In re N.Z. CA2/6 ( 2023 )

Filed 3/13/23 In re N.Z. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re N.Z., a Person Coming 2d Juv. No. B319715
Under the Juvenile Court Law. (Super. Ct. No. FJ57544)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
N.Z.,
Defendant and Appellant.
N.Z. (appellant) is 22 years old. A Welfare and Institutions
Code section 602 petition alleged that he had committed a
criminal offense.1 At the jurisdictional hearing appellant
admitted the allegation based on the understanding that his
offense did not qualify as a section 707, subdivision (b) (707(b))
All undesignated statutory references are to the Welfare
1
and Institutions Code.
serious offense. If it did not so qualify, the juvenile court would
be required to terminate jurisdiction over appellant because of
his age. (§ 607, subd. (a).)
The court subsequently learned that the offense qualified
as a section 707(b) offense so it could retain jurisdiction over
appellant until his 25th birthday. (§ 607, subd. (c).) Therefore, at
the dispositional hearing it rejected appellant’s admission.
Appellant contends the juvenile court should have accepted the
admission and terminated jurisdiction. We disagree and affirm.
Procedural History
The section 602 petition was filed in August 2021. It
alleged that between May 1, 2012 and December 31, 2015,
appellant had committed the offense of continuous sexual abuse
of a child in violation of Penal Code section 288.5. As of May 1,
2012, appellant was 11 years old.
In February 2022 when appellant was 21 years old, he
admitted the petition’s allegations. Before he entered his
admission, the juvenile court stated: “It is the court’s
understanding that [appellant] is interested in entering an
admission today, a so-called open admission . . . . It is his
attorney’s opinion that due to [appellant’s] age that the court will
need to terminate jurisdiction upon taking the admission or at
the time of disposition by operation of law.” The court said “it
would like to continue the disposition . . . for a period of several
weeks . . . to order a disposition report that will include . . . the
probation department’s formal recommendation regarding the
disposition in this case, which may be that due to [appellant’s]
age jurisdiction must be terminated.”
Appellant’s counsel objected to the ordering of a disposition
report because jurisdiction over appellant had “ended at age 21.”
2
The court ordered the People to file points and authorities if they
believed that appellant’s counsel “is wrong and the court
somehow can have jurisdiction over this case.”
The court continued: “It does not appear that the crime
alleged in this petition is a so-called [section] 707(b) offense. Do
the People concur in that assessment?” (Italics added.) The
prosecutor responded, “That is correct, your honor.” (Italics
added.)
The court advised appellant: “[Y]our attorney[’s] . . .
position is that because you are now 21 the court no longer has
jurisdiction over your case. I am ordering the prosecutor to
provide the court with their opinion on that question. I am also
ordering the probation department to provide to the court a
recommendation regarding how this case should be resolved.”
Appellant responded that he understood what the court was
saying. He then admitted the petition’s allegations.
Several days later, the People filed points and authorities
in which they argued that the court had jurisdiction over
appellant until his 25th birthday because his offense qualified as
a section 707(b) offense. The People’s argument was based on In
re Emilio C. (2004) 116 Cal.App.4th 1058 (Emilio C.). Appellant
filed opposition to the People’s points and authorities.
A disposition hearing was conducted in March 2022. The
court said that, when it had taken appellant’s admission, it “was
unaware of the appellate court ruling [Emilio C.] that has . . .
made it very clear that in such cases a [Penal Code section] 288.5
[violation] is a [section] 707(b) offense. [¶] So the mistake that
was made at the last court date is the fact that you were
misadvised [that the alleged violation is not a section 707(b)
offense].”
3
The court gave appellant the option of withdrawing his
admission. The court noted, “This is all over your standing
objection.” Appellant’s counsel replied that her client “would like
to be readvised and make the admission with the new
advisements.”
The court stated, “The admission that I took on our last
court date is effectively withdrawn because it was not a lawful
admission.” (Italics added.) The court readvised appellant that
he was charged with committing a section 707(b) offense.
Therefore, “the court may retain jurisdiction over you until you
attain 25 years of age.” Appellant admitted the petition’s
allegations. The court declared him a ward and ordered him
placed in his mother’s home on probation.
Emilio C. and Its Relevance to the Present Case
“Once the juvenile court has ‘initial’ jurisdiction, it may
retain jurisdiction over a ward until he or she turns 21 years old
(§ 607, subd. (a)) . . . .” (People v. Ramirez (2019) 35 Cal.App.5th
55, 66.) But if a person has committed one of the serious offenses
listed in section 707(b), the retention of jurisdiction may be
extended until the age of 23 or 25 years depending upon the
maximum sentence for the offense in a criminal court. (§ 607,
subds. (b), (c).) A violation of Penal Code section 288.5 is not one
of the offenses listed in section 707(b).
In Emilio C. the court held that, where a section 602
petition alleged a violation of section 288.5, “[t]he juvenile court
was entitled to base its Welfare and Institutions Code section
707[(b)] determination on facts presented at the disposition
hearing that the court found to be true by a preponderance of the
evidence. [Citation.] In doing so, the juvenile court was also
entitled to look beyond the pleadings and consider the
4
circumstances of [the minor’s] offense.” (Emilio C., supra, 116
Cal.App.4th at p. 1065, italics added.) Because “[e]vidence
presented during the adjudication of the . . . petition showed that
[the minor’s] repeated sexual assaults on his niece constituted”
violations of offenses listed in section 707(b), “[t]he juvenile court
properly designated [the minor’s Penal Code section 288.5]
offense as one under Welfare and Institutions Code section
707[(b)].” (Id. at pp. 1065-1066.)
At the disposition hearing in the present case, the juvenile
court considered evidence showing that appellant had forcibly
performed numerous sex acts upon his first cousin, who was
three years younger than appellant. These acts constituted “lewd
or lascivious act[s] as provided in subdivision (b) of Section 288 of
the Penal Code.”2 (§ 707, subd. (b)(6).) The acts included sodomy
by force and oral copulation by force. (Id., subds (b)(5), (b)(7).)
Thus, “[t]he juvenile court properly designated appellant’s offense
as one under Welfare and Institutions Code section 707[(b)].”
(Emilio C., supra, 116 Cal.App.4th at p. 1066.) Because the
charged violation of Penal Code section 288.5 would have been
punishable in criminal court by a prison sentence of seven years
or more, the juvenile court could retain jurisdiction over
appellant until his 25th birthday. (§ 607, subd. (c).)3
2 Penal Code section 288, subdivision (b) applies to “[a]
person who commits [a lewd or lascivious] act described in
subdivision (a) by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.” (Ibid.)
3 Penal Code section 288.5, subdivision (a) provides that a
violation of the statute is punishable by “imprisonment in the
state prison for a term of 6, 12, or 16 years.”
5
The Trial Court Had the Authority to
Reject Appellant’s Admission
Appellant argues that “the juvenile court lacked authority
to override” his “initial admission.” (Capitalization omitted.)
Appellant explains: “There is nothing compulsory in Emilio C.
about the application of section 707, subdivision (b) to a true
finding of Penal Code section 288.5 . . . .” “[T]he language used in
Emilio C. ‘entitling’ the juvenile court to apply section 707,
subdivision ([b]) is simply permissive.” Thus, “[t]he initial
admission . . . was not subject to the [juvenile court’s] ‘unlawful’
finding.”
Appellant continues, “[T]he juvenile court was not required
to make the section 707, subdivision (b) finding . . . . [¶] The
juvenile court and the prosecution acted unfairly and
unreasonably in dissolving an admission that was sound and
which was, according to the record, largely designed by them.
The juvenile court and the prosecution should not be permitted to
unwind that admission to appellant’s detriment.”
We disagree. Appellant in effect entered a conditional, not
an unconditional, admission. “[A] conditional plea [or admission
is] where the plea [or admission] is conditioned upon receipt of a
particular disposition . . . .” (People v. Holmes (2004) 32 Cal.4th
432, 435.) The condition here was that the charged offense – a
violation of Penal Code section 288.5 – did not qualify as a section
707(b) offense so that the juvenile court would be required to
terminate its jurisdiction over appellant and dismiss the section
602 petition. After appellant’s admission, the trial court was
informed that the charged offense qualified as a section 707(b)
offense so that it could retain jurisdiction until his 25th birthday.
In these circumstances, the juvenile court had the authority to
6
reject appellant’s conditional admission. (See People v. Segura
(2008) 44 Cal.4th 921, 931 [“in the context of a negotiated plea
the trial court may approve or reject the parties’ agreement”].)
In People v. Thomas (1994) 25 Cal.App.4th 921, this court
enunciated a rule that applies with equal force to the present
case: “In taking a guilty plea and approving a negotiated
disposition, the trial court retains the inherent power to
withdraw its approval at the time of sentencing. . . . A trial court
should not have to honor a tentative commitment based on a false
premise.” (Id. at p. 925.) Here, the false premise was that the
charged offense did not qualify as a section 707(b) offense. At the
disposition hearing the juvenile court was not required to adhere
to this false premise. Accordingly, it properly rejected appellant’s
initial admission. “The very facts of this case illustrate why the
trial court [or juvenile court], before judgment is final, retains the
power to withdraw its approval and vacate the guilty plea [or
admission] sua sponte.” (Id. at p. 926.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
7
Miguel Espinoza, Judge
Superior Court County of Los Angeles
______________________________
Courtney M. Selan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, Blake Armstrong, Deputy Attorney
General, for Plaintiff and Respondent.