IN RE: RUBEN S. (1989)

OPINION

STATEMENT OF THE CASE

Ruben S. appeals from a dispositional order in the juvenile court continuing his status as a ward (Welf. & Inst.Code, § 602) and committing him to the Youth Authority (YA).¹  Although the only petition filed in this proceeding was pursuant to section 602, Ruben's YA commitment was increased by aggregating time for previously sustained offenses.   Ruben contends the court erred (1) by aggregating his commitment without complying with section 777 and (2) by failing to appoint an audiologist pursuant to section 741 to evaluate the effect of his hearing loss on his behavior before committing him to YA.

We conclude this court should reverse the position it took in In re Ronald W. (1985) 175 Cal.App.3d 199, 220 Cal.Rptr. 557.   The juvenile court is not required to proceed pursuant to a supplemental petition under section 777 when it uses prior disposition orders to aggregate the maximum term of confinement on the current offense.   The court may impose an aggregate term where the section 602 petition contains notice of the intent to seek aggregation based on prior sustained section 602 petitions.   On the second issue, we conclude the court was not obligated to have an audiologist examine Ruben prior to committing him to YA.   Nevertheless, we find the court erred in computing the aggregate maximum term.   The dispositional order should be modified to reflect a maximum term of commitment of seven years rather than eight years.   As modified, the order is affirmed.

PROCEDURAL AND FACTUAL BACKGROUND

This appeal concerns 14–year–old Ruben's most recent “Supplemental Petition” filed January 12, 1988, which alleged he came within the provisions of section 602 because he committed robbery (Pen.Code, § 211;  count I) and burglary (Pen.Code, § 459;  count II).   At the jurisdictional hearing, Pedro T. testified that Ruben took his bicycle on January 6, 1988.   As Ruben approached Pedro's bike, he swung a bicycle chain around and said, “I like this bike.   I'm going to take this bike.”   Pedro feared he would be hit with the chain.   The bike was recovered from Ruben's bedroom two days later.   Ruben testified he did not take the bicycle, Sonny S. did but left it at Ruben's house.

Deputy Bivens testified he responded to a Sonitrol alarm of a break-in at Mt. Vernon School about 4 p.m. on December 25, 1987.   He saw the screens off the windows of room 13 and one window open.   The door was also open, and several juveniles were standing around a stereo which was on the sidewalk just outside the open doorway.   As Bivens rounded the corner of the corridor, Ruben came running directly at him.   Bivens caught Ruben and yelled at the others to stop but they took off running.   Bivens handcuffed Ruben to a pole and chased the others.   He caught three females but another male fled on a bicycle.   Ruben denied going inside the classroom or taking anything.   The court found beyond a reasonable doubt that the allegations of the petition were sustained.

At the dispositional hearing, Ruben was committed to YA and ordered to serve consecutive periods of confinement on this and two previously sustained petitions for a period not to exceed eight years, less two hundred thirteen days for time served.

DISCUSSION

I. Must the petition allege and the court find at the jurisdictional hearing that prior dispositions have been ineffective pursuant to section 777 before the court can aggregate the terms of confinement under prior sustained 602 petitions ?Necessary Allegations in the Petition

In In re Ronald W., supra, 175 Cal.App.3d 199, 204, 220 Cal.Rptr. 557, this court held that compliance with section 777 ² was required where the maximum period of confinement on the current offense was aggregated by use of prior sustained petitions.   That conclusion was based on In re Michael B. (1980) 28 Cal.3d 548, 169 Cal.Rptr. 723, 620 P.2d 173 and an earlier opinion of this court, In re Richard W. (1979) 91 Cal.App.3d 960, 155 Cal.Rptr. 11.   Upon a second look at the Michael B. opinion, we conclude the crucial requirement is notice to the minor of the People's intent to seek aggregation rather than compliance with section 777 supplemental petition procedures.

Hearing was granted in the Michael B. case to resolve a conflict between Court of Appeal opinions.  (In re Michael B., supra, 28 Cal.3d at p. 551, 169 Cal.Rptr. 723, 620 P.2d 173.)  In re Richard W., supra, 91 Cal.App.3d at page 978, 155 Cal.Rptr. 11 held that a minor's record of sustained petitions could be considered in making an appropriate disposition for the most recent offense, but not for aggregating the period of confinement unless a section 777 petition was filed.  In re Ruben M. (1979) 96 Cal.App.3d 690, 698, 158 Cal.Rptr. 197 parted company with Richard W. and held that when a new petition is filed under section 602 no additional petition under section 777 is required in order to include prior cases in the aggregate maximum term of commitment.   The Supreme Court resolved the conflict by purporting to “adopt”—with certain critical additions and deletions—the former Court of Appeal opinion In re Michael B.^***  Therein lies the confusion.

The Court of Appeal Michael B. opinion agreed with Richard W. and held that the sole statutory method permitting aggregation under section 726 is the filing of a supplemental petition pursuant to section 777.   Since the only petition filed in the proceeding was pursuant to section 602, Michael's commitment to an aggregated term required reversal.

The Court of Appeal opinion discussed sections 602 and 777 proceedings, noting the distinguishing characteristics of each, and concluded:

“Thus, we conclude the statute mandates that a section 777 supplemental petition be filed for modification to formally bring before the court the ineffectiveness of previous dispositions, in order to aggregate the maximum period of confinement on previously sustained section 602 petitions.  (In re Richard W., supra, 91 Cal.App.3d at p. 978 [155 Cal.Rptr. 11]. ․ contra In re Ruben M., supra, 96 Cal.App.3d at pp. 697–698 [158 Cal.Rptr. 197], ․)  Absent the filing of a section 777 petition, the court is limited to the maximum period of confinement of the new offense(s) set forth in the section 602 petition.  (In re Richard W., supra, 91 Cal.App.3d at p. 978 [155 Cal.Rptr. 11], ․)”  (See footnote, ante, p. 173.)

When the Supreme Court “adopted” the Court of Appeal opinion, it chose not to include the conclusion and rationale of the Court of Appeal in total.   Rather than holding that a section 777 petition was a prerequisite to aggregation, it posed a more general requirement of notice.

“Under the circumstances of this case, the failure of the district attorney to provide prior notice of his intent to seek aggregation of the terms of confinement allowable under prior sustained section 602 petitions requires reversal.”  (In re Michael B., supra, 28 Cal.3d at p. 551, 169 Cal.Rptr. 723, 620 P.2d 173, brackets omitted.)

And, although the court substantially accepted the sections 777 and 602 discussions, it deleted the paragraph approving the Richard W. conclusions and substituted:

“After a new petition is sustained under section 602, on the other hand, the court may consider the juvenile's entire record before exercising its discretion at the dispositional hearing and may rely on prior sustained section 602 petitions in determining the proper disposition and maximum period of confinement.  [Citations.]  Section 726, which permits aggregation of terms in computing that period, expressly authorizes aggregation on the basis of prior sustained section 602 petitions but does not sanction consideration of prior section 777 petitions for this purpose.   A practice has developed, therefore, of filing new section 602 petitions, rather than section 777 supplemental petitions, to charge new offenses even when the minor is already a section 602 ward.  [Citation.]  This practice is not contrary to law.   Although section 777 recites that a ‘supplemental petition’ is required in order to change or modify a previous order by removing the minor from his parents' custody or by directing his commitment to the Youth Authority, a section 777 petition is not the exclusive method of initiating proceedings calling for such a change or modification.   As stated in a recent case it is ‘clear that the proposers of section 777 did not contemplate that that section must, necessarily, be utilized in cases ․ where a different and more onerous disposition is to be based on a new criminal offense.’  [Citation.]  Thus, section 726 authorizes the court in a section 602 proceeding to ‘aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602․’ ”  (In re Michael B., supra, 28 Cal.3d at p. 553, 169 Cal.Rptr. 723, 620 P.2d 173, brackets omitted, emphasis added.)

“Thus, we conclude that a petition under section 602 must contain notice of the intent to rely upon previously sustained petitions under section 602, in order to aggregate the maximum period of confinement on the basis of those petitions.  (See In re Richard W., supra, 91 Cal.App.3d at p. 978 [155 Cal.Rptr. 11].)   To the extent contrary to this conclusion, In re Ruben M., supra, 96 Cal.App.3d at pages 697–698 [158 Cal.Rptr. 197], is hereby disapproved.   Absent the filing of a petition containing such notice, the court is limited to the maximum period of confinement of the new offense(s) set forth in the section 602 petition.

“It has been suggested that this procedure would require the filing of both a section 777 supplemental petition and a section 602 petition when a new offense has been committed and thereby necessitate ‘two hearings,’ resulting in ‘duplication of effort,’ as well as ‘confusion or even inconsistent results.’  [Citation.]  Yet no compelling reason appears why separate petitions or duplicative hearings should be required under the rule we announce.   So long as the minor is given the requisite notice of the intent to rely upon the minor's prior offense or offenses or upon the ineffectiveness of prior dispositions in order to enhance the maximum period of YA commitment for the current offense, the issues may be presented in a single unitary petition which contains the requisite allegations, and may be disposed of in course of a single proceeding otherwise conforming to law.  [Citations.]”  (28 Cal.3d at p. 554, 169 Cal.Rptr. 723, 620 P.2d 173, brackets omitted, emphasis original.)

When the Supreme Court's Michael B. opinion is compared with the Court of Appeal's Michael B. decision, it is clear the Supreme Court did not intend to restrict the imposition of aggregated terms to proceedings under section 777 as did the Court of Appeal.   Furthermore, in disapproving language in In re Ruben M., supra, 96 Cal.App.3d 690, 158 Cal.Rptr. 197, which was contrary to its conclusion “that a petition under section 602 must contain notice of the intent to rely upon previously sustained petitions under section 602, in order to aggregate the maximum period of confinement on the basis of those petitions” (In re Michael B., supra, 28 Cal.3d at p. 554, 169 Cal.Rptr. 723, 620 P.2d 173), the Supreme Court was disapproving the statement that “ ‘only the latest new criminal offense must be pleaded, and other elements going to disposition appear, after the adjudication hearing, in the “social study” ․ and in any evidence introduced at the disposition hearing.’ ”  (In re Ruben M., supra, 96 Cal.App.3d at p. 698, 158 Cal.Rptr. 197.)

In the same vein, the Supreme Court cited In re Richard W., supra, 91 Cal.App.3d 960, 155 Cal.Rptr. 11 with approval but only for the proposition that there is a clear legislative intent to require advice to the minor of possible consequences, including the maximum period of physical confinement, at the detention or jurisdictional hearing (at p. 978, 155 Cal.Rptr. 11) and not for the proposition that a section 777 petition is a prerequisite to aggregating terms.   In fact, language in the Court of Appeal opinion citing Richard W. for that rule was deleted from the Supreme Court's opinion.   (In re Michael B., supra, 28 Cal.3d at p. 554, 169 Cal.Rptr. 723, 620 P.2d 173.)

The Supreme Court's use of the phrase “unitary petition” is confusing.   Some courts require the use of joint “602–777” petitions.   However, “unitary petition” can mean simply a petition under section 602 which includes the requisite notice of intent to aggregate.   That interpretation is persuasive in light of the court's use of the disjunctive in concluding its “unitary petition” paragraph:

“So long as the minor is given the requisite notice of the intent to rely upon the minor's prior offense or offenses or upon the ineffectiveness of prior dispositions in order to enhance the maximum period of YA commitment for the current offense, the issues may be presented in a single unitary petition which contains the requisite allegations, ․”  (Id. at p. 554, 169 Cal.Rptr. 723, 620 P.2d 173; first emphasis original, second emphasis added.)

 Accordingly, when a minor who is already a ward of the juvenile court commits a new criminal offense, the People can proceed against him or her in two ways.   They can file a petition pursuant to section 602 alleging the new offense and, if the prior sustained petitions are to be used to compute the maximum confinement time to which the minor may be subject, notifying the minor of the People's intent to aggregate the priors.   In the alternative, the People can file a petition under section 777 alleging that the previous dispositional order has been ineffective in the minor's rehabilitation in that the minor has committed the new offenses enumerated therein.

 If the People proceed by a section 602 petition, they must (1) give the minor notice in the petition of the intent to aggregate priors (In re Michael B., supra, 28 Cal.3d at pp. 553–554, 169 Cal.Rptr. 723, 620 P.2d 173), (2) prove the new offenses to be true beyond a reasonable doubt (§ 701), and (3) present their argument at the dispositional hearing as to the proper placement and maximum period of confinement for the minor in light of the juvenile's entire record.  (In re Michael B., supra, 28 Cal.3d at p. 553, 169 Cal.Rptr. 723, 620 P.2d 173.)   If the People proceed by a section 777 petition they must (1) prove the new offense(s) to be true beyond a reasonable doubt (§ 701), (2) prove that the previous dispositional order has been ineffective in the minor's rehabilitation beyond a reasonable doubt (In re Arthur N. (1976) 16 Cal.3d 226, 240, 127 Cal.Rptr. 641, 545 P.2d 1345),³ and (3) present at the dispositional hearing their argument as to the proper placement for the minor in light of the ineffectiveness of the prior order.  (See, e.g., Cal. Rules of Court, rule 1391(b).)

 In this case, the section 602 “supplemental petition” notified Ruben that the People intended to seek aggregation of the terms of confinement under prior sustained petitions, that such time was five years and four months less credit for time served and that a more restrictive level of custody, including YA, was a possible disposition.   Consequently, the section 602 petition satisfied the due process requirements of Michael B., and the court was not required to find at the jurisdictional hearing that prior commitments had been ineffective in rehabilitating Ruben before his maximum term of confinement could be aggregated on the basis of his prior offenses.

Court's Discretion to Aggregate

Having determined the court may elect to aggregate the period of physical confinement of previously sustained section 602 petitions provided it affords the minor adequate notice of its intention to do so, the question arises as to what criteria the court should consider in making the election.

Under section 726, the court may impose consecutive terms for multiple counts or previously sustained petitions.⁴  The section does not require aggregate terms in every case so the court must exercise its discretion before electing to aggregate periods of confinement.  (In re Jesse F. (1982) 137 Cal.App.3d 164, 167–168, 186 Cal.Rptr. 841;  In re Richard W., supra, 91 Cal.App.3d 960, 982, 155 Cal.Rptr. 11.)

 In fixing the confinement period, the juvenile court must be mindful of the purposes of juvenile dispositions, i.e., to provide, consistent with the minor's interest and the safety and protection of the public, care, treatment and guidance which hold the minor accountable for his conduct and are appropriate for the circumstances.  (§ 202, subd. (b).)  To this end, the court must consider all relevant and material evidence, including the minor's age, the circumstances and gravity of the minor's offenses and the minor's previous delinquent history.  (§ 725.5.)

Ruben's counsel submits the court should also consider the rules established for sentencing adult offenders, California Rules of Court, rules 421 through 425.   While no statute mandates that the court consider those criteria before deciding to aggregate terms, they are appropriate factors to be considered by the juvenile court in the exercise of its dispositional discretion.

 Despite the fact that the juvenile court sets only an outer limit for confinement and the minor's actual length of commitment is determined by the Youthful Offender Parole Board (Cal.Code Regs., tit. 15, §§ 4945–4957;  In re Owen E. (1979) 23 Cal.3d 398, 404, 154 Cal.Rptr. 204, 592 P.2d 720), the court is obligated to exercise discretion in deciding whether to aggregate terms of commitment.   And, while the juvenile court is not required to state reasons for imposing consecutive commitments (In re Ismael A. (1989) 207 Cal.App.3d 911, 255 Cal.Rptr. 126), appellate review is more meaningful when the record discloses the exercised discretion behind the dispositional order.

 II–III †.

Accordingly, the dispositional order should be modified to reflect an aggregated maximum term of seven years and as modified, affirmed.

The judgment is modified to reflect an aggregated maximum term of seven years;  as modified, the judgment is affirmed.

FOOTNOTES

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

2.   Section 777 provides in pertinent part:“An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private institution or commitment to a county institution, or an 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.“(a) The supplemental petition shall be filed as follows:“․“(2) ․ By the prosecuting attorney at the request of the probation officer if a minor has been declared a ward or probationer under Section 602 in the original matter and the petition alleges a violation of a condition of probation amounting to a crime.   The petition shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the minor.”

FOOTNOTE.   [163 Cal.Rptr. 844]  The opinion of the Court of Appeal was vacated upon the grant of review on June 12, 1980.   This citation is provided solely to enable the reader to understand our analysis of In re Michael B., supra, 28 Cal.3d 548.  (See Cal. Rules of Court, rule 977.)

3.   While we have found no case explicitly holding the People must prove at the section 777 jurisdictional hearing that the previous dispositional order has been rehabilitatively ineffective, such a rule is clearly implied by In re Arthur N., supra, 16 Cal.3d at page 240, 127 Cal.Rptr. 641, 545 P.2d 1345, and other cases citing Arthur N. for the general proposition that section 777 allegations must be proved beyond a reasonable doubt.  (See, e.g., In re Martin L. (1986) 187 Cal.App.3d 534, 541, 232 Cal.Rptr. 43;  In re Michael V. (1986) 178 Cal.App.3d 159, 167, 223 Cal.Rptr. 503, including fn. 14;  In re Scott K. (1984) 156 Cal.App.3d 273, 276–277, 203 Cal.Rptr. 268.)We also note section 777 provides that the petition “shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the minor” (§ 777, subd. (a)(2)), except that “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 30 days or less, or for a less restrictive disposition, it is not necessary to allege and prove that the previous disposition has not been effective in the rehabilitation or protection of the minor.”  (§ 777, subd. (b), emphasis added.)   Thus, by clear implication, section 777 itself places the burden of proving the rehabilitative ineffectiveness of the prior dispositional order on the People wherever the petition alleges facts which would justify a placement more restrictive than 30 days in a county juvenile institution.

4.   Section 726 provides in pertinent part:  “If the court elects to aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code [which specifies the method of calculating the aggregate term].”

FOOTNOTE.   See footnote **, ante.

FRANSON, Presiding Justice.

BEST and BAXTER, JJ., concur.