People v. D.J.People v. D.J.
Opinion
Aрpellant contends that the juvenile court’s action in committing him to the Division of Juvenile Justice
A. Petitions Filed in 2007
Appellant was bom in 1992. The delinquency proceedings against him, which had a lengthy history beforе culminating in this appeal, began when appellant was 13 years old.
On April 17, 2007, the prosecution filed another petition (the April 2007 petition), alleging that on or about December 17, 2006, appellant committed two felonies: robbing a pizza delivery person (
B. Charging Documents Filed in 2008 and 2009
On December 17, 2008, the prosecution filed a document (the December 2008 charging form)
On January 7, 2009, the prosecution filed another document (the January 2009 charging form), on the current version (eff. Jan. 1, 2008) of Judicial Council form JV-600, again bearing checks in the boxes indicating that it was filed under section 602(a). In the space for “[violation,” the form stated that it was a first amended supplemental petition under section 777(a). The attachment page, labeled “First Amended Notice of W&I Section 777(a) Petition” (original capitalization omitted), alleged that appellant had committed an additional attempted residential burglary, at a diffеrent address, on the same date (Dec. 16, 2008) as the burglary alleged in the December 2008 charging form. As in the December 2008 charging form, the prosecution requested that the existing probation order be modified on the ground that appellant had violated the terms of his probation.
On January 7, 2009, appellant admitted violating section 777(a) as charged in the December 2008 and January 2009 charging forms. At the disposition hearing on these charges, the juvenile court ordered that appellant bе placed in a suitable foster home, private institution, group home, or county facility. Appellant was then placed at a program called Rite of Passage, but left the program the day after he arrived.
On February 25, 2009, the prosecution filed another document (the February 2009 charging form), again on the 2008 version of Judicial Council form JV-600; with the section 602(a) boxes checked; and specifying that the violation charged was under section 777(a). This time, however, the attachment to the form was on Judicial Council form JV-720, which is labeled “Supplemental Petition for More Restrictive Placement (Attachment)” (original capitalization omitted). It alleged that appellant had left Rite of Passage on February 22, 2009, and that his whereabouts were unknown. It requested that the court issue a warrant for appellant’s arrest.
On May 28, 2009, the day before the scheduled disposition hearing, the prosecution filed a document (the May 2009 charging form), again on Judicial Council form JV-600 with the section 602(a) boxes checked, and again stating that it was a supplemental petition under section 777(a). The attachment, on form JV-620, had the caption “Notice of W&I Section 777(a) Petition” (original capitalization omitted) typed in. It asserted that appellant had violated the probation condition requiring that he obey the law, in that (1) when appellant was arrested on May 5, 2009, he was in possession of stolen property (
At a hearing on May 29, 2009, the juvenile court dismissed the charge of violating section 777(a) alleged in the May 2009 charging form. The court found true the section 777(a) violation alleged in the February 2009 charging form. The court then made a finding under Welfare and Institutions Code section 726, subdivision (a), that appellant had been tried on probation while in custody and had failed to reform, and that appellant would probably benefit from being committed to DJJ. The findings ended with a notation that “[t]hese are 707b [sz'c] offenses.” (See § 707(b).) The referent of “these” was not specified. On June 12, 2009, at a hearing to review appellant’s placement and calculate his credit for time served, the order entered May 29, 2009, was corrected to make clear that appellant was being committеd to DJJ.
On June 15, 2009, appellant’s counsel applied for rehearing as to appellant’s commitment to DJJ. The request for rehearing was denied on July 7, 2009.
On July 2, 2009, the juvenile court entered an order formally committing appellant to DJJ, and citing the January 2007 and April 2007 petitions as sustained petitions involving offenses covered under section 707(b), i.e., robbery (
A. Statutory Framework
1. Sections 733(c) and 707(b): Limitations оn DJJ Commitment
Section 733(c) was enacted in 2007, with the purpose of reducing the number of juveniles committed to DJJ for nonviolent, nonserious offenses. (See V.C. v. Superior Court (2009)
Section 707(b) itemizes a number of specific criminal offenses, which we refer to simply as DJJ-eligible offenses. These offenses include robbery (§ 707(b)(3)) and assault by means of force likely to produce great bodily injury (§ 707(b)(14)).
2. Section 777: Juvenile Probation Revocation
Welfare and Institutions Code section 111 (section 111) governs the juvenile court equivalent of probation revocation proceedings in adult criminal cases. As our Supreme Court has explained: “In 2000, Proposition 21 [(the Gang Violence and Juvenile Crime Prevention Act of 1998, eff. Mar. 8, 2000)] changed the scope of section 111 in [juvenile delinquency] cases. As pertinent here, voters deleted the provision allowing prosecutors to allege probation violations amounting to crimes. Now, for [juvenile] wards or probationers . . . , section 111 applies . . . [to] a probation violation ‘not amounting to a crime.’ (§ 777[, subd.] (a)(2).)
“With respect to procedural changes, Proposition 21 replaced the supplemental petition with a ‘notice’ provision. (§ 777, subds. (a)(2) & (b).) A ‘preponderance of the evidence’ standard now applies. (§ 777[, subd.] (c).) Other new language allows ‘reliable hearsay evidence’ insofar as it would be ‘admissible in an adult probation revocation hearing [under] People v. Brown [(1989)
B. Discussion
The issue posed by this appeal, regarding the application of section 733(c) in a case involving a subsequently alleged probation violation, was first addressed in In re J.L. (2008)
The minor appealed, arguing that he was not eligible for DJJ commitment under section 733(c) because his most recent offense was a probation violation, not a section 707(b) crime. The appellate court concluded that a violation of probation alleged in a section 777 notice “does not constitute an offense alleged in a ‘petition’ within the meaning of section [733(c)].” (In re J.L., supra,
A second published opinion addressing section 733(c), and following the rationale used by the court in In re J.L., supra,
On appeal, the minor argued that his most recent offense was the 2008 probation violation, not the 2006 assault, and that he therefore could not be sent to DJJ. The appellate court disagreed, reasoning that the Legislature’s purpose in enacting section 733 was “to reduce the cost and increase the effectiveness of juvenile confinement by shifting all but the most serious juvenile offenders to county facilities. [Citation.]” (In re M.B., supra,
The holdings of these cases are fully applicable to the facts here. The last petition alleging a DJJ-eligible offense against appellant was the April 2007 petition, which alleged both robbery (
The charging documents filed in 2008 and 2009 did not seek an adjudication that appellant had committed new offenses. Rather, their purpose was to initiate proceedings under section 777, alleging the crimes only as violations of appellant’s probation, like the similar subsequent filings in both In re J.L., supra,
VC. v. Superior Court, supra,
The minor then filed a petition for writ of mandate. The appellate court concluded that the minor had entered into the plea bargain resolving the 2007 petition specifically in order to avoid DJJ commitment. As a result, it reasoned that it was a violation of due process to deprive the minor of the benefit of that bargain by dismissing the 2007 petition on the prosecution’s mоtion in order to render the minor eligible for DJJ commitment based on the 2005 petition. Thus, the court concluded that the juvenile court was not acting in the interests of justice, as required by section 782, when it dismissed the 2007 petition. (V.C. v. Superior Court, supra, 173 Cal.App.4th at pp. 1465-1468.)
This last case is far different factually than In re J.L., supra,
Our holding is consistent not only with existing case law interpreting sections 733(c) and 111, but also both with the language and with the intent of the applicable statutes. Specifically, we agree with the court in In re M.B. that “[t]he Legislature could not have intended that juvenile court judges be forced into a choice of either sending a DJ[J]-eligible ward to DJ[J] immediately or ordering probation and [thereby] forfeiting the threat of a DJ[J]
C. Petition Versus Notice
There is one complication present in this case that is not discussed in the previously published cases. In this case, the prosecution used the JV-600 juvenile wardship petition form to charge appellant with probation violations on four seрarate occasions (i.e., in the Dec. 2008, Jan. 2009, Feb. 2009, and May 2009 charging forms). To compound the potential for confusion, the prosecution consistently checked the boxes on these forms indicating that they were filed under section 602(a).
The only one of the published cases raising a similar or related issue is In re M.B., supra,
Here, appellant takes the argument one step further, noting that the charging forms filed against him in 2008 and 2009 not only were titled as petitions, but also charged him with acts that not only violated his probation, but also amounted to criminal offenses.
Moreover, it is clear from the 2008 and 2009 charging forms, taken as a whole, that the prosecution’s intent was to charge appellant only with probation violations, and not with the underlying criminal offenses. Thus, the third page of the December 2008 and May 2009 charging forms, which specified the violation being charged, were each titled “NOTICE OF W&I [szc] SECTION 777(a) PETITION.” (Original capitalization.) Similarly, the third page of the January 2009 charging form was titled “FIRST AMENDED NOTICE OF W&I [sic] SECTION 777(a) PETITION.” (Original capitalization.) The February 2009 charging form charged appellant only with leaving his court-ordered placement without permission, and not with any act amounting to a crime. Given the absence of a Judicial Council form specifically tailored to permit the filing of a stand-alone notice under section 777, we decline to conclude, based solely on the use of the JV-600 form as the cover page and the checking of the section 602 boxes on that form, that these charging forms were petitiоns under section 602 rather than the notices of probation violation that the prosecution obviously intended.
The juvenile court’s order committing appellant to DJJ is affirmed.
Sepulveda, J., and Rivera, J., concurred.
Notes
Effective July 1, 2005, the correctional agency formerly known as the California Youth Authority (CYA) became known as the Division of Juvenile Facilities (DJF). DJF is part of the Division of Juvenile Justice, which in turn is part of the Department of Corrections and Rehabilitation. (
Much of appellant’s juvenile court record is not directly relevant to the issue addressed by this appeal. Suffice it to note that four delinquency petitions were filed against appellant between June and September 2006, alleging that appellant committed numerous offensеs, including seven felonies. All of these petitions were resolved by a disposition order filed on November 14, 2006, directing that appellant be committed to a suitable out-of-home placement.
As will appear from our discussion, post, the pivotal question posed by this appeal is whether the document in question is properly characterized as a “petition” as that term is used in section 733(c). For purposes of reciting the procedural history of this case, we refer to this document, and to the similar documents filed later, as “charging forms.”
The word “validation” appears to have been a typographical error on the form. The current version of Judicial Council form JV-600, which was revised effective January 1, 2008, uses the term “violation” in the same location.
The vandalism charge was based on appellant’s having kicked, ripped, and tom an inside door panel in the police car that transported him to juvenile hall after his arrest.
As the court held in In re J.L., supra, 168 Cal.App.4th at pages 55-57, if a subsequent petition charging a non-DJJ-eligible offense is still pending at the time the matter comes before the juvenile' court for disposition, that petition may be dismissed in the interests of justice in order to permit the court to commit the minor to DJJ based on an earlier sustained petition charging a DJJ-eligible offense.
With respect to the December 2008 charging form, respondent’s brief states that these boxes were checked in error, and argues that the December 2008 charging form constituted a notice rather than a petition. This characterization of the December 2008 charging form finds some support in a statement in a subsequent probation report that appellant’s probation officer “sent a petition” to the prosecution, and the prosecution “did not file charges for the [burglary], but filed a [section 777(a)] violation.” Respondent does not explain, however, why the same form was used, and the same boxes were checked, on the three additional charging forms filеd after December 2008.
The prosecution’s use of Judicial Council form JV-600 in the present case may have resulted from the fact that use of this form is mandatory for petitions under section 602, but there is no equivalent form for notices of probation violation proceedings under section 777. As our Supreme Court explained in In re Eddie M., supra, 31 Cal.4th at pages 501-502, there are significant procedural differences between a probation violation notice under section 777, and a petition under section 602. In light of the importance of these differences, we respectfully suggest that it would be appropriate for the Judicial Council to develop a form specifically designed for use as a notice of probation violation in juvenile cases under section 777.
The hybrid charging document in In re M.B., alleged that the minor had committed not only a probation violation (apparently one that did not also constitute a criminal act), but also a non-DJJ-eligible criminal offense (receiving a stolen vehicle). The criminal offense, however, was dismissed, leaving only the probation violation at issue. (See In re M.B., supra,