Opinion
E080453
02-23-2024
In re L.E., a Person Coming Under the Juvenile Court Law. v. L.E., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. J291569. Tony Raphael, Judge. Affirmed.
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER Acting P. J.
Defendant and appellant L.E. (Minor) argues that the juvenile court erred by failing to exercise its discretion under recent amendments to Welfare and Institutions Code section 782, and to make an express declaration as to whether his petition should proceed as a misdemeanor or felony. For the reasons set forth post, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On December 14, 2021, a section 602 petition (first petition) alleged that Minor (1) was an occupant in a vehicle with a concealed firearm, a misdemeanor, under Penal Code section 25400, subdivision (a)(3) (count 1), and (2) carried a loaded firearm in public, a felony, under Penal Code section 25850, subdivision (c)(2) (count 2).
On December 15, 2021, Minor admitted count 1, and the juvenile court dismissed count 2. On January 3, 2022, the court declared Minor a ward of the state and placed him in the custody of his mother with probation terms.
Ten months later, on November 15, 2022, a new wardship petition (second petition) was filed in Los Angeles. The petition charged Minor with carrying a loaded firearm on one's person or in a vehicle in a public place under Penal Code section 25850, subdivision (a). The petition also alleged that Minor was a member of a class of persons prohibited from possessing and acquiring a firearm under Penal Code section 25850, subdivision (c)(4).
On November 16, 2022, Minor admitted count 1 then filed a motion to transfer the case to San Bernardino County. The juvenile court in Los Angeles granted the motion, and the transfer was accepted by the San Bernardino County Juvenile Delinquency Court.
On December 19, 2022, a contested disposition hearing was held on the second petition. On January 3, 2023, the juvenile court continued Minor as a ward, placed him in the custody of his probation officer, and released Minor to probation in juvenile hall, pending suitable placement in foster care. Moreover, the court found the maximum time of confinement would be two years and four months and awarded 60 days of credit. The court imposed the same terms and conditions of probation from the disposition of the first petition and added five additional placement terms.
Minor filed a notice of appeal from the findings and orders of the court on January 3, 2023, on the second petition.
B. FACTUAL HISTORY
1. FIRST PETITION
On December 10, 2021, law enforcement stopped a vehicle in which Minor was a passenger. When the vehicle pulled over, Minor exited the car and fled on foot. When police caught up with Minor, Minor "gave up by laying on the ground on his stomach." The police found a loaded 9mm handgun on the ground underneath Minor near the area of his waistband.
2. SECOND PETITION
On November 10, 2022, Minor was the driver of a vehicle parked in a tow-away zone when contacted by law enforcement. After learning that Minor did not have a driver's license, the police had Minor exit the vehicle and searched him. The police found a loaded firearm in Minor's waistband.
DISCUSSION
A. THE JUVENILE COURT DID NOT HAVE A DUTY TO EXERCISE ITS DISCRETION UNDER WELFARE AND INSTITUTIONS CODE SECTION 782
Minor contends that "this case should be remanded so that the juvenile court may consider whether the petition against [Minor] should be dismissed pursuant to the newly enacted provisions of Section 782."
The People contend that Minor has "forfeited his claim by failing to move to dismiss his petition." We can decline to find forfeiture and reach the merits of the case. (People v. Monroe (2022) 85 Cal.App.5th 393, 400.)
1. ADDITIONAL FA CTUAL HISTORY
The second petition was filed in Los Angeles in November of 2022. The case was transferred to San Bernardino and a contested disposition hearing was held on December 19, 2022. Only three days into the new year, on January 3, 2023, the juvenile court held a disposition hearing, continued Minor as a ward, placed him in the custody of his probation officer, and released Minor to probation in juvenile hall. At this hearing, the juvenile court never mentioned that it had discretion to dismiss Minor's petition pursuant to the recent amendments to section 782, effective January 1, 2023.
2. LEGAL BACKGROUND
Section 782 provides that a juvenile court judge "may dismiss the petition, or . . . set aside the findings and dismiss the petition, if the court finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal." (§ 782, subd. (a)(1).)" 'This provision "is a general dismissal statute" that is similar in its operation to Penal Code section 1385.'" (In re J.P. (2023) 94 Cal.App.5th 74, 78.)
Effective, January 1, 2023, the Legislature amended section 782, subdivision (a)(1), to extend the discretion to dismiss qualifying petitions to juvenile courts that take jurisdiction pursuant to section 750, in addition to cases filed in the court. The amendment also added several subdivisions and paragraphs to section 782. Newly added subdivision (a)(2)(A), states:
"When exercising its discretion under paragraph (1) at the time the court terminates jurisdiction or at any time thereafter, the court shall consider and afford great weight to evidence offered by a person to prove mitigating circumstances are present, including, but not limited to, satisfactory completion of a term of probation, that rehabilitation has been attained to the satisfaction of the court, that dismissal of the petition would not endanger public safety, or that the underlying offense is connected to mental illness, prior victimization, or childhood trauma. Proof of the presence of one or more mitigating circumstances weighs greatly in favor of dismissing the petition." (§ 782, subd. (a)(2)(A), italics added; Stats. 2022, ch. 970, § 1.)
3. ANALYSIS
Minor argues "that at the time the trial court issued its order of disposition in [the second] case, the amendments to section 782 had only been in force for three days, and the record does not indicate that the court knew it even had the discretion to dismiss a petition, such as this one, which it received by transfer via section 750." Prior to these amendments, "transferred cases did not fit within the discretion granted to the courts."
The People argue that section 782, subdivision (a)(2)(A) does not apply because, "[a]ccording to the plain language of the subdivision, it applies only at the time the court has terminated jurisdiction or any time thereafter."
Although the requirements set forth under subdivision (a)(2)(A) only apply "at the time the court terminates jurisdiction or at any time thereafter," there is nothing in the statute to indicate the court can only exercise its discretion at that time. In fact, section 782, subdivision (c), clearly states that "[t]he court has authority to exercise discretion pursuant to subdivision (a) at any time after the filing of the petition." (Italics added.)
However, notwithstanding the applicability of section 782 to this case, there is nothing in section 782 that imposes a sua sponte duty on the court to evaluate a dismissal of a petition at a disposition hearing. The plain wording of section 782 states that the court "may dismiss the petition, or . . . set aside the findings and dismiss the petition." (§ 782, subd. (a)(1).) Section 782 does not mandate the juvenile court to exercise its discretion when making its disposition order.
Unlike the permissive language of "may" in section 782 subdivision (a)(1), the statutory language becomes mandatory when jurisdiction is terminated or thereafter.
Section 782, subdivision (a)(2)(A), states that when the court exercises its discretion "at the time the court terminates jurisdiction or at any time thereafter, the court shall consider and afford great weight to evidence offered by a person to prove mitigating circumstances." (§ 782, subd. (a)(2)(A), italics added.) Had the Legislature intended to mandate the juvenile court to exercise its discretion at a disposition hearing, the Legislature would have provided this in the statute with a mandatory word such as "shall," as it did in subdivision (a)(2)(A) of section 782.
In addition to the clear wording of the statute, the legislative history of section 782, subdivision (a)(2)(A), demonstrates that the mandatory language in section 782 applies only when jurisdiction is terminated. The summary of the Assembly Floor Analysis stated that the statute "[r]equires a juvenile court, upon termination of jurisdiction, to consider and afford great weight ...., when deciding to dismiss a petition." (Assem. Floor Analysis, analysis of Assem. Bill No. 2629 (2021-2022 Reg. Sess.) as amended August 6, 2022.) The author of the legislation amending section 782 stated: "The bill creates a presumption, for certain cases, that a juvenile adjudication should be dismissed at the time juvenile court jurisdiction is terminated, . . . By facilitating the dismissal of juvenile court petitions when the court terminates jurisdiction, this bill will allow justice-impacted youth to fully access future opportunities so they may empower themselves to live long, successful lives." (Assem. Com. On Public Safety, Rep. on Assem. Bill No. 2629 (2021-2022 Reg. Sess.) as amended March 24, 2022, p. 3, italics added.) Again, the mandatory language comes into effect only when jurisdiction is terminated.
In his reply brief, Minor agrees that "under section 782 as revised, the trial court does not have a sua sponte duty to consider whether or not to dismiss a juvenile petition." Nonetheless, Minor argues that because the court may not have known about the amendment to section 782, "the record does not indicate that the court knew it even had the discretion to dismiss a petition, such as this one, which it received by transfer via section 750." Minor's argument is without merit because there is no error that the court committed. The court had no duty to consider dismissing the petition.
In sum, the evidence is undisputed that the juvenile court did not terminate jurisdiction. Instead, the court reinstated Minor's probation and placed him in the care of the probation department, pending suitable foster care placement. Therefore, section 782, subdivision (a)(1), as amended effective January 1, 2023, did not impose a duty on the juvenile court to determine whether Minor's petition should be dismissed, at this stage of Minor's proceedings. There was no error. Nothing in this opinion bars the juvenile court from exercising its discretion under section 782, which now applies to petitions to which the court took jurisdiction under section 750, to dismiss Minor's petition in the future. We do not express an opinion as to whether the dismissal should be granted or denied.
B. VIOLATION OF COUNT 1 IS A FELONY
Minor argues that "the trial court abused its discretion by failing to make a declaration as to whether appellant's case should proceed as a misdemeanor or a felony."
Section 702 provides that "[i]f the Minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony."
California Rules of Court, rule 5.780(e)(5) states that after the court determines by proof beyond a reasonable doubt the allegations of the petition are true, it shall make certain findings, including "the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult. If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing."
The requirements provided under California Rules of Court, rule 5.780(e)(5) ensure that the juvenile court is aware of, and actually exercises, its discretion under section 702. (In re Manzy W. (1997) 14 Cal.4th 1199, 1207 (Manzy W.).) Under Manzy W., strict compliance is the rule. (Id. at p. 1208.)
In Manzy W. the California Supreme Court stated: "What is not at issue is what the juvenile court must do. The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult." (Manzy W., supra, 14 Cal.4th at p. 1204.) However, "[w]hat is at issue is what happens if the juvenile court does not do what it must. That is, we must determine whether failure to make the mandatory express declaration requires remand of this matter for strict compliance with Welfare and Institutions Code section 702." (Ibid.)
When there is nothing in the record to indicate that a court has considered whether to deem a wobbler offense as a felony or misdemeanor, the reviewing court will not presume that the juvenile court properly exercised its discretion under section 702. (Manzy W., supra, 14 Cal.4th at p. 1209.) However, a "record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error." (Ibid.) "The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Ibid.)
In this case, the second petition charged Minor as follows:
"COUNT 1: On or about 11/20/2022 within the County of Los Angeles, the crime of CARRYING A LOADED FIREARM ON ONE'S PERSON OR IN VEHICLE-PROHIBITED CLASS, in violation of PENAL CODE 25850(a), a Felony, was committed by said minor, who unlawfully carried a loaded firearm on the person and in a vehicle while in a public place and on a public street in an incorporated city and in a prohibited area of unincorporated territory. It is further alleged, pursuant to section 25850(c)(4), that the Minor is a member of a class of persons prohibited from possessing and acquiring a firearm."
Although Minor admitted to committing count 1, on appeal, he contends that "irrespective of how the gun possession charge was alleged in the juvenile petition, the court had a duty to determine whether the case should proceed as a misdemeanor or felony." Minor's attempt to argue that he admitted to carrying a loaded firearm, but not as a prohibited person is not supported by the evidence.
In this case, as provided ante, the petition charged count 1 as a felony. And Minor admitted count 1 of the second petition on November 15, 2023 "pursuant to People v. West." There is nothing in the record that states Minor did not admit to all the allegations in count 1, or that a part of count 1 was dismissed. The crime to which Minor admitted, count 1 in the petition-a violation of Penal Code section 25850, subdivision (a)- carrying a loaded firearm on one's person or in a vehicle in a public place, as a prohibited person under subdivision (c)(4) of section 25850, is a felony. Therefore, the court was under no duty to determine whether the case should proceed as a felony or misdemeanor.
Although the record on appeal does not include a reporter's transcript from the plea hearing at the juvenile court in Los Angeles, the admission by Minor to "count 1" of the second petition, without anything stating it was not to the entire count, clearly shows that Minor pled guilty to possessing a firearm as a prohibited person. Moreover, at the disposition hearing in this case, the parties were aware of Minor's previous crimes involving firearms and that count 1 in the second petition was a felony. The prosecutor noted:
"What concerns me is the frequency and the lack of accountability in this crime. Frequency, it's the same offense, essentially, he had already admitted [in the first petition]. And he just went out and did it again. He knowingly knew it was wrong. And after nearly a year of therapy and probation, did it again. And it was 17(b)'d last time, for his benefit. And now, it's a felony." (Italics added.)
Neither the juvenile court nor defense counsel made a statement contradicting the prosecutor's statement that count 1 in the second petition was anything other than a felony.
As noted ante, in the first petition, Minor was charged with violating section 28580, subdivision (c). This count, however, was dismissed after Minor admitted to the charge under section 25400, subdivision (a)(3), an occupant in a vehicle with a concealed firearm, a misdemeanor. Because Minor admitted to violating section 25400, subdivision (a)(3), the section 25850 offense, count 1, as alleged in the second petition, was a felony.
Because violating Penal Code section 25850, subdivisions (c)(1), to (c)(4), is a felony, Minor's offense was not a wobbler. Hence, there was no need for the juvenile court to determine whether the case should proceed as a misdemeanor or felon.
DISPOSITION
The judgment is affirmed.
We concur: CODRINGTON J. FIELDS J.