Opinion
F084797
05-02-2023
In re B.G., a Person Coming Under the Juvenile Court Law. v. B.G., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 21CEJ600296-1, Timothy A. Kams, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P. J., Pena, J. and Smith, J.
OPINION
THE COURT[*]
Minor B.G. appeals from a disposition order adjudging him a ward of the juvenile court and placing him on probation for 13 months. On appeal, he argues that the juvenile court erred in (1) calculating his maximum period of confinement by incorrectly applying Penal Code section 654, and (2) failing to consider his suitability for deferred entry of judgment (DEJ). The People agree that the court erred in calculating minor's maximum period of confinement but argue that the court was not required to consider minor for DEJ because he elected to contest the truth of the juvenile wardship petition. We vacate the adjudication and disposition orders and remand with directions for the juvenile court to give notice of minor's eligibility for DEJ and consider minor's suitability for DEJ. If the juvenile court determines that minor is not suitable for DEJ, it shall recalculate minor's maximum period of confinement in light of section 654.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL SUMMARY
On October 29, 2021, the Fresno County District Attorney filed a juvenile wardship petition (Welf. &Inst. Code, § 602, subd. (a)), alleging minor committed false imprisonment by violence (§ 236; count 1) and sexual battery by restraint (§ 243.4, subd. (a); count 2).
On the same date, the Fresno County District Attorney also filed a determination of eligibility for DEJ (form JV-750) and a citation and written notification for DEJ (form JV-751).
On November 1, 2021, minor denied the allegations of the juvenile wardship petition. At the same hearing, after minor entered his denial, the prosecutor stated on the record that minor was eligible for DEJ but commented that he was unable "to pass information directly to [the] parents due to [their] remote status." The prosecutor noted that he was "advising or giving notice to ... minor's counsel." Minor's counsel acknowledged receipt of the notice of DEJ eligibility and indicated that she would discuss minor's "eligibility with him after the hearing."
On May 12, 2022, after a contested hearing, the juvenile court found true that minor committed false imprisonment by violence as alleged in count 1, but found not true that minor committed sexual battery by restraint as alleged in count 2. Instead, as to count 2, the court found true that minor committed the lesser offense of misdemeanor battery (§ 242).
On June 23, 2022, the juvenile court held a disposition hearing at which it declared minor a ward of the court, removed him from the custody of his parents, and placed him on probation for 13 months. The court calculated minor's maximum period of confinement as two years two months.
The juvenile court did not explain its reasoning for reaching the two years two months maximum period of confinement, but the probation report recommended the same maximum period of confinement based on the middle term of two years on count 1 plus a consecutive term of one-third of the base term of two months on count 2.
On July 28, 2022, minor filed a notice of appeal.
FACTUAL SUMMARY
In early to mid-September 2021, R.N. was 15 years old and on the baseball team of his Fresno County high school. Minor was on the football team at the same high school. R.N. and minor knew each other but they were not friends. One of R.N.'s schoolmates who was on the football team told him that his baseball glove was in the football team room portion of one of the boys' locker rooms. R.N. walked with his schoolmate to the team room portion of the locker room. Approximately 10 football players were in the room, and some said to turn off the lights. Someone turned off the lights and a group of some of the football players-including minor-grabbed R.N. and threw him to the ground. R.N. attempted to pull away and hit one of his assailants. R.N. was on his stomach on the ground and the group began hitting and slapping him on his back and legs. Someone pulled down R.N.'s shorts and underwear. The group continued hitting and slapping R.N. on his back and legs and also slapped his left buttock. Minor was one of the people who slapped R.N.'s buttock. After he slapped R.N.'s buttock, minor walked away. R.N. was on the ground during the incident for 15 seconds. R.N. tried to stand during that time but he was being held down by four football players, including minor. Minor and the classmate who led R.N. to the locker room held R.N.'s legs. Some people were laughing during the incident, but R.N. was not laughing.
R.N. originally testified that he was held on the ground for three minutes. After watching the 15-second video of the incident, he testified that the video depicted the entire incident.
When R.N. was released, the lights were turned on, and R.N. stood and left the locker room. The following day, R.N. saw a video that was taken of the incident on social media websites.
R.N. spoke to police officers after the incident. He told them no one touched his buttocks. That was not true. He was not truthful with the officers because it was uncomfortable for him to discuss that portion of the incident.
On September 20, 2021, S.T. was a learning director in the student services department of the high school. Her duties included student discipline, which included assisting students in working through conflict as well as investigating incidents and assigning punishments. The incident between R.N. and the group of football players occurred on September 20, 2021, and was reported on September 23, 2021. Once the matter was reported to S.T., she opened an investigation, asked R.N. for a written statement, and directed interviews of the students involved. Minor was one of the students involved in the incident. S.T. did not interview minor because she had already determined his involvement from the video, and he had written a statement by the time she saw him. From the video, S.T. was able to determine that minor slapped R.N. "[o]n the bare bottom ... 7 to 10 times."
DISCUSSION
I. Section 654 and Calculation of the Maximum Period of Confinement
Minor contends that the juvenile court erred in calculating his maximum period of confinement by applying the term that would be imposed on count 2, if minor was an adult, consecutive to the term on count 1. He argues, and the People agree, that section 654 required that the term on one of the counts must be stayed in calculating the maximum period of confinement.
A. Additional Background
At the disposition hearing, the juvenile court commented that it was inclined to apply section 654 to stay the term on one of the two offenses in calculating the maximum period of confinement. Specifically, it commented: "So let me get right to it. Count 1, which is false imprisonment by force or violence has been proven beyond a reasonable doubt. I think it's clear that multiple persons committed that offense. This minor participated in that, so we don't look at his actions alone, but that of his and his co-parts acting together in this attack. It's been shown beyond a reasonable doubt as to Count 2, the lesser included offense of battery, simple battery, has been proven. I would note in my mind, and I'll listen to arguments at some point, that that's a 654 issue, his conduct was essentially one sort of indivisible event, but I'll listen to argument at the appropriate time if you want."
The People did not argue that section 654 did not apply. Nevertheless, the juvenile court appears to have calculated minor's maximum period of confinement using the middle term on count 1, plus one-third the base term on count 2, consecutive to the term on count 1.
B. Analysis
Subdivision (d)(1) of Welfare and Institutions Code section 726 provides that if a minor is removed from the physical custody of his or her parent or guardian, "the order shall specify that the minor may 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 offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (Welf. &Inst. Code, § 726, subd. (d)(1); see also Cal. Rules of Court, rule 5.795(b) ["If the youth is declared a ward under [Welf. &Inst. Code] section 602 and ordered removed from the physical custody of a parent or guardian, the court must specify and note in the minutes the maximum period of confinement under [Welf. &Inst. Code] section 726"].) "If the court elects to aggregate the period of physical confinement on multiple counts ... the 'maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of [s]ection 1170.1 ..." (Welf. &Inst. Code, § 726, subd. (d)(3); see § 1170.1, subd. (a) [requiring subordinate felony terms be imposed at one-third the middle term]; In re David H. (2003) 106 Cal.App.4th 1131, 1133-1134 [applying the same rule to misdemeanor convictions].)
All further references to a rule or rules refer to the California Rules of Court.
Section 654 provides, in relevant part: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)
The inquiry to determine whether separate sentences can be imposed pursuant to section 654 is "[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act." (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Correa (2012) 54 Cal.4th 331, 335-336.) That inquiry turns on" 'the intent and objective'" of the defendant. (Correa, at p. 336.)" 'If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'" (Ibid.) However, "multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. [Citations.] 'Separate sentencing is permitted for offenses that are divisible in time ...'" (People v. Felix (2001) 92 Cal.App.4th 905, 915.)
"The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination." (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.) Where the trial court makes no express section 654 findings, we consider whether substantial evidence supports an implied finding of separate transactions. (See People v. Islas (2012) 210 Cal.App.4th 116, 129; DeVaughn, at p. 1113.)"' "We must 'view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" [Citation.]'" (DeVaughn, at p. 1113.)
The parties agree, as do we, that (1) the juvenile court appears to have concluded that minor's course of criminal conduct was indivisible and therefore did not give rise to more than one act for purposes of section 654, (2) the court's apparent factual conclusion was correct and substantial evidence did not support a finding that section 654 did not apply, and (3) the court therefore erred in calculating minor's maximum period of confinement at two years two months-two years on count 1, plus a consecutive two months on count 2. The two offenses the court found true, false imprisonment by force (§ 236) and battery (§ 242), were committed within the same course of conduct and both were committed in the same location and completed within about 15 seconds. We agree with the parties that the disposition order must be vacated and the matter must be remanded for recalculation of the maximum period of confinement.
II. Deferred Entry of Judgment
Minor contends that, because he was eligible for DEJ, the juvenile court was required to consider minor's suitability for DEJ, and it therefore erred in failing to do so. The People respond that the juvenile court was not required to make a DEJ suitability finding because minor denied the allegations of the petition and sought a contested jurisdictional hearing. Minor further argues that his denial of the allegations of the petition was irrelevant to whether the court erred in determining his suitability for DEJ because minor was not provided notice of a DEJ suitability hearing and his actions were therefore not tantamount to rejection of DEJ. We agree with minor.
A. Additional Background
On the same date that the wardship petition was filed in this case, the Fresno County District Attorney also filed a determination of eligibility for DEJ (form JV-750) and a citation and written notification for DEJ (form JV-751). The citation and written notification document contained a space to identify the hearing date for DEJ proceedings, but it was left blank. The record does not reflect that the form JV-750 and form JV-751 were ever served on minor's custodial parent or parents. Indeed, at the November 1, 2021 arraignment and detention hearing, after minor entered his denial to the allegations of the petition, the prosecutor acknowledged that the district attorney's office did not "have the ability to pass information directly to [the] parents due to [their] remote status" and it was "giving notice to _ minor's counsel" at the hearing. However, no date for a DEJ suitability hearing was proposed or set.
The record before us contains no indication that minor's suitability for DEJ was discussed or considered by the juvenile court.
B. Analysis
DEJ is a program that was enacted as part of The Gang Violence and Juvenile Crime Prevention Act of 1998, which "provide[s] that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a [Welfare and Institutions Code] section 602 petition and waive time for the pronouncement of judgment. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed. ([Welf. &Inst. Code,] §§ 791, subd. (a)(3), 793, subd. (c).)" (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
"To come within the DEJ law's ambit, a minor must be a first-time felony offender charged with a crime not listed in [Welfare and Institutions Code] section 707, subdivision (b) (serious or violent offenses creating presumption of unfitness for juvenile jurisdiction) or ... section 1203.06 (crimes rendering offender ineligible for probation). ([Welf. &Inst. Code,] § 790, subd. (a).) If a minor meets the eligibility requirements for DEJ, the prosecuting attorney must provide notice thereof to the minor and the [juvenile] court must 'conduct the necessary inquiry and exercise discretion to determine whether' the minor is suitable for DEJ. [Citation.] A court may deny DEJ to a minor otherwise eligible if it deems the minor unsuitable for rehabilitation." (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1324, fn. omitted; see rule 5.800.) "While the court is not required to grant DEJ, it is required to 'follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.'" (In re D.L. (2012) 206 Cal.App.4th 1240, 1244.)
The People argue that a juvenile court is not required to hold a hearing to determine a minor's suitability for DEJ "when the minor, having been advised of their eligibility [for DEJ], fails to admit to the allegations in the petition and demands a jurisdictional hearing." For that proposition, they rely on In re Kenneth J. (2008) 158 Cal.App.4th 973 (Kenneth J.) and In re Usef S. (2008) 160 Cal.App.4th 276 (Usef S.). In Kenneth J., the prosecutor filed a Welfare and Institutions Code section 602 petition, a determination of eligibility for DEJ, and a notice that the minor was eligible for DEJ. (Kenneth J., at p. 977.) Eight days later, the minor's counsel advised the court that minor sought a jurisdictional hearing. (Ibid.) Two weeks later, the juvenile court held a contested jurisdictional hearing and found the allegations set out in the petition to be true. (Id. at pp. 977-978.) The minor's suitability for DEJ was never considered.
Likewise, in Usef S., the prosecutor filed a Welfare and Institutions Code section 602 petition and a notice that the minor was eligible for DEJ, both on the same date. (Usef S., supra, 160 Cal.App.4th at p. 279.) The juvenile court scheduled a hearing, apparently to address the minor's suitability for DEJ, but "the record reveal[ed] no mention by anyone-not the juvenile court, [the minor], his attorney, nor the prosecutor-of the DEJ determination." (Id. at p. 281.) About a month later, the minor denied the allegations set out in the Welfare and Institutions Code section 602 petition and requested a contested jurisdictional hearing. (Ibid.)
In both cases, the minors argued on appeal that the juvenile court erred in failing to determine the minors' suitability for DEJ. In both cases, the appellate courts rejected the minors' arguments. In Kenneth J., the court explained that "DEJ is clearly intended to prove an expedited mechanism for channeling certain first-time offenders away from the full panoply of a contested delinquency proceeding. [However, t]hat goal could not coexist with a minor who insists on exercising every procedural protection offered, and who then on appeal faults the juvenile court for not intervening and short circuiting those very protections." (Kenneth J., supra, 158 Cal.App.4th at p. 980.) The appellate court also noted that the minor had not expressed an interest in DEJ and therefore declined to "compel[] a juvenile court to hold a hearing to consider DEJ for a minor who evinces no interest whatsoever in that option." (Ibid.) In Usef S., the court found the reasoning of Kenneth J. "compelling and, thus, follow[ed] it ... [in] conclud[ing that a] juvenile court commit[s] no error in failing to hold a hearing to determine [a minor's] suitability for DEJ once it bec[omes] clear [the minor is] not admitting the allegations against him, but rather . insist[s] on contesting them at a jurisdictional hearing." (Usef S., supra, 160 Cal.App.4th at p. 286.) In short, "a juvenile court is not required to rule on a minor's possible suitability for a DEJ where the minor is properly advised of his or her DEJ eligibility and fails to admit the charges or waive the jurisdictional hearing because such a failure amounts to a rejection of the DEJ's expedited procedure." (In re Trenton D. (2015) 242 Cal.App.4th 1319, 1325 (Trenton D.).)
Minor contends that the notice he was given of his eligibility for DEJ was inadequate because it did not identify a date for a DEJ suitability hearing and nothing in the record suggests that the inadequate notice was actually served on minor's custodial adult at least 24 hours prior to the time set for the DEJ suitability hearing. The court in Trenton D. addressed a very similar factual scenario. In Trenton D., the prosecutor filed a citation and notice of eligibility for DEJ that did not contain a hearing date for a suitability for DEJ hearing. (Trenton D., supra, 242 Cal.App.4th at p. 1324.) The court also noted that "there [was] no indication in the record that it was properly served. [R]ule 5.800(c) provides that the court must issue form JV-751 to the child's custodial parent, guardian, or foster parent, and the form 'must be personally served on the custodial adult at least 24 hours before the time set for the appearance hearing.'" (Ibid.) On appeal, the Attorney General conceded that the juvenile court had not determined the minor's suitability for DEJ, but contended that the court was excused from doing so because the minor contested the petition. (Id. at p. 1325.) The appellate court acknowledged that Usef S. and Kenneth J. stand for the proposition that a properly advised minor may effectively reject DEJ by failing to admit the allegations of the petition, but explained that, when a minor is not properly advised, a failure to admit the allegations of the petition cannot be fairly understood as a rejection of DEJ. (Trenton D., at p. 1325; see In re C.W. (2012) 208 Cal.App.4th 654, 660-662.) The Trenton D. court found that the absence of a record of any DEJ discussions at any hearing "in the context of an otherwise complete record" was sufficient for it to conclude that the minor had not been advised of DEJ eligibility by the prosecutor or juvenile court. (Trenton D., at p. 1326.) The court held that, standing alone, the absence of "a date when a suitability hearing would be conducted" on the form JV-751 prevented it from concluding that the juvenile court had met its DEJ consideration obligations. (Ibid.) "Because the juvenile court did not conduct the necessary inquiry into [the minor's] suitability for a DEJ, [the Trenton D. court] set aside [the juvenile court's] findings and dispositional order and remand[ed] the case for further proceedings that comply with the statutory scheme." (Id. at p. 1327.)
The record also lacked the second page of the citation and notice of eligibility for DEJ and the first page of the document was also missing the names and addresses of the minor's parents or guardians. (Trenton D., supra, 242 Cal.App.4th at p. 1324.) In this case, the second page of the citation and notice of eligibility for DEJ was present in the record and the notice listed minor's mother's name and address.
In this case, the form JV-751 citation and written notification for DEJ contained two of the defects that the Trenton D. court found significant-(1) the notice did not set a hearing date for a determination on minor's DEJ suitability and (2) there is no evidence in the record that suggests that minor's custodial parent was actually served with the document at least 24 hours prior to a DEJ suitability hearing. Indeed, at the November 1, 2021 arraignment and detention hearing, the prosecutor acknowledged that minor's custodial parents had not been served with the DEJ notice and minor's counsel indicated she would discuss DEJ with him after the conclusion of that hearing, in which minor denied the allegations of the petition. We agree with the Trenton D. court's analysis: a minor cannot be fairly said to have rejected DEJ if they are not given adequate notice of DEJ procedures. A form JV-751 must at least identify the hearing date set for a DEJ suitability determination in order for a juvenile court to be excused from its mandatory duty to assess the minor's suitability for DEJ. (Trenton D., supra, 242 Cal.App.4th at p. 1326; accord, In re D.L., supra, 206 Cal.App.4th at p. 1244 ["In the absence of even notice that a hearing on [the minor's] DEJ suitability was proceeding on a particular date, the court cannot have met its obligations."].)
Because the form JV-751 did not provide a date for a suitability determination and minor's parents were not served with a DEJ notice before minor denied the allegations of the petition, the juvenile court was not excused from its mandatory duty of assessing minor's suitability for DEJ. Minor's insistence on a jurisdictional hearing cannot be fairly said to have excused the court from performing its duty because the notice given was inadequate and because it is clear from the record that minor's parents were not served with the document before minor denied the allegations of the petition.
DISPOSITION
The adjudication and disposition orders are vacated and the matter is remanded to the juvenile court for further proceedings under Welfare and Institutions Code section 790 et seq. and rule 5.800, including notice to minor of his eligibility for DEJ. If minor elects DEJ, the juvenile court shall exercise its discretion whether to grant minor DEJ. If, as a result of those proceedings, the juvenile court grants DEJ, it shall issue an order vacating the findings and orders. If the juvenile court denies DEJ, it shall reinstate the jurisdictional order and conduct a new disposition hearing at which it shall recalculate minor's maximum period of confinement in light of section 654.
[*]Before Poochigian, Acting P. J., Peña, J. and Smith, J.