In re N.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.L., Defendant and Appellant.
D079759
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
July 21, 2022
CERTIFIED FOR PARTIAL PUBLICATION. (Super. Ct. No. J243890)
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
We find sufficient evidence to support the true finding, but we agree that N.L. is entitled to a conditional reversal and remand for the trial court to consider informal supervision under the law as amended by Senate Bill No. 383.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of March 16, 2021, N.L. entered a restroom at a Food 4 Less grocery store in Vista, California. She was alone in the restroom for nearly five minutes. A surveillance videotape from the grocery store showed that the last person who was in the restroom before N.L. had exited three minutes before she entered.
Another customer, O. Perez, entered the restroom just as N.L. was exiting. Once inside, Perez immediately noticed flames reflected in the door of the large, handicapped stall in the rear of the restroom. She looked inside the stall and saw flames and smoke coming out of a trash can in the corner. The flames were about a foot above the trash can. Perez was in the restroom for about 20 seconds before she left and reported the fire. No one else was in the restroom.
B. Priato was outside in the parking area walking toward the store when she saw N.L. coming in the opposite direction with her older sister, Natalie L. At the adjudication hearing, Priato testified that she was about six to eight feet away from the two girls when she heard N.L. say, ” ‘I already put the fire in the trash can.’ ”
A store employee removed the burning trash can and took it outside, where another employee put out the fire with an extinguisher.
When police arrived, they detained N.L. and Natalie. N.L. was dressed in all black. The girls’ mother arrived at the scene. She was argumentative and
The police searched N.L. and found no matches or lighter, and nothing else that could be used to start a fire. Inside the trash can, the police found restroom items, such as diapers, toilet paper, and tampons. The police were unable to determine what started the fire.
The police interviewed Priato and Perez on body-worn cameras at the scene. Videotapes from the cameras were played at the hearing. Priato told one officer: “I was walking up and I saw a girl with a cart, ah with groceries and she was like waiting for somebody else and when I saw the girl, the one with the black sweater and the glasses, I saw her coming like in a hurry . . . . And then, ah, I was very aware of everything, you know. And I started—, I just walked past them, and she said, ‘Oh, ah I lit the fire, there is fire in the . . . [restroom].’ ” Priato also told the officer, “I didn‘t put [sic] so much attention because it was very far away and like I walked past them.”
Priato told another officer: “I was on my phone. Um, I was walking, and I looked up and I saw this girl, um this girl was with a cart and her groceries. [¶] . . . [¶] [S]he was like waiting for somebody and um, that‘s when I saw the girl with the black jacket. [¶] . . . [¶] So, um, I was going up towards the store and then I saw this girl come in a hurry. Like she was like hurrying up. [¶] . . . [¶] And um, I just heard—I don‘t recall if she said, ‘Um, there‘s fire in the, or I put the fire in the trash—in the can.’ I don‘t recall, it[‘]s one of those two but they were aware of the fire. . . . Like the girl that was coming was aware of the fire . . . . The one that was coming down, the one with the whole [sic] black. And I was aware like—she was the one who said it. . . . She was like, ‘Oh, I put—‘, I think she was letting the other girl know that she put the fire in the can.”
Priato testified that her memory was probably best right after the incident.
Natalie testified as a defense witness. According to Natalie, she and N.L. had been shopping at the grocery store. N.L. went to use the restroom while Natalie paid for the groceries. After paying, Natalie waited for N.L. outside. When N.L. came out, she did not mention anything about a fire in the restroom.
In a wardship petition, N.L. was charged with felony arson of property (
The court also found Priato to be “very, very credible.” The court noted: “She was minding her business when the two girls walked past her. And [N.L.] told her sister, ‘I lit that fire. I lit the fire.’ ” The court concluded “that [N.L.] purposely, willfully, and maliciously lit that trash can on fire while she was in that [restroom] for almost five minutes.” Thus, the court found “beyond a reasonable doubt that [N.L.] did indeed commit arson that day at Food 4 Less.”
At a subsequent disposition hearing, the court adjudged N.L. a ward of the court. (§ 602.) The court committed N.L. to Urban Camp2 for a period not to exceed 120 days, but stayed the commitment pending further proceedings. The court took custody of N.L. under section 726, subdivision (a)(1), and placed N.L. at home with her mother with “care, custody and control of the minor . . . to be under the supervision of the probation officer.”
DISCUSSION
I
N.L. first argues there is insufficient evidence to support the true finding of felony arson because there is no substantial evidence that she “willfully and maliciously” set the fire. We disagree.
Our review of the minor‘s substantial evidence claim is governed by the same standard applicable to adult criminal cases. (In re V.V. (2011) 51 Cal.4th 1020, 1026 (V.V.).) We must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Ibid.) We presume in support of the judgment every fact that the trier of fact could reasonably have deduced from the evidence. (Ibid.) Substantial evidence is evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (Ibid.)
Our role on appeal is a limited one. If the circumstances reasonably justify the trier of fact‘s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Medina (2009) 46 Cal.4th 913, 924, fn. 2.)
A person is guilty of arson when he or she “willfully and maliciously” sets fire to any structure or property. (
The term “maliciously” refers to either “[m]alice in fact” or “[m]alice in law.” (V.V., supra, 51 Cal.4th at p. 1028.) “Malice in fact” means actual ill will or intent to injure. (Ibid.) “Malice in law” means an intent to do a wrongful act, established either by proof or presumption of law. (Ibid.) For arson, malice in law will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right. (Ibid.)
The “willful and malice” requirement for arson “ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire; ‘in short, a fire of incendiary origin.’ ” (People v. Atkins (2001) 25 Cal.4th 76, 88.) However, arson is a general criminal intent crime; the specific intent to burn the relevant structure or property is not required. (V.V., supra, 51 Cal.4th at p. 1027.)
The nature of arson ordinarily dictates that the evidence will be circumstantial. (People v. Beagle (1972) 6 Cal.3d 441, 449.) Thus, the absence of direct evidence to establish a defendant‘s guilt does not necessarily require a finding of insufficient evidence. (People v. Solis (2001) 90 Cal.App.4th 1002, 1010.) “The particular evidence offered to prove the charge must, by necessity, vary from case to case. Accordingly, there can be no checklist of evidence required to prove the crime.” (Ibid.)
Viewing the entire record in the light most favorable to the judgment, we find substantial evidence to support the juvenile court‘s finding that N.L. willfully and maliciously set the fire. N.L. was alone in the restroom for nearly five minutes, there was no one else in the restroom for three minutes before she entered, and the flames were burning about a foot above the trash can immediately after she left. The juvenile court could reasonably infer that N.L. must have known about the fire, but she did not report it to anyone before leaving the store.
As N.L. was leaving the store in a hurry, a witness overheard her telling her sister that she ” ‘lit the fire’ ” or ” ‘put the fire in the trash can.’ ” The juvenile court could infer that N.L. would not have made such a statement to her sister—while leaving the scene without reporting the fire—if she had not caused the fire herself or if she had done so accidentally or unintentionally. N.L. was also uncooperative and lied to the police about her identity, which supported an inference of consciousness of guilt. (People v. Liss (1950) 35 Cal.2d 570, 576.) Moreover, the juvenile court could reasonably conclude that N.L.‘s sister was covering up for her when she testified that N.L. mentioned nothing about a fire in the restroom—contrary to the testimony of Priato.
N.L. argues that Priato‘s testimony that she heard N.L. say she ” ‘put the fire in the trash can’ ” is inherently unreliable because Priato was impeached with her prior inconsistent statements to the police. But it was for the juvenile court to resolve these inconsistencies, assess Priato‘s credibility, and determine which, if any, of her statements were true and accurate. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) After hearing all the evidence, the juvenile court concluded, “I found her very, very credible.” It is not our proper function to second-guess the court‘s credibility determinations. (In re A.S. (2018) 28 Cal.App.5th 131, 149.) “We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses.” (Sheila B., at p. 199.)
N.L. also argues that her statement that she ” ‘put the fire in the trash can’ ” does not necessarily prove she intentionally started the fire. Once again, however, it was up to the trier of fact what to make of Priato‘s testimony and prior statements, and to consider the totality of circumstances, including that N.L. was leaving the store in a hurry without reporting the fire, and she knew that someone had seen her exiting the restroom where the fire was burning.
Priato told one of the officers at the scene that she heard N.L. say, ” ‘I lit the fire, there is fire in the . . . [restroom].’ ” She also testified that her memory was probably best right after the incident. Based on the totality of the evidence, the juvenile court concluded that N.L. said, ” ‘I lit the fire’ “—which can reasonably be interpreted to mean an intentional act. When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363.)
Accordingly, we find substantial evidence to support the juvenile court‘s finding that N.L. willfully and maliciously set the fire.
II
N.L. was 16 years old when she committed the charged offense. The probation report states that she had no prior criminal record. At the time of the juvenile court proceedings below, former section 654.3, subdivision (h) made minors who committed a felony offense when they were 14 years or older presumptively ineligible for informal supervision under section 654 or 654.2, except in unusual cases where the interests of justice would best be
N.L. contends that the case should be remanded to allow the trial court to consider informal supervision under Senate Bill No. 383. She argues that this is an ameliorative change in the law that applies retroactively to cases not yet final on appeal under In re Estrada (1965) 63 Cal.2d 740 (Estrada). The People concede that Senate Bill No. 383 applies retroactively to N.L.‘s case and requires a remand for the juvenile court to consider informal supervision. The People contend that we should affirm the juvenile court‘s finding that N.L. committed felony arson, but remand for the juvenile court to consider informal supervision instead of wardship. We agree that the changes to Senate Bill No. 383 apply retroactively to cases not yet final on appeal, but we find that the appropriate remedy is a conditional reversal and remand.
A. Background on Informal Supervision
Section 654 provides that “in lieu” of a section 602 petition to declare a minor a ward of the court, a probation officer may refer the minor to an informal supervision program for services provided by an agency or the probation department. (§ 654, subd. (a).) In 1989, the Legislature enacted section 654.2 to permit a juvenile court to order such a program of informal supervision after a section 602 petition has been filed. (In re Adam R. (1997) 57 Cal.App.4th 348, 351-352 (Adam R.).) Under section 654.2, “the court may, without adjudging the minor a ward of the court and with the consent of the minor and the minor‘s parents or guardian, continue
Section 654.2 further provides: “If the probation officer recommends additional time to enable the minor to complete the program, the court at its discretion may order an extension. . . . If the minor successfully completes the program of supervision, the court shall order the petition be dismissed. If the minor has not successfully completed the program of supervision, proceedings on the petition shall proceed no later than 12 months from the date the petition was filed.” (§ 654.2, subd. (a).)
When it enacted section 654.2, the Legislature intended to address juvenile delinquency at its earliest signs by providing for a less structured program of informal supervision. (Adam R., supra, 57 Cal.App.4th at p. 352.) “[T]he procedure contemplated by section 654.2 is a postpetition, preadjudication . . . program of informal supervision. An order pursuant to section 654.2 essentially places the adjudicatory process on hold in the hope the minor will successfully complete the program of supervision and thereby avoid a judgment altogether.” (Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 789 (Ricki J.).) Accordingly, a “juvenile court should not make a true finding of guilt on the allegations of a petition and then order informal supervision.” (Id. at p. 791.) “In fact the purpose of the section 654 informal supervision program is to avoid a true finding on criminal culpability which would result in a criminal record for the minor. If the informal supervision program is satisfactorily completed by the minor, the petition must be dismissed.” (Adam R., at p. 352.)
In March 2000, the voters enacted Proposition 21 (Prop. 21, as approved by voters, Primary Elec. (Mar. 7, 2000)). Among other things, Proposition 21 amended section 654.3 by adding subdivision (h), which made minors alleged to have committed a felony at the age of 14 or older presumptively ineligible for informal supervision, except in unusual cases where the court determined the interest of justice would best be served. (Former § 654.3, subd. (h).) Proposition 21 stated that its provisions could not be amended by the Legislature except by a two-thirds vote of each house, or a statute that becomes effective when approved by the voters. (Prop. 21, § 39.)
At the time of the juvenile court proceedings below, this provision of Proposition 21 was still in effect, making N.L. presumptively ineligible for informal supervision because she was 16 years old at the time of the offense. Effective January 1, 2022, however, Senate Bill No. 383 eliminated this provision by deleting subdivision (h) of section 654.3. The Legislature enacted Senate Bill No. 383 by votes exceeding two-thirds of the members of
B. Retroactivity of Senate Bill No. 383
We agree with the parties that Senate Bill No. 383 applies retroactively to cases not yet final on appeal under Estrada. In Estrada, the Supreme Court held that an amendatory statute lessening punishment for a crime is presumptively retroactive, and in the absence of any contrary indication, applies to all persons whose judgments were not yet final at the time the statute took effect. (Estrada, supra, 63 Cal.2d at pp. 744-746.) For purposes of the Estrada rule, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.)
The Supreme Court has since “applied the Estrada rule to statutes that merely made a reduced punishment possible.” (People v. Frahs (2020) 9 Cal.5th 618, 629 (Frahs).) In Frahs, the court applied Estrada to
The reasoning of Frahs logically applies to Senate Bill No. 383‘s amendment to section 654.3. Like the mental health diversion program in Frahs, informal supervision under sections 654 and 654.2 is a form of pretrial diversion in the juvenile court system. It places the adjudicatory process on hold to allow the minor an opportunity to complete a program for services, have the section 602 petition dismissed, and avoid a criminal record. (Adam R., supra, 57 Cal.App.4th at p. 352; Ricki J., supra, 128 Cal.App.4th at p. 789.) Senate Bill No. 383‘s deletion of former section 654.3, subdivision (h) provides a possible ameliorating benefit to a class of juveniles—namely, those alleged to have committed felonies at the age of 14 or older—by
The Estrada presumption may be overcome by a clear indication of a contrary legislative intent. (Frahs, supra, 9 Cal.5th at pp. 630-632.) Here there is nothing in the text of Senate Bill No. 383 or its legislative history that rebuts Estrada‘s inference of retroactivity. The text is silent on the issue. The legislative history indicates that the bill was intended to remove barriers to youth rehabilitation and protect youth from more restrictive judicial interventions by increasing access to informal supervision. (Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 383 (2021-2022 Reg. Sess.) as amended Aug. 26, 2021, p. 2) [Arguments in Support].) The legislative history also states that the bill would result in one-time costs for the Department of Justice “to litigate appeals from minors eligible for . . . IS [informal supervision] pursuant to the requirements of this [bill] but who may have already been sentenced.” (Id. at p. 2 [Fiscal Comments], italics added.) If anything, this language suggests that the Legislature understood minors who had “already been sentenced” and were appealing would become “eligible for” informal supervision under the bill. (Ibid.) Accordingly, we find that Senate Bill No. 383 applies retroactively to cases not yet final on appeal.
C. Appropriate Disposition
As noted, the People ask us to affirm the juvenile court‘s finding that N.L. committed felony arson, but remand for the juvenile court to consider informal supervision instead of wardship. As we explain, we conclude that the appropriate disposition is a conditional reversal and remand.
In Frahs, the defendant had been convicted and sentenced to prison for two counts of robbery and a related misdemeanor offense. (Frahs, supra, 9 Cal.5th at pp. 625-626Penal Code section 1001.36Frahs, at pp. 637-641.) The court concluded that the case should “be restored to its procedural posture before the jury verdict for purposes of evaluating defendant‘s eligibility for pretrial mental health diversion.” (Id. at p. 639, italics added.) Thus, the court found that the
A conditional reversal is similarly appropriate here. As noted, informal supervision under section 654.2 is designed to take place before the adjudication hearing “to avoid a true finding on criminal culpability which would result in a criminal record for the minor.” (Adam R., supra, 57 Cal.App.4th at p. 352.) “Thus, a true finding under section 602 is inherently inconsistent with a program of informal supervision under section 654.2.” (In re K.C. (2013) 220 Cal.App.4th 465, 471.)
We cannot leave in place the juvenile court‘s true finding and its order adjudging N.L. a ward of the court, but also remand for consideration of informal supervision under section 654.2. These are inherently inconsistent because informal supervision is a form of pretrial diversion that leads to preadjudication dismissal of the charges if successfully completed. (§ 654.2, subd. (a).) As with the pretrial diversion program at issue in Frahs, the case must be “restored to its procedural posture before” the contested adjudication proceeding. (Frahs, supra, 9 Cal.5th at p. 639Frahs. (Id. at pp. 640-641.)5
DISPOSITION
The adjudication and disposition orders are conditionally reversed with instructions to the juvenile court to consider informal supervision for N.L. under
BUCHANAN, J.
WE CONCUR:
IRION, Acting P. J.
DATO, J.