The People v. Melvin J.

• Decision Date: 15 June 2000
• Citation: 96 Cal.Rptr.2d 917,81 Cal.App.4th 742
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2000) In re MELVIN J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MELVIN J., Defendant and Appellant. B128478 Filed

96 Cal.Rptr.2d 917 (Cal.App. 2 Dist. 2000)

In re MELVIN J., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. MELVIN J., Defendant and Appellant.

B128478

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE

DISTRICT, DIVISION FIVE

Filed 6/15/00

APPEAL from orders of the Superior Court of Los Angeles County. Preciliano P. Recendez, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed in part and reversed in part.

(Super. Ct. No. NJ09465)

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Jaime L. Fuster and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

WEISMAN, J.^*

On March 7, 2000, the voters approved an initiative measure designated on the ballot as Proposition 21. This measure took effect on March 8, 2000, the day following the election. (Cal. Const., art. II, 10, subd. (a).) Proposition 21, known as the Gang Violence and Juvenile Crime Prevention Act of 1998, made numerous changes to the Penal Code and Welfare and Institutions Code relating to the adult and juvenile justice systems, including the treatment of juvenile offenders, the confidentiality protections afforded to juvenile proceedings, the type of juvenile offenders that can be tried in adult court, and the punishment for gang-related offenses and offenders. Of particular relevance to the instant case is section 27 of Proposition 21, which amended Welfare and Institutions Code section 777 by deleting the requirement of a supplemental petition when modifying a previous order to impose a more restrictive type of custody, including commitment to the California Youth Authority. Section 27 also deleted in its entirety Welfare and Institutions Code section 777, subdivision (e) which had created an exception to the supplemental petition procedure where an order imposing custody had been stayed, a minor had violated a condition of the stay, and a sanction of 30 days or less in custody was imposed for the violation. In this opinion, we must decide whether the amended version of Welfare and Institutions Code section 777 contained in Proposition 21 can be applied to a hearing relating to the lifting of a stay of a Youth Authority commitment when the hearing is to be held after the effective date of Proposition 21 and when the offense for which the stayed Youth Authority commitment was imposed occurred before the effective date of Proposition 21.

On April 23, 1998, the juvenile court sustained a petition after finding true an allegation that appellant, Melvin J., was a minor who came within the provisions of Welfare and Institutions Code section 602 in that the minor was 16 years old on February 28, 1998, and committed a felony assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) on that date. At the disposition hearing held on October 23, 1998, the juvenile court found the minor to be a fit subject for the juvenile court, ordered that the minor was to remain a ward of the court, and ordered that custody be taken from the minor's parents. The juvenile court ordered the minor committed to the California Youth Authority for a period of confinement not to exceed four years. The commitment to the Youth Authority was stayed for surrender until April 23, 1999. The minor was then released and ordered to remain at home on probation on various terms and conditions. A progress report date was set for January 22, 1999.

Before the progress report date, a probation officer's report was filed on November 2, 1998, alleging that the minor had violated the conditions of probation by breaking the windows of his brother's car and also breaking windows in his mother's house. On November 2, 1998, the juvenile court ordered the minor detained until a hearing was held on the probation violation allegation. The hearing was set for November 18, 1998. The juvenile court also appointed a psychiatrist at the request of counsel for the minor and ordered a report be prepared for the hearing pursuant to Evidence Code section 730. On November 18, 1998, the juvenile court held an evidentiary hearing and found that the minor had violated the conditions of his probation as alleged by the probation officer. The juvenile court then lifted the stay of the commitment to the Youth Authority and ordered the minor to be transported to the Youth Authority.

The minor appeals from the order of November 18, 1998 lifting the stay of the commitment to the California Youth Authority. The minor contends that the juvenile court erred: (1) at the original disposition hearing on October 23, 1998 when it failed to consider the most recent probation report prepared for that hearing; (2) at the original disposition hearing on October 23, 1998 when it stayed the commitment to the Youth Authority; (3) at the hearing on November 18, 1998 when it failed to consider the report of the psychiatrist that it had previously ordered for that hearing; and (4) on November 18, 1998 when it conducted a hearing pursuant to former¹ Welfare and Institutions Code section 777, subdivision (e) rather than pursuant to former Welfare and Institutions Code section 777, subdivision (a).²

We find that the minor cannot raise issues relating to the October 23, 1998 disposition hearing because he has not appealed from the orders entered at that hearing. We further find that even if these issues were properly before us on appeal, the juvenile court did not commit error when it conducted the disposition hearing on October 23, 1998 after receiving information from the court probation officer about the contents of the newest report, and that no error was committed when it stayed the commitment to the Youth Authority. We therefore affirm the dispositional order of October 23, 1998 that stayed the commitment to the Youth Authority.

As to the issues raised that relate to the hearing held on November 18, 1998, we find the court erred when it conducted the hearing pursuant to former Welfare and Institutions Code section 777, subdivision (e) and therefore failed to make the findings required by former Welfare and Institutions Code section 777, subdivision (a) before lifting the stay of the Youth Authority commitment. In analyzing whether the erroneous failure to make the findings required by former Welfare and Institutions Code section 777, subdivision (a) is prejudicial and justifies a remand for a new hearing, we must determine if the recent passage of Proposition 21 by the electorate on March 7, 2000, that deleted the requirement of such findings, will have any impact on any hearing on remand ordered by this court. If Proposition 21 governs any hearing conducted on remand, the juvenile court will no longer be under an obligation to make the series of findings formerly required by Welfare and Institutions Code 777, subdivision (a). Under the new provisions of Proposition 21, the juvenile court will only be required to decide if a probation violation occurred prior to ordering into effect a stayed California Youth Authority commitment. Since the juvenile court has already determined that such a violation occurred, there would be no reason to remand the case for another hearing on the same issue. We would find that any error in this regard made by the juvenile court on November 18, 1998, to be harmless given the application of the new provisions of Proposition 21 if the matter was remanded. Since the error would be harmless, no reversal would be appropriate. (People v. Watson (1956) 46 Cal.2d 818, 836.) However, we determine the new provisions of Welfare and Institutions Code section 777, subdivision (a) cannot be applied on remand because to do so would violate ex post facto principles. (Carmell v. Texas (2000) ___ U.S. ___ [120 S.Ct. 1620, 2000 Daily Journal D.A.R. 4521].) Since the provisions of former Welfare and Institutions Code section 777, subdivision (a) must be utilized on remand, and since the court completely failed to make such findings, we find the error prejudicial and remand for a new hearing pursuant to former Welfare and Institutions Code section 777, subdivision (a). Because a new hearing will be held on remand, we find the remaining issue relating to the failure of the court to obtain and consider the psychiatric report ordered for the November 18, 1998, hearing to be moot.

FACTUAL AND PROCEDURAL BACKGROUND

In October of 1996, when the minor was 15 years old, the minor was ordered into a Camp Community Placement program pursuant to a petition filed under Welfare and Institutions Code section 602. He completed the program in the fall of 1997 and was released home on probation from Camp Miller. The minor lived with his mother in Compton after his release from camp. He was a member of the Tiny Rascals gang.

On February 28, 1998, Hoang Phi Dinh and a number of his friends were leaving the Varsity Billiards pool hall. One of Mr. Dinh's friends named Ohng was a member of the Cheap Boys gang. As Mr. Dinh and his friends left the pool hall they were followed by four males who had previously been together with the minor inside the pool hall. Ohng asked the four males, "Where you guys from?" and they responded, "TRG." Ohng said he was from "Cheap Boys." A fight then broke out between Ohng and the four males. Mr. Dinh's other friends ran away, but Mr. Dinh took a few steps toward Ohng to assist him. The minor then ran out of the pool hall with a pool cue. The pool cue was separated into two parts and the minor held one part in each hand. The minor hit Mr. Dinh in the head with the large end of the pool cue. The force of the blow caused Mr. Dinh to black out and fall down. Mr. Dinh's friend Tri Minh Tran helped him up and Mr. Dinh went back into the pool hall. The minor and Mr. Tran then began fighting. Two security...