IN RE: ANTHONY H.

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Court of Appeal, Second District, Division 5, California.

IN RE: ANTHONY H., a minor. The PEOPLE, Plaintiff and Respondent, v. ANTHONY H., Defendant and Appellant.

Cr. 43703.

Decided: August 19, 1983

Wilbur F. Littlefield, Public Defender of Los Angeles County and Alan H. Simon, Gary M. Mandinach and Susan L. Burrell, Deputy Public Defenders for defendant and appellant. John Van De Kamp, Atty. Gen., Robert R. Anderson and Alice E. Altoon, Deputy Attys. Gen., for plaintiff and respondent.

Can a minor receive stayed custody (Ricardo M.) 1 time as a condition of probation when a court sustains a petition alleging that a minor has violated Health and Safety Code section 11360, subdivision (b),2 a misdemeanor which is punishable by a maximum fine of $100?   We answer the question in the negative.   However, we also point out that the minor can be placed on probation on reasonable terms and conditions for this offense, and if the minor violates any of these conditions of probation, the People have the authority to file a supplemental petition pursuant to Welfare and Institutions Code section 777 and request the court to make a finding that the previous disposition was ineffective in the minor's rehabilitation.   If the supplemental petition is sustained, the court may then remove the minor from his home and impose a reasonable period of time in juvenile hall for the violation of the probation condition.

FACTS

After an adjudication hearing, the juvenile court found that appellant Anthony H. had violated Health and Safety Code section 11360, subdivision (b).   At the disposition hearing, appellant was declared to be a ward of the court pursuant to Welfare and Institutions Code section 602.   Appellant was placed home on probation on various terms and conditions, including a condition that he serve 20 days in juvenile hall.   The detention time was then stayed for approximately three months (to December 21, 1982), and the minor was admonished by the court to “do well in school.”   The minor was told that if he “did poorly” he would have to spend Christmas in juvenile hall and serve the time that was stayed.

Appellant appeals only from the condition of probation imposing the stayed custody time in juvenile hall.   Appellant concedes that the People have a right to file a supplemental petition under Welfare and Institutions Code section 777 at a later time if he violates the terms and conditions of probation, and if there is a finding that the previous level of disposition is ineffective, at that time he can be removed from his home and receive time in custody for the probationary violation.

DISCUSSION

 We recognize that juvenile court law is to be liberally construed to carry out its purposes.  (In re Aline D. (1975) 14 Cal.3d 557, 562, 121 Cal.Rptr. 817, 536 P.2d 65.) 3  We also recognize that a juvenile court has broad discretion in imposing conditions of probation when it designs a rehabilitation and treatment program for a minor.   However, that discretion is not unlimited.  (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 749, 187 Cal.Rptr. 144, 653 P.2d 648.)

In determining the boundaries that circumscribe the exercise of judicial discretion in imposing custodial time on a minor, we are assisted by two relevant statutes.  Welfare and Institutions Code section 730 provides as follows:  “When a minor is adjudged a ward of the court on the ground that he is a person described by Section 602, the court may order any of the types of treatment referred to in Section 727, and as an additional alternative, may commit the minor to a juvenile home, ranch, camp or forestry camp.   If there is no county juvenile home, ranch, camp or forestry camp within the county, the court may commit the minor to the county juvenile hall.

“When such ward is placed under the supervision of the probation officer or committed to his care, custody and control, the court may make any and all reasonable orders for the conduct of such ward including the requirement that he go to work and earn money for the support of his dependents or to effect reparation and in either case that he keep an account of his earnings and report the same to the probation officer and apply such earnings as directed by the court.   The court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.”

Welfare and Institutions Code section 726 provides in pertinent part as follows:  “In all cases wherein a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over such ward or dependent child by any parent or guardian and shall by its order clearly and specifically set forth all such limitations, but no ward or dependent child shall be taken from the physical custody of a parent or guardian unless upon the hearing the court finds one of the following facts:

“(a) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor.

“(b) That the minor has been tried on probation in such custody and has failed to reform.

“(c) That the welfare of the minor requires that his custody be taken from his parent or guardian.

“In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

“․

“If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the ‘maximum term of imprisonment’ is the longest term of imprisonment prescribed by law.

“ ‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.

“Nothing in this section shall be construed to limit the power of the court to retain jurisdiction over a minor and to make appropriate orders pursuant to Section 727 for the period permitted by Section 607.”  (Emphasis added.)

 Under the principles articulated in People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, we must strictly construe the above statutes because we are dealing with a fundamental personal liberty interest.   Since an adult convicted of a violation of Health and Safety Code section 11360, subdivision (b), could receive no more than a $100 fine for a conviction under that statute, it is clear that a minor may not be subject to physical confinement in a juvenile hall or other secured facility, even if the time is stayed, solely because of his age.   A contrary rule would mean a denial of equal protection in violation of article I, section 7 of the California Constitution and the Fourteenth Amendment of the United States Constitution.   (Id., at p. 243, 131 Cal.Rptr. 55, 551 P.2d 375;  see also In re Wayne J. (1979) 97 Cal.App.3d 776, 781–782, 159 Cal.Rptr. 106.)

 Although incarceration of the appellant was not proper in the first instance in the case at bench, we note the following:  (1) A minor who has violated Health and Safety Code section 11360, subdivision (b), can be made a ward of the court under Welfare and Institutions Code section 602 and can be placed in the family home on probation under the supervision of a probation officer on reasonable terms and conditions of probation.   Placement in the home on probation involves no deprivation of fundamental personal liberty.  (In re Wayne J., supra, 97 Cal.App.3d 776, 781, 159 Cal.Rptr. 106;  In re John R. (1979) 92 Cal.App.3d 566, 569, 155 Cal.Rptr. 78.)  (2) The social history of the appellant indicates that all of the other conditions of probation imposed by the trial judge, including the requirements of school attendance and obeying all laws, were reasonable and directly related to the rehabilitation of the minor.  (Welf. & Inst.Code § 730;  In re Gerald B. (1980) 105 Cal.App.3d 119, 124, 164 Cal.Rptr. 193.)  (3) If the minor violates the terms and conditions of probation, a reasonable period of time in custody may be imposed for the violation provided the People proceed in accordance with the procedures set forth in Welfare and Institutions Code section 777.   There must be a noticed hearing upon a supplemental petition alleging facts sufficient to support the conclusion that the previous disposition has not been effective 4 in the rehabilitation of the minor.  (In re Phillip A. (1980) 109 Cal.App.3d 1004, 1007–1008, 169 Cal.Rptr. 88; 5  In re Mark M. (1980) 109 Cal.App.3d 873, 876–877, 167 Cal.Rptr. 461;  In re Gerald B. (1980) 105 Cal.App.3d 119, 124–126, 164 Cal.Rptr. 193;  In re Glenn K. (1977) 74 Cal.App.3d 342, 345–346, 141 Cal.Rptr. 486.)   When the procedures delineated in section 777 are followed, a minor's potential confinement to juvenile hall for rehabilitative purposes for a reasonable period of time, after the court has considered and weighed all appropriate factors, arises not from the minor's original wrongdoing, but because of a violation of a condition of probation lawfully imposed on a minor who has been made a ward of the court by virtue of criminal conduct under section 602.   As the court noted in In re Ricardo M., supra, 52 Cal.App.3d 744 at page 749, 125 Cal.Rptr. 291:  “Juvenile court proceedings are ‘conducted for the protection and benefit of the youth in question.’  (In re Ricky H., 2 Cal.3d 513, 520 [86 Cal.Rptr. 76, 468 P.2d 204].)  Juvenile court action thus differs from adult criminal prosecutions where ‘a major goal is corrective confinement of the defendant for the protection of society.’  (In re Ricky H., supra, at p. 519 [86 Cal.Rptr. 76, 468 P.2d 304].)  The protective goal of the juvenile proceeding is that ‘the child [shall] not become a criminal in later years, but a useful member of society.’  (People v. Renteria, 60 Cal.App.2d 463, 470 [141 P.2d 37].)”

The judgment is modified by striking the condition of probation imposing 20 days of stayed custody time in juvenile hall.   As modified, the judgment is affirmed.

I concur in the holding that “incarceration of the appellant was not proper in the first instance ․”  When, by clear dicta, my colleague extended his opinion, we parted our legal analysis ways.

The main opinion portends to hold that two puffs of smoke constitute a fire though one does not.   I disagree.

In In re Phillip A. (1980) 109 Cal.App.3d 1004, 169 Cal.Rptr. 88, the minor was declared a court ward after a Welfare and Institutions Code section 602 petition for battery was sustained.   Probation was ordered and the minor was subsequently violated for a reason for which there was no incarceration time provided (possession of less than an ounce of marijuana).1  We affirmed the court order declaring a violation of probation and committing the minor to the camp community program (classified as incarceration) under the original wardship petition.   Similarly, in In re Mark M. (1980) 109 Cal.App.3d 873, 167 Cal.Rptr. 461, this court, with the same judicial panel (Presiding Justice Kaus, Justices Hastings and Stephens), approved of custody time on a violation of probation based on a wardship declaration for burglary though the case was reversed on procedural grounds.   The violation of probation was due to truancy and Ricardo M. time was imposed, again on the original wardship petition.

There is nothing in either of those cases supportive of imposition of incarceration time when neither the original petition nor the violative acts authorize detention.   Here, the original petition was sustained but the court could not impose custody time.   Gratuitously, the main opinion seeks to hold that if the minor violates any condition of probation, one of which was to “do well in school,” Ricardo M. time (or, I assume, any other incarceration order) may be imposed on the initial wardship petition.   This cannot be done and I therefore dissent.   Unless the violation of probation were of such nature as to support a new Welfare and Institutions Code section 602 petition based on an offense providing custody time could there be imposed incarceration and then it would be imposed on the new petition, not on the initial petition for which no custody could be legally imposed.

FOOTNOTES

1.   In re Ricardo M. (1975) 52 Cal.App.3d 744, 125 Cal.Rptr. 291.

2.   Health and Safety Code section 11360, subdivision (b), provides in pertinent part as follows:  “Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than one avoirdupois ounce of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).   In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.”

3.   The purposes of the juvenile court law are set forth in Welfare and Institutions Code section 202 as follows:  “(a) The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the state;  to protect the public from criminal conduct by minors;  to impose on the minor a sense of responsibility for his own acts;  to preserve and strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when necessary for his welfare or for the safety and protection of the public;  and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents.   This chapter shall be liberally construed to carry out these purposes.“(b) The purpose of this chapter also includes the protection of the public from the consequences of criminal activity, and to such purpose probation officers, peace officers, and juvenile courts shall take into account such protection of the public in their determinations under this chapter.”   (Emphasis added.)

4.   Welfare and Institutions Code section 777, subdivision (b), contains an exception to this requirement.   It reads as follows:  “Notwithstanding the provisions of subdivision (a), if the petition alleges a violation of a condition of probation and is for the commitment of a minor to a county juvenile institution for a period of 15 days or less, it is not necessary to allege and prove that the previous disposition has not been effective in the rehabilitation or protection of the minor.   In order to make such a commitment the court must, however, find that the commitment is in the best interest of the minor.   The provisions of this subdivision may not be utilized more than twice during the time the minor is a ward of the court.”

5.   In In re Phillip A., supra, 109 Cal.App.3d 1004 at page 1007, 169 Cal.Rptr. 88, we said “[A]lthough possession of less than an ounce of marijuana is not an offense punishable by incarceration, when obedience of all laws has been imposed as a condition of probation for a Welfare and Institutions Code section 602 ward, time in custody may be imposed for a violation of that condition by possession of less than an ounce of marijuana.”   If a probationary program for a minor is to be meaningful, the juvenile court must have the tools and leverage to deal with a probation violation.   Otherwise, the juvenile offender can “thumb his nose” at the court.   As the late author and editor H.L. Mencken wisely remarked:  “Youth, though it may lack knowledge, is certainly not devoid of intelligence;  it sees through shams with sharp and terrible eyes.”

1.   “At a hearing held May 22, 1980, the marijuana charge was found to be true.   The remaining charges were dismissed and the matter was continued for a disposition hearing.   A probation report, prepared for that hearing, recommended that petitioner be placed home on probation on various conditions, one of which being that he spend 30 days in juvenile hall.  (See In re Ricardo M. (1975) 52 Cal.App.3d 744 [125 Cal.Rptr. 291].)“The court declined to follow the recommendation, indicating that it intended to order camp commitment for petitioner.   Upon argument being made that time in custody could not be imposed for the marijuana offense because an adult convicted of a similar offense could not be incarcerated, the court directed that petitioner be committed to the camp community program on the original wardship petition.”  (In re Phillip A., supra, 109 Cal.App.3d at p. 1006, 169 Cal.Rptr. 88.)  (Emphasis added.)The marijuana case is the same offense as in the case before us.

FEINERMAN, Presiding Justice.

HASTINGS, J., concurs.

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