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In Re Greg F., A Person Coming v. Greg F

August 27, 2012


Ct.App. 1/5 A127161 Sonoma County Super. Ct. No. 35283J Judge: Raima H. Ballinger

The opinion of the court was delivered by: Corrigan, J.

This case involves the interplay between two statutes governing juvenile delinquency dispositions. Welfare and Institutions Code section 733, subdivision (c) (section 733(c))*fn1 establishes a general rule that a ward cannot be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), unless "the most recent offense alleged in any petition and admitted or found to be true by the court" (italics added) is one of the violent offenses listed in section 707, subdivision (b) (section 707(b)). On the other hand, section 782 provides that the juvenile court has the power to dismiss any wardship petition if "the interests of justice and the welfare of the minor require such dismissal."

These two provisions may both come into play when a ward on probation for a DJF-eligible offense commits a new offense that is not listed in section 707(b). If the prosecution files a notice of a probation violation under section 777 (777 notice), the court has the power to revoke the ward's probation and commit the ward to DJF. However, if the prosecution files a new section 602 petition (602 petition), the plain language of section 733(c) will prohibit the court from ordering a DJF commitment if the allegation is admitted or found true because the new offense is the "most recent offense alleged in any petition" and is not DJF eligible. The question arises whether, under these circumstances, the juvenile court may use its broad discretion under section 782 to dismiss the second petition so that the matter can be treated as a probation violation, allowing the ward to be committed to DJF. Based on the plain language of the statutes, legislative history, and the policies served by the juvenile court law, we conclude the court has that discretion.


A. September 2008 Assault on Joseph C.

On September 16, 2008, 11-year-old Joseph C. was riding his bicycle in Santa Rosa when a car stopped next to him. The minor, Greg F., and two other boys jumped out, yelling Norteno gang slogans and displaying gang hand signs. The minor hit Joseph on the head with a baseball bat, knocking him off his bicycle. The minor tried to take the bicycle, but Joseph clung to it. Joseph was airlifted to the hospital and underwent surgery. He was hospitalized for seven days and suffered lingering neurological damage.

The ensuing 602 petition alleged the minor had committed assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), had personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), and had acted for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). The minor admitted each of the allegations, and the petition was sustained. Because "[a]ssault by any means of force likely to produce great bodily injury" is one of the offenses listed in section 707(b), the minor was eligible for a DJF commitment. (§ 707, subd. (b)(14); see § 733(c).) The maximum term was 17 years.

The probation department unanimously recommended a commitment to DJF based on "the minor's callous act of violence upon a young victim, who continues to be emotionally and physically [a]ffected by the minor's actions, the minor's lack of remorse for the victim, and the risk he poses to the community." Due to the severity of his offense, the minor was not considered a suitable candidate for the department's placement services. Moreover, the department believed DJF could best provide him with "appropriate and necessary treatment and rehabilitation services." The juvenile court declared the minor a ward of the court but rejected the probation department's recommended disposition and instead ordered an out-of-home placement. This placement was terminated after five months because the minor refused to participate in treatment. Staff voiced concern over the minor's entrenched gang involvement and lack of empathy for his victim. On June 11, 2009, the minor was detained in juvenile hall pending identification of another suitable placement.

B. August 2009 Battery in Juvenile Hall

On August 16, 2009, during dinner at the juvenile hall, the minor and two other Norteno gang members suddenly stood up and attacked three Sureno gang members sitting nearby. Punches were exchanged. Juvenile hall staff members were initially unable to break up the fight.

The district attorney filed a new 602 petition on August 18, 2009, alleging the minor had committed two offenses: (1) battery for the benefit of a gang (Pen. Code, §§ 186.22, subd. (d), 242); and (2) knowing participation in a gang (Pen. Code, § 186.22, subd. (a)). Neither offense is "described in subdivision (b) of Section 707." (§ 733(c).) At the detention hearing the next morning, the minor admitted the battery offense and associated gang enhancement. In return, the district attorney dismissed the gang participation count. The juvenile court accepted the admission and set the matter for a disposition hearing.

Three days later, with the probation officer's concurrence, the district attorney filed an ex parte request to calendar a motion to "withdraw" the minor's plea. The following Monday, the prosecutor filed a notice of probation violation under section 777, based on the assault in juvenile hall. The prosecutor admitted having filed the 602 petition in error, rather than proceeding by way of a probation violation. He asked the court to withdraw the minor's plea and strike the petition, explaining that the prosecution was "trying to get to a [DJF-eligible] offense" related to the prior petition because of the probation department's concerns. In particular, he noted, "there aren't any placements that are willing to accept Greg and we don't have anywhere to put him." With the court's permission, the prosecutor filed a formal motion to set aside the minor's admission and dismiss the August 18, 2009 petition. After full briefing and argument, the court granted the motion, dismissing the August 18, 2009 petition in the interests of justice and the minor's welfare. (§ 782.) The court explained that it dismissed the new 602 petition to create the "best options" for disposition.

The minor subsequently admitted the section 777 probation violation. The court referred the matter to probation for an updated recommendation on disposition. The matter was continued several times to determine whether the minor could be successful in juvenile hall or in another placement short of DJF. When the disposition hearing was held on February 3, 2010, the probation officer reported that the minor had been involved in yet another assault on a rival gang member in juvenile hall. Moreover, in light of his gang involvement and violent behavior in juvenile hall, none of the placement programs the probation officer had contacted were willing to accept the minor. The court committed the minor to DJF and set the maximum term of confinement at 17 years.

This dispositional order was reversed on appeal. The Court of Appeal held that section 733(c) limits a juvenile court's authority to dismiss a petition under section 782, and the court could not commit the minor to DJF based on the August 18, 2009 petition. In reaching that conclusion, the appellate court agreed with V.C. v. Superior Court (2009) 173 Cal.App.4th 1455 (V.C.) and rejected the contrary reasoning in In re J.L. (2008) 168 Cal.App.4th 43 (J.L.). We granted review to resolve the conflicting case law. We now hold that section 733(c) does not deprive the juvenile court of its discretion to dismiss a 602 petition and commit a ward to DJF when, in compliance with section 782, such a dismissal is in the interests of justice and for the benefit of the minor.


The minor argues the juvenile court lacked authority to dismiss his 602 petition for two reasons. First, he asserts the limitation on DJF commitments in section 733(c) is a more specific, later-enacted statute that overrides section 782. Second, he contends section 782 may only be used to terminate jurisdiction over a minor. Because the dismissal here was used to "reach back" to an earlier petition and commit an otherwise-ineligible ward to DJF, the minor claims the dismissal was not "in the interests of justice," as required by section 782. We reject both of these arguments.

A. Summary of Juvenile Delinquency Proceedings

Although juvenile delinquency proceedings have been called "quasi-criminal" (Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 801), we have also observed that they are " 'fundamentally different' from adult criminal proceedings" and require "that a 'balance' be struck between the 'informality' and 'flexibility' " necessary in juvenile proceedings and attention to the juvenile's constitutional rights. (Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212, 1215.) One important difference between juvenile delinquency and adult criminal proceedings is the speed with which juvenile proceedings must begin and progress. (See id. at p. 1216.) Much must be completed in a narrow timeframe.

When there is reasonable cause to believe a minor has violated a law defining a crime, law enforcement may take the minor into temporary custody. (§§ 602, subd. (a), 625, subd. (a).) If the minor is detained, law enforcement must deliver the minor "without unnecessary delay" to the probation officer in an appropriate county (§§ 626, subd. (d)), 626.5, subd. (b)) and provide the probation officer with incident reports (§§ 626, subd. (c), 626.5, subd. (a)). The probation officer must "immediately investigate the circumstances of the minor and the facts surrounding his or her being taken into custody" and determine if continued detention is necessary. (§ 628, subd. (a); see § 628.1.) If the probation officer determines that the minor is already a ward of the juvenile court, the officer can file a 777 notice. (§ 777, subds. (a), (b).) If the minor is not a ward and the probation officer determines that delinquency proceedings should be initiated, the officer refers the matter to a prosecuting attorney for the filing of a 602 petition. (§§ 630, 650, 653.5, subd. (b).)

If a 777 notice or 602 petition is not filed within 48 hours (excluding noncourt days) after the minor was taken into custody, the minor must be released. (§ 631, subd. (a); In re Daniel M. (1996) 47 Cal.App.4th 1151, 1154-1155; Cal. Rules of Court, rule 5.752(b).) A detention hearing must be held by the next judicial day after a petition or notice is filed. (§ 632, subd. (a).) At the detention hearing, the court reviews the probation officer's report to determine whether continued detention of the minor is necessary. (§ 636; Cal. Rules of Court, rule 5.760.)

The next step following a 602 petition is the jurisdictional hearing, at which the court decides whether a crime has been committed. (§ 701.) Offenses alleged in the 602 petition must be proven true "beyond a reasonable doubt" and be "supported by evidence[] legally admissible in the trial of criminal cases." (§ 701; accord, In re Eddie M. (2003) 31 Cal.4th 480, 487.) If the minor is detained, the jurisdictional hearing must be held within 15 judicial days after the detention order. (§ 657, subd. (a)(1).) As in this case, the minor may admit the allegations in the 602 petition at the detention hearing and waive further jurisdictional proceedings. (§ 657, subd. (b).)

Once jurisdiction on a 602 petition is established, the case proceeds to a dispositional hearing. At this hearing, the court considers the probation officer's social study and other evidence to determine an appropriate disposition. (§ 706.) In reaching a disposition, the court considers (1) the minor's age, (2) the circumstances and gravity of the offense, and (3) the minor's previous delinquent history. (§ 725.5.) The court may place the minor on probation, with or without declaring the minor a ward of the court, or it may declare the minor a ward and order appropriate treatment and placement. (§§ 725, 726.) Placement options include the home of a relative or extended family member; a suitable licensed community care facility or foster home; juvenile hall; a ranch, camp or forestry camp; and, the most restrictive setting, DJF. (§§ 727, subd. (a), 730, subd. (a), 731, subd. (a)(4).) The court can also set aside the jurisdictional findings and dismiss the petition if it finds that the interests of justice and the welfare of the minor require a dismissal, or if it finds that the minor is not in need of treatment or rehabilitation. (§ 782.)

B. Section 733(c) Does Not Deprive the Court of Its Discretion Under Section 782

Section 733(c)'s commitment limitation provides that a juvenile ward may not be committed to DJF 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 [violent felony offenses] . . . [or] subdivision (c) of Section 290.008 of the Penal Code [sex offenses]." Thus, a DJF commitment must be based on a recent violent offense or sex crime adjudicated in a delinquency petition. It cannot be ordered based on a past offense in the ward's juvenile record if the ward's most recent offense does not qualify.

Because section 733(c)'s commitment limitation depends on the nature of "the most recent offense alleged in any petition" (italics added), the statute does not bar DJF commitments imposed for probation violations on qualifying offenses. (In re D.J. (2010) 185 Cal.App.4th 278, 286; In re M.B. (2009) 174 Cal.App.4th 1472, 1476; J.L., supra, 168 Cal.App.4th at p. 60.) When the voters enacted Proposition 21 in 2000, they replaced the supplemental petition procedure formerly used under section 777 with a notice provision. (In re Eddie M., supra, 31 Cal.4th at pp. 489, 491.) Thus, a probation violation procedure is initiated under section 777 by the filing of a notice, not a petition. (J.L., at pp. 58-59.) Significantly, a probation violation proceeding involves a different standard of proof than a section 602 proceeding, and it does not result in the charging or adjudication of a criminal offense, even if the conduct alleged is criminal. (In re Eddie M., at p. 506; J.L., at pp. 59-60.) Moreover, if a violation is established, the most restrictive placement the court can impose is the maximum term of confinement on the original offense for which the ward was placed on probation. (John L. v. Superior Court (2004) 33 Cal.4th 158, 165.)

In June 2009, Greg F. was placed on probation and detained in juvenile hall. The maximum term of confinement for his violent, gang-motivated assault on Joseph C. was 17 years. Just two months later, the minor committed a second, although less violent, assault on rival gang members in juvenile hall. This second offense could have been alleged in a 777 notice and treated as a probation violation. Had the district attorney followed this course, the minor does not dispute that he could have been committed to DJF for up to 17 years as punishment for the original offense. If a ward's most recent offense is alleged in a 777 notice, as opposed to a 602 petition, section 733(c) does not apply. However, the prosecutor mistakenly brought the minor's new offense before the court in a 602 petition rather than a 777 notice. The question now is whether the trial court had discretion to dismiss the 602 petition, after the minor had admitted the non-DJF-eligible offense there alleged, and treat the matter as a probation violation.

"Juvenile courts have long had the authority to dismiss juvenile matters at the disposition stage of proceedings. (In re W.R.W. (1971) 17 Cal.App.3d 1029, 1036.) Such authority was statutorily expressed between 1915 and 1961. (Ibid.) When the entire juvenile court law was repealed and recodified in 1961, without enactment of a general dismissal provision, the reviewing court in In re W.R.W. concluded juvenile courts nevertheless properly continued the practice of exercising discretion to dismiss juvenile matters. (Ibid.) It noted: 'The [juvenile] court is accorded great discretion in its disposition of juvenile matters. It may at any time modify or vacate a dispositional order and may entirely terminate its jurisdiction when it is satisfied that further supervision is unnecessary [citations]. It would be inconsistent with the liberal termination provisions and the general thrust of the juvenile court law to hold that the referee, at the time of original disposition, could not dismiss the case if he felt that court supervision would be unnecessary and perhaps harmful.' (Id. at p. 1037, fns. omitted.) Shortly after the decision in In re W.R.W., 'the Legislature drafted section 782, restoring to the juvenile law the clear power of the court to dismiss juvenile petitions in the interests of justice.' (Derek L. v. Superior Court (1982) 137 Cal.App.3d 228, 232 . . . .)" (V.C., supra, 173 Cal.App.4th at pp. 1463-1464, fn. omitted.)

Section 782 describes the juvenile court's discretion to dismiss delinquency petitions. It states, in relevant part: "A judge of the juvenile court in which a petition was filed, at any time before the minor reaches the age of 21 years, may dismiss the petition or may set aside the findings and dismiss the petition if the court finds that the interests of justice and the welfare of the minor require such dismissal, or if it finds that the minor is not in need of treatment or rehabilitation." (§ 782.)

Determining whether the commitment limitation of section 733(c) prevails over the dismissal discretion granted by section 782 requires analysis of these statutes in accordance with long-standing principles of interpretation. Our fundamental task in construing a statute "is to ascertain the Legislature's intent [and] effectuate the law's purpose. [Citation.] We begin our inquiry by examining the statute's words, giving them a plain and commonsense meaning. [Citation.] In doing so, however, we do not consider the statutory language 'in isolation.' [Citation.] Rather, we look to 'the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]' [Citation.] That is, we construe the words in question ' "in context, keeping in mind the nature and obvious purpose of the statute . . . ." [Citation.]' [Citation.] We must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.] We must also avoid a construction that would produce absurd consequences, which we presume the Legislature did not intend. [Citations.]" (People v. Mendoza (2000) 23 Cal.4th 896, 907-908.)

1. Statutory Language

Nothing in the language of section 733 indicates that the Legislature intended this provision to override the juvenile court's discretion to dismiss a petition when dismissal is in the interests of justice and for the welfare of the minor. (§ 782.) Section 733(c) does not mention section 782, nor does it state that its provisions prevail over section 782, or any other law. When the Legislature intends for a statute to prevail over all contrary law, it typically signals this intent by using phrases like "notwithstanding any other law" or "notwithstanding other provisions of law." (See Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 995; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 386.) The Legislature did not include this language in section 733(c), nor did it amend section 782 to prohibit dismissals to permit a DJF commitment.

The absence of such an express limitation on the juvenile court's power under section 782 is significant. The Legislature is presumed to be aware of all laws in existence when it passes or amends a statute. (Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 780, fn. 3; In re Michael G. (1988) 44 Cal.3d 283, 293.) " 'The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.' [Citations.]" (Estate of McDill (1975) 14 Cal.3d 831, 837-838.) For over 40 years, section 782 has given juvenile courts the power to dismiss a delinquency petition if doing so serves the interests of justice and the welfare of the minor. (Stats. 1971, ch. 607, p. 1211, § 1.) If the Legislature had intended to deprive courts of this long-held discretionary power when a dismissal would conflict with section 733(c), it could have easily made this intent plain. It did not.

The minor argues that section 733(c) must prevail over section 782 because it is the more specific and later-enacted statute. However, this argument has two flaws. First, even under his reading of the statute, the minor concedes that a limitation on discretion must be implied. Section 733(c) is not more specific than section 782 on this point. Indeed, it does not mention a limit on section 782 discretion at all. " 'An implied amendment is an act that creates an addition, omission, modification or substitution and changes the scope or effect of an existing statute.' [Citation.] Amendments by implication are disfavored and should 'be employed frugally, and only where the later-enacted statute creates such a conflict with existing law that there is no rational basis for harmonizing the two statutes, such as where they are " 'irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. . . .' " [Citation.]' [Citation.]" (In re Sean W. (2005) 127 Cal.App.4th 1177, 1187.) Second, the two provisions are not irreconcilably in conflict. As we have noted, " '[t]he principle that a specific statute prevails over a general one applies only when the two sections cannot be reconciled. [Citations.]' [Citation.] If we can reasonably harmonize '[t]wo statutes dealing with the same subject,' then we ...

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