Jorge Q., In re
| Citation | 54 Cal.App.4th 223,62 Cal.Rptr.2d 535 |
| Decision Date | 14 April 1997 |
| Docket Number | No. B102128,B102128 |
| Court | California Court of Appeals |
| Parties | , 97 Cal. Daily Op. Serv. 2748, 97 Daily Journal D.A.R. 4897 In re JORGE Q., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JORGE Q., Defendant and Appellant. |
Jonathan B. Steiner and Dee A. Hayashi, Los Angeles, under appointments by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Susan D. Martynec and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
Jorge Q. appeals from the order declaring him a ward of the juvenile court (Welf. & Inst.Code, § 602) by reason of his having committed attempted second degree robbery with the use of a firearm and grand theft from the person. (Pen.Code, §§ 664/211; 12022.5, subd. (a); 487, subd. (c).) He contends:
We agree appellant has not waived later supplemental petition proceedings and the juvenile court was required to declare the grand theft offense, a "wobbler," a felony or misdemeanor.
On January 6, 1996, Miguel Espinoza was in the alley behind his Main Street, Los Angeles, residence with his pregnant wife. Appellant approached and pushed Espinoza. He yanked the chain off Espinoza's neck and fled. On January 22, 1996, appellant demanded a coat and money from Espinoza's cousin, Armando Cuenca, as Cuenca left a barber shop in the 4200 block of Broadway in Los Angeles. When Cuenca refused to comply with the demands and stepped back into the barber shop, appellant displayed a handgun and wanted to know the identity of Cuenca's "barrio." Security guards arrived and appellant left. Cuenca and Espinoza At disposition, the juvenile court read and considered a social study indicating 16-year-old appellant, at age 13, was counseled and released after a contact for throwing a substance at a car. The same year, he was given a Welfare and Institutions Code section 654 informal grant of probation after a contact for theft. Appellant's parents were divorced. Appellant was attending continuation school.
later identified appellant as their assailant in a six-pack photographic display. 1
The juvenile court was in a quandary over an appropriate disposition. The juvenile court did not wish to send appellant home on probation since the offense was serious and there was a threat to the victims who lived in the same neighborhood. The juvenile court stated it had considered suitable placement, but was unaware of an appropriate suitable placement. In addition, short-term camp involved a shorter confinement period, about 12 to 14 weeks.
The juvenile court admonished appellant's mother, who insisted appellant was not gang involved, had committed no wrongdoing and that this was his first time in court. The juvenile court told the mother it was of no benefit to appellant for her to deny appellant was engaging in misconduct and gang activity. The juvenile court questioned appellant's father and discovered the father lived in Southgate, away from appellant's neighborhood, and was in contact with his son. Also, the father had remarried. The juvenile court inquired if the father would have appellant live with him until the end of the school year. The father said yes.
The juvenile court said, in that event, the juvenile court was ordering suitable placement with the father. The juvenile court said it did not want to send appellant to camp since appellant had "possibilities" and, in camp, appellant would be with other gang members.
The juvenile court admonished appellant the conditions of the suitable placement would be "very very severe." If appellant violated the terms of suitable placement, he would be sent to camp. The juvenile court ordered appellant's care, custody and control be taken from the parents, and ordered a "camp stay" for 90 days on terms and conditions, including: (1) he was suitably placed in his father's home in Southgate; (2) he had a 7 p.m. curfew; (3) he was not to stay away from his father's residence for over 24 hours without permission from the probation officer; and (4) he was not to associate with fellow gang members or engage in gang activity. The juvenile court computed the theoretical maximum period of confinement as 13 years 8 months. 2
After the juvenile court made its order, the juvenile court had the following colloquy with appellant personally:
The juvenile court ordered appellant to have no contact with victims or their families. The juvenile court told appellant he was not to return to his neighborhood for three months under any condition, even to work. The juvenile court set the matter for a three-month appearance date.
The juvenile court explained the juvenile court was giving appellant a "big break" by not sending him to camp. The juvenile court remarked counsel had demonstrated there was a "good side" to appellant. Appellant was smart and doing well in school. Appellant should continue to attend the same school. Appellant should also make sure his gang did not retaliate against the victims. The juvenile court stated it wanted appellant to have a complete three-month break in his association with his fellow gang members.
The contention the waiver of appellant's statutory and due process rights under Welfare and Institutions Code section 777 was invalid has merit. 3
Respondent urges this court to determine the waiver issue is not ripe for consideration. Respondent reasons appellant has not violated the conditions of his probation and may never do so, and he has not been committed to a more restrictive level of confinement. Thus, the issue has not "reached, ... the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made." (California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22, 61 Cal.Rptr. 618.)
The optimum time to address the waiver issue is now. The facts are sufficiently concrete to allow a useful decision. Furthermore, the case involves an important procedural issue which has court-wide impact and there is a likelihood of recurring litigation involving the same issue. An appeal from a later order automatically lifting the stay is not adequate to remedy the error. Appellant will have completed his camp placement long before a later appeal resolves the issue. Later, he may be limited to addressing only the jurisdictional defects in the order. (See In re Ronald E. (1977) 19 Cal.3d 315, 320-326, 137 Cal.Rptr. 781, 562 P.2d 684; In re Gerald B. (1980) 105 Cal.App.3d 119, 123, fn. 4, 164 Cal.Rptr. 193.) A justifiable controversy is presented here.
A minor subject to a 777 petition is accorded the same constitutional rights that he has during the adjudication of the original petition. (In re Arthur N. (1976) 16 Cal.3d 226, 240, 127 Cal.Rptr. 641, 545 P.2d 1345; In re Geronimo M. (1985) 166 Cal.App.3d 573, 587, 212 Cal.Rptr. 532.) 4 The safeguards accompanying a Welfare and Institutions Code section 777 hearing are the filing of a supplemental petition, a noticed hearing at which appellant has the rights to counsel, to confrontation and to the cross-examination of witnesses, and against self-incrimination, and in which the charged misconduct must be proved beyond a reasonable doubt. (In re Arthur N, supra, 16 Cal.3d at p. 240, 127 Cal.Rptr. 641, 545 P.2d 1345; In re Ronnie P. (1992) 10 Cal.App.4th 1079,1084-1086, 12 Cal.Rptr.2d 875; In re Martin L. (1986) 187 Cal.App.3d 534, 541-543, 232 Cal.Rptr. 43; In re Geronimo M., supra, 166 Cal.App.3d at pp. 586-587, 212 Cal.Rptr. 532; In re Francis W. (1974) 42 Cal.App.3d 892, 897-898, 117 Cal.Rptr. 277; cf. In re Ronald E., supra, 19 Cal.3d at pp. 321, 326, 137 Cal.Rptr. 781, 562 P.2d 684; In re Michael V. (1986) 178 Cal.App.3d 159, 166-168, 223 Cal.Rptr. 503.) An admission to the allegations of a Welfare and Institutions Code section 777 petition is subject to the requirements of Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. (In re Ronald E. supra, 19 Cal.3d at pp. 321, 324-325, 137 Cal.Rptr. 781, 562 P.2d 684; In re Francis W., supra, 42 Cal.App.3d at p. 898, 117 Cal.Rptr. 277; see In re Arthur N., supra, 16 Cal.3d at p. 240, 127 Cal.Rptr. 641, 545 P.2d 1345; In re Geronimo M., supra, 166 Cal.App.3d at p. 587, 212 Cal.Rptr. 532.)
In re Ronald E., supra, 19 Cal.3d 315, 137 Cal.Rptr. 781, 562 P.2d 684, explained the nature of the Welfare and Institutions Code section 777 proceedings, as...
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