Opinion
G054261
02-16-2018
In re S.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.C., Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DL048870-001) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
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S.C. (defendant) was a minor when the instant case commenced. Now an adult, he appeals from a juvenile court order finding he did not satisfactorily complete juvenile probation. He argues the court's error thereby denied him the benefits of Welfare and Institutions Code section 786, which would have allowed the juvenile wardship petition against him to be dismissed. It is true defendant was denied the benefits of section 786, but it was due to his pleading guilty as an adult to felony burglary, not due to any court error. The juvenile court correctly determined defendant's guilty plea was a "conviction" for purposes of section 786 and that defendant therefore did not satisfactorily complete juvenile probation. Accordingly we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS
In August 2013, at age 17, defendant unlawfully possessed concentrated cannabis and maliciously and unlawfully defaced with graffiti several signs, an electrical box, a fire hydrant, a pole, and a wooden fence. In January 2014 the People filed a juvenile wardship petition under section 602 alleging defendant committed one count of felony possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a); count 1) and six counts of misdemeanor vandalism (Pen. Code, § 594, subds. (a), (b)(2)(A); counts 2-7) (the juvenile case). The court granted defendant's motion to reduce count 1 to a misdemeanor. Defendant admitted all the allegations and was declared a non-ward of the juvenile court under section 725. The court imposed standard terms and conditions of probation and ordered defendant to complete 80 hours of community service and a drug program. Defendant also agreed not to use, possess, or be under the influence of alcohol or illegal drugs or narcotics and to obey all laws. The disposition agreement stated he could return in six months and request a plea withdrawal, subject to the court's discretion.
The drug program is also referred to in our record as a drug awareness class and a drug and alcohol class.
In July 2014 defendant moved to withdraw his plea. The court denied the motion because defendant had not completed the drug program or community service. The court terminated the non-ward disposition and declared defendant a ward of the court under section 602 with all terms to remain in full force and effect. The court vacated the imposition of 80 hours of community service and substituted defendant's care for his brother, who is wheelchair bound with severe multiple sclerosis.
By December 2014 defendant had fulfilled all his probation requirements except the drug program. The January 2015 probation report on defendant's plea withdrawal recommended wardship be terminated if defendant completed the drug program. However, defendant failed to appear at January and February 2015 progress hearings, and the court signed a bench warrant for defendant's detention.
In March 2015 at age 19 defendant was arrested for felony burglary (Pen. Code, §§ 459, 460, subd. (a); count 1) and possession of cannabis (Health & Saf. Code, § 11357, subd. (b)(2); count 2) and booked into Orange County jail in case number 15HF0278 (the adult case). Later that month the court in the juvenile case denied defendant's motion to withdraw his plea based on his failure to complete the drug program and on the new charges in the adult case. Defendant continued as a ward of the juvenile court. Several more hearings took place in juvenile court between April 2015 and October 2016 while the juvenile court awaited the outcome in the adult case. However, defendant's probation officer repeatedly reported defendant's progress on probation had been acceptable, he had had no police contact or probation violations, and all juvenile sanctions had been completed. We therefore assume defendant completed the drug program.
Defendant appeared and the bench warrant was recalled.
In November 2016 defendant reached a plea agreement in the adult case. Defendant pleaded guilty to counts 1 and 2, as well as an additional count for aggravated trespass, a misdemeanor (Pen. Code, § 602.5; count 3). The court ordered three years' probation on the misdemeanors. The parties agreed defendant would plead guilty to all counts but have sentencing put over on count 1 for one year. Among other conditions, defendant was to have no new law violations and no new probation violations. If defendant successfully completed those terms for one year, the parties agreed defendant "may withdraw plea on count 1," a felony, and "[t]he DA will dismiss count 1" and the Penal Code section 667.5, subdivision (c)(21) allegations pursuant to Penal Code section 1385.
We granted defendant's request to augment the record with the plea agreement.
Defendant admitted in March 2015 he unlawfully entered an inhabited house with the intent to commit larceny while a non-accomplice was present, unlawfully possessed alprazolam, and entered into a noncommercial dwelling house without the owner's consent.
Later that month at a wardship review hearing in the juvenile case, defendant's counsel argued defendant's act of pleading guilty to a felony upon which he had not yet been sentenced in the adult case was not a conviction for purposes of section 786. Counsel pointed out defendant had been on probation for two years and had done well, with no probation violations. Counsel argued under section 786, termination of probation was mandatory. The prosecutor disagreed, stating, "It is a conviction. He pled guilty."
The juvenile court determined defendant did not satisfactorily complete juvenile probation and terminated wardship, because defendant "has, in my view, picked up a felony burglary. If it's not an only [sic] crime of moral turpitude, it's a felony. And even though he has not yet been sentenced because some other judge is going to permit him to do what he can do over the next year and then decide if he should get probation or maybe go to state prison, that doesn't mean that he didn't really do it. He pled guilty to it. So this court feels that it has not been a satisfactory completion of probation." The court denied defendant's request to instead terminate probation and wait to designate its completion as satisfactory or unsatisfactory until after disposition of the adult case. However, the court acknowledged defendant did not otherwise violate probation, and the most recent progress report from defendant's probation officer stated he had no known probation violations.
Defendant appeals from the court's order finding he did not satisfactorily complete juvenile probation. (§ 800, subd. (a).)
DISCUSSION
Defendant's Felony Plea Was a Conviction under Section 786
Defendant argues his felony plea in the adult case is not a conviction for purposes of section 786, because the term "conviction" in section 786 is ambiguous. We disagree.
Interpretation of a statute is a question of law we independently review. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 919.) The fundamental task in construing a statute is to ascertain the intent of the legislators to effectuate the purpose of the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) When the language is clear and unambiguous, the plain meaning rule apples; we presume the Legislature meant what it said. (Ibid.)
Section 786, as it read in 2016 when defendant's hearing took place, provided, in part, "(a) If a minor satisfactorily completes (1) an informal program of supervision pursuant to Section 654.2, (2) probation under Section 725, or (3) a term of probation for any offense, the court shall order the petition dismissed. [¶] . . . [¶] (c)(1) For purposes of this section, satisfactory completion of an informal program of supervision or another term of probation described in subdivision (a) shall be deemed to have occurred if the person has no new findings of wardship or conviction for a felony offense or a misdemeanor involving moral turpitude during the period of supervision or probation and if he or she has not failed to substantially comply with the reasonable orders of supervision or probation that are within his or her capacity to perform." (Italics added.)
"The purpose of section 786 is to speed up and facilitate the reentry into mainstream society, rehabilitation, and employability of juveniles with nonserious, nonviolent delinquency histories." (In re A.V. (2017) 11 Cal.App.5th 697, 711.) "'Satisfactory completion of probation under section 786 has significant benefits for a juvenile offender. A minor who satisfactorily completes probation is entitled to have the petition of wardship dismissed and the records pertaining to the petition sealed. [Citation.] With satisfactory completion of probation, "the arrest and other proceedings in the case shall be deemed not to have occurred and the person who was the subject of the petition may reply accordingly to any inquiry by employers, educational institutions," and others.'" (Id. at pp. 709-710.)
In People v. Kirk (2006) 141 Cal.App.4th 715, 721 (Kirk) a different panel of this court concluded factual guilt is established when a defendant pleads guilty pursuant to a plea agreement even though the defendant has not yet been sentenced. In Kirk, the defendant was charged with unlawfully possessing methamphetamine and unlawfully using and being under the influence of methamphetamine. (Id. at p. 719.) At the outset of the proceedings, Kirk's counsel requested deferred entry of judgment under Penal Code section 1000. The People asserted he was ineligible because he had a federal case of possession of a controlled substance to which he had pleaded guilty. Kirk's counsel argued the guilty plea should not be treated as a prior conviction because sentencing had not yet taken place. (Ibid.)
"Penal Code section 1000 permits a court to defer [entry of judgment] for certain novice drug offenders, and to divert the defendant from the normal criminal process for drug treatment. If diversion is successfully completed, the charges are dismissed." (Kirk, supra, 141 Cal.App.4th at p. 718, fn. omitted.) --------
We explained, "In some cases the term 'conviction' is defined 'in a narrow sense signifying a verdict or guilty plea,' and other times the term is 'given a broader scope so as to include both the jury verdict (or guilty plea) and the judgment pronounced thereon.'" (Kirk, supra, 141 Cal.App.4th at p. 721.) However, "in criminal cases, courts have held an admission or finding of guilt is sufficient to establish a 'conviction.' 'Where the existence of a prior conviction triggers increased punishment, courts interpret "conviction" to mean the factual ascertainment of guilt by verdict or plea.'" (Ibid.)
So it is here. Defendant's guilty plea in the adult case is a factual ascertainment of guilt by plea, which we consider a conviction under section 786. Quite simply, defendant does not qualify for relief under section 786. Apart from the specific terms of section 786, subdivision (c)(1) defendant did not comply with the terms and conditions of his juvenile probation, including the provision to obey all laws, and therefore cannot benefit from section 786 as though he had complied. If defendant desired a different result, he should have avoided felonious behavior.
The juvenile court did not abuse its discretion. (See, In re A.V., supra, 11 Cal.App.5th at p. 711 [juvenile court has discretion to find, or not to find, that ward satisfactorily completed his or her probation].) Nor did it misunderstand defendant's adult plea agreement as defendant argues. The juvenile court understood and correctly determined the fact defendant admitted he committed a felony is sufficient to establish a conviction for purposes of section 786.
Defendant Has Not Demonstrated Prejudice
Defendant also argues his felony plea in the adult case is not a conviction for purposes of section 786, because deeming it a felony conviction now when it may not be a felony conviction in the future causes illogical results. We disagree. If, in the future, count 1 in defendant's adult case is dismissed, defendant may petition the court for sealing of his juvenile records. Section 781, subdivision (a)(1)(A) provides defendant may "petition the court for sealing of the records, including records of arrest, relating to the person's case, in the custody of the juvenile court and probation officer and any other agencies, including law enforcement agencies, entities, and public officials as the petitioner alleges, in his or her petition, to have custody of the records. . . . If, after hearing, the court finds that since the termination of jurisdiction or action pursuant to Section 626, as the case may be, he or she has not been convicted of a felony or of any misdemeanor involving moral turpitude and that rehabilitation has been attained to the satisfaction of the court, it shall order all records, papers, and exhibits in the person's case in the custody of the juvenile court sealed . . . . Once the court has ordered the person's records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events, the records of which are ordered sealed."
We decline to speculate whether defendant will comply with the terms of his adult case disposition sufficiently to achieve a dismissal of count 1. But if he does, he may petition the court under section 781.
Given our decision, we need not address defendant's contention that on remand the juvenile court should have the authority to classify defendant's probation (i.e., completed satisfactorily or not) after he is sentenced in the adult case.
Defendant Forfeited His Deferred Entry of Judgment Argument
Defendant next argues his guilty plea in the adult case was a court-created (as opposed to statutory) deferred entry of judgment and therefore not a conviction for purposes of section 786. The argument is difficult to follow, but nevertheless defendant forfeited the argument by failing to raise it in the trial court. "'Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.'" (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011.) "'"The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected."'" (Ibid.) "Issues presented on appeal must actually be litigated in the trial court — not simply mentioned in passing." (Ibid.) Hence, a party who fails to alert the trial court to an issue that has been left unresolved forfeits the right to raise that issue on appeal. (Araiza v. Younkin (2010) 188 Cal.App.4th 1120, 1127.)
Even were we to decide the issue, however, the outcome would be the same based on our previous analysis of Kirk, which involved a statutory deferred entry of judgment. (See Kirk, supra, 141 Cal.App.4th at p. 718.)
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.