In re L.L.

 

 

 

 

 

 

 

 

Filed 6/12/13  In re L.L. CA2/2

Opinion following transfer from Supreme Court;
reposted 6/12/13
to reflect opinion following transfer

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

In re L. L., a Person Coming Under the Juvenile Court Law.	B226214       S196866       (Los Angeles County       Super. Ct. No. MJ14339)
THE PEOPLE,               Plaintiff and Respondent,               v.   L. L.,               Defendant and Appellant.

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Robin R. Kesler, Juvenile Court Referee.  Vacated and remanded.

            Mary
Bernstein, under appointment by the Supreme Court of California, for Defendant
and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________

>

            On August 23, 2011, this court vacated
an order by the juvenile court committing L. L. (appellant) to the Division of Juvenile
Facilities (DJF).href="#_ftn1"
name="_ftnref1" title="">^[1]>  The Attorney General filed a petition for
review with the Supreme Court of California challenging this court’s
opinion.  The Supreme Court granted the
petition and deferred the matter pending In
re Greg F., S191868, which was under consideration at the time.

            The Supreme Court has now
transferred the matter back to this court for reconsideration in light its
decision in In re Greg F. (2012) 55
Cal.4th 393 (Greg F.).  We requested additional briefing from the
parties.  Having reconsidered the matter,
this court concludes that no change is required of our August 23, 2011 disposition. 
Accordingly, the juvenile court’s order committing appellant to DJF is
once again vacated and the matter is remanded to the href="http://www.fearnotlaw.com/">juvenile court for proper disposition.

BACKGROUNDhref="#_ftn2" name="_ftnref2" title="">^[2]>

            In August 2006, appellant admitted that he committed href="http://www.mcmillanlaw.com/">assault with a deadly weapon (Pen. Code,
§245, subd. (a)(1)) on or about April 5, 2006, and second degree
commercial burglary (Pen. Code, § 459) on or about July
17, 2006.  The juvenile court declared
appellant a ward of the court under Welfare and Institutions Code section 602,href="#_ftn3" name="_ftnref3" title="">^[3] placed him home on probation, and set the
maximum confinement period at five years eight months.

            In November 2006, appellant admitted
that he committed second degree robbery
(Pen. Code, § 211) on or about October 14, 2006.  The juvenile court ordered appellant to
remain on home probation and set the maximum confinement period at six years
eight months.

            In December 2006, appellant admitted
that he committed second degree robbery (Pen. Code, § 211) on or about September 23, 2006.  The juvenile
court ordered three months of short-term camp community placement and set the
maximum confinement period at seven years eight months.

            On October
22, 2007, the Los Angeles County District Attorney (district attorney) alleged in
a section 602 petition that, on or about August 20,
2007,
appellant:  threatened a witness (count
1; Pen. Code, § 140, subd. (a)), and committed href="http://www.fearnotlaw.com/">simple battery (count 2; Pen. Code, §§
242, 243, subd. (a)).

            Approximately a month later, on November 26, 2007, the district attorney alleged in a section 602
petition that, on or between August 1, 2005 and June 1, 2006, appellant: 
committed lewd acts upon a child (counts 1, 2 & 3; Pen. Code, § 288,
subd. (a)), committed oral copulation by threat of future retaliation (count 4;
Pen. Code, § 288a, subd. (d)(2)), sodomized a person under 14 years of age
(count 5; Pen. Code, § 286, subd. (c)(1)), and href="http://www.fearnotlaw.com/">dissuaded a witness from reporting a crime
(count 6; Pen. Code, § 136.1, subd. (b)(1)).

            On December
21, 2007, the juvenile court approved a negotiated plea agreement under which
appellant admitted count 1 (threatening a witness) of the October 2007
petition, and counts 1 and 2 (committing lewd acts upon a child) of the November
2007 petition.  As part of this
agreement, the juvenile court ordered nine months of long-term camp community
placement, dismissed the remaining counts on both petitions, and set the
maximum term of physical confinement at 14 years eight months.href="#_ftn4" name="_ftnref4" title="">^[4]

            In August 2008, appellant returned
before the juvenile court based on allegations of probation violations
contained in a section 777 petition.href="#_ftn5" name="_ftnref5" title="">^[5]  The petition alleged that appellant had:  pushed another minor, broken into a camp
refrigerator to remove snacks and cookies, responded to a probation officer
with profanity, made noises at bedtime by shouting profanity, and displayed
defiance toward probation staff.  In
November 2008, at the hearing on the alleged probation violations, appellant
admitted only to the allegation that he had broken into a camp refrigerator to
remove snacks and cookies.  The juvenile
court stated that camp placement had failed to rehabilitate appellant, and that
commitment to DJF would serve the best interests of appellant and the public by
providing appellant with sexual offender counseling and “some element of
punishment.”

            Appellant appealed the juvenile
court’s order committing him to DJF. 
Appellant argued that the most recent offense to which he admitted was
the offense of threatening a witness, which was neither an offense described
in section 707, subdivision (b) (section 707(b)), nor a sex offense as set
forth in Penal Code section 290.008, subdivision (c), as required by section
733, subdivision (c) (section 733(c)). 
The People agreed with appellant’s argument on appeal.  We agreed, as well, stating in our April 12,
2010 decision that:  “‘The language of section
733(c) allows commitment to DJF only when “the
most recent offense alleged in any petition and admitted or found to be
true by the court” (italics added) is an eligible offense.  The statute does not focus on the overall or
entire delinquent history of the minor or on whether the minor may be generally
considered a serious, violent offender. 
The language looks to the minor’s “most recent offense.”’  (V.C.
v. Superior Court (2009) 173 Cal.App.4th 1455, 1468.)”  We vacated the juvenile court’s commitment
order and remanded for proper disposition.

            At the July 9, 2010 remand hearing,
the juvenile court concluded that releasing appellant from DJF would hinder his
rehabilitation and endanger the general public. 
Invoking section 782,href="#_ftn6"
name="_ftnref6" title="">^[6] the juvenile court dismissed the October 2007
petition alleging the offense of threatening a witness, and withdrew
appellant’s admission to that offense. 
The juvenile court then found that appellant was eligible for DJF
commitment based on his admission to the earlier offense of committing lewd
acts upon a child.  Appellant once again
appealed the juvenile court’s commitment order.

            In a decision dated August 23, 2011,
this court, relying in large part on the Third District Court of Appeal’s
decision in V.C. v. Superior Court, >supra, 173 Cal.App.4th 1455, 1468 (>V.C.), held that the juvenile court’s
dismissal of the petition alleging the offense of threatening a witness was an
abuse of discretion because it contravened both the plain language and
legislative history of section 733(c).

            As noted above, the Attorney General
filed a petition for review of this court’s decision before the Supreme Court.  The Supreme Court granted the petition for
review and deferred the matter.  The
Supreme Court has now transferred the matter back to this court for
reconsideration in light of its decision in Greg
F., supra, 55 Cal.4th 393.

ANALYSIS

I.          Statutory Framework

            Where, as here, “a minor is adjudged a ward of the court on
the ground that he or she is a person described by Section 602, the court
may . . . [c]ommit the ward to the Department of
Corrections and Rehabilitation, Division of Juvenile Facilities, if the ward
has committed an offense described in subdivision (b) of Section 707 or
subdivision (c) of Section 290.008 of the Penal Code, and is not otherwise
ineligible for commitment to the division under Section 733.”  (§ 731, subd. (a)(4).)

            Section 733(c) sets forth three
categories of juvenile wards who are ineligible for commitment to DJF.  As relevant here, the statute provides:  “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 or subdivision (c) of Section 290.008 of the Penal Code.”  (§ 733(c).)

II.        In re Greg F.
(2012) 55 Cal.4th 393

            In Greg F., >supra, 55 Cal.4th 393, the minor (Greg)
struck a child in the head with a baseball bat after the child refused to turn
over his bicycle.  (Id. at p. 400.)  Just before
the assault, Greg yelled gang slogans and displayed gang hand signs.  The district attorney filed a delinquency
petition (the “first delinquency petition”), alleging that Greg had committed
assault with a deadly weapon and by means of force likely to produce great
bodily injury, had personally inflicted great bodily injury, and had acted for
the benefit of a criminal street gang. 
Greg admitted each of the allegations and the juvenile court sustained
the petition.  Because the offense of
“assault by any means of force likely to produce great bodily injury” is one of
the offenses listed in section 707(b), Greg was eligible for a DJF commitment.  (Greg
F., at p. 401.)  Indeed, the
probation department unanimously recommended commitment to DJF based on the
severity of the crime, the lack of remorse exhibited by Greg, and the risk that
Greg posed to the community if placed on probation.  (Ibid.)

            The juvenile court, however, opted
not to commit Greg to DJF and instead ordered an out-of-home placement.  Five months later, after refusing to
participate in the course of treatment offered at the out-of-home placement
site, Greg was transferred to juvenile hall. 
Two months into his juvenile hall placement, Greg, along with two fellow
gang members, physically attacked three individuals who belonged to a rival
gang.  (Greg F., supra, 55
Cal.4th. at p. 401.) 

            The district attorney filed a href="http://www.fearnotlaw.com/">second delinquency petition alleging that
Greg had committed battery for the benefit of a gang (Pen. Code, §§ 186.22,
subd. (d), 242), and knowingly participated in a gang (Pen. Code, § 186.22,
subd. (a)).  At the detention hearing the
next morning, Greg admitted the battery offense, which was not a DJF-eligible
offense.  The juvenile court accepted
Greg’s admission and set the matter for a dispositional hearing.  (Greg
F., supra, 55 Cal.4th at p.
401.)  Three days later, the district
attorney filed an ex parte request to calendar a motion to “withdraw” Greg’s
plea to the battery offense, and subsequently filed a notice of probation
violation under section 777.  The
district attorney explained that he had filed the second delinquency petition
in error, and requested that the juvenile court withdraw Greg’s plea to the
battery offense and dismiss the petition. 
The district attorney explained that he was “‘trying to get to a
[DJF-eligible] offense.’” (Greg F., >supra, 55 Cal.4th at p. 402.)

            Invoking section 782, the juvenile
court dismissed the second delinquency petition and set aside Greg’s admission
to the battery offense.  The juvenile
court explained that it had dismissed the second petition “to create the ‘best
options’ for disposition.”  (>Greg F., supra, 55 Cal.4th at p. 402.) 
Greg subsequently admitted the section 777 probation violation and the
juvenile court committed Greg to DJF based on his earlier admission to the
offense of assault by means of force likely to produce great bodily href="http://www.sandiegohealthdirectory.com/">injury.  (Greg
F., at p. 402.)

            The Court of Appeal reversed the
juvenile court’s order withdrawing Greg’s admission to the battery offense and
dismissing the second delinquency petition. 
It held that section 733(c) limits a juvenile court’s authority to
dismiss a current delinquency petition under section 782 in order to render a
minor eligible for DJF commitment based on an earlier sustained delinquency
petition.  (Greg F., supra, 55
Cal.4th at p. 402.)

            The Supreme Court reversed the Court
of Appeal.  The Court reasoned as
follows: After Greg attacked the three individuals in juvenile hall, the
district attorney could have filed a section 777 petition alleging that Greg
had violated probation by committing battery. 
Had the district attorney done so, and had the allegation been found
true, Greg could have been committed to DJF for up to 17 years as punishment
for the earlier assault offense.  (>Greg F., supra, 55 Cal.4th at p. 405.) 
The district attorney, however, mistakenly brought Greg’s battery
offense in front of the juvenile court by way of a second delinquency
petition.  Once Greg admitted to the
battery allegation, Greg became ineligible for DJF commitment.  Thus, the Court pointed out, Greg’s
ineligibility for DJF commitment arose “because the prosecution ha[d] simply
filed the wrong piece of paper:  a 602
petition instead of a 777 notice.”  (>Id. at p. 411.)  In other words, “[t]wo minors on probation
for the same DJF-eligible offense who later committed the same non-section-707(b)
conduct would be subject to very different dispositions depending on which form
of pleading was filed.”  (>Ibid.) 
The Court noted that “[a]lthough not to be encouraged, occasional
oversights such as [filing the wrong piece of paper] understandably occur given
the unusually short deadlines in juvenile delinquency matters.”  (Ibid.)

            The Court concluded that such a
scenario was “absurd” and unfairly “immunize[d] from DJF commitment a minor who
quickly admits new misconduct alleged in a 602 petition even if the minor
remained eligible for DJF under the terms of probation on a prior
offense.”  (Greg F., supra, 55
Cal.4th at p. 411.)  According to the
Court, “[t]o interpret section 733(c) as cutting off the juvenile court’s broad
discretion to order an appropriate disposition, simply because the wrong
document was filed, would elevate form over substance and create an absurd
result the Legislature could not have intended.”  (Id.
at pp. 411-412.)  Thus the Court held,
“When a DJF commitment for a section 707(b) offense for which probation was
ordered serves the interest of justice and the welfare of the minor, the
juvenile court has discretion to dismiss a new 602 petition to permit treatment
of the matter as a probation violation.” 
(Id. at p. 412.)

            In issuing its holding, the Court
was careful to distinguish the facts of Greg
F. with the facts of V.C., >supra, 173 Cal.App.4th 1455, the case
that we relied on in our August 13, 2011 opinion. ^{href="#_ftn7" name="_ftnref7" title="">[7]}  The Court noted that, unlike the minor in >Greg F., the minor in >V.C. had admitted to a non-DJF-eligible
misdemeanor as part of a “negotiated plea
bargain,” and had “already entered
the placement that the court ordered.”  (>Greg F., supra, 55 Cal.4th at pp. 414-415.) 
The plea agreement was thus a “‘fully
executed agreement,’”(italics added by Greg
F.) and the minor in V.C. had a
“constitutional right to the benefit of his completed plea bargain.”  (Greg
F., at p. 415, citing V.C., at p.
1467.)  Given this constitutional right,
the Court stated:  “Dismissing a 602 petition
after disposition potentially raises
a host of constitutional concerns not presented in the case before us.  We express no opinion on whether such a
dismissal could ever be appropriate.”  (>Greg F., at p. 415.)  The Supreme Court did, however, disapprove of
the portion of V.C. in which the >V.C. court held that “section 733(c)
must always override the juvenile court’s ability to dismiss a delinquency
petition under section 782.”  (>Greg F., at p. 415, citing >V.C., at pp. 1467-1469.)

III.       Application of Greg F. to the Present Case

            A.        >The December 21, 2007 Hearing

            Before we turn to how Greg F. applies to the present case, we provide a more detailed
discussion of what took place at the December 21, 2007 hearing when appellant
admitted to the offenses of threatening a witness and committing lewd acts upon
a child.  The colloquy between the
juvenile court, the prosecution, and appellant that took place at this hearing
is of significance.

            At that hearing, the juvenile court commenced proceedings by
announcing:  “I understand that he’s
going to admit two counts of 288(a).” 
(The court was referring to the two counts of committing lewd acts upon
a child (Pen. Code, § 288, subd. (a)) that occurred, on or between August 1,
2005, and June 1, 2006, as alleged in the November 26, 2007 delinquency
petition.)  Counsel for appellant
acknowledged that appellant intended to admit these counts, and added that
appellant also planned on admitting count 1 of the October 22, 2007 petition.  (Counsel was referring to the count of
threatening a witness (Pen. Code, § 140, subd. (a)) alleged to have occurred on
or about August 27, 2007.)  The juvenile
court responded:  “And that’s your
understanding he’s going to do a nine-month camp?”  Counsel for appellant answered:  “Yes.”

            The juvenile court directed the
prosecutor to take appellant’s waivers. 
The prosecutor went over the charges that appellant intended to admit
(one count of threatening a witness and two counts of lewd acts upon a child),
conducted a Gladys R.href="#_ftn8" name="_ftnref8" title="">^[8] inquiry, and then reviewed appellant’s
constitutional rights to an adjudication, to confront and cross-examine adverse
witnesses, and the right against self-incrimination.  Appellant stated that he understood these
rights and waived all of them.

            The prosecutor then informed
appellant of the consequences of violating probation.  The following colloquy is particularly
salient:

            “[Prosecutor]:  [I]f you’re found in violation of your terms
and conditions of probation, the court has some options available to it.  You could be sent—you could be sent to
juvenile hall, you could be sent back to camp, you could go to suitable
placement.  Mr. [L.], I believe I’m
pretty sure that you are actually eligible now, based on your prior petitions,
if you are found in violation of your terms and conditions of your probation
you could go to CYA.

            “The Court:  Although he cannot because none of these
current offenses are 707(b) offenses.

            “[Prosecutor]:  But he’s still on probation for a 211.

            “The Court:  Does not matter.  The new offense has to be a 707(b) offense.

            “[Prosecutor]:  Okay. 
All right.  So I take that back
about CYA, but everything else there applies. 
Do you understand the consequences of a probation violation . . . ?

            . . . .

“[Appellant]: 
Yes, sir.”

            After a short break in the
proceedings, the prosecutor asked appellant: 
“Keeping everything in mind we’ve gone through [, appellant,] do you
still wish to admit the charges?” 
Appellant responded:  “Yes.”  Appellant then admitted to count 1 of the
October 2007 petition, and counts 1 and 2 of the November 2007 petition.  The juvenile court accepted appellant’s
admission, and noted that appellant understood the “possible consequences” of
his admission.  The juvenile court
declared appellant a ward of the court, sustained the counts that he admitted,
and dismissed in the interests of justice the remaining counts alleged in the
October and November 2007 petitions.  The
juvenile court moved directly to disposition. 
It placed appellant under the care, custody, and control of the probation
department, ordered nine months of long-term camp placement, and set the
maximum term of physical confinement
at 14 years eight months.

            B.        Greg F.> Is Distinguishable

            In our view Greg F.
is distinguishable from the present case for several reasons:        First,
unlike in Greg F. where the minor was
rendered ineligible for DJF commitment because the prosecution “simply filed
the wrong piece of paper” (55 Cal.4th at p. 411), appellant in this case was
rendered ineligible for DJF commitment because the prosecution agreed to a plea
bargain in which appellant would admit to a nonqualifying DJF offense in
exchange for a nine-month camp placement. 
It appears that at the time the district attorney filed the October 2007
delinquency petition (alleging the nonqualifying offense), appellant was still
on probation for an earlier offense of robbery (a DJF-qualifying offense).  Thus, the prosecution could have filed a
section 777 probation violation petition, which would have rendered appellant
eligible for DJF commitment.  Yet, the
prosecution filed a delinquency petition instead, and at no point shortly after
filing this petition did the prosecution state that it had made a mistake by filing
a delinquency petition instead of a probation violation petition.  (Compare Greg
F., at p. 415 [“Just three days after the minor admitted an offense that
was not DJF eligible, the prosecution moved to set aside the plea and dismiss
the 602 petition.”]  The “absurd”
scenario of “elevat[ing] form over substance” found in the circumstances of >Greg F. is not present here.  (Greg F.,
supra, 55 Cal.4th at p. 412.) 

            Second, unlike in >Greg F. where there appeared to be no
agreement as to the nature of punishment the minor would receive for admitting
the battery offense, appellant admitted to the offenses of threatening a
witness and committing lewd acts upon a child as part of a negotiated plea
bargain in which he would receive nine months of camp placement, and >not a DJF commitment.  In fact, the juvenile court stated twice
during the December 21, 2007 hearing that appellant would not be eligible for DJF commitment even if he violated probation
and the prosecution agreed with the court’s statements.  Appellant’s plea agreement was a “‘>fully executed agreement,’” and
appellant had a “constitutional right to the benefit of his completed plea
bargain.”  (Greg F., supra, 55
Cal.4th at p. 415; see also People v.
Segura (2008) 44 Cal.4th 921, 931 [“‘“A plea agreement is, in essence, a
contract between the defendant and the prosecutor to which the court consents
to be bound.”  [Citation.]  Should the court consider the plea bargain to
be unacceptable, its remedy is to reject it, not to violate it, directly or
indirectly.’”].)

            Third, unlike in >Greg F. where “no disposition on the
petition had been entered, or even much discussed” (55 Cal.4th at p. 415), the
juvenile court dismissed the later delinquency petition in order to render
appellant eligible for DJF commitment disposition several months >after disposition.  As noted by the Supreme Court in >Greg F., “[d]ismissing a 602 petition >after disposition potentially raises a
host of constitutional concerns.” (Ibid.) 

            In her letter brief to the court,
the Attorney General argues that the circumstances of this case do not raise
the “constitutional concerns” articulated in Greg F. because “the material terms of appellant’s plea had already
been agreed upon before the start of the December 2007 hearing,” and “there is
no showing that appellant relied on the colloquy about the consequences of a
probation violation in deciding how to comport his behavior.”  In our view, this argument is based on
conjecture.  All one can be sure of from
the record is that the appellant had tentatively
agreed to admit to one count of threatening a witness and two counts of
lewd acts upon a child in exchange for a nine-month camp placement, and >actually admitted to those counts only
after being told by the juvenile court, with the prosecution in agreement, that
he would not be committed to DJF if he violated probation.  The record leaves no room for further
guessing as to what appellant would have agreed to had no such colloquy taken
place.

            In sum, we have reconsidered the
matter and conclude, for the reasons cited above, that the Supreme Court’s
decision in Greg F., >supra, 55 Cal.4th 393, is
distinguishable and does not compel us to alter the disposition ordered in our
August 23, 2011 opinion.

DISPOSITION

            The juvenile court’s order
committing appellant to DJF is vacated and the matter is remanded for proper
disposition.

            NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.

 

                                                                        BOREN,
P.J.

We concur:

 

            ASHMANN-GERST,
J.

 

            CHAVEZ, J.