Opinion
A155979
04-17-2020
In re G.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.H., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1700797)
The court found true a supplemental petition filed under Welfare and Institutions Code section 602, subdivision (b), alleging that appellant G.H. had committed two counts of extortion under Penal Code sections 518 and 520. He appeals from an order continuing him as a ward and placing him in the Youthful Offender Treatment Program at the Contra Costa County Juvenile Hall (YOTP). He contends: (1) the court should have found him guilty of only one count of extortion; (2) the evidence was insufficient to prove that one of the extortion counts was committed on the date alleged in the supplemental petition; (3) the court abused its discretion by placing him in the YOTP when a less restrictive alternative was available and both the defense and prosecution believed it was appropriate; and (4) remand is required for a deferred entry of judgment (DEJ) hearing. We conclude the evidence supported two counts of extortion and that substantial evidence supported the conclusion that one of the counts was committed on or about the date alleged. We find no abuse of discretion by the court in selecting the disposition it did, but as the People concede, the case must be remanded for a hearing on appellant's suitability for a DEJ.
I. BACKGROUND
When he was 16 years old, appellant arranged a rendezvous with 30-year-old M.G. on the dating application Grindr, which permitted men to meet romantically or sexually. Appellant claimed in his profile to be 19 years old. M.G. went to appellant's house at 11:30 p.m. on August 23, 2018.
After the two had a sexual encounter in appellant's bedroom, appellant said his uncle had pulled up and if he found M.G. he would beat and potentially kill him. Appellant revealed his true age to M.G., asked M.G. if he was a pedophile, said he had videoed M.G. performing oral sex on appellant, and showed him the video (which had been taken on appellant's cell phone). He had M.G. hide behind the bedroom door for several hours and threatened to say M.G. had raped him. Appellant demanded and ultimately obtained M.G.'s credit card in exchange for his (appellant's) silence. He used the credit card to buy food and pay bills and took a picture of M.G.'s driver's license. M.G. left appellant's house at 2:30 a.m. on August 24. Appellant said he had M.G.'s address and if M.G. said anything he would send somebody to his house.
At 7:00 p.m. on August 24, 2018, appellant called M.G. and threatened to show the video he had taken to his parents if M.G. did not give him some money. M.G. agreed to give appellant $300, and accompanied by his brother, went to appellant's house. Appellant called M.G. on the phone and told him he would need to give him $400 because his brother was there. He sent out a young woman to retrieve the $400.
The next day, M.G. received a text purporting to be from appellant's sister, saying that he needed to call her or she would tell her parents and brother about the situation. M.G. got a phone call from a woman demanding an explanation, and when he told her he had believed appellant was 19, she asked, "Does he look 19?" M.G. then contacted the police. A few minutes later, he received a call from appellant saying that if he called the police, appellant would place the video on television and tell the police that M.G. had paid him for sex.
II. DISCUSSION
A. Appellant was Properly Found to Have Committed Two Counts of Extortion
Appellant argues in his opening brief that under People v. Bailey (1961) 55 Cal.2d 514 (Bailey), a defendant who engages in multiple acts of theft, including extortion, is guilty of only one theft offense when the takings are committed pursuant to one plan. We disagree that Bailey permits only a single charge of extortion in this case.
Bailey was a welfare fraud case which concerned a single misrepresentation to the authorities about who was living in the household, which led to a series of payments that would have individually amounted only to petty theft. (Bailey, supra, 55 Cal.2d at p. 516.) The question was whether those payments were properly aggregated so that the defendant could be charged with grand theft; the court held defendant could be convicted of grand theft because the payments were all made pursuant to a single scheme. (Id. at p. 518-519.)
As appellant concedes in his reply brief, this case is governed by People v. Whitmer (2014) 59 Cal.4th 733, 741, in which the court noted that Bailey had been interpreted too broadly by some courts of appeal to preclude multiple convictions for separate acts of theft. It held "a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme." (Ibid.) Separate acts of extortion may be punished separately, even if they are part of the same overarching scheme.
B. Insufficient Evidence of Date of Offense
As to the first count of extortion (count 1), the supplemental petition alleged, "On or about August 23, 2018, . . . . the Minor . . . did unlawfully extort money and other property from [M.G.], by means of force, fear, and threat to do an unlawful injury, accuse another person of a crime, and expose and impute a deformity, disgrace, and crime." Appellant argues that the evidence was insufficient to show that, as alleged in the wardship petition, he committed an act of extortion on August 23. He notes that the evidence showed M.G. arrived at appellant's house at 11:30 p.m. on that date, and suggests it would not have been until after midnight (August 24) that appellant attempted to secure his credit card and thus committed extortion.
" 'The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.' ([Pen. Code],§ 955.) 'The law is clear that, when it is charged that an offense was committed "on or about" a named date, the exact date need not be proved unless the time "is a material ingredient in the offense" (Pen. Code, § 955), and the evidence is not insufficient merely because it shows that the offense was committed on another date.' " (People v. Garcia (2016) 247 Cal.App.4th 1013, 1022.)
Here, appellant is arguing that because the evidence showed M.G. was extorted in the early morning hours of August 24, the evidence was insufficient to support the allegation in the supplemental petition that he was extorted on August 23. But appellant was alleged to have committed the act of extortion "[o]n or about" August 23, and the variance of one day, which was not relevant to any statute of limitations or other material issue, did not defeat the sufficiency of the evidence when extortion was clearly committed August 24.
C. Abuse of Discretion in Disposition
Appellant contends the court abused its discretion when it ordered him committed to the YOTP in the juvenile hall, rather than making a less restrictive placement. We disagree.
A court's placement decision is reviewed for abuse of discretion. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154.) " '[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.' " (In re Carl N. (2008) 160 Cal.App.4th 423, 432.) We review any factual findings made by the court for substantial evidence. (In re Oscar A. (2013) 217 Cal.App.4th 750, 755.)
Appellant had been maintained in his mother's home following his first sustained petition (for vehicle theft of his mother's car under Vehicle Code section 10851, subdivision (a)) and two subsequent violations of his probation (for smoking marijuana, failing to attend school regularly and failing to abide by the rules of the school). The probation officer recommended that appellant be placed in the YOTP, noting that placement in that program would hold appellant accountable for his actions and teach him necessary life skills. It described appellant's history, which included a very chaotic environment and a family that was not accepting of appellant's sexuality (he identified as a gay male), drug use, poor performance at school, and a pattern of risky sexual behaviors.
The court indicated it was inclined to follow the probation officer's recommendation, noting that appellant's degree of sophistication was "mind-boggling." Defense counsel requested that instead of juvenile hall, appellant be placed in Oakendell, a group home where he could receive residential treatment. With the prosecutor's agreement, the dispositional hearing was continued so that appellant could be evaluated by that program. The court described Oakendell as "a terrific program, but it's a long program. And usually can last up to 18 months or longer because there's no getting over on the people there. It's a rigorous, deep program with lots of intensive services offered."
The Executive Director of Oakendell interviewed appellant and reviewed his individual educational plan, his record of prior arrests, and the two most recent probation reports, and concluded Oakendell could provide appellant with a safe environment free of abuse. He noted that appellant presented in his interview as compliant and forthcoming, and observed: "In [appellant's] previous stay in Juvenile Hall, he was rude, defiant and would not follow the rules. In his current stay in the Hall, he has been compliant, earned Silver status and is a worker. This says to us that [appellant] might be settling down, and hopefully is ready to get on with his life in a productive manner." Both defense counsel and the prosecution took the position that appellant should be placed at Oakendell. However, the probation department did not change its initial recommendation that appellant be placed in juvenile hall.
The court concluded that the probation officer's recommendation was appropriate and that placement should be at juvenile hall. It noted that at the contested jurisdictional hearing, appellant had given M.G. a "menacing stare." "He didn't blink[]. he never looked away. . . . It was shocking to me. It was cold, it was calculated, it was the same as how he treated the victim of this offense." The court cited appellant's "significant sophistication" in victimizing a highly vulnerable person and indicated it would be inappropriate to put him in a residential treatment facility like Oakendell, where he would pose a significant risk to the other residents who were trying to work through their issues. The court found appellant had not yet taken responsibility for his conduct and had manipulated past dependency proceedings.
"The purpose of the juvenile court law is to 'provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, . . . .'[¶] Minors under the juvenile court's jurisdiction must receive the care, treatment, and guidance consistent with their best interest and the best interest of the public. [Welf. & Inst. Code], § 202, subd. (b).) Additionally, minors who have committed crimes must receive the care, treatment, and guidance that holds them accountable for their behavior, is appropriate for their circumstances, and conforms with the interest of public safety and protection. [Citation] This guidance may include punishment that is consistent with the rehabilitative objectives." (In re Oscar A., supra, 217 Cal.App.4th at p. 756.)
In reviewing the dispositional order for abuse of discretion, we indulge all reasonable inferences to support the decision of the juvenile court and "recognize 'the general rule that an appellate court will not lightly substitute its decision for the disposition ordered by the juvenile court.' " (In re Todd W. (1979) 96 Cal.App.3d 408, 416; In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.) "[W]e are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the [disposition] to clearly show that the [dispositional] decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate [dispositional] objectives, and its discretionary determination to impose a particular [disposition] will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Although the prosecution believed appellant was suitable for placement in Oakendell, the juvenile court did not act beyond the bounds of reason in concluding that the sophisticated nature of the offense, as well as appellant's history of manipulation, meant he would pose a risk to other wards in that program. Appellant argues he was poorly suited for juvenile hall given his chaotic family upbringing and the possibility he would be targeted for his sexual orientation. But this does not mean the court disregarded these factors; it simply believed they did not outweigh the risk appellant would pose to others in a group home setting. The court concluded at one point it "would never agree to a --just a group home placement of young people who are gay, again, of my fear that [appellant] would victimize those young people."
Although reasonable minds could disagree about the most suitable placement for appellant, the court heard from the parties, the Director of Oakendell, and the probation officer, and gave the matter thoughtful consideration. That others might disagree with its conclusion is not a basis for finding an abuse of discretion.
D. Deferred Entry of Judgment
Appellant contends the case must be remanded because neither the court nor the prosecution complied with their statutory obligation to notify him that he was eligible for a DEJ. The People agree the case must be remanded for this purpose.
Under Welfare and Institutions Code section 790 et seq., an eligible minor may admit the allegations contained in a wardship petition and waive time for the pronouncement of judgment in lieu of a jurisdictional and dispositional order. A juvenile is eligible for a DEJ if (1) the minor has not previously been adjudged a ward of the court for the commission of a felony offense, (2) the charged offense is not listed in section 707, subdivision (b), (3) the minor has not previously been committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, (4) probation has never been revoked for the minor without having been completed, (5) the minor is at least 14 years old, (6) the minor is eligible for probation under Penal Code section 1203.06, and (7) the charged offense is not rape or other specified sexual offenses. (Welf. & Inst. Code, § 790, subd. (a).)
When the case proceeds to DEJ, entry of judgment is deferred, and after the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. "The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed." (Welf. & Inst. Code, §§ 791, subd. (a)(3); 793, subd. (c).) (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
Under Welfare and Institutions Code section 790, the prosecuting attorney is required to determine whether the minor is eligible for DEJ. If the minor is eligible, the prosecuting attorney "shall file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and shall make this information available to the minor and his or her attorney." (Welf. & Inst. Code, § 790, subd. (b).) The form designed for this purpose is form JV-750, the completion of which requires the prosecutor to indicate findings as to the eligibility requirements by checking, or not checking, the corresponding boxes. (Cal. Rules of Court, rule 5.800(b).) (In re C.W. (2012) 208 Cal.App.4th 654, 659 (C.W.).) If the prosecuting attorney finds a minor eligible for DEJ, form JV-751 is used to provide notice to the minor and his or her parent or guardian. (Ibid.; see also Welf. & Inst. Code, § 791 [describing what the "prosecuting attorney's written notification to the minor" must include].) To that end, there is a box to check on form JV-750 to indicate that form JV-751 is attached. (C.W., at p. 659.) The California Rules of Court impose additional notice requirements, providing that "[t]he [juvenile] court must issue Citation and Written Notification for Deferred Entry of Judgment—Juvenile (form JV-751) to [a] child's custodial parent, guardian, or foster parent" and stating the form "must be personally served on the custodial adult at least 24 hours before the time set for the appearance hearing." (Cal. Rules of Court, rule 5.800(c); In re Trenton D. (2015) 242 Cal.App.4th 1319, 1324 (Trenton D.) [finding no indication that form JV-751 was "properly served" and noting rule 5.800(c)'s service requirements].)
"While [a juvenile] court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make 'the final determination regarding education, treatment, and rehabilitation . . . .' " (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) "The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made." (Ibid.; accord, In re D.L. (2012) 206 Cal.App.4th 1240, 1243-1244.)
Here, the district attorney executed a JV-750 form on the same date as the filed the petition in this case, determining appellant was eligible for DEJ. However, the prosecutor did not check the box on the JV-750 form that is used to indicate the JV-751 notice form is attached. The JV-751 form included in the appellate record does not contain a hearing date (or a file stamp), and there is no evidence in the record demonstrating appellant was served with the JV-751 form or otherwise given notice of his eligibility for DEJ or his right to a hearing on the matter.
The People indicate that because the record does not show appellant was advised of the DEJ procedure before he proceeded to a contested jurisdictional hearing, a limited remand is appropriate to allow the court to determine appellant's suitability for DEJ. Although they also suggest the failure to advise was harmless in this case under People v. Watson (1956) 46 Cal.2d 818, 836, they do not argue a limited remand is unnecessary and acknowledge that no published decision applies a harmless error analysis to the failure to advise of the DEJ procedure. We will accordingly remand the case for this limited purpose.
III. DISPOSITION
We set aside the juvenile court's findings and dispositional order. The matter is remanded for further proceedings under Welfare and Institutions Code section 790 et seq. and California Rules of Court, rule 5.800, including notice to appellant of his eligibility for a deferred entry of judgment. If the minor elects a DEJ, the juvenile court shall exercise its discretion whether to grant appellant a DEJ. If, as a result of those proceedings, the juvenile court grants a DEJ, it shall issue an order vacating the findings and orders. If the juvenile court denies a DEJ, it shall reinstate the jurisdictional and dispositional orders, subject to appellant's right to have the denial of a DEJ reviewed on appeal. (Trenton D., supra, 242 Cal.App.4th at p. 1327.)
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BURNS, J.