Opinion
E032363.
7-23-2003
In re ARTURO S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ARTURO S., Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Elizabeth S. Voorhies and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant and defendant, Arturo S. (minor), appeals from an order committing him to the California Youth Authority (CYA). He argues that the juvenile court erred in using Welfare and Institutions Code section 778 as authority to modify the existing court order to a CYA commitment. Minor also contends that the court erred in calculating his custody credits. The People concede that the amount of custody credits was incorrect. Otherwise, we affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
PROCEDURAL BACKGROUND
On October 12, 2000, the Los Angeles County District Attorney filed a section 602 petition charging minor, who was 15 years old at the time, with second degree robbery (count one) and assault with a deadly weapon (count two). At an adjudication hearing held on October 27, 2000, minor admitted count one, and count two was dismissed. The court declared minor a ward of the court, pursuant to section 602. (Section 602 provides, in relevant part, that "any person who is under the age of 18 years when he or she violates any law of this state or of the United States . . . is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.") The court ordered that minors maximum period of confinement was three years. The court placed minor on probation and initially placed him in a juvenile camp program at Camp Holton. Minors probation conditions included obeying all instructions and orders of his parents, teachers, and the camp staff, not leaving the camp (or suitable placement) without permission, not being "out of residence between 6 pm and 6 am, except with parental consent," and "not staying away from residence for more than 24 hours."
Penal Code section 245, subdivision (a)(1).
Subsequently, minors mother moved to Blythe, California, and the case was transferred to Riverside County. Minor remained a ward of the court, but was released to the custody of his mother on April 10, 2001.
On June 19, 2001, a section 777 petition and notice of hearing was filed, alleging that minor violated his probation by coming home after curfew, missing school without an excuse, and failing to inform the school and/or his probation officer why he missed school. Minor was suspended from school for four days. (Section 777 provides, in part, that, "an 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.") At a hearing on July 11, 2001, minor admitted that the allegations in the section 777 petition were true. Minor was placed at the Indio juvenile hall and then at Boys Republic on August 7, 2001.
On October 17, 2001, another section 777 notice was filed, alleging that minor violated a condition of his probation in that he left Boys Republic without permission on October 14, 2001. He was taken into custody on October 15, 2001. At a hearing on October 17, 2001, minor admitted the allegation. Thus, the court found that minor had violated a court order. Minor still remained placed at Boys Republic.
On October 31, 2001, another section 777 notice was filed, alleging that minor left Boys Republic again, on October 26, 2001, without permission, and that he remained at large. Minor was found and taken into custody on November 6, 2001. At a hearing on November 8, 2001, minor admitted the allegation, and he was detained in juvenile hall.
On January 11, 2002, a new section 602 petition was filed, alleging that minor committed a misdemeanor battery by getting into a fight with another ward at juvenile hall. Minor admitted the allegation and, after a two-month additional stay at juvenile hall, was transferred to a group home.
On July 12, 2002, a section 777 petition was filed, alleging that minor violated a condition of his probation, in that he "failed to adjust to the reasonable rules, terms, conditions, and directives of the court-ordered placement at . . . ." Specifically, minor left the facility without permission and used drugs. He was returned by the police. The petition requested minors removal from the group home. Minor admitted the allegations at the hearing on July 15, 2002. The court ordered minor detained while a suitable facility was located.
On July 17, 2002, minor met with a juvenile hall counselor and expressed his inability "to be successful in placement" and his desire to go to CYA instead. The counselor conveyed minors comments to the juvenile court officer. As a result, the juvenile court counselor placed the matter on calendar for July 22, 2002, in order to inform the court. At the hearing on July 22, 2002, the court recounted minors previous failures to remain at any given placement. Minor then addressed the court: "I just hope that you wont place me because every time I get placed, I always fail for some reason. And I can never make it. I dont know why. And I will always be set up for failure." Minor then asked the court if there was an alternative, and asked that he be committed to CYA for a 90-day evaluation. Minor further stated that, if he were put in placement again, he already knew that he would end up "fighting, running away, or doing something to get [himself] moved because [he] just [could not] function in placement."
The court then realized that the matter was not on calendar that day for a probation violation, but rather just for "further proceedings," per minors juvenile hall counselors request. At that point, minors counsel stated that she thought a section 778 petition would have to be filed, in order for the court to order minor to be committed to CYA. The juvenile court officer responded that the probation department could file one the next day. The court took the matter off calendar and stated that it did not have the jurisdiction to do anything at that point in time. Minors counsel agreed. The court then stated that minor had to remain in placement, and then the court agreed that a section 778 had to be filed.
The following day, the probation department filed a section 778 change of circumstance petition, which alleged that, on July 15, 2002, minor had admitted to the allegations of a section 777 petition and had been removed from a placement because he failed to adjust to the reasonable rules of the placement. The section 778 petition then alleged that minor had stated on numerous occasions that if he were sent back to placement, he would run away, and that it would be in his best interest to be committed to CYA. The matter was being placed back on calendar so that the original ruling for the placement could be changed. On July 24, 2002, minors counsel denied the allegations, and a contested hearing was set for July 31, 2002.
At the July 31, 2002 hearing, the remarks minor made at the July 22, 2002, hearing concerning his inability to stay in placement and his desire for a CYA commitment were read into the record. Minors counsel expressed that he did not want his client to be committed to CYA. However, he requested that minor be committed to CYA for three to six months in order for him to be diagnosed, per minors wishes. The court concluded that it was in minors best interest that the previous order remanding minor to be put in a placement be vacated and that, pursuant to section 778, minor be committed to CYA. The court requested status reports every six months and stated that, if minor appeared that he could function in a less restrictive placement without running away, the court would recall the CYA commitment.
Minor now appeals the courts order committing him to CYA, pursuant to section 778.
ANALYSIS
I. Minors Claim is Barred by the
Doctrine of Invited Error
Minor contends that section 778 was not the proper basis under which the juvenile court could commit him to CYA. Minor argues that the proceedings had to be brought under section 777, since the court ordered him to be placed in a more restrictive setting. Furthermore, section 777 requires a finding that a minor either violated a court order or a condition of probation, and no such finding was made here.
"Section 777 provides for the removal of a minor ward of the court or probationer to a more restrictive placement than that previously ordered based upon additional misconduct by the minor." Specifically, "if the minor is committed to the Youth Authority — then the procedural requirements of section 777 must be followed."
In re Marcus A. (2001) 91 Cal.App.4th 423, 426.
In re Kazuo G. (1994) 22 Cal.App.4th 1, 6
Section 778 provides, in relevant part, that "any parent or other person having an interest in a child who is a ward of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [P] If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ." Thus, where modification is sought, but not a more restrictive level of custody, the proceeding is properly brought under section 778.
In re Ronald W. (1985) 175 Cal. App. 3d 199, 203, 220 Cal. Rptr. 557.
We agree that, if a more restrictive placement is sought, for example to CYA, section 777 is the applicable statute, rather than section 778. The court here proceeded under section 778 and ordered minor committed to CYA. However, the record shows that minor invited any error by telling the court, the district attorney, and the juvenile court officer from the probation department that a section 778 petition had to be filed, in order to have minor committed to CYA. Minor cannot now argue that the court improperly proceeded under section 778.
In re Kazuo G., supra, 22 Cal.App.4th 1, 6; In re Martin L. (1986) 187 Cal. App. 3d 534, 542, 232 Cal. Rptr. 43.
"Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. [Citations.]" "Similarly, an appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal. [Citations.]"
Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212, 285 Cal. Rptr. 99, 814 P.2d 1341.
In re Marriage of Broderick (1989) 209 Cal. App. 3d 489, 501, 257 Cal. Rptr. 397.
At the July 22, 2002 hearing, the juvenile court officer informed the court that minor had run away from approximately six placements, that minor said that if he was directed back to placement again, he would run away, and that minor now wished to go to CYA. The court recounted minors history of running away from placements, and then it allowed minor to address the court. Minor essentially told the court that he did not want to be put in another placement because it did not matter "what place [he went] to. [He] always ended up fighting, running away, or doing something to get [himself] moved because [he] just [could not] function in placement." Minor asked the court if there were any other alternatives for him, such as doing "a 90-day evaluation, come back down to do Ricardo M.[ ] time [detention in juvenile hall ] or . . . in six months come down to do CYA." The court then asked why the matter was on calendar that day, and the juvenile court officer stated that it was not for a probation violation, but it was "just for further proceedings." Apparently, minors juvenile hall counselor asked for minors matter to be put back on calendar. Then all the parties agreed that minor had been ordered back to placement on July 15.
In re Ricardo M. (1975) 52 Cal. App. 3d 774.
In re Lance W. (1985) 37 Cal.3d 873, 898, 210 Cal. Rptr. 631, 694 P.2d 744.
At that point, minors counsel stated that she thought a section 778 petition would have to be filed, in order for the court to change minors placement to CYA. The juvenile court officer responded that the probation department could file a section 778 petition the next day. The court took the matter off calendar and stated that it did not have the jurisdiction to do anything at that point in time. Minors counsel agreed. The court stated that minor had to remain in placement, and then the court agreed that a section 778 had to be filed.
A section 778 petition was filed the next day. At the July 31, 2002, hearing on the petition, the remarks minor made on July 22, 2002 concerning his inability to stay in placement and his desire for a CYA commitment, were read into the record. Minors counsel also requested that minor be committed to CYA for three to six months in order for him to be diagnosed, per minors wishes. The court then vacated the previous order and, pursuant to section 778, sentenced minor to CYA.
On the record before us, it is clear that minor, by his own conduct of telling the court that he wanted to be committed to CYA and by minors counsels conduct of telling the court that the proper procedure was to file a section 778 petition, induced the commission of the claimed error. Therefore, minor may not claim on appeal that the judgment should be reversed because the court erroneously sentenced him to CYA pursuant to section 778. Furthermore, minor waived his right to attack the alleged error by expressly acquiescing to the procedure of the section 778 hearing, which was held on July 31, 2002.
Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, 212.
In re Marriage of Broderick, supra, 209 Cal. App. 3d 489, 501.
Minor received exactly what he asked for — a commitment to CYA, pursuant to section 778. The doctrine of invited error bars his claim that section 778 was not the proper basis upon which the juvenile court could commit minor to CYA.
II. The Matter is Remanded to Calculate the Correct Number of Custody Credits
Minor was committed to CYA on July 31, 2001. The court stated that the maximum time of confinement was three years and two months and awarded minor one year and twenty-four days (389 days) of custody credits. Minor contends that he is entitled to 564 days of credit. The People concede that the court erred in its calculation, but argue that minor is only entitled to 448 days of credit.
Minor calculated 564 days of credit by adding the total number of days he was in placements other than his home. The only days that the People dispute as not entitling minor to custody credit were the days he spent at the group home, which was from March 18, 2002 to July 12, 2002 — a total 116 days. Thus, the People argue that minor is only entitled to 448 days of custody credits (564 days - 116 days).
It is undisputed that a minor is entitled to credit for time spent in physical confinement, as defined in section 726. Section 726, subdivision (c) defines "physical confinement" as "placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority." (Italics added.) Thus, the definition of "physical confinement" specifically excludes "time not spent in a secure facility."
In re Randy J. (1994) 22 Cal.App.4th 1497, 1505.
In re Randy J., supra, 22 Cal.App.4th 1497, 1505.
The People argue that since the group home is a privately-run treatment center for troubled youths, it does not constitute "physical confinement" under section 726. The People support its argument with cites to the record which state that the group home is a privately-run placement facility. However, as minor points out, the record does not establish whether the group home is a secure or non-secure facility. Therefore, on this record, we cannot determine the proper number of custody credits.
We remand the matter to the juvenile court to determine the proper number of custody credits to which minor is entitled.
DISPOSITION
The matter is remanded to the juvenile court to determine the correct number of custody credits to which minor is entitled. In all other respects, the judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.