Opinion
A129710
10-26-2011
In re HELENE S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. HELENE S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. JW106139)
A wardship petition under Welfare and Institutions Code section 602, subdivision (a) for defendant was filed on August 3, 2010. This was the third petition in six months filed against defendant. As a result of the first two petitions, defendant was on probation without wardship. The third petition filed on August 3, 2010, alleged that defendant committed an assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). Shortly thereafter, the lower court summarily revoked informal probation. The court held a jurisdiction hearing and found by clear and convincing evidence that defendant violated Penal Code section 245, subdivision (a)(1). At the disposition hearing, the court adjudged defendant a ward of the court and placed her on probation in the custody of the probation department.
All further unspecified code sections refer to the Welfare and Institutions Code.
On appeal, defendant contends that the lower court used the incorrect standard when finding it was true that she violated Penal Code section 245, subdivision (a)(1). Defendant maintains that a new hearing would violate the double jeopardy clause. She claims that substantial evidence does not support the finding that she committed an assault with a deadly weapon or the finding that she appreciated the wrongfulness of her offense. Additionally, defendant claims that we must reverse the lower court's revocation of her informal probation. We agree that the lower court used the wrong standard of proof when sustaining the section 602 petition, but we otherwise reject defendant's arguments. We therefore reverse and remand for further proceedings consistent with this decision.
BACKGROUND
On March 3, 2010, a petition was filed against defendant pursuant to section 602, subdivision (a). It alleged that defendant had committed two counts of second degree robbery, two counts of assault by means of force likely to produce great bodily injury, assault with a deadly weapon, and conspiracy to commit robbery. On March 10, defendant admitted grand theft (Pen. Code, § 487, subd. (c)), and assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). A little more than two weeks later, on March 25, the court placed defendant on probation for six months without wardship pursuant to Welfare and Institutions Code section 725, subdivision (a).
On May 17, 2010, a second petition pursuant to section 602, subdivision (a) was filed alleging defendant committed second degree robbery (Pen. Code §§ 664/211). Defendant admitted the allegation. Subsequently, the court placed defendant in the custody of the probation department pending final placement. On July 1, 2010, the court reinstated probation without wardship. The court ordered defendant to be placed in a home under probation supervision for six months.
On August 3, 2010, a third petition pursuant to section 602, subdivision (a) was filed alleging defendant committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The probation department filed a request for a detention order, which alleged, among other things, that defendant committed a new criminal offense, that she violated a court order, that she escaped from court placements, and that she was likely to flee the jurisdiction. The prosecutor requested that nonwardship probation be revoked.
At the detention hearing on August 5, defendant stipulated to a prima facie case, and the court ordered defendant to be detained pending disposition of the petition. On August 16, the court revoked informal probation under section 725, subdivision (a) over defense counsel's objection with the provision that the matter could be revisited when the jurisdiction hearing was held on August 23. When defense counsel asked the court not to revoke informal probation, the court responded as follows: "At this juncture, I should have revoked that at detention, but I can certainly revisit that issue following the hearing on the 23rd, but that should have happened actually at the detention. [¶] So the 725 [is] revoked, and the court can revisit that as I just stated on the 23rd."
At the jurisdiction hearing on August 23, 2010, the evidence showed that defendant and K.A. had been involved in an altercation on August 1, 2010, at the skate park. Defendant's mother testified that defendant was 13 years old, knew right from wrong, and was taught that there were "consequences to everything." She stated that defendant has attention deficit disorder (ADD), and sometimes acted on impulse, especially when she did not take her medication. Defendant's mother opined that defendant acted like her nine-year-old brother in terms of her emotional and mental development.
K.A. testified that defendant called her and asked her if she wanted to hang out at the skate park. K.A. went to the skate park and saw defendant there with a "bunch of guys." She walked up to defendant; they hugged. Defendant, according to K.A., walked away and then started to act as if she wanted to fight. Defendant came over and the two girls started to fight. K.A. asserted that defendant hit her in the face first. K.A. said that she then hit defendant back. After they had been fighting for a while, defendant told K.A. to get off her. K.A. reported that she got off defendant and after she started to walk away defendant threw a bottle at her. K.A. averred that the bottle hit her on the side of her head and then the two of them started to fight again. Subsequently, a male came over and stopped the fight. K.A. discovered that her purse, phone, and iPod were missing. Another person called the police for K.A.
Veronica F. also had been at the skate park watching her 11-year-old son skateboard. She saw defendant and K.A. walking together. She spotted defendant as she grabbed K.A. by the hair. She saw the girls rolling down the hill; they were punching and pulling each other's hair. When they got to the bottom of the hill, they stopped fighting. K.A. walked towards her purse and Veronica noticed a bottle flying; it hit K.A. on her back. She said that the bottle came from the direction where defendant was, but she did not actually see defendant throw the bottle. Subsequently, she testified that she saw K.A. touch the back of her head, but she did not actually see the bottle hit K.A.
Defendant testified on her own behalf. She explained that K.A. had stayed at her house and that K.A. knew defendant's brother. She said that K.A. had fought her best friend and stolen defendant's clothes. She insisted that another person, not her, told K.A. to come to the skate park. She claimed that K.A. first punched her, and then she hit her back. They then started fighting. She stated that they were pulling each other's hair and started to roll down the hill. K.A. was on top of defendant and defendant told her to get off her. K.A. got up. Defendant maintained that K.A. came back over and tried to hit her; they started to fight again. A male came over and broke up the fight. Defendant testified that K.A. hit her again while they were standing at the top of the hill, and then they fell and resumed their fight. K.A. got off her and started to walk two or four steps away. Defendant told her not to come near her and that she did not want to fight. K.A. started to walk towards her and defendant threw the bottle at her. Defendant insisted that the bottle missed K.A. Defendant reported that K.A. tried to fight her again, but the same male came over and broke up the fight.
J.Y., a 19-year-old, was at the skate park when the fight occurred. He said that K.A. asked defendant whether she still wanted to fight and then she swung at defendant and hit her at the right side of the front of her neck. The two girls started to fight and then rolled down the hill while they were pulling at each other's hair. At the bottom of the hill, K.A. was on top of defendant. He opined that both girls were about the same size. They started fighting again, stopped for about 10 seconds, and then defendant threw a bottle. He testified that K.A. had been on top of defendant when they got up and then defendant picked up a 40-ounce beer bottle and threw it. He stated that the bottle did not hit K.A. He maintained that he was "a hundred percent positive" that the bottle did not touch K.A.
Paramjit Kaur, a police officer, arrived at the skate park at 6:00 p.m. The officer noticed that K.A. was shaking and crying. K.A.'s eyes were red and Kaur observed a mark on the right side of her forehead. K.A. told the officer that defendant challenged her to a fight and the two of them started to fight. The officer testified that K.A. reported that defendant struck her in the head with a bottle. Kaur noticed a red mark on K.A.'s forehead between the eyebrow and the hairline, but no bleeding or swelling. Kaur called the paramedics. They looked at K.A., but did not take her for treatment.
Kaur arrested defendant. She read defendant her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and defendant, according to Kaur, told her that she had not been honest with the other police officer. She admitted that she had used the bottle to strike K.A. in the head. Kaur did not record her conversation with defendant.
After listening to the testimony, the court found "by clear and convincing evidence" that it was true that defendant violated Penal Code section 245, subdivision (a)(1). The court found the offense to be a misdemeanor pursuant to Penal Code section 17, subdivision (b).
The probation report filed for the disposition hearing on September 8, 2010, recommended that defendant be placed out of the home since she had a strained relationship with her mother and had failed "to avail herself to services in the past through the Human Services Agency[.]" It recommended that defendant be declared a ward of the court. The "Minor and Family Assessment" stated that defendant used drugs and alcohol and was "beyond parental control." The probation officer's report included a case plan as described by section 706.6. Attached to the report was a Psychological Evaluation Addendum that was file-stamped September 3, 2010.
The Department of Human Services and the County Probation Department filed a report pursuant to section 241.1. It noted that defendant had participated in counseling at Huckleberry House and at other places. The section 241.1 report recommended that defendant be declared a section 602 ward of the court.
On September 8, 2010, the court held the disposition hearing. The court found that an award of custody to the parent would be detrimental to defendant and that no reasonable means existed to protect the minor without removing her from the parent's physical custody. The court adjudged defendant a ward of the court and placed her on probation in the custody of the probation department.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Standard of Proof for Finding Jurisdiction Under Section 602
The lower court found "by clear and convincing evidence" that defendant violated Penal Code section 245, subdivision (a)(1), and declared defendant a ward of the court under Welfare and Institutions Code section 602. Welfare and Institutions Code section 701 provides in relevant part: "Proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by" section 602. (See also In re Winship (1970) 397 U.S. 358, 368.)
The People agree that the lower court erred in applying a lesser standard of proof than reasonable doubt when it found jurisdiction under section 602. Thus, the jurisdiction findings must be vacated. (See, e.g., In re Francisco N. (1986) 186 Cal.App.3d 175, 179-180 [application of appropriate standard of proof for an element of the offense requires automatic reversal], disapproved on another point in In re Manuel L. (1994) 7 Cal.4th 229, 239, fn. 5.) We remand for the lower court to determine whether it was convinced at the time the jurisdiction order was made that the charge against defendant was proved beyond a reasonable doubt and whether a new and full hearing is necessary. (See In re C.E.M. (1970) 13 Cal.App.3d 75, 79-80.)
II. Evidence in Support of the Assault with a Deadly Weapon Allegation
The People argue that the jurisdiction order should be reversed and the matter remanded for a new jurisdiction hearing. Defendant counters that the evidence was insufficient to support the lower court's finding of assault with a deadly weapon and therefore a new hearing is barred under the federal double jeopardy clause. (See, e.g., People v. Grant (2003) 113 Cal.App.4th 579, 594.) "The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." (Burks v. United States (1978) 437 U.S. 1, 11.) The People respond that the evidence showed that defendant used the bottle in such a manner as to support a finding of assault with a deadly weapon.
In reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether substantial evidence supported it, with our task limited to determining if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." (People v. Dooley (2010) 189 Cal.App.4th 322, 326.) The standard of review is the same in juvenile cases as it is in adult cases. (In re Richard H. (1991) 234 Cal.App.3d 1351, 1363.)
Penal Code section 245, subdivision (a)(1) provides, in pertinent part, "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment . . . ." Assault with a deadly weapon or instrument other than a firearm contains all of the elements of a simple assault, plus the additional element of the use of a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Simple assault requires only "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240; People v. Williams (2001) 26 Cal.4th 779, 782.) Although the victim's injury must be significant, no permanent or protracted impairment, disfigurement, or loss of function is required to be convicted under Penal Code section 245, subdivision (a)(1). (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087-1088 (Beasley).)
Some weapons, other than firearms, are deemed inherently deadly as a matter of law. (People v. Aguilar (1997) 16 Cal.4th 1023, 1029 [mentioning dirks and blackjacks].) However, other weapons, instruments, or objects will be deemed deadly or capable of producing great bodily injury depending on how they are used. (Id. at pp. 1035-1037.) In determining whether an object can produce great bodily injury, the trier of fact looks to the nature of the object, the manner of its use, the location on the body where it is directed, and the injuries inflicted. (People v. Herd (1963) 220 Cal.App.2d 847, 849.)
A bottle is not inherently deadly. However, a large beer bottle thrown at another person, with force over a short distance, may constitute a deadly weapon. (See People v. Cordero (1949) 92 Cal.App.2d 196, 198 [beer bottle thrown at victim used as club or missile]; People v. Martinez (1977) 75 Cal.App.3d 859, 862-863, fn. 1 [throwing beer bottle, which bounced off police car and shattered against officer's elbow unquestionably constitutes assault with deadly weapon]; People v. Fagalilo (1981) 123 Cal.App.3d 524, 528, 532 [wine bottle thrown at victims].)
Here, the record contains sufficient evidence to support a finding that defendant used the bottle in a manner capable of and likely to produce death or great bodily injury. All of the evidence established that defendant threw the bottle at K.A. The only conflict in the evidence was whether the bottle actually hit K.A. and the force with which defendant threw the bottle. Defendant claims she did not throw the bottle with much force and both she and J.Y. testified that the bottle did not hit K.A. However, K.A. contradicted their version and said that the bottle hit her on the side of her head. She described the bottle as a 40-ounce beer bottle and said that defendant was three or four paces from her when she threw the bottle. Furthermore, Veronica, another witness who was not either girl's friend, saw K.A. touch the back of her head after she first noticed a bottle come flying from defendant's direction. Additionally, Kaur, one of the police officers at the scene, observed that K.A. was shaking and crying and that she had a mark on the right side of her forehead. K.A.'s actions and injury were consistent with an injury from the flying bottle. K.A. told Kaur that defendant struck her in the head with a bottle. Moreover, Kaur reported that defendant admitted that she had used the bottle to strike K.A. in the head.
Defendant argues that the only evidence regarding the force of the throw was her own testimony that she threw the bottle softly. However, we can infer that the lower court rejected defendant's testimony that she threw the bottle softly. Moreover, the bottle did not have to be thrown with great force to be a deadly weapon. As already noted, the trier of fact when determining whether an object can produce great bodily injury looks to the nature of the object, the manner of its use, the location on the body where it is directed, and the injuries inflicted. (People v. Herd, supra, 220 Cal.App.2d at p. 849.) Here, K.A. did not suffer any serious injury, but K.A. testified that defendant was only three or four paces from her when she threw the bottle and that the bottle hit her on the side of the head. Indeed, a bottle softly thrown towards a person's head can produce great bodily injury if it hits the person's eye or breaks on or near the person's head.
Defendant likens the facts of this case to those in In re Brandon T. (2011) 191 Cal.App.4th 1491 and Beasley, supra, 105 Cal.App.4th 1078, but these cases are distinguishable. The court in Brandon T. concluded that the "butter knife" used by the minor, which had a blade that was "about three and a quarter inches long, with a rounded end and slight serrations on one side," was not "capable of producing . . . death or great bodily injury." (Id. at pp. 1496-1497.) The court noted that, the defendant took the knife and tried to cut the victim's cheek and throat, but the knife would not cut. (Id. at p. 1497.) The court recognized the question was whether the "butter knife, as used was capable of producing death or great bodily injury[,]" and it concluded that, even if the defendant had tried harder, the knife could not have caused great injury. (Ibid.) The evidence was conclusive because when the defendant applied pressure to the knife, the knife broke. (Ibid.) The court concluded that the defendant was trying to cut the victim, but the "knife failed and was not capable of use as obviously intended." (Id. at p. 1498.)
Here, in contrast to the situation in In re Brandon T., supra, 191 Cal.App.4th 1491, a 40-ounce bottle thrown towards a person's head can cause great bodily injury. Defendant focuses on the fact that the victim in Brandon T., similarly to K.A., did not suffer a serious injury. However, a critical distinction is that the butter knife could not cause a serious injury. Defendant argues that she threw the beer bottle softly and therefore it, too, could not cause a serious injury. However, as already discussed, the bottle hit K.A.'s forehead and, if the bottle broke or hit K.A.'s eye, it could have caused serious injury. Thus, the facts of this case are distinguishable from those in Brandon.
Beasley, supra, 105 Cal.App.4th 1078 is similarly unavailing. In Beasley, the appellate court reversed for lack of sufficient evidence two convictions of assault with a deadly weapon. One conviction was based on the defendant's hitting his cohabitant on the arms and shoulder with a broomstick and the second was for his hitting her on her shoulder and once on her back with a plastic vacuum attachment. (Id. at pp. 1087-1088.) The court noted that the evidence established that the broomstick did not strike the victim's head. It also emphasized that the record contained no description of the degree of force the defendant used or whether the broomstick was solid wood or a hollow tube made of metal, fiberglass, or plastic. (Id. at p. 1087.) Similarly, the court concluded that hitting the victim with the vacuum attachment, which resulted in bruising but not great bodily injury to the victim, was insufficient evidence to show that the defendant used the vacuum attachment as a deadly weapon. (Id. at p. 1088.)
We conclude that a wielded broomstick and a vacuum attachment, as used in Beasley, supra, 105 Cal.App.4th 1078, are not comparable to throwing a 40-ounce bottle. In contrast to the situation in Beasley, the trial court in the present case knew that the bottle thrown by defendant was glass, not plastic. The lower court was not unreasonable in concluding that throwing a large glass bottle at the victim's head—not at her shoulders and body—was capable of producing significant or substantial injury. As already noted, Penal Code section 245, subdivision (a)(1) focuses on "force likely to produce great bodily injury[,]" and it is immaterial that the force actually resulted in no or minimal harm. (See People v. Wingo (1975) 14 Cal.3d 169, 176.) In light of the description of the bottle involved, the evidence that the bottle was thrown at K.A.'s head, and the evidence that it did hit K.A.'s head, the absence of any serious injury to K.A. is not determinative.
We conclude that substantial evidence supported the juvenile court's finding that defendant assaulted K.A. by "means of force likely to produce great bodily injury." (Pen. Code, § 245, subd. (a)(1).)
III. The Statutory Presumption that the Child Lacked Capacity
At the time defendant threw the bottle at K.A., defendant was 13 years old. Penal Code section 26 creates a presumption that a minor under the age of 14 is incapable of committing a crime. This statute requires "clear proof that the minor knew the crime's wrongfulness at the time the minor committed the crime. (Pen. Code, § 26.) This provision applies to proceedings under Welfare and Institutions Code section 602. (In re Manuel L. (1994) 7 Cal.4th 229, 232.) "Only those minors over the age of 14, who may be presumed to understand the wrongfulness of their acts, and those under 14 who—as demonstrated by their age, experience, conduct, and knowledge—clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system. [Citation.]" (Id. at pp. 231-232, fn. omitted.) "Clear proof as used in Penal Code section 26 requires the People to prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed. (In re Manuel L., at p. 232.) On appeal, we must determine whether substantial evidence supports the conclusion of the trier of fact. (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)
Penal Code section 26 provides in relevant part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness."
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Defendant maintains that the People did not meet its burden and did not establish her capacity. She further argues that the lower court failed to make any finding regarding her capacity. Contrary to defendant's argument, the lower court did expressly find that defendant appreciated that her conduct was wrongful. The court stated: "[T]he mother was . . . very clear that the minor knows right from wrong. So based on that, the court has found that [Penal Code section] 26 is satisfied." In her reply brief, defendant counters that the lower court made this finding prematurely, as it set forth its ruling after her mother testified but before any of the testimony of the other witnesses. She concludes that the lower court therefore did not consider the entire record when making its ruling.
The question before us is whether substantial evidence supported the lower court's ruling. The juvenile court "must consider the child's age, experience, and understanding. [Citation.] A minor's knowledge of his act's wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment. [Citation.]" (In re Paul C., supra, 221 Cal.App.3d at p. 52.)
We conclude that the record contains substantial evidence to support a finding that defendant knew the wrongfulness of her action. At the time of the incident, defendant was 13 years old, close to the age when the presumption under Penal Code section 26 does not apply. Indeed, at the time she committed the offense, she was less than a couple of months away from her 14th birthday. " ' "[I]t is only reasonable to expect that generally the older a child gets and the closer [she] approaches the age of 14, the more likely it is that [she] appreciates the wrongfulness of [her] acts." [Citations.]' " (In re Marven C. (1995) 33 Cal.App.4th 482, 487.)
The testimony of defendant's mother also supported the lower court's finding. Her mother testified that defendant knew right from wrong and was taught that there were "consequences to everything." She also stated that defendant had ADD and sometimes acted on impulse and that she believed her emotional and mental development was similar to her nine-year-old brother. However, this evidence did not contradict her testimony that defendant knew right from wrong and there was no evidence that defendant's nine-year-old brother lacked the capacity to know right from wrong. The testimony of defendant's mother, alone, provided "clear proof that defendant knew that throwing a bottle at another person was wrongful.
Although the testimony of defendant's mother was sufficient, the circumstances of defendant's criminal activity also supported the finding that she appreciated the wrongfulness of her conduct. K.A.'s testimony was that defendant invited her to the skate park, hugged her when she arrived, and then hit her in the face first. Thus, defendant's behavior included a certain amount of deception. Furthermore, once K.A. got off defendant and started to walk away, defendant threw the bottle at her. Most significantly, defendant admitted to Kaur, the second police officer to whom she spoke, that she had not been honest with the other police officer who had spoken to her. She had not admitted to the first officer that she had used the bottle to strike K.A. in the head. Thus, the fact that she was deceptive with the first police officer indicated that she knew that she should not have thrown a bottle at K.A.
Defendant argues that there was no evidence that she knew that "a soft throw for a defensive purpose was wrongful, much less that it could be characterized as an assault with a 'deadly weapon.' " There is no requirement that defendant know that she knew that she committed a specific crime. Under Penal Code section 26, she needed to know the wrongfulness of her act. Furthermore, as already discussed, the lower court implicitly did not believe her testimony that she did not throw the bottle with any force and there was evidence that K.A. was walking away when defendant threw the bottle so the evidence supported a finding that the bottle was not thrown for defensive purposes. Defendant appears to be arguing that the lower court was required to accept her version of the events.
Finally, defendant likens her situation to the one in In re Michael B. (1983) 149 Cal.App.3d 1073. The minor in Michael B. was nine years old at the time he fatally shot a boy five years older than himself who had refused to leave the younger boy's home. (Id. at pp. 1086-1089.) The minor believed the gun was unloaded and did not understand the safety mechanisms. (Id. at p. 1081.) There was expert testimony that the minor did not understand the concept of the permanence of death and the consequences of threatening the victim with a gun. (Id. at pp. 1088-1089.) Moreover, the minor was hospitalized after the shooting because he was hysterical, hyperventilating, and incoherent. (Id. at p. 1078.)
In contrast to the situation in In re Michael B., supra, 149 Cal.App.3d 1073, here, defendant was almost 14 years old, not 9 years old. More significantly, there was no evidence that defendant did not understand the consequences of throwing a bottle at a person's head. Moreover, the boy in In re Michael B., had to be hospitalized after the shooting because he was hysterical. Here, defendant showed no concern. The officer testified that K.A. was shaking and had been crying while defendant was calm.
Accordingly, we conclude substantial evidence supported the lower court's finding that defendant appreciated the wrongfulness of her conduct.
IV. The Revocation of Informal Probation and Reinstatement of Wardship Proceedings A. Background
Prior to the current petition, two section 602, subdivision (a) petitions had been filed against defendant. The court had ordered probation without wardship pursuant to section 725. When the present section 602, subdivision (a) petition was filed alleging that defendant had committed an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), the probation department filed a request for a detention order, alleging, among other things, that defendant committed a new criminal offense, that she violated a court order, that she escaped from court placements, and that she was likely to flee the jurisdiction. The prosecutor requested that nonwardship probation be revoked.
At the detention hearing on August 5, defendant stipulated to a prima facie case, and the court ordered defendant to be detained pending disposition of the petition. On August 16, the court revoked informal probation over defense counsel's objection with the provision that the matter could be revisited when the jurisdiction hearing was held on August 23.
At the disposition hearing on September 8, 2010, the court stated that it had the probation department's disposition report, the case plan, the psychological evaluation of defendant, and the dependency report prepared pursuant to section 241.1. After reviewing the material, the court ordered a section 602 wardship.
Defendant maintains that the lower court's revocation of the nonwardship probation pursuant to section 725 without notice and a hearing violated section 777. B. The Pertinent Law
Section 775 provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." Section 777 sets forth the formal procedural requirements, including a noticed hearing, when the court issues an order changing a previous order. Since the lower court modified the commitment order by revoking the nonwardship probation, defendant asserts that it had to comply with the requirements of section 777. It is undisputed that the court did not comply with the formal requirements of this statute when it revoked defendant's informal probation.
Both the People and defendant cite In re Deon W. (1998) 64 Cal.App.4th 143, but they come to different conclusions as to the impact of this decision on the facts of this case. In Deon W., the minor was placed on probation under section 725. (Deon W., at p. 145.) The probation department notified the court that defendant violated the terms and conditions of his probation. Defendant appeared in court, and defendant's counsel requested a section 777 hearing and a contested disposition hearing. (Deon W., at p. 146.) The court refused and declared defendant a ward of the court. (Ibid.) The appellate court concluded that defendant was not entitled to section 777 proceedings because the lower court was dealing with reinstitution of the original wardship proceedings under section 602, and not with an order changing or modifying a previous order removing a minor from custody of his parents. (Deon W., at p. 146.)
The appellate court in In re Deon W., supra, 64 Cal.App.4th 143, noted that section 725 "authorizes the juvenile court to put a halt to an adjudication before the order of wardship and disposition if it finds a minor will benefit from a prewardship grant of probation. Thereafter, if a court is dissatisfied with a minor's performance on probation, the court may reinstitute the wardship proceedings." (Deon W., at pp. 146-147.) The court in Deon W. refused to allow the minor to have an evidentiary hearing before finding he violated the terms of his probation. (Id. at p. 147.) The court noted that defendant was entitled to a disposition hearing. (Ibid.) The court concluded that defendant "was entitled to notice, to have a current social study prepared for the hearing and to produce evidence indicating there were other more appropriate dispositions available to he court." (Ibid.) The court thus reversed the court's orders of wardship and suitable placement and ordered the lower court upon remand to hold a contested disposition hearing. C. No Prejudice
In the present case, the court's summary revocation of defendant's nonwardship probation was prior to the court's consideration of a current and thorough social study. However, even if the court erred by summarily revoking the nonwardship probation, defendant cannot establish prejudice. Defendant had a properly noticed jurisdiction hearing where the court made the necessary findings and considered the appropriate placements.
At the jurisdiction hearing, the court found clear and convincing evidence that defendant had violated Penal Code section 245, subdivision (a)(1). This is a higher standard of proof than is necessary to sustain a revocation of probation, as a probation violation can be proved under a preponderance standard of review, which is insufficient for conviction of a charged crime. (Welf. & Inst. Code, § 777, subd. (c); In re Eddie M. (2003) 31 Cal.4th 480, 486.) Thus, the record establishes that the court found that defendant violated her probation.
The record also shows that, unlike the situation In re Deon W., supra, 64 Cal.App.4th 143, here, defendant had an opportunity to provide the court with any evidence of any desired disposition. The trial court indicated that it had read and considered the probation report, a case plan, a psychological evaluation, and a dependency report prepared pursuant to section 241.1, prior to issuing its finding of wardship. Defendant's trial counsel did not object to any of the submitted documents. On appeal, defendant does not argue that any specific information was omitted or not considered by the court or that she never had an opportunity to provide evidence of a desired disposition. Thus, contrary to the situation in Deon W., the court in the present situation did exercise its discretion in determining the appropriate disposition.
Here, defendant received all the protections that a noticed hearing would have accorded and no prejudicial error or miscarriage of justice resulted. (See, e.g., In re Ruben M. (1979) 96 Cal.App.3d 690, 698.) Accordingly, no purpose would be served to remand for a hearing on the revocation of the nonwardship probation: the court considered all of the relevant information and concluded that the proper disposition was to place defendant on probation in the custody of the probation department.
Although we conclude that defendant cannot establish prejudice with regard to the lower court's summary revocation of her nonwardship probation, and thus reversal on this basis is not warranted, as explained above, we are reversing based on the trial court's use of the incorrect standard of proof at the jurisdiction hearing. Thus, on remand, if the court determines that the evidence did not establish beyond a reasonable doubt that defendant violated Penal Code section 245, subdivision (a)(1), it will need to hold a new disposition hearing and determine the appropriate disposition.
Since we conclude that defendant cannot establish prejudice regarding any error in prematurely revoking informal probation, we reject defendant's contention that she must be released because she has served the six-month maximum term for nonwardship probation.
DISPOSITION
We reverse the jurisdiction order as to the finding that defendant violated Penal Code section 245, subdivision (a)(1). The case is remanded for further proceedings in accordance with the views expressed herein. The order revoking nonwardship probation is affirmed.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.