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In Re E.G., A Person Coming Under the Juvenile Court Law. v. E.G

February 28, 2011

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



(Super. Ct. No. JV125739)

The opinion of the court was delivered by: Butz ,j.

In re E.G. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After finding that minor E.G. violated a condition of his probation, the Sacramento County Juvenile Court committed E.G. to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ)*fn1 for five years. On appeal, E.G. contends that the juvenile court's order committing him to the DJJ was statutorily unauthorized under section 733, subdivision (c) (section 733(c)), because the most recent offense alleged in a petition and sustained against him was burglary, an offense for which a DJJ commitment is not statutorily authorized. We disagree and shall affirm.

FACTUAL BACKGROUND

On July 17, 2007, the People filed a section 602, subdivision (a) (section 602(a)) petition against E.G., which alleged that he unlawfully took a motor vehicle without the owner's consent and unlawfully received stolen property. On August 2, 2007, E.G. admitted the latter offense, deemed a misdemeanor, and the former was dismissed. The court declared E.G. a ward of the juvenile court, put him under the care and custody of his mother, and placed him on probation.

On August 9, 2007, the People filed another section 602 petition against E.G., which alleged that he committed robbery and attempted robbery. As an enhancement, it was alleged that E.G. personally used a firearm in the commission of these crimes. On November 7, 2007, E.G. admitted committing felony robbery (Pen. Code, §§ 211, 212.5), and the attempted robbery charge and enhancement allegations were dismissed. The court committed E.G. to the Sacramento County Boys Ranch and continued him on probation, a condition of which required him to obey all laws. Subsequently, for reasons pertaining to E.G.'s existing medical condition, the court modified the commitment location to the Warren E. Thornton Youth Center.

On June 24, 2009, using Judicial Council forms JV-600 and JV-735, the People filed a notice of hearing regarding an alleged probation violation and requested a modification of E.G.'s commitment location to the DJJ. In the body of form JV-735, allegations supporting the violation of probation were alleged in a single count entitled "VIOLATION OF PROBATION COUNT ONE." In short, the count alleged that E.G. violated his probation by committing residential burglary. (Pen. Code, § 459.)

On September 9, 2009, the juvenile court held a contested section 777 hearing on the probation violation.*fn2 After hearing from three witnesses, the court found by a preponderance of the evidence that E.G. violated his probation. As reflected in the court's minutes, the court found true the probation violation allegation and sustained count one. On October 15, 2009, the court held a dispositional hearing and ultimately ordered a DJJ commitment for five years. This timely appeal followed.

DISCUSSION

As relevant here, section 733(c) prohibits a DJJ commitment if "[t]he 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 . . . ." (Italics added.) In other words, for minors like E.G. who have been adjudged a ward of the court pursuant to section 602, a DJJ commitment is authorized only if the minor's most recent offense alleged in any petition and sustained against the minor is a DJJ-eligible crime, i.e., a crime enumerated in section 707, subdivision (b). (See In re D.J., supra, 185 Cal.App.4th at p. 284.)

According to E.G., the most recent offense alleged in a petition and sustained against him was burglary (Pen. Code, § 459), a non-DJJ-eligible crime, which the People asserted as a violation of E.G.'s probation. According to the People, the most recent offense alleged in a petition and sustained against E.G. was robbery, a DJJ-eligible crime, which the People asserted in a section 602 petition. The People, citing In re M.B. (2009) 174 Cal.App.4th 1472 and In re J.L. (2008) 168 Cal.App.4th 43, argue that E.G.'s burglary was not an "offense" alleged in a "petition" within the meaning of section 733(c). The People have the better argument.

In re M.B. involved underlying criminal conduct, a non-DJJ-eligible crime, which was alleged as a probation violation and found to be true in a section 777 proceeding.*fn3 The juvenile court then ordered a DJJ commitment based on an earlier DJJ-eligible crime previously alleged in a section 602 petition and admitted by the minor. (In re M.B., supra, 174 Cal.App.4th at pp. 1476-1477.) On appeal, the minor argued that the asserted probation violation was an offense under section 733(c) because its factual basis was a crime. (In re M.B., at p. 1476.) Rejecting this argument, the court held that the word "offense" in section 733(c) does not include a probation violation found pursuant to section 777 even if the probation violation is based on underlying criminal conduct. (In re M.B., at pp. 1477-1478.) Recognizing "the purpose of the enactment that became section 733 was to reduce the cost and increase the effectiveness of juvenile confinement by shifting all but the most serious juvenile offenders to county facilities," the court reasoned that "[t]his purpose does not support the view that those who commit the offenses the Legislature deemed serious enough for DJ[J] must not be confined there if they first get probation but then violate its terms." (In re M.B., at p. 1477.) As the court put it, "The Legislature could not have intended that juvenile court judges be forced into a choice of either ...


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