Opinion
A163563
12-16-2022
In re DENNIS C., a Person Coming Under the Juvenile Court Law. v. DENNIS C., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super Ct. No. J18-00281)
BURNS, J.
Dennis C. appeals from a dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (Division) after he committed, most recently, two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and personally used a firearm (id., § 12022.53, subd. (b)) in connection with each offense. He argues the juvenile court abused its discretion by committing him to the Division and, in the alternative, that an electronic search condition should be stricken. We agree on the latter point but otherwise affirm the juvenile court's dispositional order.
Background
A.
This appeal involves the fifth juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) filed against Dennis within two years. First, in February 2018, the Napa County District Attorney alleged that then 14-year-old Dennis committed one count of felony second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) and one count of misdemeanor shoplifting (id., § 459.5, subd. (a)). Dennis admitted the felony burglary offense and the remaining count was dismissed. After the case was transferred to Contra Costa County (where he lived) for disposition, Dennis was declared a ward of the juvenile court and placed on probation under home supervision.
Undesignated statutory references are to the Welfare and Institutions Code.
A few months later, the San Mateo County District Attorney filed two section 602 wardship petitions, alleging that Dennis committed one felony count of grand theft (Pen. Code, § 487, subd. (a)) and one count of misdemeanor shoplifting. Dennis admitted a reduced count of misdemeanor grand theft (ibid.) and pled no contest to the misdemeanor shoplifting count. The case was again transferred to Contra Costa County for disposition. He was continued as a ward of the juvenile court and again placed on home supervision.
In August 2018, Dennis admitted violating the terms of his probation by cutting his ankle monitor. The juvenile court ordered Dennis to complete another 60 days of home supervision.
About a month later, the San Mateo County District Attorney filed a fourth wardship petition. Dennis admitted that he committed misdemeanor grand theft and additional felony counts were dismissed. The matter was transferred to Contra Costa County for disposition. Before that disposition hearing was held, Dennis admitted another probation violation-for failing to regularly attend school. At disposition, the juvenile court continued Dennis's status as a ward and committed him to the Orin Allen Youth Rehabilitation Facility (Orin Allen Facility) for a period of six months.
About two months before he was placed at the Orin Allen Facility, then 15-year-old Dennis committed the two counts of armed robbery (summarized below) that underly the challenged disposition order.
B.
In November 2018, S.V. advertised her father's marijuana for sale on Instagram. Dennis arranged with S.V., by exchanging text messages, phone calls, and direct social media messages, to buy six pounds of marijuana for $4,600. Around the same time, Dennis negotiated the purchase of a Glock pistol.
Dennis told S.V. that he could not go to her home, in Castro Valley, to complete the marijuana transaction. Instead, he convinced S.V. to meet at a particular intersection in Richmond. S.V., her father, and a friend (R.B.) drove to Richmond. S.V.'s father was driving, S.V. was in the front passenger seat, and R.B. sat in the rear passenger seat. The marijuana was in a trash bag, placed between the center console and the back seat. It was nearly dark when the three arrived at the meet up point in Richmond.
Two males approached the car. S.V. was surprised to see two people. One male, whom she recognized as Dennis, approached her side of the car. The other male approached her father's side of the car and, at some later point, opened the car's rear door and either sat down or put his knee on the rear driver-side seat.
As soon as S.V. displayed the marijuana-by untying the trash bag to reveal its contents-Dennis placed a gun to her head. The other (unidentified) male simultaneously placed a gun to S.V.'s father's head. S.V.'s father begged the unidentified male "not to do it." S.V. heard someone say" '[g]ive me the fucking weed.'" After Dennis said," '[g]rab the weed' ", S.V.'s father slammed on the gas and began driving away.
S.V. heard two shots fired, from somewhere close to her. She also may have heard a third shot fired from further away. R.B. testified that only one shot was fired, by the male who had entered the car on the rear, driver's side. The physical evidence, including shell casings from a Glock pistol, and early witness statements were consistent with two shots having been fired.
Shortly after the shots were fired, S.V.'s father crashed the car. S.V. exited and called 911. Dennis's unidentified accomplice grabbed the marijuana and both males ran away. S.V.'s father died from a gunshot wound to the chest.
C.
The Contra Costa County District Attorney filed a supplemental juvenile wardship petition, alleging that Dennis committed first degree murder (Pen. Code, § 187, subd. (a)) and two counts of second degree robbery. The petition further alleged that, in committing all three charged offenses, Dennis personally used, and personally and intentionally discharged, a firearm (id., § 12022.53, subds. (b)-(d)). It also gave notice of the intent to rely on Dennis's prior offenses to increase his maximum period of confinement.
After a contested jurisdictional hearing, the juvenile court sustained only the two robbery counts. The juvenile court explicitly found that Dennis arranged the marijuana purchase with S.V. and that the event was planned as an armed robbery; Dennis never intended to pay for the marijuana. However, the juvenile court found that only Dennis's unidentified accomplice fired a gun.
The court went on to state that not only had the People failed to carry their burden of proving, beyond a reasonable doubt, that Dennis fired a round at any time that night, they had also failed to prove beyond a reasonable doubt that Dennis intended to kill. (See Pen. Code, § 189, subd. (e)(2).) The juvenile court also concluded that although Dennis was a major participant in the robbery, the People did not prove beyond a reasonable doubt that Dennis acted with reckless indifference to human life. (See id., §§ 189, subd. (e)(3), 190.2, subd. (d).) In reaching the above determinations, the juvenile court emphasized the lack of any advance warning that Dennis's accomplice might shoot S.V.'s father. It appeared to be a decision made solely by Dennis's accomplice, after the car started moving. The court therefore dismissed the murder count, as well as its associated firearm enhancement allegations.
The juvenile court sustained both robbery counts, and found that, although Dennis did not discharge a firearm, he personally used one (§ 12022.53, subd. (b)) in committing each offense.
D.
In its disposition report, the Contra Costa County Probation Department (Probation Department) recommended that Dennis be committed to the Division, where he would receive appropriate rehabilitative programming and be eligible for parole in about three years.
The Probation Department's recommendation was based on the serious nature of Dennis's most recent offenses, as well as an assessment of his needs. The report noted Dennis exhibited criminal sophistication in committing the two counts of robbery, which involved luring and ambushing victims, as well as the use of a firearm. An evidence-based individualized assessment tool classified Dennis as being at overall "[m]oderate risk" for re-offending. However, two particular areas put Dennis at high risk-his negative peer relationships and his lack of pro-social skills.
The report noted that Dennis had previously been committed to the Orin Allen Facility, for six months, where he completed various local rehabilitation programs and had "minimal" behavioral issues. But, during the period of time that Dennis had been detained at juvenile hall while awaiting trial and disposition, Dennis was involved in more than 30 disciplinary incidents, which included passing contraband, refusing to follow staff directions, and making credible threats of violence toward staff. Dennis had also been involved in numerous physical fights with other detained minors, in which he was typically the aggressor. Approximately two weeks before the disposition report was filed, Dennis punched another minor.
The Probation Department screened Dennis to determine his fitness for commitment to either the Division or the Youthful Offender Treatment Program (the Program) at juvenile hall, which Dennis preferred. Dennis was found to qualify for the Division. But he was deemed "not acceptable" for the Program at juvenile hall due to the violent and anti-social nature of his instant offenses and the fact that prior local rehabilitative efforts proved unsuccessful. The Probation Department believed Dennis required more intensive treatment and structure than the Program could offer. The Probation Department concluded that the Division's supervision and structure was necessary not only for Dennis's rehabilitation, but also for the safety of the community.
E.
At the dispositional hearing, the juvenile court continued Dennis's status as a ward of the court; found it probable he would benefit from the programs available at the Division; found local resources inappropriate for his rehabilitation; and committed Dennis to the Division for a maximum period of 27 years and 4 months. The court also imposed an electronic search condition. The juvenile court later corrected Dennis's maximum period of confinement, nunc pro tunc, to 25 years and 4 months.
Discussion
A.
Dennis contends the juvenile court abused its discretion by committing him to the Division. (See In re Carl N. (2008) 160 Cal.App.4th 423, 431-432 [standard of review].) We disagree.
1.
Commitment to the Division is the juvenile system's most restrictive permissible sanction, intended for the most serious offenders. (§ 202, subd. (e)(5); In re Teofilio A. (1989) 210 Cal.App.3d 571, 578 (Teofilio A.).) California courts historically treated commitment to the Division's predecessor, the California Youth Authority, as a last resort. (In re Carl N., supra, 160 Cal.App.4th at p. 432.) However, the focus later shifted to whether the disposition serves the dual goals of the juvenile delinquency laws: (1) to serve the ward's best interests by providing rehabilitative care, treatment, and guidance to enable them to be a law-abiding and productive member of the community, and (2) to promote public safety. (§ 202, subds. (a), (b) & (d); In re Charles G. (2004) 115 Cal.App.4th 608, 614-615; Teofilio A., supra, at pp. 575-576.)
Juvenile justice realignment has moved the pendulum again. (In re Miguel C. (2021) 69 Cal.App.5th 899, 907 (Miguel C.).) In 2020, the Legislature began shifting juvenile justice responsibility to the counties. (See Stats. 2020, ch. 337, §§ 1(b), 30; § 736.5, subds. (a), (e); In re Jason V. (2022) 81 Cal.App.5th 810, 815 (Jason V.).) The Division is now statutorily required to close on June 30, 2023. (§ 736.5, subd. (e).) As of July 1, 2021, juvenile courts no longer have the authority to commit wards to the Division-except in certain circumstances that do not apply here. (§ 736.5, subds. (b), (c); Jason V., supra, at p. 815.) Before that date, however, juvenile courts retained the discretion to commit qualified wards, like Dennis, to the Division. (§ 736.5, subd. (d).) Wards committed to the Division "shall remain within its custody until the ward is discharged, released or otherwise moved pursuant to law, or until final closure" on June 30, 2023. (§ 736.5, subds. (d)-(f).)
Dennis does not argue that he was statutorily ineligible to be committed to the Division before July 1, 2021. Robbery is one of the serious offenses for which the Legislature deemed a Division commitment potentially appropriate at that time. (Former § 731, subd. (a)(4), as amended by Stats. 2018, ch. 766, § 1; § 707, subd. (b)(3); § 733, subd. (c).) And Dennis was committed to the Division on June 18, 2021. At the time Dennis's maximum term of confinement was corrected, on July 23, 2021, defense counsel objected that a new disposition had been imposed after the statutory window for Division commitments closed. However, Dennis abandons this argument on appeal. (See Jason V., supra, 81 Cal.App.5th at pp. 819-821.)
Realignment did not affect section 202, which continues to recognize rehabilitative punishment as an appropriate rehabilitative tool, but disallows retributive punishment. (§ 202; Miguel C., supra, 69 Cal.App.5th at p. 907; In re Eddie M. (2003) 31 Cal.4th 480, 507.) It also remains true that a juvenile court may not commit a ward to the Division unless there is "evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate." (Teofilio A., supra, 210 Cal.App.3d at p. 576; accord, § 734; In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
We review the juvenile court's findings for substantial evidence, keeping the law's dual goals (rehabilitation and public safety) in mind. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154; In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.)
2.
Dennis first argues substantial evidence does not support the juvenile court's benefit finding because the Probation Department's report was rushed and provided inadequate detail regarding the Division's programming and how it would meet his needs. We disagree.
Here, Dennis's most recent offenses showed sophistication and planning. They also involved his personal use of a firearm. While detained at juvenile hall, his behavior was frequently violent and disrespectful. Thus, the Probation Department reasonably concluded that Dennis's successful rehabilitation depended on him addressing poor decision making skills, negative peer associations, and antisocial attitudes in a more structured and intensive setting than he had previously. The Probation Department also concluded that a Division commitment would allow Dennis to benefit from intensive treatment programs tailored to his needs, including continued education, job training, and individual and group therapy.
The Probation Department's report described two programs that were particularly responsive to Dennis's primary needs (as indicated by his risk assessment): aggression interruption intervention to improve social skills, anger control, and moral reasoning, and Counter Point to address antisocial attitudes. The Division's higher education and vocational opportunities were also noted to be of probable benefit to Dennis-who graduated from high school about six months before his Division commitment.
The probation officer's report identified Dennis's primary needs and briefly described the programs likely to benefit him by addressing those needs. (See In re Carlos J. (2018) 22 Cal.App.5th 1, 12.) No more was required. (Ibid.; In re A.M. (2019) 38 Cal.App.5th 440, 450-451.)
Dennis did not present any evidence that called the benefit of the Division's programs into question. Thus, the People had no obligation to present more detailed information. (Miguel C., supra, 69 Cal.App.5th at p. 910; In re Carlos J., supra, 22 Cal.App.5th at p. 13.)
Dennis contends the record is insufficient because there is no representation that the described Division programs will continue between July 1, 2021 and June 30, 2023. We reject his argument as speculative and unsupported by any authority.
True, section 736.5, subdivision (e), does provide that the Division "shall close on June 30, 2023." However, section 736.5 also provides for continuing Division commitments pending its closure (§ 736.5, subds. (b), (c)), for committed wards to remain within the Division's custody until discharge or closure (§ 736.5, subd. (d)), and for the Division's director to develop transition plans for youth who are unable to discharge before closure on June 30, 2023. (§ 736.5, subd. (f).) There is no support for Dennis's conclusion that programming in the interim will be different than that described in the Probation Department's report.
Substantial evidence supports the juvenile court's finding that Dennis will probably benefit from the commitment.
3.
Substantial evidence also supports the juvenile court's finding that less restrictive alternatives would be ineffective or inappropriate.
In deciding to commit Dennis to the Division, the juvenile court explicitly considered both the Program and the new Briones Academy, which was planned to be (after July 1, 2021) the local replacement for a Division commitment. The court rejected both options because neither was shown to have rehabilitative services adequate for Dennis's needs. These findings are supported by the record.
Although Dennis was 15 years old when he committed two counts of armed robbery, he was 17 years old (and a high school graduate) when the challenged disposition was ordered. Most importantly, Dennis had already successfully completed local programming at the Orin Allen Facility, but his violent and disrespectful behavior at juvenile hall demonstrated that those programs had no lasting rehabilitative impact. In these circumstances, it was not unreasonable for the probation officer and juvenile court to conclude that more of the same (at the Program) was inappropriate or unlikely to be effective.
Dennis nonetheless contends that the juvenile court did not adequately consider less restrictive alternatives because it had no information about the programs available at the new Briones Academy. He relies on the fact that a Probation Department manager-responsible for operations at juvenile hall-was called to testify (by the defense) but could not provide specifics about programs to be offered at the Briones Academy. We do not find this surprising-given that the program remained "in the development stages" and that the Briones Academy would only open after July 1, 2021. It was not a functioning alternative at the time of Dennis's disposition.
The juvenile court reasonably determined that public safety, as well as Dennis's rehabilitation, would be at risk if he was committed to the Program or to the Briones Academy. This finding is amply supported by the record. Dennis has not demonstrated an abuse of discretion.
B.
Dennis also argues that-if the Division commitment is upheld-the electronic search condition must be stricken. The People concede that the juvenile court lacked authority to impose probation conditions after committing Dennis to the Division. (See, e.g., In re Edward C. (2014) 223 Cal.App.4th 813, 829.) We agree and will modify the order by striking the condition.
Disposition
The probation condition requiring Dennis to submit his electronic devices to warrantless search is stricken from the disposition order. As so modified, the disposition order is affirmed.
We concur: JACKSON, P.J., SIMONS, J.