IN RE: GABRIEL O. (1988)

OPINION

Gabriel O., a minor, appeals from an order committing him to the California Youth Authority (YA) for the maximum confinement time on the “supplemental petition” ¹ added to the confinement on prior adjudicated Welfare and Institutions Code 2 section 602 petitions.

The minor's appeal requires us to decide whether aggregation may be ordered as a matter of course whenever a section 602 petition is filed giving notice of the intent to seek aggregation and the petition is found to be true, or whether aggregation is limited to cases in which the petition alleges facts demonstrating that prior orders have been rehabilitatively ineffective and the court makes this required determination at the jurisdictional hearing.   We conclude that a supplemental petition alleging facts demonstrating that prior orders have been rehabilitatively ineffective and a finding to this effect at the jurisdictional hearing are required.   We will reverse the judgment imposing the confinement time resulting from prior sustained petitions and affirm the judgment in all other respects.

PROCEDURAL BACKGROUND

On October 6, 1987, a “supplemental petition” was filed, alleging that the minor was a person coming within the provisions of section 602.   The petition alleged eight counts of violations of law.   The petition also alleged an aggregation of priors, with the confinement time on four previously adjudicated petitions to be two years and two months minus credit for time served.   The minor was advised by the petition of the possible dispositions available to the court, including YA.   The petition did not allege that previous dispositional orders had been ineffective in the rehabilitation of the minor.

A jurisdictional hearing was held on October 26, 1987.   The court asked the minor the following:

“THE COURT:  Do you understand because of your prior matters in Juvenile Hall and prior adjudications, you've two years, two months, less two hundred fifty-six days credit for time served hanging over your head.   Do you understand that?

“THE MINOR:  Yes I do, your Honor.

“․

“THE COURT:  All right, you understand that you are probably going to the California Youth Authority upon these admissions?

“THE MINOR:  Yes I do.”

Thereafter, the minor admitted two counts of being under the influence of a controlled substance and one count of making a false representation to a police officer.   The court found the minor to be a fit and proper person to be considered under section 602.   The court did not discuss nor determine whether previous dispositional orders were ineffective in the rehabilitation of the minor.

At the dispositional hearing, after having read the report from the probation department, the court made appropriate findings.   The court ordered that the minor be committed to YA for the maximum confinement time on the present “supplemental petition” added to the confinement on prior adjudicated petitions.

DISCUSSION

When a court aggregates time remaining on previously sustained section 602 petitions in determining the maximum confinement time, is the court modifying a previous order and thereby necessitating compliance with the procedures mandated by section 777?

 Section 602 provides:

“Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”

A section 602 petition is used to make a minor a ward of the juvenile court when the minor has committed a criminal offense.   The practice has also developed of utilizing a section 602 petition when the minor is already a section 602 ward but has committed a new criminal offense.  (In re Michael B. (1980) 28 Cal.3d 548, 553, 169 Cal.Rptr. 723, 620 P.2d 173;  In re Scott K. (1984) 156 Cal.App.3d 273, 276, 203 Cal.Rptr. 268.)   In determining the judgment to be made when a section 602 petition is found true, the court may consider the minor's previous delinquent history.  (§ 725.5.)

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 probation officer if the minor is a court ward or probationer under Section 602 in the original matter and the supplemental petition alleges a violation of a condition of probation not 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.   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.

“․”

The primary purpose of a section 777 petition “is to substitute a more restrictive level of placement on remaining unserved time.”  (In re Ronald W. (1985) 175 Cal.App.3d 199, 203, 220 Cal.Rptr. 557.)   A more restrictive level of placement can only be made under section 777 when the court finds that the original disposition has not been effective in the rehabilitation or protection of the minor.  (In re Joe A. (1986) 183 Cal.App.3d 11, 21, 227 Cal.Rptr. 831.)  “The petition must contain a statement of facts which demonstrate a need [for a more restrictive level of] placement.   Such petition can only be sustained after notice and hearing.”  (In re Geronimo M. (1985) 166 Cal.App.3d 573, 584, 212 Cal.Rptr. 532.)

Section 726 delineates the limitations for removing a minor from the physical custody of any parent or guardian.   It allows the court to increase the period of physical confinement by aggregation.

“․

“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 with Section 602, the ‘maximum term of imprisonment’ shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code.

“․” (§ 726.)

Because section 726 “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 ․ 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.”   (In re Michael B., supra, 28 Cal.3d 548, 553, 169 Cal.Rptr. 723, 620 P.2d 173.)

Clearly the court has the power to aggregate the terms of previously sustained section 602 petitions in computing the maximum period of confinement provided the minor is given prior notice of the intent to aggregate the terms of confinement.  (Id. at p. 551, 169 Cal.Rptr. 723, 620 P.2d 173.)   But the question on which the answer is disputed is whether the petition must allege facts demonstrating that prior orders have been rehabilitatively ineffective, which facts the court determines to be true at the jurisdictional hearing.

The California Supreme Court in In re Michael B., supra, 28 Cal.3d 548, 169 Cal.Rptr. 723, 620 P.2d 173 sought to eliminate the conflict and confusion in this area.   That it was not successful is evidenced by the fact that the minor and the People both rely on In re Michael B., supra, to support their respective positions in this case.

A petition was filed against Michael B. alleging that he came within the provisions of section 602 because he committed a forgery.   Michael B. admitted the allegation and the dispositional hearing was held.   Michael B. was committed to YA for the forgery plus two years and four months aggregated for previously sustained offenses within two previous petitions.  (In re Michael B., supra, at p. 551, 169 Cal.Rptr. 723, 620 P.2d 173.)

Michael B. appealed, claiming that the failure to file the supplemental petition under section 777 prevented the court from using aggregated terms for prior offenses in computing his maximum period of confinement.  (In re Michael B., supra, at p. 552, 169 Cal.Rptr. 723, 620 P.2d 173.)

The Supreme Court summarized the basic laws surrounding section 777 and ended this discussion with the following sentence:  “Before the previous dispositional order may be modified, the court must make an express finding the previous order in fact has been rehabilitatively ineffective.   [Citations.] 2 ”  (In re Michael B., supra, at pp. 552–553, 169 Cal.Rptr. 723, 620 P.2d 173.)   Footnote 2 of the quoted passage reads:  “The trial court's failure to do so here further mandates a limited reversal.”  (Id. at p. 553, fn. 2, 169 Cal.Rptr. 723, 620 P.2d 173.)

The Supreme Court then discussed why a section 602 rather than a section 777 petition is usually filed when a minor commits a new criminal offense.  (In re Michael B., supra, at p. 553, 169 Cal.Rptr. 723, 620 P.2d 173.)   The court stated:

“We have decided, however, that where the prior offenses are to be considered to aggregate the maximum term to extend it beyond that which could be imposed for the new offense, due process requires notice of the juvenile court's intention in order to provide the minor with a meaningful opportunity to rebut any derogatory material within its prior record.”  (Ibid.)

It is at this point where divergent views come into play.   Is the notice required by In re Michael B. simply a bare allegation in the petition that the court may seek an aggregated term based on prior sustained petitions?   Or does the requisite notice include a statement supported by factual allegations that prior dispositions have been rehabilitatively ineffective?

The Supreme Court went on to discuss whether the notice requirements would necessitate the filing of two separate petitions—one under section 602 and one under section 777.   It stated:

“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 a ‘duplication of effort,’ as well as ‘confusion or even inconsistent results.’  (In re Ruben M. [ (1979) ] 96 Cal.App.3d 690, 700 [158 Cal.Rptr. 197].)  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 the course of a single proceeding otherwise conforming to law.  [Citations.]  [¶]  The filing of a unitary petition satisfies the essential demands of due process.”  (In re Michael B., supra, at p. 554, 169 Cal.Rptr. 723, 620 P.2d 173.)

Although Michael B. was told that he could be committed to the YA until his twenty-third birthday, this did not explain the mechanical consequences of his plea.   Thus he was denied due process.  (Id. at p. 555, 169 Cal.Rptr. 723, 620 P.2d 173.)

“Michael was deprived of notice of the possibility of aggregation based upon his prior offenses, adequate time to prepare his defense, and a meaningful opportunity to be heard to rebut any derogatory material relating to his prior record.   Due process mandates the remanding of this matter to the juvenile court ‘for redetermination of the maximum permissible term of physical confinement by means of procedures which give fair notice to the minor and an opportunity to be heard.’ ”  (Ibid.)

The court affirmed the true finding as to count I but remanded the case, stating.

“The dispositional order pertaining to the determination of the aggregate maximum permissible term of confinement is reversed for proceedings consistent with this opinion to permit a redetermination upon notice with the full opportunity for the minor to be heard.   In all other respects, the order is affirmed.”  (Id. at p. 557, 169 Cal.Rptr. 723, 620 P.2d 173, emphasis added.)

The above emphasized language indicates that In re Michael B. requires more than just notice in the petition of the intention to aggregate;  it requires a determination by the court.   If the court decides to aggregate time, this “determination” must have some basis.   Reading the statutes together, the basis for aggregation must be that prior dispositional orders have been ineffective in the rehabilitation of the minor, since section 725.5 covers the situation where the court looks at previous delinquent behavior in making its judgment on the present 602 petition.

In In re Martin L. (1986) 187 Cal.App.3d 534, 232 Cal.Rptr. 43 a “unified petition” was filed pursuant to sections 777 and 602.  (Id. at p. 538, 232 Cal.Rptr. 43.)   The court sustained only the section 602 petition which alleged that the minor was under the influence of toluene.  (Id. at p. 539, 232 Cal.Rptr. 43.)   This offense carried with it a six-month term.  (Id. at p. 541, 232 Cal.Rptr. 43.)   At the dispositional hearing, the court committed the minor to YA for eight years and eight months;  eight years and six months of this term were aggregated from previously sustained petitions, and two months were from the present petition.  (Ibid.)  At the adjudication hearing the court did not sustain the section 777 petition because it “felt that one incident of paint-sniffing was insufficient to find beyond a reasonable doubt that rehabilitation had failed.”  (Ibid.)  The minor appealed, claiming that the dispositional order, which aggregated prior terms, must be reversed because the court did not sustain the section 777 petition, therefore, it could only commit him to Youth Authority for the new offense and was limited to the term for that offense.  (Id. at pp. 541–542, 232 Cal.Rptr. 43.)

The appellate court found the aggregation to be proper because the petition resulted in a change in disposition, not a more restrictive level;  thus section 777 was not applicable.   Also, the court found that:

“[T]he People could seek aggregation of terms in the section 602 portion of the unitary petition provided the minor was given notice of the juvenile court's intention to extend the maximum term beyond that which could be imposed for the new offense.  [Citations.]  [¶]  Here, the petition satisfied due process since it gave appellant notice of the maximum confinement time and the People's request to aggregate confinement time at disposition.   Consequently, the court could impose a maximum period of confinement in excess of six months on the new section 602 petition.”  (In re Martin L., supra, 187 Cal.App.3d at p. 543, 232 Cal.Rptr. 43.)

In making its determination, the court in In re Martin L. questioned the case of In re Ronald W., supra, 175 Cal.App.3d 199, 220 Cal.Rptr. 557, a case from this court.

In In re Ronald W., a “unitary” 602/777 petition entitled “ ‘supplemental petition’ ” was filed alleging that the minor had committed a residential burglary and violated probation.   The petition alleged the previous orders of the court had not been effective in his rehabilitation and also advised him of the possibility of aggregation.  (Id. at pp. 202–203, 220 Cal.Rptr. 557.)

“At the conclusion of the adjudication, the court found counts one and two proven beyond a reasonable doubt.   Ronald was returned to his parents, placed on probation with certain conditions, required to complete ten days on the work program, and sentenced to a suspended aggregate term of six years and four months.   The six-year base term was imposed for the current offense (residential burglary).   A four-month term was added as aggregate time consisting of one-third of one year, imposed on a prior sustained petition (receiving stolen property).   The court did not expressly find that the prior order had been ineffective in the rehabilitation of Ronald.”  (In re Ronald W., supra, at p. 203, 220 Cal.Rptr. 557, fns. omitted.)

This court concluded:

“As to whether an express finding of failure to rehabilitate was required, the Attorney General contends that such a finding is required only where a more restrictive level of confinement is imposed.   In this case, the minor simply was returned home on probation.   Although we agree that such a finding is required where a more restrictive level of placement is imposed, we hold that such a finding also is required where the maximum period of confinement on the current offense is aggregated by use of a prior sustained petition.   Aggregation of the term on the current offense by use of a prior sustained petition mandates compliance with the provisions of section 777.”  (In re Ronald W., supra, at p. 204, 220 Cal.Rptr. 557.)

This court remanded the case and ordered the court to vacate the additional aggregated term or hold a hearing, with notice and a full opportunity to be heard, to determine whether the prior dispositional order had not been effective.  (Id. at p. 205, 220 Cal.Rptr. 557.)

In re Richard W. (1979) 91 Cal.App.3d 960, 155 Cal.Rptr. 11 was cited with approval in In re Michael B., supra, 28 Cal.3d at page 544, 169 Cal.Rptr. 723, 620 P.2d 173.   This court in In re Richard W. found:

“Section 777 pertaining to a supplemental petition for modification ‘did not contemplate that [such] section must, necessarily, be utilized in cases such as the one at bench where a different and more onerous disposition is to be based on a new criminal offense.’  (Italics added.)  [Citations.]  However, in the absence of the filing of a supplemental petition under section 777 to formally bring before the court the ineffectiveness of the previous dispositions in light of the new offense, the court is limited to fixing a maximum period of confinement based on the new offenses.   It is implicit from an analysis of these statutory provisions and rules that if a supplemental petition for modification is not filed under section 777, the minor's entire record of petitions adjudicated to be true may be considered in making an appropriate disposition for the most recent offense ․ but not in aggregating the period of confinement.   To decide otherwise would lead to the remarkable conclusion that a minor who comes before the court charged with a misdemeanor with a ninety-day or six-month period of confinement, but having previously adjudicated felony violations, being exposed to the potential of multiple years in confinement without previous notice until at or shortly before the dispositional hearing.”  (In re Richard W., supra, 91 Cal.App.3d at pp. 978–979, 155 Cal.Rptr. 11.)

We are not convinced by the opinion in In re Martin L., supra, 187 Cal.App.3d 534, 232 Cal.Rptr. 43 that a court can aggregate prior petitions in determining the maximum period of confinement so as to change a previous order without complying with the provisions of section 777.   That is substantially different from evaluating the minor's previous delinquent behavior in determining the judgment to be made when a section 602 petition is found to be true, and escalating the level of confinement based on the new offense combined with an evaluation of the prior behavior of the minor.

 Here, the minor was sent to YA on previous petitions.   When the court aggregated these petitions in determining the maximum period of confinement, it made “an order changing or modifying a previous order by directing commitment to the Youth Authority.”  (§ 777.)   Such an order can “be made only after noticed hearing upon a supplemental petition.”  (§ 777.)   It seems patently unfair to allow aggregation of prior petitions based only upon a requirement of notice to the minor in a 602 petition.   In such a situation, the court can exercise unbridled power to aggregate the prior petitions and impose lengthy terms of confinement without a need for any justification or hearing on the matter whatsoever.  In re Michael B. comports with the conclusion that such a far-reaching determination requires compliance with section 777.  In re Michael B. envisions a “unitary” petition in these types of cases.   The “unitary” petition can dispose of section 602 and section 777 procedures at the same time.   But in order to modify a previous order of the court (aggregate prior petitions in determining the maximum confinement time), the petition and the hearings must comport with the requirements of section 777.   By labeling the instant petition a “supplemental petition,” the Kern County District Attorney recognized this distinction.   But, he failed to make the requisite allegations in the petition, and the court failed to hold a hearing on such allegations and to make a finding at the jurisdictional hearing on the question of rehabilitative ineffectiveness of the prior disposition.

We therefore conclude that the petition failed to allege, and the court failed to find at the jurisdictional hearing, that previous dispositions had been rehabilitatively ineffective.   Such a finding was required before the court could increase the maximum term of confinement based on prior sustained petitions.

 That part of the judgment imposing confinement time based on prior sustained petitions is reversed.   Upon remand, the trial court is directed to vacate this additional time or, upon notice to the minor and a full opportunity to be heard, determine whether or not the previous dispositional order was ineffective in the rehabilitation of the minor.   In all other respects the judgment is affirmed.   In light of this holding, it is not necessary to rule on the minor's contention that it was error for the court to read and consider the probation officer's report before it expressly found that the previous disposition had been rehabilitatively ineffective.  (See In re Gladys R. (1970) 1 Cal.3d 855, 859–862, 83 Cal.Rptr. 671, 464 P.2d 127;  In re Donna G. (1970) 6 Cal.App.3d 890, 895, 86 Cal.App.3d 421.)

FOOTNOTES

1.   The “supplemental petition” was filed pursuant to Welfare and Institutions Code section 602.

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

HAMLIN, Acting Presiding Justice.

ARDAIZ and SARKISIAN *, JJ., concur.