Opinion
A156750
12-17-2019
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL D., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J18-00975)
Gabriel D. appeals from a juvenile court disposition order committing him to the Contra Costa Youthful Offender Treatment Program (YOTP) in juvenile hall. (Welf. & Inst. Code, § 800.) Gabriel argues that this order constituted an impermissible delegation to the probation department of the juvenile court's authority to determine the length of his commitment. We disagree for the reasons stated in In re J.C. (2019) 33 Cal.App.5th 741 (J.C.). We also reject Gabriel's contention that the order is unconstitutionally vague and therefore affirm.
Statutory references are to the Welfare & Institutions Code, unless another statute is cited. --------
BACKGROUND
In 2018, 14-year-old Gabriel was the subject of four juvenile wardship petitions, the first three of which are not in the appellate record. But there is evidence that prior to the current proceeding, Gabriel was arrested for various offenses in San Bruno, South San Francisco and Daly City. He was first declared a ward after the court sustained an allegation that he committed a felony burglary in February 2018.
In August 2018, the San Mateo County District Attorney filed the wardship petition that led to this appeal. It alleged that Gabriel committed the following offenses: second degree felony robbery (Pen. Code, § 212.5, subd. (c)); assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); and misdemeanor grand theft (Pen. Code, § 487, subd. (c)). Gabriel admitted committing felony robbery, the other counts alleged in the petition were dismissed pursuant to a negotiated plea agreement, and Gabriel's case was transferred to Contra Costa County for disposition.
In November 2018, the Contra Costa County juvenile court held a disposition hearing. Gabriel was continued as a ward, placed on probation, removed from the custody of his parents and committed to the Orin Allen Youth Rehabilitation Facility (OAYRF) for "a 9 month reg[ular] program," followed by a "180 day conditional Ranch After Care period." By the end of 2018, Gabriel had twice violated probation by getting into fights.
In January 2019, the court held a disposition hearing for the probation violations. Gabriel's wardship was continued, but his placement was changed to juvenile hall and he was ordered to participate in the county's YOTP program for youthful offenders. In making this order, the court stated: "He must successfully complete all phases of the program, follow all treatment options, all treatment requirements, and obey all rules and regulations."
Gabriel's trial counsel objected that the commitment to YOTP was "indefinite." Counsel argued that the order lacked a necessary time limit because the probation department rather than the court was responsible for determining when the program was completed. However, the court pointed out that there were safeguards for ensuring that Gabriel would not be detained indefinitely. If, for example, Gabriel felt he was not getting the services he needed or that he was being unfairly denied advancement, his counsel could file a section 778 petition. Ultimately, the court elected to add an additional safeguard and ordered that Gabriel would be committed to the program "for 24 months or until he's completed the program."
Gabriel's counsel stated that the three phases of the YOTP program usually take 10 months to complete, not 24. The court was aware of that but explained that not all minors are able to complete the program during a set timeframe, that it really depends on the minor's level of cooperation, and that Gabriel, in particular, would really have to engage in services to complete the program. The court also questioned whether to set a review date until there was a better idea of when Gabriel would complete the program. After further discussion, the court agreed with the probation officer that it would be up to the department to set a review date, with the understanding that a review could be scheduled sooner rather than later if circumstances so dictated.
DISCUSSION
Gabriel argues that the disposition order impermissibly delegates to the probation department the authority to determine the length of his commitment to YOTP because it will be the responsibility of the department rather than the court to determine whether and when Gabriel successfully completes YOTP.
A similar claim was rejected by Division Five of this court in J.C., supra, 33 Cal.App.5th 741. In that case, the minor's disposition order committed him to juvenile hall until age 21 but provided for earlier release upon successful completion of YOTP. The J.C. court concluded that the juvenile court did not make an impermissible delegation because it retained ultimate authority to determine whether and when the minor successfully completed YOTP. (J.C., at p. 746.)
The J.C. court relied primarily on In re Robert M. (2013) 215 Cal.App.4th 1178 (Robert M.), which affirmed a disposition order directing a probation officer to seek placement of a minor in a sex offender counseling program at the Division of Juvenile Facilities (DJF). The Robert M. court found that the daily supervision of the minor by the program staff did "not change the ultimate responsibility of the juvenile court for the ward's supervision and control." (Robert M., at p. 1185.) Applying this same reasoning, the J.C. court concluded that the minor's commitment to juvenile hall until he completed YOTP was not an impermissible delegation because, under the statutory framework, the court 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 this holding, the court took judicial notice of the county's YOTP handbook, which referred to "court review" and "plainly contemplate[d]" that the probation officer would provide the juvenile court with opinions and recommendations, which the court would then utilize to "make the final determination on these issues." (Id. at p. 747.) The court also noted that if the minor believed the probation officer was unfairly assessing his performance in the program, he could bring the issue to the juvenile court's attention at a scheduled review hearing or by filing a section 778 petition. (J.C., at pp. 747-748.)
Gabriel contends that J.C. was wrongly decided because the court assumed erroneously that a minor's right to file a petition under section 778 if he disagrees with the way the probation department is monitoring his progress is sufficient "to nullify the delegation." According to Gabriel section 778 does not cure this alleged error because it imposes too onerous of a burden on the minor by requiring him to overcome a presumption that the department's assessment of him is correct.
This argument rests on the false premise that there was an improper delegation that must be nullified. As J.C. explains, the fact that the agency administering YOTP is responsible for monitoring the minor's day-to-day progress does not mean that the juvenile court has delegated its discretion to set the period of the minor's commitment. Here, for example, the juvenile court exercised that discretion by committing Gabriel to juvenile hall for a maximum period of 24 months with the possibility that he could be released sooner, upon completion YOTP. Beyond that, the court retained ongoing discretion to adjust the length of the commitment period at subsequent review hearings, once it was provided with information about the minor's progress. The crucial point is that an administrative entity's "supervision and control over a minor in a court-ordered custodial treatment program" is not an improper delegation because "the juvenile court retains the ultimate authority to determine whether the minor successfully completed the program." (J.C., supra, 33 Cal.App.5th at p. 746.)
Furthermore, Gabriel misperceives the function of section 778, which authorizes the filing of a petition for a hearing to change, modify or set aside a court order. This mechanism, which is available to the minor, his or her parents or any other person with an interest in the minor, is an additional safeguard that ensures lines of communication to the juvenile court remain open. Gabriel's characterization of this safeguard as illusory is also wrong. Although a juvenile court's disposition order requiring a minor to complete YOTP carries a presumption of correctness (Cal. Rule of Court, rule 5.570(i)(1)), this presumption does not apply to the probation department's assessment of the minor's progress in YOTP. To challenge that assessment pursuant to a section 778 petition, the minor need only present changed circumstances, which in this context would be circumstances pertaining to the minor's completion or progress toward completion of YOTP. (J.C., supra, 33 Cal.App.5th at p. 747.)
Taking a different tack, Gabriel attempts to analogize his case to In re Gabriel T. (2016) 3 Cal.App.5th 952 (Gabriel T.). In that case, a juvenile ward who admitted committing a theft was required as a condition of probation to participate in a 12-month correctional academy program, "consisting of six months of confinement and six months of aftercare under supervision of probation." (Id. at p. 955.) The juvenile court further ordered that " '[a]t any time during the aftercare component the minor may be returned to the Correctional Academy for a one time remediation of 30 days due to a violation of probation or program rules.' " (Id. at p. 958.) On appeal, the court found that the order giving probation absolute discretion to require the minor to complete an additional 30-day remediation requirement was invalid for two reasons. First, it violated section 777, which requires a noticed hearing before the court can change or modify an out of home placement order. Second, conferring absolute discretion on the probation officer to determine if and when a probation violation occurred conflicted with statutory requirements for proving a probation violation, which include a noticed hearing and express findings by the juvenile court. (Gabriel T., at p. 960.)
Here, the order committing Gabriel to juvenile hall for 24 months or until he completes YOTP is a comprehensive placement order; it does not empower the probation officer to make a placement change or to determine if and when a probation violation has occurred. Gabriel argues, however, that this case is similar to Gabriel T. because the probation department could conceivably use its administrative authority to effectively extend his minimum period of commitment by unfairly evaluating his performance in the YOTP program. However, J.C. teaches that protections built into the statutory scheme assure that will not happen because the juvenile court retains ongoing supervisory authority over the ward and the ultimate authority to determine whether the program has been completed. (J.C., supra, 33 Cal.App.5th at p. 747.)
The only other argument Gabriel makes that does not incorporate his flawed premise that an improper delegation occurred is that the probation condition committing him to YOTP is unconstitutionally vague. Because Gabriel did not raise this objection below, he frames his appellate claim as a facial challenge, raising a pure question of law. (Citing In re Sheena K. (2007) 40 Cal.4th 875, 889.)
The void-for-vagueness doctrine, "which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citations.] In determining whether the condition is sufficiently definite, however, a court is not limited to the condition's text. [Citation.] We must also consider other sources of applicable law [citation], including judicial construction of similar provisions. [Citations.] Thus, a probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' " (People v. Hall (2017) 2 Cal.5th 494, 500-501.)
Given these principles, we conclude that the commitment to YOTP is not unconstitutionally vague on its face. There is nothing unclear about the explicit requirement that Gabriel complete that program. Furthermore, when the juvenile court modified the probation department's recommendation by explicitly imposing an outside limit of 24 months in the program, it also adopted the balance of the department's recommendation, which clarifies that completing the YOTP program means that Gabriel must "successfully complete all phases of the program, follow all treatment requirements, and obey all rules and regulations."
Contrary to Gabriel's argument here, his right to fair notice of what is expected of him does not mean that every aspect of the YOTP program must be described in the disposition order. There is already a presumption imposed by law that a violation of a probation condition must be willful. (Hall, supra, 2 Cal.5th at p. 501; see also People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1128.) Furthermore, a "probation condition 'should not be invalidated as unconstitutionally vague " ' "if any reasonable and practical construction can be given to its language" ' " ' or if its terms may be made reasonably certain by reference to ' " 'other definable sources.' " ' " (Rhinehart, at p. 1129, quoting Hall, at p. 501.) As discussed in J.C., the specific phases of this program are detailed in a handbook provided to YOTP participants. (See J.C., supra, 33 Cal.App.5th at pp. 746-747.) Moreover, if there are questions about what the program requires, we are confident the probation officer can answer them.
Thus, we agree with J.C. and conclude that the similar disposition order in this case was permissible. We note, however, that Gabriel does identify a material factual distinction between his case and J.C. At the disposition hearing in this case, the juvenile court did not schedule a YOTP review hearing. The court reasoned, apparently, that it was too soon to determine when Gabriel would make sufficient progress to warrant a review and that once the probation department had that information it would schedule a hearing. J.C. suggests that the better practice is to schedule a review hearing sooner rather than later. (J.C., supra, 33 Cal.App.5th at p. 746.) We agree and expect that a proper exercise of supervisory authority in this context would entail a status review of the minor's progress in YOTP within 10 to 12 months of the commitment. Thus, we will remand this matter for the court to determine whether a review hearing is necessary to exercise its supervisory authority over Gabriel's progress in that program.
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/_________
TUCHER, J. WE CONCUR: /s/_________
STREETER, Acting P. J. /s/_________
BROWN, J.