In re A.L.
Filed 9/19/13 In re A.L. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
In re A.L., a Person Coming
Under the Juvenile Court Law.
H038840
(Santa Clara
County
Super. Ct.
No. JV39127)
THE PEOPLE,
Plaintiff and
Respondent,
v.
A.L.,
Defendant and
Appellant.
A.L. was
adjudged a ward of the juvenile court after he admitted two counts of felony
vandalism valued at over $400 (Pen. Code, § 594, subds. (a), (b)(1)), a count
of felony carrying a concealed dirk or
dagger (former Pen. Code, § 12020, subd. (a)(4), now § 21310), a count of
possession of alcohol by a minor (Bus. & Prof. Code, § 25662), a count of
possession of burglar’s tools (Pen. Code, § 466), and two counts of misdemeanor
vandalism (id. § 594, subds. (a),
(b)(2)(A)). The juvenile court initially
placed A.L. on probation, subject to numerous terms and conditions. A Welfare and Institutions Code section 777
petition was filed, alleging that A.L. violated his probation.
contested dispositional hearing, the
juvenile court continued A.L. as a ward of the court and ordered him to remain
on probation and participate in the Pathways to Excellence, Achievement and
Knowledge (PEAK) program.
A.L.
appeals the order finding that he violated his probation, and the order
continuing him on probation with the requirement that he participate in the
PEAK program. A.L. argues that the
juvenile court abused its discretion by ordering his participation in the PEAK
program, that the juvenile court failed to affirmatively state on the record
whether some of his admitted offenses constituted felonies or misdemeanors, and
that two of his probation conditions require modification to include a
knowledge requirement. For the following
reasons, we modify the challenged probation conditions and remand to the
juvenile court for the limited purpose of declaring on the record whether
A.L.’s offenses were felonies or misdemeanors.
In all other respects, the juvenile court’s order is affirmed.
and Procedural Background
A.L.’s underlying
crimes arise from several incidents of vandalism that occurred in Sunnyvale
and San Jose. On separate occasions, A.L. was seen tagging
the word “Reso†on walls, a freeway sign, street signs, and newspaper
racks. After one incident, A.L. was searched
by officers after he was seen tagging a sound wall in Sunnyvale,
and was found to be in possession of a knife.
In addition to the acts of vandalism, A.L. was once seen stealing a soda
cup from a Subway restaurant. Officers
searched A.L. afterwards and found him in possession of beer and a
spring-loaded window punch that can be used to commit burglaries. A.L. admitted to consuming alcohol on a
regular basis.
The People
filed a petition pursuant to section 602 charging A.L. with numerous offenses. On June
11, 2012, A.L. admitted two counts of felony vandalism valued at
over $400 (Pen. Code, § 594, subds. (a), (b)(1)), a count of felony carrying a
concealed dirk or dagger (former Pen. Code, § 12020, subd. (a)(4)), a count of
possession of alcohol by a minor (Bus. & Prof. Code, § 25662), a count of
possession of burglar’s tools (Pen. Code, § 466), and two counts of misdemeanor
vandalism (id. § 594, subds. (a),
(b)(2)(A)). The juvenile court adjudged
A.L. a ward of the court and placed him on probation subject to numerous terms
and conditions, including that he participate in the Community Release Program
(CRP). A.L. was later upgraded to the
electronic monitoring program (EMP) after failing to comply with the requirements
of the CRP.
On August 24, 2012, the probation
department filed a petition pursuant to section 777 alleging that A.L. had
violated his probation. A.L. admitted
the violations. The juvenile court then
ordered that A.L. continue on probation as a ward of the court, and ordered him
to attend the PEAK program.
name="_ftnref2" title="">[2] All of the juvenile court’s prior orders,
including the terms and conditions of probation, were to remain in effect. A.L. appealed.
A.L. raises three main
arguments on appeal: (1) the juvenile
court abused its discretion in ordering him to attend the PEAK program, (2) the
juvenile court failed to affirmatively state on the record whether several of
his offenses were misdemeanors or felonies, and (3) two of his probation
conditions lack a knowledge requirement.
1.
The
Juvenile Court did not Abuse its Discretion in Ordering A.L. Attend the PEAK
Program
A.L. claims the juvenile court
abused its discretion in ordering him to attend the PEAK program, as opposed to
intensive outpatient treatment. A.L.
argues that an intensive outpatient treatment program is a less restrictive and
more appropriate placement, and that therefore the juvenile court’s decision to
order his participation in the PEAK program was not in his best interest.
“A juvenile
court’s commitment order may be reversed on appeal only upon a showing the
court abused its discretion.
[Citation.] ‘ “We must 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.†’ †(In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) “ ‘In determining whether there was
substantial evidence to support the commitment, we must examine the record
presented at the disposition hearing in light of the purposes of the Juvenile
Court Law.’ †(In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.)
Section 202, subdivision (a), provides that the
purpose of the juvenile court law “is to provide for the protection and safety
of the public and each minor under the jurisdiction of the juvenile court and
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. If removal of a minor is determined by the
juvenile court to be necessary, reunification of the minor with his or her
family shall be a primary objective. If
the minor is removed from his or her own family, it is the purpose of this
chapter to secure for the minor custody, care, and discipline as nearly as
possible equivalent to that which should have been given by his or her
parents. This chapter shall be liberally
construed to carry out these purposes.â€
“Under
section 202, juvenile proceedings are primarily ‘rehabilitative’ [citation],
and punishment in the form of ‘retribution’ is disallowed [citation]. Within these bounds, the court has broad
discretion to choose probation and/or various forms of custodial confinement in
order to hold juveniles accountable for their behavior, and to protect the
public. [Citation.] . . . Given these aims, and absent any
contrary provision, juvenile placements need not follow any particular order
under section 602 and section 777, including from the least to the most
restrictive. [Citations.] Nor does the court necessarily abuse its
discretion by ordering the most restrictive placement before other options have
been tried.†(In re Eddie M. (2003) 31 Cal.4th 480, 507.)
Section
725.5 directs the juvenile court in dispositional proceedings to “consider, in
addition to other relevant and material evidence, (1) the age of the minor, (2)
the circumstances and gravity of the offense committed by the minor, and (3)
the minor’s previous delinquent history.â€
“[T]he juvenile court must consider each individual case on its merits
without a mechanized approach based solely on the seriousness of the offense
and must evaluate the appropriateness of the available lesser alternative
dispositions in light of the purposes of the Juvenile Court Law.†(In re Michael R. (1977) 73 Cal.App.3d 327,
340.) While not the sole consideration (In
re Tyrone O. (1989) 209
Cal.App.3d 145, 152), the “gravity of the offense is by statute a proper
consideration at disposition.†(In re
Robert H., supra, 96
Cal.App.4th at p. 1330.)
In
the present case, a psychological assessment ordered by the court while A.L.
was detained in juvenile hall detailed that A.L. had a history of alcohol and
cannabis abuse, and had problems focusing.
The evaluator conducting the assessment recommended that A.L. undergo
drug and alcohol counseling, and noted that A.L. was able to access alcohol
even with ankle monitoring. The
assessment therefore concluded that out of home placement for drug and alcohol
treatment may be necessary if A.L. could not be monitored at all times at
home. Additionally, the assessment noted
that A.L.’s mother worked full time and his school was only a half-day, leaving
him without supervision for at least part of the day.
In
the probation officer’s supplemental report prepared in September 2012, the
probation officer noted that A.L. elected not to be screened for participation
in either the “JTC Program†or the “CITA†program. The supplemental report went on to recommend that
A.L. be returned home on probation, but not on additional electronic monitoring
because it was “not effective in the past in curtailing his alcohol abuse and
delinquent behavior in general.†The
report recommended that A.L. participate in intensive substance abuse
counseling. Both the People and A.L.
were in agreement with respect to the recommendation made by probation to
continue A.L. on home probation with the requirement that he participate in
substance abuse counseling.
During
the dispositional hearing, the court asked the testifying probation officer why
the probation department made “less restrictive recommendations†in A.L.’s case
given his previous history of consuming alcohol even on electronic
monitoring. The probation officer
answered that “with respect to APA, the program no longer exists,†and that the
department was now utilizing “PEAK and/or the EDGE,†programs that the
probation officer characterized as “geared toward minors who have been before
the court multiple times for either violations of probations or new 602 petitions.†Therefore, the probation officer believed
that the counseling provided in these programs would potentially address issues
that A.L. might not struggle with since A.L.’s main issue was with his
substance abuse. However, the probation
officer stated that both the PEAK and EDGE programs had substance abuse
counseling on campus, and that the PEAK program starts at “9:00 a.m., possibly
8:00†and runs until around 5:00 p.m.
The probation officer stated that it did not “disagree that that
structure [of the program] might be beneficial,†given that A.L. would be
otherwise unsupervised at home in the afternoons.
Ultimately,
the juvenile court concluded that it believed participation in the PEAK program
would be in A.L.’s best interests, stating that: “I wanted to look at the PEAK program because
it’s designed for somebody like you. It
has the FLY program which is a mentor program, which would help you with the
lack of father figure [sic]. It has on-site alcohol substance abuse
treatment, counseling services, and mental health services. Everything that you need. And your mom just has to take you to school,
and she can pick you up after school because you get out at 5:00.â€
A.L.
argues that the juvenile court’s order that he participate in the PEAK program
was an abuse of discretion because it was unsupported by the record, and
because the program would not be in his best interest. We find this argument to be flawed. Preliminarily, we note that it is clear from
the record that the probation department and the People both agreed that
outpatient services would be adequate.
Additionally, the record does indicate that outpatient services may have
benefited A.L., as noted by the probation officer and A.L.’s attorney.
Nonetheless,
contrary to A.L.’s claims, evidence supported the court’s decision to order
participation in the PEAK program. As
the court reasoned, the court had already placed A.L. on less restrictive
programs, such as the CRP. A.L. was
upgraded from the CRP to the EMP after failing to comply with the requirements
of the CRP. A.L. was not successful on
either of these programs, and repeatedly used both alcohol and marijuana while
on CRP and EMP. The psychological report
stated that A.L. still managed to get alcohol while on ankle monitoring. It was also clear from the probation report,
the testimony presented, and the other materials before the court that A.L.’s
school was only a half-day and his mother worked full time, leaving him
vulnerable in the afternoons as he would be without supervision. The probation officer testified that the
structure of the PEAK program may be beneficial to A.L. Furthermore, the court stated its belief that
the PEAK program’s services, which included mental health services, would be
beneficial to A.L.
The
court was not required to accept the probation department’s less restrictive
recommendation regarding A.L.’s disposition, even with the People’s
agreement. Nor was it required to order
the least restrictive placement, contrary to A.L.’s claims. (In re Eddie M., supra, 31 Cal.4th
at p. 507.) In fact, the record
indicates that the court did consider less restrictive placements, such as the
CRP and the EMP, but determined that these alternatives would be ineffective as
A.L. already failed them in the past.
Since
we find that substantial evidence supports the court’s decision that A.L.
participate in the PEAK program, we will not disturb this determination on
appeal. (In re Robert H., supra,
96 Cal.App.4th at pp. 1329-1330.) We
find no abuse of discretion.
2.
Remand is
Necessary Under Section 702
Next, A.L.
claims that remand is necessary under section 702 for the trial court to make
an express finding about whether his counts of felony vandalism (Pen. Code, §
594, subds. (a), (b)(1)) and his count of possession of a dirk or dagger
(former Pen. Code, § 12020, subd. (a)(4)) are felonies or misdemeanors, as
described in In re Manzy W.
Preliminarily,
the People argue that A.L. waived this argument because he never appealed the
juvenile court’s alleged omission when he was originally placed on probation
after admitting the offenses as felonies in July 2012. A.L. argues that his claim is not forfeited
because the trial court’s failure to make affirmative findings is tantamount to
an unauthorized sentence that may be raised on appeal at any time. We agree that the claim is not forfeited for
A.L.’s lack of objection below, and therefore proceed to the merits of his
claim. (In re Ramon M. (2009) 178
Cal.App.4th 665, 675-676.)
Section 702
provides that in a juvenile proceeding, if a minor “is found to have committed
an offense which would in the case of an adult be punishable alternatively as a
felony or a misdemeanor, the court shall declare the offense to be a
misdemeanor or felony.†The importance
of an explicit declaration under section 702 was explained in our Supreme
Court’s decision in Manzy W.,
whether an offense is a misdemeanor or a felony “facilitat[es] the
determination of the limits on any present or future commitment to physical
confinement for a so-called ‘wobbler’ offense,†(id. at p. 1206) and also “serves the purpose of ensuring that the
juvenile court is aware of, and actually exercises, its discretion under
Welfare and Institutions Code section 702.â€
(Id. at p. 1207.)
However,
remand is not automatic in every case where the court fails to make a formal
declaration pursuant to section 702. If
the record as a whole shows that the court was aware of and exercised its
discretion to determine the felony or misdemeanor nature of an offense, “remand
would be merely redundant†and “failure to comply with the statute would amount
to harmless error.†(
In the present
case, the People alleged in their initial juvenile wardship petition that A.L.
committed the crime of vandalism in violation of Penal Code section 594,
subdivision (b)(1), which the petition stated was a felony. Similarly, the petition alleged that A.L.
also committed the crime of carrying a concealed dirk or dagger, in violation
of former Penal Code section 12020, subdivision (a)(4), which the petition also
stated was a felony. In the minute order
after the dispositional hearing during which A.L. admitted the probation
violation on July 2, 2012, the court completed and signed a statement that
said: “The court previously sustained
the following counts. Any charges which may
be considered a misdemeanor or a felony for which the court has not previously
specified the level of offense are now determined to be as follows: Felony,†with a checkmark in the box under
the “Felony†column, and no checkmark under the “Misdemeanor†column for the
three challenged counts. The statement
also included a listing of the non-“wobbler†offenses, with checkmarks under
the “Misdemeanor†column. Furthermore,
during the change of plea hearing on June 11, 2012, the court asked if A.L. was
admitting the allegations that he “violated Penal Code section 594,
[subdivisions (a), (b)(1)], a felony, for vandalism†and that he “violated
Penal Code section 12020, [subdivision] (a)(4), a felony, carrying a dirk or
dagger concealed on a person.â€
The court’s
intent to treat the challenged counts as felonies is clear from the face of the
record. However, minute orders are
insufficient “to show that the court made the decision and finding required by
section 702.†(In re Ricky H. (1981) 30 Cal.3d 176, 191; In re Ramon M., supra,
178 Cal.App.4th at pp. 675-676.)
Furthermore, none of the court’s oral statements during the relevant
hearings demonstrated that it considered
whether the counts would be treated as misdemeanors or felonies, and the court
did not expressly declare its determination
in this regard. (Manzy W., supra, 14 Cal.4th
at p. 1209.) The record reflects that
the juvenile court was aware that A.L. was charged with and admitted to
felonies. However, the reiteration of
the court that the offenses were “felonies†as charged in the section 602
petition is not indicative that the juvenile court was aware of its discretion
to treat the offenses in question as felonies instead of misdemeanors.
Lastly, the
People argue that the decision in Manzy W.
negotiated disposition. However, we find
this contention to be without merit. The
minor in Manzy W., like A.L. here,
also admitted allegations in the petition filed against him as true in return
for dismissal of other allegations. (
Accordingly,
we find that remand is necessary for the limited purpose of the court making an
express declaration as to whether the offenses will be treated as felonies or
misdemeanors.
3.
Challenged
Probation Conditions Must be Modified
Lastly,
A.L. argues that the probation conditions prohibiting his possession of drug
paraphernalia and prohibiting his possession or use of graffiti-related
materials are unconstitutionally vague and must be modified to include a
knowledge requirement. The People concede
this issue, and we find that the concession is appropriate. Indeed, the California Supreme Court has
concluded that in many cases “an explicit knowledge
constitutional.†(In re Sheena K. (2007) 40 Cal.4th 875, 892.) We therefore modify both conditions to
include an explicit knowledge requirement.
The
juvenile court’s order is affirmed, and the matter is remanded with directions
for the court to state on the record its intent to treat the offenses noted
above as felonies or misdemeanors in compliance with Welfare and Institutions
Code section 702. We further order
probation condition Nos. 8 and 15 modified as follows:
Condition
No. 8: “That said minor not knowingly be
in possession of any drug paraphernalia.â€
Condition
No. 15: “That said minor not knowingly
use or possess any graffiti-related materials or knowingly engage in any
illegal graffiti-related activity.â€
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Further unspecified statutory references are to the Welfare and Institutions
Code.
the September 24, 2012 hearing, the juvenile court initially ordered A.L.
attend the PEAK program, but suspended its order for 60 days. After researching the issue, the juvenile
court later stated its belief that it could not suspend A.L.’s participation in
the PEAK program as originally intended.
The juvenile court therefore ordered A.L. to immediately attend the PEAK
program on September 25, 2012.
