People v. Gabriel T.

Filed 9/30/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re GABRIEL T., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, F073030
Plaintiff and Respondent, (Super. Ct. No. MJL018293)
v.
OPINION
GABRIEL T.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Thomas L.
Bender, Judge.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I, II, III and V of the Discussion.
INTRODUCTION
This opinion involves a troubled minor, appellant Gabriel T., who was placed on
informal probation in July 2015 in Madera County Superior Court case number
MJL018293. In August 2015, he admitted a misdemeanor violation of brandishing a
deadly weapon (Pen. Code, § 417, subd. (a)(1)), and he was released into his
grandmother’s custody under certain terms and conditions. In September 2015, he was
placed on probation pursuant to Welfare and Institutions Code section 602 after failing to
comply with the terms.
In November 2015, the present wardship petition was filed in case number
MJL018293-A, and appellant subsequently admitted a violation of grand theft from the
person of another (Pen. Code, § 487, subd. (c)), with a stipulated restitution of $20. The
court ordered appellant to the Correctional Academy for 12 months, consisting of six
months of confinement and six months of aftercare under the supervision of probation. It
was ordered appellant could be returned to the Correctional Academy for a one-time
remediation of 30 days at any time during the aftercare component due to a violation of
probation or program rules.
On appeal the parties agree, as do we, that multiple errors occurred at sentencing.
In the published portion, we hold that the 30-day remediation violated the statutory
protections afforded in the Welfare and Institutions Code as it permitted the probation
officer to determine a violation of probation without notice to appellant and an
opportunity to be heard. In addition, we hold that it was impermissible for the juvenile
court to impose a $50 “Facilities Assessment” pursuant to Government Code section
70372, subdivision (a).
In the unpublished portion, we agree with the parties that the violation of Penal
Code section 487, subdivision (c), was a misdemeanor pursuant to Penal Code section
490.2; the court inappropriately ordered the collection of appellant’s biological samples
pursuant to Penal Code section 296; and the juvenile court erroneously calculated
2.
appellant’s sentence. The parties’ sole disputed issue on appeal is whether a firearm
prohibition was properly imposed pursuant to Penal Code sections 29800 and 29805.
Based on this sentencing record, however, we are unable to determine whether a firearm
prohibition was appropriate or not in this case.
We vacate the sentence and remand for resentencing.
FACTUAL BACKGROUND
I. The Prior Juvenile Record.
On July 7, 2015, the juvenile court granted appellant informal probation pursuant
to Welfare and Institutions Code section 654.2 for misdemeanor violations of brandishing
a deadly weapon (Pen. Code, § 417, subd. (a)(1)) and assault (Pen. Code, § 240) in case
number MJL018293. Appellant was ordered, in part, to enroll into and complete
substance abuse and anger management counseling, not to possess weapons, and to obey
his grandmother.
On August 12, 2015, a modification request was filed with the court alleging
appellant failed to obey his grandmother, he left his reported residence without
permission, he violated curfew, and he refused to enroll into anger management and
substance abuse counseling. On August 20, he was remanded into custody for violation
of informal probation, and on August 31, he admitted a misdemeanor violation of Penal
Code section 417, subdivision (a)(1). He was released to the custody of his grandmother
pending disposition with certain conditions imposed, including not to possess weapons.
On September 28, 2015, appellant was taken into custody after being suspended
from school for assaulting another student. Two days later he was placed on probation
pursuant to Welfare and Institutions Code section 602 and ordered to serve a 20-day
juvenile hall commitment with credit of 20 days for time served.
II. The Current Juvenile Petition.
On November 5, 2015, a juvenile wardship petition was filed pursuant to Welfare
and Institutions Code section 602, subdivision (a), in case number MJL018293-A. It was
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alleged appellant committed one felony count of dissuading a witness (Pen. Code,
§ 136.1, subd. (c)(1); count 1) and one felony count of robbery (Pen. Code, § 211;
count 2). The petition stated the maximum aggregate term of confinement would be
sought based on the previously sustained petition pursuant to Penal Code section 417,
subdivision (a)(1). The maximum time for the previously sustained petition was listed as
“1 year.” The petition sought a total aggregate time of six years four months. A
violation of probation was also filed on November 5, 2015, alleging appellant failed to
obey all laws by violating Penal Code sections 136.1, subdivision (c)(1), and 211.
The petition was subsequently amended to allege in count 1 a violation of Penal
Code section 136.1, subdivision (c)(1), and to add a count of grand theft from the person
of another (Pen. Code, § 487, subd. (c); count 3). The amended petition did not specify
whether the grand theft was charged as a misdemeanor or a felony. According to the
police report, the victim and the victim’s mother indicated the theft resulted in a loss of
$20 to $35.
On December 9, 2015, appellant admitted violation of Penal Code section 487,
subdivision (c), and the remaining two counts and violation of probation were dismissed.
The maximum confinement time was set at three years four months. On January 4, 2016,
appellant was continued as a ward of the court, and he was ordered to the Correctional
Academy for 12 months with six months of boot camp and six months of aftercare
program. Restitution was ordered at the stipulated amount of $20. Appellant was
ordered to serve 65 days in juvenile hall with 65 days of credit for time served. Various
other terms and conditions were imposed.
4.
DISCUSSION
I. The Violation Of Penal Code section 487, subdivision (c), Was A
Misdemeanor.*
The parties agree, as do we, that appellant’s violation of Penal Code section 487,
subdivision (c), was a misdemeanor and not a felony. Unfortunately, the juvenile court’s
records are unclear regarding this issue.
At the jurisdictional hearing on December 9, 2015, count 3 was added, which
appellant admitted. However, it was never specified on the record whether count 3 was a
misdemeanor or a felony. Paragraph 5 of the December 9, 2015, minute order reflects
that appellant admitted to count 1, a violation of Penal Code section 487, subdivision (c).
Paragraph 15 of the minute order states that the court considered and declared the
violation a misdemeanor. However, paragraph 29 of the same order sets a maximum
confinement of three years four months.
At the disposition hearing on January 4, 2016, the court declared the offense to be
a felony, but the minute order from that same day in paragraph 6 declares count 3 to be a
misdemeanor. However, the accompanying “Recommended Findings And Orders”
declares the offense to be a felony.
Pursuant to Penal Code section 490.2, and excluding certain exceptions which are
not relevant here, a theft of property involving a value not exceeding $950 is considered
“petty theft” and is punished as a misdemeanor. (Pen. Code, § 490.2, subd. (a).) Petty
theft is punishable by a maximum of six months in county jail, by fine, or by both. (Pen.
Code, § 490.)
Here, the parties agree, as do we, that the value of the property taken was well
under $950. As such, the offense pursuant to Penal Code section 487, subdivision (c),
* See footnote, ante, page 1.
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was a misdemeanor with a maximum confinement of six months. Accordingly, the
imposed sentence is vacated and appellant shall be resentenced.
II. The Order For The Collection Of Biological Samples Is Stricken.*
At the January 4, 2016, hearing, appellant was ordered to “[s]ubmit to the
collection of blood and saliva samples and/or buccal swab samples.” We agree with the
parties that this probation condition should be stricken.
Penal Code section 296 requires certain persons to provide biological samples
following convictions for certain offenses. For juveniles, however, this section is only
applicable for a felony offense or for those juveniles who are subject to registration for
the commission of a sex offense. (Pen. Code, § 296, subds. (a), (c).) The collection of
biological samples is not authorized based solely on the commission of a misdemeanor.
(Alejandro N. v. Superior Court (2015) 238 Cal. App. 4th 1209, 1226-1227.)
As discussed above, appellant’s offense was a misdemeanor. Accordingly, upon
resentencing, the juvenile court shall not impose the collection of biological samples
pursuant to Penal Code section 296.
III. The Juvenile Court Shall Clarify The Imposition Of A Firearm Prohibition.*
At the January 4, 2016, disposition hearing, the court ordered a firearm prohibition
pursuant to Penal Code sections 29800 and 29805. Appellant argues a firearm
prohibition was inappropriate based on his current offense, but he concedes his prior
violation of Penal Code section 417 would qualify. He notes a firearm prohibition for
juveniles exists in Penal Code section 29820, but argues that section is inapplicable
because the juvenile court did not use it.
Respondent argues the firearm prohibition is appropriate in the present petition
because of appellant’s prior offense. Respondent appears to primarily rely upon Penal
Code section 29820 in seeking imposition of a firearm prohibition.
* See footnote, ante, page 1.
6.
A. Background.
In July 2015 appellant was granted informal probation and ordered not to possess
weapons. Approximately one month later he violated probation and was remanded into
custody. He admitted violation of brandishing a deadly weapon (Pen. Code, § 417, subd.
(a)(1)). He was again ordered not to possess weapons. In September 2015 he was
remanded into custody after assaulting a student at school. He was placed on formal
probation and ordered to serve a juvenile hall commitment with credit for time served.
In November 2015 the present juvenile wardship petition was filed, which sought
a maximum aggregate term of confinement based on the previously sustained petition
pursuant to Penal Code section 417, subdivision (a). In December 2015 appellant
admitted violation of Penal Code section 487, subdivision (c).
B. Analysis.
As is relevant to this discussion, three statutes impose firearm prohibitions for
persons who have committed certain violations.
First, under Penal Code section 29800, it is illegal for any person who has been
convicted of a felony to own, purchase, receive, possess, or have custody or control of
any firearm. (Pen. Code, § 29800, subd. (a)(1).)
Second, Penal Code section 29805 imposes criminal liability to any person who
has been convicted of certain enumerated misdemeanors “and who, within 10 years of the
conviction, owns, purchases, receives, or has in possession or under custody or control,
any firearm .…” As is relevant here, the enumerated misdemeanors include Penal Code
sections 136.1 (witness intimidation); 240 (assault); and 417 (brandishing a deadly
weapon or firearm). (Pen. Code, § 29805.)
Finally, Penal Code section 29820 imposes a firearm prohibition against juvenile
offenders, who may not own, possess, control or have custody of any firearm until the
age of 30 if two requirements are established: (1) the person is alleged to have
committed, among other offenses, any offense enumerated in Penal Code section 29805;
7.
and (2) the person must subsequently be adjudged a ward of the juvenile court because
the person committed, among other possible offenses, any offense enumerated in Penal
Code section 29805. (Pen. Code, § 29820, subds. (a) & (b).)
Here, the firearm prohibition pursuant to Penal Code section 29800 was
inappropriate in this case because appellant did not commit a felony violation. Further,
the juvenile court never imposed a firearm prohibition pursuant to Penal Code section
29820. Regarding Penal Code section 29805, however, we cannot determine whether the
firearm prohibition was appropriate or not based on this sentencing record.
The present petition alleged appellant committed an offense enumerated in Penal
Code section 29805, i.e., witness intimidation pursuant to Penal Code section 136.1.
Ultimately, however, the disposition of the present petition occurred when appellant
admitted a violation of Penal Code section 487, subdivision (c). As discussed previously,
this was a misdemeanor violation. Penal Code section 487 is not one of the enumerated
misdemeanors appearing in Penal Code section 29805. As such, it was improper to
impose the firearm prohibition against appellant in this case based on his violation of
Penal Code section 487.
When the present petition was filed, an aggregate sentence was sought based upon
appellant’s previously sustained petition for brandishing a deadly weapon (Pen. Code,
§ 417, subd. (a)(1)). Penal Code section 417, subdivision (a)(1), is an enumerated
misdemeanor appearing in Penal Code section 29805. However, at the disposition
hearing, the juvenile court never stated on the record it was imposing an aggregate
sentence when ordering appellant to the Correctional Academy for 12 months. The
accompanying Recommended Findings And Orders is also silent regarding an aggregate
sentence.
Given the state of this record, it is impossible to determine if appellant’s sentence
was aggregated based on his prior violation or if the sentence was based solely on the
present violation of Penal Code section 487. Upon remand, the juvenile court shall
8.
clarify whether an aggregate sentence is imposed. In resentencing appellant, the court
shall articulate the basis, if any, for imposition of a firearm prohibition.
IV. The 30-Day Remedial Incarceration Violated Statutory Protections.
The court’s January 4, 2016, Recommended Findings And Orders states: “At any
time during the aftercare component the minor may be returned to the Correctional
Academy for a one time remediation of 30 days due to a violation of probation or
program rules.” Respondent concedes Welfare and Institutions Code section 777
precludes appellant’s removal from his home during the “aftercare” portion of the
program without complying with statutory notice and hearing requirements. We agree.
A. Background.
At the January 4, 2016, disposition hearing, appellant’s defense counsel objected
to this provision, contending it violated the notice requirements under the Welfare and
Institutions Code, it violated due process, and it permitted the probation officer to put
appellant into custody without any further review. The juvenile court disagreed, seeing
the provision as “a limit on the number of times that they can bring him back into the
aftercare program. Because the program is in [sic] this case would be a year program.
And six months are in and then six months are out in the aftercare program. And if
[appellant] violates during the aftercare program, they bring him back in for a portion of
that. In the past there was an unlimited amount of that and they just put a limitation on it
by a one-time remediation.” The court said it would follow this recommendation from
probation and invited appellant’s counsel to raise this issue on appeal.
The prosecutor suggested the procedure “was limited” and “an agreement entered
into ahead of time.” The court disagreed and stated: “They are not treating it as a new
violation of probation where they would file a new petition. They are just treating it as a
violation after Correctional Academy program which this Court has ordered for that
violation. Instead of completing the aftercare program at home, they have to do -- they
have to serve a minimum amount of 30 days.”
9.
Following argument from counsel, the court ordered appellant to the Correctional
Academy for 12 months, consisting of six months of confinement and six months of
aftercare under the supervision of the probation officer. The court informed appellant:
“At any time during the aftercare component you may be returned to the Correctional
Camp for a one-time remediation of 30 days due to a violation of probation or program
rules.”
B. This issue is appropriate to review on appeal.
Appellant notes this issue is moot as he will not have any confinement time left for
this condition to be exercised. However, he asserts this court should address this issue as
it is important to the fair and effective administration of justice in the field of juvenile
delinquency law. Respondent offers no objection.
We agree that this issue involves a justifiable controversy stemming from an
important procedural issue with court-wide impact. There is a likelihood of recurring
litigation involving this same issue. We agree that review of this issue is appropriate
under these circumstances to provide guidance to juvenile courts. (In re Jorge Q. (1997)
54 Cal. App. 4th 223, 229 (Jorge Q.) [unripe issue reviewable on appeal because a
justifiable controversy existed with a likelihood of recurring litigation].) We will address
the merits of this claim.
C. Appellant may not be removed from his home for an alleged violation
of probation absent a hearing.
It is the stated purpose of the juvenile court laws to provide protection and safety
to the public and to each minor under the juvenile court’s jurisdiction. (Welf. & Inst.
Code, § 202, subd. (a).) It is the goal “to preserve and strengthen the minor’s family ties
whenever possible, removing the minor from the custody of his or her parents only when
necessary for his or her welfare or for the safety and protection of the public.” (Ibid.)
When a minor is adjudged a ward of the court, the court is authorized to impose
and require any and all reasonable conditions it determines fitting and proper to obtain
10.
justice, and enhance the minor’s reformation and rehabilitation. (Welf. & Inst. Code,
§ 730, subds. (a) & (b).) “A juvenile court enjoys broad discretion to fashion conditions
of probation for the purpose of rehabilitation and may even impose a condition of
probation that would be unconstitutional or otherwise improper so long as it is tailored to
specifically meet the needs of the juvenile. [Citation.]” (In re Josh W. (1997) 55
Cal. App. 4th 1, 5.) “That discretion will not be disturbed in the absence of manifest
abuse. [Citation.]” (Id. at p. 5.)
If the probation officer determines a minor should be retained in custody, the
officer is required to proceed in accordance with Welfare and Institutions Code Article 16
(commencing with section 650) to cause the filing of a petition pursuant to Welfare and
Institutions Code section 656. (Welf. & Inst. Code, § 630, subd. (a).) If the minor is
alleged to be a person described in Welfare and Institutions Code section 601 or 602, the
minor must be served with a copy of the petition, receive notice of the time and place of
the detention hearing, and the minor’s parents or guardians must also receive notice if
their whereabouts can be determined by due diligence. (Welf. & Inst. Code, § 630, subd.
(a).) At the hearing, the minor has a privilege against self-incrimination, and the right to
confront and cross-examine any person examined by the court. (Id. at subd. (b).)
When a minor is detained pursuant to a probation violation, a detention hearing
must be conducted in accordance with Welfare and Institutions Code Article 15,
commencing with section 625. (Welf. & Inst. Code, § 777, subd. (d).) The minor must
be released unless the court finds both that the continuance in the home of the parent or
legal guardian is contrary to the child’s welfare and at least one of the following exists:
(1) the child violated a court order; (2) the child escaped from a court commitment;
(3) the child is likely to flee the court’s jurisdiction; (4) immediate and urgent necessity
exists for the child’s protection; or (5) it is reasonably necessary for the protection of the
person or another’s property. (Cal. Rules of Court, rule 5.760(c)(1)(A)–(E).) The
supplemental petition procedure is designed for situations where the minor is moved to a
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more restrictive placement because the original disposition has not been effective. (In re
Jorge Q., supra, 54 Cal.App.4th at p. 231.)
A juvenile court cannot lift an imposed stayed or suspended term of confinement
without meeting the requirements of Welfare and Institutions Code section 777. (In re
Jose T. (2010) 191 Cal. App. 4th 1142, 1147.) When evaluating the minor following the
filing of a petition pursuant to Welfare and Institutions Code section 777, the court must
make required findings that the previous disposition has not been effective regarding the
minor’s rehabilitation or protection. (In re Jose T., at p. 1147.) In order to commit the
minor to the Youth Authority, the court must be fully satisfied that the minor’s mental
and physical condition and qualifications render it probable the minor will benefit from
the commitment. (Ibid.; Welf. & Inst. Code, § 734.)
Here, the condition imposed upon appellant vested absolute discretion in the
probation officer to determine if and when a violation of probation occurred during the
aftercare program. This condition was not tailored to meet appellant’s specific needs at
the time of any future alleged violation. Moreover, because an alleged violation of
probation would have been at issue, the officer was required to proceed in accordance
with the notice and hearing requirements under Welfare and Institutions Code Article 16
(commencing with section 650). (Welf. & Inst. Code, § 630, subd. (a).) If and when
appellant was detained pursuant to a probation violation, a detention hearing was required
pursuant to Welfare and Institutions Code Article 15, commencing with section 625.
(Welf. & Inst. Code, § 777, subd. (d).)
The condition which the juvenile court imposed did not require a judicial finding
that appellant violated a condition of probation or that his continuance in the home was
contrary to his welfare. Appellant was not entitled to notice or an opportunity to be
heard. Such a condition does not comply with the statutory requirements of the Welfare
and Institutions Code. (Welf. & Inst. Code, §§ 630, subd. (a); 777, subd. (d).) It was
impermissible. Accordingly, this condition shall not be imposed upon resentencing.
12.
V. Appellant’s Sentence Was Erroneously Calculated.*
The parties agree, as do we, that appellant’s sentence is in error.
In August 2015, appellant admitted a violation of Penal Code section 417,
subdivision (a)(1). The maximum time for such a violation is six months. (Pen. Code,
§§ 19; 417, subd. (a)(1).) Appellant’s present violation of Penal Code section 487,
subdivision (c), also carries a maximum sentence of six months because it is deemed
petty theft. (Pen. Code, §§ 490; 490.2, subd. (a).) The present petition sought an
aggregated sentence based upon appellant’s previously sustained petition.
When sentencing a minor, the juvenile court may elect to aggregate the period of
physical confinement from previously sustained petitions adjudging the minor a ward of
the court. (Welf. & Inst. Code, § 726, subd. (d)(3).) The “maximum term of
imprisonment” is calculated from Penal Code section 1170.1, subdivision (a). (Welf. &
Inst. Code, § 726, subd. (d)(3).) Under the calculations in Penal Code section 1170.1, an
aggregate term of imprisonment involves “the sum of the ‘principal term’ (the longest
term imposed for any of the offenses) and ‘subordinate terms’ (one-third of the middle
term imposed for each other offense).” (In re Eric J. (1979) 25 Cal. 3d 522, 536, fn.
omitted.) Although the express language of Penal Code section 1170.1 only addresses
felonies, its calculations are used for misdemeanors committed by a minor. (In re Eric J.,
supra, 25 Cal.3d at p. 538.) As a result, “full, consecutive misdemeanor terms may not
be imposed in juvenile cases. [Citation.]” (In re Claude J. (1990) 217 Cal. App. 3d 760,
765.)
Here, the juvenile court imposed a 12-month commitment in the Correctional
Academy. Such a sentence was impermissible if based solely on appellant’s violation of
Penal Code section 487, subdivision (c), which was a petty theft under Penal Code
section 490.2. The sentence imposed also exceeded the maximum aggregate sentence
* See footnote, ante, page 1.
13.
possible because the second misdemeanor (the subordinate term) would have been one-
third of the term for a total aggregated sentence of eight months.
Accordingly, the sentence is vacated. Upon remand, the juvenile court shall
articulate whether the sentence is aggregated or not and resentence accordingly.
VI. The Penalty Under Government Code Section 70372 Is Stricken.
According to the Recommended Findings And Orders, the juvenile court imposed
a $150 “restitution fine” pursuant to Welfare and Institutions Code section 730.6, which
included a $50 “Facilities Assessment” pursuant to Government Code section 70372,
subdivision (a). We agree with the parties that the $50 Facilities Assessment should be
stricken.
Government Code section 70372 imposes a “state court construction penalty” that
is levied “upon every fine, penalty, or forfeiture imposed and collected by the courts for
all criminal offenses .…” (Gov. Code, § 70372, subd. (a)(1).) The statute expressly
states that this penalty does not apply to any restitution fine. (Id. at subd. (a)(2)(A).)
Here, based upon the wording of the Recommended Findings And Orders, it
appears the calculation of the $50 Facilities Assessment fee was based upon the
restitution fine. This was error because a construction penalty does not apply to any
restitution fine. (Gov. Code, § 70372, subd. (a)(2)(A).) Moreover, we hold this penalty
may not be imposed against a juvenile ward.
“Although confinement, fines, and fees imposed upon a ward of the juvenile court
may be penal in nature and premised upon a finding of criminal misconduct, juvenile
adjudications of wardship are not criminal convictions. [Citations.]” (Egar v. Superior
Court (2004) 120 Cal. App. 4th 1306, 1308.) Pursuant to Welfare and Institutions Code
section 203, “[a]n order adjudging a minor to be a ward of the juvenile court shall not be
deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile
court be deemed a criminal proceeding.”
14.
“ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s
intent so as to effectuate the law’s purpose.’ ” (People v. Simmons (2012) 210
Cal. App. 4th 778, 790.) We give a plain and commonsense meaning to the statutory
language, and we are to follow the plain meaning if it is clear. (Ibid.)
Here, the state court construction penalty under Government Code section 70372,
subdivision (a)(1), is collected for criminal offenses. Under Welfare and Institutions
Code section 203, however, juvenile adjudications of wardship are deemed neither
criminal convictions nor criminal proceedings. (In re Derrick B. (2006) 39 Cal. 4th 535,
540; People v. Dotson (1956) 46 Cal. 2d 891, 895 [juvenile proceedings are similar to
guardianship proceedings]; Rinaker v. Superior Court (1998) 62 Cal. App. 4th 155, 164
[juvenile proceeding is a civil action].) Under the plain language of these statutes, the
penalty pursuant to Government Code section 70372, subdivision (a)(1), is inapplicable
in an adjudication of wardship. At resentencing, the juvenile court shall not impose this
penalty.
DISPOSITION
The sentence is vacated. This matter is remanded to the juvenile court for
resentencing consistent with this opinion.
_____________________
MCCABE, J.†
WE CONCUR:
_____________________
HILL, PJ
_____________________
FRANSON, J.
† Judge of the Merced Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
15.