In re A.C. CA1/3

Filed 5/31/13 In re A.C. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re A.C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A135382
A.C., (Alameda County
Defendant and Appellant. Super. Ct. No. OJ06002988)
Minor A.C. appeals from a juvenile court dispositional order committing him to
the California Department of Juvenile Facilities (DJF). He presents several arguments
challenging his commitment to DJF, and requests reversal and a new dispositional
hearing. We conclude the minor‟s contentions are without merit and do not require the
requested relief. Accordingly, we affirm.
FACTS
I. Background
In 2006, when the minor was 10 years old, he and his younger siblings were taken
from their mother‟s custody and placed in foster care after a finding that their mother was
unable to care for them due to her drug addiction. Three years later, in 2009, the district
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attorney filed a Welfare and Institutions Code1 section 602 petition after the 13-year-old
minor was arrested for robbery and theft of a car for a “joy ride.” The minor admitted to
committing two offenses of possessing stolen property as an accessory, as misdemeanors
(Pen. Code, §§ 32, 496). The juvenile court declared the minor a ward of the court and
placed him in his grandmother‟s home under the formal supervision of the probation
department.
On February 24, 2010, the district attorney filed a new section 602 petition,
alleging the minor had committed the felony offenses of burglary (Pen. Code, § 459),
auto burglary (Pen. Code, § 459), and receipt, withholding, and concealing stolen
property (Pen. Code, § 496). To resolve the petition, the minor admitted to being an
accessory to burglary, as a felony (Pen. Code, §§ 32, 459). The minor was continued as a
ward and released on GPS monitoring to his grandmother‟s home. However, on April 2,
2010, the district attorney filed a section 777 supplemental petition for more restrictive
placement alleging that on March 27, 2010, the minor had absconded from his
grandmother‟s home and his whereabouts were then unknown. The police ultimately
found and detained the minor on April 12, 2010. On April 14, 2010, the district attorney
filed another section 602 petition alleging the minor had committed the misdemeanor
offense of unlawfully possessing live ammunition (Pen. Code, § 12101, subd. (b)(1)). To
resolve the petition, the minor admitted to committing the misdemeanor offense of
disturbing the peace (Pen. Code, § 415). The juvenile court continued the wardship and
the minor was placed in juvenile hall for about three months, during which time he was
diagnosed with depression and conduct disorders and prescribed psychotropic
medications. On July 6, 2010, he was released on GPS monitoring to his grandmother‟s
home. However, about two weeks later, the minor again absconded from his
grandmother‟s home and his whereabouts were unknown.
1
All further unspecified statutory references are to the Welfare and Institutions
Code.
2
On or about September 20, 2010, the minor returned to his grandmother‟s home.
In the interim, on September 16, 2010, the district attorney filed another section 602
petition/section 777 supplemental petition, alleging that the minor had violated his
probation by failing to obey all laws and be of good conduct in that between April 2010
and June 2010, a Berkeley home was burglarized and vandalized with damage in excess
of $5,000, and the minor‟s latent prints were found inside the house. When the minor
failed to appeared for a hearing on September 29, 2010, the juvenile court issued a
warrant for his arrest. Thereafter, the minor was arrested and detained at Juvenile Justice
Center. On December 6, 2010, the juvenile court dismissed the probation violation
petition in the interest of justice. The minor was placed on GPS monitoring and returned
to his grandmother‟s home. About one month later, the GPS monitoring was vacated
after the court received a report the minor was then attending school, working at Berkeley
Youth Alternatives, he had nearly completed his weekend training academy
requirements, and his behavior was good at home.
II. Proceedings Leading to DJF Commitment
On February 1, 2011, the district attorney filed a new section 602 petition, alleging
that on or about January 30, 2011, the 15-year-old minor had committed a felony robbery
(Pen. Code, § 211) of another minor‟s personal property. The petition alleged that in
determining disposition and maximum length of physical confinement, the court should
consider the minor‟s previous history. The juvenile court sustained the petition based on
the minor‟s admission to the robbery allegation. Before the dispositional hearing, the
probation department officer prepared a report, noting the robbery was a “section
707(b)(3) offense.” The probation department officer reported the minor wanted to
withdraw his admission because he did not commit the robbery. If the minor did not
withdraw his admission, the probation department officer recommended that the minor be
removed from his grandmother‟s home and placed in a foster care home. “The SOS
Committee reservedly found the minor suitable for out of home placement, but they
directed that [the minor] be screened for [DJF]. . . . Should the minor fail in placement,
[DJF] will most certainly be the next step on [the minor‟s] path.” At a hearing on
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February 25, 2011, the matter of disposition was “[s]ubmitted on the [p]robation [r]eport,
[¶] . . . [which the juvenile court] had read and considered . . . [and] admitted into
evidence.” The minor did not move to withdraw his admission. He was continued as a
ward of the court and the probation department was directed to place him in a suitable
facility.
On March 28, 2011, the probation department placed the minor in a group home,
which used behavior modification techniques. The program also offered “intensive
personal, and group therapy and family therapy when family is available. The wards all
attend off-site community schools.” As soon as the minor had completed his intake
paperwork and was taken to the group home, he fled and went “AWOL.” He was found
by the police and taken to the Juvenile Justice Center and “booked in on a Change of
Placement.” The minor was re-evaluated for placement at the group home and given
another opportunity at that placement. He was again placed at the group home on May 6,
2011. However, the minor did not do well. He was constantly rude and disrespectful to
the staff, and he often refused to follow staff instructions if he did not want to complete a
task. The minor was warned that if he continued to act negatively, his placement would
be terminated. On June 23, 2011, when the minor was at an outing at the community
pool, he walked away from staff, locked himself in a bathroom, and smoked marijuana.
Because of this incident, the minor was terminated from the placement and returned to
the probation department‟s custody. Thereafter, the probation department spent several
months trying to find another suitable placement for the minor. On September 20, 2011,
the minor was placed at Bridges Intervention, which was described as “a structured
environment . . . that will provide the minor with the appropriate education services he
requires. The minor will also receive individual, group and family therapy.” On
November 16, 2011, the probation department officer reported the minor had left the
placement and remained away without permission and without notifying the probation
officer. On February 1, 2012, the police took the minor into custody pursuant to an arrest
warrant.
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On February 2, 2012, the district attorney filed a pleading on the 2012 version of
the standard Judicial Council juvenile wardship petition form (form JV-600). The section
602(a) boxes were checked, and next to the printed text, “Validation [sic] (specify code
section):” was typed, “SUPPLEMENTAL PETITION WI [sic] 777(a).” An attachment,
prepared on Judicial Council form JV-620, revised January 1, 2006 to be used for a
“violation of law by child”, was titled, “NOTICE OF W&I [sic] SECTION 777(a)
PETITION.” In that attachment, it was alleged the district attorney was seeking an order,
pursuant to section 777(a), changing and modifying the previous order of the court
granting the minor probation, removing the minor from the custody of his parent,
guardian, or relative, and directing placement in Bridges, a group home, because the
minor had violated the probation terms and conditions to obey all laws and be of good
conduct, in that on February 1, 2012, he committed a residential burglary, was found in
possession of the victim‟s property, and falsely identified himself to the police. The
pleading gave notice that the district attorney would ask the court to consider the minor‟s
previous history in determining disposition and maximum length of physical
confinement.
After a three day contested jurisdictional hearing, the juvenile court found, by a
preponderance of the evidence, that the minor had violated his probation based on his
involvement in the criminal offenses alleged in the February 2012 petition. The juvenile
court determined the minor‟s maximum time he might be confined in secure custody,
with the terms of all previously sustained petitions known to the court aggregated, was
six years and five months.
In the report prepared for the dispositional hearing, the probation department
officer recommended the minor‟s out-of-home placement should be continued, and the
department was screening the minor for placement at Rite of Passage. By that time, the
then 16 year-old minor had not positively dealt with the stressors in his life: his mother‟s
whereabouts were unknown, his father had recently died, and he had been separated from
his siblings by their adoption. The minor could no longer live with his grandmother
because of his involvement with “police activities around [her] residence.” The minor
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admitted to drinking alcohol and smoking marijuana at an early age, and his “recent drug
appetite ha[d] escalated to cocaine.” The probation department officer asserted that “[i]t
is evident that [the minor] needs to learn coping skills, and grief counseling is imperative,
at this time in his life. If these issues are not addressed, [the minor‟s] depression can
spiral deeper in grief and despair.”
At the commencement of the March 13, 2012 dispositional hearing, the juvenile
court indicated the probation department recommended “continuing the placement
order,” and “[t]here‟s also some consideration of” DJF. The minor‟s counsel asked the
court not to place the minor at DJF, but to place him at Rite of Passage, which would be a
significant escalation from placement in a group home, and would be “significant enough
to address” the minor‟s “particular situation.” The prosecutor asked the court to consider
placing the minor at DJF because he was eligible for that placement based on the prior
2011 robbery offense, he had had “plenty of chances,” and he had “seriously been
wreaking havoc on the Berkeley community” since October 2009. The prosecutor noted,
among other things, that the minor had a serious drug problem, and he had told the
probation department officer that if he was placed in another group home, he would leave
and run. The prosecutor opined that Rite of Passage would not change or help the minor,
and that DJF might be the only place where the minor could actually reform and
rehabilitate.
The juvenile court found the minor had been tried on probation and also in
placement and failed to reform. The court further found the minor‟s mental and physical
condition and qualifications were such that he would benefit from the reformatory
educational discipline and other programs provided by DJF. The court explained the
minor needed “a lot of help in terms of counseling for victims‟ rights, for the feelings [he
has] towards other people, for drug abuse, [and] the other issues that have appeared over
the years in [his] case.” The court believed DJF was a necessary placement because the
minor had failed in group homes and a nonsecure group home would not be appropriate
as the court had no reason to believe the minor would stay in such a placement. The
minor filed a timely notice of appeal from the dispositional order committing him to DJF.
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DISCUSSION
The minor challenges his commitment to DJF on various grounds, none of which
requires reversal.
We initially conclude the minor‟s DJF commitment was not barred by section 733,
subdivision (c) (§ 733(c)). Section 733 reads, in pertinent part: “A ward of the juvenile
court who meets any condition described below shall not be committed to the Department
of Corrections and Rehabilitation, Division of Juvenile Facilities: [¶] . . . [¶] (c) The ward
has been or is adjudged a ward of the court pursuant to Section 602, and the most recent
offense alleged in any petition and admitted or found to be true by the court is not
described in subdivision (b) of Section 707 [(§ 707(b)] . . . .” (Italics added.) “The effect
of the statute is to preclude [DJF] commitment unless the minor‟s most recent sustained
petition charged the minor with one of the crimes enumerated in section 707(b). [¶]
Section 707(b) itemizes a number of specific criminal offenses, which we refer to simply
as [DJF-]eligible offenses. These offenses include robbery (§ 707(b)(3)) . . . .” (In re
D.J. (2010) 185 Cal.App.4th 278, 284.)
The minor contends his “most recent offense alleged in any petition and admitted
or found to be true” was the probation violation alleged in the February 2012 pleading,
and therefore, the commitment to DJF was foreclosed because this latest pleading became
the relevant petition for determining his most recent offense alleged in any petition for
purposes of section 733(c). We disagree. Concededly, the prosecutor‟s February 2012
pleading uses Judicial Council forms JV-600 and JV-620 and section 602(a) boxes are
checked on the cover page. However, that pleading “did not seek an adjudication that
[the minor] had committed new offenses. Rather, [its] purpose was to initiate
proceedings under section 777, alleging the crimes only as violations of [the minor‟s]
probation . . . .” (In re D.J., supra, 185 Cal.App.4th at p. 286; see also In re M.B. (2009)
174 Cal.App.4th 1472, 1476.)2 Additionally, the February 2012 pleading was litigated as
2
We note that at the time of the filing of the February 2012 pleading, the Judicial
Council had issued a new form JV-620, revised January 1, 2007, and a new stand-alone
form for optional use as a notice of probation violation in juvenile cases under section
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a probation violation, and not a new wardship petition. At the February 3, 2012 detention
hearing, the juvenile court noted the minor was “charged with violating his probation”
and he was being detained “for the violation.” At the commencement of the
jurisdictional hearing, the prosecutor stated the case against the minor is a “777 . . . .” At
the conclusion of the evidence, the prosecutor began his argument by noting that the
People had “only filed a 777 against [the minor]. So at this point our burden is only a
preponderance of the evidence . . . . [and not proof] beyond a reasonable doubt.” The
prosecutor concluded by arguing that the People had “proved this case by a
preponderance of the evidence against [the minor]. We‟d ask that there be a finding in
the language as stated in the petition.” Following the completion of argument, the
juvenile court found the minor had “violated his probation as alleged in the petition in all
parts . . . .” The court also commented that “if the burden had been beyond a reasonable
doubt as to [the minor], I don‟t think I would have made a finding . . . . Since the burden
was lesser on [the minor], there is enough evidence to persuade me that he was involved
in all of this.” Thus, although the juvenile court found the minor had violated probation,
such a finding “did not supersede” the earlier sustained petition charging a DJF-eligible
robbery offense admitted by the minor in February 2011. (In re D.J., supra, at p. 286;
see In re M.B., supra, at pp. 1477-1478 [court interpreted the word “offense” in section
733(c) to exclude a probation violation].) Thus, for purposes of section 733(c), the
relevant petition was the February 2011 section 602 petition, by which the prosecution
sought a wardship based on the minor‟s commission of a robbery, a section 707(b)
offense, and was sustained based on the minor‟s admission. Consequently, the juvenile
777 (JV-735, revised January 1, 2012). Because “there are significant procedural
differences between a probation violation notice under section 777, and a petition under
section 602, . . . we respectfully suggest that” when appropriate, probation officers and
prosecutors should use the most current Judicial Council form “specifically designed for
use as a notice of probation violation in juvenile cases under section 777.” (In re D.J.,
supra, 185 Cal.App.4th at p. 288, fn. 8.)
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court properly found the minor was eligible for DJF commitment because the most recent
offense alleged in a petition admitted to be true was a DJF-eligible robbery offense. 3
The minor also argues that his right to due process was violated because he was
not given notice he could be committed to DJF based on his prior robbery offense and for
violating his probation. However, because the minor “did not raise a due process
objection in the [juvenile] court, he may not raise it for the first time on appeal.” (In re
Brian K. (2002) 103 Cal.App.4th 39, 42.) In all events, the minor has not demonstrated
prejudicial error. “[T]he essence of due process is actual notice and a „meaningful
opportunity‟ to be heard.” (Ibid.) At the commencement of the March 13, 2012,
dispositional hearing, the juvenile court specifically noted the probation department had
recommended continuing the placement order and “[t]here‟s also some consideration of”
DJF. Thus, both minor and his counsel were aware of the court‟s intent to consider a
commitment to DJF. At no time did minor or his counsel raise any objection concerning
the minor‟s lack of notice that his prior robbery offense could be used as a basis for a DJF
commitment or that his violation of probation could result in a DJF commitment. The
court did not deny the minor “the opportunity to be heard, and he has not shown how its
actions prejudicially impacted his procedural rights.” (Id. at p. 43; In re Donnell L. (1989)
212 Cal.App.3d 185, 190, 192 [court upheld commitment to CYA [now DJF] even
though not demanded in prosecution‟s supplemental petition to modify placement order
where minor and his counsel had actual notice, were adequately apprised of the
prosecution‟s intent to recommend the greater level of confinement, and had sufficient
opportunity to respond to the prosecution‟s recommendation].)
Finally, we see no merit to the minor‟s arguments that the juvenile court abused its
discretion in committing him to DJF. Although “juvenile proceedings are primarily
3
We see nothing in In re Greg F. (2012) 55 Cal.4th 393, which supports a contrary
conclusion. Unlike the situation in Greg F., in this case the February 2012 pleading was
an effective notice of probation violation pursuant to section 777, not a new section 602
wardship petition, and no pleading document was dismissed thereby making the minor
eligible for a commitment to DJF based on an earlier sustained petition charging a DJF-
eligible offense.
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„rehabilitative‟ ([§ 202,] subd. (b)), and punishment in the form of „retribution‟ is
disallowed (id., subd. (e)),” “[w]ithin these bounds, the [juvenile] court has broad
discretion to chose probation and/or various forms of custodial confinement in order to
hold juveniles accountable for their behavior, and to protect the public. ([Ibid.])” (In re
Eddie M. (2003) 31 Cal.4th 480, 507.) We are not persuaded by the minor‟s reliance on
cases that “predate the amendment of former . . . section 502 (now § 202) regarding the
purposes of the Juvenile Court Law.” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57.)
“In 1984, the Legislature amended the statement of purpose found in section 202. . . . It
now recognizes punishment as a rehabilitative tool and emphasizes the protection and
safety of the public. (Stats. 1984, ch. 756, §§ 1, 2.) The significance of this change in
emphasis is that when we assess the record in light of the purposes of the Juvenile Court
Law [citation], we evaluate the exercise of discretion with punishment and public safety
and protection in mind. Such was not the case before 1984.” (In re Lorenza M., supra, at
pp. 57-58, fn. omitted.)
Pursuant to section 734, a juvenile court is authorized to commit a minor to DJF
when it is “fully satisfied that the mental and physical condition and qualifications of the
ward are such as to render it probable that he will be benefited by the reformatory
educational discipline or other treatment provided by the” DJF. As an appellate court, we
review “a commitment decision for abuse of discretion, indulging all reasonable
inferences to support the juvenile court‟s decision.” (In re Angela M. (2003) 111
Cal.App.4th 1392, 1396.)
At the time of the March 13, 2012 dispositional hearing, the minor was then 16,
and had continued his delinquent conduct over a period of three years despite court
intervention and placement at two group homes. “Where the minor has previously failed
in a series of local programs . . . statewide confinement in the structured setting offered
by DJF may decisively outweigh other considerations.” (In Re Greg F., supra, 55
Cal.4th at p. 418; see In re Martin L. (1986) 187 Cal.App.3d 534, 544 [“[c]ircumstances
in a particular case may well suggest the desirability of a [DJF] commitment despite the
availability of . . . alternative dispositions”].) The minor argues that the juvenile court
10
had knowledge of a practical alternative to DJF, and asks us to consider that in August
2011, the Rite of Passage staff had interviewed him and was willing to accept his
placement at the facility. However, the minor fails to note that during his interview, he
said he would not cut his hair and he intended to refuse placement at the program. Thus,
contrary to the minor‟s contention, we see no abuse of discretion in the juvenile court‟s
rejection of a placement at Rite of Passage.
Nor are we persuaded by the minor‟s arguments challenging the juvenile court‟s
finding that he would probably benefit from a DJF commitment. “[T]he juvenile court
found it was probable the minor would benefit from being committed to [DJF], because it
anticipated the minor‟s needs would be addressed by programs offered at [DJF]. There is
no requirement that the court find exactly how a minor will benefit from being committed
to [DJF].” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.) The minor contends
there was no substantial evidence to show he would receive adequate physical and mental
health services at DJF. However, before accepting a minor at DJF, it is the responsibility
of the Director of the Division of Juvenile Justice to determine if a “ward can be
materially benefited by [DJF‟s] reformatory and educational discipline, and if [DJF] has
adequate facilities, staff, and programs to provide that care.” (§ 736, subd. (a).) “To
determine who is best served by the Division of Juvenile Facilities, and who would be
better served by the State Department of Mental Health,” “the Director of the Division of
Juvenile Justice and the Director of the State Department of Mental Health shall, at least
annually, confer and establish policy with respect to the types of cases that should be the
responsibility of each department.” (§ 736, subd. (b).) The record indicates that before
its acceptance of the minor, DJF received a mental health assessment of the minor from
the county Guidance Center. The juvenile court could – and this court does – presume
that, if DJF determines that the minor has special or exceptional needs, such needs will be
met. (Evid. Code, § 664 [presumption that official duty has been regularly performed].)
If the minor believes DJF is “unable to, or failing to, provide treatment consistent with
11
[s]ection 734,” he may seek relief in the juvenile court. (§ 779 4; see In re Antoine D.
(2006) 137 Cal.App.4th 1314, 1322-1323.)
DISPOSITION
The dispositional order is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
4
Section 779 reads, in pertinent part: “The court committing a ward to the Youth
Authority [now DJF] may thereafter change, modify, or set aside the order of
commitment . . . . This section does not limit the authority of the court to change, modify
or set aside the order of commitment after a noticed hearing and upon a showing of good
cause that the Youth Authority [now DJF] is unable to, or failing to, provide treatment
consistent with Section 734.”
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