Opinion
A099585.
7-15-2003
In re WARNER B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. WARNER B., Defendant and Appellant.
On the evening of May 6, 2002, Michelle Lane parked her brothers maroon Toyota Camry outside her home in Oakland. Later that night, Lane discovered the car was missing, and her mother reported the theft to the police. On May 8, 2002, Oakland Police Officer
Sigfred Neri saw the missing Toyota Camry driving erratically. After the car failed to stop at a stop sign, Neri activated the lights on his marked patrol car to initiate a traffic stop. As he did, three young males jumped out of the Toyota (which continued moving and eventually collided with a parked car). Neri noticed the boy who exited from the drivers door was wearing an orange sweatshirt. He chased the boys and eventually detained the individual in the orange sweatshirt, whom Neri identified as Warner B. Warner could produce no drivers license or other identification. He admitted being in the vehicle but claimed he was not the driver.
Based on these events, on May 10, 2002 the district attorney filed a subsequent petition under Welfare and Institutions Code section 602 charging Warner with unlawful taking of a vehicle (Veh. Code, § 10851), driving without a valid license (Veh. Code, § 12500, subd. (a)), and resisting a police officer (Pen. Code, § 148, subd. (a)). Six months earlier, Warner had pleaded no contest to a misdemeanor charge of auto theft in another section 602 petition. He was adjudged a ward of the juvenile court and placed on probation. In addition to the subsequent section 602 petition, the district attorney filed a petition under section 777, subdivision (a) based on the events of May 2002, seeking to modify the previous order granting probation because Warner "had committed a crime as alleged in the subsequent petition. . . ." After a contested jurisdictional hearing, the juvenile court found all charges alleged in the section 602 petition true beyond a reasonable doubt and found the section 777 petition "true as alleged." Warner was continued as a ward of the court, continued on probation, and ordered to pay restitution of $ 100.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
DISCUSSION
I. Section 777 Petition Based on Criminal Conduct
Warners primary claim on appeal is that the juvenile court erred in sustaining a section 777 petition based solely on the criminal conduct that was alleged in a concurrent section 602 petition. We agree the order sustaining the section 777 petition cannot be sustained under these circumstances.
The Attorney General argues Warner waived this claim by failing to demur to the section 777 petition. However, we do not agree that the district attorneys filing of two petitions in this case was a mere "pleading defect." The juvenile court sustained the section 777 petition based entirely on evidence presented in connection with the section 602 petition. By failing to demur, Warner did not waive his right to challenge the sufficiency of evidence supporting the courts order on the section 777 petition. (People v. Rodriguez (1998) 17 Cal.4th 253, 262, 949 P.2d 31.) Moreover, while a demurrer to the section 777 petition may have been appropriate (because the only basis for modification alleged in the petition was that Warner had committed a crime), we would reach the merits of Warners argument in any event because he raises an ineffective assistance of counsel claim and no satisfactory explanation exists for counsels failure to challenge the duplicative petitions. (See People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal. Rptr. 732, 590 P.2d 859.)
In general, section 777 provides for the removal of a minor ward of the court or probationer to a more restrictive placement than that previously ordered based upon additional misconduct by the minor. (In re Marcus A. (2001) 91 Cal.App.4th 423, 426.) This statute was significantly changed in March 2000 with the passage of Proposition 21. Before its amendment by Proposition 21, section 777 required the filing of a supplemental petition and provided for modification of a previous disposition order based on proof beyond a reasonable doubt of additional misconduct by the minor that either constituted a crime or violated a condition of probation (but did not amount to a crime). (In re Arthur N. (1976) 16 Cal.3d 226, 235-241, 127 Cal. Rptr. 641, 545 P.2d 1345; In re Marcus A., supra, at p. 427.) Among the many changes effected by Proposition 21, amended section 777 eliminates the requirement of a supplemental petition (allowing an order to be made upon "notice"), allows the juvenile court to consider reliable hearsay, and changes the standard of proof for alleged misconduct to a preponderance of the evidence. ( § 777, subds. (a) & (c); In re Marcus A., supra, at p. 427.) Most relevant to the present appeal, the amended statute now applies only to violations of probation that do not amount to a crime. ( § 777, subd. (a)(2) [allowing order to be made upon notice by probation officer or prosecuting attorney "if the minor is a court ward or probationer under Section 602 in the original matter and the notice alleges a violation of a condition of probation not amounting to a crime"]; In re Marcus A., supra, at p. 427.)
In the Marcus A. case, a minor who had previously been declared a ward of the court pursuant to a sustained section 602 petition became the subject of proceedings initiated under section 777 based on allegations that the minor violated the dress code of his placement center and was found in possession of a cigarette. (In re Marcus A,supra, 91 Cal.App.4th at pp. 425-426.) The juvenile court rejected the dress code allegation but found true the allegation that the minor had possessed cigarettes. Over the minors objection that this conduct constituted a crime, and thus could not be raised in a section 777 proceeding, the juvenile court revoked probation and committed the minor to the California Youth Authority. (Id. at p. 426.) Division Two of the Fourth District Court of Appeal reversed, holding that proceedings to revoke probation and modify previous court orders may not be based on conduct amounting to a criminal offense. (Id. at pp. 427-428.) The error was prejudicial, the court concluded, because application of section 777, subdivision (c) had permitted the minor to be removed to a more restrictive placement based on criminal conduct proven only by a preponderance of the evidence, rather than beyond a reasonable doubt. (Ibid. )
The Supreme Court recently granted review in two cases addressing this issue-one following the holding in Marcus A. (In re Emiliano M. (2002) 99 Cal.App.4th 304, 310-311, review granted Jul. 31, 2002, S107904, argued May 29, 2003), and one disagreeing with Marcus A. and holding instead that section 777 may be used to impose a more restrictive placement based on arguably criminal conduct so long as no new criminal offense is alleged against the minor (In re Eddie M. (2002) 100 Cal.App.4th 1224, 1240-1242, review granted Oct. 23, 2002, S109902, argued May 29, 2003). The debate, essentially, concerns whether arguably criminal conduct by a juvenile previously made a ward of the court may be relied upon to obtain a more restrictive placement for the minor under section 777. Marcus A. concluded it may not; therefore, under Marcus A.s reasoning, the new crime must be alleged in a section 602 petition. Reading amended section 777 more expansively, the court in the Eddie M. case concluded misconduct that is arguably criminal may be admitted in section 777 proceedings so long as only probation violations (and not new crimes) are alleged. However, where the only allegation is that the probationer committed a crime and thus violated the "obey all laws" condition of probation, even the Eddie M. court agreed "a new petition under section 602, not notice of a section 777 hearing, must be used to seek a more restrictive placement. . . ." (In re Eddie M., supra, at p. 1242, fn. 17, review granted Oct. 23, 2002, argued May 29, 2003.)
We need not predict how the Supreme Court will resolve this debate because it is fairly clear the same criminal conduct cannot be used to support petitions under both sections 602 and 777. In the pre-Proposition 21 case In re Adrian R. (2000) 85 Cal.App.4th 448, 451, a minor who had been declared a ward pursuant to section 602 and placed on probation was found in possession of marijuana. The juvenile court sustained a second section 602 petition based on this activity and confined the minor in a camp community placement. (Id. at pp. 451-452.) On appeal, the minor claimed the proceedings under a new section 602 petition were improper, arguing that only a section 777 petition could be used to modify the courts prior placement orders. (Id. at p. 453.) The appellate court disagreed: "`[A] section 777 petition is not the exclusive method of initiating proceedings for a change or modification of commitment. [Citation.] The juvenile court may proceed under a supplemental section 602 petition and consider prior offenses to aggregate the maximum term under section 726 if it provides adequate notice of its intention to do so and gives the minor a meaningful opportunity to rebut any derogatory material within his or her prior record. (In re Edwardo L. (1989) 216 Cal. App. 3d 470, 478 .) "(In re Adrian R., supra, at p. 454.) Based on the state of the law before Proposition 21, the court concluded, "the law is now established that section 602 and section 777 provide alternative methods of accomplishing the same end. At its discretion, the prosecution may select either method to prosecute a new offense against a minor who is a section 602 ward of the court." (In re Adrian R., supra, at p. 456; see also In re Michael B. (1980) 28 Cal.3d 548, 553, 169 Cal. Rptr. 723, 620 P.2d 173 [filing of section 602 petitions, rather than section 777 petitions, to charge new offenses by section 602 wards "is not contrary to law"].)
Thus, before Proposition 21, a new criminal offense committed by a section 602 ward could be prosecuted by either a section 602 or a section 777 petition; these petitions were alternative methods. (In re Adrian R., supra, 85 Cal.App.4th at p. 456.) Now, under the amendments to section 777 enacted by Proposition 21, prosecution of a new criminal offense by a minor is permitted only pursuant to a section 602 petition. (§ 777, subd. (a)(2); In re Marcus A,supra, 91 Cal.App.4th at pp. 425-426.) Even the Eddie M. case, which disagreed with Marcus A.s "cramped construction" of the amended statute, concluded that new crimes committed by section 602 wards after the passage of Proposition 21 must be charged in section 602 petitions rather than section 777 petitions. (In re Eddie M., supra, 100 Cal.App.4th at pp. 1240-1242, 1244, review granted Oct. 23, 2002, argued May 29, 2003.)
The juvenile court erred in this case by sustaining petitions against Warner under both section 602 and section 777 based on the same underlying criminal offense. The error was clearly prejudicial, although no additional punishment was imposed, because it created an additional "black mark" on the juveniles record beyond that contemplated under the law. We therefore conclude the order sustaining the section 777 petition was erroneous.
II. Custody Credits
Warner was arrested on May 8, 2002 and detained in juvenile hall until he was released into his mothers custody on May 23, 2002. He is entitled to receive credit against the calculated maximum term of confinement for the 16 days spent in custody while charges were pending. (In re Eric J. (1979) 25 Cal.3d 522, 536.) The Attorney General agrees the courts minute order should be amended.
DISPOSITION
We concur: Corrigan, Acting P. J., and Pollak, J.