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In Re Greg F., A Person Coming Under the Juvenile Court Law. v. Greg F

February 23, 2011

IN RE GREG F., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GREG F., DEFENDANT AND APPELLANT.



Sonoma County Super. Ct. No. 35283J

The opinion of the court was delivered by: Simons, Acting P.J.

opinion on rehearing [nonpub. opn. filed 1/27/11]

CERTIFIED FOR PUBLICATION

A juvenile court's authority to commit a minor to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), is a matter of statutory law. Pursuant to Welfare and Institutions Code section 733, subdivision (c)*fn1 (hereafter section 733(c)), "[a] ward of the juvenile court who meets any condition described below shall not be committed to the [DJJ]: [¶] . . . [¶] (c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707, unless the offense is a sex offense set forth in subdivision (c) of Section 290.008 of the Penal Code." (Italics added.) In this case, after Greg F. (appellant) admitted a juvenile delinquency petition (§ 602) alleging an offense that was not DJJ eligible under section 733(c), the juvenile court utilized section 782 to dismiss that petition in order to reach back to an earlier petition alleging a DJJ-eligible offense that appellant had admitted. The court did so in order to commit appellant to DJJ. Because we read section 733(c) to limit the court's authority to dismiss a petition under section 782, we reverse the disposition order.

BACKGROUND

2008 Petition

Appellant, born in July 1993, admitted the allegations of a September 18, 2008 juvenile delinquency petition that alleged he committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)) and for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). This offense is listed under section 707, subdivision (b) and, under section 733(c), may lead to a commitment to DJJ. The probation report reveals that on September 16, appellant and two other males exited a vehicle and threw rocks and shouted gang slogans at the 11-year-old victim, Joseph C., while the victim was riding his bicycle. Appellant then ran toward the victim and hit him on the head with a baseball bat, causing the victim to fall off his bicycle. As a result, the victim underwent surgery for an epidural hematoma and was hospitalized for approximately seven days. Appellant was declared a ward of the court (§ 602) on June 11, 2009.

2009 Petition

On August 18, 2009, another juvenile delinquency petition (§ 602) was filed alleging that on August 16, appellant committed felony battery against three persons for the benefit of a criminal street gang (Pen. Code, §§ 242, 186.22, subd. (d)). According to the probation report, on August 16, while having dinner in juvenile hall, appellant and two others stood up and attacked three Sureno residents. All six minors began fighting and security staff eventually detained them.

At a hearing on August 19, 2009, defense counsel stated she and the prosecutor had agreed that appellant would admit the battery and gang enhancement, and a second count of knowing participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) would be dismissed. The court informed appellant that based on his admission the matter would be put over for disposition, at which time the court would decide the consequences for appellant's admission. The court accepted the admission, ordered appellant detained in juvenile hall pending a disposition hearing set for September 2, and referred the matter for a written dispositional report. On August 20, the court granted the prosecution's ex parte request to advance the matter to August 26 for a hearing on its "motion to withdraw plea." The request form indicated that appellant's counsel opposed the motion.

On August 24, 2009, the prosecution filed a notice of probation violation (§ 777) alleging appellant's gang-related August 16 battery.

At the August 26, 2009 hearing, the prosecutor urged the court to withdraw appellant's admission to the 2009 petition pursuant to In re J.L. (2008) 168 Cal.App.4th 43. The court stated the motion should be characterized as a motion to strike the 2009 petition and gave the prosecution leave to refile its motion. On August 28, the People filed a motion seeking to set aside appellant's admission to the 2009 petition, to dismiss that petition, and to commence proceedings on the section 777 notice of probation violation.

On October 23, 2009, the court granted the People's motion to dismiss the 2009 petition in the interests of justice and appellant's welfare. It also set a hearing on the section 777 probation violation for October 27. On October 27, appellant admitted the August 16 probation violation.

On February 3, 2010, appellant was committed to DJJ for a maximum term of confinement of 17 years, with credit for 352 days in custody. ...


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