In re Tony R. ( 2024 )

Filed 1/26/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re TONY R., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE, A166850
Plaintiff and Respondent, (Solano County
Super. Ct. No. J45405)
v.
TONY R., ORDER MODIFYING OPINION
AND DENYING REQUEST FOR
Defendant and Appellant.
REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion filed on December 28, 2023, is modified as follows:
On page 10, footnote 7, second paragraph, add new penultimate
sentence (before “The court granted the six-month reduction.”) as follows:
The report noted that Tony had “not been subject to any incidents
during his commitment to RISE,” which was “commendable considering he
ha[d] been in the program for approximately a year and a half”; it did not
explain the inconsistency between this report of no incidents and earlier
probation reports mentioning two fights early in the commitment.
1
The petition for rehearing is denied.
There is no change in judgment.
Dated:_________
STEWART, P.J.
2
Trial Court:Solano County Superior Court
Trial Judge: Hon. David E. Power
Counsel:
Amanda K. Roze, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit,
Lisa Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.
3
Filed 12/28/23 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re TONY R., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A166850
v.
(Solano County
TONY R., Super. Ct. No. J45405)
Defendant and Appellant.
Under legislation governing the commitment of juvenile offenders to
county level “secure youth treatment facilities,” the juvenile court must
review each case at least every six months and, at each six-month review
hearing, has authority to reduce by up to six months the baseline term of
confinement initially set at disposition. Tony R. appeals from the juvenile
court’s denial of his request for a reduction of his baseline term of
confinement at his first six-month review hearing. He contends the court
1
lacked authority to deny the request and, to the extent it had such authority,
abused its discretion. We affirm.
BACKGROUND
I.
Factual Background
A. The El Sobrante Offenses1
As Paraminder Soomal (age 59) and his father, Swarn Singh (age 84),
were mowing the lawn at their home in El Sobrante on the evening of
October 3, 2021, a BMW pulled up and three Black youths got out, all
brandishing handguns, and begin beating Soomal and Singh. On video from
the home’s Ring camera, a voice can be heard saying “ ‘Hey everybody, give
me your shit n---a.’ ” Singh backs up as Tony2 shouts, “ ‘take that watch off
n---a, shut the fuck up and take that watch off n---a,’ ” and Singh falls
backwards onto the porch. Tony appears to “forcefully take property off”
Singh, who attempts to defend himself while lying on his back and swinging
an electrical cord at Tony. During this struggle, Tony points the gun at
Singh, throws a chair at Singh’s head, and strikes Singh several times with
the handgun. Soomal then strikes Tony’s head with an empty plastic bucket
and Tony falls to the ground briefly. Tony stands up and fires a round at
Soomal, who falls and appears to lose all bodily function. Suspect 2 fires
several rounds. The video shows only suspect 3’s pants and shoes. When the
police arrived at about 6:25 p.m., they found Soomal lying on his back,
1The facts pertaining to this incident are taken from the initial Solano
County probation officer’s disposition report, which in turn takes them from
the Contra Costa Sheriff’s report.
2 The probation report does not refer to Tony by name but rather to
“Suspect #1.” The record indicates that “Suspect #1” is Tony and both
parties’ briefs refer to him where the probation report refers to Suspect #1.
2
bleeding from several gunshot wounds to his upper body. Singh was sitting
on the stairs bleeding from a gunshot wound to his head, with a witness
providing aid.
Singh’s skull was fractured from a gunshot wound just above his left
eyebrow. Interviewed at the hospital with the assistance of a Punjabi
translator, Singh said that when the youths confronted them, he could not
understand what they wanted because he speaks only Punjabi. He did not
know the youths and had never seen them before. Soomal was paralyzed
from the waist down and suffered severe internal bleeding due to a gunshot
wound to his chest that exited his back and also had gunshot wounds to his
right biceps and hip. Soomal remained in the hospital until December 2. On
December 7, he told the police he would be in a wheelchair for the rest of his
life and continued to have nightmares about the incident. He was confused
about why he and his father were attacked and said that if Singh had
understood what they youths wanted, he would have complied. He said
Singh was suffering from nerve damage and memory loss.
Subsequent police investigation determined that then 14-year-old Tony
was one of the three youths involved in the incident and he was arrested on
November 18, 2021. The other two youths involved were 16-year-old A.E.
and 15-year-old C.E.
B. The Alleged Solano County Offenses3
On September 27, 2021, police officers responded to Vallejo High School
regarding an assault involving a firearm. The vice principal told the officers
that a parent had informed her on September 22, 2021, that her son W.B.
3 The facts relating to this offense are taken from the amended
disposition report filed on April 5, 2022, which takes them from a Vallejo
Police Department report.
3
was assaulted and pistol whipped on September 20, 2021, during school
hours, at First Presbyterian Church. W.B. told the vice principal he was
lured to the church by his childhood friend G.H. Once there, they were
contacted by A.E. (the 16 year old involved in the El Sobrante offenses), R.L,
C.L. and Tony. At the direction of A.E., Tony held a gun to W.B.’s head while
C.L. searched his person and backpack. During the incident, W.B. was pistol
whipped in the head and suffered an unknown injury; a photo of the injury
was requested but not received. School attendance records confirmed that
W.B., Tony, G.H., C.L. and R.L were absent at the time of the incident. The
vice principal called the police after the mother contacted her about threats
to W.B. on social media by the suspects. The officers noted that screenshots
from Instagram stories containing intimidating language that W.B. and his
mother believed were threats against him did not clearly state specific
threats of bodily harm and used “heavy slang terms and grammar.” The vice
principal later told officers she had received information from an anonymous
student that a person believed to be Tony was seen armed with a gun on
school property.4
II.
Legal Proceedings
A. Initial proceedings
As described in our opinion on Tony’s appeal from the April 5, 2022
disposition order (In re T.R., A165072), Welfare and Institutions Code5
4 The probation report further stated that the vice principal “also
noted, [the anonymous student] has observed [Tony] wearing a ‘messenger
bag/cross body shoulder bag’ with one hand inside his pocket. She implied as
if he was holding onto the grip of a gun.”
5Further statutory references will be to the Welfare and Institutions
Code except as otherwise specified.
4
section 602 petitions were filed in Contra Costa County and Solano County.
In the Contra Costa case, Tony pleaded no contest to one count of attempted
murder (Pen. Code, §§ 664/187, subd. (a)) and one count of second degree
robbery (id., §§ 211/212.5, subd. (c)) and admitted enhancements for personal
use of a firearm (id., § 12022.5, subd. (a)), infliction of great bodily injury
causing coma and paralysis (id., § 12022.7, subd. (b)) and infliction of great
bodily injury on an elderly victim (id., § 12022.7, subd. (c)).
The case was transferred to Solano County, Tony’s county of residence,
and the Solano County petition was dismissed pursuant to the parties’
agreement that the court could consider the underlying facts in ordering
restitution and considering the appropriate disposition in the Contra Costa
case. After a contested disposition hearing, Tony was committed to the
Reaching Into Successful Endeavors (RISE) program for a maximum term of
11 years or until age 25, with a baseline term of four years. We affirmed this
disposition order. (In re T.R., A165072.)
B. Proceedings Underlying the Present Appeal
As required by section 875, the probation department’s report for the
30-day review hearing included an “Individualized Rehabilitation Plan”
indicating “targeted areas of need” and programs and treatment Tony was
participating in and was expected to participate in as he moved through the
program. Tony had expressed interest in strengthening his communication
skills and appeared happy to know there would be services aimed at this
goal. A “Youth Level of Service/Case Management Inventory (YLS/CMI)”
completed on December 8, 2021, assessed he was at high risk to reoffend in
the community, had “high need” in the areas of “Education/Employment,
Peer Relations, and Leisure/Recreation” and was “moderate risk” in the areas
5
of “Family Circumstances/Parenting, Substance Abuse, Personality/Behavior,
and Attitudes/Orientation.”
The probation report related that Tony was working on the
“Responsivity Carey Guide,”6 which was intended to tailor services to a
youth’s “preferred methods of communication and understanding of
material.” Prior to his arrest, Tony had not earned any high school credits
due to unexcused absences and suspensions, but his current school grades
were one A, one B and two Cs (3.5 credits) and he reportedly worked well in
groups and communicated well with his teacher and peers. He was receptive
to services and staff, believed the program could be beneficial for him and
intended to “absorb the skills and knowledge being provided to him and seek
an early exit from the program.”
At the May 5 hearing, the court commented that it appeared Tony’s
needs were being addressed and he was doing well academically. Defense
counsel, who had argued against commitment to RISE at disposition in part
because the program, in her view, was not yet operational, told the court that
the services Tony was receiving were the same as they had been before his
commitment to RISE.
For the six-month review hearing on September 20, 2022, the probation
officer reported that Tony was performing well and maintaining consistent
progress. He had undergone assessments for needs related to delinquency,
mental health and substance use, which identified needs in the areas of
mental health, anger management, education support, substance abuse,
individual counseling, employment skills, cognitive behavioral treatment and
6 The probation report described Carey Guides as “individual cognitive
behavioral worksheets which can be used as intervention tools and practice of
cognitive processing skills.”
6
independent living skills. Tony had acknowledged a need to address his
ability to make rational decisions and the impact family dynamics had on his
mental health and behavior, expressed a goal of attaining “self-sufficiency
through education and employment” and was continuing to engage in
treatment and interventions.
Tony had “completed tools 1-3 of the Anger Carey Guide,” earned
certificates for completing “Aggression Replacement Training” (a 30-session
cognitive behavioral group), the “Rythmic [sic] Mind Program,” the “Hidden
Genius Grab Opportunities and Level Up” program, the eFoodHandler Basic
Safety Course,” and the “Work-Ready Certification Program.” He was
continuing to work individually and in group settings to complete Carey
Guides, had begun working on “Courage to Change Interactive Journals,”
was engaged with the Omega Men’s Group (a “culturally responsive
mentoring group facilitated by Vallejo Unified School District”), was meeting
regularly with his assigned mentor, and was participating in weekly
“Restorative Justice” groups and “Leaders in Community Alternatives
Transitional Case Manager.” His therapist reported that he attended every
appointment, engaged actively and was “ ‘progressing successfully toward
treatment goals established post-assessment.’ ” Tony’s most recent grades in
school were all As and Bs (3.76 GPA) and he had completed “71 credits of 71
credits attempted,” was on track to graduate high school with his class in
2025 “if not earlier” and was interested in pursuing a college education.
Tony’s re-entry plan was for him to return to the home of S.D., with
whom he had lived prior to his arrest. Tony had expressed concern over his
support system and the probation department intended to work with his
family to identify other “pro-social” adults in his life and increase Tony’s
contact with them.
7
The probation report stated that as of September 20, when the report
was filed, Tony was “interacting pro-socially with staff and peers and has not
been subject [to] a major rule violation.” It was noted that he had been in two
fights with other youth since being committed to RISE, one in late
April 2022, a few weeks after the commitment to RISE, and the other in
July 2022, on which occasion he was reported to be the victim. No details
regarding either incident were discussed. The department recommended
that the wardship be continued “with all prior orders to remain in effect.”
At the six-month review hearing on September 20, defense counsel
asked Judge Stashyn, the judge who had presided over the disposition
hearing, to consider reducing Tony’s baseline term as authorized by
section 875. The People opposed the request and the court directed Tony’s
attorney to file a written request to which the People could reply. Declining
to rule on the oral motion, the court explained that it remembered the case
well, including the “emotional input from both sides,” it was “not an easy case
for the Court either” and it would not “do anything on the fly.”
On October 19, 2022, Tony filed a motion to reduce his baseline
commitment by six months (§ 875, subd. (e)(1)) due to his consistent positive
performance. In opposition, the People argued there had not been sufficient
time and progress to justify a reduction.
The October 26, 2022 hearing on Tony’s motion was before a different
judicial officer, Judge Power. The court had reviewed the parties’ briefs and
probation reports for the disposition hearing, the May 5 30-day review and
the current defense request and People’s response; it reviewed the
September 20 probation report at the outset of the hearing. Defense counsel
pointed out that the form used for the six-month review did not include a
section for the probation department to state a recommendation as to
8
whether the baseline term should be reduced and suggested asking the
probation officer, who was present, if he had an opinion. Defense counsel
argued that Tony was doing everything he should and could be doing, with
“not one blemish,” and that the incentive to have time reduced was “very
precious” to young people. Counsel pointed out that everyone in RISE was
“starting off with a bad case, a bad fact pattern, a bad incident” and argued
that while section 875 does not provide guidelines for how to measure
success, Tony was on track, getting good grades, behaving well and engaged
in his plan, and should be given the reduction as incentive to continue doing
well. The People argued that the “measure of success” was how much time it
would take to rehabilitate the minor and that there had not been sufficient
time and progress to justify a reduction in the time the probation department
would have to work with Tony toward rehabilitation and ensure the
community would be safe when he left the program.
The court denied the motion to reduce the baseline term. The court
commended Tony for his efforts and acknowledged he was “working a good
program,” but noted that his “rehabilitation needs are significant” and “the
individualized services are just getting started in the Court’s view.” The
court stated, “[a]lthough the minor is participating and engaging in [the]
program, not enough time has passed by to say that the risks have
diminished.· He is working and he is doing well in the RISE program.· The
Court takes note of it, but probation did not recommend a reduction.· The
Court does not find good cause for a reduction, given the totality of the
circumstances in the reports the Court has reviewed.”
9
Tony filed a timely notice of appeal on December 13, 2022.7
DISCUSSION
The Juvenile Court Did Not Abuse Its Discretion.
Tony argues that a minor who performs well during the six-month
review period is entitled to a reduction in the baseline term and denial of
such a reduction thwarts legislative intent and impedes rehabilitation. He
further contends that the judge who denied his request lacked authority to do
so because the denial amounted to an improper reconsideration and increase
of the baseline term set by a different judge at disposition. To the extent the
7 During the pendency of this appeal, the second six-month review
hearing took place in March 2023. The probation report detailed Tony’s
continued engagement in his program, excellent academic performance (4.0
GPA for the last quarter, on track to graduate high school a year early) and
overall good behavior. Considering Tony’s “progress relative to his
rehabilitation plan” and “demonstrated application of skills being learned as
indicated by his positive behavior” but also the nature of his offenses and
“grave risk to the community,” the probation department recommended a
four-month reduction in the baseline term. The court granted the four-month
reduction.
For the next six-month review in September 2023, the probation
department recommended a six-month reduction in the baseline term. Tony
was continuing to successfully engage in and complete programs, had earned
all As for the last five grading periods and was also enrolled in an online
community college class in which he had a B grade, was engaged in
individual therapy and vocational training, was distancing himself from his
co-responsible, who was also committed to RISE, was described by staff as a
role model for his peers, and had become a peer mentor. The court granted
the six-month reduction.
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court had discretion to deny the reduction, Tony maintains, it abused its
discretion by relying on inappropriate considerations.
I.
Governing Law and Principles
Section 875, which governs the commitment of juvenile wards to the
secure youth treatment facilities that have replaced the Division of Juvenile
Justice (DJJ) as the most restrictive placement alternative, was enacted in
2021 (Stats. 2021, ch. 18, § 12) as part of the juvenile justice realignment
process begun the year before. (Stats. 2020, ch. 337; § 736.5; In re Miguel C.
(2021) 69 Cal.App.5th 899, 907.) “The expansive [realignment] legislation
draws from evidence that ‘justice system-involved youth are more successful
when they remain connected to their families and communities,’ have lower
recidivism rates, and are better prepared to transition back into their
communities.” (In re Miguel C., at p. 907, quoting Stats. 2020, ch. 337, § 1.)
In the realignment bill, the Legislature stated its intent “for counties to use
evidence-based and promising practices and programs that improve the
outcomes of youth and public safety, reduce the transfer of youth into the
adult criminal justice system, ensure that dispositions are in the least
restrictive appropriate environment, reduce and then eliminate racial and
ethnic disparities, and reduce the use of confinement in the juvenile justice
system by utilizing community-based responses and interventions.”
(Stats. 2020, ch. 337, § 1, subd. (e).)
Section 875 requires the juvenile court, in committing a ward to a
secure youth treatment facility, to set a “baseline term of confinement” that
“shall represent the time in custody necessary to meet the developmental and
treatment needs of the ward and to prepare the ward for discharge to a
period of probation supervision in the community.” (§ 875, subd. (b)(1).) The
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baseline term of confinement is based on the ward’s “most serious recent”
adjudicated offense. (Ibid.) Tony’s baseline term is four years.8
Section 875 requires the development of an “individual rehabilitation
plan” for the ward, which must identify the ward’s needs and describe the
programming, treatment and education to be provided in relation to the
identified needs. (§ 875, subd. (d)(2).)9 The court is required to review and
approve the individual rehabilitation plan within 30 days of commitment.
(Id., subd. (d)(1).)
Section 875 provides for potential downward modification of the
baseline term of confinement. The juvenile court is required to hold a
progress hearing “not less frequently than once every six months.” (§ 875,
8 At the time of Tony’s disposition hearing, juvenile courts were to set
the baseline term “utilizing the discharge consideration date guidelines
applied by the [DJJ] prior to its closure.” (§ 875, subd. (b)(1).) The Judicial
Council has since adopted a “matrix of offense-based classifications” which
juvenile courts are now required to use instead of the DJJ guidelines. (§ 875,
subds. (b)(1), (h); Cal. Rules of Court, rule 5.806.)
Further references to rules will be to the California Rules of Court.
9 Specifically, section 875, subdivision (d)(2), requires that the
individual rehabilitation plan “do all of the following:
“(A) Identify the ward’s needs in relation to treatment, education, and
development, including any special needs the ward may have in relation to
health, mental or emotional health, disabilities, or gender-related or other
special needs.
“(B) Describe the programming, treatment, and education to be
provided to the ward in relation to the identified needs during the
commitment period.
“(C) Reflect, and be consistent with, the principles of trauma-informed,
evidence-based, and culturally responsive care.
“(D) The ward and their family shall be given the opportunity to
provide input regarding the needs of the ward during the identification
process stated in subparagraph (A), and the opinions of the ward and the
ward’s family shall be included in the rehabilitation plan report to the court.”
12
subd. (e)(1).) “In the review hearing, the court shall evaluate the ward’s
progress in relation to the rehabilitation plan and shall determine whether
the baseline term of confinement is to be modified. The court shall consider
the recommendations of counsel, the probation department and any
behavioral, educational, or other specialists having information relevant to
the ward's progress. At the conclusion of each review hearing, upon making a
finding on the record, the court may order that the ward remain in custody
for the remainder of the baseline term or may order that the ward’s baseline
term or previously modified baseline term be modified downward by a
reduction of confinement time not to exceed six months for each review
hearing. The court may additionally order that the ward be assigned to a less
restrictive program, as provided in subdivision (f).” (Id., subd. (e)(1).)
A ward’s confinement “shall not be extended beyond the baseline
confinement term, or beyond a modified baseline term, for disciplinary
infractions or other in-custody behaviors,” which must be “addressed by
alternative means.” (§ 875, subd. (e)(2). At the conclusion of the baseline
confinement term, the court must hold a probation discharge hearing at
which it must “review the ward’s progress toward meeting the goals of the
individual rehabilitation plan” and must discharge the ward to probation
supervision “unless the court finds that the ward constitutes a substantial
risk of imminent harm to others in the community if released from custody,”
in which case the ward “may be retained in custody in a secure youth
treatment facility for up to one additional year of confinement.” (§ 875,
subd. (e)(3).)
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II.
Analysis
A. The Juvenile Court’s Order Was Within Its Authority.
Tony’s position on this appeal is based on the Legislature’s stated
intent, in juvenile justice realignment, to facilitate rehabilitation, treat youth
offenders in the “least restrictive appropriate environment” and “reduce the
use of confinement in the juvenile justice system by utilizing community-
based responses and interventions.” (Stats. 2020, ch. 337, § 1, subd. (e).) He
maintains that rehabilitation is facilitated by the use of incentives that
encourage positive behavior and, therefore, in order to effectuate legislative
intent, a six-month reduction in the baseline term “should be seen as the
default position for all youth who are engaging in their programs as
intended.” Tony argues that because there is undisputed evidence that he
performed well during the first six-month review period, he was entitled to
the six-month reduction he requested.
We agree that the record reflects Tony consistently engaged in and
performed well in his treatment, services and programs. The probation
report was almost entirely positive, the only exception being a one-sentence
reference to his having been in two fights since being committed to RISE (as
the victim in the more recent one), which no one mentioned at the hearing.
The juvenile court appropriately commended Tony on his performance. We
cannot agree, however, that section 875 entitles a ward who performs well on
his rehabilitation plan to a reduction in the baseline term.
1. Section 875 Does Not Establish an Entitlement to
Reductions in the Baseline Term of Confinement.
The proper interpretation of a statute is a question of law that we
review de novo. (In re R.D. (2008) 163 Cal.App.4th 679, 686.) “We begin with
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the language of the statute as the most reliable indicator of legislative
intent . . . .” (People v. Holmes (2004) 32 Cal.4th 432, 438.)
Section 875, subdivision (e)(1), provides that the juvenile court “shall”
hold a review hearing at least every six months and, “[a]t the conclusion of
each review hearing, upon making a finding on the record, the court may
order that the ward remain in custody for the remainder of the baseline term
or may order that the ward’s baseline term or previously modified baseline
term be modified downward by a reduction of confinement time not to exceed
six months for each review hearing.” (Italics added.) “ ‘ “ ‘It is a well
established rule of statutory construction that the word “shall” connotes
mandatory action and “may” connotes discretionary action.’ [Citations.]” ’
[Citation.]” (In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 348;
Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443 [“ ‘may’ is
ordinarily construed as permissive, whereas ‘shall’ is ordinarily construed as
mandatory”].) The statutory language clearly gives the juvenile court
discretion to reduce the baseline term but does not require it to do so.
Tony argues that section 875 should be interpreted as “providing an
expectation” that substantial compliance with an individual rehabilitation
plan will result in a six-month reduction of the baseline term and allowing
juvenile courts a “limited type of discretion that should be exercised in favor
of a reduction whenever possible.” This argument is based on a number of
policy considerations related to the Legislature’s implicit recognition, in
providing regular opportunities for reduction of a ward’s confinement time,
that incentives for positive behavior are an important rehabilitative tool.
Rule 5.806, which addresses selection and modification of the baseline term,
makes this point explicit: “To provide an incentive for each youth to engage
productively with the individual rehabilitation plan approved by the court
15
under section 875[, subdivision] (b)(1), each probation department operating
a secure youth treatment facility must implement a system to track the
positive behavior of the youth in a regular and systematic way and report to
the court at every progress hearing on the youth’s positive behavior,
including a recommendation to the court on any downward adjustment that
should be made to the baseline term in recognition of the youth’s positive
behavior and development.” (Rule 5.806(c).)10
Tony argues that the incentive for positive behavior will be lost if good
performance is not rewarded with a reduction of the baseline term, and
denial of a reduction when a ward has performed well make “could
reasonably evoke mistrust in the system, and negatively impact a youth’s
future efforts.” He maintains that if a reduction is not treated as the default
where a ward has performed well, “wards who are making their best efforts
may be treated the same as those who make no efforts.” Additionally, he
urges that his interpretation of section 875 is necessary to avoid the risk of
varied and arbitrary results, within a case and between jurisdictions, such as
10 The Advisory Committee Comment to rule 5.806 addresses the
incentive structure in its comments on the matrix adopted to guide the initial
selection of the baseline term: “A primary objective of a commitment to a
secure youth treatment facility must be an evidence-based and trauma-
responsive effort to promote healthy adolescent development. This objective
will be achieved by providing positive incentives for prosocial behavior,
focusing on the treatment needs of the youth to ensure healing and
rehabilitation, and with a persistent focus on the end goal of successful
reentry into the community. The flexibility inherent in the matrix is
intended to result in a baseline term of commitment that is no longer than
necessary to protect the public but is of sufficient length to assure the victim
and the community that the harm committed can be redressed by the
juvenile justice system in a developmentally appropriate manner and thus
reduce the need for the youth to be transferred to criminal court.”
16
good performance in one county leading to a six-month reduction while
excellent performance in another county may result in no reduction. Using
his own case as an example, he points out that he was denied any reduction
at the first six-month review, then received a four-month reduction at the
second review and a six-month reduction at the third.
Tony’s arguments reflect valid concerns that should be among the
constellation of factors a juvenile court considers in determining whether a
ward’s baseline term should be reduced and, if so, by how much. But they do
not justify an interpretation of section 875 that departs from the plain
language of the statute. They also assume too narrow a measure of a ward’s
progress.
Section 875 directs the court to decide whether to order a reduction
after “evaluat[ing] the ward’s progress in relation to the rehabilitation plan,”
including consideration of “the recommendations of counsel, the probation
department and any behavioral, educational, or other specialists having
information relevant to the ward's progress.” (§ 875, subd. (e)(1)(A).) This
directive implies a measure of progress more comprehensive than just
whether the ward is behaving well and participating in the programming
called for in the rehabilitation plan. Commitment to a secure youth
treatment facility is reserved for wards who have committed the most serious
offenses, for whom such commitment is necessary to achieve the goals of
rehabilitation and community safety. (See § 875, subd. (a)(1), (a)(3)(D).)
Compliance with the rehabilitation plan is undeniably laudable, but it is not
necessarily in itself the full measure of how much progress a ward has made
in terms of specific behavioral and psychological issues; whether the progress
is sufficient to be confident that a reduced baseline term will leave sufficient
time for rehabilitation and successful reentry will depend on the particular
17
ward and how far the ward has to go. Thus, we cannot agree with Tony that
a ward’s good behavior and full participation in the rehabilitation plan
necessarily requires a reduction without regard to other potentially relevant
considerations, including how much the minor has progressed with respect to
individual treatment needs and programming goals and how long a time
period is expected to be necessary for the ward’s full rehabilitation and
protection of the public.
As we have said, section 875 uses discretionary language—the court
“may” reduce the baseline term up to the limit of six months per review
hearing—without indicating an intent to have juvenile courts exercise their
discretion in a limited fashion. “[T]he juvenile court has long enjoyed great
discretion in the disposition of juvenile matters . . . .” (In re Greg F. (2012)
55 Cal.4th 393, 411.) This discretion would be undermined by the
“standardization” that Tony sees as necessary to avoid arbitrariness.
The Legislature could have worded section 875 to require a reduction of
the baseline term in certain circumstances or absent others, for example, by
providing that the court is to order a reduction when a ward has
substantially complied with the individual rehabilitation plan, unless the
court finds the reduction would jeopardize the ward’s full rehabilitation or
public safety. It did not do so. Instead, it authorized the juvenile court to
order the reduction after evaluating the ward’s progress. The Legislature
specified requirements that the baseline term of confinement “represent the
time in custody necessary to meet the developmental and treatment needs of
the ward and to prepare the ward for discharge to a period of probation
supervision in the community” and be determined in accordance with
specified guidelines based on the most serious offense (§ 875, subd. (b)(1)),
and that the court determine whether to reduce the baseline term after
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evaluating “the ward’s progress in relation to the rehabilitation plan” and
limit any reduction to six months per review period. (§ 875, subd. (e)(1)(A).)
The Legislature specified no further constraints. Accordingly, we read
section 875 as entrusting juvenile courts to exercise their long-standing broad
discretion over juvenile dispositions, consistent with the legislatively
established parameters, in first setting a baseline term of confinement and
subsequently determining whether a reduction in that term of confinement is
warranted.
We are not persuaded to the contrary by Tony’s argument that, in order
to avoid arbitrary results, it is necessary to interpret section 875 as limiting
juvenile courts’ discretion and establishing an expectation that substantial
compliance with the individual rehabilitation plan will result in a six-month
reduction. Tony sees the present case as demonstrating arbitrariness
because he was denied a reduction at the first review hearing, granted a four-
month reduction at the second review and granted a six-month reduction at
the third. The orders from the second and third review hearings, of course,
are not before us on the present appeal. But assuming, as appears from the
limited information provided to us, that Tony continued to do well with his
treatment and programming, we see nothing arbitrary in successive review
hearings resulting in successively greater reductions in the baseline term. To
the contrary, this pattern suggests that Tony’s continued positive
performance over an increasing time period has increased the court’s
confidence that Tony is solidifying his rehabilitation.
As for potential arbitrariness in results across cases, we fail to see how
the issue of baseline term reductions is any more prone to arbitrariness than
other discretionary decisions with respect to juvenile dispositions. As we
have said, if the Legislature intended to limit juvenile courts’ discretion
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beyond the parameters stated in section 875, it could have done so.11 It is not
for us to impose limits on the juvenile courts’ discretion beyond those
prescribed by the Legislature.
2. Denial of the Reduction Did Not Amount to “Overruling”
the Baseline Term Set at Disposition.
Tony argues that Judge Power denied his request for reduction of the
baseline term only because the judge and prosecutor believed insufficient
time had passed, and that neither passage of time nor proper length of the
baseline term were proper factors for the court to consider. Emphasizing that
section 875 calls the six-month review a “progress review hearing,” Tony
argues its purpose is solely to evaluate the ward’s progress. In his view, by
finding that insufficient time had passed and denying the requested six-
month reduction, “Judge Power effectively reconsidered the baseline term set
by Judge Stashyn” at the disposition hearing. Relying on the rule that “one
superior court judge may not overrule another” (People v. Garcia (2006)
147 Cal.App.4th 913, 916), Tony argues Judge Power exceeded his
jurisdiction and denied him due process by “disagreeing” with Judge Stashyn
and “refusing to grant an earned 6-month reduction.”
We disagree. Tony’s position appears to be that Judge Stashyn set the
baseline term at four years with the expectation that it would be reduced by
six months at each six-month interval, provided Tony complied with his
individual rehabilitation plan. Denial of the six-month reduction, according
11 In fact, a 2023 amendment to section 875 expressly acknowledged
the juvenile court’s discretion. A new last sentence was added to section 875,
subdivision (e)(1)(A), stating: “The determination of whether the baseline
term will be modified, or whether a youth will be assigned to a less restrictive
program, is a judicial decision and the juvenile court’s discretion may not be
limited by stipulation of the parties at any time.” (Stats. 2023, ch. 47, § 30.)
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to this view, had the effect of extending the baseline term set by Judge
Stashyn. This argument is necessarily premised on acceptance of Tony’s view
that a six-month reduction is required as long as a ward complies with the
case plan. We have rejected Tony’s interpretation of section 875 as creating
an entitlement to a six-month reduction as well as his view of the measure of
progress requiring a reduction. Progress “in relation to the rehabilitation
plan” (§ 875, subd. (e)(1)(A)), as earlier discussed, appropriately implies
consideration of the objectives and goals of the plan as well as compliance
with its elements.
Tony sees Judge Stashyn as having assured him that his baseline term
would be reduced if he behaved well when she commented, at the 30-day
review hearing, that “[w]hen [Tony] gets back to the community will, of
course, depend on how he does. And he does have control of his own future.”
We cannot agree with Tony’s characterization of Judge Stashyn’s comments
as promising a reduction. Defense counsel had been telling the court that the
services Tony was receiving had not changed since the disposition hearing.
Immediately before the quoted comment, counsel reminded the court that it
had wanted counsel and the prosecutor to “look into the maximum time
issue” and that they had agreed “the youth’s base term is 4 years and his
maximum is until 25.” The court responded, “Okay. Well, certainly I hope
that provides good motivation for your client. When he gets back to the
community will, of course, depend on how he does. And he does have control
of his own future. I hope he takes advantage of what is available to him.
[¶] We will get another review date. It’s unfortunate with the way the law is
now. As we all observe, there is not much in between. Is there?”
In context, it is by no means clear the court was referring to reductions
of the baseline term when it commented on Tony’s control over when he
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would be discharged; if anything, the court’s remarks appear to have been
directed at the difference between the baseline term and the maximum term.
Even if construed as referring to the baseline, the court in no way specifically
promised a six-month reduction. The court observed that the actual amount
of time Tony would be confined would depend on “how he does” (i.e., his
conduct, attitude and progress), consistent with the indefinite nature of a
juvenile’s actual term of confinement limited by the maximum term. There
was no discussion of the potential for reduction in the baseline term, much
less a specific promise.
Tony also relies on Judge Stashyn’s remarks to argue that his position
is supported by “[t]he principles underlying the policy of judicial estoppel,”
which “ ‘ “precludes a party from gaining an advantage by taking one
position, and then seeking a second advantage by taking an incompatible
position. [Citations.] The doctrine’s dual goals are to maintain the integrity
of the judicial system and to protect parties from opponents’ unfair strategies.
[Citation.]” ’ ” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) Tony argues
that after failing to object when Judge Stashyn told Tony “that his efforts in
relation to his individual rehabilitation plan . . . would determine his release
date,” the People are now taking the opposite position by defending Judge
Power’s order. This argument, again reading Judge Stashyn’s remarks as a
specific promise regarding reduction of the baseline term, stretches Judge
Stashyn’s remarks beyond their reasonable meaning.
In short, we find no basis for viewing Judge Power’s denial of Tony’s
request for a six-month reduction in the baseline term of confinement as
overruling the baseline term set by Judge Stashyn.
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B. The Juvenile Court Did Not Abuse Its Discretion.
The abuse of discretion standard of review “asks in substance whether
the ruling in question ‘falls outside the bounds of reason’ under the applicable
law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 162.)
We “ ‘ “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.” ’ [Citation.]” (In re Robert H. (2002)
96 Cal.App.4th 1317, 1330.)
Here, the juvenile court was evaluating Tony’s progress after the first
six months of the four-year period determined at disposition to represent the
time necessary to meet his developmental and treatment needs and prepare
him for discharge. (§ 875.) Tony was by all accounts doing extremely well.
But he had significant treatment and service needs, had committed
extremely serious offenses with grave consequences for the victims and had
been assessed as being at high risk for re-offense. It was within the court’s
discretion to determine that a reduction of his baseline term this early in his
period of confinement would not serve his rehabilitative needs and public
safety concerns.
Tony argues that a six-month reduction would have been consistent
with the spirit of section 875, the court failed to appreciate that “the scope of
its discretion was to evaluate the youth’s progress in light of the legislative
intent” and the court’s reliance on insufficient time having passed was
improper and lacked evidentiary support. These arguments are answered by
our previous discussion: Section 875 does not create an entitlement based
solely on a ward’s good behavior and compliance with the rehabilitation plan,
and both the time necessary to meet a ward’s treatment needs and the time
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thus far spent in confinement are relevant to evaluation of the ward’s
progress “in relation to the rehabilitation plan.”
Tony suggests he was penalized for the probation department’s failure
to recommend a reduction. He argues that although section 875 requires the
court to consider the probation department’s recommendation (§ 875,
subd. (e)(1)(A)) and the court “noted the absence of a recommendation from
probation,” the court did not ask the probation officer, who was present at the
hearing, for his recommendation. Further, he maintains that if the probation
department had executed its “duty” to include a recommendation as to
reduction of the baseline term in its report, it would have been compelled to
recommend a six-month reduction, and he should not be penalized for the
department’s failure to submit a recommendation.
The duty Tony refers to derives from rule 5.806(c), which now requires
the probation department, in order “[t]o provide an incentive for each youth
to engage productively with the individual rehabilitation plan approved by
the court,” to “implement a system to track the positive behavior of the youth
in a regular and systematic way and report to the court at every progress
hearing on the youth’s positive behavior, including a recommendation to the
court on any downward adjustment that should be made to the baseline term
in recognition of the youth’s positive behavior and development.” (Italics
added.) But this rule was not in effect at the time of the review hearing in
October 2022: The rules pertaining to commitments to secure youth
treatment facilities became effective on July 1, 2023. (Rules 5.804, 5.806,
5.807, 5.808.) Tony’s characterization of the probation department as failing
to comply with its duties is thus misplaced. More importantly, Tony’s
argument that his performance would have required the probation
department to recommend a six-month reduction is unavailing for the
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reasons we have already discussed: Section 875 does not create an
entitlement to reductions in the baseline term or preclude the court, or
probation department, from considering the ward’s progress on the individual
rehabilitation plan in the context of the ward’s treatment and service needs
and public safety concerns.
The probation report submitted for this hearing did not say anything
about a reduction in the baseline term; it simply recommended continuing
the wardship and commitment with existing orders in effect, without a
recommendation to grant or deny a reduction. Nevertheless, the juvenile
court was not wrong to state that “probation did not recommend a reduction.”
The report described Tony’s considerable positive conduct and participation
in programming but also noted significant needs and services and his
assessment as high risk for re-offense. Although rule 5.806 was not yet in
effect and the probation department was not expressly required to include in
its report a recommendation on modification of the baseline term due to a
ward’s positive behavior, section 875 directed the court to consider the
department’s recommendations in this regard. (§ 875, subd. (e)(1)(A).) The
statute obviously contemplates that the probation department will make
recommendations as to whether the baseline term should be modified, and
there is no reason to think the probation department would not have included
a recommendation in its report if it believed a reduction was appropriate.
Finally, Tony argues that he should not have to bear any consequences
from the fact that RISE was not “fully operational” at the time he was
committed to the program. Noting that rule 5.807(c)(1)(A) requires the court
to evaluate a youth’s progress “in light of the programming made available to
[him],” Tony urges us to disregard Judge Power’s comment that
“individualized services are just getting started in the Court’s view.”
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We see nothing in the record to indicate that the denial of Tony’s first
request for a six-month reduction was due to lack of progress attributable to
RISE not being fully operational when he was first committed. As discussed
in our opinion on Tony’s appeal from the disposition order committing him to
RISE, Tony was being provided services and treatment, albeit not the more
individualized ones RISE is designed to offer. Even at the May 5, 2022
hearing a month after disposition, the court noted that it appeared Tony’s
needs were being addressed and he was receiving appropriate intervention.
In asking us to disregard Judge Power’s comment that “individualized
services are just getting started, in the Court’s view,” Tony appears to
assume Judge Power denied his request for a reduction in the baseline term
at least in part because the individualized services specific to the RISE
program had only recently begun. We do not draw the same inference.
Defense counsel had argued for a six-month reduction as incentive for Tony
to continue the undisputedly good work he was doing on his case plan; the
People argued there had been insufficient time and progress to justify
shortening the time the probation department would have to work with Tony
and ensure community safety when he was discharged. In context, we
understand the court’s comment as simply referring to Tony being at such an
early phase of his rehabilitation program that it was too soon to conclude “the
risks [had] diminished.”
DISPOSITION
The order is affirmed.
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STEWART, P. J.
We concur.
RICHMAN, J.
MARKMAN, J. *
In re Tony R. (A166850)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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Trial Court:Solano County Superior Court
Trial Judge: Hon. David E. Power
Counsel:
Amanda K. Roze, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Seth K. Schalit,
Lisa Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.
28