IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 28, 2011
IN RE E.G., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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 sending a DJ[J]-eligible ward to DJ[J] immediately or ordering probation and then forfeiting the threat of a DJ[J] commitment later if the ward violates probation." (Ibid.) To avoid this result, the court interpreted the word "offense" in section 733 "to exclude a violation of probation found" in a section 777 proceeding. (In re M.B., at pp. 1477-1478.)
Turning to the word "petition," the court in In re J.L. explained the procedural and substantive differences between a section 602 proceeding, which is initiated by filing a petition, and a section 777 proceeding, which is initiated by filing a notice. (In re J.L., supra, 168 Cal.App.4th at pp. 58-60.) In re J.L. held that the reference to a "petition" in section 733(c) refers to a petition filed under section 602, but not a probation violation alleged in a notice filed under section 777. (In re J.L., at pp. 58, 60.)
Under the logic of In re M.B. and In re J.L., which equally applies here, E.G.'s burglary was not an offense alleged in a petition within the meaning of section 733(c). The burglary was alleged as a probation violation, which the court found to be true by a preponderance of the evidence in a section 777 proceeding. Therefore, under In re M.B., the burglary was not an offense under section 733(c). In addition, under In re J.L., the operative filing--i.e., the People's June 24 filing--was not a petition under section 733(c). In the People's June 24 filing, the probation violation allegations and modification request were set forth in form JV-735, at the bottom of which is a footer that specifically references "Welfare and Institutions Code, § 777." Thus, this document plainly indicates that it is filed under the authority of section 777. As such, the People's filing was not a section 602 petition, but a notice under section 777. In re M.B. and In re J.L. eviscerate E.G.'s position.
In an effort to avoid In re. M.B. and In re J.L., the minor raises several arguments, all of which lack merit.
E.G. first argues that the reasoning of In re M.B. is flawed. Among other points of contention, E.G. argues that interpreting the word "offense" to include a probation violation found under section 777 does not force a judge into choosing between sending a DJJ-eligible ward to the DJJ immediately or ordering probation and then forfeiting the threat of a DJJ commitment later if the ward violates probation (by committing a non-DJJ-eligible crime). According to E.G., a juvenile court's discretionary decision whether to commit a minor to the DJJ must be based on presently existing factors (see § 725.5), not based on "unforeseeable future events such as whether or not [the] minor will commit future crimes." E.G.'s disagreement with In re M.B. is unpersuasive.
Among other things, when deciding whether to commit a DJJ-eligible minor to the DJJ, a juvenile court considers a minor's chance of rehabilitation in the DJJ setting (In re Jonathan T. (2008) 166 Cal.App.4th 474, 485-486; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329), which, in many cases, may be just as unforeseeable as whether the minor will commit future crimes. For DJJ-eligible minors, a juvenile court may well find that discretion is best exercised to structure a rehabilitation scheme that consists of probation first and a DJJ commitment later upon a subsequent probation violation. We, like the court in In re M.B., are loath to interfere with such rehabilitative schemes. Furthermore, since In re M.B. was decided, another court has explicitly agreed with its reasoning. (In re D.J., supra, 185 Cal.App.4th at pp. 286-288.)*fn4 We perceive no reason to quarrel with In re M.B.
Next, E.G. cites our decision in V.C. v. Superior Court (2009) 173 Cal.App.4th 1455 (V.C.) as support for his argument that the word "offense" in section 733(c) should include a violation of probation when the underlying conduct is criminal. V.C., however, is materially distinguishable.
There, the prosecution sought to dismiss a sustained 602 petition from 2007 involving a non-DJJ-eligible crime in order to reach back to a sustained 602 petition from 2005 involving a DJJ-eligible crime. (V.C., supra, 173 Cal.App.4th at pp. 1459-1460.) We determined that the juvenile court's dismissal of the 2007 sustained petition was not in the interests of justice under section 782. (V.C., at p. 1467.) We noted that "neither the language nor the legislative history of section 733(c) demonstrates the intent of the Legislature to allow commitment of minors to DJ[J] who are not currently serious or violent offenders" and concluded that "[d]ismissal of the most recent petition in order to reach back to an earlier petition containing a DJ[J] qualifying offense would be contrary to the unmistakable plain language of section 733(c)" and "would frustrate the legislative policy expressed by" that language. (V.C., at p. 1468.)
V.C. does not assist E.G.'s position. There is no gamesmanship here of the sort present in V.C. The People here did not attempt to dismiss anything, let alone dismiss a sustained section 602 petition on a non-DJJ-eligible crime in order to invoke an earlier sustained 602 petition on a DJJ-eligible crime. At most, the People filed a notice of hearing regarding an alleged probation violation, i.e., E.G.'s purported burglary, and requested a modification of E.G.'s commitment to the DJJ. This conduct does not smack of improper manipulation. (John L. v. Superior Court (2004) 33 Cal.4th 158, 165 ["Even if criminal in fact, new misconduct may be treated, under section 777[, subdivision] (a)(2), only as a probation violation."]; In re D.J., supra, 185 Cal.App.4th at p. 288 ["we reject appellant's argument that it impermissibly circumvents the relevant statutes for a prosecutor to charge a non-DJJ-eligible offense as a probation violation, for the purpose of relying on a prior DJJ-eligible offense as the basis for seeking a DJJ commitment"].) Moreover, V.C. observed that section 733(c) reflects the Legislature's determination that whether a minor is eligible for DJJ commitment, i.e., whether a minor is currently a serious or violent offender, is resolved by looking at "'the most recent offense alleged in any petition'" sustained against the minor. (V.C., supra, 173 Cal.App.4th at p. 1468, quoting § 733(c).) Nothing in V.C. suggests that the words "offense" or "petition" in section 733(c) have meaning apart from that discussed in In re M.B. and In re J.L.
E.G. also attacks In re J.L. E.G. contends that the distinctions it made between a petition and a notice are "distinctions without a difference." Citing Black's Law Dictionary for its definitions of "petition" and "notice," E.G. argues that a petition for section 733(c) purposes should be interpreted to include a notice under section 777. E.G.'s argument simply ignores the specialized meaning of "petition" in section 733(c) and "notice" in section 777 as elaborately explained by In re J.L. and as further recognized in In re D.J.
Finally, taking a somewhat different approach, E.G. argues that the People's June 24 filing is really both a section 602 petition and a section 777 notice, and that, under In re J.L., the burglary was alleged in a petition within the meaning of section 733(c). E.G.'s argument is unpersuasive.
E.G. grounds his argument on the fact that the first page of the People's June 24 filing is a juvenile wardship petition form, i.e., form JV-600. At the top of this form, under the heading "Juvenile Wardship Petition," the box for "§ 602(a)" is checked, and the footer clearly states "Juvenile Wardship Petition." E.G.'s reliance on form JV-600 is misplaced.
To help determine the nature of the People's filing we look to its substance and purpose. (In re D.J., supra, 185 Cal.App.4th at p. 289.) It appears to us that the People used form JV-600 as a cover sheet. The real substance of the People's June 24 filing is contained in the second document, form JV-735, which alleges the probation violation and indicates the People's request to modify E.G.'s commitment to the DJJ. Again, the bottom of form JV-735 specifically references "Welfare and Institutions Code, § 777" thus clearly indicating it is a section 777 filing. Moreover, the apparent purpose of the People's filing was to initiate section 777 proceedings, which the juvenile court held. In short, despite the markings on the form JV-600 cover page, the June 24 filing was not a section 602 petition. (See In re D.J., supra, at p. 289 [concluding that the People's use of JV-600 forms as cover pages and checking of section 602 boxes did not transform the People's filings from section 777 probation violation notices to section 602 petitions].)
Pressing on with his argument, E.G. notes that both the court and the prosecution referenced the probation violation matter as a petition from time to time and he argues that this further supports his position that the June 24 filing was, in part, a section 602 petition. While it appears true that the court and the People occasionally referenced the probation violation matter as a petition, E.G.'s argument is erroneous.
At a hearing held on July 22, 2009, which occurred before the probation violation proceeding, the court specifically noted that the People's motion was "filed under Welfare and Institutions Code Section 777" and that there was "no petition filed in this case." This firmly negates any contention that the juvenile court believed the People's June 24 filing was a section 602 petition. At the actual hearing on the probation violation, the court referenced the matter as a section "777 petition."*fn5 Rather than advance E.G.'s argument, this further confirms that the court understood the People's filing invoked section 777. Many courts still reference section 777 charging documents as section 777 petitions even though, technically speaking, they are notices. (See, e.g., In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231; In re Brent F. (2005) 130 Cal.App.4th 1124, 1130.) Furthermore, the court sustained E.G.'s probation violation based on a preponderance of the evidence, the evidentiary standard applicable to section 777 proceedings. In addition, in the context of sustaining the probation violation, the court stated that the burglary was not "charged as a new petition" and aptly noted that the "beyond a reasonable doubt" standard, applicable to section 602 proceedings, did not pertain.*fn6 In light of the record, there is no doubt that the court understood the People's filing and the attendant proceeding as one under section 777, and not under section 602. As for the People, at the July 22, 2009 hearing, the People indicated that this was a section 777 matter, not a section 602 matter, and that the word "petition" is not the appropriate appellation. Thus, regardless of whether they may have used the word "petition" on occasion, neither the People nor the court believed the June 24 filing to be a section 602 petition. Finally, we note that in the briefing below, even E.G. observed that "the District Attorney filed one count of violation of probation pursuant to Welfare and Institutions Code [section] 777" and argued that the District Attorney should have filed a section "602 petition" instead, a position which E.G. reiterated during oral argument at the July 22, 2009 hearing. Thus, it appears E.G. too once recognized that the People's June 24 filing was not a section 602 petition.
Despite all of E.G.'s arguments to the contrary, the asserted burglary was not an offense alleged in a petition within the meaning of section 733(c). Because E.G.'s robbery remains the most recent offense alleged in a petition and sustained against him, E.G.'s commitment to the DJJ was not unauthorized under section 733(c).
For the foregoing reasons, the juvenile court's order committing E.G. to the DJJ is affirmed.
NICHOLSON , Acting P.J.