ORIGINAL PROCEEDINGS in Mandate. Jane Ure, Judge. Petition granted. (Super. Ct. No. JV120638).
The opinion of the court was delivered by: Cantil-sakauye , J.
CERTIFIED FOR PUBLICATION
After the minor's alleged unsatisfactory performance of the conditions of his probation arising from his plea bargain on a 2007 sustained petition, the juvenile court, pursuant to Welfare and Institutions Code*fn1 section 782, dismissed the minor's 2007 sustained petition in order to make him eligible for commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) under the revised terms of section 733, subdivision (c) (section 733(c)). Section 733(c) limits the commitment of a minor to DJF to cases where the minor has been, or is adjudged to be, a ward of the juvenile court pursuant to section 602 and the minor's "most recent offense alleged in any petition and admitted or found to be true by the court" is an offense listed in section 707, subdivision (b), or a sex offense listed in Penal Code section 290.008, subdivision (c).*fn2
Here, the juvenile court dismissed V. C.'s most recently sustained petition, a 2007 Penal Code section 314 offense, which does not qualify for a DJF commitment, to cause an earlier sustained petition, a 2005 Penal Code section 288a, subdivision (b)(1) offense, which does qualify for a DJF commitment, to be the most recent offense for purposes of section 733(c). Based on the facts of this case, we conclude the court abused its discretion under section 782 when it dismissed the 2007 petition. Thus, we need not reach the other issues raised by the parties.
We shall issue a writ of mandate requiring the respondent juvenile court to: (1) vacate its order of May 7, 2008, dismissing the petition filed on November 8, 2007; (2) dismiss the May 9, 2008, notice of violation of probation; and (3) reinstate the February 29, 2008, notice of violation of probation.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, a petition was filed alleging V. C. came within the provisions of section 602 based on his commission of a lewd and lascivious act upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a). V. C. admitted felony oral copulation of a minor in violation of Penal Code section 288a, subdivision (b)(1), as a reasonably related offense (the 2005 petition). The juvenile court declared V. C. a ward of the court and placed him in the "Youth Center."
A petition to modify and change V. C.'s placement was granted in 2006 and V. C. was committed to the care of the probation officer for "suitable Level 'A' placement[.]" Special conditions of probation were imposed, including that V. C. participate in a sexual offender treatment program.
On September 1, 2007, the Legislature amended former section 733. (Stats. 2007, ch. 175, § 22.) The new legislation limits eligibility for commitment to DJF to minors found to have committed the criminal offenses listed in section 707, subdivision (b) and the sex offenses listed in Penal Code section 290, former subdivision (d)(3). (§ 733, subd. (c).)*fn3
In November 2007, the district attorney filed a subsequent petition alleging V. C. committed three new criminal offenses in October 2007: a lewd and lascivious act upon the body of a child under the age of 14 (Pen. Code, § 288, subd. (a)); misdemeanor indecent exposure (Pen. Code, § 314, subd. 1); and misdemeanor child molestation (Pen. Code, § 647.6, subd. (a)(1)). The juvenile court approved a negotiated plea bargain resolution under which V. C. admitted the charge of indecent exposure and the court dismissed the two remaining allegations in the interests of justice (the 2007 petition). The court continued V. C. as a ward of the court and again committed him to the care of the probation officer for "suitable Level 'A' placement." The special conditions of probation again required V. C. participate in a sexual offender treatment program.
In February 2008, the district attorney filed a section 777 notice alleging V. C. violated probation by failing to participate in a sexual offender treatment program and failing to obey the directives of the group home staff. The notice recommended the consequence of the violations be a commitment to DJF. However, under the terms of section 733(c) as amended, V. C. was not eligible for such commitment.*fn4 The court detained V. C. in juvenile hall.
The district attorney moved to dismiss the prior 2007 petition (the 314 offense) in the interests of justice pursuant to section 782. The district attorney argued that if the court dismissed the 2007 petition, DJF commitment would be appropriate under section 733(c) because the "most recent offense alleged in any petition" would then be the 2005 oral copulation of a minor, Penal Code section 288a, offense.*fn5 (§ 733(c).) V. C. opposed the request, responding that dismissal of the 2007 petition would violate the Legislature's intent in amending section 733. He also maintained that dismissal in these circumstances would lead to absurd results and frustrate the will of the Legislature because the prosecution "could dismiss each petition, ad infinitum, until the 'most recent' petition made the minor eligible for placement at DJF."
The juvenile court granted the district attorney's motion under section 782 to dismiss the 2007 petition in the interests of justice and based on the lack of awareness by the court and the parties of "the nuances of the newest law[.]" In its written order, the court explained it granted the dismissal because: The change in the law determining DJF eligibility occurred mid-year; neither the court nor the lawyers were aware that allowing V. C. to admit the 314 violation would make him DJF ineligible; the court had warned V. C. he was headed to DJF if his behavior did not improve; the purpose of the new law was to divert nonviolent, nonserious offenders; V. C,'s "entire delinquent history" could not be characterized as nonviolent or nonserious; the juvenile court was authorized and obligated in carrying out its duties to weigh and consider both the interests of the juvenile and the interests of society; and V. C.'s "predatory offenses and abysmal adjustment to the Sex Offender group home suggest DJF is a viable option [for] treatment of [V. C.] and the protection of society." The court orally stated that since DJF commitment could not "occur without the dismissal, it appears that both . . . the interest[s] of justice and the welfare of the minor support a dismissal of the petition." The juvenile court emphasized that in its view all it did in dismissing the 2007 petition was "give the sentencing judge some options." The court denied it was prejudging what happened on the alleged probation violations, but indicated DJF "appears to be an appropriate option for the sentencing court to have." The court acknowledged that the district attorney's most recent notice of probation violation was based on orders that, after the dismissal, were no longer in effect and indicated "[w]e are definitely going to have to go back and fix things, but it doesn't mean that he's not in violation of the Court's orders."
Two days later, the district attorney moved inter alia to modify the prior orders, specifically, "[t]hat the Court adopt all prior conditions and orders from the sustained PC 288a(b)(1) offense from 11-30-2005 [the 2005 petition], in addition to including the superseded conditions and modifications; thus continuing all orders, conditions and modifications in full force and effect." On the same date, the district attorney filed a new section 777 notice of hearing on the two counts of violating probation and requested that V. C. be committed to DJF. The court set a hearing on the district attorney's motions.
V. C. filed his petition for writ of mandate prior to such hearing. We stayed all further proceedings in the juvenile court and issued an alternative writ.
I. V. C.'s Claims Are Justiciable In A Petition For Writ Of Mandate
Citing Code of Civil Procedure section 1086, the People contend writ relief is inappropriate because V. C. has a plain, speedy and adequate remedy ...