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In re J.H.

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
Jan 10, 2020
C088098 (Cal. Ct. App. Jan. 10, 2020)

Opinion

C088098

01-10-2020

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


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JDSQ17426, JDSQ17566, JDSQ18112, JDSQ18257)

The minor J.H. appeals from the juvenile court's dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) following multiple sustained Welfare and Institutions Code section 602 petitions in which he was found to have committed two counts of attempted robbery (Pen. Code, §§ 211/667), two counts of robbery (Pen. Code, § 211), and one count of grand theft (Pen. Code, § 487). He contends it was abuse of discretion to commit him to the DJF, there is an error in the calculation of precommitment credits, and the restitution orders are not supported by substantial evidence. While the DJF commitment was proper and the restitution award is not properly before us, there is an error in the credits. We shall modify the award of credits and affirm the judgment as modified.

Undesignated statutory references are to the Welfare and Institutions Code.

BACKGROUND

July 14 and July 20, 2017 Petitions

On July 1, 2017, the minor and two other males entered Mark L.'s taxicab and gave him $20 in advance for the fare. Mark told them the fare was $19.60 when they arrived, and gave the minor and his group the change. The youths punched him in the face and took the $20 from his shirt pocket. A section 602 petition was filed in Sacramento County on July 14, 2017.

On July 8, 2017, the minor and a group of youths entered Oscar C.'s taxi. The minor, who was the front seat passenger, brandished a handgun and exited the cab without paying the $19 fare. Another section 602 petition was filed in Sacramento County on July 20, 2017.

On August 10, 2017, the minor admitted one count of attempted robbery in each petition, and his case was transferred to his county of residence, Yolo County, for disposition. The juvenile court declared the minor a ward of the court and placed him on home probation at the September 21, 2017 disposition hearing. October 31, 2017 Petition

On October 28, 2017, the minor and another young male entered an apartment where the minor took the victim's wallet, car keys, personal checks, and baseball bat.

A section 602 petition was filed in Sacramento County on October 31, 2017. The minor admitted to grand theft on November 13, 2017, and the matter was transferred to Yolo County for disposition. The juvenile court placed the minor on home probation at the December 5, 2017 disposition hearing. January 25, 2018 Petition

Also on October 28, 2017, the minor and a group of people assaulted a man after he drove home in his BMW. The group demanded the man give up his watch and keys to the car. The victim refused until one of the perpetrators placed a gun to his head. After one of the group took the keys, some left in the car and the others fled on foot.

A section 602 petition was filed in Sacramento County on January 25, 2018. The minor admitted to robbery on February 27, 2018, at which time the case was transferred to Yolo County for disposition. The juvenile court continued the minor on home probation at the April 3, 2018 disposition hearing. April 16, 2018 Petition

On April 11, 2018, 12-year-old A.O. and his friend were walking outside; the minor and another young male followed them. The minor asked A.O. for his cell phone. A.O. was afraid because the minor had a gun in his waistband, so he gave his phone to the minor. The minor told A.O to turn out his pockets and removed $5 from his victim's pocket. The minor fled after he had A.O. reset the phone settings.

A section 602 petition was filed in Sacramento County on April 16, 2018. The minor admitted to a count of robbery on May 11, 2018, and the case was transferred to Yolo County for disposition. On May 31, 2018, the juvenile court placed the minor on probation with out-of-home placement at Rite of Passage.

Probation Violation and DJF Placement

On June 18, 2018, a letter the minor had previously mailed was returned to Rite of Passage. The minor held the letter in front of a teacher's face and demanded to know why it had been returned. The teacher took the letter from the minor, crumpled it up, and threw it in the minor's face. In response, the minor slapped the teacher in the face. On June 22, 2018, he absconded from the courthouse while awaiting a hearing.

A section 777 petition alleging a probation violation was filed on June 28, 2018. On July 9, 2018, the minor admitted violating probation by absconding; the slapping allegation was dismissed but could be considered at disposition.

A case planning report filed on July 26, 2018, related the minor admitted he had absconded from Rite of Passage because he did not want to return there after a court date. He ran away when stopped by police because he did not want to talk to them. The minor would prefer to live with his mother; his father was in prison and he had two grandmothers who supported him at times. Rite of Passage explained that both the minor and the teacher behaved inappropriately in the slapping incident, and the matter was handled in house without filing charges.

Rite of Passage stated the minor had been in the program for two weeks and was in assessment status. He demonstrated an ability to adhere to the basic rules of the program and meet student expectations when consistently redirected. The minor was easily agitated and verbally combative with authority figures. He possessed an attitude which condones crime and violence, demonstrated little to no remorse, and was resistant to treatment. The minor also exhibited significant risk-taking and impulsivity. Rite of Passage declined to take the minor back into the program.

The report additionally noted the minor continued to struggle with controlling his behavior while in custody. Incidents included bullying peers, failing to follow staff directives, and creating an unsafe environment by refusing to follow daily programs. In light of the minor's lack of success with community-based programs, his increased criminality, his continued disregard for court orders, and an inability to engage in the programs at Rite of Passage, the report recommended DJF commitment.

According to the report, DJF commitment would allow the minor to benefit from a comprehensive mental health, medical, academic, psychological, and psychosocial evaluation. The assessment would be used by the DJF staff to work collaboratively with the minor and his family to develop a treatment plan for him to develop skills for successful re-entry into the community. Programs offered by the DJF addressed topics such as social skill competence, anger control and moral reasoning, antisocial attitudes and negative peer influence, emotional and behavioral difficulties arising from traumatic life events, substance abuse, avoiding aggression and violence, and practicing social skills. The DJF also offered re-entry programs to help integrate the minor back into the community, and he could earn his high school diploma or GED during his commitment. The DJF further offered postsecondary education such as vocational programs and the ability to earn a community college associates of arts degree.

At a July 30, 2018 hearing, the juvenile court stated it had reviewed the case planning report and was concerned about the minor's choices and behavior. Citing In re Carlos J. (2018) 22 Cal.App.5th 1 (Carlos J.), minor's counsel asserted that before committing the minor to the DJF, the juvenile court would have to find the minor would benefit from a DJF commitment and that less restrictive alternatives were inadequate. The prosecutor argued the minor would not benefit from local services and needed a structured setting. Minor's counsel questioned the wisdom of committing the minor to Rite of Passage and asked the court to consider an alternative placement before committing the minor to the DJF. The juvenile court continued the matter to consider Carlos J.

At the August 2, 2018 disposition hearing, minor's counsel argued the planning report did not address the minor's willingness to engage in rehabilitative services. Counsel told the court the minor was willing to complete a group home program if given the opportunity. When the juvenile court asked why a group home was not considered, a probation department representative replied it was difficult to find a group home for him that is close to the minor's preferred placement in Yolo County. In addition, there were no group homes available for the minor in Southern California. Furthermore, two of the group homes would not take him due to the severity of his offenses.

The court probation officer stated the DJF provides evidence-based services which included gang intervention and job training. The minor had previously committed a new robbery one week after being released from GPS monitoring. Releasing him again would place the community at risk.

The minor is a validated member of the Stick Up Starz gang.

Finding the prior attempts at community-based services and the highly structured Rite of Passage group home had failed, the juvenile court followed the probation department's recommendation and committed the minor to the DJF. Minor's counsel immediately requested a contested disposition hearing. The juvenile court explained counsel could provide information to aid in disposition, but was not entitled to an evidentiary hearing. However, counsel could request rehearing.

Reconsideration

Minor's counsel filed a motion for reconsideration on August 6, 2018. On August 23, 2018, the juvenile court ordered the probation department to provide minor's counsel with a list of group homes which met the department's placement criteria.

On September 27, 2018, the court addressed the reconsideration motion after a public defender's office social worker told the court she found two group homes that might be willing to accept the minor. The juvenile court noted that one of the suggested placements, Koinonia Homes for Teens, did not offer sufficient structure, but it would need more information about the other suggested placement, Mary's Help. The social worker replied that Mary's Help was highly structured and had the benefit of being an ethnic match for the minor. In response to questions from the juvenile court, the social worker admitted that Mary's Help was not a locked facility. It was a home and the minor would go to regular high school while attending.

Minor's counsel suggested placement in a Southern California group home, but the juvenile court was concerned the distance would make family support and visits too difficult. A probation officer said the department had not found a placement that met the minor's needs as well as the DJF. Probation had not used Mary's Help in the past. The officer also told the juvenile court that the minor had eight incidents since the August 23 hearing. The juvenile court ordered the probation department to follow up on the two alternatives suggested by minor's counsel and continued the matter until the next day.

Minor's counsel reiterated the request for a less restrictive placement when the matter resumed the next day. The juvenile court granted the reconsideration motion but did not change placement, finding the group homes urged by minor's counsel lacked the services the minor needed, while the DJF, with its range of programs, would benefit the minor.

DISCUSSION


I

The minor contends placing him in the DJF was an abuse of discretion because he should have been afforded the opportunity to benefit from a less restrictive disposition. We disagree.

Minors under the juvenile court's jurisdiction must receive "care, treatment, and guidance consistent with their best interest and the best interest of the public." (§ 202, subd. (b).) "The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJF]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law." (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) Those purposes include the "protection and safety of the public" (§ 202, subd. (a)); to that end, punishment is now recognized as a rehabilitative tool (§ 202, subd. (b)). (Michael D., supra, at p. 1396.) The juvenile court's commitment decision does not constitute an abuse of discretion where there is evidence in the record "demonstrate[ing] probable benefit to the minor from commitment . . . and that less restrictive alternatives would be ineffective or inappropriate. [Citation.]" (In re George M. (1993) 14 Cal.App.4th 376, 379.)

The record shows the juvenile court considered less restrictive placements and found them ineffective or inappropriate. Consistent with the case cited by minor's counsel in the juvenile court, Carlos J., the juvenile court did not commit the minor to the DJF until there was specific evidence in the record supporting the finding of the minor's probable benefit from a DJF commitment. (See Carlos J., supra, 22 Cal.App.5th at pp. 3-4.) When he was placed at home or in a highly structured group home, the minor continued to endanger himself and the community by committing felonies, some of which were violent. The minor failed his group home placement within two weeks, and the group home would not take him back. One of the two suggested placements from minor's counsel had insufficient structure, while the other was not a locked facility. In light of the minor's demonstrated need for structure and his history of criminal behavior and absconding, it was not an abuse of discretion for the juvenile court to conclude that neither alternative was effective or appropriate. Since no less restrictive alternative was found, it was within the juvenile court's discretion to commit the minor to the DJF.

II

The juvenile court awarded the minor 253 days of precommitment credit at the August 2, 2018 disposition hearing. The minor contends he was entitled to 261 days at the time of the August 2, 2018 disposition. The Attorney General asserts the minor is entitled to 222 days of credit. We agree with the Attorney General.

Juveniles are entitled to precommitment credit for time spent in custody prior to the disposition hearing. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) The minor was in custody: July 12, 2017 to August 15, 2017, a total of 35 days; August 15, 2017 to August 24, 2017 for 10 days; October 28, 2017 to November 16, 2017 for 20 days; November 16, 2017 to December 5, 2017 for 20 days; January 23, 2018 to March 1, 2018 for 38 days; March 1, 2018 to March 6, 2018 for six days; April 12, 2018 to May 13, 2018 for 32 days; May 14, 2018 to June 10, 2018 for 28 days; July 2, 2018 to July 5, 2018 for 4 days; and July 5, 2018 to the day he was committed to DJF, August 2, 2018, for 29 days. This totals 222 days. We shall modify the credit award to reflect the correct amount. (See Emilio C., supra, at p. 1068.)

The minor mistakenly asserts he was in custody from July 12, 2017 to September 21, 2017. The minor was detained on July 12, 2017, but he was released to his mother's custody under GPS monitoring on August 24, 2017.

III

The minor contends the three restitution orders awarded by the juvenile court are not supported by sufficient evidence.

The People filed a motion requesting $20 restitution to Mark L., the victim of the July 1, 2017 attempted robbery of the taxi he drove and $3,296 to Oscar C., the driver of the taxi in the July 8, 2017 incident. The motion included a statement from Oscar C. that he netted on average $206 a day from driving his cab, but, as a result of being robbed by the minor and then robbed again in his cab three weeks later, he decided to quit driving taxi cabs because he no longer felt safe. He requested $3,296 for the 16 days of earnings he lost, at $206 a day, while finding another job at Napa Auto Parts. Also attached to the motion was a request for $20 restitution from Mark L. for the fare that was stolen from him. At the September 21, 2017 disposition hearing, the juvenile court ordered the minor to pay victim restitution to Mark L. and Oscar C., with an amount to be determined at a later date.

A May 29, 2018 probation report related that a probation officer talked to the mother of A.O., the 12-year-old victim of the April 11, 2018 theft of his cell phone and $5 cash by the minor and an accomplice. A.O.'s mother requested $225 for the cost of a replacement phone and $5 in cash, for a total of $230 in restitution.

At the May 31, 2018 disposition hearing, the juvenile court ordered victim restitution of $3,296 for Oscar C, $20 for Mark L., and $230 for A.O. The minor did not object to the award or present any evidence regarding restitution.

"The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute. [Citations.]" (People v. Loper (2015) 60 Cal.4th 1155, 1159.) Here, the relevant statute is section 800: "A judgment in a proceeding under Section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment." (§ 800, subd. (a).) The notice of appeal must be filed "within 60 days after the rendition of the judgment or the making of the order . . . ." (Cal. Rules of Court, rule 8.406(a)(1).) Here, the restitution order became appealable when the juvenile court set the amount of restitution for all three victims at the May 31, 2018 disposition hearing. (See In re Julian O. (1994) 27 Cal.App.4th 847, 851-852 [restitution order appealable when the juvenile court sets the amount imposed].)

The minor filed his notices of appeal on October 1, 2018. The clerk's notice correctly lists the orders appealed from to be the dispositional orders entered on August 2, 2018, when the juvenile court first committed the minor to the DJF, and September 28, 2018, when the juvenile court reaffirmed the commitment order at the hearing on the minor's reconsideration motion. The notices filed by the minor lists as appealable orders the juvenile court orders entered on July 30, 2018, August 2, 2018, September 27, 2018, and September 28, 2018.

The May 31, 2018 restitution order was part of an appealable order entered that day. The minor's notices of appeal were filed on October 1, 2018, and therefore were not timely as to the restitution order, which was entered more than 60 days before filing the notices of appeal. Thus, we lack jurisdiction to address the minor's attack on the restitution order. (See In re Megan B. (1991) 235 Cal.App.3d 942, 950 [appellate jurisdiction is dependent upon the filing of a timely notice of appeal].)

While the parties did not address this issue, since appellate jurisdiction may be raised at any time (Ponce-Bran v. Trustees of Cal. State University (1996) 48 Cal.App.4th 1656, 1660, fn. 2) rehearing will not be granted to address the appealability of the restitution orders. --------

DISPOSITION

The award of precommitment credits is modified to 222 days. As modified, the judgment (order) is affirmed.

/s/_________

RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
KRAUSE, J.


Summaries of

In re J.H.

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
Jan 10, 2020
C088098 (Cal. Ct. App. Jan. 10, 2020)
Case details for

In re J.H.

Case Details

Full title:In re J.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)

Date published: Jan 10, 2020

Citations

C088098 (Cal. Ct. App. Jan. 10, 2020)

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