Opinion
A152018
04-26-2018
In re D.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J42929)
D.B. (Minor), who had been the subject of four previous sustained wardship petitions filed under Welfare and Institutions Code section 602, admitted allegations in a later petition that he committed grand theft of a firearm. (Pen. Code, § 487, subd. (d)(2).) He appeals from two provisions of the juvenile court's disposition orders. He argues that the court abused its discretion by committing him to the Challenge Academy at juvenile hall. He also argues that the court violated his due process rights by stating that he is prohibited from owning or possessing a firearm until the age of 30, because the prohibition is not authorized for the offense of grand theft of a firearm. We find no abuse of discretion, and, because the firearm prohibition had been properly imposed in the disposition of an earlier offense, we find no violation of due process. Therefore, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Minor's Prior Petitions
Because Minor's delinquency history bears on this appeal, we summarize it here, drawing our descriptions of the facts underlying his sustained petitions from reports prepared by the probation department.
Minor's first sustained petition arose from an incident at a skate park in March 2015, when a 10-year-old boy told Minor, then almost 14, that he could not smoke cigarettes at the park. A fight ensued, in which Minor punched the boy several times in the stomach and head, and kicked him in the torso. Eventually, Minor placed him in a choke hold and punched him in the face. Meanwhile, Minor's friend took money from the boy's pocket. Minor then lifted the boy into the air and threw him to the ground, breaking the boy's arm. In a police interview, Minor admitted throwing the boy down and denied involvement in taking the money. He claimed the boy yelled at him for no reason, called him "nigger," tripped him, and hit him with a scooter. A video showed Minor beating the boy while he was on the ground in a fetal position. Minor admitted to a count of felony battery with serious bodily injury. (Pen. Code, § 243, subd. (d).) At disposition, the juvenile court declared Minor a ward of the court and placed him on probation to be served while residing with his mother. Among the terms of his probation was the prohibition against owning or possessing a firearm until the age of 30, under section 29820, subdivision (b) (firearms restriction).
Statutory references are to the Penal Code unless otherwise stated.
Section 29820 provides that a person who is alleged to have committed any offense listed in section 29805 and who is subsequently adjudged a ward of the court under Welfare and Institutions Code section 602 because of committing any offense listed in section 29805 "shall not own, or have in possession or under custody or control, any firearm until the age of 30 years." (§ 29820, subd. (b).) Among the listed offenses is Minor's alleged and sustained offense of battery under section 243. (§ 29805, subd. (a).)
In May 2016, a second petition was filed alleging Minor violated terms of his probation. According to the probation report, the principal of Minor's school reported Minor's attendance was poor and his behavior when present was disrespectful. Minor's mother reported that Minor failed to follow her directives, and often returned home after curfew. Minor admitted he violated probation by failing to maintain acceptable attendance and behavior at school, and the juvenile court imposed a 48-day term in juvenile hall, with 45 days to be served out of custody on electronic monitoring.
The third sustained petition arose from incidents that occurred in July 2016. Minor and another youth, N.G., were on the roof of a school gym in the early morning hours throwing rocks at passing cars and a house, causing damage to two cars and a garage door. Two rocks were thrown at an investigating officer; one almost hit him. The previous evening, Minor and another youth, J.M., had been seen in the backyard of a residence that had been burglarized. They did not have permission to be on the property, and they fled. Police later contacted J.M.'s mother, who told police that J.M. told her he and Minor had broken into the house together and stolen the property, and J.M., who gave police Minor's backpack, which contained the stolen property. Minor admitted to counts of misdemeanor vandalism of a garage door (§ 594, subd. (b)(1)), felony possession of stolen property (§ 496, subd (a)), misdemeanor threat to an executive officer (§ 69), and misdemeanor trespass of a residence. (§ 602.5, subd. (a).) At disposition, the juvenile court continued Minor's wardship in the custody of his mother and imposed 48 days in juvenile hall, with credit for 48 days served.
The fourth sustained petition arose from events in November 2016. According to the probation department, police officers responding to a report that a person had received threats that people were coming to "shoot up" his house, found a car occupied by six people including Minor and I.L. Minor jumped out of the car with a mask around his face and a gun tucked in his pants, and then jumped back in the car when he saw the police. A loaded gun was found in the car where Minor had been sitting. Minor admitted to a count of misdemeanor possession of a firearm by a minor. (§ 29610.) He later told the probation department that I.L. had a "beef" with the person who was threatened, and that he had accompanied I.L. as backup for a fight. Minor denied knowing that anyone had a gun or that he was wearing a mask. At disposition, the juvenile court continued Minor's wardship in the custody of his mother, imposed 78 days in juvenile hall with credit for 33 days served, the remaining 45 to be served out of custody on electronic monitoring.
In January 2017, Minor was charged with violating the terms of his probation. According to the probation department, Minor was defiant at home, and in mid-January, he ran away from home. When he failed to appear at the scheduled detention hearing, a bench warrant was issued for his arrest. Minor was arrested on the bench warrant in April 2017 because of the events giving rise to the petition at issue in this appeal. The January 2017 charge was dismissed when Minor admitted to a count in the April 2017 petition. B. April 2017 Petition
A petition filed in April 2017 charged Minor with first degree residential burglary (§ 459, count 1); grand theft of a firearm (§ 487, subd. (d)(2), count 2); possession of a firearm by a minor (§ 29610, count 3); and possession of live ammunition by a minor (§ 29650, count 4). According to the probation report, Minor was visiting a friend's house in February 2017, and in response to questions from Minor, the friend told Minor that his parents kept a gun in the safe. Minor, his friend, and a third person left the house in a car, with the friend planning to take the third person home. After traveling a block, Minor asked to be let out, claiming he would go to visit another person. Instead, Minor went back to the friend's house. When the friend returned home and found Minor at the house, Minor said he was on the run from the police and needed a ride. Later that day, the safe was found to be missing. About two months after that, Minor was contacted during a traffic stop after he left a party where someone was shot. The firearm that had been stolen in February was at his feet in the car, and was loaded. Minor told police he had attended the party where the shooting occurred, but denied involvement in the actual shooting.
Minor admitted to grand theft of a firearm, and the remaining counts were dismissed. The factual basis for the admission was, "That [Minor] was located at the victim's house on the day of the theft of the gun from the house, that he knew about the gun being in the house because he talked to the owner's son and was subsequently, possibly two months later, found in possession of the gun that was stolen." C. Probation Report
Before the disposition hearing, the probation department filed a report stating that Minor was at high risk for reoffense, and noting his history of gun possession. Minor's prior performance on probation was "less than satisfactory"; Minor had not benefited from the previous services provided to him, which included electronic monitoring, general supervision, and family preservation intensive supervision; and in the two years since he was adjudged a ward of the court, Minor had been referred back to the court for violations on four separate occasions. The report also noted that the offenses that were charged in the fourth sustained petition were similar to some of the charges in the April 2017 petition, and that Minor had been referred to the Day Reporting Center (D.R.C.) program, the probation department's "most intensive community based program," after the disposition of the fourth petition, but he missed his intake appointment and then he ran away from home without enrolling in the program. Three months later, Minor was arrested on the charges in the April 2017 petition.
At the disposition hearing, the probation officer testified that Minor missed his first appointment because his mother could not attend, and then ran away before another could be scheduled. The probation officer testified that Minor's mother "was apologetic for missing the appointment."
The department offered "a guarded recommendation for continued community based treatment," specifically, participation in the D.R.C. Program, which would follow 90 days in juvenile hall and a 60-day electronic monitoring period. The department justified the recommendation on the grounds that Minor had just turned 16 and had not yet participated in the D.R.C. program. The department also determined that Minor was amenable to treatment, that he had "positive parental support," that the Placement Screening Committee (Committee) had determined community based treatment should be recommended, and that Minor was assessed to be appropriate for the D.R.C. Program. The Committee had considered out-of-home placement, including a commitment to the Challenge Academy at juvenile hall, but declined to recommend such placement. The Committee had noted that "although [Minor] is chronologically 16 years old, his apparent lack of maturity and impulsivity, could present problems for his programming [at] the Challenge Academy, which houses traditionally older and more emotionally mature minors." D. Disposition Hearing
At the scheduled disposition hearing, the district attorney asked the juvenile court to commit Minor to the Challenge Academy, stating that she disagreed with the probation department recommendation, just as she had disagreed with its recommendation and asked for the Challenge Academy at the disposition of the previous petition. She argued, "This is [Minor's] second offense involving a loaded firearm. I just don't see that the community based treatment is appropriate for him or the community." She argued that Minor needed a structured program and cognitive behavior treatment, that electronic monitoring had already been tried, and that minor had previously been offered placement at the D.R.C. Program but did not avail himself of it, but "instead decided to commit another very serious offense." Minor's counsel argued that the court should follow the probation department recommendation, and that Minor should have "another chance" at D.R.C., which offered some of the same components as the Challenge Academy and was the "least restrictive means." She argued that it may be the case that Minor would "age out in a sense, mature out of [his] delinquency," and that if Minor "wasn't able to turn things around in DRC, then [Challenge Academy] would be in his future." She asked the juvenile court to set a contested hearing if the court was inclined to follow the district attorney's suggestion; and the court did so.
Probation officer Arthur Lamb testified for Minor at the contested hearing, stating that he had supervised Minor for about a month before Minor ran away from home, during which time he had met with the minor just once, in a long intake meeting with Minor and his mother. Lamb said that Minor struck him as being "a bit immature for his age," and that Minor was "impulsive" and failed to understand the consequences that could occur from his behavior. Lamb consulted with the director of the D.R.C. Program, and they concluded that Minor would benefit from D.R.C.'s "cognitive education program," "Aggression Replacement Training," and mentoring. Lamb also consulted with the Committee. They discussed Minor's immaturity, "and given the mix of minors that are in [the Challenge Academy], along with other issues such as his not participating in the DRC program, we also discussed the fact we would prefer to reserve the Challenge [Academy] as another step up the ladder." Lamb said participants in the Challenge Academy range in age from 15 through 18, with an average age of 17. He and the Committee agreed that Minor was at present "emotionally not ready for" and "not . . . appropriate" for the Challenge Academy. Lamb expressed concern that at the Challenge Academy Minor could be influenced by participants who "are a little bit more mature and sophisticated," and that "instead of him benefiting from the program, he could actually learn additional antisocial tools." Lamb said Minor's mother offered "additional assurances" that she would play a strong role in making sure Minor followed his probation conditions.
Under questioning from the court, Lamb conceded that during the 90 days at juvenile hall, which the department recommended to precede the D.R.C. Program, Minor would be housed with essentially the same minors as he would in the Challenge Academy. Lamb said that the programming at the Challenge Academy and the D.R.C. Program were similar, and both would address Minor's needs, but Lamb recommended the D.R.C. Program in view of Minor's emotional immaturity and the fact that Minor had not yet participated in it.
After considering the submitted reports and hearing further argument from counsel, the juvenile court continued Minor a ward of the court, ordered him removed from his mother's custody and committed to the care, custody and control of the probation officer in juvenile hall "for placement in Challenge Academy, if appropriate." The juvenile court explained, "[Minor], certainly this [is] not a very easy situation for the Court. There is not a lot of options. [W]e have given you an opportunity in the community where maybe some of it wasn't necessarily all your fault, but every offense seems to be involving risk to others. I'm looking at what is the best for the community and you long term. [¶] . . . [¶] I am going to order Challenge. I think it's the best for you doing well and that is exactly what I want. I suggest to you, you have downplayed. There has been some drug use as well as the peer associations up to and including last fall, and then the continuation of very serious offenses. I'm glad you were not hurt, but you could have been. [¶] We have to make sure you receive treatment properly before you're in the community. Your mother can only do so much, and she has tried awfully hard, but you need additional programming so your mother could help you, and your family as well."
The terms and conditions of probation included the section 29820, subdivision (b), firearms restriction, which had first been imposed on Minor at disposition of the first petition.
Minor timely appealed.
DISCUSSION
A. Out-of-home Placement
"We review the court's placement decision for an abuse of discretion. (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320.) We review the court's findings for substantial evidence, and ' "[a] trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." ' (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288 . . . .) ' " ' "In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law." ' " ' (Ibid.)" (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154.)
"The purpose of the juvenile delinquency laws is twofold: (1) to serve the 'best interests' of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and 'enable him or her to be a law-abiding and productive member of his or her family and the community,' and (2) to 'provide for the protection and safety of the public . . . .' ([Welf. & Inst. Code,] § 202, subds. (a), (b) & (d); In re Myresheia W. (1998) 61 Cal.App.4th 734, 740, 741; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) [¶] To accomplish these purposes, the juvenile court has statutory authority to order delinquent wards to receive 'care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of [the juvenile court law] . . . .' ([Welf. & Inst. Code,] § 202, subd. (b).)" (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615.)
Minor argues that the juvenile court abused its discretion by "disregarding the opinion" of the professionals who reviewed his case and committing him to juvenile hall. We disagree.
As an initial matter, the juvenile court is not required to follow the recommendations of the probation department, which are advisory, not determinative. (People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on another ground as stated in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6.)
Minor has a history of serious offenses that pose a risk to public safety, including two offenses, committed within months of each other, in which he was in possession of loaded firearms. In one of those two offenses, he was acting as "backup" to a friend who had a conflict with another person, and in the other he had a gun that he had stolen from a friend's house, and was leaving a party where someone had been shot. These two offenses, and others, took place while he was on probation in the community, under the supervision of the probation department and his mother, yet Minor continued to violate the juvenile court's orders, disregarding the risk to others and himself. Lamb testified that, even after two years on probation, Minor was impulsive and failed to understand the consequences of his behavior. Minor was defiant toward his mother, and, on top of this, he was assessed as a high risk for reoffense. Minor had previously been given the opportunity to participate in the D.R.C. Program. Even though he missed his intake appointment through no fault of his own, he chose to run away from home rather than follow up with that program. On this record, the juvenile court could easily find that returning Minor to the community once again was unlikely to result in rehabilitation, and would endanger the public. In view of Minor's unsuccessful experience on probation in the community, the juvenile court could also find that it was in Minor's best interests to commit him to the Challenge Academy, which offers programs to address Minor's needs in a structured environment where Minor could earn credit toward high school graduation.
In sum, substantial evidence in the record supports the juvenile court's finding that Minor's welfare required he be taken from his mother's custody and that it was in Minor's best interests to commit him to the Challenge Academy at juvenile hall, and therefore the commitment is not an abuse of the juvenile court's discretion.
We are not persuaded by Minor's suggestion that because he is susceptible to negative peer influence, the juvenile court abused its discretion by committing him to juvenile hall, where, he says that influence would be exacerbated. The argument rests entirely on speculation about the level of negative peer influence in the community and in the Challenge Academy.
Minor also argues that one of the juvenile court's stated reasons for committing him to the Challenge Academy is unsupported. The juvenile court stated that a benefit to the Challenge Academy, as opposed to the department's proposal of 90 days in juvenile hall followed by the D.R.C. Program, is that through the Challenge Academy Minor would begin receiving services right away, as opposed to spending 90 days without them before beginning the D.R.C. Program. Minor points out that it is possible that even if he is assigned to the Challenge Academy, there may be a waiting period during which he would not be receiving services. That may be so, but it does not change the fact that substantial evidence supports the juvenile court's findings. Should there be a waiting period without services before Minor's assignment to Challenge Academy, that would mean only that the D.R.C. Program and Challenge Academy are equivalent in that one respect. And we would see no abuse of discretion in concluding that a disposition offering the possibility of programming within the first 90 days is preferable to a disposition where it is certain that the programming will not be available during that period.
Finally, Minor emphasizes that the disposition order commits him to juvenile hall for placement in the Challenge Academy "if appropriate," and holds out the possibility that he might remain incarcerated in juvenile hall without the benefit of the services that would be available through the Challenge Academy or D.R.C. Should this occur, Minor can seek to modify the disposition order under Welfare and Institutions Code section 778, subdivision (a). B. Firearms Restriction
Minor argues that because section 29820, subdivision (b) does not authorize the firearms restriction for his admitted offense of grand theft of a firearm, the juvenile court could not properly impose the restriction on him, and by improperly imposing it, the court violated his constitutional right to due process under the Fourteenth Amendment.
The Attorney General concedes that grand theft of a firearm is not among the offenses for which section 29820 authorizes the imposition of a firearms restriction. But he points out that in arguing this issue, Minor ignores his earlier sustained adjudication for battery with serious injury (§ 243, subdivision (d)), an offense which mandates the firearms restriction. (§ 29820; see also § 29805, subd. (a).) The Attorney General argues that because of the earlier adjudication, the firearms restriction still applies to Minor and is properly included in the disposition order.
The Attorney General has the better argument. By its terms, section 29820 applies to Minor, as a person who is alleged to have committed a section 243 offense (§ 29820, subd. (a)(1)) and who was subsequently adjudged a ward of the court because he committed a section 243 offense. (§ 29820, subd. (a)(2).) Because section 29820 applies to Minor, we do not conclude that the juvenile court erred by so stating in its disposition order.
Minor would do well to bear this restriction in mind, something he apparently has not done so far. The offense he admitted from the fourth sustained petition, being a minor in possession of a firearm (§ 29610), reflects his disregard of the restriction, as does his stipulation to being found in possession of a stolen firearm as a factual basis for his admission to grand theft of a firearm. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.