In re TRAVIS J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TRAVIS J., Defendant and Appellant.
No. A137797
First Dist., Div. Five
Dec. 17, 2013
187
Violet E. Grayson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Christina vom Saal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BRUINIERS, J.—Travis J. entered into a plea agreement in the juvenile court, pursuant to which he admitted felony charges of assault with a firearm and carrying a concealed firearm in a public place. As part of the plea agreement, he stipulated to a commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (also Division of Juvenile
Travis challenges the dispositional order, contending that a minor may nоt be committed to DJJ by stipulation, and that the matter should be remanded for consideration of less restrictive alternatives. He also challenges the imposition of probation conditions and a portion of the court‘s restitution order. The People concede that the probation conditions are improper in the case of a DJJ commitment, and we will order them stricken. We find that the restitution ordered to one of the victims is not supported by substantial evidence and remand for further hearing on that issue. We otherwise affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitions Prior to 2011
On December 22, 2008, the Santa Clara County District Attorney filed a wardship petition (
On July 6, 2009, Travis‘s probation officer filed a request for an order of detention after Travis removed his ankle monitor and did not return to his father‘s home. On July 21, he was adjudged a ward of the juvenile court and was again placed on home probation with his father.
On August 21, 2009, the San Mateo County District Attorney filed a
On May 21, 2010, a warrant issued for Travis‘s arrest after he absconded from Lifeworks group home. The warrant was recalled, on June 23, after Travis was taken into custody. The juvenile court vacated the out-of-home placement order and placed him on home probation with his father. On September 17, a notice of motion to revoke Travis‘s probation (
2011 Petitions
On August 26, 2011, San Francisco police investigated reports of shots fired. Marquita Davis, an adult, reported that Travis, her former boyfriend, approached the car she was sitting in, called her a bitch, and strangled her. When she began to cry, Travis released Davis, removed a handgun from his pocket, aimed it at her stomach, removed $8 from her pocket, and then fired the gun at the car‘s rear tire. Police found a flat rear tire, three shell casings, and one spent round on the ground.
On November 3, 2011, San Francisco police also investigated a call from Oliver Goldsmith stating that Travis had fired a gun at him. Goldsmith reported that he was in his van when another minor walked up to ask for some “weed.” Goldsmith noticed Travis walking up behind the other minor with a gun in his hand. When Goldsmith accelerated away, he heard gunshots. When Travis fired at Goldsmith‘s van, a bullet singed the back of Goldsmith‘s neck. A second bullet passed through the rear passenger window and a third bullet passed through the van‘s rear window, shattering it. Travis was found in a nearby apartment, where a semiautomatic handgun was found inside the stove.
On November 7, 2011, two
With respect to both of the 2011 petitions, the district attorney requested a hearing to determine whether Travis was fit for adjudication under the juvenile court law (
The Plea Agreement
On July 3, 2012, Travis entered into a plea agreement in which he admitted two counts of the Goldsmith petition—assault with a semiautomatic firearm and carrying a concealed weapon—and stipulated to a DJJ commitment. Travis also agreed to waive all credits earned up to that date and to pay restitution on the dismissed counts in both the first and second petitions. In exchange, the district attorney agreed to withdraw the fitness motions, dismiss the remaining counts in the Goldsmith petition, dismiss the Davis petition, and dismiss two pending probation violation petitions. The district attorney calculated Travis‘s maximum term of confinement (MTC) on all pending petitions to be 10 years eight months. Travis was declared a person described by
On July 13, 2012, Travis “petition[ed the juvenile court] for an [MTC] to the [DJJ] for the mitigated sentence of 3 years.” Thereafter, the probation department filed the restitution investigation report, and Travis discharged his public defender and retained private counsel.
At the disposition hearing on January 8, 2013, the court “redeclared” Travis a ward of the court and committed him to DJJ for an MTC of three years. The court took Travis‘s waiver of all credits earned up to that date, ordered Travis to pay $2,900 to Davis and $1,805 to Goldsmith in restitution, and imposed various terms and conditions of probation. The court explained its disposition as follows: “The Court finds that an award of custody to the parents would be detrimental to the minor and an award to a non-parent is required to serve the minor‘s best interests. A return of the minor to his home would be contrary to his welfare. [¶] [¶] Reasonable efforts have been made to prevent or eliminate the neеd for removing the minor from his home and to make it possible for the minor to return home. [¶] And the Court is fully satisfied that the mental and physical conditions and the qualifications of the minor are such as to render probable that the minor will be benefited by reformatory educational discipline or other treatment provided by the probation or juvenile justice. [¶] . . . [¶] The Court has weighed and considered less restrictive alternatives and that is not appropriate to this case. [¶] [¶] The Court has considered a number of factors, including the seriousness of the conduct, the need to protect society, the value of imposing discipline and accountability, extent of the minor‘s need for a structured institutional setting, and professional help, intensive counseling, and school programs provided by DJJ . . . [¶] . . . [¶] And at this time I will issue a[n] [MTC] of three years. I find there are multiple mitigation factors. Among them is that the victims were adults who actually also victimized the minor. And they . . . are the ones who . . . acted . . . very badly in many situations. And you being a minor, unfortunately, you took it a little bit too seriously and you did what you are alleged to have done. It got you into trouble . . . [¶] . . . [¶] And then I also took into consideration there are only property damages and there are no personal injuries to any of the victims. And that the minor has suffered emotional and cognitive deficits when he was growing up, coming from a very dysfunctional family home environment where the parents were fighting over him, causing Travis to be in a position of confusion and difficulty. And I took all of those [factors] intо consideration, thereby mitigating your term of sentence to three years as the maximum.”
At a clarification of disposition hearing on January 14, 2013, the court stated its reasons for selecting the mitigated three-year term, stayed execution of sentence on the count of carrying a concealed weapon, and elected not to aggregate the period of confinement on previously sustained petitions. At the same hearing, Travis‘s counsel argued that the restitution order to Davis was insufficiently verified. Specifically, he contended: “The damage to [Davis‘s] vehicle was to the tire. The police photographed the bullet hole that went through one of the tires. . . . [¶] . . . It is one tire. Under no circumstances could a tire be worth the amоunt that she is asking for nor . . . $400 of lost
II. DISCUSSION
On appeal, Travis argues (1) the dispositional order must be reversed and remanded for evaluation of less restrictive alternatives because a minor cannot be committed to DJJ by stipulation; (2) the juvenile court erred by not exercising its full discretion in setting the MTC; (3) the juvenile court erred in ordering probation conditions, in addition to confinement at DJJ; and (4) the juvenile court abused its discretion in setting the amount of restitution to be paid Davis. We address each argument in turn.
A. Stipulation to DJJ Commitment
Travis first contends: “[A] stipulated DJJ commitment is illegal. It does not comport with controlling California statutes, violates the separation of powers established by the California Constitution, and is inconsistent with recent United States Supreme Court cases concerning development of adolescent brains as it affects their ability to cooperate with counsel. The issue is one of first impression.”3 (Fn. omitted.)
Travis did not object to the DJJ stipulation either when the plea terms were stated in open court, or at the disposition hearing. Nor did he ever seek to withdraw his guilty plea. Accordingly, Travis forfeited his current argument by failing to raise it beforе the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) However, “application of the forfeiture rule is not automatic.” (In re S.B. (2004) 32 Cal.4th 1287, 1293 [“appellate court‘s discretion to excuse
The Welfare and Institutions Code contemplates that a juvenile may choose to admit the allegations of a jurisdictional petition alleging criminal conduct. “At the detention hearing, or any time thereafter, a minor who is alleged to come within the provisions of [s]ection 602, may, with the consent of counsel, admit in court the allegations of the petition and waive the jurisdictional hearing.” (
Travis insists that the italicized language “expressly requires the juvenile court to educatе itself concerning each minor‘s rehabilitative needs, and exercise dispositional discretion” and that “[t]he absence of any mention of a procedure for stipulation to a particular disposition, strongly suggests that plea bargaining counsel are not at liberty to usurp the Juvenile Court‘s dispositional duties.” “When construing the California Rules of Court, we apply the usual principles of statutory construction, looking first to the words of the rule to determine the drafters’ intent and when the language of the rule is clear and unambiguous, we need not probe the rule‘s drafting history. [Citation.]” (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 858.) The California Rules of Court cited here merely provide procedures for conducting the jurisdiction and disposition hearings. We fail to see any prohibition on the substantive naturе of plea agreements reached at such hearings.
In In re Uriah R. (1999) 70 Cal.App.4th 1152 (Uriah R.), Division Four of this court considered whether a juvenile can effectively waive his right to appeal. (Id. at pp. 1154, 1158.) The minor noted that “waiver is not mentioned in either the statute authorizing juvenile appeals (. . . § 800) or the court rule governing admissions of criminal allegations (Cal. Rules of Court, [former] rule 1487) and thus conclude[d] that this omission ‘is a strong indication that for juveniles, such a waiver is impermissible.’ ” (Id. at p. 1158.) The reviewing court rejected this argument, reasoning: “[T]here are two statutory recognitions that a juvenile can waive his constitutional right to counsel (. . . §§ 634, 700) and two rule recognitions that a juvenile may waive additional constitutional rights and admit the charging allegations (Cal. Rules of Court, [former] rules 1485(e), 1487(f)). . . . [T]he person deemed intelligent enough to appreciate the consequences of admitting having committed a crime can also make an intelligent appreciation of the decision to forego review of that admission.” (Uriah R., supra, 70 Cal.App.4th at p. 1158.) Although Uriah himself had not agreed to a stipulated disposition (id. at pp. 1155–1156, 1159), the court nonetheless acknowledged: “[J]uvenile waivers are subject to the same principles governing waivers by adults. Like an adult criminal defendant, a
Uriah R. is not directly on point. However, its reasoning is persuasive. Here, too, Travis presents no compelling reason that a juvenile is intelligent and mature enоugh to appreciate the consequences of admitting having committed a crime but is forestalled from agreeing to a particular disposition. Travis relies on a United States Supreme Court case holding that the Eighth Amendment forbids sentencing a juvenile offender to life in prison without parole for a nonhomicide crime. (Graham v. Florida (2010) 560 U.S. 48 (Graham).) In reaching that conclusion, the court summarized developments in psychology that “show fundamental differences between juvenile and adult minds.” (Id. at p. 68.) The court observed: “[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to аid in their defense. [Citations.] Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. [Citation.] These factors are likely to impair the quality of a juvenile defendant‘s representation. [Citation.] A categorical rule avoids the risk that, as a result of these difficulties, a court or jury will erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a nonhomicide.” (Id. at pp. 78–79; see Miller v. Alabama (2012) 567 U.S. 460 & fn. 5 [132 S.Ct. 2455, 2464–2465 & fn. 5, 2468], (Miller) [raising similar concerns in holding that a sentencing scheme mandating life without parole for juveniles violates 8th Amend.].)
If anything, Graham and Miller could be read to suggest that plea bargains—in their entirety, not just stipulated commitments—are suspect in the juvenile delinquency realm. Indeed, Travis‘s assertion that “adolescents’ incomplete brain development leaves them ill-equipped to weigh long-term consequences, and work with defense counsel in plea bargaining” would seem to apply equally to jurisdictional stipulations. But we decline to read Graham and Miller as broadly as Travis suggests. Neither case addressed a juvenile‘s ability to plea bargain, and “it is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
We have serious difficulty seeing how juvenile offenders (and in particular Travis) would be well served by the sweeping prohibition against sentence bargaining that Travis would have us adopt. Ricardo C. highlights the very practical problem for Travis that he overlooks in his challenge to the dispositional order. We agree that a plea agreement—whether in adult or juvenile court—cannot constrain the sentencing court‘s discretion if it ultimately finds that the agreed-upon terms are unacceptable or inconsistent with the court‘s obligations. But the People are correct that Travis may not seek to improve, on appeal, a bargain he struck in the trial court. Contractual principles govern a negotiated admission, and the general rule is that ” ‘[a] defendant may not retain the favorable aspects of his negotiated disposition and at the [same] time jettison its unfavorable aspects.’ ” (People v. Miller (2012) 202 Cal.App.4th 1450, 1461.) Were we to accept that the court somehow failed to recognize its authority to reject a DJJ
B. Any Error Was Harmless and Less Restrictive Alternatives Were Inappropriate
We reject Travis‘s assеrtion that the juvenile court failed to recognize and exercise its continuing sentencing discretion in this case and his suggestion that the court simply “rubber stamp[ed]” a disposition agreed to by the prosecution and defense. We further reject his contention that the matter must be remanded for consideration of less restrictive alternatives.
The juvenile court must find a commitment to DJJ to be a probable benefit to the minor. (
“The standard of review of juvenile court commitment decisions is well established. ‘The decision of the juvenile court or superior court may be reversed on appeal only upon a showing that the court abused its discretion in its commitment of the minor. A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them. [Citations.]’ ” (In re Jose R. (1983) 148 Cal.App.3d 55, 59–60, quoting In re James H. (1981) 121 Cal.App.3d 268, 273.)
Travis argues that the court should have accepted the recommendаtions of Carlson, his correctional consultant, and of Woods, a social worker employed by the public defender‘s office. Both proposed a placement at the Glen Mills
C. Waiver of Custodial Credits and Imposition of a Three-year MTC
Travis next argues that, even if the DJJ commitment is permitted to stand, there must be a remand for the juvenile court to reset the MTC “in light of the totality of circumstances.” Travis contends that the juvenile court simply selected the lower adult term as the MTC and failed to exercise its full discretion to set the term “based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court.” (
Initially, for the reasons stated ante, we reject Travis‘s contention that his waiver of sentencing credits is either statutorily or constitutionally infirm. We see no reason that a minor may not make a knowing and intelligent waiver of predisposition custodial credits, and the record demonstrates that Travis did so.7 (See People v. Johnson (2002) 28 Cal.4th 1050, 1055; Uriah R., supra, 70 Cal.App.4th at p. 1158.)
But the issue in Julian R. was whether the juvenile court in fact gave consideration to the “facts and circumstances” and whether an oral pronouncement, accompanied by a statement of reasons, was required. (Julian R., supra, 47 Cal.4th at p. 498.) The court held that there was no requirement for an oral pronouncement. (Id. at p. 497.) As here, the minor argued that “a reviewing court must presume from the record‘s silence that the juvenile court was either unaware of, or failed to perform, its statutory duty to consider that the ‘facts and circumstances’ might warrant a confinement period shorter than the adult maximum term.” (Id. at p. 498.) Rejecting that argument, the court observed that applying such a presumption would ” ‘ignore a cardinal principle of appellate review‘: [that a] ‘judgment or order of the lower court is presumed correct’ ” and ” ‘that a trial court is presumed to have been aware of and followed the applicable law.’ . . . [T]hus when ‘a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.’ ” (Id. at pp. 498–499, citations omitted.)
Here the record was not silent. At the time Travis‘s plea was entered, defense counsel reminded the court of its obligation to make an independent finding on the appropriate DJJ term, reserving argument on the issue “to the time of disposition when the Court has а disposition report.” Prior to the
D. Probation Conditions
Next, Travis argues that the juvenile court erred in imposing probation conditions, in addition to the DJJ commitment. The People concede the error. Commitment to DJJ deprives the juvenile court of any authority to directly supervise the juvenile‘s rehabilitation. (In re Owen E. (1979) 23 Cal.3d 398, 404–405; In re Ronny P. (2004) 117 Cal.App.4th 1204, 1208; In re Allen N. (2000) 84 Cal.App.4th 513, 516 [“juvenile court‘s imposition of discretionary conditions of probation constitutes an attempt to regulate or supervise the minor‘s rehabilitation, a function solely in the hands of [DJJ] after the minor‘s commitment“].) Accordingly, we will strike the probation conditions.
E. Restitution to Davis
Finally, Travis contends that the juvenile court‘s order providing for $850 in restitution to Davis is unsupported by substantial evidence. On this point, we agree.
“Generally speaking, restitution awards are vested in the trial court‘s discretion and will be disturbed on appeal only where an abuse of discretion appears. [Citation.]” (In re K.F. (2009) 173 Cal.App.4th 655, 661.) ” ’ “When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.” ’ [Citations.]” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) “The court abuses its discretion when it acts contrary to law [citation] or fails to ‘use a rational method that could reasonably be said to make the victim whole, and may not make an
The People assert that Travis‘s challenge to the restitution order has not been preserved for appeal. We reject the assertion because “[s]ufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. [Citations.]” (In re K.F., supra, 173 Cal.App.4th at p. 660.)
1. Background
As part of the plea agreement, Travis agreed to pay restitution on the dismissed counts in both the first and second petitions. However, no amounts were stipulated. The original order of $2,900 was based on Davis‘s claim, made to the probation officer, that she spent $1,500 repairing bullet holes, spent $1,000 on new rims and tires, and suffered $400 in lost wages. Although the juvenile court subsequently agreed that Davis‘s credibility was questionable, it awarded her $850 in restitution based on its own “reasonable estimate” of the damages. The court explained: “I think there is strong evidence that there are some credibility issues. I agree with [defense counsel]. Nonetheless, [Travis] did . . . blow out one of [Davis‘s] tires. . . . What I will do is make a reasonable estimate for what I believe the damages were. [¶] With respect to [Davis], what I see as documented . . . is that . . . there was one tire that was shot, I think that probably giving my most reasonable judgment I think probably would be in the amount of $800 for that tire. [¶] And in terms of lost wages, I agree that I don‘t see her here. I have never seen her in court. There is no documentation [supporting] where she works and why she incurred $400, but I do know there is some trouble when you have to take thе tire to repair it and to retrieve it, so I will award $50 in terms of lost wages. So the total amount awarded is $850 to [Davis.]”
2. Analysis
“The purpose of an order for victim restitution is threefold, to rehabilitate the defendant, deter future delinquent behavior, and make the victim whole by compensating him for his economic losses. [Citation.] . . . [¶] The order is not however, intended to provide the victim with a windfall. [Citations.]” (In re Anthony M., supra, 156 Cal.App.4th at p. 1017People v. Vournazos (1988) 198 Cal.App.3d 948, 958–959.)
Here, there is no evidence in the record that Davis paid $800 to replace a single tire or that she thereby lost $50 in wages. The replacement or repair cost of the victim‘s property cannot be established simply by statements made by the victim to the defendant‘s probation officer. (People v. Vournazos, supra, 198 Cal.App.3d at pp. 958–959; accord, People v. Harvest (2000) 84 Cal.App.4th 641, 653 [“mentiоn of [victim‘s burial expenses] in the probation officer‘s report . . . may satisfy notice requirements for due process [citation], but it cannot take the place of evidence“].) The juvenile court specifically indicated that it did not find Davis‘s statements to the probation officer credible. Rather, the juvenile court based its restitution order to Davis on nothing more than speculation. It thereby abused its discretion. Accordingly, we will reverse the order and remand the matter for further proceedings to determine Davis‘s “economic losses incurred as the result of [Travis‘s] conduct.” (
The trial court‘s restitution order is reversed and the matter is remanded for further proceedings consistent with this opinion. The discretionary conditions of probation imposеd by the juvenile court are also stricken. As modified, the judgment is affirmed.
Simons, Acting P. J., and Needham, J., concurred.