In re Calvin S. , 5 Cal. App. 5th 522 ( 2016 )

Filed 11/15/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CALVIN S., a Person Coming B265382
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. FJ52430)
THE PEOPLE,
Plaintiff and Respondent,
v.
CALVIN S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Benjamin R. Campos, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded
with directions.
Steven A. Torres, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and Amanda
V. Lopez, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
After sustaining allegations that 14-year-old Calvin S.
committed assault with a firearm and assault with intent to
commit a sexual offense, the juvenile court declared Calvin a
ward of the court pursuant to Welfare and Institutions Code
section 602 and committed him to the Department of Corrections
and Rehabilitation, Division of Juvenile Facilities (DJF) for a
maximum term of 15 years four months. Calvin contends that
the juvenile court abused its discretion by committing him to the
DJF rather than placing him in a less restrictive setting. He also
argues that, pursuant to Penal Code section 654, the juvenile
court should have stayed execution of the term of commitment
imposed for assault with intent to commit a sexual offense, and
that his attorney’s failure to argue for a shorter maximum term
of commitment deprived him of effective assistance of counsel.
We agree that the juvenile court abused its discretion in
committing Calvin to the DJF and that the court should have
stayed the term of commitment for assault with intent to commit
a sexual offense. Therefore, we reverse and remand for a new
disposition hearing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Petition
The People filed a second amended petition asking the
juvenile court to declare Calvin S. a ward of the court under
Welfare and Institutions Code section 602. The People alleged
Calvin committed second degree robbery (Pen. Code, § 211),
assault with a firearm (Pen. Code, § 245, subd. (a)(2)), assault by
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means likely to cause great bodily injury (Pen. Code, § 245, subd.
(a)(4)), assault with a deadly weapon (Pen. Code, § 245, subd.
(a)(1)), forcible rape of a child under 14 years of age (Pen. Code, §
261, subd. (a)(2)), and assault with intent to commit a sexual
offense (Pen. Code, § 220, subd. (a)(1)). The People alleged in
connection with the counts of second degree robbery, assault with
a firearm, and forcible rape of a child under 14 years of age that
Calvin personally used a firearm in committing the offense, and
in connection with the counts of second degree robbery, assault
with a firearm, assault by means likely to cause great bodily
injury, and assault with a deadly weapon that Calvin inflicted
great bodily injury on the victim.
B. The Jurisdiction Hearing
At the jurisdiction hearing the juvenile court heard
evidence that on September 21, 2014, at approximately 8:00 p.m.,
R.R. was walking down a street in Los Angeles when she saw a
male, whom she later identified as Calvin, chasing her. When
Calvin caught up with R.R., he hit her on the head with a
firearm, fracturing her skull and rendering her unconscious.
R.R. had been wearing khaki pants, with no underwear, and
when she awoke she discovered her pants had been removed.
Police officers arrested Calvin in the vicinity shortly after the
attack. Swab samples from his hand, arm, and penis contained
DNA matching that of R.R., but no male DNA was detected on
R.R. The criminologist who performed the DNA analysis testified
it was possible the DNA from R.R. on Calvin’s penis had come
from Calvin’s hand.
At the conclusion of the hearing, the juvenile court
sustained the petition, finding that Calvin was a person
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described by Welfare and Institutions Code section 602. The
court found true the allegations that Calvin committed assault
with a firearm and assault with intent to commit a sexual
offense, and dismissed the other counts.
C. The Disposition Hearing
At the disposition hearing Calvin’s mother and
grandmother testified about Calvin’s behavior at home and his
performance in school, including that other children bullied him
extensively at school because of a learning disability. An
adaptive living skills instructor from Westside Regional Center,
who had experience with developmentally disabled youth,
testified about the services he and his organization could provide
Calvin in various settings. In letters submitted to the court,
Westside Regional Center stated it could provide services that
would address Calvin’s diagnosed developmental disability, help
him transition back into the community upon release, and
involve appropriate mental health professionals and others who
could help Calvin with his educational and vocational needs. The
letters indicated Calvin had already begun receiving these
services at juvenile hall, and would continue to have access to
them there, but Calvin would not have access to those services if
the court placed him with the DJF.
The People asked the court to commit Calvin to the DJF
because of the violence of his offenses and the need to protect him
and the community. The People argued the DJF could provide
Calvin with services to address his behavioral issues, including a
sexual offender program. The People also argued commitment to
the DJF was appropriate because it would require Calvin to
register as a sexual offender.
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Counsel for Calvin asked the court not to commit him to
the DJF, but to place him in a less restrictive, local facility where
he could receive services from Westside Regional Center.
Counsel for Calvin conceded Calvin needed to be “locked up” so
that he would not “wander the streets free,” but suggested
commitment to the DJF was unduly harsh, especially with its
requirement that Calvin register as a sexual offender, which
would make it difficult to place him in a residential home in the
future. Counsel for Calvin noted Calvin had “functioned
extremely well here in juvenile hall.”
The juvenile court stated that, because of the violence of
Calvin’s offenses, the court would remove him from the home,
“which would leave placement, camp, or [DJF].” The court
expressed concerns with each of these options, particularly in
light of Calvin’s young age, the violence of his offenses, his
disruptive behavior during the jurisdiction hearing, and the
psychiatric evaluations reporting that Calvin had an IQ of 58 and
an intellectual ability “in the extremely low range.” The court
invited counsel to address these concerns and propose any
realistic alternative, at one point observing, “Obviously, we’re
struggling with this case.” In response, counsel for Calvin noted
Westside Regional Center had indicated it could continue to
provide services to Calvin at juvenile hall, and asked the court,
“Is there any reason why he cannot remain in juvenile hall?” The
court responded, “We’re not a treatment center. We’re a
detention center.”
At the conclusion of the hearing, the juvenile court declared
Calvin a ward of the court pursuant to Welfare and Institutions
Code section 602 and committed him to the DJF for a maximum
period of 14 years for the offense of assault with a firearm and
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one year four months for the offense of assault with intent to
commit a sexual offense, for a total maximum period of 15 years
four months. The court awarded Calvin 251 days of
predisposition custody credit. Calvin timely appealed.
DISCUSSION
A. On This Record, the Juvenile Court Abused Its
Discretion in Committing Calvin to the DJF
Calvin contends the juvenile court erred by committing him
to the DJF, rather than letting him remain in juvenile hall,
where he could continue to receive services from Westside
Regional Center. He argues placement in juvenile hall would
allow him to receive the rehabilitative and other services he
needed, while at the same time serving the goals of protecting the
public and ordering the least restrictive placement.
“‘The decision of the juvenile court may be reversed on
appeal only upon a showing that the court abused its discretion
in committing a minor to [DJF].’ . . . ‘An appellate court ‘must
indulge all reasonable inferences to support the decision of the
juvenile court and will not disturb its findings when there is
substantial evidence to support them. [Citations.]’ [Citation.] ‘In
determining whether there was substantial evidence to support
the commitment, we must examine the record presented at the
disposition hearing in light of the purposes of the Juvenile Court
Law.’” (In re Jose T. (2010) 191 Cal. App. 4th 1142, 1147; see In re
Nicole H. (2016) 244 Cal. App. 4th 1150, 1154 [“‘“[a] trial court
abuses its discretion when the factual findings critical to its
decision find no support in the evidence”’”].)
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Welfare and Institutions Code section 202, which states the
purpose of juvenile court proceedings, “emphasiz[es] the
protection and safety of the public, and recogniz[es] punishment
as a form of guidance that holds the minor accountable for his or
her behavior.” (In re Christopher B. (2007) 156 Cal. App. 4th 1557,
1563.) Nevertheless, “the Legislature has not abandoned the
traditional purpose of rehabilitation for juvenile offenders,” and
“[j]uvenile proceedings continue to be primarily rehabilitative.”
(In re Julian R. (2009) 47 Cal. 4th 487, 496.) Thus, “[o]ne of the
primary objectives of juvenile court law is rehabilitation, and the
statutory scheme contemplates a progressively more restrictive
and punitive series of dispositions starting with home placement
under supervision, and progressing to foster home placement,
placement in a local treatment facility, and finally placement at
the [DJF]. [Citation.] Although the [DJF] is normally a
placement of last resort, there is no absolute rule that a [DJF]
commitment cannot be ordered unless less restrictive placements
have been attempted. [Citations.] A [DJF] commitment is not an
abuse of discretion where the evidence demonstrates a probable
benefit to the minor from the commitment and less restrictive
alternatives would be ineffective or inappropriate.” (In re M.S.
(2009) 174 Cal. App. 4th 1241, 1250; see In re Teofilio A. (1989)
210 Cal. App. 3d 571, 576, 579 [juvenile court abused its discretion
where there was no evidence on the “crucial issue” of why less
restrictive alternatives to DJF commitment would be ineffective
or inappropriate].)
Acknowledging its “dual function to rehabilitate the minor
and to protect the welfare and security of the community,” as well
as its obligation to “fashion[] the least restrictive alternative in
developing a rehabilitation plan,” the juvenile court in this case
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tried hard to place Calvin appropriately. On this record,
however, we cannot say there is substantial evidence that
allowing Calvin to remain in juvenile hall “would be ineffective or
inappropriate.” (In re M.S., supra, 174 Cal.App.4th at p. 1250;
see Welf. & Inst. Code, § 202, subd. (e)(4) [permissible
“punishment” the juvenile court may impose includes
“[c]ommitment of the minor to a local detention or treatment
facility, such as a juvenile hall, camp, or ranch”].) The only
evidence the Attorney General cites in support of her contention
that the court properly committed Calvin to the DJF is the court’s
statement that juvenile hall is “not a treatment center,” but “a
detention center.” That statement, however, is not evidence, let
alone substantial evidence. (See People v. Brown (2014) 227
Cal. App. 4th 451, 467, fn. 10 [statement by the trial court is not
evidence]; People v. Sorrels (2012) 208 Cal. App. 4th 1155, 1164
[“statements by the judge are not evidence”].)
Nor is it clear what the juvenile court meant by the
statement. To the extent the court was suggesting Calvin would
not have access in juvenile hall to the educational, counseling,
and other rehabilitative services everyone agreed he needed, the
suggestion is not supported by the record. Calvin was already
receiving such services in juvenile hall from Westside Regional
Center, and Westside Regional Center stated it could continue to
provide those services to Calvin in juvenile hall. Nothing in the
record indicates otherwise.
If the juvenile court meant that commitment to juvenile
hall was not an available option at disposition, the court was
incorrect. Welfare and Institutions Code section 202, subdivision
(b), provides that “[m]inors under the jurisdiction of the juvenile
court as a consequence of delinquent conduct shall . . . receive
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care, treatment, and guidance that is consistent with their best
interest, that holds them accountable for their behavior, and that
is appropriate for their circumstances,” and “[t]his guidance may
include punishment that is consistent with the rehabilitative
objectives” of the juvenile court law. Subdivision (e)(4) of section
202 of the Welfare and Institutions Code then specifically
provides that such punishment may include “[c]ommitment of the
minor to a local detention or treatment facility, such as a juvenile
hall, camp, or ranch.” (See In re Robert M. (2013) 215
Cal. App. 4th 1178, 1184 [Welfare and Institutions Code “[s]ection
202, subdivision (e)(4), authorizes the court to commit a ward to
juvenile hall”].) In addition, Welfare and Institutions Code
section 727, subdivision (a)(1), provides that the juvenile court
“may make any reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of” a minor adjudged
a ward of the court under section 602. (See also Welf. & Inst.
Code, § 730, subd. (a) [when a minor is adjudged a ward of the
court under section 602, the court may, among other options,
“order any of the types of treatment referred to in Section 727”];
In re Robert M., at p. 1185.)
We agree with Calvin and the Attorney General that
Welfare and Institutions Code section 730, subdivision (a), did
not preclude the juvenile court from committing Calvin to
juvenile hall.1 That statute provides: “When a minor is adjudged
1 We requested supplemental briefing from the parties on
this issue. In her supplemental letter brief, the Attorney General
argued: “The juvenile court had authority to commit appellant to
juvenile hall. Section 730(a), the Welfare and Institutions Code,
and case law governing juvenile delinquency dispositions do not
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a ward of the court on the ground that he or she is a person
described by Section 602, the 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.” Like the parties,
we do not construe the second sentence of Welfare and
Institutions Code section 730, subdivision (a), to implicitly
preclude a commitment to juvenile hall where, as here, there may
be a juvenile home, ranch, camp, or forestry camp within the
county.2 Rather, that provision merely authorizes commitment
to juvenile hall when one of the listed facilities would be
appropriate but is not available. (See In re M.S., supra, 174
Cal.App.4th at p. 1250.)
We recognize that our interpretation of Welfare and
Institutions Code section 730, subdivision (a), may be at odds
with In re Debra A. (1975) 48 Cal. App. 3d 327 (Debra A.). In that
case, the court reversed a juvenile court order committing a
female ward on five consecutive weekends to “the Juvenile Home,
Ranch, Forestry Camp or County Juvenile Hall, as determined by
the probation officer.” (Id. at pp. 329-330.) The court in Debra A.
held that the order impermissibly delegated to the probation
officer the discretion to determine the place of detention. (Id. at
preclude juvenile hall commitment when placement at other
facilities is available in the county.”
2 The Rancho San Antonio Boys Home was one of the
facilities in Los Angeles County the juvenile court discussed at
the disposition hearing.
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p. 330.) The court, citing the second sentence of Welfare and
Institutions Code section 730, subdivision (a), also stated the
order was “erroneous” because it included juvenile hall among
the places for possible commitment even though the county had
another “facility for detention of female minors.” (Debra A., at p.
330.) This statement in the court’s opinion in Debra A. could be
read to mean that the second sentence of section 730, subdivision
(a), precludes commitment to juvenile hall when the county has
one of the other listed facilities.
Considering the second sentence of Welfare and
Institutions Code section 730, subdivision (a), in isolation, the
court’s statement in Debra A. is a plausible interpretation of the
words in that sentence. When interpreting a statute, however,
we “‘do not consider the statutory language “in isolation.”
[Citation.]’ [Citation.] Rather, we construe the words of the
statute ‘“in context, keeping in mind the nature and obvious
purpose of the statute . . . .” [Citation.]’ [Citation.] In other
words, we ‘must harmonize “the various parts of a statutory
enactment . . . by considering the particular clause or section in
the context of the statutory framework as a whole”’ [citation], so
that all of the statutes in the scheme will ‘have effect.’” (In re
Charles G. (2004) 115 Cal. App. 4th 608, 614; accord, In re S.H.
(2011) 197 Cal. App. 4th 1542, 1552; see In re Isaiah W. (2016) 1
Cal.5th 1, 13 [“‘“‘we do not construe statutes in isolation, but
rather read every statute “with reference to the entire scheme of
law of which it is part so that the whole may be harmonized and
retain effectiveness”’”’”]; cf. In re Derrick B. (2006) 39 Cal. 4th 535,
543 [“[w]e found the Court of Appeal’s analysis flawed, not
because of the way it parsed the language of [the statute], but
because it interpreted the statute in isolation”].)
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Significantly, the court in Debra A. did not have to reconcile
its interpretation of Welfare and Institutions Code section 730,
subdivision (a), with the provision in Welfare and Institutions
Code section 202, subdivision (e)(4), authorizing juvenile hall
commitment. The Legislature enacted the latter provision nine
years after Debra A. (see Stats. 1984, ch. 756, §§ 1-2, pp. 2726-
2727), when in 1984 the Legislature repealed Welfare and
Institutions Code former section 202, which had stated the
purposes of the juvenile court law, and replaced it with a version
of Welfare and Institutions Code section 202 containing a new
statement of the purposes of the juvenile delinquency law,
including, for the first time, “a definition and statement as to the
use of punishment.” (Legis. Counsel’s Dig., Assem. Bill No. 2756
(1983-1984 Reg. Sess.) 4 Stats. 1984, Summary Dig., pp. 255-
256.) Former section 202 of the Welfare and Institutions Code
did not contain a provision authorizing commitment to juvenile
hall. (See West’s Ann. Welf. & Inst. Code (1984 ed.) § 202.)
Nor did the court in Debra A. attempt to harmonize its
interpretation with “the broad discretion afforded to juvenile
courts to make dispositional orders and impose conditions under
Welfare and Institutions Code section 730” (In re Ronny P. (2004)
117 Cal. App. 4th 1204, 1206-1207) or a juvenile court’s “great
discretion in the disposition of juvenile matters” in general (In re
Greg F. (2012) 55 Cal. 4th 393, 411). Indeed, as the Supreme
Court has observed: “The statutory scheme governing juvenile
delinquency is designed to give the court ‘maximum flexibility to
craft suitable orders aimed at rehabilitating the particular ward
before it.’ [Citation.] Flexibility is the hallmark of juvenile court
law, in both delinquency and dependency interventions.
[Citation.] As noted, the juvenile court has long enjoyed great
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discretion in the disposition of juvenile matters.” (In re Greg F.,
at p. 411; see In re Eddie M. (2003) 31 Cal. 4th 480, 507 [juvenile
proceedings are primarily rehabilitative and do not permit
punishment in the form of retribution, but, “[w]ithin these
bounds, the court has broad discretion to choose probation and/or
various forms of custodial confinement in order to hold juveniles
accountable for their behavior, and to protect the public”]; In re
James R. (2007) 153 Cal. App. 4th 413, 432 [“‘[c]onsidering this
statutory framework as a whole in light of its stated legislative
purpose, it is clear juvenile delinquency laws are designed to
provide the juvenile court maximum flexibility to craft suitable
orders aimed at rehabilitating the particular ward before it’”]; In
re Antoine D. (2006) 137 Cal. App. 4th 1314, 1323 [same].)
In light of these considerations, we conclude the proper
interpretation of the second sentence of Welfare and Institutions
Code section 730, subdivision (a), is one that augments the
juvenile court’s flexibility in fashioning orders at disposition,
rather than restricts it. Specifically, we do not interpret Welfare
and Institutions Code section 730, subdivision (a), as implicitly
precluding a commitment to juvenile hall when there is a juvenile
home, ranch, camp, or forestry camp within the county. To the
extent the court in Debra A. interpreted the statute differently,
we decline to follow that decision.3
3 The court in In re Gerald B. (1980) 105 Cal. App. 3d 119,
citing Debra A., appears to have applied without further analysis
the Debra A. court’s interpretation of Welfare and Institutions
Code section 730, subdivision (a). (See In re Gerald B., at p. 126.)
To the extent Gerald B. followed Debra A. on this point, we
decline to follow In re Gerald B. for the same reasons we decline
to follow Debra A.
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Finally, to the extent the juvenile court was suggesting that
commitment to juvenile hall was not appropriate because of the
length of Calvin’s maximum period of confinement, again there
was no evidence to support such a finding. There may be a valid
reason, supported by admissible evidence, that placing Calvin in
juvenile hall for a certain period of time would be ineffective or
inappropriate. But that reason and that evidence are not in this
record. Therefore, the juvenile court abused its discretion in
committing Calvin to the DJF, and Calvin is entitled to a new
disposition hearing.4
B. The Juvenile Court Should Have Stayed the Term
Imposed for Assault with Intent To Commit a Sexual
Offense Under Section 654
Calvin contends, the Attorney General concedes, and we
agree that the juvenile court should have stayed the term of
confinement the court imposed for assault with intent to commit
a sexual offense (a term of one year four months) under section
654. “‘[S]ection 654 of the Penal Code proscribes multiple
punishment for a single “act or omission which is made
punishable” by different statutes, i.e., a single criminal act or
omission.’” (In re Michael B. (1980) 28 Cal. 3d 548, 556; see § 654,
subd. (a); People v. Buchanan (2016) 248 Cal. App. 4th 603, 611.)
4 Because we reverse the juvenile court’s order committing
Calvin to the DJF and order a new disposition hearing at which
the parties can submit new evidence and make additional
arguments based on the evidence, we do not reach Calvin’s
contention that his attorney’s failure to argue for a lesser
maximum period of confinement constituted ineffective
assistance.
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This prohibition against multiple punishment applies to a
juvenile court’s aggregation of periods of confinement on multiple
counts. (In re Michael B., at p. 556, fn. 3; see In re R.L. (2009)
170 Cal. App. 4th 1339, 1341.)
“‘[I]t is well settled that section 654 applies not only where
there was but one act in the ordinary sense, but also where there
was a course of conduct which violated more than one statute but
nevertheless constituted an indivisible transaction. [Citation.]
Whether a course of conduct is indivisible depends upon the
intent and objective of the actor. [Citation.] If all the offenses
were incident to one objective, the defendant may be punished for
any one of such offenses but not for more than one.’” (In re Noelle
M. (2008) 169 Cal. App. 4th 193, 196; see People v. Buchanan,
supra, 248 Cal.App.4th at p. 611 [“[s]ection 654 bars multiple
punishment for separate offenses arising out of a single
occurrence when all of the offenses were incident to one
objective”].)
Calvin hit R.R. in the head with a firearm to prevent her
from fleeing or resisting while he committed a sexual act upon
her. There is no evidence Calvin robbed R.R. or had any other
motive for hitting her in the head. Thus, the two offenses in the
sustained allegations against Calvin did not arise out of separate
occurrences, but arose from a single occurrence, incident to the
single objective of committing a sexual act on R.R. Therefore, the
juvenile court should have stayed the term of one year four
months imposed for assault with intent to commit a sexual
offense. (See § 654, subd. (a) [“[a]n act or omission that is
punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest
potential term of imprisonment”]; People v. Kramer (2002) 29
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Cal. 4th 720, 722 [“[w]hen a defendant is convicted of two or more
offenses for which section 654 prohibits multiple punishment, the
trial court must impose sentence for one of them and stay
[execution] of sentence for the others”].)
DISPOSITION
The juvenile court’s order committing Calvin to the DJF is
reversed, and the matter is remanded for a new disposition
hearing. The court is directed to stay execution of any term of
confinement imposed on the sustained allegation of assault with
intent to commit a sexual offense.
SEGAL, J.
We concur:
PERLUSS, P. J.
ZELON, J.
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