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Court of Appeal, Fourth District, Division 1, California.

IN RE: MICHAEL H., A Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. MICHAEL H., Defendant and Appellant.

Civ. 22249.

Decided: September 17, 1980

Appellate Defenders, Inc. by Jeffrey J. Stuetz, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.

Statement of Facts

On August 14, 1979, a petition was filed in the Juvenile Department of the Superior Court, San Diego County, alleging Michael committed a battery the previous day, a violation of Penal Code section 242, bringing him within the provisions of Welfare and Institutions Code section 602.1 The petition further alleged a previous disposition had not been effective in Michael's rehabilitation and protection in that he was again within the provisions of section 602, necessitating further orders under section 777.

The adjudicatory hearing was held before a referee on August 30, at which Michael was represented by counsel. The testimony disclosed Michael, while in custody at Rancho del Campo, had struck a fellow inmate. The referee found:

“The defense of self—defense has not been made out, and I am satisfied that the petition is true and find it to be so beyond a reasonable doubt.”

There was no separate, express finding made at the close of the hearing as to whether the previous disposition had been ineffective.

Michael's counsel requested an evaluation for commitment to Camp West Fork, a county juvenile institution, rather than to the California Youth Authority (CYA). The referee ordered the evaluation and set the disposition hearing for September 5.

A different referee presided at the September 5 hearing. Michael was represented by the same attorney. The court officer from the probation department informed the referee Michael had been rejected by Camp West Fork because of “A. W. O. L. behavior, poor adjustment at Rancho del Campo, including a true finding of battery and assaultive nature.” The court officer renewed the recommendation for commitment to CYA made in the social study prepared for the August 30 hearing. That report reviewed Michael's previous offenses (attempted burglary, displaying a deadly weapon, grand theft, and escape from Rancho del Campo) and his repeated disruptive behavior and failure in school at Rancho del Campo.

Michael's counsel urged the referee to send Michael to Camp West Fork or return him to Rancho del Campo, to which the referee replied:

“I can't make an order if they have screened him and found him not fit. Judge Todd has already made a commitment order to the Youth Authority. He made that order on July 12th. He signed the order and sent this youngster back to camp and then he got himself into difficulties … and at this point I don't feel I cannot go along with the recommendation. He has some serious problems and considering, what I must do, the local problem first, he has already been through our camp and has not been successful.”

Michael's counsel then asked the referee to make the referral to CYA for a 120—day diagnostic study only. The referee pointed out the 120—day study (§ 1737) is applicable to adults only. The referee commented, “And he has already gone through all of this.”

The referee then set the maximum term for the previous offenses on which the commitment would be based: grand theft (three years with credit for 73 days' custody) and escape (six months with credit for 34 days). For the new finding of battery, the maximum custody was set at six months with 24 days' credit. Whether the commitments were intended to be concurrent or consecutive was not stated.

The referee signed the findings and order for commitment on September 5, which recited “the Court has read and considered the social study made by the probation officer.” Again, no reference was made to concurrent or consecutive confinements. Judge Todd signed his approval on September 11 and also a commitment form listing the offenses and the terms and then the letters “CS” (consecutive).

The Contentions

Michael contends: (1) If the petition is under section 602, the commitment should be reversed because the Legislature intended, and due process requires, one uniform procedure for the modification of a disposition; (2) if the petition is under section 777, the CYA commitment should be reversed because a technical battery, standing alone, is insufficient evidence to support a finding the previous disposition was ineffective; (3) assuming the commitment to CYA is affirmed, the maximum period of confinement must nevertheless be reduced because [a] there was no express finding the previous disposition was ineffective in his rehabilitation, [b] there was no express order for consecutive terms and [c] the subordinate terms cannot exceed two months each (In re Eric J., 25 Cal.3d 522, 159 Cal.Rptr. 317, 601 P.2d 549); and (4) he is entitled to a new disposition hearing because the referee erroneously believed he had no jurisdiction to commit him to Camp West Fork or to order a CYA diagnostic study.

The Procedure Followed

We agree with Michael that the Legislature intended one uniform procedure for the modification of a previous disposition. Section 775 provides, “Any order … may at any time be changed, modified, or set aside, … subject to the procedural requirements as are imposed by this article.” (Italics added.) Within the article is section 777: “‘[A]n order changing or modifying a previous order by directing commitment to the Youth Authority shall be made only after noticed hearing upon a supplemental petition.”’ (Italics added; In re Ronald E., 19 Cal.3d 315, 326, 137 Cal.Rptr. 781, 788, 562 P.2d 684, 691.) Where a prosecutor seeks the modification of a previous disposition on the ground that it was ineffective in the rehabilitation of the minor, a petition under section 777 must be filed. (In re Richard W., 91 Cal.App.3d 960, 978, 155 Cal.Rptr. 11; In re Glenn K., 74 Cal.App.3d 342, 346, 141 Cal.Rptr. 486; contra, In re Ruben M., 96 Cal.App.3d 690, 698, 158 Cal.Rptr. 197; cf. In re John G., 72 Cal.App.3d 242, 139 Cal.Rptr. 849, dealing only with commitment on the new section 602 finding and not modification of previous dispositions.)

The petition here, although entitled a “W & IC SECTION 602” petition, is obviously a hybrid. It alleges a violation of Penal Code section 242 coming under section 602; it also contains the basic allegations required under section 777 and California Rules of Court, rule 1392. The petition sufficiently apprised Michael the prosecutor was seeking both a finding as to the new offense and a modification of the previous disposition. But we cannot approve a hybrid petition. If a prosecutor wishes a modification of a previous disposition by reason of a new offense and also a new jurisdictional finding under section 602 based on that offense, separate petitions should be filed and separately heard. Proceedings under the Juvenile Court Act must meet the constitutional due process standards required of criminal proceedings. (In re Donna G., 6 Cal.App.3d 890, 894, 86 Cal.Rptr. 421.) Fairness demands the trier of fact not be confronted with the minor's history in determining the truth of section 602 allegations, unless it is relevant to such determination. Since, however, Michael makes no claim of prejudice in this regard, and none is shown by the record, we are of the view the joinder in the instant case does not, in and of itself, compel reversal.

The Sufficiency of the Evidence

The record discloses the battery committed by Michael upon a fellow inmate was of a minor nature. There was one blow and no evidence of injury. The referee at the adjudicatory hearing so characterized it:

“… the offense really isn't much more than a kind of conduct that is expected to occur, not regularly, at least frequently at Rancho Del Campo.”

The standard of proof upon a section 777 petition is proof “beyond a reasonable doubt.” (In re Arthur N., 16 Cal.3d 226, 127 Cal.Rptr. 641, 545 P.2d 1345). Michael is correct in his contention: This “technical” battery is not, standing alone, sufficient evidence to warrant a finding beyond a reasonable doubt that the previous disposition was ineffective in his rehabilitation. Compare In re Donna G., supra, 6 Cal.App.3d 890, 86 Cal.Rptr. 421, where the only fact alleged in and proved under a section 777 petition was that on one occasion the minor was found in an intoxicated condition. The court held this, by itself, is not determinative, stating at page 895, 86 Cal.Rptr. at page 423:

“The material fact is not that the minor may, on some one occasion, have deviated from the paths of rectitude, but that such deviation exemplifies such a complete failure … to achieve rehabilitation as to compel the conclusion that further efforts … will be unavailing.”

The People argue, however, that the one incident of battery was not the only evidence before the referees. They point to the probation officer's social study which enumerates other misconduct while Michael was confined at Rancho del Campo and suggest this, together with the battery, was sufficient proof. In re Donna G., supra, answers this argument (at page 895, 86 Cal.Rptr. at page 424):

“The superior court file, which includes a series of probation reports relating to earlier court proceedings, contains many facts that would have borne on the issue before the court at the hearing herein involved. But the petition is totally devoid of any reference to those facts and none of them were adduced in the testimony at the hearing. The transcript of that hearing discloses that it was devoted exclusively to evidence of the single episode referred to in the petition and that it was not until after the court had made its adjudication sustaining the petition that the probation reports were even mentioned. If the court did consider those reports in reaching its adjudication, it erred [citation]; if the court were to consider the facts contained in those reports, due process, and section 777, require that they be at least summarized in the petition and regularly proven at the hearing.” (Italics added.)

Both section 777 and California Rules of Court rule 1392 require the supplemental petition to contain a “concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective ․” We conclude this means the prosecutor must allege in the petition all the facts upon which he intends to rely for a modification of the order so that the minor will have clear notice, in advance of the court hearing, of the charges he must rebut. (In re Donna G., supra in particular, page 894, 86 Cal.Rptr. 421; see also In re Arthur N., supra, 16 Cal.3d at page 239, 127 Cal.Rptr. 641, 545 P.2d 1345.) The fact that Michael's counsel did not object to inadequate notice does not bar a consideration of this issue on appeal. The referee did not state he was relying on any evidence other than that of the battery to modify the previous disposition.

We must therefore reverse the order of commitment to the extent it was based upon previously sustained petitions. We would, in any event, reach this same result by reason of the referee's failure to make an express finding of the ineffectiveness of the previous disposition. California Rules of Court rule 1392, subdivision (d) makes this mandatory. (See also In re Reynaldo R., 86 Cal.App.3d 250, 255, 150 Cal.Rptr. 71; In re Denise C., 45 Cal.App.3d 761, 766, 119 Cal.Rptr. 735.) We need not go on to consider Michael's remaining contentions except to state, for the guidance of the juvenile court, an order for consecutive terms must be express or the terms of confinement will be deemed concurrent. (In re Robert S., 92 Cal.App.3d 355, 364, 154 Cal.Rptr. 832.)

The Disposition

The order is affirmed as to the confinement based on the trivial Penal Code section 242 violation and reversed as to the confinement on the previously sustained petitions for the violations of Penal Code section 487.2 and Welfare and Institutions Code section 871. Since the maximum period of confinement which could have been imposed (six months) has expired, Michael is ordered released from custody if not otherwise under lawful restraint. The order of the juvenile court is modified to provide that the confinement in the Youth Authority be terminated upon the finality of this decision.



1.  All references are to Welfare and Institutions Code unless otherwise specified.

LORD,* Associate Justice. FN* Superior Court Judge assigned by the Chairperson of the Judicial Council.

BROWN, P. J., and STANIFORTH, J., concur. Hearing denied; CLARK, J., dissenting.

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