Opinion
A150070
11-07-2017
In re E.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 83920)
After E.R. admitted a single felony count of second degree robbery (Pen. Code, § 212.5, subd. (c)), the juvenile court issued an order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). On appeal from that dispositional order, appellant contends the court failed to exercise its discretion when setting the maximum term of confinement. Appellant also contends, and the Attorney General agrees, the trial court erred as a matter of law by imposing conditions of probation after committing appellant to DJJ. We agree that the conditions of probation should be stricken and affirm the dispositional order in all other respects.
I. BACKGROUND
A. Prior Petition
On August 13, 2014, the San Mateo County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging that appellant, age 15, committed residential burglary (Pen. Code, § 460, subd. (a)). On October 8, 2014, appellant admitted the burglary charge. The maximum confinement time for the offense was six years. On the same date, the juvenile court adjudged appellant a ward of the court and placed him on probation in his mother's home. Following his adjudication, appellant sustained several violations of probation and was continued as a ward. B. Current Petition
1. Underlying Offense
On the evening of January 30, 2016, appellant followed a woman off the bus near Woodland and University Avenue in East Palo Alto. Appellant approached the victim and demanded money and her handbag. When she refused, appellant grabbed at the handbag and punched the victim in the face more than once, then kicked her when she fell to the ground. Appellant took the handbag and ran. Appellant returned to get the bottles of alcohol he had left at the scene. When the victim saw appellant coming back, she picked up the bottles to defend herself. Appellant tried to take the bottles from her, but she fought appellant off and he ran away.
At the scene, the victim's nose was bloody and swollen and she had blood on her hands. She was crying and visibly shaken. She had neck and back pain as well. After being treating by the medics who had arrived at the scene, the victim went home.
When he was arrested and taken to the East Palo Alto Police Department, appellant told the officer he "made a mistake."
2. Wardship Proceedings
On February 2, 2016, the San Mateo County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging that appellant, age 16, committed second degree robbery (Pen. Code, § 212.5, subd. (c)) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The petition stated the People would move for an increase in the maximum confinement time based on appellant's prior burglary adjudication. On May 12, 2016, appellant admitted the robbery charge. The maximum confinement time for the combined current and prior offenses was seven years. The prosecution struck the assault charge. The matter was set for a contested dispositional hearing on July 14, 2016.
On June 1, 2016, while appellant was still pending disposition, the San Mateo County Probation Department filed a notice of probation violation (Welf. & Inst. Code, § 777) alleging that appellant, age 17, violated his October 8, 2014, order of probation by (1) violating the rules at Juvenile Hall, and (2) punching a victim multiple times. On June 15, 2016, appellant admitted the first alleged violation of probation. The prosecution struck the second allegation.
A contested dispositional hearing eventually began on August 31, 2016 and continued on September 23, 2016. At the conclusion of the dispositional hearing, the juvenile court continued appellant's wardship and committed him to DJJ for a maximum confinement time of seven years, with credit for 426 days. In so ruling, the court explained its rationale as follows: "Well, you know, obviously I've considered everything, but the problem is that he's got two problems, if you will. The alcohol substance abuse issue is for sure. But the violence is very problematic to me. And even Dr. Barron's risk assessment recognizes a high risk of danger for violence. [¶] . . . [¶] I certainly recognize . . . that relapse and partial recovery and so forth is a regular pattern with substance abuse problems. I'm very aware of that and sympathetic to it and try [to] take that into consideration. However, then we come to the other side of this, which is two and a half months after [appellant] got out he not only offends again, but offends at a whole level up. This is just a brutal . . . assault on a vulnerable victim with a degree of anger and rage and violence completely unnecessary to the accomplishment of the goal, if you will. So community safety and specifically addressing his violent tendency I think is something we have to consider as well. [¶] . . . DJJ has facilities and programs that hopefully will be helpful."
After further explaining its reasoning, the juvenile court committed appellant to DJJ. The court mentioned there were prior "draft . . . orders," which would have to be updated with current custody credits. The September 23, 2016, minute order stated the maximum confinement time was seven years with credit for 426 days. The September 23, 2016, commitment order (Judicial Counsel Form, form JV-732; hereafter Form JV-732) likewise stated the maximum confinement time was seven years with credit for 426 days. Two boxes appear under the heading "Confinement period" in Form JV-732. The first box (No. 8.a) was checked on Form JV-732, and it reflected a "maximum period of confinement" of seven years. The second box (No. 8.b)-which states, "The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement"—was not checked on Form JV-732.
The commitment order was amended twice, first on October 11, 2016, to update appellant's medications, and then on November 4, 2016, to list the prior burglary adjudication, with its maximum confinement time of six years. In these first two amendments, the trial court marked box No. 8.a, indicating that the maximum period of confinement was seven years. However, the court failed to check box No. 8.b on the forms.
After DJJ requested clarification of the maximum confinement time stated in the commitment order, the juvenile court amended the commitment order a third time on November 18, 2016, stating again the maximum confinement time was seven years based on the current and prior adjudications, and this time marking box No. 8.b on Form JV-732.
On December 12, 2016, appellant filed an appeal from the September 23, 2016, disposition. On April 5, 2017, this court deemed the notice of appeal timely filed.
II. DISCUSSION
A. The Juvenile Court Exercised Its Discretion in Setting the Maximum Confinement Time.
When a juvenile court sentences a minor to DJJ, 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 juvenile court." (Welf. & Inst.Code, § 731, subd. (c).) The court considers factors about the offense and the offender's history that would be comparable to those employed for the sentencing of adults. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1185 (Sean W.).) "The courts construe Welfare and Institutions Code section 731, subdivision (c) to confer on the court the discretion not only to impose a theoretical maximum term of physical confinement equal to an adult's maximum period of imprisonment . . . for the identical offense . . . but also to impose a shorter theoretical maximum term of physical confinement on the basis of the facts and circumstances of the case." (In re Alex U. (2007) 158 Cal.App.4th 259, 264, fn. omitted.) The court is not required to orally pronounce the maximum period of confinement or state its reasons. (In re Julian R. (2009) 47 Cal.4th 487, 499 (Julian R.).)
On a silent record, a reviewing court will presume the juvenile court performed its statutory duty to consider the " 'facts and circumstances' " of the juvenile's offense. (Julian R., supra, at p. 492; Evid. Code, § 664.)
Appellant claims the juvenile court failed to exercise its discretion based on the facts and circumstances of the case when setting the maximum confinement time. He bases his argument primarily on the court's amended commitment orders. He contends they show the court did not initially exercise its discretion and that it only checked box No. 8.b on form JV-732 after DJJ staff asked for clarification.
In re Travis J. (2013) 222 Cal.App.4th 187 (Travis J.), a decision by our colleagues in Division Five of this judicial district, rejected a similar argument that a juvenile court committed reversible error when it failed to check box No. 8.b on Form JV-732. (Id. at p. 201.) The court explained: "As here, the minor [in Julian R., supra, 47 Cal.4th 487] argued that 'a reviewing court must presume from the record's silence that the juvenile court was either unaware of, or failed to perform, its statutory duty to consider that the "facts and circumstances" might warrant a confinement period shorter than the adult maximum term.' (Julian R., at p. 498.) Rejecting that argument, the court observed that applying such a presumption would ' "ignore a cardinal principle of appellate review": [that a] " ' "judgment or order of the lower court is presumed correct" ' " ' and ' " 'that a trial court is presumed to have been aware of and followed the applicable law.' " . . . [T]hus when "a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order." ' (Id. at pp. 498-499, citations omitted.)" (Travis J., supra, 222 Cal.App.4th at p. 201.)
In Travis J., the record was not silent because defense counsel had repeatedly reminded the juvenile court of its obligation to make an independent finding on the appropriate DJJ term, specifically referencing Welfare and Institutions Code section 731, subdivision (c). The court also gave a detailed statement of reasons supporting its decision to select a three-year maximum term. (Travis J., supra, 222 Cal.App.4th at pp. 201-202.) Although the juvenile court did not expressly mention section 731, subdivision (c) in doing so, the appellate court presumed "the juvenile court 'exercised its discretion in setting a maximum period of physical confinement that was measured against both the ceiling set by the maximum adult prison term and a possibly lower ceiling set by the relevant "facts and circumstances" [citation] . . . .' (Julian R., supra, 47 Cal.4th at p. 499, fn. omitted.)" (Travis J., supra, 222 Cal.App.4th at p. 202.)
Here, as in Travis J., the unchecked box No. 8.b on appellant's original and first two amended JV-732 forms is not conclusive, particularly in light of the fact that this box ultimately was checked on the final amended order. Moreover, before pronouncing the sentence, the court spoke at length about the facts and circumstances leading to its decision to commit appellant to DJJ. The court considered appellant's criminal history, his high risk of re-offending in a violent manner, his substance abuse history, his failed performance on probation, and the increasingly violent nature of his offenses. The court also expressly discussed the facts and circumstances of this case, observing that the most recent offense was a brutal assault on a vulnerable victim committed "with a degree of anger and rage and violence completely unnecessary" to accomplish the robbery. The court noted that it had to consider community safety, while "addressing his violent tendenc[ies]."
In accordance with Sean W., supra, 127 Cal.App.4th at p. 1185, the juvenile court properly took appellant's criminal history, his current conduct, and the threat to community safety posed by his violent behavior into account in sentencing him to the maximum term. Nothing in the record suggests the court was inclined to set a lower maximum confinement time, but was unaware it had discretion to do so. On the contrary, the court was concerned that appellant obtain the services he needed at DJJ to curtail his alcohol abuse and violent tendencies. On this record, appellant can show neither a failure to exercise discretion nor an abuse of discretion in setting the maximum confinement time. B. The Juvenile Court Erred in Imposing Probation Conditions After Committing Appellant to DJJ.
At the dispositional hearing on September 23, 2016, the juvenile court committed appellant to DJJ "on the standard conditions." The minute order reflects three standard probation conditions, to wit: (1) obey all laws; (2) follow the reasonable and proper directives and instructions of the probation officer, parents and school personnel, and report to probation as directed; and (3) submit to search and seizure.
Appellant contends, and the Attorney General concedes, the court erred by imposing the conditions of probation following the DJJ commitment. We agree.
"Commitment to DJJ deprives the juvenile court of any authority to directly supervise the juvenile's rehabilitation." (Travis J., supra, 222 Cal.App.4th p. 202; see In re Edward C. (2014) 223 Cal.App.4th 813, 829 ["juvenile court loses the authority to impose conditions of probation once it commits a ward to [DJJ]"]; In re Allen N. (2000) 84 Cal.App.4th 513, 516 ["juvenile court's imposition of discretionary conditions of probation constitutes an attempt to regulate or supervise the minor's rehabilitation, a function solely in the hands of [DJJ] after the minor's commitment"].) Accordingly, the probation conditions must be stricken. (Travis J., supra, 222 Cal.App.4th at p. 202.)
III. DISPOSITION
The probation conditions imposed by the court in its September 23, 2016 dispositional order, committing appellant to DJJ, are stricken. As so modified, the judgment is affirmed.
/s/_________
KENNEDY, J. We concur: /s/_________
RIVERA, ACTING P. J. /s/_________
STREETER, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.