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In re Travis J.

California Court of Appeal, First District, Fifth Division

December 17, 2013

IN RE TRAVIS J., a Person Coming Under the Juvenile Court Law.
v.
Travis J., Defendant and Appellant. The People, Plaintiff and Respondent,

Superior Court of the City and County of San Francisco, No. JW09-6158, Julie Tang, Judge. (San Francisco City and County Super. Ct. No. JW09-6158)

Page 188

COUNSEL

Violet E. Grayson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share and Christina vom Saal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Bruiniers, J.

Page 189

Travis J. entered into a plea agreement in the juvenile court, pursuant to which he admitted felony charges of assault with a firearm and carrying a concealed firearm in a public place. As part of the plea agreement, he stipulated to a commitment to the Department of Corrections and Rehabilitation Division of Juvenile Justice (also Division of Juvenile

Page 190

Facilities; hereafter DJJ). In exchange, the district attorney agreed to withdraw pending motions to determine if Travis was a fit and proper subject for adjudication under the juvenile court law, dismiss three remaining felony counts in the petition in which the plea was entered, dismiss four pending felony counts in another petition (including an armed robbery), and dismiss two pending probation violation petitions. Travis asked the court to impose, and the court did impose, a mitigated DJJ sentence of three years. Travis waived credits for all time served earned up to the date of sentence. The court issued an order for restitution to two victims and imposed various terms and conditions of probation.

[165 Cal.Rptr.3d 638] Travis challenges the dispositional order, contending that a minor may not be committed to DJJ by stipulation, and that the matter should be remanded for consideration of less restrictive alternatives. He also challenges the imposition of probation conditions and a portion of the court's restitution order. The People concede that the probation conditions are improper in the case of a DJJ commitment, and we will order them stricken. We find that the restitution ordered to one of the victims is not supported by substantial evidence and remand for further hearing on that issue. We otherwise affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitions Prior to 2011

On December 22, 2008, the Santa Clara County District Attorney filed a wardship petition (Welf. & Inst.Code, § 602) [1] alleging that Travis, then age 14, committed grand theft and possessed stolen property (Pen.Code, §§ 484, 487, subd. (a), 496, subd. (a)). After Travis admitted receiving stolen property, the matter was transferred to San Francisco County for disposition. Travis was placed on home probation with his father.

On July 6, 2009, Travis's probation officer filed a request for an order of detention after Travis removed his ankle monitor and did not return to his father's home. On July 21, he was adjudged a ward of the juvenile court and was again placed on home probation with his father.

On August 21, 2009, the San Mateo County District Attorney filed a section 602 wardship petition alleging that Travis, then age 15, committed three misdemeanors: obstructing a police officer, misidentifying himself to a police

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officer, and defacing property (Pen.Code, §§ 148, subd. (a)(1), 148.9, subd. (a), 594, subd. (b)(2)). The matter was again transferred to San Francisco County, and Travis was detained at juvenile hall. Travis admitted obstructing a police officer, was redeclared a ward of the court, and was placed at Lifeworks Group Home in Booneville.

On May 21, 2010, a warrant issued for Travis's arrest after he absconded from Lifeworks Group Home. The warrant was recalled, on June 23, after Travis was taken into custody. The juvenile court vacated the out-of-home placement order and placed him on home probation with his father. On September 17, a notice of motion to revoke Travis's probation (§ 777) was filed after he again left his father's home and failed to attend school. Travis was again returned home.

2011 Petitions

On August 26, 2011, San Francisco police investigated reports of shots fired. Marquita Davis, an adult, reported that Travis, her former boyfriend, approached the car she was sitting in, called her a bitch, and strangled her. When she began to cry, Travis released Davis, removed a handgun from his pocket, aimed it at her stomach, removed eight dollars from her pocket, and then fired the gun at the car's rear tire. Police found a flat rear tire, three shell casings, and one spent round on the ground.

On November 3, 2011, San Francisco police also investigated a call from Oliver Goldsmith stating that Travis had fired a gun at him. Goldsmith reported that he was in his van when another minor walked up to ask for some " weed." Goldsmith noticed Travis walking up behind the other [165 Cal.Rptr.3d 639] minor with a gun in his hand. When Goldsmith accelerated away, he heard gunshots. When Travis fired at Goldsmith's van, a bullet singed the back of Goldsmith's neck. A second bullet passed through the rear passenger window and a third bullet passed through the van's rear window, shattering it. Travis was found in a nearby apartment, where a semiautomatic handgun was found inside the stove.

On November 7, 2011, two section 602 wardship petitions were filed against Travis, alleging a total of nine felony counts. The first petition, regarding the incident with Davis, alleged second degree robbery (Pen.Code, §§ 211, 212.5, subd. (c)), assault (Pen.Code, § 245, subd. (a)), and carrying a concealed and loaded firearm in a public place (Pen.Code, §§ 12025, subd. (a)(1), 12031, subd. (a)(1)). The second petition, regarding the incident

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with Goldsmith, alleged attempted murder (Pen.Code, §§ 187, 664), assault with a semiautomatic firearm (Pen.Code, §§ 245, subd. (b), 12022.5, 1192.7, subd. (c), 667.5, subd. (c)), discharging a firearm at Goldsmith while he was occupying a motor vehicle (Pen.Code, § 246), and carrying a concealed and loaded firearm in a public place (Pen.Code, §§ 12025, subd. (a)(2), 12031, subd. (a)(1)). Several firearms allegations also were alleged with respect to the robbery count in the Davis petition and the attempted murder count in the Goldsmith petition (Pen.Code, §§ 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), (c)). The petitions also included notice of aggregation of commitment time for the current and prior sustained petitions.

With respect to both of the 2011 petitions, the district attorney requested a hearing to determine whether Travis was fit for adjudication under the juvenile court law (§ 707). Travis filed a motion asking the court to find that he was fit for juvenile court adjudication, with supporting evaluations from Dayle Carlson, Marynella Woods, and Amanda Gregory, Ph.D.[2] Carlson, Woods, and Gregory recommended that Travis be placed in a Pennsylvania ...


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