okay?”
At the hearing wherein appellant’s maximum period of confinement was modified,
neither the court, the probation department, nor the parties mentioned Senate Bill 823.
Nobody discussed any other changes to this area of law, such as the future closure of DJJ.
DISCUSSION
Appellant argues that his disposition should be reversed and his matter remanded
for a new disposition hearing in light of Senate Bill 823. He asserts the juvenile court
failed to exercise proper discretion because the court fashioned the disposition without
knowledge of Senate Bill 823, including its policy changes and amendments to law.
Appellant maintains that there is a reasonable chance the juvenile court would have
chosen a different placement option had it known of Senate Bill 823, and the
Legislature’s determination to close DJJ. He contends that, if this matter is remanded, he
may not legally be committed back to DJJ.
In contrast, respondent asserts that remand is not required. Respondent
acknowledges that the juvenile court erred at the disposition when the maximum period
of confinement was set at 19 years. Nevertheless, respondent notes that the court
corrected the unauthorized disposition. Respondent further argues that the juvenile court
considered appellant’s circumstances and provided sufficient justification for committing
appellant to DJJ. Respondent insists that a remand is futile because the court would not
have changed its disposition. Finally, respondent contends the Legislature did not
10.
prohibit new commitments to DJJ prior to July 1, 2021. Thus, the disposition order was
proper.
We agree with respondent and we reject appellant’s arguments. Although the
juvenile court did not analyze Senate Bill 823, the court made a very thoughtful and
reasoned decision to commit appellant to DJJ. At the time of this disposition, the DJJ
placement was authorized under the applicable statutes. Appellant’s placement at DJJ
was appropriate based on his needs. The court subsequently reduced appellant’s
maximum period of confinement to comply with the change in law. We conclude that a
remand is not warranted.8
Before we analyze the juvenile court’s disposition order, we summarize the
Legislative intent for Senate Bill 823, which is instrumental for some of appellant’s
arguments.
I. The Legislative Intent Behind Senate Bill 823.
In enacting Senate Bill 823, the Legislature made the following relevant
statements. “Evidence has demonstrated that justice system-involved youth are more
successful when they remain connected to their families and communities. Justice
system-involved youth who remain in their communities have lower recidivism rates and
are more prepared for their transition back into the community.” (Stats. 2020, ch. 337,
§ 1, subd. (a), p. 3791.)
“To ensure that justice-involved youth are closer to their families and communities
and receive age-appropriate treatment, it is necessary to close [DJJ] and move the
8 Appellant raises ineffective assistance of counsel if his claim for relief under
Senate Bill 823 is deemed forfeited. Respondent, however, does not rely upon forfeiture.
Thus, we decline to analyze whether or not ineffective assistance of counsel occurred
because we address this claim on its merits.
11.
jurisdiction of these youth to local county jurisdiction.”9 (Stats. 2020, ch. 337, § 1,
subd. (b), p. 3791.)
“It is the intent of the Legislature and the administration for counties to use
evidence-based and promising practices and programs that improve the outcomes of
youth and public safety, reduce the transfer of youth into the adult criminal justice
system, ensure that dispositions are in the least restrictive appropriate environment,
reduce and then eliminate racial and ethnic disparities, and reduce the use of confinement
in the juvenile justice system by utilizing community-based responses and interventions.”
(Stats. 2020, ch. 337, § 1, subd. (e), p. 3792.)
Finally, the Legislature stated its intent “to end the practice of placing youth in
custodial or confinement facilities that are operated by private entities whose primary
business is the custodial confinement of adults or youth in a secure setting. It is further
the intent of the Legislature to end placements of justice system-involved youth in out of
state facilities that do not appropriately address the programming, service, safety, and
other needs of placed youth once appropriate and sufficient capacity within California is
achieved.” (Stats. 2020, ch. 337, § 1, subd. (f), p. 3792.)
II. The Juvenile Court Did Not Abuse Its Discretion.
A juvenile court has broad discretion to determine the proper disposition of a ward
under its jurisdiction. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103–1104.) An
abuse of discretion standard is used to review a juvenile disposition order, and such an
9 In Senate Bill 823, the Legislature enacted section 730 to provide for the following
commitment options: A juvenile court “may order any of the types of treatment referred
to in Section 727, and as an additional alternative, may commit the minor to a juvenile
home, ranch, camp, or forestry camp. If there is no county juvenile home, ranch, camp,
or forestry camp within the county, the court may commit the minor to the county
juvenile hall.” (§ 730, subd. (a)(1).) In addition, a ward may be committed “to a
sheltered-care facility.” (Id. at subd. (a)(1)(B).) A ward may also be placed “at the Pine
Grove Youth Conservation Camp” if the ward meets certain placement criteria. (Id. at
subd. (a)(1)(D).)
12.
order will not be reversed “absent a clear abuse of discretion. [Citation.]” (Id. at
p. 1104.)
A. The court properly modified the maximum period of confinement.
The parties agree, as do we, that the originally imposed maximum period of
confinement of 19 years was erroneous. The juvenile court, however, reduced this term
to 10 years.
Appellant argues that the juvenile court never exercised its discretion in setting the
length of his confinement. Appellant takes the position that the court delegated its
authority to the probation department, and the court simply adopted the recommended
modification without reconsidering all of the relevant facts and law. In addition,
appellant asserts that the court made certain comments which shows it had “a routine
practice” of imposing the highest possible term.10 Appellant asks us to remand this
matter to “send a needed signal to the juvenile court, reminding it of its duty to carefully
consider each individual case and to determine a suitable outcome based on the
individual factors before it.” We reject these arguments and we conclude that the
modification was proper.
First, the modified term complied with the new law. (§ 731, subd. (c).) The new
period of confinement was based on the middle term of six years for assault with a
semiautomatic firearm (Pen. Code, § 245, subd. (b)) and the middle term of four years for
the personal use of a firearm (Pen. Code, § 12022.5, subd. (a)). We discern no error in
this regard.
10 Appellant’s arguments stem from the following comments which the juvenile
court made to appellant. The court stated it previously “made an order that your
maximum confinement time was 19 years. And the law has changed that indicates that I
can only sentence for the middle term. There’s a low, a middle, and a high. And,
traditionally, the juvenile court would sentence on the high term. That was the law at the
time. And, now, it’s changed recently to indicate that it needs to be the middle term.
And the middle term for the offense is ten years, okay?”
13.
Second, the juvenile court retained jurisdiction to modify the disposition.
Although this modification occurred after appellant had filed the present appeal, a lower
court may correct an unauthorized sentence notwithstanding the pendency of an appeal.
(People v. Nelms (2008) 165 Cal.App.4th 1465, 1472.) Further, an appeal does not divest
a juvenile court of jurisdiction to issue an order impacting a minor’s custody. (Code Civ.
Proc., § 917.7.) A juvenile court is granted statutory authority to change or modify any
prior disposition order. (§ 385.) For these reasons, we agree with respondent that the
juvenile court’s modification was proper.
Finally, a juvenile court retains authority to impose a period of confinement that is
less than the maximum allowed under law. (See In re Julian R. (2009) 47 Cal.4th 487,
491–492 [a juvenile court may set a confinement period less than, but not more than, the
maximum allowed].) A juvenile court is required to “consider the ‘facts and
circumstances’ of the crime. [Citation.]” (Id. at p. 492.) A court “shall set a maximum
term based upon the facts and circumstances of the matter or matters that brought or
continued the ward under the jurisdiction of the court and as deemed appropriate to
achieve rehabilitation.” (§ 731, subd. (c).)
In this matter, we reject appellant’s assertion that the juvenile court failed to
exercise its own discretion, and we likewise reject appellant’s position that the court
automatically imposed the maximum term. During the original disposition hearing,
although the court agreed with the recommendations from the probation officer, the court
explained why it felt the maximum period of confinement of 19 years was justified. The
court considered appellant’s past conduct, and the nature of the present matter.
Moreover, during the modification hearing, the court indicated that a low term existed.
This comment strongly implies that the court understood it had discretion to set a
maximum period of confinement that was below the middle term. Finally, the court’s
written order committing appellant to DJJ expressly states that the court considered the
individual facts and circumstances of the case. In addition, that order (which appears on a
14.
judicial council form) also notes that the court had discretion to modify the maximum
period of confinement.
We presume the juvenile court understood it could impose a lower term of
confinement if it felt such an order was justified under the circumstances. (See In re
Julian R., supra, 47 Cal.4th 487, 498–499 [applying general presumption that a lower
court knows and follows applicable law].) The evidence from this record does not
reasonably rebut the presumption that the court understood its discretionary authority.
Moreover, the facts and circumstances of appellant’s behavior amply support the court’s
decision to not reduce appellant’s maximum term of confinement less than 10 years. We
discern no abuse of discretion and we conclude that the court’s modification was
proper.11
B. The commitment to DJJ was statutorily authorized.
At the time the court committed appellant to DJJ in February 2021, that placement
was not prohibited by the applicable statutes. Indeed, the Legislature stated that
commitments to DJJ would not be limited until July 1, 2021. (§§ 733.1, subd. (a); 736.5,
subds. (a) & (b).) Moreover, the Legislature has stated that all wards committed to DJJ
prior to July 1, 2021, “shall remain within its custody until the ward is discharged,
released or otherwise moved pursuant to law, or until final closure of [DJJ].”12 (§ 736.5,
11 Appellant requests that, if necessary, we should treat his notice of appeal (which
was filed on March 1, 2021) as filed after the juvenile court issued its April 12, 2021,
order modifying the disposition. We agree and we will treat his notice of appeal as being
filed after the April 12, 2021, order modifying the disposition. (See Cal. Rules of Court,
rule 8.406(d) [a reviewing court may treat a notice of appeal as filed immediately after
the making of the applicable order].)
12 Under Senate Bill 823, subdivision (d) of section 736.5 stated that all wards
committed to the DJJ prior to July 1, 2021, “shall remain within its custody until the ward
is discharged, released or otherwise moved pursuant to law.” (Stats. 2020, ch. 337, § 30.)
Senate Bill 92 made a slight amendment to this subdivision. Pursuant to Senate Bill 92,
the current version of subdivision (d) of section 736.5 reads that all wards committed to
DJJ prior to July 1, 2021, “shall remain within its custody until the ward is discharged,
15.
subd. (d).) The language from these statutes overwhelmingly establishes that, even after
Senate Bill 823 went into effect, the court’s disposition committing appellant to DJJ was
statutorily authorized.
Finally, the probation report indicates that, in January 2021, the probation officer
had received confirmation from a representative of DJJ that appellant was eligible for a
commitment to DJJ. The officer was informed that appellant would be eligible for parole
at 18 months following his acceptance, with jurisdiction ending at age 25.
Under these circumstances, appellant’s commitment to DJJ prior to July 1, 2021,
was permissible.
C. The record supports the court’s decision to commit appellant to DJJ.
“No ward of the juvenile court shall be committed to [DJJ] unless the judge of the
court is fully satisfied that the mental and physical condition and qualifications of the
ward are such as to render it probable that he will be benefited by the reformatory
educational discipline or other treatment provided by [DJJ].” (§ 734.) A juvenile court
does not abuse its discretion in committing a ward to DJJ if evidence demonstrates both
(1) a probable benefit to the minor from the commitment, and (2) less restrictive
alternatives would be ineffective or inappropriate. (In re M.S. (2009) 174 Cal.App.4th
1241, 1250.) An appellate court must indulge “all reasonable inferences to support the
decision of the juvenile court.” (In re Asean D. (1993) 14 Cal.App.4th 467, 473.)
In this matter, the juvenile court found that appellant’s needs were best served by
his commitment to DJJ. Evidence supports this finding.
released or otherwise moved pursuant to law, or until final closure of [DJJ].” (Stats.
2021, ch. 18, § 10, italics added.)
16.
1. Evidence supports the decision that a commitment to DJJ would
probably benefit appellant and less restrictive alternatives were
not appropriate.
Both the probation department and the juvenile court expressed concern that the
local services available to appellant had proven ineffective in assisting in his
rehabilitation. The probation officer stated it appears appellant “may have exhausted all
his opportunities at the local level for further growth.” The officer noted that DJJ would
expose appellant with “victim awareness, gang offender program, educational and future
employment opportunities should he meet the appropriate stages and levels of treatment.”
At the disposition hearing, the court spoke directly with appellant and the court
stated that having him remain in the local juvenile center for a longer period of time
would not benefit him because it did not have a lot of programming for him. According
to the court, DJJ “has a ton of stuff” that would help appellant “decide whether or not you
are going to continue down the road that you’ve been going on or whether or not you are
going to decide that you want to do something different.” The court stated, “I don’t think
that putting you in the juvenile center and sort of warehousing you there for a year would
do anything to help you. In fact, given sort of your performance and behaviors in the
juvenile center while you’ve been there in the past, I’m pretty confident it wouldn’t help
you at all. So I’m hopeful that [DJJ] will offer you programing that will allow you to
complete school, will allow you to perhaps learn a vocation or a trade, will get you
mental health treatment, will kind of help you do those things that we haven’t been able
to do for you locally here because it just hasn’t worked out, okay?”
Appellant contends that, while the juvenile court may have expressed its
dissatisfaction with the local juvenile hall as a placement option, this record does not rule
out the availability of other potential options, such as juvenile homes, ranches, camps or
forestry camps. (See § 730, subd. (a)(1).) Appellant asserts that the court might now
select such a placement option over DJJ as being more appropriate and the least
restrictive alternative. We disagree.
17.
The evidence in this record supports the decision that a commitment to DJJ would
probably benefit appellant. The evidence also supports a finding that appellant had
exhausted his opportunities for rehabilitation through local programs. In light of
appellant’s escalating criminal behavior, which we discuss below, it is clear that the court
felt a DJJ commitment was appropriate for appellant.
2. Appellant’s criminal behavior was escalating.
The probation officer recommended that appellant be committed to DJJ because of
his “criminal history” and the “egregiousness” of the current matter. The officer believed
that appellant’s behavior “is escalating more violently with each referral/petition.”
The juvenile court agreed with the probation report, and it also expressed concern
over appellant’s increasing criminal behavior. The court listed each of appellant’s prior
criminal acts. Instead of demonstrating rehabilitation, appellant’s history exhibited
increasing violence, culminating in the present charges that involved him discharging a
firearm multiple times at a passing vehicle on a public street. The court clearly reflected
its concerns regarding appellant’s escalating criminal behavior. Moreover, appellant had
demonstrated an inability to comply with the rules and regulations when he was in the
local juvenile center. He received 37 write-ups, and he had numerous violations of
probation. The court expressed its concern that this number of write-ups was
“uncommon” and, if appellant could not comply with the rules while he was being
supervised 24 hours a day, seven days a week, there was no reason to believe he would
comply if he was not in custody. The court stated that appellant had “been given lots of
opportunities to show the Court that he can comply with probation and he has not done so
yet.”
We reject appellant’s assertion there is a reasonable chance the juvenile court
would have chosen a different placement option had it known of the Legislature’s intent
18.
to close DJJ effective June 30, 2023. Instead, appellant had exhausted local
programming, and he needed additional support and services.
Based on this record, the juvenile court acted well within its discretion in
committing appellant to DJJ.13 The court was fully satisfied that appellant’s mental and
physical condition, and his qualifications, made it probable he would benefit by a DJJ
commitment. (See § 734.) The evidence supports the court’s findings, and it
demonstrates both (1) a probable benefit to appellant from the DJJ commitment, and
(2) less restrictive alternatives would be ineffective or inappropriate. (See In re M.S.,
supra, 174 Cal.App.4th at p. 1250.) Accordingly, an abuse of discretion is not present,
and we will not disturb the court’s rulings.
III. We Need Not Address The Retroactivity Of Senate Bill 823.
The parties dispute whether or not Senate Bill 823 should apply retroactively to
appellant. Appellant claims he should benefit from the “ameliorating legislation that
came into effect” after his disposition. For example, the Legislature has expressed its
intent, commencing July 1, 2021, to shift responsibility for juvenile wards from DJJ to
local counties. Starting on that date, the Legislature has also prohibited new
commitments to DJJ (absent certain limited exceptions). (§ 736.5, subds. (a) & (b).)
13 Respondent asserts that the juvenile court properly exercised its discretion, in part,
because appellant’s family declined to acknowledge that appellant committed the
criminal conduct in the present offense. We disagree with respondent’s view of the
record. Although the court commented that appellant’s mother and his grandmother did
not think appellant had committed the latest crime, the court also acknowledged that
appellant had admitted his criminal behavior. According to the court, appellant had
recognized that his behavior was “serious” and “not appropriate.” In addition, appellant
expressed remorse during his interview with the probation officer. Contrary to
respondent’s suggestion, this record does not establish that the court based the disposition
over concerns that appellant’s family did not believe he had committed the present
offense.
19.
Respondent argues that appellant was properly committed to DJJ because his
commitment occurred before July 1, 2021. (§ 736.5, subd. (b).) Respondent takes the
position that this change in law is prospective and not retrospective.14
We need not fully respond to the parties’ dispute regarding retroactivity. Instead,
Senate Bill 823 was effective in 2020 well before appellant’s original disposition, and
well before he filed the present appeal. As such, we will presume that appellant benefits
from all of its changes, including those that occurred after his disposition and this appeal.
With that presumption in mind, however, a remand is not appropriate.
The Legislature has provided clear guidance on how juveniles, such as appellant,
will be processed if they were committed to DJJ prior to July 1, 2021. All wards
committed to DJJ prior to July 1, 2021, “shall remain within its custody until the ward is
discharged, released or otherwise moved pursuant to law, or until final closure of [DJJ].”
(§ 736.5, subd. (d).) The Legislature has directed DJJ to develop a plan, by January 1,
2022, “for the transfer of jurisdiction of youth remaining at [DJJ] who are unable to
discharge or otherwise move pursuant to law prior to final closure on June 30, 2023.”
(§ 736.5, subd. (f).)
Based on these statutes, it is clear the Legislature has provided for wards such as
appellant who were committed to DJJ prior to the cut-off date of July 1, 2021. As such,
appellant benefits from Senate Bill 823. He will be transferred from DJJ when
appropriate under the guidelines which DJJ has been directed to create. A remand is not
warranted under these circumstances.
14 Respondent concedes that the reduction of a ward’s maximum period of
confinement is ameliorative, allowing retroactive benefit to nonfinal judgments on
appeal. We agree. The reduction of the maximum period of confinement would apply to
those wards who have a nonfinal judgment on appeal. (See People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 308 [an inference of retroactivity applies if a new law
ameliorates the possible punishment for juveniles].)
20.
DISPOSITION
The juvenile court orders appealed from are affirmed.
LEVY, J.
WE CONCUR:
HILL, P. J.
DETJEN, J.
21.