In re L.L. CA2/2 ( 2013 )

Filed 6/12/13 In re L.L. CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re L. L., a Person Coming Under the B226214
Juvenile Court Law. S196866
(Los Angeles County
Super. Ct. No. MJ14339)
THE PEOPLE,
Plaintiff and Respondent,
v.
L. L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Robin R. Kesler, Juvenile Court Referee. Vacated and remanded.
Mary Bernstein, under appointment by the Supreme Court of California, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
On August 23, 2011, this court vacated an order by the juvenile court committing
L. L. (appellant) to the Division of Juvenile Facilities (DJF).1 The Attorney General filed
a petition for review with the Supreme Court of California challenging this court’s
opinion. The Supreme Court granted the petition and deferred the matter pending In re
Greg F., S191868, which was under consideration at the time.
The Supreme Court has now transferred the matter back to this court for
reconsideration in light its decision in In re Greg F. (2012) 55 Cal.4th 393 (Greg F.). We
requested additional briefing from the parties. Having reconsidered the matter, this court
concludes that no change is required of our August 23, 2011 disposition. Accordingly,
the juvenile court’s order committing appellant to DJF is once again vacated and the
matter is remanded to the juvenile court for proper disposition.
BACKGROUND2
In August 2006, appellant admitted that he committed assault with a deadly
weapon (Pen. Code, §245, subd. (a)(1)) on or about April 5, 2006, and second degree
commercial burglary (Pen. Code, § 459) on or about July 17, 2006. The juvenile court
declared appellant a ward of the court under Welfare and Institutions Code section 602,3
placed him home on probation, and set the maximum confinement period at five years
eight months.
1 “Effective July 1, 2005, the correctional agency formerly known as the California
Youth Authority (CYA) became known as the Division of Juvenile Facilities (DJF). DJF
is part of the Division of Juvenile Justice, which in turn is part of the Department of
Corrections and Rehabilitation. (Welf. & Inst. Code, § 1710, subd. (a); Pen. Code,
§ 6001; Gov. Code, §§ 12838, subd. (a), 12838.3, 12838.5, 12838.13.)” (In re Jose T.
(2010) 191 Cal.App.4th 1142, 1145, fn. 1.)
2 The following background comes from this court’s August 23, 2011 decision
(B226214 [nonpub. opn.].)
3 All subsequent unspecified statutory references are to the Welfare and Institutions
Code.
2
In November 2006, appellant admitted that he committed second degree robbery
(Pen. Code, § 211) on or about October 14, 2006. The juvenile court ordered appellant to
remain on home probation and set the maximum confinement period at six years eight
months.
In December 2006, appellant admitted that he committed second degree robbery
(Pen. Code, § 211) on or about September 23, 2006. The juvenile court ordered three
months of short-term camp community placement and set the maximum confinement
period at seven years eight months.
On October 22, 2007, the Los Angeles County District Attorney (district attorney)
alleged in a section 602 petition that, on or about August 20, 2007, appellant: threatened
a witness (count 1; Pen. Code, § 140, subd. (a)), and committed simple battery (count 2;
Pen. Code, §§ 242, 243, subd. (a)).
Approximately a month later, on November 26, 2007, the district attorney alleged
in a section 602 petition that, on or between August 1, 2005 and June 1, 2006, appellant:
committed lewd acts upon a child (counts 1, 2 & 3; Pen. Code, § 288, subd. (a)),
committed oral copulation by threat of future retaliation (count 4; Pen. Code, § 288a,
subd. (d)(2)), sodomized a person under 14 years of age (count 5; Pen. Code, § 286, subd.
(c)(1)), and dissuaded a witness from reporting a crime (count 6; Pen. Code, § 136.1,
subd. (b)(1)).
On December 21, 2007, the juvenile court approved a negotiated plea agreement
under which appellant admitted count 1 (threatening a witness) of the October 2007
petition, and counts 1 and 2 (committing lewd acts upon a child) of the November 2007
petition. As part of this agreement, the juvenile court ordered nine months of long-term
camp community placement, dismissed the remaining counts on both petitions, and set
the maximum term of physical confinement at 14 years eight months.4
4 A more detailed discussion of what transpired at the December 21, 2007 hearing is
contained in “Discussion, Section III” of this decision.
3
In August 2008, appellant returned before the juvenile court based on allegations
of probation violations contained in a section 777 petition.5 The petition alleged that
appellant had: pushed another minor, broken into a camp refrigerator to remove snacks
and cookies, responded to a probation officer with profanity, made noises at bedtime by
shouting profanity, and displayed defiance toward probation staff. In November 2008, at
the hearing on the alleged probation violations, appellant admitted only to the allegation
that he had broken into a camp refrigerator to remove snacks and cookies. The juvenile
court stated that camp placement had failed to rehabilitate appellant, and that
commitment to DJF would serve the best interests of appellant and the public by
providing appellant with sexual offender counseling and “some element of punishment.”
Appellant appealed the juvenile court’s order committing him to DJF. Appellant
argued that the most recent offense to which he admitted was the offense of threatening a
witness, which was neither an offense described in section 707, subdivision (b) (section
707(b)), nor a sex offense as set forth in Penal Code section 290.008, subdivision (c), as
required by section 733, subdivision (c) (section 733(c)). The People agreed with
appellant’s argument on appeal. We agreed, as well, stating in our April 12, 2010
decision that: “‘The language of section 733(c) allows commitment to DJF only when
“the most recent offense alleged in any petition and admitted or found to be true by the
court” (italics added) is an eligible offense. The statute does not focus on the overall or
entire delinquent history of the minor or on whether the minor may be generally
considered a serious, violent offender. The language looks to the minor’s “most recent
offense.”’ (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, 1468.)” We vacated
the juvenile court’s commitment order and remanded for proper disposition.
At the July 9, 2010 remand hearing, the juvenile court concluded that releasing
appellant from DJF would hinder his rehabilitation and endanger the general public.
5 Section 777 provides authority for a probation officer and/or the People to seek an
order changing or modifying a previous placement order if a violation of a condition of
probation occurs.
4
Invoking section 782,6 the juvenile court dismissed the October 2007 petition alleging the
offense of threatening a witness, and withdrew appellant’s admission to that offense. The
juvenile court then found that appellant was eligible for DJF commitment based on his
admission to the earlier offense of committing lewd acts upon a child. Appellant once
again appealed the juvenile court’s commitment order.
In a decision dated August 23, 2011, this court, relying in large part on the Third
District Court of Appeal’s decision in V.C. v. Superior Court, supra, 173 Cal.App.4th
1455, 1468 (V.C.), held that the juvenile court’s dismissal of the petition alleging the
offense of threatening a witness was an abuse of discretion because it contravened both
the plain language and legislative history of section 733(c).
As noted above, the Attorney General filed a petition for review of this court’s
decision before the Supreme Court. The Supreme Court granted the petition for review
and deferred the matter. The Supreme Court has now transferred the matter back to this
court for reconsideration in light of its decision in Greg F., supra, 55 Cal.4th 393.
ANALYSIS
I. Statutory Framework
Where, as here, “a minor is adjudged a ward of the court on the ground that he or
she is a person described by Section 602, the court may . . . [c]ommit the ward to the
Department of Corrections and Rehabilitation, Division of Juvenile Facilities, if the ward
has committed an offense described in subdivision (b) of Section 707 or subdivision (c)
of Section 290.008 of the Penal Code, and is not otherwise ineligible for commitment to
the division under Section 733.” (§ 731, subd. (a)(4).)
Section 733(c) sets forth three categories of juvenile wards who are ineligible for
commitment to DJF. As relevant here, the statute provides: “A ward of the juvenile
6 Section 782 provides: “A judge of the juvenile court in which a petition was filed,
at any time before the minor reaches the age of 21 years, may dismiss the petition or may
set aside the findings and dismiss the petition if the court finds that the interests of justice
and the welfare of the minor require such dismissal, or if it finds that the minor is not in
need of treatment or rehabilitation.”
5
court who meets any condition described below shall not be committed to the Department
of Corrections and Rehabilitation, Division of Juvenile Facilities: [¶] . . . [¶] (c) The
ward has been or is adjudged a ward of the court pursuant to Section 602, and the most
recent offense alleged in any petition and admitted or found to be true by the court is not
described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the
Penal Code.” (§ 733(c).)
II. In re Greg F. (2012) 55 Cal.4th 393In Greg F., supra, 55 Cal.4th 393, the minor (Greg) struck a child in the head with
a baseball bat after the child refused to turn over his bicycle. (Id. at p. 400.) Just before
the assault, Greg yelled gang slogans and displayed gang hand signs. The district
attorney filed a delinquency petition (the “first delinquency petition”), alleging that Greg
had committed assault with a deadly weapon and by means of force likely to produce
great bodily injury, had personally inflicted great bodily injury, and had acted for the
benefit of a criminal street gang. Greg admitted each of the allegations and the juvenile
court sustained the petition. Because the offense of “assault by any means of force likely
to produce great bodily injury” is one of the offenses listed in section 707(b), Greg was
eligible for a DJF commitment. (Greg F., at p. 401.) Indeed, the probation department
unanimously recommended commitment to DJF based on the severity of the crime, the
lack of remorse exhibited by Greg, and the risk that Greg posed to the community if
placed on probation. (Ibid.)
The juvenile court, however, opted not to commit Greg to DJF and instead ordered
an out-of-home placement. Five months later, after refusing to participate in the course
of treatment offered at the out-of-home placement site, Greg was transferred to juvenile
hall. Two months into his juvenile hall placement, Greg, along with two fellow gang
members, physically attacked three individuals who belonged to a rival gang. (Greg F.,
supra, 55 Cal.4th. at p. 401.)
The district attorney filed a second delinquency petition alleging that Greg had
committed battery for the benefit of a gang (Pen. Code, §§ 186.22, subd. (d), 242), and
knowingly participated in a gang (Pen. Code, § 186.22, subd. (a)). At the detention
6
hearing the next morning, Greg admitted the battery offense, which was not a DJF-
eligible offense. The juvenile court accepted Greg’s admission and set the matter for a
dispositional hearing. (Greg F., supra, 55 Cal.4th at p. 401.) Three days later, the
district attorney filed an ex parte request to calendar a motion to “withdraw” Greg’s plea
to the battery offense, and subsequently filed a notice of probation violation under section
777. The district attorney explained that he had filed the second delinquency petition in
error, and requested that the juvenile court withdraw Greg’s plea to the battery offense
and dismiss the petition. The district attorney explained that he was “‘trying to get to a
[DJF-eligible] offense.’” (Greg F., supra, 55 Cal.4th at p. 402.)
Invoking section 782, the juvenile court dismissed the second delinquency petition
and set aside Greg’s admission to the battery offense. The juvenile court explained that it
had dismissed the second petition “to create the ‘best options’ for disposition.” (Greg F.,
supra, 55 Cal.4th at p. 402.) Greg subsequently admitted the section 777 probation
violation and the juvenile court committed Greg to DJF based on his earlier admission to
the offense of assault by means of force likely to produce great bodily injury. (Greg F.,
at p. 402.)
The Court of Appeal reversed the juvenile court’s order withdrawing Greg’s
admission to the battery offense and dismissing the second delinquency petition. It held
that section 733(c) limits a juvenile court’s authority to dismiss a current delinquency
petition under section 782 in order to render a minor eligible for DJF commitment based
on an earlier sustained delinquency petition. (Greg F., supra, 55 Cal.4th at p. 402.)
The Supreme Court reversed the Court of Appeal. The Court reasoned as follows:
After Greg attacked the three individuals in juvenile hall, the district attorney could have
filed a section 777 petition alleging that Greg had violated probation by committing
battery. Had the district attorney done so, and had the allegation been found true, Greg
could have been committed to DJF for up to 17 years as punishment for the earlier assault
offense. (Greg F., supra, 55 Cal.4th at p. 405.) The district attorney, however,
mistakenly brought Greg’s battery offense in front of the juvenile court by way of a
second delinquency petition. Once Greg admitted to the battery allegation, Greg became
7
ineligible for DJF commitment. Thus, the Court pointed out, Greg’s ineligibility for DJF
commitment arose “because the prosecution ha[d] simply filed the wrong piece of paper:
a 602 petition instead of a 777 notice.” (Id. at p. 411.) In other words, “[t]wo minors on
probation for the same DJF-eligible offense who later committed the same non-section-
707(b) conduct would be subject to very different dispositions depending on which form
of pleading was filed.” (Ibid.) The Court noted that “[a]lthough not to be encouraged,
occasional oversights such as [filing the wrong piece of paper] understandably occur
given the unusually short deadlines in juvenile delinquency matters.” (Ibid.)
The Court concluded that such a scenario was “absurd” and unfairly “immunize[d]
from DJF commitment a minor who quickly admits new misconduct alleged in a 602
petition even if the minor remained eligible for DJF under the terms of probation on a
prior offense.” (Greg F., supra, 55 Cal.4th at p. 411.) According to the Court, “[t]o
interpret section 733(c) as cutting off the juvenile court’s broad discretion to order an
appropriate disposition, simply because the wrong document was filed, would elevate
form over substance and create an absurd result the Legislature could not have intended.”
(Id. at pp. 411-412.) Thus the Court held, “When a DJF commitment for a section 707(b)
offense for which probation was ordered serves the interest of justice and the welfare of
the minor, the juvenile court has discretion to dismiss a new 602 petition to permit
treatment of the matter as a probation violation.” (Id. at p. 412.)
In issuing its holding, the Court was careful to distinguish the facts of Greg F.
with the facts of V.C., supra, 173 Cal.App.4th 1455, the case that we relied on in our
August 13, 2011 opinion. 7 The Court noted that, unlike the minor in Greg F., the minor
7 In V.C., supra, 173 Cal.App.4th 1455, the district attorney alleged in a section 602
delinquency petition that the minor (V.C.) had committed a lewd and lascivious act upon
a child (Pen. Code, § 288, subd. (a)). V.C. admitted to the reasonably related offense of
oral copulation of another minor (Pen. Code, § 288a). Although that offense rendered
V.C. eligible for DJF commitment, the juvenile court placed V.C. in a “‘suitable Level
“A” placement’” with participation in sexual offender counseling as a condition of
probation. Two years later, the district attorney filed a second delinquency petition
alleging V.C. committed three new criminal offenses: a lewd and lascivious act upon a
8
in V.C. had admitted to a non-DJF-eligible misdemeanor as part of a “negotiated plea
bargain,” and had “already entered the placement that the court ordered.” (Greg F.,
supra, 55 Cal.4th at pp. 414-415.) The plea agreement was thus a “‘fully executed
agreement,’”(italics added by Greg F.) and the minor in V.C. had a “constitutional right
to the benefit of his completed plea bargain.” (Greg F., at p. 415, citing V.C., at p. 1467.)
Given this constitutional right, the Court stated: “Dismissing a 602 petition after
disposition potentially raises a host of constitutional concerns not presented in the case
before us. We express no opinion on whether such a dismissal could ever be
appropriate.” (Greg F., at p. 415.) The Supreme Court did, however, disapprove of the
portion of V.C. in which the V.C. court held that “section 733(c) must always override the
juvenile court’s ability to dismiss a delinquency petition under section 782.” (Greg F., at
p. 415, citing V.C., at pp. 1467-1469.)
III. Application of Greg F. to the Present Case
A. The December 21, 2007 Hearing
Before we turn to how Greg F. applies to the present case, we provide a more
detailed discussion of what took place at the December 21, 2007 hearing when appellant
child (Pen. Code, § 288, subd. (a)); misdemeanor indecent exposure (Pen. Code, § 314,
subd. 1); and misdemeanor child molestation (Pen. Code, § 647.6, subd. (a)(1)). The
juvenile court approved a negotiated plea bargain under which V.C. admitted the charge
of misdemeanor indecent exposure. The court continued V.C. as a ward of the court and
again ordered a “‘suitable Level “A” placement’” with participation in a sexual offender
treatment program as a condition of probation. (173 Cal.App.4th at pp. 1459-1460.)
Approximately four months later, the district attorney filed a section 777 probation
violation petition when V.C. refused to participate in the treatment program and sought
DJF commitment. Because V.C.’s admission to the misdemeanor indecent exposure
rendered him ineligible for DJF commitment, the district attorney moved to dismiss the
second delinquency petition alleging that offense. The superior court concluded that
commitment to DJF was beneficial for both the minor and the general public. It
withdrew the minor’s admission to the misdemeanor indecent exposure offense, and
dismissed the second delinquency petition pursuant to section 782 for the express purpose
of rendering V.C. eligible for DJF commitment based on his earlier admission to oral
copulation of another minor. (V.C., supra, 173 Cal.App.4th at p. 1461.) The Court of
Appeal concluded the juvenile court had abused its discretion. (Id. at p. 1468.)
9
admitted to the offenses of threatening a witness and committing lewd acts upon a child.
The colloquy between the juvenile court, the prosecution, and appellant that took place at
this hearing is of significance.
At that hearing, the juvenile court commenced proceedings by announcing: “I
understand that he’s going to admit two counts of 288(a).” (The court was referring to
the two counts of committing lewd acts upon a child (Pen. Code, § 288, subd. (a)) that
occurred, on or between August 1, 2005, and June 1, 2006, as alleged in the
November 26, 2007 delinquency petition.) Counsel for appellant acknowledged that
appellant intended to admit these counts, and added that appellant also planned on
admitting count 1 of the October 22, 2007 petition. (Counsel was referring to the count
of threatening a witness (Pen. Code, § 140, subd. (a)) alleged to have occurred on or
about August 27, 2007.) The juvenile court responded: “And that’s your understanding
he’s going to do a nine-month camp?” Counsel for appellant answered: “Yes.”
The juvenile court directed the prosecutor to take appellant’s waivers. The
prosecutor went over the charges that appellant intended to admit (one count of
threatening a witness and two counts of lewd acts upon a child), conducted a Gladys R.8
inquiry, and then reviewed appellant’s constitutional rights to an adjudication, to confront
and cross-examine adverse witnesses, and the right against self-incrimination. Appellant
stated that he understood these rights and waived all of them.
The prosecutor then informed appellant of the consequences of violating
probation. The following colloquy is particularly salient:
“[Prosecutor]: [I]f you’re found in violation of your terms and conditions of
probation, the court has some options available to it. You could be sent—you could be
sent to juvenile hall, you could be sent back to camp, you could go to suitable placement.
Mr. [L.], I believe I’m pretty sure that you are actually eligible now, based on your prior
8 In re Gladys R. (1970) 1 Cal.3d 855, 862, provides: “[I]n order to become a ward
of the court . . . clear proof must show that a child under the age of 14 years at the time of
committing the act appreciated its wrongfulness.”
10
petitions, if you are found in violation of your terms and conditions of your probation you
could go to CYA.
“The Court: Although he cannot because none of these current offenses are
707(b) offenses.
“[Prosecutor]: But he’s still on probation for a 211.
“The Court: Does not matter. The new offense has to be a 707(b) offense.
“[Prosecutor]: Okay. All right. So I take that back about CYA, but everything
else there applies. Do you understand the consequences of a probation violation . . . ?
....
“[Appellant]: Yes, sir.”
After a short break in the proceedings, the prosecutor asked appellant: “Keeping
everything in mind we’ve gone through [, appellant,] do you still wish to admit the
charges?” Appellant responded: “Yes.” Appellant then admitted to count 1 of the
October 2007 petition, and counts 1 and 2 of the November 2007 petition. The juvenile
court accepted appellant’s admission, and noted that appellant understood the “possible
consequences” of his admission. The juvenile court declared appellant a ward of the
court, sustained the counts that he admitted, and dismissed in the interests of justice the
remaining counts alleged in the October and November 2007 petitions. The juvenile
court moved directly to disposition. It placed appellant under the care, custody, and
control of the probation department, ordered nine months of long-term camp placement,
and set the maximum term of physical confinement at 14 years eight months.
B. Greg F. Is Distinguishable
In our view Greg F. is distinguishable from the present case for several reasons:
First, unlike in Greg F. where the minor was rendered ineligible for DJF
commitment because the prosecution “simply filed the wrong piece of paper” (55 Cal.4th
at p. 411), appellant in this case was rendered ineligible for DJF commitment because the
prosecution agreed to a plea bargain in which appellant would admit to a nonqualifying
DJF offense in exchange for a nine-month camp placement. It appears that at the time
the district attorney filed the October 2007 delinquency petition (alleging the
11
nonqualifying offense), appellant was still on probation for an earlier offense of robbery
(a DJF-qualifying offense). Thus, the prosecution could have filed a section 777
probation violation petition, which would have rendered appellant eligible for DJF
commitment. Yet, the prosecution filed a delinquency petition instead, and at no point
shortly after filing this petition did the prosecution state that it had made a mistake by
filing a delinquency petition instead of a probation violation petition. (Compare Greg F.,
at p. 415 [“Just three days after the minor admitted an offense that was not DJF eligible,
the prosecution moved to set aside the plea and dismiss the 602 petition.”] The “absurd”
scenario of “elevat[ing] form over substance” found in the circumstances of Greg F. is
not present here. (Greg F., supra, 55 Cal.4th at p. 412.)
Second, unlike in Greg F. where there appeared to be no agreement as to the
nature of punishment the minor would receive for admitting the battery offense, appellant
admitted to the offenses of threatening a witness and committing lewd acts upon a child
as part of a negotiated plea bargain in which he would receive nine months of camp
placement, and not a DJF commitment. In fact, the juvenile court stated twice during the
December 21, 2007 hearing that appellant would not be eligible for DJF commitment
even if he violated probation and the prosecution agreed with the court’s statements.
Appellant’s plea agreement was a “‘fully executed agreement,’” and appellant had a
“constitutional right to the benefit of his completed plea bargain.” (Greg F., supra, 55
Cal.4th at p. 415; see also People v. Segura (2008) 44 Cal.4th 921, 931 [“‘“A plea
agreement is, in essence, a contract between the defendant and the prosecutor to which
the court consents to be bound.” [Citation.] Should the court consider the plea bargain to
be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly.’”].)
Third, unlike in Greg F. where “no disposition on the petition had been entered, or
even much discussed” (55 Cal.4th at p. 415), the juvenile court dismissed the later
delinquency petition in order to render appellant eligible for DJF commitment disposition
several months after disposition. As noted by the Supreme Court in Greg F.,
“[d]ismissing a 602 petition after disposition potentially raises a host of constitutional
concerns.” (Ibid.)
12
In her letter brief to the court, the Attorney General argues that the circumstances
of this case do not raise the “constitutional concerns” articulated in Greg F. because “the
material terms of appellant’s plea had already been agreed upon before the start of the
December 2007 hearing,” and “there is no showing that appellant relied on the colloquy
about the consequences of a probation violation in deciding how to comport his
behavior.” In our view, this argument is based on conjecture. All one can be sure of
from the record is that the appellant had tentatively agreed to admit to one count of
threatening a witness and two counts of lewd acts upon a child in exchange for a nine-
month camp placement, and actually admitted to those counts only after being told by the
juvenile court, with the prosecution in agreement, that he would not be committed to DJF
if he violated probation. The record leaves no room for further guessing as to what
appellant would have agreed to had no such colloquy taken place.
In sum, we have reconsidered the matter and conclude, for the reasons cited above,
that the Supreme Court’s decision in Greg F., supra, 55 Cal.4th 393, is distinguishable
and does not compel us to alter the disposition ordered in our August 23, 2011 opinion.
DISPOSITION
The juvenile court’s order committing appellant to DJF is vacated and the matter
is remanded for proper disposition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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