Opinion
A165072
12-28-2023
In re TONY R., a Person Coming Under the Juvenile Court Law. v. TONY R., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Order Filed Date 1/26/24
Solano County Super. Ct. No. J45405
ORDER MODIFYING OPINION AND DENYING REQUEST FOR REHEARING
THE COURT:
The opinion filed on December 28, 2023, is modified as follows:
On page 13, replace last sentence of first paragraph ("Tony's score for recidivism risk was high when she wrote the first report and remained high.") with the following:
"Both disposition reports relied on the high score for recidivism found in the assessment performed shortly after Tony's arrest."
On page 43, add new second paragraph to disposition:
"The disposition order shall also be corrected to state in Finding 5 on page 2 that the minor is awarded 149 days of credit."
The petition for rehearing is denied.
This modification changes the judgment.
STEWART, P.J.
Tony R. appeals from juvenile court orders following a contested disposition hearing. He challenges the court's decision to commit him to a secure youth facility program that was not yet fully operational. In addition, he argues that two enhancements must be stricken, his baseline term of confinement must be clarified and potentially reduced, his maximum term of confinement must be clarified; his predisposition credits must be corrected and applied to the baseline term rather than the maximum term of confinement; the probation order requiring him to stay away from El Sobrante is vague and overbroad; a termination date must be specified for the stay-away order and a no contact order; and an unauthorized probation fine must be stricken. We find most of these arguments to be without merit. We agree, however, that the juvenile court must reconsider its determination of the maximum term of confinement in light of a statutory amendment subsequent to the disposition hearing, and that the disposition order must be corrected with respect to the maximum term of confinement and the number of precommitment credits awarded.
As will become clear, the phrase "maximum term of confinement" refers to two different concepts in this case. Correction of the maximum term of confinement is required for the term defined by Welfare and Institutions Code section 875, subdivision (c)(1)(A) & (B), and specified on page 1 of the disposition order, as discussed in section III.B. of the Discussion, post. Reconsideration is required for the term of confinement defined by section 875, subdivision (c)(1), and specified on page 2 of the disposition order (item 7), as discussed in section III.C. of the Discussion, post. Further statutory references will be to the Welfare and Institutions Code except as otherwise specified.
BACKGROUND
I.
Factual Background
The facts pertaining to this incident are taken from the initial Solano County probation officer's disposition report, which in turn takes them from the Contra Costa Sheriff's report.
At approximately 6:22 p.m. on October 3, 2021, Paraminder Soomal (age 59) and his father, Swarn Singh (age 84), were mowing the lawn at their home in El Sobrante when a BMW pulled up. A witness saw three black youths get out of the BMW, all brandishing handguns, and begin beating Soomal and Singh. On video from the home's Ring camera, a voice can be heard saying" 'Hey everybody, give me your shit n---a.'" Singh backs up as Tony shouts," 'take that watch off n---a, shut the fuck up and take that watch off n---a,'" and Singh falls backwards onto the porch. Tony appears to "forcefully take property off" Singh, who attempts to defend himself while lying on his back and swinging an electrical cord at Tony. During this struggle, Tony points the gun at Singh, throws a chair at Singh's head, and strikes Singh several times with the handgun. Soomal then strikes Tony's head with an empty plastic bucket and Tony falls to the ground briefly. Tony stands up and fires a round at Soomal, who falls and appears to lose all bodily function. Suspect 2 fires several rounds. The video shows only suspect 3's pants and shoes. When the police arrived at about 6:25 p.m., they found Soomal lying on his back, bleeding from several gunshot wounds to his upper body. Singh was sitting on the stairs bleeding from a gunshot wound to his head, with a witness providing aid.
The probation report does not refer to Tony by name but rather to "Suspect #1." The record indicates that "Suspect #1" is Tony and both parties' briefs refer to him where the probation report refers to Suspect #1.
Singh's skull was fractured from a gunshot wound just above his left eyebrow. Interviewed at the hospital with the assistance of a Punjabi translator, Singh said that when the youths confronted them, he could not understand what they wanted because he speaks only Punjabi. He did not know the youths and had never seen them before. Soomal was paralyzed from the waist down and suffered severe internal bleeding due to a gunshot wound to his chest that exited his back and also had gunshot wounds to his right biceps and hip. Soomal remained in the hospital until December 2. When interviewed on December 7, he told the police he would be in a wheelchair for the rest of his life and continued to have nightmares about the incident. He was confused about why he and his father were attacked and said that if Singh had understood what the youths wanted, he would have complied. He said Singh was suffering from nerve damage and memory loss.
Subsequent police investigation determined that then 14-year-old Tony was one of the three youths involved in the incident and he was arrested on November 18, 2021. The other two youths involved were 16-year-old A.E. and 15-year-old C.E.
B. The Alleged Solano County Offenses
The facts relating to this offense are taken from the amended disposition report filed on April 5, 2022, which takes them from a Vallejo Police Department report.
On September 27, 2021, police officers responded to Vallejo High School regarding an assault involving a firearm. The vice principal told the officers that a parent had informed her on September 22, 2021, that her son W.B. was assaulted and pistol whipped on September 20, 2021, during school hours, at First Presbyterian Church. W.B., who was on FaceTime while his mother spoke with the vice principal, said he was lured to the church by his childhood friend G.H. Once there, they were contacted by A.E. (the 16 year old involved in the El Sobrante offenses), R.L, C.L. and Tony. At the direction of A.E., Tony held a gun to W.B.'s head while C.L. searched his person and backpack. During the incident, W.B. was pistol whipped in the head and suffered an unknown injury; a photo of the injury was requested but not received. The vice principal told the officers that she confirmed from attendance records that W.B., Tony, G.H., C.L. and R.L. were absent at the time of the incident. She called the police after the mother contacted her about threats to W.B. on social media by the suspects. The officers noted that screenshots from Instagram stories containing intimidating language that W.B. and his mother believed were threats against him did not clearly state specific threats of bodily harm and used "heavy slang terms and grammar." The vice principal later told officers she had received information from an anonymous student that a person believed to be Tony was seen armed with a gun on school property.
The probation report further stated that the vice principal "also noted, [the anonymous student] has observed [Tony] wearing a 'messenger bag/cross body shoulder bag' with one hand inside his pocket. She implied as if he was holding onto the grip of a gun."
II.
Legal Proceedings
On November 10, 2021, the Contra Costa County District Attorney filed a Welfare and Institutions Code section 602 petition alleging that Tony committed one count of attempted murder (Pen. Code, § 187, subd. (a)/664) and one count of second degree robbery (id., § 211/212.5, subd. (c)). Special allegations of personal use and discharge of a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) &(d)) were alleged as to both counts. Count 2 also alleged infliction of great bodily injury on an elderly victim (id., § 12022.7, subd. (c)). Tony denied the allegations and remained detained in juvenile hall.
Further statutory references will be to the Welfare and Institutions Code except as otherwise specified.
On November 23, 2021, the People filed an amended petition adding allegations that Tony personally used a firearm in violation of Penal Code section "12022.5(a)(1)" in the commission of both counts and, in the commission of count 1, inflicted great bodily injury that "caused the victim to become comatose due to brain injury and to suffer paralysis of a permanent nature" (Pen. Code, § 12022.7, subd. (b)).
On the same date, Tony entered a plea of no contest to the charged offenses and admitted the enhancements. The case was transferred to Solano County, Tony's county of residence.
On December 13, 2021, the Solano County District Attorney filed a section 602 petition alleging that on September 20, 2021, Tony committed one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of assault by means likely to produce great bodily injury (id., § 245, subd. (a)(4)). Tony denied the allegations.
At the February 15, 2022 hearing scheduled for disposition on the Contra Costa County petition, the Solano County petition was dismissed pursuant to the parties' agreement that the court could consider the facts underlying the two dismissed counts in ordering restitution and considering the appropriate disposition in the Contra Costa case. The disposition hearing was continued and ultimately took place on April 5, 2022.
At the conclusion of the disposition hearing, the court adjudged Tony a ward of the court and committed him to juvenile hall for 148 days, with credit for 148 days, and to the Reaching into Successful Endeavors Program (RISE) for a maximum term of 11 years or until age 25. The court ordered Tony to pay a $100 restitution fine and any ordered victim restitution. The court imposed probation orders including that Tony not have contact with the victims and co-responsibles and that he stay away from El Sobrante unless with a responsible adult.
Tony filed a timely notice of appeal on April 15, 2022.
DISCUSSION
I.
The Commitment to RISE Was Not an Abuse of Discretion.
Tony argues there was insufficient evidence to support the commitment to RISE because the program was "nonoperational" at the time he was committed. He maintains the juvenile court should have committed him to the less restrictive Challenge Academy (Challenge), which in his view would provide similar services and be sufficient for his rehabilitative needs. The probation department had initially recommended commitment to Challenge but changed its recommendation to the more restrictive RISE when directed to consider the facts underlying the Solano County petition as well as the Contra Costa County offenses.
A. The Programs
1. Challenge Academy
As described in the probation report and at the disposition hearing, Challenge is a three-phase program that includes an "individual treatment plan" developed by the treatment team and youth and "utilizes the cognitive-behavioral model, focusing on changing negative thinking and behavior patterns to more realistic and pro-social patterns." The programming and services offered also include academic instruction, employability skills, opportunities to develop connections with community organizations and mentors, and family reunification. The duration of the program is usually about nine months.
The probation officer testified that minors progress through the three phases of the Challenge Program by earning points and the most programming was in the middle phase. Programming includes cognitive-behavioral groups, journaling, and individual counseling with a juvenile correctional counselor; minors also work with their probation officers; and mentoring from a community volunteer is available throughout the program. The treatment team consists of a juvenile correctional counselor, the minor's probation officer, "somebody from Solano County Office of Education" and a "transitional education specialist." The probation department would attempt to provide the appropriate treatment if a minor had a unique need.
2. RISE
The probation report described RISE as the department's "county-based care, custody, and supervision program responsible for providing rehabilitative treatment and intervention for youth that have been committed to and/or . . . realigned from the state Division of Juvenile Justice." It stated that RISE "is also designed to provide the minor services to address his greater need areas and reduce his risk of recidivating, provide him the structure and support he needs in a phase [sic] approach, driven by an individualized case plan and the appropriate services and the tools and skills necessary to make positive behavior changes, while working alongside him up to his reentry back into the community with the appropriate community based connections for him to be successfully returned back into the community."
RISE has four phases: Intake, treatment, exploration of goals and transition to the community. The supervisor of the RISE program testified that during the first 30 days minors complete several assessments to identify any clinical barriers such as substance abuse or mental health instability, as well as an assessment of "strengths, internal and external factors or assets [minors] can use to have more positive outcomes" that is used in developing a case plan that will provide services and programs intended to reduce the likelihood of recidivism by addressing high risk needs. Minors also complete assessments to determine which juvenile correctional counselor would be the best fit to work with them. Each of the four phases of the RISE program requires a minimum number of hours of programming. The first phase results in a case plan; the specific programming in the treatment phase depends on what is identified in the assessments and may include interactive journals, cognitive-behavioral training (CBT) "mini cycles" and "evidence-based intervention."
The probation officer testified that RISE was designed to be more individualized than Challenge and offered more extensive programming. Unlike Challenge, the treatment team at RISE includes a mental health clinician, a social services worker and a mentor coach. In addition to high school classes and the opportunity to get a high school diploma (which also exist at Challenge and juvenile hall generally), RISE affords a minor who obtains his high school diploma the ability to take college classes. Minors can also get job experience through "apprenticeships or partnerships with jobs and job skills." As was the case at DJJ, a minor's expected length of time at RISE is based on the committing offense (here, four years). During this time there are court reviews every six months at which the probation department can make recommendations for changes in the minor's program.
At the time of the disposition hearing, there was one minor committed to the RISE program, who was living in the general pod; a dedicated RISE pod would be opened when there were three or four minors committed to RISE and it was not known when that would happen. The pod to be dedicated to RISE had been identified and there was furniture waiting, but no work had yet been done to modify the pod. RISE would be working with the county Office of Education on educational plans for each minor, and with Solano Community College to provide college courses. A trades program had "opened" but had not yet been utilized due to COVID; the facility was slowly starting to open. Family support was also part of the RISE program and the minors would get increased opportunity for time with families as the facility opened for visitors. The program planned to continue providing support after minors return to the community.
Asked who performs the assessments during the first 30 days of the RISE program, the RISE supervisor responded, "Currently right now so, since there is not . . . a RISE program, we were having discussion about having the senior lead [of the RISE program] complete the assessments .... That is still in the works." She then clarified, "There is a RISE program, it's just not on its own specific-we currently have one youth." That youth, who had been committed to RISE in August 2021, was receiving the described program services "[f]or the most part." The intended group programming was not possible with one person, but he was receiving one-on-one CBT interventions. Programming for RISE was being provided by individuals currently employed at the facility. If a given program was provided in Challenge or the general program as well as in RISE, it would be provided by the same individual in each.
B. Procedural Background
The probation officer's disposition report, prepared for an initial hearing date in December 2021 that was later continued, recommended that Tony be committed to the Challenge Program following a 180-day commitment period for "pre-programing preparedness" to support transition to Challenge. The report noted the "heinous" nature of the offenses and related that Tony had been assessed as having an "overall high risk to reoffend." On the other hand, the report noted that Tony had only recently turned 14, had "no real criminal history," had never received services, and had been exposed to "adverse childhood experiences which may have caused some trauma," including parental separation and substance abuse and a "criminally involved family." Tony had expressed "slight remorse" for his actions by commenting that he would not want something like this to happen to his family, but he had not taken "accountability" or commented on how seriously his actions impacted the victims. The probation report noted that its recommendation for a period preceding commitment to Challenge would allow time for Tony to adjust to attending school regularly and to identify any special education, physical health or mental health needs, and would bring Tony "closer to age 15, which is an age more appropriate for participation in the Challenge Program." The probation report stated that Tony "should be given the opportunity to prove he can be rehabilitated" and noted that while RISE would be an available further intervention if he did not succeed in Challenge, there would be "no escalation of services after having served a commitment to RISE."
Tony and his siblings lived in the home of K.D., the sister of his mother's partner; K.D., who Tony referred to as his aunt, said the children came to live with her so they "would not end up 'in the system.'" Tony's mother and her partner were" 'in and out'" of the home and reportedly had struggled with substance abuse. At the time of these proceedings, Tony's mother was in a long term rehabilitation facility recovering from injuries sustained in a hit and run incident. Tony had "sporadic" contact with his father. Both of Tony's parents had criminal histories, as did K.D.'s father, who also lived in her home. There had been 14 referrals to Child Welfare Services between 2007 and 2020, all of which were reported as "unfounded," "inconclusive," "situation stabilized," and/or "evaluated out." Tony was failing all his freshman year classes and had excessive unexcused absences as well as a 25-day suspension from school. He denied substance abuse and denied physical, emotional or sexual abuse. Tony's family was shocked by his conduct and his mother said it was out of character. K.D. said the offense broke her heart but Tony needed to deal with the consequences, and that she would continue to support him.
After the February 15, 2022 hearing, when the probation officer was directed to prepare an amended report including consideration of the facts underlying the dismissed Solano County petition, the probation department recommended that Tony be committed to RISE. The People supported this recommendation. The probation report stated that a commitment to the Challenge Program did not appear to be fitting in light of the "brazen" acts and "totality and egregiousness" of the acts described in both the Solano and the Contra Costa County petitions, the assessment that Tony was at high risk to reoffend, and the need to consider community safety. The probation department "acknowledged the Challenge Program offers services and programming aimed to address needs and help to avoid high risk youth from reoffending" but determined after reassessment that it did not offer "an adequate dosage, in both timing and scope, of services and programming. The minor must be afforded enough time to solidly address his specific needs, intensely adjust his thinking, and thoroughly work on his long-term educational and/or vocational goals for a consistent and successful reintegration back into the community." The department believed RISE could provide the needed intervention and treatment and "[w]ith a more extensive time commitment than offered at the Challenge Academy, he will have the opportunity to also obtain his high school diploma and be afforded the option to take college courses and/or participate in the trades program, which could provide him employable skills and advantages when released." In Tony's case, a commitment to RISE would be for a baseline term of four years. (§ 875, subd. (b)(1); Cal. Code Regs., tit. 9, §§ 30807, subd. (a)(2), 30808, subd. (a)(12).)
The probation officer testified at the disposition hearing that the initial recommendation for Challenge was mostly due to Tony's age and lack of prior interventions, and the recommendation for a six-month commitment prior to Challenge was in part to extend the "dosage" and length of time Tony would be in a structured program. She was aware of the Solano County incident when she wrote the first report but did not consider it because a petition had not been filed. The recommendation changed after taking into account that the Contra Costa and Solano offenses happened 13 days apart, both in "broad daylight," with guns and victims who were "arguably . . . somewhat vulnerable" and one of the co-responsibles involved in both. Tony's score for recidivism risk was high when she wrote the first report and remained high.
The updated report on Tony's behavior at the Juvenile Detention Facility (JDF) was positive. His teacher reported that he was an "amazing" student, "always working and participating in class," and providing "valuable insight" and a "positive attitude." His last report card showed two As, one B, one C and "no credit" in algebra. He was participating in several skills training and rehabilitative programs. He had been involved in one physical altercation when another minor attacked him from behind and was noted to have "demonstrated kind behavior towards another youth."
Defense counsel had asked that Tony not be interviewed about the Solano incident but, asked about the original probation recommendation he said, "he thought it was 'fair' [and] he would like an opportunity to show he is not a bad kid." His mother expressed disbelief that Tony was involved in the Solano incident; K.D. was" 'shocked'" and "unsure" he was involved. She was concerned about possible negative peer influences but stated that if he committed the crimes, he needed to be held accountable.
The defense asked the court to commit Tony to Challenge. Defense counsel emphasized Tony's youth and life circumstances, including his parents' absence, K.D.'s inability to address his school difficulties because she was not his legal guardian, the influence of older friends such as the co-responsibles in his cases, and Tony's unaddressed grief over the loss, during the last two years, of some seven people he was close to, mostly to homicide. Arguing the court was required to choose the least restrictive dispositional alternative, and stressing research showing the detrimental effects of lengthy detention and confinement on youth, counsel urged that Tony's current engagement and good performance in school showed he was able to settle down and flourish once he was in a structured environment, and the length of RISE was unnecessary because Tony had accepted responsibility and wanted to change. The defense argued that the probation department's change in recommendation was not justified because the timing of filing the Solano petition indicated it was "arguably used to bolster the minor's disposition" and was based on a police report that was entirely double hearsay and therefore unreliable. The defense also argued that RISE "only exists 'on paper'" because at that time only one minor had been committed to the program and he was housed in the general pod because there was no dedicated unit.
The defense submitted a letter from Tony expressing remorse for his actions and promising to work hard to be a better person and lead a positive life; a report from a social worker at the public defender's office concluding that he displayed several risk factors related to "Adverse Childhood Experiences" and living in a community with high rates of poverty, violence and crime, and that he was open to receiving support; a forensic psychological evaluation report that recommended the shorter Challenge Program over RISE, noting the potential adverse impacts of a longer commitment and positive prognosis for rehabilitation on a shorter timeframe suggested by his positive conduct and attitude at juvenile hall; and support letters from a former teacher and an extended family member.
The probation officer believed the programming at RISE would better meet Tony's treatment needs and rehabilitation because it is "a little bit more individualized so he'll be able to do more assessments to kind of really hone in on his high-risk needs .... Also RISE gives him more time to really soak in the programming and the treatment that is there. The dosage just ends up working out a little bit better with the time. And then being in front of the court and having the court seeing his progress every six months I think is a good motivator as well." The probation officer had read the reports of the public defender's social worker and the forensic psychologist and considered the factors they discuss, and they did not change her recommendation. She acknowledged that Tony had been "programming well" since he had been in custody and, based on his performance during this time, had "good prospects" for rehabilitation and reform.
At the conclusion of the hearing, the trial court agreed with the probation department that RISE was the "most appropriate placement for Tony, in light of his present circumstances, to rehabilitate him and protect the community going forward and also address victim concerns, protect members of the public now and later, and also have consequences that are appropriate, in light of the magnitude of the offenses." The court commented that the worst thing it could do would be to "provide inadequate treatment and therapy to Tony and have him return to the community, before he is ready with the best tools going forward." The court acknowledged that a long commitment could be "traumatic in terms of development" for a 14 year old and "does cause problems," but stated that it did not think the original recommendation for commitment to Challenge was the most appropriate, even on the information considered at the time, because it did not have the "timing and scope of services and programming" needed to address the egregious behavior and consequences involved, "especially since an individualized program would be better tailored for Tony."
A 30-day review hearing was held on May 5, 2022. The probation officer's report included an "Individualized Rehabilitation Plan" indicating "targeted areas of need" and programs and treatment Tony was participating in and was expected to participate in as he moved through the program. Tony was reportedly "receptive to services and staff," believed the program could be beneficial for him and aimed to "absorb the skills and knowledge being provided to him and seek an early exit from the program." At the hearing, the probation officer stated that Tony had begun the RISE program but acknowledged that the services he was currently participating in were the same as they had been before the commitment to RISE. For the six-month review hearing on September 20, 2022, the probation officer reported that Tony was performing well and maintaining consistent progress. He was earning all As and Bs in school, with a 3.76 grade-point average, had successfully completed several programs, and was "an active participant in all areas of programing" including therapy. He was "interacting pro-socially with staff and peers," although it was noted that he had been in two fights since being committed to RISE, in one of which he was listed as the victim. At the hearing, defense counsel asked the court to consider reducing Tony's baseline term as authorized by section 875. The People opposed the request and the court directed Tony's attorney to file a written request. On October 19, Tony filed a motion to reduce his baseline commitment by six months (§ 875, subd. (e)(1)) due to his consistent positive performance. The People opposed the motion, arguing there had not been sufficient time and progress to justify a reduction. At a hearing on October 26, the trial court (a different judge) denied Tony's motion, commending him for his efforts but stating that he had significant rehabilitative needs and the individualized services were "just getting started." Tony's appeal from that order is currently pending.
C. Governing Law
The juvenile court "has long enjoyed great discretion in the disposition of juvenile matters ...." (In re Greg F. (2012) 55 Cal.4th 393, 411.)" 'We review the [juvenile] court's placement decision for an abuse of discretion. [Citation.] We review the court's findings for substantial evidence, and" '[a] trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.'"' (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154.)" (In re Carlos J. (2018) 22 Cal.App.5th 1, 5.)
Our review is guided by the purpose of the Juvenile Court Law "to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court ...." (§ 202, subd. (a).) "Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter." (Id., subd. (b).)
Since the closure of DJJ and transfer of responsibility for youth offenders to counties through juvenile justice realignment (Stats. 2020, ch. 337; § 736.5; In re Miguel C. (2021) 69 Cal.App.5th 899, 907), secure youth treatment facilities have replaced DJJ as the most restrictive placement alternative. A minor may be committed to a secure youth treatment facility if his or her most recent adjudicated offense was one of the offenses listed in section 707, that offense was committed when he or she was 14 years of age or older and the court makes a finding on the record that a less restrictive, alternative disposition is unsuitable. (§ 875, subd. (a).) In making this finding, the court must consider: "(A) The severity of the offense or offenses for which the ward has been most recently adjudicated, including the ward's role in the offense, the ward's behavior, and harm done to victims. [¶] (B) The ward's previous delinquent history, including the adequacy and success of previous attempts by the juvenile court to rehabilitate the ward. [¶] (C) Whether the programming, treatment, and education offered and provided in a secure youth treatment facility is appropriate to meet the treatment and security needs of the ward. [¶] (D) Whether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition that is available to the court. [¶] (E) The ward's age, developmental maturity, mental and emotional health, sexual orientation, gender identity and expression, and any disabilities or special needs affecting the safety or suitability of committing the ward to a term of confinement in a secure youth treatment facility." (§ 875, subd. (a)(3).)
D. Analysis
Tony argues the juvenile court abused its discretion in committing him to RISE because the program was "nonoperational," its services only projected to begin at some point in the future. Focusing on his young age, lack of prior criminal conduct and troubled childhood and home life, he suggests he was only following the lead of his older co-responsibles and did not need the lengthy commitment that he sees as the primary difference between RISE and the much shorter Challenge Program. He argues that the programming offered at Challenge was similar, RISE was using the same staff as Challenge and commitment to Challenge would sufficiently address his rehabilitative needs.
Tony relies on the reporters' transcripts of the May 5, 2022 30-day postdisposition hearing and October 26, 2022, six-month review hearing to argue that he was simply being "warehous[ed]" and his progress showed that Challenge was sufficient for his needs and the RISE commitment was erroneous. Specifically, he points to the court's acknowledgment at the May 5 hearing that the services he was receiving had not changed in the month since his commitment to RISE and, at the six-month review hearing, that "individualized services are just getting started in the Court's view." Evidence presented to the court about Tony's programming and circumstances subsequent to disposition cannot be the basis of reviewing the court's exercise of discretion at disposition. Such evidence will be reviewed in the context of Tony's currently pending appeal from the denial, at the sixmonth review hearing, of his motion to reduce the baseline term of confinement at RISE.
Contrary to Tony's characterization, the evidence before the juvenile court established that RISE was not "nonoperational." The program was just getting started and had only one youth currently committed to it, as a result of which the program did not yet have its own dedicated housing unit or group programs. Nevertheless, the minor currently committed to RISE was receiving the program's services "[f]or the most part" and was receiving one-on-one CBT interventions. The fact that RISE did not have a separate housing unit and was currently utilizing staff already employed at the facility does not mean program services were not being delivered; separate housing and a dedicated staff are not requirements for a successful program.
Nor does the fact that not all planned components of RISE were operational mean the programming was no different from Challenge. According to the RISE supervisor, if a given program (e.g., "Thinking for a Change," "Reasoning and Rehabilitation") was provided in Challenge or the general program as well as in RISE, it would be provided by the same individual in each. But the specific programming for a minor would depend on the results of various assessments conducted at the beginning of the program. These assessments include identification of "clinical barriers" such as substance abuse or mental health instability, identification of "strengths, internal and external factors or assets [minors] can use to have more positive outcomes," and determination of which juvenile correctional counselor would be the "best fit" for the minor. The assessments are used to develop a case plan to address "high-risk needs" with programs and services to lower the likelihood of recidivism. Unlike Challenge, the treatment team at RISE includes a mental health clinician, a social services worker and a mentor coach. In addition to high school classes and the opportunity to get a high school diploma, RISE would provide for high school graduates to take college classes through Solano Community College and a "trades program" had been created, although its opening had been delayed by the COVID pandemic. Apprenticeships or "partnerships with jobs and job skills" would provide job experience, and RISE planned to continue providing support after a minor returns to the community.
Tony argues that the primary difference between RISE and Challenge is the significantly longer length of RISE. As just described, the record indicates that length is only one of the differences. And the length of the program is an important element. The probation department recommended RISE because it did not believe Challenge offered "an adequate dosage, in both timing and scope, of services and programming" in light of the offenses Tony committed and his treatment needs. The juvenile court, explaining that it had to determine "the most appropriate placements for Tony, in light of his present circumstances, to rehabilitate him and protect the community going forward . . . and also have consequences that are appropriate, in light of the magnitude of the offenses. [¶] The [worst] thing I could do for anybody's sake is to provide inadequate treatment and therapy to Tony and have him return to the community, before he is ready with the best tools going forward."
The juvenile court expressly acknowledged defense counsel's arguments based on Tony's age and the potential negative consequences of a long commitment period but stated that even before the probation department changed its recommendation, it "didn't seem to the Court" that Challenge would be the "most responsive and appropriate programming for this particular youth so he can have all the benefits and the community is kept [as] safe as possible." The court explained that it had "balanced the high-risk needs of the minor . . . in conjunction with the serious, violent behavior with the programs available" and concluded Challenge was not appropriate "in terms of timing and what could be offered," "especially since an individualized program would be better tailored for Tony."
Tony committed extremely serious, violent offenses that left one victim paralyzed and another seriously injured and could easily have resulted in death, and he did so within about two weeks of another offense involving a firearm. He was assessed as being at high risk for re-offense. It was well within the juvenile court's discretion to determine that a program longer than Challenge was needed and that a more individualized program was appropriate, especially given Tony's young age.
The record reflects that at the time of the disposition hearing, Tony had been doing well at juvenile hall with respect to school participation and overall behavior, which the probation officer testified suggested his prospects for rehabilitation and reform were good. Tony sees this as demonstrating the Challenge Program was sufficient for his needs and commitment to RISE unnecessary. We agree that Tony's demonstrated positive behavior is commendable and an excellent sign for his rehabilitation. But that does not change the seriousness of his offenses or his need for intensive intervention. There is no rule that a secure youth treatment facility placement cannot be ordered unless less restrictive placements have been attempted. (See In re Nicole H., supra, 244 Cal.App.4th at p. 1159 [discussing point with respect to DJJ commitment].) Section 875 requires the court to make a finding on the record "that a less restrictive, alternative disposition for the ward is unsuitable" (§ 875, subd. (a)(3)) and the court here did so. The juvenile court's decision is supported by the evidence and we cannot find an abuse of discretion.
II.
The Enhancements Were Legally Valid.
A. The Firearm Use Enhancements
The amended petition alleged in connection with both counts that "pursuant to Penal Code section 12022.5(a)(1)" Tony "personally used a handgun, a firearm," and Tony pleaded "no contest" when asked for his plea to the enhancement alleged in that language. But Penal Code section 12022.5 does not have a subdivision (a)(1); personal use of a firearm in the commission of a felony or attempted felony is a violation of Penal Code section 12022.5, subdivision (a). Tony argues the enhancements must be vacated because there is no "Penal Code section 12022.5(a)(1)" and an admission to a nonexistent offense is a legal nullity (People v. Wallace (2003) 109 Cal.App.4th 1699, 1704 [defendant pleaded no contest to violation of statute that is a penalty provision, not a substantive offense]).
We disagree. Although the petition incorrectly cited "Penal Code section 12022.5(a)(1)" and the juvenile court, presumably reading from the petition, recited this language, the petition and court both described the alleged violation as "personal use of a firearm." Defense counsel told the court Tony was pleading to a ".5, personal use of a firearm" and "12022.5" enhancement. The erroneous references to section "12022.5(a)(1)" did not prejudice Tony's substantial rights.
The minute order also lists the enhancement as "PC 12022.5(a)(1)."
Tony relies on cases in which the offense described in the charging document was not a crime. In Wallace, supra, 109 Cal.App.4th at p. 1701, the defendant pleaded no contest to violating Penal Code section 422.7, which "elevates a crime that would otherwise be punishable as a misdemeanor to a felony" in specified circumstances. Because the statute does not create a substantive offense, the defendant could not be convicted of violating it. (Wallace, at p. 1704.) In People v. Soriano (1992) 4 Cal.App.4th 781, 783, 784, the defendant was charged with violating Penal Code section 115 by attempting to file" 'a forged instrument, to wit, a death certificate'" but, "as a matter of law, . . . a death certificate[] is not an instrument within the meaning of section 115." In both of these cases, the defendant was charged with crimes that do not exist.
In the present case, Tony was charged with an enhancement that does exist-personal use of a firearm in the commission of a felony-but the petition mistakenly cited Penal section 12022.5, subdivision (a)(1), instead of Penal Code section 12022.5, subdivision (a)." '[T]he specific allegations of the accusatory pleading, rather than the statutory definitions of offenses charged, constitute the measuring unit for determining what offenses are included in a charge.'" (People v. Thomas (1987) 43 Cal.3d 818, 826.) "[A] valid accusatory pleading need not specify by number the statute under which the accused is being charged" and" 'even a reference to the wrong statute has been viewed of no consequence . . . [citations].' [Citation.]" (Ibid.) "Moreover, '[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.' ([Pen. Code,] § 960.)" (Ibid.) Where a defendant is" 'fully apprised of the offense of which he [is] being tried, . . . [t]he mistake in the number of the section in unimportant'" and the defect is" 'one of artificiality rather than substance.'" (Id. at pp. 826-827.)
Here, there is no question Tony knew he was being charged with personal use of a firearm. His attorney described the enhancements Tony was pleading to as a ".5, personal use of a firearm" and a "12022.5." The court asked Tony what he was pleading to the enhancements for "personal use of a firearm." The designation "12022.5(a)(1)" in the amended petition was obviously an inadvertent error. Defense counsel did not see the amended petition and apparently did not notice the mistake when the court referred to "12022.5(a)(1)," but the repeated recitation that the enhancement was for "personal use of a firearm" makes clear that no one was misled about what allegation Tony was pleading to.
B. The Great Bodily Injury Enhancement
Tony's argument that the Penal Code section 12022.7, subdivision (c), enhancement should be vacated is similarly unavailing. The amended petition alleged an enhancement for personal infliction of great bodily injury causing coma and paralysis under Penal Code section 12022.7, subdivision (b), as to count 1 and, as to count 2, an enhancement for personal infliction of great bodily injury on an elderly victim under Penal Code section 12022.7, subdivision (c). The waiver of rights form, however, indicated that Tony was pleading no contest to "12022.7(b)" as to both counts, and when defense counsel told the court what offenses Tony was pleading to, he referred to both great bodily injury enhancements as "12022.7(b)." The court immediately pointed out that counsel "said .7(b), but the allegation is .7(c) on Count 2, and . . . point (b) on Count 1," and the prosecutor responded, "And that's the way it should be." Defense counsel made no comment. In asking Tony for his plea, the court described the enhancement in count 2 as "Penal Code section 12022.7(c), great bodily injury on an elderly victim, that being Swarn Singh."
Emphasizing that due process requires written notice of the "specific charge or factual allegations to be considered at the hearing" sufficiently in advance of court proceedings to allow a reasonable opportunity to prepare (In re Gault (1967) 387 U.S. 1, 33), Tony argues he did not have sufficient notice that he would be asked to admit an enhancement under Penal Code section 12022.7, subdivision (c), or what such an allegation entailed. He maintains that because defense counsel had not seen the amended petition, Penal Code section 12022.7, subdivision (c), was not included on the plea form, and the amended petition was not read or explained at the hearing as required under rule 5.778, subdivision (a), of the California Rules of Court,he could not knowingly waive his rights as to the subdivision (c) enhancement and the court could not find he understood the nature of the charged conduct.
Further references to rules will be to the California Rules of Court.
Tony's argument is not convincing. According to Tony, "it appears" that he "believed he would be entering a no contest plea to the 12022.7(b) allegation as noted on the change of plea form" because his attorney did not respond when the court noted that counsel had referred to ".7(b)" when ".7(c)" was alleged on count 2 and "there is no indication that [counsel] communicated the change in information." In our view, the most obvious inference to be drawn from defense counsel's lack of comment when the court and prosecutor clarified that the enhancement for count 2 was under subdivision (c) rather than (b) of section 12022.7 is that defense counsel agreed; had counsel believed the clarification was erroneous, it would have been incumbent on him to say so. Tony had notice from the outset of the case that he was alleged to have personally inflicted great bodily injury on an elderly victim: Count 2 of the original petition included this enhancement allegation and it was not changed in the amended petition. There is no reason to suspect Tony believed he was being asked to plead to a different enhancement on count 2, particularly as the court correctly described the enhancement as infliction of great bodily injury on an elderly victim.
We recognize that the waiver of rights form specifies only subdivision (b) of section 12022.7 in the handwritten specification of the charges Tony was pleading to. The record suggests no reason to believe this was anything other than an inadvertent error that does not undermine the validity of Tony's plea. From the outset of the case, the great bodily injury enhancements alleged as to counts 1 and 2 were different, the former based on the particular injuries sustained by Soomal and the latter based on Singh's age. Before the court took Tony's pleas, it told him that it had to make sure he understood everything and Tony demonstrated he knew he could ask questions by at one point asking the court to "say it in different words" and saying, "I'm not understanding." When the court asked for Tony's pleas, its description of the great bodily injury enhancement connected to each of the counts made clear their differences, the enhancement on count 1 was for "great bodily injury, of brain injury, slash, paralysis pursuant to Penal Code section 12022.7(b), in regards to Parminder Soomal" and the enhancement for count 2 was "Penal Code section 12022.7(c), great bodily injury on an elderly victim, that being Swarn Singh." Tony asked no questions and expressed no hesitation in pleading no contest to the enhancements. The record offers no reason to suspect he did not understand that, in count 2, he was pleading no contest to infliction of great bodily injury on an elderly victim.
III.
Tony's Baseline Term of Confinement, Maximum Term of Confinement and Predisposition Custody Credits Must Be Corrected.
A. Baseline Term of Confinement
Pursuant to section 875, when committing a ward to a secure youth treatment facility, the court must set a "baseline term of confinement for the ward that is based on the most serious recent offense for which the ward has been adjudicated. The baseline term of confinement shall represent the time in custody necessary to meet the developmental and treatment needs of the ward and to prepare the ward for discharge to a period of probation supervision in the community." (§ 875, subd. (b)(1).) Section 875 provides for the baseline term to be determined "according to offense-based classifications that are approved by the Judicial Council" and directs the Judicial Council to adopt "a matrix of offense-based classifications" for this purpose. (§ 875, subds. (b)(1), (h).) Pending adoption of the classifications, section 875, subdivision (b)(1), directs the court to "set a baseline term of confinement for the ward utilizing the discharge consideration date guidelines applied by the Department of Corrections and Rehabilitation, Division of Juvenile Justice prior to its closure and as set forth in Sections 30807 to 30813, inclusive, of Title 9 of the California Code of Regulations." (§ 875, subd. (b) [now subd. (b)(1)].)
The juvenile court here did not state a baseline term. The parties agree that Tony's baseline term, pursuant to the specified regulations, is four years (§ 875, subd. (b)(1); Cal. Code Regs., tit. 9, §§ 30808, subd. (a)(12), 30807, subd. (a)(2)) and that the disposition order should so state.
Recently, however, the Judicial Council adopted the classifications required by section 875 and, effective July 1, 2023, rule 5.806(d), sets forth a "secure youth treatment facility offense-based classification matrix" pursuant to which the term for attempted murder is three to five years. Tony's reply brief urges us to remand for consideration of a lower baseline term, arguing that adoption of the new rule is a retroactive ameliorative change in law. (In re Estrada (1965) 63 Cal.2d 740.)
Tony's position seems reasonable at first glance, since rule 5.806(d) allows for a lower baseline term than the term required under the regulations the trial court was required to apply at the disposition hearing. But the issue does not present the usual Estrada situation. Estrada recognized that" '[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.' (Id. at pp. 744-745.)" (In re Pedro T. (1994) 8 Cal.4th 1041, 1045.) Accordingly, "[t]he Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. (See Estrada, supra, 63 Cal.2d at p. 745.)" (People v. Conley (2016) 63 Cal.4th 646, 657.) Here, however, the change in the baseline term resulted not from a statutory amendment but from the implementation of a statutory directive.
Section 875, as it existed at the time of disposition as well as now, allowed the court, "pending the adoption of Judicial Council guidelines, [to] modify the initial baseline term with a deviation of plus or minus six months." In Tony's case, the court could have chosen to impose a base term ranging from three and a half years to four and a half years.
Section 875 directed the Judicial Council to develop and adopt offense-based classifications for juvenile courts to apply in determining the baseline term of confinement and directed courts, in the meantime, to utilize existing regulations specifying the offense-based "discharge consideration date guidelines" used by the Division of Juvenile Justice (DJJ). (§ 875, subd. (b)(1).) The Legislature directed that the new classifications be based on consideration of information bearing on appropriate sentencing from a wide range of sources: "In developing the matrix, the Judicial Council shall be advised by a working group of stakeholders, which shall include representatives from prosecution, defense, probation, behavioral health, youth service providers, youth formerly incarcerated in the Division of Juvenile Justice, and youth advocacy and other stakeholders and organizations having relevant expertise or information on dispositions and sentencing of youth in the juvenile justice system. In the development process, the Judicial Council shall also examine and take into account youth sentencing and length-of-stay guidelines or practices adopted by other states or recommended by organizations, academic institutions, or individuals having expertise or having conducted relevant research on dispositions and sentencing of youth in the juvenile justice system." (§ 875, subd. (h)(1).)
Given this mandate to examine information from a wide variety of sources in determining the matrix for baseline terms at secure youth treatment facilities, it is evident that the Legislature did not expect the Judicial Council's classifications to be identical to the DJJ's. Yet, while section 875, subdivision (h)(2), expressly requires courts to cease using the DJJ discharge consideration date guidelines "that were applied on an interim basis" upon final adoption of the Judicial Council's matrix, the statute does not provide for adjustment of baseline terms set pursuant to the DJJ guidelines during the interim period. Since the Legislature did not require that the new classifications be less severe than in the existing regulations, this is not a situation in which it can be presumed that the Legislature" 'determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.'" (In re Pedro T., supra, 8 Cal.4th at p. 1045, quoting Estrada, supra, 63 Cal.2d at pp. 744-745.)
Tony also argues his baseline term must be reduced by his precommitment credits. The People dispute this point, arguing the credits must be applied to the maximum term of confinement, not the baseline term. As will be explained in section III.C., post, we agree with the People.
Although the juvenile court did not expressly impose a baseline term at the disposition hearing, it is clear the court intended a four-year baseline term. The probation report noted the baseline term for a commitment to RISE would be four years and the probation officer so testified. In imposing the maximum term of confinement, the court emphasized it was not "confining him to 11 years. In fact, the target time is four years." The court's disposition order must be corrected to state the baseline term of four years.
B. Maximum Term of Confinement
Section 875 also requires the court to set a "maximum term of confinement." (§ 875, subd. (c).) The juvenile court stated at the disposition hearing that the "maximum period of confinement is through the age of 25" and the order following the hearing states the same. Tony urges that this language conflicts with the statutory requirement that a ward not be held "beyond 25 years of age" and must be corrected to state that the maximum term of confinement is "until" age 25. (§ 875, subd. (c)(1)(A).)
Apparently focusing on the first clause of the quoted statement, Tony states that the court's order "suggests that he could be held through end of the day on which he turns 25, and until he turns 25 years old and 1 day." This interpretation is confusing, as a person does not stop being age 25 at the end of the day he or she turns 25. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
"In common parlance, a person reaches a particular age on the anniversary of his or her birth and remains that age until reaching the next anniversary of his or her birth." (People v. Cornett, supra, 53 Cal.4th at p. 1265.) Accordingly, as the People point out, the statutory directive that a ward not be held "beyond 25 years of age" could be understood as meaning the ward can be held until the age of 26. Nevertheless, the People agree that section 875, subdivision (c)(1)(A), should be interpreted as meaning the ward can be held "until" age 25 because section 607, subdivision (c), permits the juvenile court to retain jurisdiction over a person in Tony's circumstances only "until that person attains 25 years of age." We also agree.
Although other remarks at the hearing indicate the court intended the maximum term of confinement to be "to age 25," its phrasing in stating the order as "through age 25" could be interpreted as meaning until age 26. The disposition order must be clarified to state that the maximum period of confinement is "until" rather than "through" age 25.
In reference to a place where the form order calls for specification of the "maximum period of physical confinement at RISE," the court noted "[h]e can go to age 25" and said it would "indicate 11 years because it does fill in the gap for math to age 25." Subsequently, defense counsel told the court that she and the prosecutor agreed the maximum term was "until 25" and the court said, "Okay."
Although the parties both address the language of section 875, subdivision (c)(1)(A), that subdivision did not exist at the time of the disposition hearing; it was adopted by an amendment that became effective shortly after the disposition hearing, on June 30, 2022. (Stats. 2022, ch. 58, § 41.) At the time of the disposition hearing, subdivision (c)(1) of section 875 stated that the maximum period of confinement for a ward in Tony's circumstances "shall not exceed the ward attaining 25 years of age." (Stats. 2021, ch. 18, § 12.) That language makes it clear that that the maximum period of confinement must be "until" rather than "through" age 25.
C. Predisposition Credit
The court awarded Tony 148 days of predisposition custody credit. The parties agree that the correct calculation is 149 days. They disagree, however, as to whether the credits apply against Tony's baseline term or against his maximum term of confinement. The People maintain the issue is resolved by section 875 itself, which was amended in 2022 to add subdivision (c)(1)(C): "Precommitment credits for time served must be applied against the maximum term of confinement as set pursuant to this subdivision." (Stats. 2022, ch. 58, § 41.) Tony argues this amendment does not apply because its effective date, June 30, 2022, was subsequent to the April 5, 2022 disposition hearing. In Tony's view, retroactive application of this amendment would violate the constitutional prohibition against ex post facto laws by extending his period of confinement. (See In re Dewing (1977) 19 Cal.3d 54, 57-58 [change in law with effect of delaying discharge from Youth Authority].)
Tony's argument depends on the validity of his assertion that the 2022 amendment changed the law. As we will explain, caselaw establishes that when there is a difference between the actual period of confinement ordered and some longer theoretical period, custody credits must be applied against the former. (People v. Riolo (1983) 33 Cal.3d 223, 226-227 (Riolo); In re Ernesto L. (2022) 81 Cal.App.5th 31, 41 (Ernesto L.).) Tony assumes that the baseline term of confinement imposed pursuant to section 875 is the actual term for this purpose and, therefore, "long-standing authority" would have demanded application of the credits against the baseline term of confinement. We disagree.
Adult defendants have a statutory right to presentence custody credit. (Pen. Code, § 2900.5.) Juveniles' right to precommitment credit derives from the requirement of section 726 that a juvenile" 'not be held in physical confinement for a period in excess of the [middle] term of imprisonment which could be imposed upon an adult convicted' of the same offense." (In re Eric J. (1979) 25 Cal.3d 522, 536; In re Antwon R. (2001) 87 Cal.App.4th 348, 352.) Unlike adult determinate sentences, juvenile commitments are generally not for a set amount of time but rather are limited to a stated maximum. (§§ 726, 731.) Accordingly, caselaw has long established that "a minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing." (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067; In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231-1232.)
The "baseline term of confinement" concept did not exist prior to the enactment of section 875 as part of the realignment of wards from the now-closed DJJ to county-based custody. (Legis. Counsel's Dig., Sen. Bill No. 92 (2021-2022 Reg. Sess.) Stats. 2021, ch. 18, § 12.) Previously, when a ward was committed to DJJ, in addition to the maximum term of confinement required by section 726 for all wards removed from a parent or guardian's custody, the court was required to "set a maximum term based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation." (§ 731, subd. (b).) Section 731 thus "permit[ted] the juvenile court in its discretion to impose either the equivalent of the 'maximum period of imprisonment that could be imposed upon an adult for the offense or offenses' committed by the juvenile (§ 731, subd. (c)) or some lesser period based on the 'facts and circumstances of the matter or matters that brought or continued' the juvenile under the court's jurisdiction (ibid.)." (In re Julian R. (2009) 47 Cal.4th 487, 498.)
The "and as deemed appropriate to achieve rehabilitation" language was added to section 731 effective January 1, 2019. (Stats. 2018, ch. 766, § 1.) The "based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court" language had been part of the statute since 2004. (Stats. 2003, ch. 4, § 1.)
Ernesto L., supra, 81 Cal.App.5th at page 41, one of the authorities Tony relies on, held that where the juvenile court specified that the minor's" 'maximum period of imprisonment' (i.e., his maximum exposure term) was 14 years, 8 months," and his" 'maximum period of confinement' (i.e., his maximum custodial term) under section 731 was three years," precommitment credits must be applied to the three-year "actual maximum custodial term the court imposes, not the theoretical maximum exposure term." (Id. at pp. 37-39, 41.)
Like section 731, section 875 requires the court to "set a maximum term of confinement for the ward based upon the facts and circumstances" of the offense which may be less than the absolute maximum based on either the middle term that could be imposed on an adult for the same offense or the statutory age limit. (§ 875, subd. (c)(1).) Unlike the situation that existed in Ernesto L. under section 731, however, section 875 also requires the court to set a baseline term representing "the time in custody necessary to meet the developmental and treatment needs of the ward and to prepare the ward for discharge." (§ 875, subd. (b)(1).) As Ernesto L. illustrates, if the juvenile court, under section 731, sets a maximum term based on the facts and circumstances of the offense that is lower than the absolute maximum defined by the sentence an adult would receive or the minor reaching the applicable age (which we will refer to as the "absolute maximum"), the absolute maximum becomes "theoretical" and the discretionary court-set maximum is the "actual" maximum custodial term. (Ernesto L., supra, 81 Cal.App.5th at p. 41.) This remains true under section 875. The question is how the baseline term factors into the analysis.
Tony sees the baseline term as the "actual physical term imposed," as contrasted with the "maximum exposure." The case he cites in this regard, Riolo, supra, 33 Cal.3d at pp. 226-227, held that an adult defendant's custody credits must be deducted from the determinate term actually imposed by the court rather than the "hypothetical term" the court might have imposed under different circumstances. The "hypothetical" term in Riolo is analytically equivalent to the "theoretical" absolute maximum term discussed in Ernesto, but it does not necessarily follow that the baseline term is the "actual physical term" from which precommitment credits must be deducted.
The defendant in Riolo was sentenced for a burglary committed while he was on probation for two separate prior convictions; probation was revoked and the trial court imposed one-third middle terms on the priors, concurrent with each other but consecutive to the sentence on the new offense. (Riolo, supra, 33 Cal.3d at p. 225.) The People argued that the defendant's custody credits should be deducted from the "hypothetical term that would have been imposed if the sentence had not been consecutive to another prison term . . . rather than from the sentence actually imposed." (Id. at p. 226.) Riolo rejected this argument and held the defendant was entitled to have his custody credits deducted from the "eight-month term imposed by the court, not the two-year term that could have been imposed if there had been no principal term for burglary." (Id. at p. 227.)
The baseline term is not equivalent to a determinate sentence. The baseline term is meant to "represent the time in custody necessary to meet the developmental and treatment needs of the ward and to prepare the ward for discharge to a period of probation supervision in the community." (§ 875, subd. (b)(1).) It is subject to change at regular intervals, depending on the ward's progress: The court is required to hold a "progress review hearing for the ward not less frequently than once every six months" and, at each hearing, the court must "evaluate the ward's progress in relation to the rehabilitation plan" and "determine whether the baseline term of confinement is to be modified." (§ 875, subd. (e)(1)A).) The court, at each hearing, has discretion to order that the ward "remain in custody for the remainder of the baseline term" or that the baseline term be reduced by a period "not to exceed six months for each review hearing." (Ibid.) At the conclusion of the baseline confinement term, the court must discharge the ward to a period of probation supervision in the community unless the court finds that the ward "constitutes a substantial risk of imminent harm to others in the community if released from custody." (§ 875, subd. (e)(3).) If the court so finds, it may order that the ward remain in custody for "up to one additional year of confinement, subject to the review hearing and probation discharge hearing provisions of this subdivision and subject to the maximum confinement provisions of subdivision (c)." (§ 875, subd. (e)(3).)
It is evident that the baseline term is a modifiable period intended to reflect the minor's treatment needs and rehabilitative progress on an ongoing basis. Section 875 calls for the court to determine the initial baseline term based on the ward's most serious offense and time deemed necessary for treatment and rehabilitation, and then to regularly evaluate the ward's progress and shorten the baseline term if warranted by that progress. Applying precommitment custody credits-which have nothing to do with a ward's rehabilitative progress-to the baseline confinement term would upset the legislatively crafted process of tailoring the baseline confinement term of confinement to the ward's "developmental and treatment needs" and preparation for discharge from custody.
We conclude that Tony's precommitment credits must be applied to the maximum period of confinement set by the court pursuant to section 875, subdivision (c)(1), "based upon the facts and circumstances" of the offenses. (Ernesto L., supra, 81 Cal.5th at p. 41.)
At the time of the disposition hearing in this case, section 875 did not make clear that the court was to set a maximum term under section 875, subdivision (c)(1), that might be shorter than the absolute maximum term defined by the sentence an adult would receive or the ward's age pursuant to sections 726 and 875, subdivision (c)(1)(A)&(B). At that time, section 875, subdivision (c), simply required the court to "set a maximum term of confinement for the ward in a secure youth treatment facility," subject to the limitations based on age and adult sentence. (Stats. 2021, ch. 18, § 12.) The amendment specifying that the court must set a maximum term of confinement "based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation" became effective on June 30, 2022 (Stats. 2022, ch. 58, § 41), almost three months after the disposition hearing. For this reason, the juvenile court was likely unaware that it had discretion to set a maximum term of confinement shorter than the absolute maximum.
The amendment adopted the language of section 731, which, as we have said, permitted trial courts to set a maximum term of confinement for wards committed to DJJ that could be shorter than the absolute maximum set by section 726. The juvenile court cannot be expected to have inferred that it had the same authority with respect to commitments under section 875 as it had under section 731. In fact, the record reflects that the court had some uncertainty about whether the procedure under section 875 was the same as it had been for DJJ commitments, no one referred to a maximum term based on the facts and circumstances of the offenses, the People recommended that the term should run to Tony's 25th birthday, and defense counsel subsequently told the court that she and the People agreed the maximum term "is until 25."
Tony is entitled to an exercise of the juvenile court's discretion in this regard, as the amendment is ameliorative in that it offers the possibility of a reduced maximum term of confinement. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308; People v. Francis (1969) 71 Cal.2d 66, 75-76.) Accordingly, we will remand for the juvenile court to reconsider and set the maximum term of confinement pursuant to section 875, subdivision (c)(1).
IV.
The Challenged Probation Conditions Do Not Require Modification.
A. Tony Forfeited His Constitutional Challenges to the Probation Condition Requiring Him to Stay Away from El Sobrante.
The trial court ordered Tony to "stay away from El Sobrante, CA, unless with a responsible adult." Tony argues this condition is unconstitutionally vague and overbroad. Although he did not object to the condition at the disposition hearing, he argues the issue was not forfeited because it is based on undisputed facts. (In re Sheena K. (2007) 40 Cal.4th 875, 887-888 [challenge to probation condition as vague and overbroad not forfeited where based on undisputed facts].)
Sheena K. held that that the forfeiture rule does not apply to "an appellate claim-amounting to a 'facial challenge'-that phrasing or language of a probation condition is unconstitutionally vague and overbroad," which "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts." (Sheena K., supra, 40 Cal.4th at p. 885.) The claim in that case, that a probation condition requiring the minor not to" 'associate with anyone disapproved of by probation'" was unconstitutionally vague and overbroad because it lacked a knowledge requirement, "present[ed] an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition." (Id. at pp. 880, 885, 888.) The Sheena K. court cautioned that its holding did not apply to constitutional challenges that" 'do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." (People v. Welch [(1993)] 5 Cal.4th [228,] 235.)'" (Sheena K., at p. 889, quoting In re Justin S. (2001) 93 Cal.App.4th 811, 815, fn. 2.)
Tony's appellate arguments make clear this case does not come within the exception to the forfeiture rule established in Sheena K. Tony contends the probation condition requiring him to stay away from El Sobrante is vague because it does not specify the boundaries of El Sobrante or tell him how far away he must stay. He argues that El Sobrante is an "unincorporated census-designated place in Contra Costa County with a total area of 2.8 square miles," and that a census-designated place" 'is a concentration of population defined by the United States Census Bureau for statistical purposes only'" that "does not have permanent boundaries like a city or town" and whose boundaries" 'may not always correspond with the local understanding of the area or community with the same name.'" He also suggests that "El Sobrante" can have various meanings, including the "greater El Sobrante Valley" or" 'Rancho El Sobrante, the original land grant for the area.'" These arguments require factual determinations as to what geographic area is encompassed by the probation condition and the legal and common understanding of its boundaries.
Tony's overbreadth challenge also involves factual questions. Tony argues the probation condition is overbroad because it does not contain any standards to guide law enforcement and is not narrowly tailored to impinge as little as possible on his rights to association and travel. He argues the condition includes "potentially thousands of residences, community services, and businesses that are completely unrelated" to his offense and prevents him from traveling through "a sizeable area that is not tailored to his circumstances." Tony's complaint that the juvenile court failed to consider "any individual circumstances in order to narrowly tailor the 'stay away' condition" points to the fact-based nature of his challenge. Whether the condition is overbroad potentially depends on factors such as the actual size of the prohibited area, the victims' need for protection and Tony's need to be in the area without adult supervision. In short, the relevant circumstances and weighing of interests cannot be determined as a matter of law. Accordingly, Tony's failure to challenge the probation condition below constitutes a forfeiture of his right to raise it on appeal. (People v. Kendrick (2014) 226 Cal.App.4th 769, 778.)
B. The Stay-Away and No-Contact Orders Are Conditions of Probation.
In addition to the order to stay away from El Sobrante, the juvenile court ordered Tony to have no contact with the victims and his coresponsibles. The court did not state an expiration date for these orders. Tony contends that to the extent they are stand-alone orders rather than conditions of probation, an expiration date is required. (§ 213.5, subds. (d), (f).)
The record makes clear that these orders were imposed as conditions of probation. They were among the orders the juvenile court read aloud at the hearing after stating it was granting probation "under the terms and conditions I'm going to get to at page 3" and they are listed on page 3 of the disposition order as item 15 on the list of "Terms and Conditions of Probation." As conditions of probation, the stay-away and no-contact orders will necessarily expire upon termination of probation.
C. The Juvenile Court Did Not Impose a Probation Fine.
Tony argues that the juvenile court improperly ordered him to pay a "minimum probation fine of $100." He points out that the probation department did not recommend imposing such a fine and the court cited no statutory authority for it. The People maintain that the court simply misspoke and meant to refer to the minimum restitution fine of $100 that it was required to, and did, impose pursuant to sections 730.6, subdivisions (a)(2)(A) and (b)(1).
The disposition orders entered on April 5, 2022, include orders that Tony pay restitution "as determined by the Probation Officer per [section 730.6] W&I" and pay a restitution fine of $100 pursuant to section 730.6. Section 730.6, subdivision (b)(1), requires the juvenile court to impose a restitution fine that "shall not be less than one hundred dollars ($100) and not more than one thousand dollars ($1,000)" when a minor is declared a ward due to commission of one or more felony offenses. No other fines are included in the orders.
At the disposition hearing, the court orally stated its orders, reading from the probation recommendations that, with slight modifications, became the disposition order. The court stated, "[h]e must pay [a] restitution fine of $100, in addition to any ordered restitution" and noted that he was entitled to a hearing on the amount of restitution claimed. After a discussion of other matters, the court stated, "As I already advised, you are entitled to a restitution hearing for the amount of any claimed restitution and regarding your ability to pay. You must pay restitution as determined by probation. You must pay a minimum probation fine of $100. You should not knowingly use or possess any alcohol, marijuana, synthetic cannabinoids, or illegal drugs ...." The court's reference to the condition prohibiting knowing use or possession of enumerated substances confirms that it was reading the conditions in the order stated on the written form orders, as that was the condition immediately following the restitution conditions.
The court initially referred to the mandatory restitution fine and no probation fine was recommended or appears on the written disposition order. The record as a whole thus demonstrates that the court intended to impose the minimum restitution fine notwithstanding its apparent misstatement at one point in orally stating its orders. As the written disposition order properly reflects only the $100 restitution fine, no modification of the order is necessary in this regard.
Tony argues that the Legislature, in Assembly Bill No. 1869 (20192020 Reg. Sess.) (Stats. 2020, ch. 92, § 62), abrogated the authority to impose and collect administrative fees including probation fees. (People v. Rowland (2022) 82 Cal.App.5th 1099, 1124; Pen. Code, § 1465.9.) He does not indicate what statute previously authorized juvenile probation fines and was abrogated by Assembly Bill No. 1869. The point is of no moment, however, given our conclusion that the court did not intend to, and did not, impose a probation fine.
DISPOSITION
The disposition order of April 5, 2022, shall be corrected to state on page 1 that the maximum period of confinement is "until" age 25.
The matter is remanded for reconsideration of the "maximum period of physical confinement at RISE," indicated on page 2 of the April 5, 2022 order (item 7), pursuant to section 875, subdivision (c)(1).
We concur. RICHMAN, J., MARKMAN, J. [*]
[*]Judge of the Alameda Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.