In
re Emmanuel D.
Filed
3/2/12 In re Emmanuel D. CA5
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In
re EMMANUEL D., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
EMMANUEL D.,
Defendant and Appellant.
F062372
(Super. Ct. No. JJD062397)
O P I N I O N
THE COURT
APPEAL from
orders of the Superior Court of
County. Joseph A. Kalashian, Judge.
Linda K.
Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Emmanuel D.
appeals from orders of the juvenile court finding true an allegation that he
performed a lewd or lascivious act on a child under the age of 14 years (Pen.
Code, § 288, subd. (a)) and later committing him to the Department of
Juvenile Facilities (DJF)
name="_ftnref2" title="">[1] after he had multiple violations of
probation. Emmanuel argues he should be
allowed to withdraw his plea. We
disagree. Emmanuel further asserts the
juvenile court failed to determine whether he had a valid Individual Education
Plan (IEP) and that his custody credits were miscalculated. We agree.
Emmanuel also challenges his commitment to DJF. Because Emmanuel does not have a prior
adjudication for an offense set forth in Welfare and Institutions Code section
707, subdivision (b),
name="_ftnref3" title="">[2] we are compelled by California Supreme Court’s
recent decision of In re C.H. (2011)
53 Cal.4th 94 (C.H.), to reverse the
juvenile court’s commitment order to DJF.
FACTS AND PROCEEDINGS
On October 24, 2007, Emmanuel
admitted an allegation that he committed misdemeanor assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)). On February 21, 2008, Emmanuel admitted an
allegation that he committed a lewd and lascivious act on a child under 14
years of age (Pen. Code, § 288, subd. (a)).
committed substantial sexual contact with a victim under the age of 14 years
within the meaning of Penal Code section 1203.066, subdivision (a)(8).
eligible for deferred entry of judgment (DEJ), he would be allowed to withdraw
his plea or to request a hearing on his suitability.
In taking Emmanuel’s change of
plea, the juvenile court observed that the offense was not a section 707(b)
offense. Although appellant was informed
of the consequences of his plea, he was not orally informed by the court that if
he was committed to DJF, he would have to register as a sex offender pursuant
to Penal Code section 290. The section
602 petition, however, contained this statement: “Notice is hereby given that
adjudication as a ward of the Court for this offense and disposition to the
[DJF] will require you to register pursuant to Section 290 of the Penal
Code. Willful failure to register is a
felony.”
On March
28, 2008, Emmanuel affirmed his admission of the allegation even after the
court indicated it was going to follow the recommendation of the probation
officer, which was to deny DEJ. The
court determined Emmanuel was ineligible for DEJ, placed him on probation, and
ordered his placement into a group home.
The court stated that the maximum term of confinement Emmanuel faced
from the petitions was eight years four months.
from the orders of the juvenile court from the March 28, 2008, hearing.
On August
4, 2008, Emmanuel waived his rights to a hearing and admitted allegations that
he violated the rules of his group home, including that he assaulted other
residents of the group home. In
explaining the consequences of Emmanuel’s admission, the court noted Emmanuel’s
maximum term of confinement was eight years four months. The parties consented to the disposition at
the violation of probation hearing. The
court continued Emmanuel’s detention, placed him on probation, and authorized
the probation department to find a suitable placement for him. Soon thereafter, Emmanuel was placed in a new
group home.
On August
12, 2009, Emmanuel waived his rights to a
hearing and admitted allegations that he violated the rules, regulations,
and reasonable directives of the new group home in which he was placed. The court again advised Emmanuel that a
consequence of his admission could be a maximum term of physical confinement of
eight years four months. At the disposition
hearing later that month, the court continued Emmanuel’s detention and
probation, ordering his suitable placement into a group home closer to his
family. Emmanuel was placed in a new
group home.
On February
17, 2011, there was a contested hearing on allegations that Emmanuel again
violated the terms and conditions of his probation by failing to abide by group
home rules and regulations. Emmanuel’s
therapist, Donald Weintz, works with the Success and Recovery group home in
Tulare County. The program is designed
for adolescents who are sexual offenders.
Emmanuel was in the program for 14 months prior to December 28,
2010. Emmanuel was terminated from the
program for ongoing issues, including bullying, doing what he wanted to do,
failing to follow group home rules, and not following the reasonable
instructions of group home staff.
During
cross-examination, Weintz stated that Emmanuel violated the treatment of
avoiding fantasy. Weintz explained the
focus of treatment is to stay in reality and to avoid fantasy. Fantasy can be a very dangerous thing for
offenders because it can promote sexual fantasies. There were times during Emmanuel’s therapy
sessions when he would appear to be open about his sexual thoughts, and other
times when he was not as open. Emmanuel
had sexually violent fantasies that he discussed with Weintz and sometimes
showed specific interest in children.
Weintz acknowledged that Emmanuel
was generally able to follow the law and did not commit new sexual offenses for
14 months. The court found true the
allegation that Emmanuel violated the terms of his probation. On March 11, 2011, the probation department
filed its report recommending Emmanuel’s commitment to DJF. At the conclusion of a contested disposition
hearing on April 15, 2011, the court ordered Emmanuel’s commitment to DJF for
six years. Emmanuel filed a notice of
appeal on April 27, 2011.
COMMITMENT TO DJF
Emmanuel’s
appellate counsel presented an array of arguments against Emmanuel’s commitment
to DJF in the opening brief based on statutory analysis, sufficiency of the
evidence, and whether the juvenile court adequately considered less restrictive
alternatives to DJF commitment. In
Emmanuel’s reply brief, however, appellate counsel focuses all argument on the
Supreme Court’s recent decision in C.H.
In
Penal Code section 288(a), which is not an offense listed in section
707(b). The minor did not have a more
recent violation for an offense listed in section 707(b). (C.H.,
supra, 53 Cal.4th at pp. 98-99.) Interpreting section 731, subdivision (a)(4)
and section 733, subdivision (c), the Supreme Court concluded that because the
minor had not committed a 707(b) offense, he could not be sent to DJF. (C.H.,
supra, 53 Cal.4th at pp. 100-103,
108.)
The
relevant facts of this case are identical to those in C.H. Emmanuel has not
committed a section 707(b) offense. The
juvenile court, therefore, had no authority to commit him to DJF. (C.H.,
supra, 53 Cal.4th at p. 108.) We, therefore, reverse the juvenile court’s
disposition order committing Emmanuel to DJF.
(Id. at p. 109.)
WITHDRAWAL OF PLEA
Emmanuel
argues that because he was not adequately advised by the juvenile court of the
requirement that he would have to register as a sexual offender (Pen. Code,
§ 290) after his commitment to DJF, pursuant to Penal Code section
290.008, subdivision (b), he should be entitled to withdraw his plea. We find that Emmanuel’s argument is procedurally
barred and without merit.
Emmanuel
was adjudicated a ward of the court after admitting a violation of Penal Code
section 288(a) in February 2008. In
March 2008, Emmanuel affirmed his admission after the court found him
ineligible for DEJ. Emmanuel was placed
on probation in a group home and informed of his right to appeal.
An appeal
from a juvenile case is generally made within 60 days after the juvenile
court’s making of the order being appealed.
A timely notice of appeal is essential to appellate court jurisdiction. An appealable order that is not appealed
becomes final and may not be subsequently attacked on appeal from a later
appealable order or judgment. The
juvenile court’s orders from the March 2008 hearing were well beyond the 60-day
timeline for noticing an appeal and Emmanuel’s attempt to appeal those orders
now is untimely. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138.) We reject Emmanuel’s argument in his reply
brief that he is not subject to forfeiture for failing to file a timely appeal
from the court’s March 2008 orders.
We further
note that Emmanuel’s argument fails on the merits. Emmanuel argues that he did not receive
notice of the fact that a commitment to DJF would require registration as a sex
offender. Although the juvenile court
did not expressly advise Emmanuel of the registration requirement, such notice
was expressly set forth in the petition filed alleging his violation of Penal
Code section 288(a).
Emmanuel argues that the
registration notice conflicts with the next notice in the petition stating that
if he is “convicted” of the charged offense, he will have to register as a sex
offender. Emmanuel reasons that
juveniles cannot be convicted of offenses and that there is, therefore, a
conflict between the two notices in the petition. We disagree.
Juveniles who are tried as adults can be convicted of offenses. (See §§ 602, subd. (b) & 707, subd.
(d).) The second notice referring to a
conviction is notice to juveniles who are being tried as adults and is not
inconsistent with the notice that precedes it.
We find that Emmanuel is reading the notice in the petition out of
context to create a conflict in the notice provisions of the juvenile petition
that does not exist. Emmanuel was not
tried as an adult so the second notice provision referring to juveniles
receiving convictions is inapplicable to his case.
More importantly, the juvenile
court had no authority to commit Emmanuel to DJF. Therefore, the mandatory registration
requirements of Penal Code sections 290 and 290.008, subdivision (b), do not
apply to Emmanuel because his commitment to DJF was void ab initio.
Finally, we
note that Emmanuel never challenged his plea or sought to withdraw it at any
stage of the proceedings before the juvenile court. Indeed, even after being found ineligible for
DEJ, Emmanuel affirmed his change of plea.
Emmanuel’s challenge to the validity of his plea is being made for the
first time in this appeal. We agree with
respondent that appellant has failed to establish prejudice by showing it was
reasonably probable that he would not have entered the plea admitting the
allegation had the court given the proper advisement. (People
v. Superior Court (
210.) This is especially true where, as
here, the juvenile court did not have authority to commit Emmanuel to DJF and
that commitment is being reversed.
SPECIAL NEEDS FINDING AND CUSTODY CREDITS
The
juvenile court did not make a finding regarding Emmanuel’s special needs. Emmanuel contends the juvenile court erred in
failing to find that he had special needs because there was evidence in the
record that Emmanuel had an IEP.
Respondent notes there was inconsistent evidence in the record, but
agreed there were references in the record to Emmanuel’s IEP. Respondent agrees the juvenile court should
forward this information to DJF. To the
extent that Emmanuel’s commitment to DJF is over, this issue is moot. On remand, the juvenile court shall consider
Emmanuel’s IEP, or other special needs, in its final disposition of this
matter.
The parties
concede that Emmanuel was only awarded 169 days of custody credits, but was
entitled to 171 days of custody credits.
On remand, the juvenile court shall add two days of custody credits
based on Emmanuel’s custody prior to the instant disposition.
DISPOSITION
The
juvenile court’s order committing Emmanuel to DJF is reversed. The case is remanded for the juvenile court
to conduct a new disposition hearing. At
the disposition hearing, the juvenile court shall consider Emmanuel’s IEP and
other special needs, if any, and recalculate his total custody credits.
name="_ftn1" title="">* Before Kane, Acting P.J., Poochigian, J., and
Detjen, J.
name="_ftn2" title="">[1] DJF
was formerly known as the California Youth Authority (CYA). DJF was renamed by statutory enactment in
2005. (Welf. & Inst. Code,
§§ 202, subd. (e)(5), 1000, 1703, subd. (c), 1710, subd. (a).) The DJF is part of the
Division of Juvenile Justice. (Gov.
Code, §§ 12838, 12838.3, 12838.5, 12838.13.)
DJF is referenced in statutes, such as Welfare and Institutions Code
sections 731 and 733, that formerly referred to CYA. (In re
N.D. (2008) 167 Cal.App.4th 885,
890, fn. 2.)
