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People v. Erik V. (In re Erik V.)

California Court of Appeals, Fifth District
Aug 9, 2023
No. F084791 (Cal. Ct. App. Aug. 9, 2023)

Opinion

F084791

08-09-2023

In re ERIK V., a Person Coming Under the Juvenile Court Law. v. ERIK V., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,

Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. JJD072622. John P. Bianco, Judge.

Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

THE COURT [*]

INTRODUCTION

Appellant Erik V. contends the juvenile court abused its discretion when it committed him to a secure youth treatment facility (SYTF). He argues his most recent adjudication was not for a SYTF-eligible offense and SYTF was not the least restrictive alternative available. We affirm.

FACTUAL AND PROCEDURAL HISTORY

I. October 24, 2019 Petition

On October 22, 2019, appellant was positively identified in a field line-up as being responsible for "numerous gang related graffiti, spray painted fences, trash cans, as well as a residence." (Boldface omitted.) Appellant was 14 years old at the time.

On October 24, 2019, the Tulare County District Attorney filed a juvenile wardship petition (Welf. &Inst. Code, § 602, subd. (a)), alleging appellant committed nine counts of misdemeanor vandalism causing under $400 in damage (Pen. Code, § 594, subd. (a)), each with a gang allegation (Pen. Code, § 186.22, subd. (d)).

Undesignated statutory references are to the Welfare and Institutions Code.

On November 18, 2019, appellant admitted all the allegations contingent on a determination of eligibility for deferred entry of judgment. On December 16, 2019, the court granted appellant deferred entry of judgment and placed appellant under the supervision of the probation officer and in the custody of his father, with various terms and conditions.

II. June 4, 2020 Petition

On June 4, 2020, the district attorney filed another juvenile wardship petition (§ 602, subd. (a)) against appellant. The petition alleged three counts of felony resisting an executive officer (Pen. Code, § 69; counts 1-3), four counts of felony criminal threats (Pen. Code, § 422; counts 4-6, 9), misdemeanor possession of alcohol by a minor (Bus. &Prof. Code, § 25662, subd. (a); count 7), felony second degree robbery (Pen. Code, § 211; count 8), misdemeanor looting (Pen. Code, § 463, subd. (c); count 10), misdemeanor petty theft (Pen. Code, § 484, subd. (a); count 11), and misdemeanor vandalism causing under $400 in damage (§ 594, subd. (a); count 12).

The following evidence was presented at the June 25, 2020 contested jurisdictional hearing.

On February 14, 2020, Woodlake police detective S. Lopez responded to Woodlake Community Day School where she observed vandalism inside a classroom involving the letters "SSK" etched onto a desk, and vandalism outside the classroom involving "Eri[k] V." etched into the concrete. Lopez explained that "SSK" was gang related and stood for "South Side Kings." Lopez visited appellant at his home, where he admitted that he had committed both etchings.

On February 17, 2020, Woodlake police officers J. McMillan and Z. Fleeman responded to a report of minors knocking over trash cans in an alleyway in Woodlake. When McMillan and Fleeman arrived, they saw a group of five minors walking away from the area of the reported incident. They both recognized one of the minors as appellant based on prior contacts. When McMillan attempted to contact the juveniles, they "scattered." Nonetheless, McMillan, Fleeman, and a trainee were able to detain all the minors. One of the minors had a beer can in his pocket. McMillan determined that all five of the minors were under the influence of alcohol based on their bloodshot eyes, slurred speech, and the possession of alcoholic beverages.

Fleeman attempted to speak with appellant, who was "obviously" under the influence. Fleeman asked appellant to calm down, but appellant told Fleeman to "just F off." Fleeman then grabbed appellant's arm, but appellant tried to pull away and Fleeman took him to the ground. Fleeman sustained abrasions to his hand and elbow in the process of detaining appellant.

Due to the force used during his arrest, appellant required medical clearance before being transported to juvenile hall. McMillan transported appellant to the hospital. Appellant made several statements that he was "going to tell the homies to take care of [the officers]," and was going to find McMillan's and another officer's families and assault their daughters. Appellant also stated that he was going to get different gang members to attack the officers on the streets. McMillan found these threats credible because he knew appellant and the other minors were young gang members.

On May 27, 2020, appellant and three other minors went to a drug store in Woodlake. The supervisor of the store suspected the minors were stealing liquor, both because she noticed a gap in the liquor aisle and also because appellant had stolen alcohol there before. She called law enforcement and locked the doors of the store. However, she let the minors out before law enforcement arrived because appellant said something to the effect of, "[J]ust shank her," and she was afraid. The minors left the store without paying for the alcohol.

Based on the foregoing, the court found the allegations on counts 1, 8, 9, 10, and 12 true as charged, and found count 6 true as a misdemeanor. The court found counts 2 through 5, 7, and 11 were not proven and they were dismissed.

At the July 31, 2020 disposition hearing, appellant's deferred entry of judgment was terminated, and he was declared a ward of the court, placed on formal probation, and committed to the Mid Term Program for 365 days, with various other terms and conditions.

III. December 18, 2020 Notice of Probation Violation

On December 18, 2020, a section 777 notice of a probation violation was filed against appellant (§ 777, subd. (a)). As amended on the record, the alleged violations were failure to obey Aftercare Program rules by failing to obey his terms and conditions of the Global Positioning System (GPS) monitoring along with failure to abstain from the use of drugs. On February 25, 2021, appellant admitted to violating the terms and conditions of his GPS monitor and failing to abstain from the use of drugs. He was continued as a ward of the court, placed on probation under the previous terms and conditions, and returned to the Mid Term Program.

IV. October 7, 2021 Notice of Probation Violation

On October 7, 2021, another section 777 notice of probation violation was filed against appellant (§ 777, subd. (a)). The alleged violations included: failure to abide by the rules of the Aftercare Program, failure to abide by the rules of the Electronic Monitoring Program, failure to be home between required hours, failure to refrain from using illegal substances, failure to attend and participate in Anger Management counseling; failure to attend school regularly, failure to report to the probation officer as directed; and failure to obey his parents.

V. October 26, 2021 Petition

On October 26, 2021, the district attorney filed another juvenile wardship petition against appellant (§ 602, subd. (a)), alleging felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1), with a special allegation of infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)); felony resisting an executive officer (Pen. Code, § 69; count 2); felony battery upon a custodial officer (Pen. Code, § 243.1; count 3); and felony vandalism causing over $400 in damage (graffiti) (Pen. Code, § 594, subd. (a); count 4), with a gang allegation (Pen. Code, § 186.22, subd. (b)(1)(A)).

According to the report of the probation officer, counts 1 through 3 of the October 26, 2021 petition arose out of an October 20, 2021 incident in which appellant and a coparticipant ignored" 'cover commands'" and assaulted Probation Correctional Officer M. Ramirez by striking him with closed fists. Assisting officers attempted to push appellant away, but he broke away and threw a chair at Ramirez. Eventually, appellant and his coparticipant complied, were handcuffed, and were returned to their rooms. Shortly before the incident, a third minor encouraged others to assault Ramirez. Ramirez reported he heard the third youth tell appellant and his coparticipant they would no longer be" 'charged rent'" if they assaulted Ramirez.

The offense in count 4 of the petition arose out of an October 6, 2021 contact between appellant and law enforcement at appellant's residence. During a search of the residence, officers located graffiti consistent with instances of graffiti located on a bridge, stop sign, and mailboxes in Woodlake on October 5 and October 6, 2021.

On October 28, 2021, the gang allegation was dismissed and appellant admitted the remaining allegations. The court determined the crimes were felonies. On the same date, appellant admitted the allegations in the October 7, 2021, probation violation notice.

The disposition hearing was held on November 16, 2021. Appellant was continued a ward of the court, placed on probation, and committed to the Long Term Program for 24 months, with other additional terms and conditions. At that time, the court stated, "The Court is concerned regarding the minor's continued escalating criminal behavior and his lack of regard for the consequences of his actions. [¶] The minor's most recent action shows a callous disregard for the safety of others ...." The court warned, "I'm going to give the minor one more opportunity to rehabilitate, otherwise, based on his increased criminality, he's looking at going to the [SYTF]."

VI. May 17, 2022 Notice of Probation Violation

On May 17, 2022, a section 777 notice of a probation violation was filed against appellant (§ 777, subd. (a)). The alleged violations were failure to obey the Long Term Program rules, fighting, and displaying items or emblems reasonably known by appellant to be associated with or symbolic of gang membership.

The report of the probation officer noted the following facts underlying the May 17, 2022 notice of probation violation.

Appellant had received 19 consequences and 16 incident reports since being committed to the Long Term Program on November 16, 2021.

On December 8, 2021, appellant received a school write-up for attempting to trip another student. Later that day, he attempted to trip another youth. Although encouraged to remain in class because he needed school credits, appellant stated," 'Fuck it, I don't want to be here it's my program.'" On the same date, he received an incident report due to obtaining three consequences in one week. The consequences were for failing to follow instructions, not wearing a facemask, and failing to follow instructions and becoming argumentative, all on separate occasions.

On January 28, 2022, appellant was involved in a physical altercation with another youth. Appellant failed to go into the cover position and continued to resist until placed in handcuffs.

On March 13, 2022, it was documented that appellant's cell door had gang-related tagging.

On May 13, 2022, appellant was involved in a physical altercation with a different youth. Appellant again failed to go into cover position.

On May 17, 2022, appellant was involved in a physical altercation with yet another youth. Appellant again failed to go into cover position and continued assaulting the youth even after an officer attempted to separate him from the youth.

On May 19, 2022, appellant admitted the violations.

Prior to the disposition hearing, the probation officer filed a supplemental probation report, noting that appellant's father "does not believe [appellant] will abide by any terms and conditions .... The father believes [appellant] does well in a structured setting such as in custody." The probation officer recommended appellant be committed to SYTF to address his "serious and violent behavior" in a "secured setting to ensure the safety of the youth and the community." Appellant filed a contested disposition brief, in which he requested another commitment to the Long Term Program.

The disposition hearing was held on July 7, 2022. Appellant's counsel submitted on the previously filed brief. The prosecutor agreed with the recommendation of the probation officer that minor be committed to SYTF. The court committed appellant to SYTF, explaining, "although it was a violation of probation, it was a violation for fighting at the detention facility and also engaging in gang activity, both serious offenses." The court reviewed appellant's prior failed efforts at rehabilitation and stated:

"His probation officer has attempted to rehabilitate the minor in the least restrictive manner, initially placing him on Deferred Entry of Judgment, then, as indicated, placing in long-term programs. And although he completed the long-term program in the sense that he completed the behavioral program and the drug program, he continued to violate after being placed in that program by continuing to engage in assaultive behavior on other individuals at the detention facility."

The court then adopted the recommendation of the probation officer and found that SYTF was the least restrictive placement. The court continued appellant as a ward of the court, placed him on probation, and committed him to SYTF. The maximum term of confinement on all the sustained petitions was 18 years, less 675 days credit for time served.

DISCUSSION

Appellant contends the juvenile court abused its discretion by committing him to SYTF. He argues he did not meet the statutory criteria for commitment to SYTF because his most recent adjudication was for a violation of probation, rather than an offense listed in subdivision (b) of section 707. He additionally argues the court erred because SYTF was not the least restrictive placement suitable for his rehabilitation. We reject both claims.

I. Applicable Law

Pursuant to section 875, a minor may be committed to a SYTF if three criteria are met:

"(1) The juvenile is adjudicated and found to be a ward of the court based on an offense listed in subdivision (b) of Section 707 that was committed when the juvenile was 14 years of age or older.

"(2) The adjudication described in paragraph (1) is the most recent offense for which the juvenile has been adjudicated.

"(3) The court has made a finding on the record that a less restrictive, alternative disposition for the ward is unsuitable...." (§ 875, subd. (a).)

In determining whether a less restrictive disposition is unsuitable, the court must consider "all relevant and material evidence, including the recommendations of counsel, the probation department, and any other agency or individual designated by the court to advise on the appropriate disposition of the case." (§ 875, subd. (a)(3).) Additionally, the court must make its determination based on all of the following criteria:

"(A) The severity of the offense or offenses for which the ward has been most recently adjudicated, including the ward's role in the offense, the ward's behavior, and harm done to victims. [¶] (B) The ward's previous delinquent history, including the adequacy and success of previous attempts by the juvenile court to rehabilitate the ward. [¶] (C) Whether the programming, treatment, and education offered and provided in a secure youth treatment facility is appropriate to meet the treatment and security needs of the ward. [¶] (D) Whether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition that is available to the court. [¶] (E) The ward's age, developmental maturity, mental and emotional health, sexual orientation, gender identity and expression, and any disabilities or special needs affecting the safety or suitability of committing the ward to a term of confinement in a secure youth treatment facility." (§ 875, subd. (a)(3).)

II. Eligibility for Commitment to SYTF

Appellant contends he was ineligible for commitment to SYTF because his most recent adjudication was for a violation of probation, rather than an offense listed in subdivision (b) of section 707.

To resolve this contention, we must determine which of two offenses constitutes the "most recent offense for which [appellant] has been adjudicated" (§ 875, subd. (a)(2)): a probation violation described in the May 17, 2022 section 777 notice of probation violation, or an offense described in the October 26, 2021 section 602 petition. This is a question of statutory interpretation, which we review de novo. (People v. Lewis (2021) 11 Cal.5th 952, 961 (Lewis).)

We are guided by our Supreme Court's opinion in In re Greg F. (2012) 55 Cal.4th 393, 405 (Greg F.). Greg F. involved the "interplay" (id. at p. 400) between two statutes governing juvenile delinquency dispositions: section 733, subdivision (c), which establishes "a general rule that a ward cannot be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), unless 'the most recent offense alleged in any petition and admitted or found to be true by the court' . . . is one of the violent offenses listed in section 707, subdivision (b)" (Greg F., at p. 400); and section 782, which provides the juvenile court with power to "dismiss any wardship petition if 'the interests of justice and the welfare of the minor require such dismissal'" (Greg F., at p. 400).

Senate Bill No. 92 (2021-2022 Reg. Sess.) announced the closure of the Division of Juvenile Justice, encompassing DJF, and established as its successor the Office of Youth and Community Restoration, within the state's Health and Human Services Agency. (See Stats. 2021, ch. 18, §§ 10, 12.) This development in juvenile justice realignment added section 875 et seq., which governs commitment to a local SYTF in lieu of DJF. (Stats. 2021, ch. 18, § 12.)

The minor in Greg F. was the subject of a section 602 petition alleging he had committed an offense listed in subdivision (b) of section 707, making him eligible for a DJF commitment. The court sustained the petition and declared the minor a ward but, rather than committing him to DJF, ordered an out-of-home placement. (Greg F., supra, 55 Cal.4th at pp. 400-401.) However, the out-of-home placement subsequently was terminated and the minor was detained pending determination of another suitable placement. (Id. at p. 401.) While detained, minor participated in an attack on other minors, resulting in the prosecutor filing of a new section 602 petition, which alleged offenses not listed in subdivision (b) of section 707. The minor admitted some of the alleged offenses and the matter proceeded to disposition. (Greg F., at p. 401.) However, prior to the disposition hearing, the prosecutor filed a section 777 notice of probation violation based on the same assault precipitating the section 602 petition. (Greg F., at p. 401.) The prosecutor acknowledged he had erred in filing a new section 602 petition rather than proceeding by way of a notice of probation violation. He moved to set aside the minor's admissions and to dismiss the petition, explaining that he was" 'trying to get a [D]F-eligible] offense.' " (Greg F., at p. 402.)

The parties in Greg F. did not dispute that the minor could have been committed to DJF as punishment for the original offense had the second offense been alleged in a section 777 notice and treated as a probation violation, rather than having been alleged in a new section 602 petition. (Greg F., supra, 55 Cal.4th at p. 405.)

The juvenile court granted the motion and dismissed the second petition pursuant to section 782. (Greg F., supra, 55 Cal.4th at p. 402.) The Court of Appeal reversed, holding that subdivision (c) of section 733 prohibited the juvenile court from invoking section 782. (Greg F., at p. 402.) The Supreme Court reversed, holding that "section 733[, subdivision ](c) does not deprive the juvenile court of its discretion to dismiss a [section] 602 petition and commit a ward to DJF when, in compliance with section 782, such a dismissal is in the interests of justice and for the benefit of the minor." (Ibid.)

Relevant here, the high court noted that, pursuant to section 733, subdivision (c), "a DJF commitment must be based on a recent violent offense or sex crime adjudicated in a delinquency petition. It cannot be ordered based on a past offense in the ward's juvenile record if the ward's most recent offense does not qualify." (Greg F., supra, 55 Cal.4th at p. 404.) However, the court also noted that this "commitment limitation" depended on the "the nature of 'the most recent offense alleged in any petition.'" (Ibid.) The court noted that "a probation violation procedure is initiated under section 777 by the filing of a notice, not a petition," and a probation violation proceeding "does not result in the charging or adjudication of a criminal offense, even if the conduct alleged is criminal." (Id. at p. 405.) "Moreover, if a violation is established, the most restrictive placement the court can impose is the maximum term of confinement on the original offense for which the ward was placed on probation." (Ibid.) Thus, the statute did not bar "DJF commitments imposed for probation violations on qualifying offenses." (Id. at p. 404.)

Section 875 specifies that an SYTF-eligible offense must be "the most recent offense for which the juvenile has been adjudicated." (§ 875, subd. (a)(2), italics added.) However, Greg F. makes clear that proceedings on a section 777 notice of probation violation do not constitute adjudication of a criminal offense. (Greg F., supra, 55 Cal.4th at p. 405.) Thus, the most recent offenses of which appellant was adjudicated were those in the October 26, 2021 petition, which included felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1). Appellant does not dispute that this offense is listed in subdivision (b) of section 707 and therefore constitutes a qualifying offense for SYTF commitment pursuant to section 875. (See §§ 707, subd. (b), 875, subd. (a)(1).)

We note that Greg F. preceded the enactment of section 875. (See Senate Bill No. 92 (2021-2022 Reg. Sess.); Stats. 2021, ch. 18, § 12.) We presume the Legislature was aware of this judicial interpretation of existing law at the time it enacted section 875, and that it therefore intended the same interpretation to apply to section 875. (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785.)

Appellant was eligible for SYTF commitment following adjudication of the October 26, 2021 petition. He remained eligible for SYTF commitment following his May 19, 2022 admission of the probation violations. (Greg F., supra, 55 Cal.4th at p. 405; John L. v. Superior Court (2004) 33 Cal.4th 158, 165 [if a § 777 probation violation is found, the violator may, at most, receive a more restrictive juvenile placement within the original maximum term].) The probation violations did not constitute adjudications and did not affect his SYTF commitment eligibility.

The court did not err in determining SYTF was an available placement.

III. Suitability of Less Restrictive Dispositions

Appellant contends the SYTF commitment must be reversed because the juvenile court erred in determining SYTF was the least restrictive disposition.

"We review the [juvenile] court's placement decision for an abuse of discretion. [Citation.] 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 Nicole H. (2016) 244 Cal.App.4th 1150, 1154.)"' "Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.'" (In re Carlos J. (2018) 22 Cal.App.5th 1, 6.)

Here, substantial evidence supports the juvenile court's determination that a disposition less restrictive than SYTF was inappropriate. First, the offense of which appellant was most recently adjudicated was severe, inasmuch as he assaulted a correctional officer, resulting in the officer seeking medical attention. (See § 875, subd. (a)(3)(A).)

Additionally, appellant had a previous juvenile delinquency history reflecting the failure of prior, less restrictive attempts at rehabilitation. (See § 875, subd. (a)(3)(B).) Appellant had been afforded an opportunity for deferred entry of judgment, and had been placed in both the Mid Term and the Long Term Programs without substantial rehabilitative success. At the November 16, 2021 hearing, the court expressed its concern with appellant's "continued escalating criminal behavior and his lack of regard for the consequences of his actions." The court warned minor that he was being offered "one more opportunity to rehabilitate" before being committed to SYTF. Although appellant attended counseling and had some success attending school while committed to the Long Term Program, he stopped attending classes approximately one week prior to the May 17, 2022 notice of probation violation. Appellant also continued to associate with gang members while committed to the program, and continued to violate the terms of his probation.

Furthermore, the probation officer detailed the extensive programming that would be available to appellant in SYTF, which was not previously available through other custodial programs. The probation officer opined that these services, provided over a "protracted period of time," would ensure appellant was able to adequately address his "serious issues." (See § 875, subd. (a)(3)(C).) The probation officer also opined that SYTF would address and correct appellant's "serious and violent behavior" in "a secured setting to ensure the safety of [appellant] and the community." (See § 875, subd. (a)(3)(C), (D).)

All of the foregoing also constitutes substantial evidence that the court's goals of community safety and rehabilitation could not be met by assigning appellant to an alternative, less restrictive disposition. (See § 875, subd. (a)(3)(D).) We reiterate that appellant was afforded less restrictive opportunities but his behavior nonetheless continued to escalate. Most recently, minor continued to engage in serious delinquent behavior while committed to the Long Term Program. As the probation officer noted, appellant had been given "ample amount of time to reform while using the least restrictive measures first." We disagree with appellant's contention that "the record fails to show that a second chance in the Long Term Program would have been ineffective or inappropriate." To the contrary, the record supports a conclusion that less restrictive measures would remain ineffective. (See In re A.R. (2018) 24 Cal.App.5th 1076, 1082 [minor's placement history "leaves little doubt that less restrictive alternatives have been wholly ineffective in rehabilitating" him, and the "need for a significant change from prior placements is amplified by his age" because "there is little time remaining before he faces the adult correctional system"].)

Based on the foregoing, the court's findings are supported by substantial evidence, and the court did not abuse its discretion in committing appellant to SYTF. (In re Carlos J., supra, 22 Cal.App.5th at p. 6.)

DISPOSITION

The juvenile's court's dispositional order is affirmed.

[*] Before Hill, P. J., Levy, J. and Detjen, J.


Summaries of

People v. Erik V. (In re Erik V.)

California Court of Appeals, Fifth District
Aug 9, 2023
No. F084791 (Cal. Ct. App. Aug. 9, 2023)
Case details for

People v. Erik V. (In re Erik V.)

Case Details

Full title:In re ERIK V., a Person Coming Under the Juvenile Court Law. v. ERIK V.…

Court:California Court of Appeals, Fifth District

Date published: Aug 9, 2023

Citations

No. F084791 (Cal. Ct. App. Aug. 9, 2023)