Ronnie P., In re

• Decision Date: 30 October 1992
• Docket Number: No. A055292,A055292
• Citation: 12 Cal.Rptr.2d 875,10 Cal.App.4th 1079
• Court: California Court of Appeals Court of Appeals
• Parties: In re RONNIE P., a person coming under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. RONNIE P., Defendant and Appellant.

Page 875

12 Cal.Rptr.2d 875

10 Cal.App.4th 1079

In re RONNIE P., a person coming under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. RONNIE P., Defendant and Appellant.

No. A055292.

Court of Appeal, First District, Division 2, California.

Oct. 30, 1992.

Review Denied Feb. 10, 1993.

[10 Cal.App.4th 1081] Valerie C. West, Oakland, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Joanne S. Abelson, Allan Yannow, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

Ronnie P. appeals from an order of the juvenile court committing him to the California Youth Authority. We will reverse because (1) the fact that appellant left the company of a custodian, which was the only fact before the court at the jurisdictional hearing, was an insufficient basis for sustaining the petition; and (2) the commitment to the Youth Authority rested not on the required assessment of present circumstances and statutory criteria, but on an earlier order purporting to impose a "suspended" Youth Authority commitment.

BACKGROUND

On June 4, 1991, the juvenile court sustained a petition alleging that appellant, then 15, had violated Health and Safety Code section 11351.5 (possession of cocaine base for sale). At the dispositional hearing following the June 1991 finding, the probation officer recommended that appellant be committed to the Youth Authority. The transcript of that hearing is not included in the record, but counsel and one Dr. Staggers apparently argued against a Youth Authority commitment on grounds stemming from the fact that appellant had been attacked with a baseball bat, sustaining serious head injuries which were being treated by Dr. Staggers at Children's Hospital in Oakland. The court directed the probation department to make a more thorough search for alternative placements. At a continued hearing on July 16, 1991, the court ordered appellant into placement, with the expectation that he would enter a Sacramento program called Positive Transitions. In the course of the hearing the court indicated that it was also imposing a "stayed" or "suspended" Youth Authority commitment. (See fn. 4, post.)

On August 14 a supplemental petition was prepared under Welfare and Institutions Code section 777, ¹ alleging that the previous dispositional order had been ineffective in that appellant had left his court-ordered placement on July 30 and his whereabouts were unknown. The petition also alleged that in previous proceedings appellant had been found to have committed drug offenses on four occasions, carried a concealed weapon, and escaped from custody.

At a pretrial hearing on August 23, the petition was amended to state that appellant left the custody of a transportation officer on July 30. Appellant's attorney was willing at that time to stipulate to jurisdiction, but during the course of admonitions appellant stated that he wanted a trial. The matter was continued to September 4, at which time counsel stated that appellant was prepared to "submit the matter of 777 insofar as the allegations were that he departed from the company of a custodian." The court asked whether there was a "factual basis," to which counsel replied, "Yes." The court then stated, "Pursuant to his submission, we'll find that he's described under ... 777(A) of the Welfare and Institutions Code in that he violated his probation and that the previous order has not been effective in his rehabilitation as alleged in the petition."

According to the probation officer's report prepared for the dispositional hearing on September 18, the proceeding arose from events on July 30, when the program director of Positive Transitions took appellant from Sacramento to Oakland in the mistaken belief that his attendance was required at a placement review hearing. After the hearing they stopped at an East Oakland restaurant, whereupon appellant "went AWOL." The report recommended that appellant be returned to placement at Positive Transitions, noting that the director of that program "believes that Ronnie is workable, and that if he does not return to the Oakland area for some time he could make progress in her program." The report observed that "Ronnie is still 15 years old, and there will be plenty of time to send him to the California Youth Authority should he fail placement again." It also noted that appellant "continues to have physiological consequences from the head trauma he suffered last December" and that "[i]t should be at least another year for him to heal fully."

At the dispositional hearing, the deputy district attorney reminded the court of its earlier order that appellant would be sent to the Youth Authority if he got in any further trouble. The court found this argument dispositive and committed appellant to the Youth Authority. (See fn. 5, below.) This appeal followed.

I. Ineffectiveness of Earlier Disposition

Appellant first contends that there was insufficient evidence before the court at the September 4 hearing to warrant finding jurisdiction under section 777. We agree. The limited nature of appellant's admission, coupled with the absence of any competent evidentiary showing in support of the petition, deprived the court of an adequate evidentiary basis on which to sustain the jurisdictional allegations of the petition.

An adjudication under section 777 must rest on "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); see In re Angel E. (1986) 177 Cal.App.3d 415, 418-421, 223 Cal.Rptr. 4.) The petition must contain a "concise statement" of these facts. (§ 777, subd. (a)(2).) The facts must be proven beyond a reasonable doubt. (In re Arthur N. (1976) 16 Cal.3d 226, 240, 127 Cal.Rptr. 641, 545 P.2d 1345.) The showing must be made by competent evidence. (See In re Martin L. (1986) 187 Cal.App.3d 534, 540-541, 232 Cal.Rptr. 43; In re Gladys R. (1970) 1 Cal.3d 855, 860, 83 Cal.Rptr. 671, 464 P.2d 127.)

Appellant correctly points out that aside from his admission that he "departed from the company of a custodian," there was no evidence before the court at the jurisdictional hearing. There was no indication that the court proposed to or did take judicial notice of any matter, including its own files. Certainly it did not apprise the parties of any intention to do so, as is required by Evidence Code section 455, subdivision (a). (Compare In re Martin L., supra, 187 Cal.App.3d 534, 544, 232 Cal.Rptr. 43 [judicial notice with counsel's consent]; In re John G. (1977) 72 Cal.App.3d 242, 246-247, 139 Cal.Rptr. 849 [dispositional order supported by whole record, which was fully discussed and not objected to].) If the court relied on earlier probation reports, or even its own memory of prior proceedings, it thereby erred. (See In re Angel E., supra, 177 Cal.App.3d 415, 419, 223 Cal.Rptr. 4.)

Indeed the court seems to have found subsidiary facts for which there is no evidentiary support, competent or otherwise, in this record. The court declared that appellant's conduct "violated his probation," which we take to mean that appellant violated some directive previously imposed concerning his own conduct. But there is no indication that appellant had ever been ordered to remain in the custody of Positive Transitions or of the person whose company he left. In the absence of such evidence "it cannot be said that, as a factual matter, the minor violated a court order." (In re Denise C. (1975) 45 Cal.App.3d 761, 765, 119 Cal.Rptr. 735.)

Assuming the admonitions not to "screw[ ] up" or "get in any further trouble" (see fn. 4, below) can be viewed as orders, they were too general to support a finding that appellant violated a court order. (See People v. Smith (1970) 12 Cal.App.3d 621, 627-628, 90 Cal.Rptr. 811.) This is particularly true since the admitted conduct was not a violation of criminal law. Section 871 makes it a misdemeanor for a minor to escape or attempt to escape from a county juvenile home, ranch, camp, or forestry camp, or to escape during transportation to or from such a place. However, since appellant was not in custody of any of the specified institutions, his conduct did not violate that statute. (In re Steven E. (1991) 229 Cal.App.3d 1162, 1163, 1167, 280 Cal.Rptr. 540.)

Nor was the sole fact of appellant's leaving the company of a custodian legally sufficient to establish "that the previous disposition [was] such a complete failure that any further effort at that dispositional level would be unavailing." (In re Joe A. (1986) 183 Cal.App.3d 11, 26, 227 Cal.Rptr. 831.) A single "deviat[ion] from the paths of rectitude" will not automatically demonstrate such a "complete failure." (In re Donna G. (1970) 6 Cal.App.3d 890, 895, 86 Cal.Rptr. 421; In re Denise C., supra, 45 Cal.App.3d at p. 767, 119 Cal.Rptr. 735.) Here appellant had been at Positive Transitions less than two weeks--hardly enough time for anyone to reasonably conclude that he would not respond to the program. (See In re Scott K. (1984) 156 Cal.App.3d 273, 277, 203 Cal.Rptr. 268 [effectiveness of latest disposition cannot be assessed until it has been "executed"].) ² There was nothing before the court which would permit a finding beyond a reasonable doubt that the previous disposition was ineffective. Accordingly, the finding of jurisdiction under section 777 was not supported by substantial evidence.

The error in sustaining the petition was prejudicial because far from establishing the inevitability of the trial court's finding, much of the evidence later presented tended to rebut the notion that the single instance of misconduct alleged in the petition established the rehabilitative failure of the placement at Positive Transitions. Not only had there been insufficient time to assess the efficacy of the program...