3 Cal. App. 5th 952

Cal. Ct. App.

2016

In re GABRIEL T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GABRIEL T., Defendant and Appellant.

No. F073030

Fifth Dist.

Sept. 30, 2016.

204 Cal. App. 4th 952

COUNSEL

Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

MCCABE, J.^*—

INTRODUCTION

This opinion involves a troubled minor, appellant Gabriel T., who was placed on informal probation in July 2015 in Madera County Superior Court case No. MJL018293. In August 2015, he admitted a misdemeanor violation of brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)), and he was released into his grandmother‘s custody under certain terms and conditions. In September 2015, he was placed on probation pursuant to Welfare and Institutions Code section 602 after failing to comply with the terms.

In November 2015, the present wardship petition was filed in case No. MJL018293-A, and appellant subsequently admitted a violation of grand theft from the person of another (Pen. Code, § 487, subd. (c)), with a stipulated restitution of $20. The court ordered appellant to the correctional academy for 12 months, consisting of six months of confinement and six months of aftercare under the supervision of probation. It was ordered appellant could be returned to the correctional academy for a one-time remediation of 30 days at any time during the aftercare component due to a violation of probation or program rules.

On appeal the parties agree, as do we, that multiple errors occurred at sentencing. In the published portion, we hold that the 30-day remediation violated the statutory protections afforded in the Welfare and Institutions Code as it permitted the probation officer to determine a violation of probation without notice to appellant and an opportunity to be heard. In addition, we hold that it was impermissible for the juvenile court to impose a $50 “Facilities Assessment” pursuant to Government Code section 70372, subdivision (a).

In the unpublished portion, we agree with the parties that the violation of Penal Code section 487, subdivision (c), was a misdemeanor pursuant to Penal Code section 490.2; the court inappropriately ordered the collection of appellant‘s biological samples pursuant to Penal Code section 296; and the juvenile court erroneously calculated appellant‘s sentence. The parties’ sole disputed issue on appeal is whether a firearm prohibition was properly imposed pursuant to Penal Code sections 29800 and 29805. Based on this sentencing record, however, we are unable to determine whether a firearm prohibition was appropriate or not in this case.

We vacate the sentence and remand for resentencing.

FACTUAL BACKGROUND

I. The Prior Juvenile Record.

On July 7, 2015, the juvenile court granted appellant informal probation pursuant to Welfare and Institutions Code section 654.2 for misdemeanor violations of brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)) and assault (Pen. Code, § 240) in case No. MJL018293. Appellant was ordered, in part, to enroll into and complete substance abuse and anger management counseling, not to possess weapons, and to obey his grandmother.

On August 12, 2015, a modification request was filed with the court alleging appellant failed to obey his grandmother, he left his reported residence without permission, he violated curfew, and he refused to enroll into anger management and substance abuse counseling. On August 20, he was remanded into custody for violation of informal probation, and on August 31, he admitted a misdemeanor violation of Penal Code section 417, subdivision (a)(1). He was released to the custody of his grandmother pending disposition with certain conditions imposed, including not to possess weapons.

On September 28, 2015, appellant was taken into custody after being suspended from school for assaulting another student. Two days later he was placed on probation pursuant to Welfare and Institutions Code section 602 and ordered to serve a 20-day juvenile hall commitment with credit of 20 days for time served.

II. The Current Juvenile Petition.

On November 5, 2015, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), in case No. MJL018293-A. It was alleged appellant committed one felony count of dissuading a witness (Pen. Code, § 136.1, subd. (c)(1); count 1) and one felony count of robbery (Pen. Code, § 211; count 2). The petition stated the maximum aggregate term of confinement would be sought based on the previously sustained petition pursuant to Penal Code section 417, subdivision (a)(1). The maximum time for the previously sustained petition was listed as “1 year.” The petition sought a total aggregate time of six years four months. A violation of probation was also filed on November 5, 2015, alleging appellant failed to obey all laws by violating Penal Code sections 136.1, subdivision (c)(1), and 211.

The petition was subsequently amended to allege in count 1 a violation of Penal Code section 136.1, subdivision (c)(1), and to add a count of grand theft from the person of another (Pen. Code, § 487, subd. (c); count 3). The amended petition did not specify whether the grand theft was charged as a misdemeanor or a felony. According to the police report, the victim and the victim‘s mother indicated the theft resulted in a loss of $20 to $35.

On December 9, 2015, appellant admitted violation of Penal Code section 487, subdivision (c), and the remaining two counts and violation of probation were dismissed. The maximum confinement time was set at three years four months. On January 4, 2016, appellant was continued as a ward of the court, and he was ordered to the correctional academy for 12 months with six months of boot camp and six months of aftercare program. Restitution was ordered at the stipulated amount of $20. Appellant was ordered to serve 65 days in juvenile hall with 65 days of credit for time served. Various other terms and conditions were imposed.

DISCUSSION

I.–III. ^*

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IV. The 30-day Remedial Incarceration Violated Statutory Protections.

The court‘s January 4, 2016, recommended findings and orders states: “At any time during the aftercare component the minor may be returned to the Correctional Academy for a one time remediation of 30 days due to a violation of probation or program rules.” Respondent concedes Welfare and Institutions Code section 777 precludes appellant‘s removal from his home during the “aftercare” portion of the program without complying with statutory notice and hearing requirements. We agree.

A. Background.

At the January 4, 2016, disposition hearing, appellant‘s defense counsel objected to this provision, contending it violated the notice requirements under the Welfare and Institutions Code, it violated due process, and it permitted the probation officer to put appellant into custody without any further review. The juvenile court disagreed, seeing the provision as “a limit on the number of times that they can bring him back into the aftercare program. Because the program is in [sic] this case would be a year program. And six months are in and then six months are out in the aftercare program. And if [appellant] violates during the aftercare program, they bring him back in for a portion of that. In the past there was an unlimited amount of that and they just put a limitation on it by a one-time remediation.” The court said it would follow this recommendation from probation and invited appellant‘s counsel to raise this issue on appeal.

The prosecutor suggested the procedure “was limited” and “an agreement entered into ahead of time.” The court disagreed and stated: “They are not treating it as a new violation of probation where they would file a new petition. They are just treating it as a violation after Correctional Academy program which this Court has ordered for that violation. Instead of completing the aftercare program at home, they have to do—they have to serve a minimum amount of 30 days.”

Following argument from counsel, the court ordered appellant to the correctional academy for 12 months, consisting of six months of confinement and six months of aftercare under the supervision of the probation officer. The court informed appellant: “At any time during the aftercare component you may be returned to the Correctional Camp for a one-time remediation of 30 days due to a violation of probation or program rules.”

B. This issue is appropriate to review on appeal.

Appellant notes this issue is moot as he will not have any confinement time left for this condition to be exercised. However, he asserts this court should address this issue as it is important to the fair and effective administration of justice in the field of juvenile delinquency law. Respondent offers no objection.

We agree that this issue involves a justifiable controversy stemming from an important procedural issue with court-wide impact. There is a likelihood of recurring litigation involving this same issue. We agree that review of this issue is appropriate under these circumstances to provide guidance to juvenile courts. (In re Jorge Q. (1997) 54 Cal.App.4th 223, 229 [62 Cal.Rptr.2d 535] (Jorge Q.) [unripe issue reviewable on appeal because a justifiable controversy existed with a likelihood of recurring litigation].) We will address the merits of this claim.

C. Appellant may not be removed from his home for an alleged violation of probation absent a hearing.

It is the stated purpose of the juvenile court laws to provide protection and safety to the public and to each minor under the juvenile court‘s jurisdiction. (Welf. & Inst. Code, § 202, subd. (a).) It is the goal “to preserve and strengthen the minor‘s family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public.” (Ibid.)

When a minor is adjudged a ward of the court, the court is authorized to impose and require any and all reasonable conditions it determines fitting and proper to obtain justice, and enhance the minor‘s reformation and rehabilitation. (Welf. & Inst. Code, § 730, subds. (a) & (b).) “A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.]” (In re Josh W. (1997) 55 Cal.App.4th 1, 5 [63 Cal.Rptr.2d 701].) “That discretion will not be disturbed in the absence of manifest abuse. [Citation.]” (Ibid.)

If the probation officer determines a minor should be retained in custody, the officer is required to proceed in accordance with Welfare and Institutions Code, article 16 (commencing with § 650) to cause the filing of a petition pursuant to Welfare and Institutions Code section 656. (Welf. & Inst. Code, § 630, subd. (a).) If the minor is alleged to be a person described in Welfare and Institutions Code section 601 or 602, the minor must be served with a copy of the petition, receive notice of the time and place of the detention hearing, and the minor‘s parents or guardians must also receive notice if their whereabouts can be determined by due diligence. (Welf. & Inst. Code, § 630, subd. (a).) At the hearing, the minor has a privilege against self-incrimination, and the right to confront and cross-examine any person examined by the court. (Id., subd. (b).)

When a minor is detained pursuant to a probation violation, a detention hearing must be conducted in accordance with Welfare and Institutions Code, article 15, commencing with section 625. (Welf. & Inst. Code, § 777, subd. (d).) The minor must be released unless the court finds both that the continuance in the home of the parent or legal guardian is contrary to the child‘s welfare and at least one of the following exists: (1) the child violated a court order; (2) the child escaped from a court commitment; (3) the child is likely to flee the court‘s jurisdiction; (4) immediate and urgent necessity exists for the child‘s protection; or (5) it is reasonably necessary for the protection of the person or another‘s property. (Cal. Rules of Court, rule 5.760(c)(1)(A)-(E).) The supplemental petition procedure is designed for situations where the minor is moved to a more restrictive placement because the original disposition has not been effective. (Jorge Q., supra, 54 Cal.App.4th at p. 231.)

A juvenile court cannot lift an imposed, stayed or suspended term of confinement without meeting the requirements of Welfare and Institutions Code section 777. (In re Jose T. (2010) 191 Cal.App.4th 1142, 1147 [120 Cal.Rptr.3d 562].) When evaluating the minor following the filing of a petition pursuant to Welfare and Institutions Code section 777, the court must make required findings that the previous disposition has not been effective regarding the minor‘s rehabilitation or protection. (In re Jose T., at p. 1147.) In order to commit the minor to the Division of Juvenile Justice, the court must be fully satisfied that the minor‘s mental and physical condition and qualifications render it probable the minor will benefit from the commitment. (Ibid.; Welf. & Inst. Code, § 734.)

Here, the condition imposed upon appellant vested absolute discretion in the probation officer to determine if and when a violation of probation occurred during the aftercare program. This condition was not tailored to meet appellant‘s specific needs at the time of any future alleged violation. Moreover, because an alleged violation of probation would have been at issue, the officer was required to proceed in accordance with the notice and hearing requirements under Welfare and Institutions Code, article 16 (commencing with § 650). (Welf. & Inst. Code, § 630, subd. (a).) If and when appellant was detained pursuant to a probation violation, a detention hearing was required pursuant to Welfare and Institutions Code, article 15, commencing with section 625. (Welf. & Inst. Code, § 777, subd. (d).)

The condition which the juvenile court imposed did not require a judicial finding that appellant violated a condition of probation or that his continuance in the home was contrary to his welfare. Appellant was not entitled to notice or an opportunity to be heard. Such a condition does not comply with the statutory requirements of the Welfare and Institutions Code. (Welf. & Inst. Code, §§ 630, subd. (a), 777, subd. (d).) It was impermissible. Accordingly, this condition shall not be imposed upon resentencing.

V. Appellant‘s Sentence Was Erroneously Calculated.^*

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VI. The Penalty Under Government Code Section 70372 Is Stricken.

According to the recommended findings and orders, the juvenile court imposed a $150 “restitution fine” pursuant to Welfare and Institutions Code section 730.6, which included a $50 “Facilities Assessment” pursuant to Government Code section 70372, subdivision (a). We agree with the parties that the $50 Facilities Assessment should be stricken.

Government Code section 70372 imposes a “state court construction penalty” that is levied “upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses....” (Gov. Code, § 70372, subd. (a)(1).) The statute expressly states that this penalty does not apply to any restitution fine. (Id., subd. (a)(2)(A).)

Here, based upon the wording of the recommended findings and orders, it appears the calculation of the $50 Facilities Assessment was based upon the restitution fine. This was error because a construction penalty does not apply to any restitution fine. (Gov. Code, § 70372, subd. (a)(2)(A).) Moreover, we hold this penalty may not be imposed against a juvenile ward.

“Although confinement, fines, and fees imposed upon a ward of the juvenile court may be penal in nature and premised upon a finding of criminal misconduct, juvenile adjudications of wardship are not criminal convictions. [Citations.]” (Egar v. Superior Court (2004) 120 Cal.App.4th 1306, 1308 [16 Cal.Rptr.3d 613].) Pursuant to Welfare and Institutions Code section 203, “[a]n order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.”

“‘Our fundamental task in interpreting a statute is to determine the Legislature‘s intent so as to effectuate the law‘s purpose.‘” (People v. Simmons (2012) 210 Cal.App.4th 778, 790 [148 Cal.Rptr.3d 554].) We give a plain and commonsense meaning to the statutory language, and we are to follow the plain meaning if it is clear. (Ibid.)

Here, the state court construction penalty under Government Code section 70372, subdivision (a)(1), is collected for criminal offenses. Under Welfare and Institutions Code section 203, however, juvenile adjudications of wardship are deemed neither criminal convictions nor criminal proceedings. (In re Derrick B. (2006) 39 Cal.4th 535, 540 [47 Cal.Rptr.3d 13, 139 P.3d 485]; People v. Dotson (1956) 46 Cal.2d 891, 895 [299 P.2d 875] [juvenile proceedings are similar to guardianship proceedings]; Rinaker v. Superior Court (1998) 62 Cal.App.4th 155, 164 [74 Cal.Rptr.2d 464] [juvenile proceeding is a civil action].) Under the plain language of these statutes, the penalty pursuant to Government Code section 70372, subdivision (a)(1), is inapplicable in an adjudication of wardship. At resentencing, the juvenile court shall not impose this penalty.

DISPOSITION

The sentence is vacated. This matter is remanded to the juvenile court for resentencing consistent with this opinion.

Hill, P. J., and Franson, J., concurred.

Notes

Judge of the Merced Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. See footnote, ante, page 952. See footnote, ante, page 952.

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