People v. C.Z. , 165 Cal. Rptr. 3d 409 ( 2013 )


Menu:
  • Filed 12/11/13
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    In re C.Z., a Person Coming Under the
    Juvenile Court Law.
    THE PEOPLE,                                         E057520
    Plaintiff and Respondent,                   (Super.Ct.No. SWJ009440)
    v.                                                  OPINION
    C.Z.,
    Defendant and Appellant.
    APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
    Judge. Affirmed.
    Christopher Love, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and
    Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
    1
    In connection with a previous petition, minor C.Z. was placed on informal
    supervision (Welf. & Inst. Code, §§ 654, 654.2); later, however, his informal supervision
    was revoked.
    In connection with the present petition, the juvenile court ruled that the minor was
    not eligible for deferred entry of judgment (Welf. & Inst. Code, § 790) because his
    informal supervision had previously been revoked. It relied on Welfare and Institutions
    Code section 790, subdivision (a)(4), which provides that a minor is eligible for deferred
    entry of judgment only if “[t]he minor’s record does not indicate that probation has ever
    been revoked without being completed.”
    The minor appeals, contending that informal supervision is not probation. He
    argues (among other things) that if informal supervision is probation, then it violates due
    process, because it does not require either an adjudication or admission of guilt.
    We will hold that, as a matter of statutory construction, the Legislature intended
    “probation,” as used in Welfare and Institutions Code section 790, subdivision (a)(4), to
    include informal supervision. We will further hold that this construction does not render
    informal supervision unconstitutional. Accordingly, we will affirm.
    I
    PROCEDURAL BACKGROUND
    In July 2009, an initial petition was filed alleging resisting an officer. (Pen. Code,
    § 148, subd. (a)(1).) In August 2009, the minor was placed on informal supervision
    pursuant to Welfare and Institutions Code sections 654 and 654.2. In December 2009,
    2
    the People filed a request to revoke informal supervision, based on the minor’s failure to
    comply with the conditions.
    Meanwhile, in January 2010, a second petition was filed alleging shoplifting.
    (Pen. Code, § 490.5, subd. (a).) In March 2010, the juvenile court revoked the minor’s
    informal supervision; it then dismissed the first petition. The minor admitted the
    allegations of the second petition. The juvenile court made a wardship adjudication and
    placed the minor on formal probation for six months under Welfare and Institutions Code
    section 725, subdivision (a).
    In June, 2012, a third petition was filed alleging resisting an executive officer.
    (Pen. Code, § 69.) At the initial hearing, the juvenile court indicated that it was
    considering deferred entry of judgment.
    At the next hearing, the People objected that the juvenile court could not grant
    deferred entry of judgment. The juvenile court requested briefing by both sides.
    In their briefing, the People argued that, because the minor’s informal supervision
    had previously been revoked, he did not qualify for deferred entry of judgment under
    Welfare and Institutions Code section 790, subdivision (a)(4), which requires that “[t]he
    minor’s record does not indicate that probation has ever been revoked without being
    completed.”
    The minor argued that informal supervision is not “probation” within the meaning
    of Welfare and Institutions Code section 790, subdivision (a)(4).
    3
    After hearing argument, the juvenile court ruled that the minor was not eligible for
    deferred entry of judgment. It explained: “[A] 654 revocation is synonymous with
    having probation revoked. . . . [A]lthough Section 654 defines control of the minor as a
    program of supervision, it is nonetheless dictated by probation. . . . [W]hen you look at
    the total language of the section, what is happening, by operation of law, for lack of a
    better term, is informal probation. Indeed, how else can the Court define a program that
    is set up by, controlled by, and operated by the probation department itself?”
    The minor then admitted the allegations of the petition. The juvenile court made a
    wardship adjudication and placed the minor on formal probation for three years.
    II
    INFORMAL SUPERVISION AS “PROBATION”
    The minor contends that the trial court erred by ruling that informal supervision is
    “probation” for purposes of eligibility for deferred entry of judgment.
    A.     Statutory Background.
    As background, it is necessary to understand three of the juvenile court’s
    rehabilitative options: (1) informal supervision, (2) deferred entry of judgment, and (3)
    formal probation.
    4
    Once a juvenile delinquency petition has been filed, the juvenile court has the
    option of placing the minor on “a program of supervision as set forth in Section 654”1 for
    six to twelve months. (Welf. & Inst. Code, § 654.2, subd. (a).)2 This requires the
    consent of both the minor and the minor’s parent or guardian. (Ibid.) The program of
    supervision may include substance abuse treatment, counseling, education, and
    community service. (Welf. & Inst. Code, §§ 654, 654.4, 654.6; Derick B. v. Superior
    1       Welfare and Institutions Code section 654, as relevant here, provides: “In
    any case in which a probation officer, after investigation of an application for a petition
    or any other investigation he or she is authorized to make concludes that a minor is within
    the jurisdiction of the juvenile court or will probably soon be within that jurisdiction, the
    probation officer may, in lieu of filing a petition to declare a minor a dependent child of
    the court or a minor or a ward of the court under Section 601 or requesting that a petition
    be filed by the prosecuting attorney to declare a minor a ward of the court under
    subdivision (e) of Section 601.3 or Section 602 and with consent of the minor and the
    minor’s parent or guardian, delineate specific programs of supervision for the minor, for
    not to exceed six months, and attempt thereby to adjust the situation which brings the
    minor within the jurisdiction of the court or creates the probability that the minor will
    soon be within that jurisdiction.”
    2        Welfare and Institutions Code section 654.2, subdivision (a) provides: “If a
    petition has been filed by the prosecuting attorney to declare a minor a ward of the court
    under Section 602, the court may, without adjudging the minor a ward of the court and
    with the consent of the minor and the minor’s parents or guardian, continue any hearing
    on a petition for six months and order the minor to participate in a program of supervision
    as set forth in Section 654. If the probation officer recommends additional time to enable
    the minor to complete the program, the court at its discretion may order an extension.
    Fifteen days prior to the final conclusion of the program of supervision undertaken
    pursuant to this section, the probation officer shall submit to the court a followup report
    of the minor’s participation in the program. The minor and the minor’s parents or
    guardian shall be ordered to appear at the conclusion of the six-month period and at the
    conclusion of each additional three-month period. If the minor successfully completes
    the program of supervision, the court shall order the petition be dismissed. If the minor
    has not successfully completed the program of supervision, proceedings on the petition
    shall proceed no later than 12 months from the date the petition was filed.”
    5
    Court (2009) 
    180 Cal. App. 4th 295
    , 302.) If the minor does not perform successfully,
    “proceedings on the petition shall proceed . . . .” (Welf. & Inst. Code, § 654.2, subd. (a).)
    If the minor successfully completes the program of supervision, the petition is dismissed.
    (Ibid.) This procedure is commonly called either “informal probation” or “informal
    supervision.” (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2d ed. 2013)
    § 56.15, p. 1919.)
    Deferred entry of judgment is an “alternative” to informal supervision. (Cal.
    Criminal Law: Procedure and Practice, supra, § 56.17, p. 1921.) The deferred entry of
    judgment procedure is laid out in Welfare and Institutions Code section 7903 et seq. To
    3      Welfare and Institutions Code section 790, as relevant here, provides:
    “(a) Notwithstanding Section 654 or 654.2, or any other provision of law, this
    article shall apply whenever a case is before the juvenile court for a determination of
    whether a minor is a person described in Section 602 because of the commission of a
    felony offense, if all of the following circumstances apply:
    “(1) The minor has not previously been declared to be a ward of the court for the
    commission of a felony offense.
    “(2) The offense charged is not one of the offenses enumerated in subdivision (b)
    of Section 707.
    “(3) The minor has not previously been committed to the custody of the Youth
    Authority.
    “(4) The minor’s record does not indicate that probation has ever been revoked
    without being completed.
    “(5) The minor is at least 14 years of age at the time of the hearing.
    “(6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal
    Code.
    “(b) . . . If the minor is found eligible for deferred entry of judgment, the
    prosecuting attorney shall file a declaration in writing with the court or state for the
    record the grounds upon which the determination is based, and shall make this
    information available to the minor and his or her attorney. Upon a finding that the minor
    [footnote continued on next page]
    6
    be eligible for deferred entry of judgment, the minor must be alleged to have committed a
    felony. (Welf. & Inst. Code, § 790, subd. (a).) The minor also must meet certain
    additional requirements (ibid.); one is that “[t]he minor’s record does not indicate that
    probation has ever been revoked without being completed.” (Welf. & Inst. Code, § 790,
    subd. (a)(4).) The minor must “admit[] the charges in the petition . . . .” (Welf. & Inst.
    Code, § 791, subd. (b); see also 
    id., subd. (a)(3).)
    However, the juvenile court does not
    make a jurisdictional finding. (See Welf. & Inst. Code, § 791, subd. (c).)
    The juvenile court may “impose any . . . term of probation . . . that the judge
    believes would assist in the education, treatment, and rehabilitation of the minor and the
    prevention of criminal activity.” (Welf. & Inst. Code, § 794.) The deferral period lasts
    for 12 to 36 months. (Welf. & Inst. Code, § 791, subd. (a)(3).) If the minor does not
    perform successfully during the deferral period, the court may make a jurisdictional
    finding and schedule a dispositional hearing. (Welf. & Inst. Code, § 793, subd. (a).) If
    the minor does successfully complete the deferral period, “the charge or charges in the
    wardship petition shall be dismissed and the arrest upon which the judgment was deferred
    shall be deemed never to have occurred and any records in the possession of the juvenile
    court shall be sealed . . . .” (Welf. & Inst. Code, § 793, subd. (c).)
    [footnote continued from previous page]
    is also suitable for deferred entry of judgment and would benefit from education,
    treatment, and rehabilitation efforts, the court may grant deferred entry of judgment. . . .
    The court shall make findings on the record that a minor is appropriate for deferred entry
    of judgment pursuant to this article in any case where deferred entry of judgment is
    granted.”
    7
    Finally, after the juvenile court makes a jurisdictional finding, one of its
    dispositional options is to place the minor on formal probation, either with wardship
    (Welf. & Inst. Code, § 727, subd. (a)(2)) or without wardship (Welf. & Inst. Code, § 725,
    subd. (a)).4 Probation without wardship means that, without making a wardship
    adjudication, the juvenile court “place[s] the minor on probation, under the supervision of
    the probation officer, for a period not to exceed six months.” (Welf. & Inst. Code, § 725,
    subd. (a).) If the minor fails to comply with the probation conditions, the court may
    make a wardship adjudication. (Welf. & Inst. Code, § 725, subd. (a).)
    B.     Statutory Construction.
    The issue before us is fundamentally one of statutory construction: Does the word
    “probation,” as used in Welfare and Institutions Code section 790, subdivision (a)(4),
    include informal supervision under Welfare and Institutions Code section 654.2?
    “When construing any statute, ‘our goal is “‘to ascertain the intent of the enacting
    legislative body so that we may adopt the construction that best effectuates the purpose of
    the law.’”’ [Citation.] ‘When the language of a statute is clear, we need go no further.’
    [Citation.] But where a statute’s terms are unclear or ambiguous, we may ‘look to a
    4       Welfare and Institutions Code section 725, subdivision (a), as relevant here,
    provides: “If the court has found that the minor is a person described by Section 601 or
    602, by reason of the commission of an offense other than any of the offenses set forth in
    Section 654.3, it may, without adjudging the minor a ward of the court, place the minor
    on probation, under the supervision of the probation officer, for a period not to exceed six
    months. . . . If the minor fails to comply with the conditions of probation imposed, the
    court may order and adjudge the minor to be a ward of the court.”
    8
    variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be
    remedied, the legislative history, public policy, contemporaneous administrative
    construction, and the statutory scheme of which the statute is a part.’ [Citations.]” (In re
    M.M. (2012) 
    54 Cal. 4th 530
    , 536.)
    Here, the word “probation” in Welfare and Institutions Code section 790,
    subdivision (a)(4) is ambiguous. Admittedly, Welfare and Institutions Code sections 654
    and 654.2, concerning informal supervision, never use the word “probation.” However,
    as mentioned earlier, the procedure that they establish is commonly called “informal
    probation.” (See, e.g., In re J.V. (2010) 
    181 Cal. App. 4th 909
    , 911 [Fourth Dist., Div.
    Two].) Moreover, in operation, informal supervision is almost indistinguishable from
    formal probation without wardship. The main differences are in terms of consent,
    duration, and whether the juvenile court makes a prior jurisdictional finding. These
    distinctions do not seem particularly material to whether a failure at one or the other
    should make the minor ineligible for deferred entry of judgment.5
    Accordingly, we must consider extrinsic aids, starting with the overall statutory
    scheme. We note that at least one related statute does refer to informal supervision as
    “probation.” Specifically, Welfare and Institutions Code section 653.5 states that a
    probation officer must take an application to commence a delinquency proceeding to the
    5      Indeed, the fact that the minor fails to complete a rehabilitative program,
    such as informal supervision, to which he or she has consented would seem to point all
    the more strongly toward ineligibility.
    9
    prosecutor within 48 hours under certain specified circumstances (Welf. & Inst. Code,
    § 653.5, subd. (c)); one of these is “[i]f it appears to the probation officer that the minor
    has previously been placed in a program of informal probation pursuant to Section 654.”
    (Welf. & Inst. Code, § 653.5, subd. (c)(7), italics added.)
    We must also consider the legislative history of Welfare and Institutions Code
    section 790. It was enacted in 2000 as part of Proposition 21, the Gang Violence and
    Juvenile Crime Prevention Act of 1998. (Proposition 21, § 29.) As already noted, it
    makes deferred entry of judgment available to certain minors who have allegedly
    committed a felony. (Welf. & Inst. Code, § 790, subd. (a).)
    At the same time, Proposition 21 also enacted Welfare and Institutions Code
    section 654.3, subdivision (h), which makes a minor who is alleged to have committed a
    felony offense when the minor was at least 14 years of age ineligible for informal
    supervision. Thus, according to the official summary of Proposition 21, provided to
    voters in the ballot pamphlet, it “[e]liminate[d] informal probation for juveniles
    committing felonies.” (Ballot Pamp., Primary Elec. (May 7, 2000) Official Title and
    Summary prepared by the Attorney General.)
    This shows that the voters who enacted Welfare and Institutions Code section 790
    were told that informal supervision was a species of probation. Thus, they would have
    understood the use of the word “probation” in Welfare and Institutions Code section 790,
    subdivision (a)(4) to include informal supervision. Even more important, it shows that
    the new deferred entry of judgment procedure was intended to be a substitute for informal
    10
    supervision when a minor is charged with a felony. In other words, the two procedures
    were fungible. In that light, it is apparent why the drafters and the electorate would have
    intended a minor who has already been unsuccessful on informal supervision to be
    ineligible for deferred entry of judgment — such a minor has demonstrated that deferred
    entry of judgment is likely to be ineffective.
    Finally, the wording of Welfare and Institutions Code section 790, subdivision
    (a)(4) is closely parallel to — indeed, it appears to have been modeled on — Penal Code
    section 1000, subdivision (a)(4). Penal Code section 1000 et seq. establishes a deferred
    entry of judgment procedure in certain drug-related cases, also known as drug diversion.
    One of the requirements for drug diversion is that “[t]he defendant’s record does not
    indicate that probation or parole has ever been revoked without thereafter being
    completed.” (Pen. Code, § 1000, subd. (a)(4).)
    In People v. Bishop (1992) 
    11 Cal. App. 4th 1125
    , the court held that “probation”
    within the meaning of Penal Code section 1000, subdivision (a)(4) included a
    “conditional sentence” under Penal Code section 1203b, sometimes also known as
    summary probation. 
    (Bishop, supra
    , at pp. 1128-1135.) It explained:
    “We believe such an interpretation is true to the fundamental precept of statutory
    construction, namely to ascertain the intent of the Legislature so as to effectuate the
    purpose of the law. [Citation.] The primary purpose of the diversion statutes is
    rehabilitation. [Citations.] The intent underlying the eligibility requirement contained in
    11
    section 1000(a)(4) is to identify ‘those individuals who are most likely to benefit from the
    diversion program.’ [Citation.]
    “The probation statutes also have a rehabilitative purpose. [Citation.] Since both
    diversion and probation depend upon the defendant’s cooperation in a program of
    rehabilitation, it follows that ‘[a] person who shows willingness to abide by the terms of
    probation and complete the rehabilitative process is likely to benefit from diversion.’
    [Citations.] ‘Conversely, an individual whose previous probationary grant “has been
    revoked and not thereafter completed” has evidenced a refusal to abide by the terms and
    conditions of probation thereby indicating that he [or she] has little chance of succeeding
    in, or benefiting from, a diversion program.’ [Citation.]
    “Given these general purposes, there appears to be no rational basis to distinguish
    between those who have failed successfully to complete formal probation and those who
    have failed to complete summary probation, or as it is now known, ‘conditional
    sentence.’ In either case, the individual has not ‘demonstrated his [or her] amenability to
    the rehabilitative process by completing probation in a satisfactory manner, [and] the
    Legislature has rendered such individuals ineligible for diversion by virtue of section
    1000(a)(4).’ [Citation.]” (People v. 
    Bishop, supra
    , 11 Cal.App.4th at p. 1130.)
    The same reasoning applies here. More to the point, “[t]he drafters of an initiative
    and the voters who enacted it are presumed to have been aware of the existing statutory
    law and its judicial construction. [Citations.]” (People v. Superior Court (Gevorgyan)
    (2001) 
    91 Cal. App. 4th 602
    , 610, overruled on other grounds in Guillory v. Superior
    12
    Court (2003) 
    31 Cal. 4th 168
    , 178, fn. 5.) Thus, we must presume that they were aware of
    Bishop’s reasoning and of its resulting construction of Penal Code section 1000,
    subdivision (a)(4). By using essentially identical language in Welfare and Institutions
    Code section 790, subdivision (a)(4), they indicated an intent that it be given an
    essentially identical construction.
    Defendant argues that Bishop is distinguishable because it involved a conditional
    sentence under Penal Code section 1203b, which, unlike informal supervision under
    Penal Code section 654.2, is imposed after an adjudication or admission of guilt. This is
    a distinction without a difference. The point is that in Bishop, the court reasoned that the
    failure to complete a conditional sentence indicated that the defendant was not amenable
    to deferred entry of judgment. Here, identically, the failure to complete informal
    supervision also indicates that the minor is not amenable to deferred entry of judgment.
    The fact that one occurs before and the other occurs after a determination of guilt is
    irrelevant to the drafters’ concern, which was whether the minor is likely to benefit.
    Finally, the minor argues that, if informal supervision is probation within the
    meaning of Welfare and Institutions Code section 790, subdivision (a)(4), then the
    informal supervision statutes are unconstitutional. He reasons that, in that event,
    informal supervision imposes a criminal penalty without any finding beyond a reasonable
    doubt or any admission that the minor has committed a crime: “Probation is a criminal
    penalty. Imposing a criminal penalty without due process of law is forbidden by our state
    and federal constitutions.”
    13
    This argument is overblown in light of the fact that, as we said earlier, the issue is
    fundamentally one of statutory construction. The narrow question before us is whether
    the electorate intended the word “probation,” as used in Welfare and Institutions Code
    section 790, subdivision (a)(4), to include informal supervision; or, to put it another way,
    whether the electorate intended a minor whose informal supervision has been revoked to
    be ineligible for deferred entry of judgment. When we answer “yes,” we are not holding
    that informal supervision constitutes probation for any other purpose.
    Accordingly, we have no need to discuss the minor’s constitutional contention
    further. If only out of an excess of caution, however, we reject the minor’s contention
    that anything resembling probation necessarily requires either a finding or an admission
    of guilt.
    Normally, adult probation requires either a finding of guilt beyond a reasonable
    doubt or an admission of guilt because, from that point on, the defendant’s guilt is
    deemed established. For example, if and when the defendant is found to have violated
    probation, the trial court can proceed directly to sentencing. (See Pen. Code, § 1203.2,
    subd. (c).) It is “an essential of the due process guaranteed by the Fourteenth
    Amendment that no person shall be made to suffer the onus of a criminal conviction
    except upon sufficient proof — defined as evidence necessary to convince a trier of fact
    beyond a reasonable doubt of the existence of every element of the offense.” (Jackson v.
    Virginia (1979) 
    443 U.S. 307
    , 316.)
    14
    By contrast, informal supervision does not carry with it either the onus of guilt or
    the exposure to summary punishment. As mentioned, if the minor successfully completes
    informal supervision, the petition is dismissed. If the minor fails to complete informal
    supervision, the worst that happens is that the proceedings on the petition pick up where
    they left off.6 The conditions imposed in the interim are largely rehabilitative rather than
    punitive; for example, the juvenile court cannot require a minor to waive his or her
    Fourth Amendment rights. (Derick B. v. Superior 
    Court, supra
    , 180 Cal.App.4th at
    p. 306.) The statutorily specified permissible conditions include substance abuse
    treatment, counseling, education, and community service. It is constitutional to impose
    such conditions based solely on the consent of the minor and the minor’s parents. (See
    People v. Keller (1978) 
    76 Cal. App. 3d 827
    , 838 [adult probationer can consent to
    conditions reasonably related to the crime or to deterring future criminality], overruled on
    other grounds in People v. Welch (2003) 
    5 Cal. 4th 228
    , 237.)
    We therefore conclude that the trial court correctly ruled that the revocation of the
    minor’s informal supervision rendered him ineligible for deferred entry of judgment.
    6        In his reply brief, the minor argues that, if informal supervision is deemed
    probation, he would have to knowingly and intelligently waive his right to a trial and his
    right to confront the witnesses against him before consenting to it. We reject this
    argument for the same reason — informal supervision does not require any finding or
    admission of guilt. If the minor fails to complete informal supervision successfully, he or
    she is still entitled to a full trial, including confrontation of witnesses, at that point.
    15
    III
    DISPOSITION
    The judgment is affirmed.
    CERTIFIED FOR PUBLICATION
    RICHLI
    J.
    We concur:
    McKINSTER
    Acting P. J.
    MILLER
    J.
    16
    

Document Info

Docket Number: E057520

Citation Numbers: 221 Cal. App. 4th 1497, 165 Cal. Rptr. 3d 409, 2013 WL 6491512, 2013 Cal. App. LEXIS 996

Judges: Richli

Filed Date: 12/11/2013

Precedential Status: Precedential

Modified Date: 11/3/2024