In re Eldridge T.

• Decision Date: 29 July 2002
• Docket Number: No. A095878.,A095878.
• Parties: In re ELDRIDGE T., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Eldridge T., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

122 Cal.Rptr.2d 780

100 Cal.App.4th 726

In re ELDRIDGE T., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Eldridge T., Defendant and Appellant.

No. A095878.

Court of Appeal, First District, Division 4.

July 29, 2002.

Review Granted October 30, 2002.

Eric Borgerson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, John R. Vance, Jr., Deputy Attorney General, for Plaintiff and Respondent.

KAY, P.J.

The juvenile court ordered a ward placed in the custody of the probation officer in anticipation that the ward would be placed with a strict residential program where he could receive counseling and treatment. After the probation department was unable to find a program which would accept the ward and address his needs, the prosecuting attorney petitioned that the previous placement be "modified" to a commitment to the California Youth Authority (CYA), which the probation officer believed was the only placement which could deal with the ward's problems. The juvenile court agreed.

Prior to the enactment of Proposition 21, titled the Gang Violence and Juvenile Crime Prevention Act of 1998 and approved by the voters at the March 7, 2000, Primary Election (Proposition 21), Welfare and Institutions Code section 777¹ allowed a juvenile court to impose a more restrictive placement—including a commitment to the CYA—based solely on a finding that "the previous disposition has not been effective in the rehabilitation" of the ward. This appeal compels us to conclude that this option is no longer available to a juvenile court; the amendment of section 777 by Proposition 21 now requires that a more restrictive placement can be made only if the ward has violated a court order or committed "a violation of a condition of probation not amounting to a crime." As neither of these predicates was established, we reluctantly conclude that the current amended language of section 777 commands reversal of the CYA commitment.

BACKGROUND

In December 1998, the juvenile court sustained a petition in which it was alleged that 15-year-old Eldridge T. committed a lewd and lascivious act upon a five-year-old girl (Pen.Code, § 288, subd. (a)). In March 1999, the court accepted the recommendations of the probation department that the delinquency proceeding be suspended, that an ongoing dependency be continued, and that Eldridge be placed on informal probation while remaining in foster care; the matter was continued for final disposition.

Several placements in foster care ended unsuccessfully because of Eldridge's aggressive behavior. At a dispositional hearing conducted in June 2000, the juvenile court accepted the recommendations of the probation department that the dependency proceeding be dismissed, that Eldridge be declared a ward and placed on probation, that custody be given to the probation department for suitable placement, and that Eldridge "engage in a program of counseling including but not limited to the sex offender program."

After months of the probation officer unsuccessfully attempting to get Eldridge placed in a residential treatment program, the prosecuting attorney filed a petition entitled "W & I Sections 777(a)/778 Petition" for the purpose of seeking "an order changing and modifying the previous order of the court removing the Minor from the custody of his parent and or guardian or relative, and directing placement in a suitable group/foster home because the disposition of the court cannot be carried out. The Probation Department is unable to provide a suitable placement."

The hearing on the petition was conducted on May 21 and July 3, 2001. In May the court heard testimony from the probation officer concerning efforts to find a placement. Two programs had initially accepted Eldridge but then discharged him and refused readmission. Six other programs rejected him outright for various reasons. According to the probation officer, "we've exhausted options for residential sex-offender treatment.... [H]e could be referred to other programs that do not offer that particular service. But he was court ordered for that treatment, so I have not looked at others."

In his argument Eldridge's counsel stated: "I would like to invite the Court's attention to the petition, which on its face says that they were unable to provide a suitable placement. It's my understanding of Section 777 as amended that that would not authorize them—I don't think they properly alleged the appropriate facts—to bring the jurisdiction of the Court under 777 to—upgrade and to send him off to the Youth Authority ... under 777 as it's presently crafted. [¶] Similarly, they have also brought a petition under 778. A petition under 778, as I understand it, is a tool generally used by the defense or by the family members because of some changed circumstances and that that's a vehicle for lessening the severity of the placement. But I do not believe that a 778 can be used as a vehicle for increasing the severity of placement, and I invite the Court's attention to [In re Ronald W. (1985) 175 Cal. App.3d 199, 220 Cal.Rptr. 557], for that proposition."

After hearing argument from the prosecuting attorney, the court addressed the statutory issue raised by Eldridge's counsel: "I am interested in your comments about whether or not we can even proceed in this fashion under a 777(a) anymore in light of the changes that went into effect in the law in January of 2001 [sic]. It does appear that the law has now been modified to indicate that the only ground for a[777], under Subsection 1, is that the minor has violated an order of the court. And under Subsection 2, it states that that violation of the condition of probation need not amount to a crime .... And therefore, it does seem to me that, under the wording of the statute, we have no choice but to turn, then to [778] in instances where ... the petition actually seeks to modify placement." The court was also "interested in your comments, Mr. Carruthers, that 778 can only be used when the desire is to seek a less-restricted placement. I don't find that in the plain wording of the statute. [¶] I have looked up that case that you cited, [I]n re Ronald W., and it does talk about that that's a preferred procedure. It does not say 778 is, on its face, limited to instances where the petition is seeking a less restrictive—restricted placement. In fact, given the modification to 777(a) and Prop 21 ... it seems to me that 778 is now much more analogous to a 388 petition under the 300 system, and that also need not be limited to a less-restricted placement. [¶] So it does seem to me that we are proceeding today under a 778.... [¶] ... [¶][W]hether or not my analogy to 388 is accurate or not is irrelevant. What is important is what does 778 permit us to do. And under the plain reading of the statute, it appears to me that it does allow the petitioner to seek a modification; and there is no restriction in its terms that the modification can only be to a less-restrictive placement."

The court then ruled on the prosecuting attorney's petition: "Therefore, I do find that ... the court's prior order has been ineffective in that a review of this court's file ... demonstrates that Eldridge has long been in need of very intensive sex-offender treatment.... His need for that still continues; and yet, because of his continuing behavior problems, there have been no placements willing to accept him. [¶] And therefore, I am setting aside the prior order."

The July hearing concerned the actual disposition. After hearing a number of testimonials in Eldridge's behalf, the juvenile court stated its reasons for ordering a CYA commitment: "When we go through this file, what we see is a young man who has been presented with numerous opportunities to receive specialized treatment and counseling both for his emotional disturbance and for his sex-offender behavior. And repeatedly, what we are told is that, over and over again in the placements that he has received, he has become aggressive; he has been threatening; and his sexual acting-out has escalated. He has violated program rules by bringing in pornography, by engaging in sexual behavior with other residents. And there is a good reason why it is described as his behavior putting other children at risk. [¶] ... the behavior that Eldridge has demonstrated thus far is in serious need of rehabilitation so [that] he does not present a definite threat to other children and other people. He's had numerous opportunities to deal with this. And it is very regrettable that we are in the place today where he has been referred to every high-level sex-offender treatment program that we have within the state of California; and we were told as early as February of this year that none of them could meet Eldridge's treatment needs. [¶] ... the California Youth Authority does have sex-offender treatment programs and ... they do have the ability to provide psychological assistance. It might not be the same level as that that could be provided in a residential psychiatric facility; but, quite frankly, that would be the only other alternative that I could contemplate for Eldrige [sic]. And his needs don't rise to that level of a locked psychiatric facility. However, he is clearly in need of a custodial setting with high structures where he can be assured that his behavior will not pose a threat to others." For these reasons, the court ordered Eldridge committed to CYA for a period not to exceed eight years. Eldridge filed a timely notice of appeal.

REVIEW

Eldridge contends that the juvenile court had no jurisdiction because neither section 777 nor section 778 may be used to impose a more restrictive placement, specifically a commitment to CYA, if while on probation,...