Opinion
NOT TO BE PUBLISHED
Received for posting 9/24/12
Contra Costa County Super. Ct. No. J10-00015
Retired Associate Justice of the Court of Appeal, First Appellate District, Division 4, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Minor, A.D., appeals from the dispositional order committing him to the Contra Costa Youth Offender Treatment Program (YOTP) after he admitted violating probation by leaving the Orin Allen Youth Rehabilitation Facility (OAYRF) without permission (Welf. & Inst. Code, § 871), as alleged in an October 25, 2011 notice pursuant to Welfare and Institutions Code section 777. Appellant challenges the order dismissing a supplemental petition alleging the escape (§ 871)—an offense not eligible for commitment to the Division of Juvenile Justice (DJJ). We agree with appellant that the dismissal was premised on an error of law and will reverse.
All further undesignated statutory references are to the Welfare and Institutions Code.
As of July 1, 2005, the correctional agency formerly known as the California Youth Authority (CYA) became known as the Division of Juvenile Facilities (DJF). The DJF is part of the DJJ. (§ 1710, subd. (a); Pen. Code, § 6001; Gov. Code, §§ 12838, subd. (a), 12838.2, 12838.5, 12838.13.) Statutes that formerly referred to the CYA such as sections 731 and 733, now refer to the DJF. However, the parties to this appeal refer to the DJF as the DJJ. In this opinion, we likewise refer to the DJF as the DJJ. (In re D.J. (2010) 185 Cal.App.4th 278, 280, fn. 1.)
I. BACKGROUND
A. Original 602 Petition Filed in January 2010
On January 5, 2010, a petition under section 602 was filed against appellant, who was then 16 years old, alleging that he committed assault with a knife and by means of force likely to product great bodily injury. (Pen. Code, § 245, former subd. (a)(1).) Following appellant’s plea of no contest, the juvenile court found the allegations to be true. On March 2, 2010, the court adjudged appellant to be a ward of the court and committed him to OAYRF for nine months.
On April 13, 2010, appellant admitted he had violated probation by assaulting another ward at OAYRF. On April 19, 2010, the court added an additional 60 days to appellant’s OAYRF commitment. Appellant was paroled from OAYRF on January 25, 2011.
At the March 8, 2011 parole review hearing, the court terminated appellant’s parole due, in part, to his poor conduct at school, including gang-related activity such as “flashing his tattoo ‘West Pittsburg’ located on his chest to other students.” Following a gang-related fight with another student, appellant was expelled from school. It was additionally reported that appellant was beyond his mother’s control. The court continued appellant’s wardship and ordered him to serve 30 days at juvenile hall.
On May 5, 2011, a notice under section 777 was filed, alleging appellant violated probation by violating curfew, wearing gang clothing, and testing positive for cocaine. On May 10, 2011, appellant admitted the allegations. On May 24, 2011, the court continued appellant as a ward of the court and committed him to OAYRF for nine months.
B. Supplemental 602 Petition and section 777 Notice filed in October 2011
On October 5, 2011, a supplemental petition under section 602 was filed against appellant, alleging that he had escaped from OAYRF (§ 871, subd. (a)), and a bench warrant was issued. Then, on October 25, 2011, a notice under section 777 was filed, alleging the same conduct as alleged in the supplemental petition.
At the October 26, 2011 detention hearing, the juvenile court dismissed the supplemental wardship petition at the request of the probation department. Appellant’s public defender was not at the hearing, but a substitute attorney appeared on appellant’s behalf. The substitute attorney, who did not have the file and was unfamiliar with the case, initially agreed to the dismissal, but then quickly requested that the petition be reinstated. The court agreed to continue the matter so that appellant’s assigned attorney could address the issue of reinstatement.
On December 1, 2011, the juvenile court denied appellant’s motion to reinstate the supplemental petition. Appellant then submitted on the basis of the probable cause declaration supporting the section 777 notice. The court sustained the probation violation.
On January 3, 2012, the court committed appellant to YOTP, setting the maximum time of confinement to four years (or until age 21—whichever occurs first), less 649 days as credit for time served.
This timely appeal followed.
II. DISCUSSION
A. Contentions on Appeal
Appellant’s primary contention on appeal is that the juvenile court erroneously utilized section 782 to dismiss the supplemental petition alleging an offense that was not eligible for DJJ commitment under section 733, subdivision (c) (hereafter section 733(c)) in order to reach back to an earlier petition alleging a DJJ-eligible offense that appellant had admitted. Alternatively, appellant asserts that the juvenile court was unaware of, and failed to exercise its discretion under section 782. The California Supreme Court recently rejected the first contention. Nevertheless, we find appellant’s alternative assertion of error justifies reversal.
Before addressing the merits of appellant’s contentions, we briefly address respondent’s argument that appellant has forfeited such claims by acquiescing to the dismissal. Respondent argues that, at the October 26, 2011 hearing, appellant’s counsel did not object to the request for dismissal. Rather, it “ ‘was after the fact that there was a request to reinstate [the] already dismissed petition.’ ” Respondent further contends that “appellant did not ask for, nor did the court make sua sponte, the interests-of-justice analysis advanced by appellant” at the December 1, 2011 hearing. The record, however, clearly reflects that appellant’s assigned attorney was not at the October 26, 2011 hearing. Rather, a substitute attorney, who was unfamiliar with appellant’s case and who did not have the file, appeared for appellant’s assigned counsel. Although the substitute attorney initially agreed to the dismissal, almost immediately he requested that it be reinstated and that the matter be continued so that appellant’s assigned counsel could address the issue. At the subsequent hearing on December 1, 2011, appellant’s assigned counsel appeared and vigorously argued that dismissal of the October 2011 petition was not in appellant’s best interest. Under these circumstances, we are disinclined to find forfeiture. To the extent reasonable minds could differ regarding whether the issues have been preserved on appeal, we exercise our discretionary review authority to reach the merits of appellant’s claims. (See In re Sheena K. (2007) 40 Cal.4th 875, 887-888, fn. 7.)
B. Applicable Law and Standard of Review
A minor may not be committed to the DJJ unless his or her most recent offense alleged in any petition and admitted or found true by the court is one described in section 707, subdivision (b). (§ 733(c); In re D.J., supra, 185 Cal.App.4th at p. 284.) Subdivision (b) of section 707 specifies those offenses that may form the basis of DJJ commitment. Here, the DJJ-eligible offenses include the assault alleged in the January 2010 petition, but not the misdemeanor escape alleged in October 2011 petition that the juvenile court dismissed.
Juvenile courts have long had the authority to dismiss juvenile petitions in the interests of justice. (In re Greg F. (Aug. 27, 2012, No. S191868) 55 Cal.4th 393 [2012 WL 3641512, *5] (Greg F.).) Section 782 describes the juvenile court’s discretion to dismiss delinquency petitions (id. at *6), and it provides, in relevant part, as follows: “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.”
A juvenile court’s commitment order may be reversed on appeal only upon a showing that the court abused its discretion. (In re Todd W. (1979) 96 Cal.App.3d 408, 416, superseded by statute on other grounds.) “ ‘We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.’ ” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) In determining whether the juvenile court abused its discretion, a commitment must conform to the general purpose of the juvenile court law, which is concerned with public protection and the minor’s best interests. (§ 202; In re Todd W., supra, at p. 417; see also In re Eddie M. (2003) 31 Cal.4th 480, 488.)
A section 782 dismissal is also subject to review for abuse of discretion. (See In re Jesus J. (1995) 32 Cal.App.4th 1057, 1060.) “If the juvenile court’s action is arbitrary, or does not comport with section 782’s requirements that the dismissal serve the interests of justice and the welfare of the minor, ” it is subject to reversal as an abuse of discretion. (In re Greg F., supra, at *12.)
C. Dismissal Was Based on an Error of Law and Cannot Be Upheld as an Exercise of Discretion Under section 782
Appellant contends the prosecution intentionally avoided the application of section 733(c) by seeking dismissal of the October misdemeanor escape petition, as this petition alleged an offense that could not form the basis of a DJJ commitment. The dismissal allowed the juvenile court to rely on its earlier finding that appellant had committed an assault as alleged in the January 2010 petition. According to appellant, the juvenile court abused its discretion in dismissing the subsequent petition because the sole purpose of the dismissal was to preserve the court’s ability to commit appellant to DJJ.
Under similar facts, the California Supreme Court in Greg F., supra, 55 Cal.4th 393 recently held that “section 733(c) does not deprive the juvenile court of its discretion to dismiss a 602 petition and commit a ward to [DJJ] when, in compliance with section 782, such a dismissal is in the interests of justice and for the benefit of the minor.” (Id. at *3.) In so holding, the court expressly disapproved of V.C. v. Superior Court (2009) 173 Cal.App.4th 1455—the primary authority upon which appellant relies—to the extent it concludes that “section 733(c) must always override the juvenile court’s ability to dismiss a delinquency petition under section 782.” (Id. at *13.)
Nevertheless, Greg F., supra, 55 Cal.4th 393, supports appellant’s alternate argument that the juvenile court failed to exercise its discretion by failing to find either expressly or impliedly that dismissal under section 782 was required by the interests of justice and the welfare of the minor. (See id. at *14-16.) Specifically, when addressing the concerns of the dissent—that a dismissal permitting a DJJ commitment “ ‘cannot be in the interests of justice, ’ as required by section 782, because ‘those interests have already been determined by the Legislature’ and expressed in section 733(c)”—the Greg F. majority explained that “[i]n deciding whether a dismissal that would qualify an otherwise ineligible minor for a [DJJ] commitment serves the interests of justice and the minor’s welfare, the court must take into account all circumstances relevant to the public’s need for safety and the juvenile’s need for rehabilitation.” (Id. at *15, italics added.) Thus, Greg F., supra, 55 Cal.4th 393 instructs that while section 733(c) does not deprive the juvenile court of its discretion to dismiss a section 602 petition under section 782, that discretion is not unbridled. (Id. at *3, 14.) “To this end, the language of section 782 specifically requires that any dismissal of a delinquency petition serve both ‘the interests of justice and the welfare of the minor.’ (§ 782, italics added.)” (Id. at *14.)
For example, in In re Albert M. (1992) 7 Cal.App.4th 353, 358-359 (Albert M.) an appellate court reversed the dismissal of a wardship petition because the court’s stated reasons did not “demonstrate that [it] made any of [the findings required by section 782], expressly or impliedly, before it exercised its discretion to dismiss the petition. The court merely noted that the matter had been continued many times, and that the minor had spent as much time in court as he would have spent in juvenile hall if ‘convicted.’ This does not constitute a finding under... section 782.” (Id. at p. 358.) The appellate court reasoned that in the absence of a factual showing of prejudice or some statutory scheme requiring dismissal for failure to bring the matter to hearing within a certain time, a time lapse does not support a section 782 finding. (Ibid.) It found the juvenile court’s statement that the minor had spent as much time in court as he would have spent in juvenile hall if convicted to be “inappropriate because it amounted to a prejudged disposition assuming the allegation against the minor was found true.” (Id. at pp. 358-359.)
Here, there is no indication in the record that the juvenile court was aware of the requisite findings for a dismissal under section 782. Rather, the court believed that given the stage of the proceeding—prior to any adjudication—respondent had the “right” to dismiss “their own petition....” The juvenile court further declared its belief that it was only required to make an “interest of justice” finding if it was exercising its discretion to dismiss the petition at “disposition.” Thus, the juvenile court believed that it was not required to analyze “whether or not [the dismissal] was in the minor’s best interest.”
The juvenile court’s misunderstanding of the requisite findings for dismissal under section 782 appears to be based, in part, on California Rules of Court, rule 5.790(a), which provides, in relevant part, that “[a]t the disposition hearing: [¶]... [¶] The court may... [d]ismiss the petition in the interests of justice and the welfare of the child... with the specific reasons stated in the minutes.” (See Albert M., supra, 7 Cal.App.4th at p. 360 (conc. opn. of Timlin, J.) [discussing former California Rules of Court, rule 1493 and advocating for adoption of judicially created rule requiring specific reasons for dismissal be stated in juvenile court minutes whenever dismissal is ordered, irrespective of the nature of the proceeding].) Nothing, however, in this rule of court purports to limit the exercise of discretion for dismissals occurring only at disposition.
The overall purpose of the Juvenile Court Law is, in part: “ ‘[T]o secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the state; to protect the public from criminal conduct by minors; to impose on the minor a sense of responsibility for his own acts;... [¶] The purpose of this chapter also includes the protection of the public from the consequences of criminal activity, and to such purpose probation officers, peace officers, and juvenile courts shall take into account such protection of the public in their determinations under this chapter.’ ([Former] § 202.)” (Derek L. v. Superior Court (1982) 137 Cal.App.3d 228, 233.)
Consistent with these overriding concerns, “the juvenile court is not only authorized, but obligated, in carrying out its duties under the Juvenile Court Law, to weigh and consider both the interests of the juvenile and the interests of society.” (Derek L. v. Superior Court, supra, 137 Cal.App.3d at p. 233.) It is obvious that the juvenile court dismissed the petition based on the mistaken assumption that it was not required to consider the interests of justice and needs of the minor. In the absence of such consideration, the trial court did not exercise its power to dismiss the petition under section 782 in a lawful manner. (See In re Juan C. (1993) 20 Cal.App.4th 748, 753.)
Accordingly, we conclude the record does not expressly or impliedly include reasons supporting dismissal pursuant to section 782. The dismissal order was premised on an error of law and is invalid.
This determination obviates any need to resolve respondent’s contention that appellant was not prejudiced by the commitment order because he was 18 years old at the time of disposition.
III. DISPOSITION
The juvenile court’s order dismissing the supplemental petition is reversed and the matter is remanded for further proceedings consistent with this opinion.
Nothing in this opinion proscribes the juvenile court’s discretion to dismiss the supplemental petition on remand. Rather, the juvenile court is directed to exercise its discretion, by making the requisite findings under section 782 in determining whether dismissal of the supplemental petition is appropriate in the instant case.
We concur: Reardon, Acting P.J., Rivera, J.