People v. J.S. (In re J.S.)

• Decision Date: 04 June 2015
• Docket Number: H040779
• Citation: 237 Cal.App.4th 452,187 Cal.Rptr.3d 713
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE J.S., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. J.S., Defendant and Appellant.

237 Cal.App.4th 452

187 Cal.Rptr.3d 713

IN RE J.S., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent

v.J.S., Defendant and Appellant.

H040779

Court of Appeal, Sixth District, California.

Filed June 4, 2015

Rehearing Denied June 25, 2015

Review Denied September 23, 2015

Sidney S. Hollar, under appointment by the Court of Appeal for Appellant, for Defendant and Appellant J.S.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General, for Plaintiff and Respondent The People.

Opinion

RUSHING, P.J.

Appellant J.S., who as a minor had a long history of dependency and delinquency issues, successfully completed his program at California's Department of Corrections and Rehablitation Division of Juvenile Justice (DJJ). Prior to his release, the Legislature enacted Assembly Bill No. 1628 (2009-2010 Reg. Sess.) (Stats. 2010, ch. 729, eff. Oct. 19, 2010; see id., § 10 [juvenile parole realignment bill] (Realignment)), eliminating DJJ-administered parole, and releasing minors to community based supervision. When J.S. was released, he was placed on locally supervised probation instead of DJJ administered parole. As a consequence, the Board of Parole Hearings (Board) did not, as they had been required to in the past, make a finding upon release as to whether his discharge from parole was honorable or otherwise. Because honorable discharge from parole entitles youths to an automatic release from all penalties and disabilities resulting from the offense or crime for which they are committed, J.S. petitioned the trial court to make the finding in the place of DJJ. ( Welf. & Inst. Code, § 1772, subd. (a).)¹ The trial court denied the petition, and J.S. appeals that order. Although we conclude that the Legislature should amend the statutory scheme to be consistent with Realignment, the trial court did not err in denying the order, so we will affirm.

Factual and Procedural Background

J.S. was born in 1992 in prison. His mother subsequently abandoned him to a stranger she had met at a Denny's restaurant. J.S.'s father had been convicted of murder prior to J.S.'s birth. The stranger became his guardian, but social services received numerous complaints about the living conditions and abuse suffered by J.S. in her home. J.S. recounts a history of severe emotional cruelty at the hands of his mother and his guardian. J.S. became a dependent child under section 300 at the age of six, and suffered abuse at the hands of a staff member of Milhouse Children's Services in 2007 at the age of 15. By 2009, he had lived in 14 different placements. He has been diagnosed with reactive attachment disorder, attention deficit hyperactivity disorder, oppositional defiant disorder and alcohol/cannabis abuse. While an adolescent, J.S. was associated with the Crips criminal street gang, and reported losing 19 of his friends due to gang violence.

Beginning in 2007 and continuing through 2010, multiple petitions were filed against J.S. under section 602. The petitions included allegations of robbery (Pen. Code, §§ 211, 212.5, subd. (c) ), carrying a concealed dirk or dagger (Pen. Code, former § 12020, subd. (a)(4) ), use of a deadly weapon other than a firearm (Pen. Code, § 417, subd. (a)(1) ) and disturbing the peace. (Pen. Code, § 415.) The trial court declared J.S. a dual status youth, and sustained the various petitions. On April 27, 2010, the court sustained another petition alleging robbery (Pen. Code, §§ 211, 212.5, subd. (c) ), possession of marijuana for sale (Health & Saf. Code, § 11359 ), and oral copulation by force. (Pen. Code, § 288a, subd. (c)(2).) During the May 11, 2010 dispositional hearing, the court ordered J.S. committed to the DJJ with the maximum time of confinement of nine years, eight months. On November 7, 2013, DJJ recommended that appellant be discharged. He had graduated from high school and had performed well in programs while confined. On November 25, 2013, the juvenile court held a reentry dispositional hearing, adopted the probation officer's recommendations for probation, and ordered J.S. released from custody. One of the conditions of probation was that appellant register as a sex offender upon his release. (Pen. Code, § 290.008 )

By January 2014, J.S.'s living situation had fallen apart and he became homeless. As a result, he moved to Monterey County, but failed to timely advise probation of his whereabouts, and to properly update his sex offender registration. Although he attempted to inform probation on January 6, 2014, of his circumstances, and tried to register on February 3, 2014, in Marina, California, he was arrested on February 4, 2014, when he returned to the Marina Police Department to update his registration. On February 5, 2014, the probation department noticed a probation violation hearing for February 6, 2014. The notice listed four violations: (1) appellant failed to participate in substance abuse counseling; (2) appellant failed to provide proof of participation in sexual offender counseling; (3) appellant failed to keep probation advised of his whereabouts and instead moved to another county; and (4) appellant failed to update his sex offender registration.

While this probation violation was pending in the criminal court, trial counsel filed a motion for honorable discharge and section 1772, subdivision (a) relief in juvenile court, arguing that because DJJ no longer makes discharge status recommendations after Realignment, the juvenile court should make a finding of honorable discharge in its place, and relieve appellant from the requirement to register as a sex-offender. The court denied the motion, finding that section 1772, subdivision (a) did not authorize the trial court to make the honorable discharge determination.² This timely appeal ensued.

On appeal, we appointed counsel to represent J.S. in this court. Appointed counsel filed an opening brief pursuant to ( People v. Serrano (2012) 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706 (Serrano )), which states the case and the facts but raised no specific issues. Pursuant to Serrano, on June 2, 2014, we notified appellant of his right to submit written argument in his own behalf within 30 days. On July 1, 2014, we received a supplemental brief from J.S. In his brief, J.S. contends that the trial court is vested with the authority to declare a minor honorably discharged and so the court erred in refusing to do so. Based on this well-drafted brief, and our further review of the record, we asked counsel on appeal to file supplemental briefs addressing the following questions:

“Since the passage of AB 1628, does the juvenile court have the authority to declare a juvenile's discharge to be honorable, general or dishonorable, and if so, did the trial court err in denying appellant's motion to have his discharge declared honorable?”

Both appellant and respondent have filed supplemental briefs, and we now address the merits of these issues.

Discussion

In his supplemental briefs (both the brief filed by appellant himself and the one filed by his appellate counsel), J.S. argues that the trial court erred in refusing to grant his motion for honorable discharge and to relieve him of the requirement to register as a sex-offender. He contends that the existing statutes regarding honorable discharge cannot be harmonized or even reconciled with the mandates of Realignment, leaving youths in limbo. He urges this court to recognize and correct the inconsistencies created by the Legislature in enacting Realignment with respect to the honorable discharge determination. For the reasons discussed below, we decline to do so.

I. This Court Cannot Remedy the Legislature's Failure to Provide a Mechanism for the Honorable Discharge Finding in the Realignment Legislation

A. Procedure Prior to Realignment

Prior to Realignment, once a youth completed his commitment at the DJJ and parole period, the Board determined his eligibility for discharge. As part of this determination, the Board was required to give the youth an honorable discharge where the Board found that the “person so paroled has proved his or her ability for honorable self-support.” (§ 1177.) Otherwise, the Board could award a general or dishonorable discharge. If honorably discharged, a youth was automatically entitled to release from all penalties and disabilities resulting from the offense or crime for which he was committed.

(§ 1772, subd. (a).)³ Under section 1772, subdivision (a), whether honorably discharged, generally discharged or dishonorably discharged, any youth can also petition the juvenile court to set aside the verdict of guilty and dismiss the accusation or information against the youth, and thereafter the youth would be eligible for release from all penalties and disabilities. (Ibid. )

B. Realignment Makes No Provision for the Honorable Discharge Finding Under the Local Supervision Model

In October 2010, the California Legislature passed Realignment, which addressed numerous issues, including the transfer of jurisdiction and supervision of juveniles from DJJ to local juvenile courts. (§§ 607.1, 1766; id., former § 1766.01.) After passage of Realignment, once a youth completes his commitment at DJJ, he is released to the juvenile court for supervision while on probation. The goal of Realignment was to eliminate DJJ parole by July 2014 and shift this population to county supervision. Counties now receive youth from DJJ custody directly onto their probation caseloads as a result of the passage of this legislation. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1628 (2009-2010 Reg. Sess.) as amended Oct. 6, 2010.) Because DJJ-administered parole no longer exists, the Board cannot make an honorable discharge determination prior to release, as mandated by section 1177.

The Legislature did not repeal or amend section 1177 to make it consistent...