Opinion
A154823
09-23-2019
In re LEON E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LEON E., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-00469)
Leon E., a minor, appeals from a disposition order of the juvenile court. (Welf. & Inst. Code, § 800.) The court committed Leon, then 18 years old, to the Contra Costa Youthful Offender Treatment Program (YOTP) in juvenile hall for a maximum term of 14 years, 6 months, or until the age of 21, whichever occurs first, and also required that he successfully complete all phases of YOTP. Leon argues that the juvenile court's order committing him to YOTP for the designated period, unless he successfully completes YOTP, in which case he may be released earlier, constituted an impermissible delegation to the probation department of the juvenile court's authority to determine the length of his commitment. He further argues the order violates the separation-of-powers clause of the California Constitution and his federal and state constitutional rights to due process. We disagree for the reasons stated in In re J.C. (2019) 33 Cal.App.5th 741 (J.C.) and therefore affirm.
All further statutory references are to this code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2015, the Solano County District Attorney filed a second amended juvenile wardship petition (§ 602) alleging that Leon E., age 15, committed the following offenses: felony receipt of stolen property (Pen. Code, § 496, subd. (b); count 1); misdemeanor resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a)(1); count 2); misdemeanor prowling (Pen. Code, § 647, subd. (h); count 3); three felony counts of first-degree burglary with a person present (Pen. Code, § 459; counts 4, 6, and 7); felony unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 5); felony forcible oral copulation (Pen. Code, former § 288a, subd. (c)(2); count 8); and felony kidnapping to commit another crime (Pen. Code, § 209, subd. (b)(1); count 9).
Pursuant to a plea agreement, Leon admitted the allegations, and the Solano County juvenile court accepted his admission and set the matter for a disposition hearing. At the disposition hearing, the court declared wardship, ordered Leon removed from the custody of his parents, and committed him to 1,381 days in Solano County juvenile hall. The court later modified the disposition by granting Leon probation and placing him at Turning Point Family Care in Cedar City, Utah. In April 2018, the Solano County juvenile court sustained a probation violation allegation that Leon refused to participate in the Turning Point program. The court then transferred Leon's case to Contra Costa County for disposition.
In its recommendations to the juvenile court, the Contra Costa probation department acknowledged that YOTP was not equipped to treat youths requiring sex offender treatment. However, due to the lack of other dispositional options, the department recommended YOTP as the best and most viable option for Leon at the time.
At the May 2018 disposition hearing, the juvenile court committed Leon to YOTP "for a period not to exceed his maximum custody time of 14 years, 6 months, or [until] age 21, whichever occurs first." As part of the commitment, Leon was ordered to "successfully complete all phases of the program, follow all treatment requirements, and obey all rules and regulations." The court further ordered that "[u]pon release from the YOTP program," Leon was required to abide by various conditions, including a curfew; alcohol and drug testing and searches and seizures by a peace officer at any time; and participating in counseling.
On appeal, Leon asks us to take judicial notice of a page from the Contra Costa probation department's Web site and a document from the probation department describing YOTP (YOTP handbook). We grant the unopposed request. (Evid. Code, § 452, subd. (h).)
DISCUSSION
Leon argues the juvenile court improperly delegated the determination of his commitment length to the probation department because, in his view, it is the probation department that effectively decides whether he successfully completes YOTP. Leon contends this delegation violates the separation-of-powers clause of the California Constitution as well as his due process rights under the federal and state Constitutions, because it circumvents the procedures for a notice hearing and judicial findings as set forth in section 777.
Leon acknowledges that his defense counsel did not object to the disposition order on these grounds. We will exercise our discretion to consider these issues for the first time on appeal because they raise pure questions of law based on undisputed facts. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314.)
During the pendency of this appeal, Division Five of this court issued J.C., supra, 33 Cal.App.5th 741. Faced with the same arguments presented here, the J.C. court held that an order committing a minor to juvenile hall until age 21 but providing for earlier release upon successful completion of YOTP was not an impermissible delegation by the juvenile court.
Leon addresses the J.C. decision at length in his reply brief.
The J.C. court relied principally on In re Robert M. (2013) 215 Cal.App.4th 1178 (Robert M.), a case in which the juvenile court directed a probation officer to seek placement of a minor in a sex offender counseling program at the Division of Juvenile Facilities (DJF). In rejecting the minor's claim that the disposition order "impermissibly intermingle[d] the responsibilities of the probation department and the responsibilities of DJF," Robert M. held that the day-to-day supervision of the minor by those operating the program did "not change the ultimate responsibility of the juvenile court for the ward's supervision and control." (Robert M., at p. 1185.) The J.C. court determined that Robert M. provided analogous support for concluding the juvenile court did not make an impermissible delegation because it retained the ultimate authority to determine whether and when the minor successfully completed YOTP. (J.C., supra, 33 Cal.App.5th at p. 746.)
As additional support for its holding, the J.C. court highlighted statements in the YOTP handbook referring to "court review" and the probation officer's duty to "inform the court" of the minor's progress and whether the minor " 'should' " be released to the next phase of the program. (J.C., supra, 33 Cal.App.5th at p. 746.) In J.C.'s words, these statements "plainly contemplate[d] the probation officer will provide the juvenile court with an opinion about whether the minor has successfully completed the program and will make a recommendation to the court regarding the minor's release. The court will then make the final determination on these issues." (Id. at p. 747.)
Leon argues that J.C.'s reliance on Robert M. was misplaced because the two cases involved different legal arguments and issues. We disagree. As the J.C. court explained, Robert M.'s reasoning was applicable, because in both cases, the minors "challenge[d] the impact of a commitment order on an administrative entity's supervision and control over a minor in a court-ordered custodial treatment program." (J.C., supra, 33 Cal.App.5th at p. 746.)
Nor are we persuaded by Leon's assertion that J.C. merely "paper[e]d over" an unlawful delegation with a general proposition that the juvenile court retains ultimate jurisdiction and control of a youth. As discussed by the J.C. court, a minor in YOTP may alert the juvenile court at a review hearing that he or she disagrees with the probation officer's assessment of his or her progress in the program and may also utilize existing procedures to request that the court modify or a set aside a disposition order. (See J.C., supra, 33 Cal.App.5th at p. 747, citing § 778, Cal. Rules of Court, rule 5.560(e)(1).) Indeed, Leon appears to acknowledge that the juvenile court can reject any YOTP phase recommendation by the probation department.
Leon also contends the disposition order violates his due process rights because the procedure for determining his successful completion of YOTP does not involve a noticed hearing or findings by a judicial officer based on a preponderance of the evidence, as mandated by section 777. Again, we disagree. As already explained, the probation department merely makes recommendations for the juvenile court to consider when making its findings at noticed review hearings as to whether and when a minor successfully completes YOTP. (J.C., supra, 33 Cal.App.5th at pp. 746-747.) Consequently, no due process violation appears.
Section 777 provides that "[a]n order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private institution or commitment to a county institution, or an order changing or modifying a previous order by directing commitment to the Youth Authority shall be made only after a noticed hearing."
In sum, we agree with the analysis in J.C. and conclude that the similar disposition order here did not impermissibly delegate authority to the probation department or violate Leon's constitutional rights. In closing, however, we note the record is unclear as to whether the juvenile court has scheduled a YOTP review hearing. Accordingly, on remand, the juvenile court should schedule any necessary review hearing, assuming it has not already done so.
The minute order of the May 7, 2018, disposition hearing did not indicate any further scheduled hearings. In a post-disposition hearing held on May 21, 2018, the juvenile court issued a restraining order against Leon prohibiting him from contacting the victim named in count 6. Although the May 21 minute order reflects that Leon was ordered to appear "at [the] next Court hearing," there is no indication of the date or purpose of this hearing.
DISPOSITION
The matter is remanded with direction to the juvenile court to set any YOTP review hearing necessary to the exercise of its supervisory authority, if such a hearing has not already been scheduled or held. In all other respects, the disposition order is affirmed.
/s/_________
Fujisaki, Acting P. J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Wick, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------