Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV122271
BUTZ, J.After finding that minor D.S. had violated his probation, the Sacramento County Juvenile Court committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for a maximum of nine years and not to exceed age 25. The minor received 390 days of predisposition credit. Following the conclusion of the disposition hearing, the court imposed various conditions of probation.
On appeal, the minor contends (1) the juvenile court lacked authority to commit him to DJF, (2) there is insufficient evidence that he would benefit from a DJF commitment, (3) the court failed to properly calculate his time credits, and (4) the court erroneously imposed probation conditions after committing him to DJF. The Attorney General concedes the last two points. We shall modify the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because the minor admitted both incidents, our statement of facts is taken from the prosecutor’s statement of factual basis for the robbery and the probation officer’s report on the probation violation.
In October 2007, the minor took personal property from the person and immediate presence of Antonio Flores through the use of force and fear. The minor assaulted Flores and took his property.
In December 2007, an amended juvenile wardship petition (Welf. & Inst. Code, § 602; form JV 600) was filed alleging that minor D.S., then age 15, had committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and four related offenses. The minor admitted the robbery allegation and the balance of the petition was dismissed with a Harvey waiver. The minor was placed on probation and committed to the Rite of Passage program.
Undesignated statutory references are to the Welfare and Institutions Code.
People v. Harvey (1979) 25 Cal.3d 754.
In March 2008, the minor and two confederates broke into George Palmer’s residence and removed several items of property (e.g., a plasma television). They took the items to an abandoned house nearby. The minor attempted to flee from law enforcement. He confessed to the burglary.
On April 2, 2008, the district attorney filed a wardship petition alleging that the minor had committed residential burglary in March 2008. (Pen. Code, § 459.) That same date, the probation department filed a wardship petition (form JV 600) along with a notice of hearing to modify, change or set aside previous orders due to a probation violation (§ 777; form JV 735). The notice alleged that the minor had violated probation by remaining away from a court-ordered placement and by failing to obey group home staff.
On April 29, 2008, the district attorney filed both a wardship petition (form JV 600) and a notice of hearing to modify, change or set aside previous orders due to a violation of probation (form JV 735.) The district attorney’s April 2, 2008 wardship petition was dismissed in the interest of justice as superseded by the notice of probation violation.
The April 29, 2008 wardship petition alleged the minor’s name, address, birthdate, sex, previous declaration of wardship, and adult relative, but it contained no further factual allegations. The April 29, 2008 notice of hearing alleged that the minor had violated probation by failing to obey all laws in that he had committed the same residential burglary that had been alleged in the April 2, 2008 wardship petition.
At a hearing on April 29, 2008, the minor admitted the allegation that he had violated probation by committing residential burglary. The probation department’s April 2, 2008 petition was dismissed with a Harvey waiver as to the allegations of remaining away from placement and failing to obey group home staff.
In May 2008, the juvenile court committed the minor to DJF.
DISCUSSION
I. The Juvenile Court Had Authority to Commit the Minor to DJF
The minor contends section 733, subdivision (c) barred his commitment to DJF and the matter must be remanded for resentencing. We disagree.
Section 733 provides in relevant part: “A ward of the juvenile court who meets any condition described below shall not be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities: [¶]... [¶] (c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707.... This subdivision shall be effective on and after September 1, 2007.” (Italics added.)
Robbery is described in Welfare and Institutions Code section 707, subdivision (b)(3) and (16); first degree burglary, unless committed against the elderly, is not (Pen. Code, § 1203.09).
The minor contends section 733 bars his DJF commitment because the 2008 burglary, not the 2007 robbery, is the “most recent offense alleged in any petition.” (§ 733, subd. (c).) He offers two reasons for this conclusion. Neither is persuasive.
A. The Two Distinct Pleadings Were Not Intended to Function as a Section 602 Petition
The minor first reasons that both the April 29, 2008 wardship petition and the April 29, 2008 notice of hearing to modify, change or set aside previous orders due to a probation violation were “filed as a [section] 602 petition.” Thus, the burglary alleged in this “petition” is his most recent offense for purposes of section 733. We disagree.
The April 29, 2008 filing consisted of two distinct pleadings, form JV 600 and form JV 735. Nothing in the record suggests that the form JV 735 was intended to function as “a section 602 petition,” which ordinarily is the purpose of form JV 600. Instead, the record suggests the opposite--that the form JV 600 was intended to function, if at all, as a cover sheet for the form JV 735 notice of probation violation.
The form JV 600 consisted of pages 1, 2, and “Attachment B,” which listed the names and addresses of the minor and an adult relative. The form made no reference to form JV 135 or to “Attachment A,” both of which followed.
On page 1, the form JV 600 alleged the minor’s name (by reference to Attachment “B”), age, birthdate, sex, and previous declaration of wardship. On page 2, the “Petitioner request[ed] that the court find these allegations to be true.” The form neither alleged any inappropriate conduct by the minor nor requested that any such alleged conduct be found true by the court.
Instead, the only allegation of inappropriate conduct appeared on the form JV 135 notice of hearing. The allegation stated: “VIOLATION OF PROBATION COUNT ONE [¶] That said minor, [D.S.], violation [sic] probation in that said minor failed to obey all laws when on or about March 28, 2008, did [sic] minor did commit a felony namely: a violation of Section 459 of the Penal Code of the State of California, in that said minor did unlawfully enter an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by GEORGE PALMER, with the intent to commit larceny and any felony.”
There is no indication of intent to incorporate this allegation into the form JV 600, in order to flesh out a section 602 petition. Rather, because the form JV 135 is not captioned (except for the case name and number), the only evident intent is to incorporate the captioned but otherwise vacuous form JV 600 into the form JV 735 notice. This technique is factually distinguishable from In re M.B. (2009) 174 Cal.App.4th 1472 (M.B.), in which both a probation violation and a criminal charge were alleged on the same page of a pleading entitled “‘JUVENILE WARDSHIP PETITION WELF & INST CODE [SECTION] 602/777.’” (M.B., at p. 1476.)
At the April 29, 2008 hearing, the combined documents were treated exclusively as a notice of probation violation and not as a wardship petition. The minor’s claim that the documents were, in fact, a section 602 petition has no merit.
B. “Petition” in Section 733, Subdivision (c) Refers to a Petition Filed Under Section 602 But Not a Notice Filed Under Section 777
The minor next claims the 2008 burglary is the “most recent offense alleged in any petition” (§ 733, subd. (c)) because the quoted statutory phrase is not limited to section 602 petitions and can be read to include section 777 petitions to revoke probation. In the minor’s view, the legislative history of section 733 “demonstrates that the Legislature was attempting to prohibit the Juvenile Court from sending minors to [DJF] unless they had committed a new offense that also was a Welfare and Institutions Code section 707, subdivision (b) offense.”
The minor recognizes that In re J.L. (2008) 168 Cal.App.4th 43 (J.L.) and M.B., supra, 174 Cal.App.4th 1472 have rejected his contention. He claims J.L. and M.B. were wrongly decided because “the plain meaning of the language controls,” and section 733 “does not make a distinction between petitions filed under [] Section 777 or 602.” We disagree.
J.L. determined “that ‘the most recent offense’ in [section 733,] subdivision (c) refers to an offense alleged in a petition that is filed under section 602, but not to a probation violation that is alleged in a notice filed under section 777.” (J.L., supra, 168 Cal.App.4th at p. 58.) The court explained:
“Section 733, subdivision (c), specifically refers to an offense that is alleged in a ‘petition.’ As explained by the California Supreme Court, ‘[n]o section 602 case begins until the prosecutor files a petition under that statute on the People’s behalf. [Citation.] The petition states which penal laws were violated and whether the offenses are felonies or misdemeanors. [Citations.]’ ([In re Eddie M. (2003) 31 Cal.4th 480,] 487 [(Eddie M.)], italics added [by J.L.].)
“In contrast, section 777 has a ‘“notice” provision. [Citation.] [Fn. omitted.]’ [Citation.] The notice provision replaced the ‘supplemental petition’ that had been contemplated by the statute ‘[b]etween section 777’s enactment in 1961, and Proposition 21’s approval in 2000....’ (Eddie M., supra, 31 Cal.4th at p. 489.) Our Supreme Court has explained: ‘In 2000, Proposition 21 changed the scope of section 777 in section 602 cases. As pertinent here, voters deleted the provision allowing prosecutors to allege probation violations amounting to crimes. Now, for wards or probationers under section 602, section 777 applies... [to] a probation violation “not amounting to a crime.” [Citation.] [¶] With respect to procedural changes, Proposition 21 replaced the supplemental petition with a “notice” provision. [Citation.] A “preponderance of the evidence” standard now applies. [Citation.] Other new language allows “reliable hearsay evidence” insofar as it would be “admissible in an adult probation revocation hearing [under] People v. Brown [(1989) 215 Cal.App.3d 452] and any other relevant provision of law.” [Citation.] [Fn. omitted.]’ (Eddie M., supra, 31 Cal.4th at p. 491.)
“The California Supreme Court has further explained that ‘by limiting section 777[, subdivision] (a)(2) to matters “not amounting to... crime[s],” Proposition 21 only affected the manner in which such violations are officially treated under the statute. Section 777[, subdivision] (a)(2) covers all probation violations alleged as such, including those that are criminal in fact.’ (Eddie M., supra, 31 Cal.4th at p. 502.) Nonetheless, ‘juvenile probation violations, like their adult counterparts, do not involve criminal guilt. While section 777 continues to permit dispositional change for probation violations involving criminal conduct, the “not amounting to a crime” limitation precludes prosecutorial use of the statute to plead and prove the violation as a crime. Thus, unlike criminal convictions or section 602 offenses, section 777 adjudications do not entail the “stigma of a finding that [the juvenile] violated a criminal law.” [Citation, fn. omitted.] Nor do such probation violations trigger other collateral consequences associated with convictions or section 602 adjudications. [Citation.] Because section 777 involves no formal criminal charge, the reasonable doubt standard need not constitutionally apply.’ (Eddie M., supra, 31 Cal.4th at p. 506.) Additionally, ‘section 777 follows the adult scheme insofar as probation violations do not trigger a term of confinement any longer than the maximum term for the underlying crime. [Citations.] By this measure, section 777 makes no unfavorable penal change, and the preponderance standard can apply.’ (Eddie M., supra, 31 Cal.4th at p. 506.)
“In sum, ‘Proposition 21 transformed section 777[, subdivision] (a)(2) into a probation violation procedure in which no criminal offense can be alleged.’ (Eddie M., supra, 31 Cal.4th at p. 508.) ‘Even if criminal in fact, new misconduct may be treated, under section 777[, subdivision] (a)(2), only as a probation violation. If a violation is found, the violator may, at most, receive a more restrictive juvenile placement within the original maximum term.’” (J.L., supra, 168 Cal.App.4th at pp. 58-60.)
J.L. concluded: “In view of the different procedures in a proceeding under section 602 as compared to a proceeding under section 777, including that the former is initiated by a petition while the latter is initiated by a notice, and the constitutional distinctions between alleging that a crime has been committed as compared to alleging that probation has been violated, we conclude that the reference to a ‘petition’ in section 733, subdivision (c), refers to a petition that is filed under section 602 but not a notice filed under section 777.” (J.L., supra, 168 Cal.App.4th at p. 60.)
We agree with J.L. on this point. We also note that, in enacting a statute such as section 733, the Legislature is deemed to have been aware of statutes and judicial decisions already in effect and to have enacted the new statute in light thereof. (People v. Hernandez (1988) 46 Cal.3d 194, 201; People v. Overstreet (1986) 42 Cal.3d 891, 897.) Thus, when it enacted section 733 in 2007, the Legislature was deemed to have been aware of the changes that Proposition 21 had made to section 777 in 2000 and that Eddie M. had described in 2003. (Eddie M., supra, 31 Cal.4th at pp. 486-491, 502-508.) Thus aware of Proposition 21 and Eddie M., the Legislature could not reasonably have relied on the single word “petition” to mean both a section 602 petition and a section 777 notice.
The minor’s “plain meaning” argument fails because, even if the word “petition” previously had been broad enough to encompass both a section 602 petition and a section 777 “supplemental petition,” Proposition 21 gave the word the additional, narrower meaning that we have described. Thus, an ambiguity arose where none had existed. The question for judicial resolution is whether the drafters of section 733 intended the broad or narrow meaning. Because the Legislature is presumed to have acted in light of the new statutory scheme (People v. Hernandez, supra, 46 Cal.3d at p. 201; People v. Overstreet, supra, 42 Cal.3d at p. 897), we conclude the narrow meaning is the one the drafters intended.
The minor’s reliance on the Legislative Counsel’s Digest for Senate Bill No. 81 is misplaced. The Counsel’s analysis, like the statute itself, refers to offenses “alleged in any petition” and does not suggest that the word “petition” should have a broader meaning than that set forth in J.L. and M.B. (Legis. Counsel’s Dig., Sen. Bill No. 81, Stats. 2007 (2007-2008 Reg. Sess.) Summary Dig., pp. 3-4; see § 733, added by Stats. 2007, ch. 175, § 22.)
In V.C. v. Superior Court (2009) 173 Cal.App.4th 1455 (V.C.), this court held that a juvenile court erred at a 2008 hearing on a section 777 notice when it dismissed a section 602 petition that had been filed in 2007 and had been resolved by admission of a non-section 707, subdivision (b) offense. With the 2007 petition dismissed, the minor’s 2005 commission of a section 707, subdivision (b) offense became his most recent for purposes of section 733. (V.C., supra, at pp. 1463-1469 (maj. opn.), 1470-1473 (conc. opn. of Scotland, P. J.).)
As relevant here, the majority commented that “neither the language nor the legislative history of section 733[, subdivision] (c) demonstrates the intent of the Legislature to allow commitment of minors to DJF who are not currently serious or violent offenders.” (V.C., supra, 173 Cal.App.4th at p. 1468, italics added.)
This comment does not assist the minor. The majority in V.C. explained that the Legislature determines whether an offender is “currently serious or violent” by looking to the minor’s “‘most recent offense alleged in any petition.’” (V.C., supra, 173 Cal.App.4th at p. 1468.) Neither the majority nor the concurring opinion suggested that the word “petition” had a meaning other than the one discussed in J.L. (V.C., at pp. 1463-1469 & fn. 11 (maj. opn.), 1470-1473 (conc. opn. of Scotland, P. J.).)
The majority further commented: “Dismissal of the most recent petition to reach back to an earlier petition containing a DJF qualifying offense would be contrary to the unmistakable plain language of section 733[, subdivision] (c). It would frustrate the legislative policy expressed by the language of section 733[, subdivision] (c).” (V.C., supra, 173 Cal.App.4th at p. 1468, italics added.)
The minor’s reliance on this comment is misplaced. The majority was referring to dismissal of a subsequent section 602 petition in order to reach back to an earlier section 602 petition. (V.C., supra, 173 Cal.App.4th at pp. 1459-1460.) Here, however, only the April 2, 2008 section 602 petition had been dismissed, and the reason was proper: The petition had been superseded by the April 29, 2008 notice of probation violation. Neither J.L., nor V.C., nor M.B. had yet been decided, and the record does not indicate that the April 29, 2008 notice of probation violation had been filed for the purpose of evading section 733.
As we have seen, the April 29, 2008 section 602 petition was not dismissed; the parties simply treated the vacuous pleading as part of a section 777 notice. This, too, was not the sort of manipulation later condemned in V.C.; the minor properly concedes that it is “possible that this simply was a mistake, as all other notations in the record indicate it was considered a violation of probation.”
Nothing in V.C. suggests any legislative intent that a minor whose most recent section 602 adjudication is for a DJF-qualifying offense should not be sent there after violating probation, simply because the violation itself does not constitute a DJF-qualifying offense. As the court stated in M.B., supra, 174 Cal.App.4th at page 1477, “It is unlikely that the Legislature intended always to bar DJF commitments for juveniles who commit DJF-eligible offenses, who are given a second chance via probation, and who fail to make good on that second chance.... The Legislature could not have intended that juvenile court judges be forced into a choice of either sending a DJF-eligible ward to DJF immediately or ordering probation and then forfeiting the threat of a DJF commitment later if the ward violates probation.” (Italics added.) We decline to construe section 733, subdivision (c) in an absurd manner that forces juvenile courts to make this choice. (E.g., People v. Wagner (2009) 45 Cal.4th 1039, 1057.) There was no error.
II. There Was Sufficient Evidence the Minor Would Benefit from a DJF Commitment
The minor contends the juvenile court erred by committing him to DJF without substantial evidence that he would benefit from the commitment. We are not persuaded.
Section 734 provides: “No ward of the juvenile court shall be committed to [DJF] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by [DJF].”
The juvenile court stated it was “fully satisfied that in this case,... it is probable that [the minor] will be benefited by [DJF] if he wants to be benefited.... If he wants to be benefited, he will be benefited.”
“The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJF]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. 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. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395; see In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Those purposes include the “protection and safety of the public”; to that end, punishment is now recognized as a rehabilitative tool. (§ 202, subds. (a), (b); Asean D., supra, at p. 473; Michael D., supra, at p. 1396.)
“To support a [DJF] commitment, it is required that there be evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; see In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) However, it is not necessary that less restrictive alternatives be attempted before a DJF commitment is ordered. (In re James H. (1985) 165 Cal.App.3d 911, 922.)
The juvenile court found that DJF has “the opportunity and the rehabilitative services to help, if it’s possible to help” the minor. The court added that DJF has “substance abuse counseling. They have victim awareness counseling. They have decisionmaking counseling. They have anger management counseling. They have daily school. They have vocational training. They have masonry and different vocations that it’s possible to learn. So they have got everything there.”
The minor claims the foregoing was “merely an assertion by the court, with no supporting evidence. There was no evidence of what DJF actually offered or how it would benefit [the minor] in particular.” The point fails. It is established that DJF has “specialized institutions and rehabilitative programs tailored to the delinquent’s sophistication and need for security.” (In re Tyrone O. (1989) 209 Cal.App.3d 145, 153.) No statutory or decisional authority required the prosecution to present proof of each DJF program that might possibly be used to treat the minor at some point in the future.
What was required is evidence that the minor probably would benefit from the specialized institutions and rehabilitative programs. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576.) The probation report noted that “the minor absconded from Rite of Passage staff before being able to be transported to said facility.... [¶] Numerous attempts have been made by the Court to aid in the reunification of the minor with the mother in Texas; however, on every such occasion, the minor ultimately absconds from the home, and returns to the County of Sacramento where he has engaged in criminal behavior. As a result, Court intervention has included Wardship, commitment to the home, Electronic Monitoring, two commitments to the Youth Center, and one previous commitment to [an out-of-state facility]. The minor has absconded from every said commitment....”
The juvenile court noted that the Rite of Passage program, a “suitable level ‘B’ placement” that the probation department was recommending, included weekend furloughs and weekend passes. Echoing the evidence in the probation report, the judge predicted, “[I] think the first time they give [the minor] a weekend pass back here in Sacramento, they have seen the last of him.” The minor’s claim that the court “dismissed” the idea of a level B placement “without any evidence whatsoever” has no merit.
The foregoing evidence supports an inference that the minor’s failures at several less restrictive placements were based upon his tendency to abscond. The juvenile court could deduce that the minor would benefit from a DJF placement in that its secure specialized facilities would eliminate the mechanism of his prior failures. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 485 [minor needed a closed setting where he has “‘a history of running away’”]; cf. In re Tyrone O., supra, 209 Cal.App.3d at p. 153 [repeated escape attempts support DJF commitment]; In re Martin L. (1986) 187 Cal.App.3d 534, 544 [running away from two prior juvenile court placements supports DJF commitment].) There was sufficient evidence of probable benefit from a DJF commitment and of the ineffectiveness of less restrictive alternatives. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576.)
III. The Minor Is Entitled to an Additional 10 Days of Credit
The minor contends, and the Attorney General concedes, he is entitled to an additional 10 days of predisposition credit. The probation report recommended 34 days of credit for the period from October 19, 2006, through December 1, 2006. As the parties note, this is a period of 44 days. Thus, the total award of 390 days must be modified to 400 days.
IV. The Court Erred When It Imposed Probation Conditions After the Minor’s Commitment to DJF
The minor contends the juvenile court erred when, “upon further file review,” it imposed “off the record” various probation conditions following the conclusion of the disposition hearing. He relies on our opinion in In re Allen N. (2000) 84 Cal.App.4th 513, which holds that a juvenile court lacks authority to impose probationary conditions following the minor’s commitment to DJF. (Id. at p. 516.) In a footnote, we noted that the minor in that case was not challenging the statutorily required orders that he make restitution to the victim and pay a restitution fine. (Id. at p. 515, fn. 2; see § 730.6.)
The Attorney General concedes that all probationary conditions, other than the victim restitution orders and restitution fines, must be stricken. We accept the Attorney General’s concession and shall so order.
DISPOSITION
The judgment (disposition order) is modified by awarding the minor 400 days of predisposition credit and by striking all probation conditions except the victim restitution orders and restitution fines. As so modified, the judgment is affirmed. The juvenile court is directed to amend its disposition order to conform to our modification and to forward a certified copy to the DJF.
We concur: BLEASE, Acting P. J. RAYE, J.