re S.F.
Filed 7/3/12 In re S.F.
CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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8.1115(a), prohibits courts and parties from citing or relying on opinions not
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COURT OF APPEAL,
FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re S.F., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
S.F.,
Defendant and
Appellant.
D061011
(Super. Ct. No.
J227-502)
APPEAL from an order of the Superior Court of
County, Carlos O. Armour, Judge. Affirmed.
On November
8, 2010, S.F. (Minor) admitted she
committed robbery in violation of Penal Code section 211. She was placed on home supervision.
On December
1, 2010, Minor was declared a ward of the
court and placed on home supervision.
In April 2011, Minor admitted violating the terms of her probation
and she was committed to Breaking Cycles for a period not to exceed 150
days.
In June 2011, Minor again admitted violating her probation and the
commitment to Breaking Cycles was extended for 90 days.
The juvenile court conducted an annual review of Minor's status in
December 2011. At that time the court
concluded Minor had successfully completed probation and terminated jurisdiction. Defense
counsel requested the court to reduce Minor's conviction from robbery to
grand theft from the person (Pen. Code, § 487, subd. (c)). The court denied the request.
Minor appeals contending the trial court erred in failing to
understand the nature of its discretionary authority and that it abused its
discretion in denying Minor's requested reduction of her offense. We find no error by the trial court and
therefore affirm the order.
STATEMENT OF FACTS
Although Minor does not challenge the true finding on her
statement of facts to provide context for our review of the trial court's
exercise of discretion. We will adopt
the statement of facts set forth in the Appellant's opening brief as an
accurate summary of the events leading to the true finding.
A. The
Incident
S.F. had met Reggie, a young Marine, on MySpace, said she was 19,
and agreed to meet with him. They met at
a CVS. On September 24, 2010, at approximately 11:20 p.m., S.F. again met
up with Reggie and his friend, Alberto.
Telling the young men that her sister wanted to hang out with them, S.F.
directed them to a house at 562
Gold Drive, in the city of
Oceanside. When they arrived at the
house, S.F. went inside. As Reggie and
Alberto waited outside, two individuals came out of the house wearing bandanas
over their faces. Jordan Z. approached
Reggie, and pointing at him what appeared to be a single barrel pump action
shotgun, took $40 and two black Motorola cell phones from him. Adrian T., armed with a machete, approached
Alberto and demanded money from him.
Alberto was unable to provide anything of value. Adrian told Alberto to be quiet and not to call the police. Both Jordan and Adrian are members of the Deep Valley Blood street gang. As Alberto and Reggie
drove off from the location, they received about nine telephone calls from
S.F., who advised them that she was only 16 years of age, and said if they reported
the robbery to the police, she would claim that they had raped her. At approximately 11:50 p.m., Oceanside police
officers contacted S.F., Jordan
and Adrian. Jordan
was subsequently arrested for being a parolee at large. Officers informed S.F. and Adrian that they
were in violation of curfew. Officers
recovered two Motorola cell phones. On September 25, 2010, from one of the cell phones, officers dialed a phone number that
appeared on one of the cell phones, and contacted Reggie, who agreed to speak
with them. During the interview, Alberto
positively identified Adrian as the individual with the machete and Jordan as
the individual with the shotgun. Reggie
positively identified S.F. as the female who lured them both to the
residence. At approximately 10:00 p.m. that night, officers executed a search warrant at 562 Gold Drive,
and arrested Adrian. During the search of the
residence, officers located a large machete, a black single barreled pump
action toy shotgun that was manipulated to resemble a real firearm, and
clothing matching the descriptions provided by Reggie and Alberto. Police arrested Adrian and
transported him to juvenile hall. On September 30, 2010, officers contacted and arrested S.F. at her school. She confirmed her phone number – which was
the same number from which she called Reggie and Alberto on the night of the
incident. S.F.'s cell phone contained evidence that a call had been made to
Alberto's phone. Police later
transported S.F. to juvenile hall.
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DISCUSSION
At the final review hearing in December 2011, the juvenile court
declared its intention to terminate jurisdiction. Defense counsel requested the court to set
aside the robbery true finding and enter a new true finding on grand theft from
the person. The court responded: "All right. I think the court is able to
dismiss petitions. I think the court is
able to reduce reduceable felonies to a misdemeanor. I don't think the court can re-enter an
admission unless it was an agreement by the parties initially that would be
done."
The prosecutor responded there had not been any agreement to
"reduce" the offense and the prosecution opposed any such reduction.
The court then ruled:
"That being the case--and even if I did have the authority, I think
that in this particular case, I would deny it.
It was a serious offense. I know
that she has come a long way since then, but it's still difficult to overlook
what happened in this case initially."
Relying on Welfare and Institutions Code
section 782, Minor contends the trial court failed to understand the scope of
its discretion and to the extent the court did exercise its discretion it did
so inappropriately. Minor is mistaken in
her reliance on section 782 and in her characterization of the court's
understanding of its discretion. In any
event we are satisfied the court was well within its discretion to deny Minor's
request to change the nature of the true finding.
Section
782 provides:
"A
judge of the juvenile court in which a petition was filed, at any time before
the minor reaches the age of 21 years, may dismiss the petition or may set
aside the findings and dismiss the petition if the court finds that the
interests of justice and the welfare of the minor require such dismissal, or if
it finds that the minor is not in need of treatment or rehabilitation. The court shall have jurisdiction to order
such dismissal or setting aside of the findings and dismissal regardless of
whether the minor is, at the time of such order, a ward or dependent child of the
court."
That
section provides authority for juvenile courts to dismiss a petition or set
aside findings. It does not provide any
authority to substitute a true finding for a different, uncharged offense. The trial court here was plainly aware of the
authority granted by section 782 in acknowledging it had the authority to
dismiss a petition.
The juvenile court certainly has the power to dismiss a
petition. (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455
Cal.App.4th 143, 149.) The power to
grant a dismissal is, however, different from the power to substitute charges.
The parties have not submitted any authority for the proposition
that a juvenile court can not only set aside a true finding, but that it can,
over the prosecution objection order a true finding on an uncharged offense
where there has been no agreement of the parties to make such a substitution of
offenses. Minor has not cited any
authority on this issue and the Attorney General has ignored the issue. Our independent research has not disclosed
any authority that a juvenile court
may substitute a different offense for that which has been admitted or on which
there has been a true finding.
Where a court exercises its discretion with regard to dismissal or
reduction of the level of an offense we review that decision under the abuse of
discretion standard. Under that standard
we will only set aside a trial court's decision where the record on appeal
clearly establishes an abuse of the court's discretion. (People
v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977; People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
B. Analysis
As we have noted Minor did not request that the court dismiss the
petition or any true finding. Rather,
defense counsel requested that the court set aside the robbery true finding and
substitute a true finding for grand theft from the person in its place. Clearly there is no authority for such action
in section 782. The court acknowledged its
power to dismiss the petition and to reduce felonies to misdemeanors, thus
demonstrating it understood the grant of authority under section 782. Accordingly, there is no merit to Minor's
claim the court did not understand the scope of its authority.
The court did make clear that even if it had the power to substitute
charges, it would decline to do so. As
the court correctly noted, the underlying crime was serious. Two young Marines were lured by Minor into a
situation where her gang member cohorts could commit robbery. The accomplices used a machete and what
appeared to be a shotgun to carry out the robbery. Later, Minor called the victims to threaten
them that if they called police she would tell police the victims had raped her
and that she was under 16 years old.
The record also shows that Minor's
performance on probation was not stellar.
Her probation was revoked twice and she was committed to Breaking Cycles
and then had the commitment extended.
Fortunately, it appears Minor was able to make progress after the
probation revocations and the trial court saw fit to terminate jurisdiction in
recognition of Minor's progress. On this
record, however, we cannot say the trial court abused its broad discretion by
declining to "reduce" the offense, even if the court had the power to
do so. Thus, we find no abuse of
discretion.
DISPOSITION
The juvenile court's order denying Minor's request to reduce the
offense for which a true finding had been made is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER,
J.
time.
were taken from the probation report.
