Opinion
A165167
03-23-2023
In re T.W., a Person Coming Under the Juvenile Court Law. v. T.W., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 20223647101
SIMONS, J.
T.W. (Minor) appeals from the juvenile court's dispositional order following Minor's admission to allegations that he unlawfully possessed a firearm and ammunition. We reverse and remand.
BACKGROUND
In January 2022, after a juvenile wardship petition was filed, Minor, then 17 years old, admitted possession of a concealable firearm by a minor (Pen. Code, § 29610) and possession of ammunition by a minor (§ 29650).
All undesignated section references are to the Penal Code.
According to the probation report, Minor's best friend was arrested for firearms and ammunition possession and was found to have a "hit-list" of students from his previous school. Police were concerned that Minor's best friend might be planning a school shooting and that Minor might be involved. Minor's father consented to a search of Minor's bedroom, where police found a Glock handgun hanging from the back of Minor's desk, which was pushed against a wall. Police also found, inside a Pringles can located in a dresser drawer, a 15-round magazine for a Glock handgun and seven loose live nine-millimeter ammunition rounds.
At the March 2022 disposition hearing, the juvenile court declared Minor a ward of the court and placed him at the Maxine Singer Youth Guidance Center.
DISCUSSION
I. Deferred Entry of Judgment
Minor argues remand is required for a determination of Minor's eligibility and suitability for deferred entry of judgment (DEJ). We agree.
"The DEJ provisions of [Welfare and Institutions Code] section 790 et seq. 'provide that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a section 602 petition and waive time for the pronouncement of judgment. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed.'" (In re C.W. (2012) 208 Cal.App.4th 654, 659.)
"The determination of whether to grant DEJ requires consideration of 'two distinct essential elements of the [DEJ] program,' viz., 'eligibility' and 'suitability.' [Citation.] Under section 790, the prosecuting attorney is required to determine whether the minor is eligible for DEJ. Upon determining that a minor is eligible for DEJ, the prosecuting attorney 'shall file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and shall make this information available to the minor and his or her attorney.'" (In re C.W., supra, 208 Cal.App.4th at p. 659.) "Once the threshold determination of eligibility is made, the juvenile trial court has the ultimate discretion to rule on the minor's suitability for DEJ. [Citation.] Suitability for DEJ is within the court's discretion after consideration of the factors specified by statute and rule of court, and based upon the standard of whether the minor will derive benefit from '"' "education, treatment, and rehabilitation" '"' rather than a more restrictive commitment." (Id. at p. 660.)
"Under appropriate circumstances, the court may summarily grant DEJ to the minor. [Citations.] If the court does not summarily grant DEJ, it must conduct a hearing at which it must 'consider the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by the child or other interested parties.' ([Cal. Rules of Court, r]ule 5.800(f).) It is the mandatory duty of the juvenile court to either grant DEJ summarily or examine the record, conduct a hearing, and determine whether the minor is suitable for DEJ, based upon whether the minor will derive benefit from 'education, treatment, and rehabilitation.' [Citations.] While the court is not required to grant DEJ, it is required to 'follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.'" (In re D.L. (2012) 206 Cal.App.4th 1240, 1243-1244.)
At the uncontested jurisdiction hearing, Minor's counsel requested a "790 evaluation." It is undisputed that the prosecutor did not provide the juvenile court, Minor, or Minor's attorney with written notice of Minor's DEJ eligibility. It is also undisputed that there is no reference in the record to Minor's eligibility or suitability for DEJ at subsequent proceedings.
The People do not contend Minor is ineligible for DEJ, but argue the failure to provide notice of Minor's eligibility was harmless because Minor's counsel's request for a "790 evaluation" shows counsel "was fully aware of DEJ." The People cite no authority that a minor's counsel's awareness of the existence of DEJ obviates the prosecutor's duty to provide written notice of eligibility. The People next argue the juvenile court's failure to hold a suitability hearing and make a suitability determination was harmless because the disposition report provided evaluation relevant to Minor's DEJ suitability and the juvenile court agreed with the report's assessment that any suitable placement would require physical confinement. The People cite no authority that harmless error analysis is appropriate in these circumstances. (Cf. In re D.L., supra, 206 Cal.App.4th at p. 1245 [where "the court did not follow the specified procedures in determining [the minor's] suitability for DEJ," the minor was "deprived of the opportunity for a hearing and deprived of fundamental procedural rights" and therefore "reversal is compelled"].) Even if it is likely the court will determine Minor is not suitable for DEJ, that discretionary decision is one for the juvenile court in the first instance. We will remand to allow the court to exercise its discretion to determine Minor's suitability for DEJ.
Although Minor's remaining arguments may be moot if the juvenile court grants DEJ, in the interest of judicial efficiency we will nonetheless address them.
II. Section 654
Minor contends the punishment for either unlawful possession of a firearm by a minor or unlawful possession of ammunition by a minor should be stayed pursuant to section 654.
"Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. [Citations.] 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citations.] On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she 'may be punished for each statutory violation committed in pursuit of each objective' even though the violations were otherwise part of an indivisible course of conduct.'" (People v. Sok (2010) 181 Cal.App.4th 88, 99 (Sok).) Section 654" 'applies to juvenile court proceedings.'" (In re L.J. (2021) 72 Cal.App.5th 37, 43.)
" 'When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective.' [Citation.] We review for substantial evidence a trial court's implied finding that a defendant had separate intents and objectives for different offenses." (In re L.J., supra, 72 Cal.App.5th at p. 43.)
Appellant relies on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), in which the trial court imposed separate terms for unlawful possession of a firearm and unlawful possession of ammunition. (Id. at p. 137.) The Court of Appeal reversed: "[The defendant's] obvious intent was to possess a loaded firearm. [¶] . . . While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (Id. at p. 138; see also Sok, supra, 181 Cal.App.4th at p. 100 ["the trial court erred in failing to stay the sentences for [two counts of unlawful possession of ammunition] . . . pursuant to section 654 because the ammunition at issue in those two counts was either loaded into [the defendant's] handgun or had been fired from that gun" and therefore "[t]here is no evidence in the record that would support the trial court's implied factual finding that [the defendant] had different or multiple objectives in possessing the loaded firearm and possessing the ammunition in the gun itself"].)
Lopez and Sok are distinguishable because the ammunition found in Minor's room was not loaded into or fired from the firearm found in a separate location in his room. The sole fact that the ammunition could have been loaded into the firearm does not mean the juvenile court's implied finding that Minor possessed different or multiple objectives lacked substantial evidence.
III. Probation Condition
Among the probation conditions ordered by the juvenile court was a condition prohibiting Minor from using tobacco products until he turned 21 years old. Minor argues this condition should be stricken as unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent).
At the disposition hearing, the juvenile court ordered, "Don't use tobacco products, including Vape, until you're 21." The written condition provided, "The minor not to knowingly use or possess any alcohol, cannabis, synthetic cannabinoids, or other illegal drugs at any time, and not to use or possess any tobacco products, including Vape Devices, when under the age of 21 years, and submit to the chemical testing of his blood, breath or urine by any probation or law enforcement officer. All other medications only to be taken in recommended or prescribed doses."
Minor concedes he failed to object to the condition below and it is therefore forfeited. (In re Q.R. (2020) 44 Cal.App.5th 696, 700 ["Minor did not assert that the condition was unreasonable under [Lent], and he has therefore forfeited that argument."].) He contends his trial counsel was constitutionally ineffective for not raising the challenge. "To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
The record here does not show the reason for counsel's failure to object to the challenged condition. The parties dispute whether there could be no satisfactory explanation for the failure, an inquiry which turns on whether an objection would have been meritorious.
" 'The juvenile court's discretion in imposing conditions of probation is broad but not unlimited. [Citation.] Our Supreme Court has stated criteria for assessing the validity of a probation condition: Upon review, "[a] condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality[.]'" (Lent, supra, 15 Cal.3d at p. 486.) . . . Adult and juvenile probation conditions are reviewed under the Lent criteria. [Citation.] . . . In determining reasonableness, courts look to the juvenile's offenses and social history.'" (In re Cesar G. (2022) 74 Cal.App.5th 1039, 1045.) "The third prong, relating to future criminality, 'contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.' [Citation.] This prong 'requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.'" (People v. Salvador (2022) 83 Cal.App.5th 57, 62.)
Minor argues, and the People do not dispute, that use of tobacco products is not related to Minor's offenses or to conduct which is itself criminal. The People argue use of tobacco products is reasonably related to Minor's future criminality because there is evidence in the record Minor regularly uses marijuana and the condition "prevents [Minor] from using tobacco products that could contain or conceal marijuana." The People rely on a case in which the defendant testified he had removed the tobacco from a cigarillo and replaced it with marijuana. (See People v. Boatman (2013) 221 Cal.App.4th 1253, 1259-1260.) While concerns about Minor's substance use relate to future criminality, there is no record evidence he ever sought to conceal other drugs inside tobacco products. The mere fact that it is theoretically possible for him to attempt to do so is not sufficient to render the challenged condition reasonably related to preventing future criminality. (See People v. Nassetta (2016) 3 Cal.App.5th 699, 703 [curfew probation condition imposed on adult defendant not related to preventing future drug-related crimes simply because of general, unsupported notion that drug crimes are more likely to occur at night].)
In sum, we find there could be no satisfactory explanation for trial counsel's failure to object to the tobacco condition and Minor has demonstrated prejudice. We will direct the juvenile court to strike the condition prohibiting tobacco possession and use.
IV. Unopposed Issues
Finally, three claims raised by Minor are either conceded or not opposed by the People.
First, Minor argues the matter must be remanded for the juvenile court to expressly determine whether his wobbler offenses are felonies or misdemeanors. The People properly agree. (Welf. &Inst. Code, § 702 ["If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony."]; In re G.C. (2020) 8 Cal.5th 1119, 1125 ["[Welfare and Institutions Code] section 702's requirement is 'obligatory' rather than 'merely "directory"' [citation] and requires an explicit declaration"]; see also § 29700 [§§ 29610 &29650 are wobbler offenses].)
Second, Minor argues the matter must be remanded for the juvenile court to calculate Minor's maximum term of confinement, which the court erroneously set at 36 months. Again, the People properly agree. (Welf. &Inst. Code, § 726, subd. (d)(1) ["If the minor is removed from the physical custody of the minor's parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the middle term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court."]; §§ 1170, subd. (h) &29700, subd. (a) [middle term for Minor's offenses is two years].)
Third, Minor argues on remand the juvenile court should award him custody credits for the days he spent at juvenile hall in between the dispositional hearing and the date he was placed at Maxine Singer Youth Guidance Center. The People properly do not oppose the contention. (See In re J.M. (2009) 170 Cal.App.4th 1253, 1256 ["Although J.M.'s disposition hearing took place on January 22, 2008, he was detained in a secure facility, juvenile hall, until February 7, 2008. Thus he was entitled to credit for time served in a secure facility prior to his commitment to the group home. To hold otherwise would deprive him of receiving any credit for this interim time that he spent in physical confinement."].)
DISPOSITION
The juvenile court's jurisdiction and disposition orders are vacated and the matter is remanded for further proceedings in compliance with Welfare and Institutions Code section 790 et seq. and California Rules of Court, rule 5.800. If, as a result of those proceedings, the juvenile court grants DEJ to Minor, the jurisdiction and disposition orders will remain vacated. If the juvenile court denies DEJ to Minor, the court shall reinstate the jurisdiction and disposition orders, subject to Minor's right to have the DEJ denial reviewed on appeal, and, with respect to the disposition order, the juvenile court shall: (1) declare whether Minor's offenses are felonies or misdemeanors; (2) calculate Minor's maximum term of confinement; (3) award additional custody credits for time spent in juvenile hall between disposition and placement at Maxine Singer Youth Guidance Center; and (4) strike the probation condition prohibiting tobacco possession and use.
We concur. JACKSON, P. J., BURNS, J.