In re E.L.
Filed
7/29/13 In re E.L. CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In
re E.L., a Person Coming Under the Juvenile Court Law.
THE
PEOPLE,
Plaintiff and
Respondent,
v.
E.L.,
Defendant and
Appellant.
C068217
(Super. Ct. No. JV125391)
Delinquent minor E.L. (minor)
appeals from a judgment committing him to the Division of Juvenile Justice
(DJJ) (the successor to the California
Youth Authority or CYA, see 3 Witkin & Epstein, Cal. Crim. Law (3d ed.
2000 & 2011 supp.) Punishment, § 8).
He contends a DJJ commitment was statutorily prohibited because his
“most recent offense alleged in any petition†was not a DJJ-eligible offense
(Welf. & Inst. Code,
name="_ftnref1" title="">[1] § 733, subd. (c)), the juvenile court
improperly required him to register as an arsonist, and the juvenile court
abused its discretion in committing minor to DJJ absent evidence he would
benefit therefrom. We disagree and shall
affirm.
BACKGROUND
Because a key aim of minor’s appeal
is to demonstrate that the DJJ commitment was inappropriate, we recite in some
detail minor’s lengthy and continuous record of criminality and lack of
compliance with court and probation orders, as well as the juvenile court’s
measured and increasingly onerous consequences, which failed to reform minor’s
delinquent and dangerous behavior.
On May 24, 2007, the People filed a
delinquency petition alleging minor, then age 13, had committed a robbery on or
about December 19, 2006. An intake
report stated minor had admitted to an officer that he punched a fellow student
and took his bicycle, and minor’s father reported that minor was a runaway, was
a gang “wannabe†and “has recently become infatuated with playing with fire.â€
Minor failed to appear, and when he was picked up on a warrant June 8,
2007, he stated he had been living on the streets. On July 11, 2007, minor (then 14) admitted
the robbery and was placed on court probation for six months.
On July 23, 2007, the probation
department filed a five-count probation violation petition (VOP), alleging
minor left home without permission of his father or the probation officer, failed
to keep the officer informed of his whereabouts, failed to go to counseling,
and failed to attend community service.
On July 24, 2007, the People filed a
new delinquency petition, alleging
minor had shoplifted from a market two days before. Minor told an officer he ran away because his
father was abusive; minor also admitted using marijuana daily, alcohol “on
occasion,†and cocaine “at least†three times, and associating with gang
members.
On August 31, 2007, minor admitted
the first count in the VOP, the remaining counts were dismissed, and the new
petition was dismissed with a Harvey
waiver (see People v. Harvey (1979)
25 Cal.3d 754).
On September 14, 2007, minor was
made a ward and was committed to the custody of the probation officer “for
suitable Level ‘A’ placement[.]†On
October 1, 2007, the probation officer reported that minor had not completed an
assessment “due to repetitious acts of misconduct.â€
On October 16, 2007, the probation
officer reported that assessment efforts continued, but that, “During the past
three months, 53 incident reports have been written in regards to minor’s
negative and suicidal behavior.â€
However, later that day, minor was placed at “the on-grounds Morgan
Alternative Center School[.]†On
November 2, 2007, the probation officer reported that minor absconded from the
school on October 30, 2007, returned on November 1, 2007, and admitted drinking
alcohol, whereupon the group home excluded him.
On December 3, 2007, minor was
placed at the Paradise Oaks group home.
He absconded on December 8, 2007, but, with his father’s help, minor
turned himself in on December 16, 2007.
Before a new placement was found,
the probation officer filed another VOP on January 7, 2008, alleging minor
failed to participate in family counseling and disobeyed officers by engaging
in physical altercations or threats against staff. On January 16, 2008, minor admitted the
first count of the pending VOP, and the other count was dismissed. Minor was placed at a group home in Fresno,
from which he promptly absconded, only to return on February 19, 2008,
brandishing a .357 Magnum revolver.
On February 25, 2008, the People
filed a new delinquency petition in Fresno County, alleging minor carried a
switchblade, carried a concealed firearm, and possessed ammunition. On March 5, 2008, minor admitted the
switchblade charge and the other charges were dismissed.
The case was transferred to Sacramento County.
On March 10, 2008, the probation officer filed a four-count
VOP, alleging minor left court-ordered placement without the permission of his
parent on two separate nights, and failed to participate in anger management or
family counseling, as ordered.
Before a disposition hearing was held on the Fresno County
charges or the pending VOP, the People filed a new delinquency petition on
April 2, 2008, alleging that on March 28, 2008, minor had battered custodial
staff “by gassing with saliva, a peace officer.†A probation report stated that when staff
gave directions to the minor, he replied, “Fuck your program, I’m doing my own
program†and then spat in an officer’s face, and while being restrained he
said, “Fuck you, I’m gonna fucking kill you, bitch ass!â€
On April 14, 2008, minor admitted the felony battery charge,
the pending VOP was dismissed, and minor was committed to the Sacramento Boys
Ranch.
The probation officer filed a five-count VOP on June 27,
2008, alleging minor disobeyed Boys Ranch staff directives three times and
twice committed suspension-level misconduct at school. Relevant reports detailed the charged
violations, which included threatening a teacher, and also stated minor had
possessed contraband twice, and had committed other non-charged rule violations,
and recommended minor be placed in “the Youth Detention Facility.â€
On July 8, 2008 (the day after he turned 15), minor admitted
one count in the VOP and the other counts were dismissed. On August 13, 2008, after minor was rejected
by two other programs, the juvenile court, with minor’s acquiescence, committed
him to “Level B†placement at the “Rites of Passage†(ROP) program, with an
interim stay at juvenile hall. A later
report recommended minor be returned to “Level A†placement, but on September 10,
2008, the juvenile court confirmed its earlier order committing minor to ROP in
Nevada.
During the administrative delay required for transferring
minor outside the state,
name="_ftnref4" title="">[4] the probation officer reported his
adjustment was poor; he had “many incidents†of disrespect, disobedience and
“gang agitation†and failed to demonstrate the “maturity he will need to be
successful at ROP.†However, he was
placed in Nevada on November 20, 2008.
A six-month review filed on March 5, 2009, stated minor’s
adjustment to ROP had been poor for the first several weeks, but had “improved
significantly.†However, on June 2,
2009, despite having been prescribed Seroquel and Depakote to help control his
behavior, minor tried to kill himself, and he was terminated. In a report dated July 13, 2009, the
probation department recommended minor be returned to the care of his father
“with Multi-Systemic Therapy at River Oak.
He would do well in a mainstream High School with an opportunity to
participate in sports.â€
On July 16, 2009 (shortly after minor turned 16) the juvenile
court ordered him returned to his father, under the supervision of the
probation department.
The People filed yet another delinquency petition on
September 22, 2009, alleging minor committed a carjacking on September 19,
2009. The probation officer filed a new
VOP that same day alleging minor remained away from home overnight without
parental or probation officer permission on September 14, 2009, and noting he
had been cited for petty theft on July 19, 2009. An intake report stated minor reported he ran
away from home because he was not getting along with his father and stepmother,
and claimed to be a gang member, and the report stated the carjacking was
committed with two other people, by using a toy handgun. The People amended the petition on October 7,
2009, to add robbery and vehicle theft charges arising from the carjacking.
A report recommended minor be placed at “Woodward Academyâ€
where “his conduct behaviors as well as his mental health issues can be
addressed.†However, the Interagency
Management Authorization Committee (IMAC) which made that recommendation also
wanted “minor to understand their options would be limited if he fails the
program. If minor returns to court and
IMAC, they may have no other option than a recommendation of a commitment toâ€
DJJ.
On December 1, 2009, minor admitted the robbery and the
other charges were dismissed, as was the pending VOP.
On December 8, 2009, minor was committed to a Level B placement at the
Woodward Academy, in Iowa, where, after administrative delay, he was placed on
March 23, 2010. At the hearing, the
People emphasized that the IMAC report stated that if the Iowa commitment
failed, the next likely placement would be at DJJ.
The juvenile court reviewed minor’s “fairly significant
history†and the fact that “we tried him at every level,†including a prior
Level B placement, group homes, Boys Ranch and Level A placement. The court noted the current offense was very
serious and the only feasible choices, from a public safety standpoint, were
Level B placement or DJJ, and if minor failed this placement, DJJ was next, but
the court was willing to try Woodward Academy.
At the end of the hearing, the trial court reiterated “this is kind of
our last shot with E. short of the Youth Authority.â€
After a rocky start, the juvenile court’s optimism appeared
to have been well founded. A review
report dated June 4, 2010, stated that although minor’s behavior had been
“poor†while he awaited placement, minor had adjusted well to the Woodward
Academy, and on June 7, 2010, the court continued his placement there. Minor then “graduated†from Woodward Academy
and was returned to his father on “an extended home pass†on September 24, 2010
(aged 17).
title="">[6]
Unfortunately, thereafter minor reportedly disobeyed
parental and school rules, did not attend school, associated with gang members,
and possessed drug paraphernalia and tobacco.
A probation officer searched minor’s cell phone on October 27, 2010, and
among other incriminating items found a video of a fire, which minor claimed he
filmed while walking home with a friend, and did not report because “his friend
dialed 911[.]†Minor was under
investigation for arson based on that video clip. Based on his record, the probation department
recommended a DJJ commitment.
On November 9, 2010, the probation department filed a
12-count VOP and the People filed a two-count VOP, alleging two property arsons
(Pen. Code, § 451, subd. (d)) committed on October 17, 2010.
A probation report stated possible facilities had rejected
minor, some based on his “fire starting†issues, others due to prior program
failures or his suicidal history.
A contested hearing on the two VOPs began on January 27,
2011. The juvenile court found true the
two arson counts in the People’s VOP petition, and eight of the counts in the
probation department’s VOP petition.
Because minor does not challenge the sufficiency of the evidence
regarding the sustained violations, we need not recite the evidence in detail. As for the arson counts, it is enough to say
that his probation officer found a video of a fire on minor’s cell phone, and
minor made incriminating statements about lighting two brush fires, including
admissions to a fire investigator. As
for the counts in the probation department’s VOP, there was evidence showing
minor remained away from home without permission from probation, missed school,
drove unlawfully, possessed tobacco, and displayed gang items on his phone and
MySpace page.
A predisposition report recommended a DJJ commitment
including an arsonist registration condition.
The People filed a memorandum seeking a DJJ commitment in part to
protect the public, inasmuch as lesser placements failed to reform minor’s
criminality. Minor’s counsel sought
release of minor to his father, because a DJJ commitment would be unduly
punitive, and proposed conditions including minor’s attendance at “Firesetter’s
Academy†to teach him about the danger of setting fires.
At an evidentiary disposition hearing on March 17, 2011,
minor elicited testimony about the proposed anti-arson program, and about an
anti-gang mentoring program. The father
testified he believed minor had made “dramatic changes†and asked “the Court
not to be predetermined to send him away.â€
Minor testified he had passed his GED tests and had finished a course in
life and career planning through American River College. Through the help of a religious mentor, he
was on “a positive path†and had improved his behavior during incarceration. He had a 19-month old child and wanted to
show his fiancée “the man I’m becoming.â€
The juvenile court committed minor to DJJ for a maximum
period of five years, with substantial credits for time already served, and in
part ordered arson registration. Minor
timely filed this appeal.
DISCUSSION
I
Propriety
of DJJ Commitment
Minor contends section 733,
subdivision (c) barred his commitment to DJJ.
We disagree.
Section 733, stated in the negative,
provides in part that a ward shall not be committed to DJJ if, inter alia, “(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[.]â€
(Emphasis added.)
Robbery is listed in section 707,
subdivision (b), but property arson (Pen. Code, § 451, subd. (d)) is not.
Minor, acknowledging substantial
contrary authority, contends he falls within this exclusion from DJJ, because
“the most recent offense†alleged in the probation
violation petition was arson. We reject
this interpretation.
A number of cases have held that the
petition referred to in section 733 is a delinquency petition filed under
section 602, not a probation violation petition under section 777, which is in
reality a notice of violation. (
(2010) 185 Cal.App.4th 278, 285-288; In
re M.B. (2009) 174 Cal.App.4th 1472, 1475-1477; In re J.L. (2008) 168 Cal.App.4th 43, 57-61.) We agree with those cases.
More importantly, in a decision
filed after briefing in this case was complete, the California Supreme Court
endorsed those cases. (
400, 404-405, 410-411 (Greg F.).) In one passage the court stated, “Because
section 733(c)’s commitment limitation depends on the nature of “the most
recent offense alleged in any petitionâ€
(italics added), the statute does not bar DJF commitments imposed for probation
violations on qualifying offenses.
[Citations.] When the voters
enacted Proposition 21 in 2000, they replaced the supplemental petition
procedure formerly used under section 777 with a notice provision. [Citation.]
Thus, a probation violation procedure is initiated under section 777 by
the filing of a notice, not a
petition.†(Greg. F., supra, 55
Cal.4th at pp. 404-405.) This passage
disposes of minor’s contention.
II
Registration
The
probation department recommended that minor register as an arsonist, and the
juvenile court so ordered. On appeal,
minor contends there is no authorization for this order, because he was not
was merely found to have violated
probation by committing arson. We
are not persuaded.
name="_ftnref9" title="">[9]
The
relevant statutory provision, Penal Code section 457.1, subdivision (b)(3),
provides as follows:
“Any person who, having committed the
offense of arson or attempted arson, and after having been adjudicated a ward
of the juvenile court on or after January 1, 1993, is discharged or paroled
from the Department of the Youth Authority shall be required to register, in
accordance with the provisions of this section, until that person attains the
age of 25 years, or until the person has his or her records sealed . . . ,
whichever comes first.â€
The statute
applies, inter alia, to any person who has “committed the offense of arsonâ€
juvenile court on or after January 1, 1993[.]â€
(Pen. Code, § 457.1, subd. (b)(3).)
There is no requirement in this section that the ward be “adjudicatedâ€
to have committed the arson, that is, suffered an adverse finding upon a new
delinquency petition, rather, the statute requires that the person be found to
have “committed†arson. The juvenile
court found beyond a reasonable doubt that minor committed arson when it
sustained the VOP so alleging. (See
alleging criminal conduct must still be proven beyond a reasonable doubt, but
VOP alleging noncriminal conduct may be proven by a preponderance of the
evidence].)
This
statute stands in contrast to the sex offender registration statute in
613 (Bernardino S.). The relevant statute there--former Penal Code
section 290, subdivision (d)(1))--required registration of wards discharged
“after having been adjudicated a ward of the court . . . because of the commission or attempted commission of the following
offenses . . . .†(Emphasis
added.) (See Stats. 1985, ch. 1474, § 1,
pp. 5404-5405, quoted in Bernardino S.,
supra, 4 Cal.App.4th at p. 619, fn.
3.) There is no similar linkage in Penal
Code section 457.1 between the reason
for the wardship and the offense triggering registration.
Minor’s
observation that, post-Proposition 21, a section 777 VOP petition may be based
on noncriminal conduct adjudicated by the preponderance-of-the-evidence
standard (see John L. v. Superior
Court (2004) 33 Cal.4th 158, 179-180; Eddie
M., supra, 31 Cal.4th 440) is
unpersuasive, because the VOP in this
case did allege criminal conduct, two property arsons, and the juvenile
court sustained that VOP based on the beyond-a-reasonable-doubt standard.
Also
unpersuasive is minor’s reference to the fact that our Supreme Court
registration requirement could be triggered by a noncriminal VOP. (
the arson allegation was proven by means of a criminal VOP.
Finally,
contrary to minor’s view we find no “linguistic gamesmanship†in concluding (in
Part I, ante) that arson as alleged
in a VOP does not qualify as the “the most recent offense alleged in any
petition†under section 733, subdivision (c), and concluding arson alleged in a
VOP does qualify for purposes of
applying Penal Code section 457.1. The
determinations hinge on different statutes with different language aimed at
different objectives.
Accordingly,
we uphold the arson registration order.
In doing so, we observe that the juvenile commitment order does not
reflect the arson registration requirement imposed by the juvenile court. A criminal abstract of judgment must fully and
accurately capture all components of a criminal defendant’s sentence. (See People
v. Mitchell (2001) 26 Cal.4th 181, 185; People
v. Zackery (2007) 147 Cal.App.4th 380, 385-389.) So should a juvenile commitment order. Accordingly, we shall direct the trial court
to correct the commitment order.
III
Abuse
of Discretion in DJJ Commitment
As
emphasized by our Supreme Court, punishment of delinquents for the purpose of
“retribution†is prohibited. (
496.) However, “Minors under the
jurisdiction of the juvenile court as a consequence of delinquent conduct
shall, in conformity with the interests of public safety and protection,
receive care, treatment, and guidance that is consistent with their best
interest, that holds them accountable for their behavior, and that is
appropriate for their circumstances.
consistent with the rehabilitative objectives of this chapter.†(§ 202, subd. (b), emphasis added.)
Section 734
provides: “No ward of the juvenile court
shall be committed to [DJJ] unless the judge of the court 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 [DJJ].â€
“When
determining the appropriate disposition in a delinquency proceeding, the juvenile
courts are required to consider ‘(1) the age of the minor, (2) the
circumstances and gravity of the offense committed by the minor, and (3)
minor’s previous delinquent history.’
[Citations.] Additionally, ‘there
must be evidence in the record demonstrating both a probable benefit to minor
by a [DJJ] commitment and the inappropriateness or ineffectiveness of less
restrictive alternatives.’
[Citation.] A juvenile court’s
commitment order may be reversed on appeal only upon a showing the court abused
its discretion.†(In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485 (
In this
case, the juvenile court ordered every applicable less restrictive placement
for minor at one time or another, but minor repeatedly absconded or violated placement
rules. The juvenile court could find
minor would probably benefit from a DJJ placement in part because its secure
facilities would eliminate minor’s ability to abscond. (See Jonathan
T., supra, 166 Cal.App.4th at p. 485 [minor with history of running away
needed a closed setting]; In re Tyrone O.
(1989) 209 Cal.App.3d 145, 153 [repeated escape attempts and placement failures
supported CYA commitment]; In re Martin L.
(1986) 187 Cal.App.3d 534, 544 [minor ran away from two prior placements, was
rejected by others, and had long record, CYA commitment upheld].)
Much of
minor’s briefing is an invitation to this court to reweigh the evidence and the
factors considered by the juvenile court.
But minor’s record, recited at length earlier, reflects multiple
sustained delinquency petitions, multiple sustained VOPs, multiple absconds,
and repeated defiance of lawful orders and authority figures. Because nothing else the juvenile court tried
worked, nothing other than a DJJ commitment was practical. In such circumstances, we find no abuse of
discretion.
DISPOSITION
The
judgment is affirmed. We direct the
juvenile court to prepare and forward to DJJ a corrected juvenile commitment
order consistent with this opinion.
DUARTE , J.
We concur:
RAYE , P. J.
HULL , J.
name="_ftn1" title="">[1] Further
undesignated statutory references are to the Welfare and Institutions code.
name="_ftn2" title="">[2] This
early fire-starting reference was apparently disregarded, because the record
does not show any arson counseling was ordered for minor then, and it is not
repeated in later summaries of the father’s statements about minor.
