IN RE: M.G.

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Court of Appeal, Fifth District, California.

IN RE: M.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.G., Defendant and Appellant.

F057891

Decided: March 03, 2010

Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONProcedural and Factual summary

This is an appeal from an order of the juvenile court committing appellant M.G. (the minor) to the Division of Juvenile Facilities (DJF) 1 after sustaining a wardship petition filed on March 27, 2009.   The March 27 petition was one in a series of petitions involving this minor filed beginning in 2007.   The minor's juvenile history is relevant to the issues on appeal and we summarize it here.

In January 2008, the minor was caught in possession of a stolen laptop computer.   He was arrested and detained in juvenile hall for six days (Jan. 16 to Jan. 22, 2008) until released to his mother's custody.   At the time, the minor was on informal probation for two other offenses, a March 2007 burglary (the minor was the lookout) and a December 2007 possession of marijuana on school grounds.

A first amended petition was filed on January 29, 2008, alleging a misdemeanor possession-of-marijuana count (28.5 grams or less), in addition to the receiving-stolen-property (the laptop) count.   At the contested jurisdictional hearing, the court dismissed the receiving-stolen-property count, finding it not true as alleged, but sustained the possession-of-marijuana count on the minor's admission.   Subsequently, the court allowed the minor to withdraw his admission and defer entry of judgment.  (Welf. & Inst.Code,2 § 654.2.) The minor was again placed on informal probation.

On May 27, 2008, a new petition was filed alleging that the minor had committed an act of vandalism.   The vandalism occurred in retribution for an altercation at a local 7-11 market between the minor and some other young adults.   The minor was detained in juvenile hall from May 23 until June 6, 2008, when, at the jurisdictional hearing, he was released to the custody of his mother.   The minor admitted one count of misdemeanor vandalism.   On July 8, 2008, the minor was placed on formal probation and placed in the custody of his mother.   The conditions of probation included a 15-day commitment to juvenile hall with credit for time served (15 days).

On March 27, 2009, the last petition was filed alleging that the minor had committed five counts of home invasion robbery in violation of Penal Code section 211 and one count of burglary in violation of Penal Code section 459.   The petition also alleged that the minor acted in concert with others and entered a structure within the meaning of Penal Code section 213, subdivision (a)(1)(A), and that all six offenses were serious and violent felonies within the meaning of Penal Code section 1192.7, subdivision (c) and section 667.5, subdivision (c).  Prior to adjudication, the minor admitted to committing one count of home invasion robbery and admitted the Penal Code section 213 allegation.   The remaining counts were dismissed with a People v. Harvey (1979) 25 Cal.3d 754 waiver.   At disposition, the juvenile court ordered that the minor be committed to DJF for a maximum period of confinement of nine years.

The home invasion occurred after the minor and some adult friends decided to rob a man who lived in the same apartment complex because he was known to have cash.   There were a number of men in the apartment, which the minor and his coperpetrators entered through a bathroom window.   Although the minor claimed he was only the “lookout,” several of his coperpetrators claimed the same role.   The victims told police that three to five men entered the apartment with their faces covered and demanded money.   One of the men had a stick-like object.   A coperpetrator claimed the minor had a pool cue and someone else had a knife.   The minor denies he had a pool cue.   The robbers pinned the victims to the ground, bed, or under tables and then took money, computers, and cell phones from the victims.   The robbers ran off toward a nearby wooded area.   The minor was found in the wooded area with a large amount of cash under him.

Discussion

I. Commitment to DJF

The minor's first contention on appeal is that the juvenile court abused its discretion by committing him to DJF. His challenge is two-fold.   First, he claims that there is insufficient evidence to support a finding that the commitment is in his best interests, and second he claims that the court failed to seriously consider less-restrictive alternatives.   We disagree on both points.

A minor is not to be committed to DJF unless the juvenile court is “fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided․”  (§ 734.)   Section 202, subdivision (b), recognizes punishment as a rehabilitative tool.   It provides in part:  “Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment, and guidance consistent with their best interest and the best interest of the public.   Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances.   This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.”

Under current law, there is greater emphasis on punishment for rehabilitative purposes, and on a restrictive commitment, as a means of protecting the public safety than in past decades, although the rehabilitative objectives of juvenile law remain.   Commitment to DJF cannot be based solely on retribution grounds, but must be supported by evidence demonstrating (1) probable benefit to the minor and (2) that less-restrictive alternatives are ineffective or inappropriate.  (In re Carl N. (2008) 160 Cal.App.4th 423, 432-433.)   The interest of public safety, however, is equally a governing factor in crafting juvenile dispositions and is a goal of the juvenile system.  (In re Calvin S. (2007) 150 Cal.App.4th 443, 449.)

Contrary to the minor's contention on appeal, the appropriateness of less-restrictive alternatives was fully considered by the juvenile court.   There was extensive argument by the minor's counsel.   The probation officer implicitly discussed less-restrictive alternatives in his report and recommendation.   The officer reported that he was recommending a DJF commitment because of the seriousness of the offense and the major role the minor played in it.   The officer opined that there was a likelihood the minor would reoffend.   Implicit in this recommendation is the probation officer's conclusion that less-restrictive alternatives were inappropriate to protect the public safety.

The court commented that it had considered less-restrictive alternatives (including a boot camp) but opined that these less-restrictive alternatives “just won't be effective” because they are not locked facilities, and the offense was serious and the minor needed structure for more than these alternatives could provide.   The court characterized the current offense as an “outrageous violation” of a private home and one of the “worst offenses” committed by a minor that the court had seen.   The court also observed that the minor actively participated in the offense and that he had previous opportunities to reform, having been on informal and formal probation several times without success.   We add that the minor had served one prior commitment in juvenile hall.   All things considered, the court concluded that the nature of the offense and the minor's background warranted a commitment to DJF.

The record supports the court's decision.   The minor's contentions ignore the juvenile court's responsibility to consider not only his interests but also the interests of society.   The court has broad discretion to choose “probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public,” including commitment to DJF. (In re Eddie M. (2003) 31 Cal.4th 480, 507.)   “[P]lacements need not follow any particular order under section 602 and section 777, including from the least to the most restrictive.  [Citations.]  Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried.  [Citations.]”  (Id. at p. 507.)

Public safety is an appropriate consideration when crafting juvenile dispositions.   This was a serious and violent offense-one of the victims reported being struck in the stomach with a stick-like object.   Further, there is evidence that the minor was the person actually carrying the stick during the robbery.   This minor poses a potential threat to public safety and has a variety of complex problems.   The court noted that DJF had all the programs the minor would need “to get himself in the right direction including education, psychological, [and] drug rehabilitation․”

Given this record, we conclude the juvenile court did not abuse its discretion in committing the minor to DJF. Even though a less-restrictive placement may have provided some benefit to the minor, the juvenile court did not abuse its discretion by finding that a DJF commitment was the appropriate disposition given the nature of the offense and the minor's prior history.3  (See In re Reynaldo R. (1978) 86 Cal.App.3d 250, 256.)   The minor is in need of the structured, secure environment provided by DJF, both for his benefit as well as for the protection of the public.

II. Section 241.1

The minor's second contention is that the juvenile court failed to comply with section 241.1.   This section requires that, when it appears the minor comes within the description of both sections 300 and 602, there should be coordination between the county probation department and the county child welfare services, including recommendations by both departments prior to disposition, and that the court shall determine under which section to proceed.   The minor's position is based on evidence that there had been referrals to the county child welfare department concerning the minor's family, including that the minor's older brother had been removed from the mother and placed in foster care, and the minor was homeless at the time of the offense.

First, we agree with the respondent that the issue has been forfeited.   There was no assertion by the minor in the juvenile proceedings that he was a dependent child within the definition of section 300 and no request that a social worker report be prepared and considered before disposition.  (In re Josue S. (1999) 72 Cal.App.4th 168, 172-173.)   Although section 241.1 imposes a statutory duty on the juvenile court when the appropriate circumstances are met, this does not preclude application of the forfeiture rule.   Even most constitutional issues may not be raised for the first time on appeal.   (United States v. Olano (1993) 507 U.S. 725, 731.)   The reason is that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when the error easily could have been corrected when it first arose.  (In re Josue S., supra, at p. 171;  see also In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 536-537.)

The minor has cited no authority for his proposition that, because the purported omission is a statutory requirement, it is not subject to the forfeiture rule.   Other cases have held that the failure to prepare mandatory assessments is subject to the forfeiture rule.  (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [acknowledging that appellate courts have applied forfeiture doctrine in juvenile proceedings where there is failure to obtain reports required by statute].)   Had the issue been raised timely, the juvenile court could have considered whether section 241.1 applied to the minor, ordered a social worker report, and determined which status was appropriate.   The failure to raise the issue at the dispositional hearing precludes its consideration here.

Second, even if the issue were not forfeited, there is no prejudice.   The purpose of section 241.1 is to allow the court to determine whether to proceed under dependency or delinquency statutes when there is dual jurisdiction over a child, after considering the best interests of the child and the protection of the public. (§ 241.1;  D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127;  Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2001) 87 Cal.App.4th 320, 325;  In re Marcus G. (1999) 73 Cal.App.4th 1008, 1013.)

Given the serious nature of the offense, it is highly unlikely that the juvenile court would have chosen to treat this action as a dependency proceeding instead of as a delinquency matter, even if this were a dual jurisdiction case.   There is no showing that the minor was a dependent ward at the time the delinquency action was filed.  (See In re Marcus G., supra, 73 Cal.App.4th at p. 1013.)   Further, the court was aware of the minor's family circumstances as they were covered by the probation officer's report.   The court was also familiar with the father's criminal record, the mother's drug addiction, and the brother's placement in foster care.   The minor was 16 at the time of this serious and violent offense.   In fact, the prosecutor considered whether to file the case as an adult criminal matter.   Under these circumstances, we do not believe another outcome was likely had the court requested a social worker report or considered the case a dual jurisdiction case under section 241.1.

III. “No contact” order

The minor's final contention on appeal is that the court's “no contact” order is unconstitutionally vague and overbroad because it does not contain a knowledge qualifier.  (In re Justin S. (2001) 93 Cal.App.4th 811, 816.)   The respondent concedes error.   We accept the concession and order that the no-contact order be amended.

DISPOSITION

The juvenile court's dispositional placement order is affirmed.   The “no contact” order is amended to read “the minor is not to knowingly have any contact, direct or indirect, or by telephone or electronic mail, with the victims in this matter.”

Wiseman, Acting P.J.

WE CONCUR:

Dawson, J.

Kane, J.

FOOTNOTES

FN1. At the time of trial, DJF was known as the Division of Juvenile Justice.   Prior to that it was know as the California Youth Authority.   (See In re H.D. (2009) 174 Cal.App.4th 768, 771.)   We adopt the current designation in this opinion..  FN1. At the time of trial, DJF was known as the Division of Juvenile Justice.   Prior to that it was know as the California Youth Authority.   (See In re H.D. (2009) 174 Cal.App.4th 768, 771.)   We adopt the current designation in this opinion.

FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN3. The minor's counsel characterizes the minor's record as “not long” and “not violent” with the exception of the current offense, with his history including “only possessing marijuana and vandalism.”   Counsel also states that the minor was “only intermittently having trouble with the law.”   We disagree with this characterization.   As we have summarized, the minor's history began in 2007 and extended to 2009.   It included a number of incidents, including a burglary.   The vandalism was retributory and occurred after an altercation between the minor and others.   The minor admitted to his probation officer that he had been in a fight that led to his jaw being broken, although that incident did not apparently lead to criminal charges.   The minor was known to associate with juvenile and adult offenders and was assigned to the probation department's intensive supervision/high-risk caseload..  FN3. The minor's counsel characterizes the minor's record as “not long” and “not violent” with the exception of the current offense, with his history including “only possessing marijuana and vandalism.”   Counsel also states that the minor was “only intermittently having trouble with the law.”   We disagree with this characterization.   As we have summarized, the minor's history began in 2007 and extended to 2009.   It included a number of incidents, including a burglary.   The vandalism was retributory and occurred after an altercation between the minor and others.   The minor admitted to his probation officer that he had been in a fight that led to his jaw being broken, although that incident did not apparently lead to criminal charges.   The minor was known to associate with juvenile and adult offenders and was assigned to the probation department's intensive supervision/high-risk caseload.