In re D.M. CA1/4 ( 2014 )

Filed 11/26/14 In re D.M. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re D.M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A140905
v.
(Sonoma County
D.M., Super. Ct. No. 37574-J)
Defendant and Appellant.
D.M. appeals from a dispositional order committing him to an out-of-home
placement following the juvenile court’s findings on three Welfare and Institution Code,1
section 602 petitions and several probation violation petitions (Welf. & Inst. Code,
§ 777). He contends that the juvenile court abused its discretion in finding that an out-of-
state placement was in his best interests. He also argues that the misdemeanor grand theft
finding must be reversed because amended Penal Code section 487 requires that the
stolen property be worth more than $950 and the petition erroneously stated the threshold
value of the stolen property was $400. The Attorney General concedes the error. We
vacate the grand theft finding and conclude that the court’s findings on the out-of-state
placement issue must be reversed.
1
Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
1
I. FACTUAL BACKGROUND
In January 2013, the district attorney’s office filed three section 602 petitions
alleging respectively that defendant committed misdemeanor battery on his stepfather
(Pen. Code, § 242); possessed marijuana on school grounds (Health & Saf. Code,
§ 11357, subd. (e)); and committed misdemeanor grand theft (Pen. Code, § 487,
subd. (a)). Defendant admitted the misdemeanor battery and grand theft allegations. The
misdemeanor grand theft charge was based on defendant’s theft of a cell phone, laptop,
and camera from an acquaintance. The court dismissed the marijuana possession
allegation. On March 13, 2013, the court committed defendant to the juvenile hall for a
period of 18 to 25 days followed by community detention for 30 to 35 days.
Defendant’s performance on community detention was unsatisfactory. On April
23, 2013, the probation department filed a section 777 petition alleging that defendant
violated a court order by failing to appear for chemical testing and not attending
counseling. Defendant admitted that he failed to attend a counseling program; the court
continued defendant on community detention, but committed him to an additional 35 to
40 days in juvenile hall. The court dismissed the chemical testing allegation.
On May 13, 2013, the probation department filed a second section 777 petition
alleging that defendant missed a chemical testing appointment and failed to comply with
community detention rules. On June 5, 2013, the court ordered that defendant undergo a
psychological evaluation. On June 6, 2013, the probation department filed a section 778
petition to modify the court’s previous orders to request that defendant be screened for
the Assertive Community Treatment (ACT) program. On June 12, 2013, the court found
defendant suitable for the ACT program.
On October 3, 2013, another section 777 petition and a section 602 petition were
filed alleging that defendant was arrested for receiving stolen property, a cell phone.
Defendant admitted that he committed the offense of receiving stolen property. The court
ordered that defendant be detained in juvenile hall. The court was concerned that
defendant’s mother did not have a permanent and stable residence and noted that it might
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consider community detention if mother provided proof that she had a residence within
Sonoma County. The court dismissed the section 777 petition.
The dispositional hearing was held on October, 21, 2013. The probation
department recommended that defendant be committed to an out-of-home placement
because he had made “essentially no progress” in the ACT program and lacked a stable
home environment. The court followed the probation department’s recommendation. It
ordered defendant detained in juvenile hall pending an out-of-home placement.
On December 5, 2013, a new section 777 petition was filed alleging that defendant
fled from the vehicle that was to transport him to a placement at Rite of Passage and that
his whereabouts were unknown. Defendant turned himself in several days later. The
court ordered that defendant be detained in the juvenile hall pending placement and
referred the matter to the probation department for an out-of-state placement screening.
On January 2, 2014, the court reaffirmed its earlier order retaining defendant as a
ward of the court and found that an out-of-state placement was in defendant’s best
interests. It did not preclude the probation department from considering programs within
the state but urged the department to explore as many options as possible. The court
further found that an out-of-state placement would not produce an undue hardship on
defendant, there was no equivalent facility for him in California, and the requirements of
section 7911.1 of the Family Code were met.2 Counsel for defendant objected, arguing
that the court had not provided any evidentiary basis in support of its findings nor had
other placement options been exhausted.
II. DISCUSSION
Defendant contends that the juvenile court abused its discretion in making findings
that an out-of-state placement was in his best interests and that the requirements of
Family Code section 7911.1 had been met. He argues that the court’s findings have no
2
Family Code section 7911.1 provides for the inspection, assessment, and certification of
out-of-state group homes to insure their compliance with California licensure standards.
The statute requires that a county “obtain an assessment and placement recommendation
by a county multidisciplinary team prior to placement of a child in an out-of-state group
home facility.” (§ 7911.1, subd. (d).)
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evidentiary basis, and will preclude him from timely challenging such a placement when
it is made.
The Attorney General argues that the court’s order is not appealable because the
court did not yet order an out-of-state placement and there is no related final judgment
from which to appeal. She points to the fact that defendant was in fact placed in an in-
state facility in Fresno.3
The Attorney General relies on In re Julian O. (1994) 27 Cal.App.4th 847, 851–
852, a case involving the appealability of a restitution order. There, the court held that
the court’s restitution order was not an appealable order because the court did not specify
the amount of the restitution but directed that the amount be ascertained ex parte or at an
ex parte hearing. The court held that the appellant could challenge the restitution order
when it was actually entered. (Id. at p. 852.)
Julian O., however, is distinguishable. Here, the court made findings on an out-
of-state placement issue. The appealability of a placement issue is addressed in In re
Jorge Q. (1997) 54 Cal.App.4th 223. There, the court ordered that the appellant be
placed with his father, but that if he violated any of the terms of the placement, the court
could send him to camp without a hearing. (Id. at pp. 227–228.) The court of appeal
held that the juvenile court’s order violated section 777 because it purported to be a
dispositional order that was self-executing, circumventing the procedural requirements of
section 777 that require a supplemental petition and noticed hearing prior to a more
restrictive placement. (Id. at p. 237.)
“Under the existing juvenile court law, the juvenile court must make the
dispositional order appropriate to appellant’s circumstances at the time of disposition.
After attempting that level of disposition, if it appears the present level of restriction is
not effective, the juvenile court must initiate the proceedings contemplated by section
777. Section 777 proceedings, by the explicit terms of the statute, can be avoided only
3
We have augmented the record on appeal to include the juvenile court’s July 28, 2014
Order for Payment for Care and Maintenance of Wards which refers to defendant’s
placement at the Valley Teen Ranch in Fresno, California.
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where the length of the confinement contemplated by the juvenile court is 30 days or less.
Otherwise, a section 777 petition must be filed and the juvenile court must have evidence
before it to support a finding the previous disposition has not been effective in the
rehabilitation or protection of the minor. It is also impermissible for the juvenile court to
predetermine dispositional issues prior to a hearing. ‘[T]he court is required to examine
the entire dispositional picture whenever the minor comes before the court for
disposition. It cannot treat an earlier order as “self-executing” or “automatic.” ’
[Citations.]” (In re Jorge Q. at pp. 237– 238.)
While the court’s order here does not in fact order an out-of-state placement, it
appears to be a “self-executing” order directing the probation department to place
defendant either in an in-state placement or an out-of-state placement and makes the
specific findings that an out-of-state placement is in defendant’s best interests and that
the department has complied with the requirements of Family Code section 7911.1. The
court also failed to make an express finding on why its previous placement order was
ineffective. (See In re Ruben A. (1981) 121 Cal.App.3d 671, 674.) Section 777 requires
a noticed hearing in order to change or modify a previous placement order. (§ 777.)
In this case, the dispositional hearing was held in October 2013, and the court
ordered an out-of-home placement. Defendant, however, fled en route to the placement
and a new section 777 petition was filed. The section 777 hearing was held on December
10, 2013. The court again ordered an out-of-home placement, but also referred the matter
to the probation department for an out-of-state screening.
The parties returned to court on January 2, 2014. The probation officer reported
that the Case Management Council (CMC) had approved “out-of-state language” for
defendant’s placement but wanted the court’s direction as to whether the department
could look at in-state as well as out-of-state programs. The court responded that it
wanted as many options as possible but proceeded to find that “placement out of state is
in the best interests of the minor and will produce no undue hardship for the minor.
There is no equivalent facility for the minor in the state of California. The requirements
of 7911.1 of the Family Code have been met.”
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Although the record indicates that defendant was placed in an in-state program,
the court’s findings regarding an out-of-state placement are premature and are not
supported by the record. Section 727.1, subdivision (b)(1) provides that a court may not
order a minor placed in an out-of-state residential facility or program “unless the court
finds, in its order of placement, that all of the following conditions are met: [¶] (1) In-
state facilities or programs have been determined to be unavailable or inadequate to meet
the needs of the minor. [¶] (2) The State Department of Social Services has performed
initial and continuing inspection of the out-of-state residential facility . . . . [and] [¶]
(3) The requirements of Section 7911.1 of the Family Code are met.”
Here, not only had the court not made a determination that an in-state program
was unavailable or inadequate, it proceeded to find that an out-of-state placement was in
defendant’s best interests. Other than the probation officer’s remarks at the hearing that
the CMC had approved “out-of-state language and placement” for defendant, there is no
evidence in the record to support that finding. Although it appears that the juvenile court
simply wanted the option of an out-of-state program for defendant, and defendant was
ultimately placed in an in-state facility, the court’s findings regarding the out-of-state
placement indicate that the court was predetermining a future placement issue. We must
therefore reverse that portion of the court’s order finding that an out-of-state placement is
in defendant’s best interests. Upon any future section 777 petition, the court may assess
whether an out-of-state placement is appropriate in light of the circumstances present at
the time.
Defendant also argues that the misdemeanor grand theft finding must be reversed
because Penal Code section 487 requires a finding that defendant stole property worth
more than $950 while the section 602 petition alleged grand theft of property of a value
exceeding $450. Effective January 1, 2011, Penal Code section 487 was amended to
define grand theft as the taking of property worth more than $950. (Stats. 2010, ch. 693,
§ 1; People v. Wade (2012) 204 Cal.App.4th 1142, 1150.)
The petition here alleged grand theft of property of a value exceeding $400, and
was based on conduct that occurred in 2012, well after the effective date of the
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amendment. The court here, however, sustained the petition charging the grand theft
allegation with the incorrect threshold amount of $400. As the Attorney General
acknowledges, defendant is entitled to the benefit of the amended $950 threshold.
Accordingly, we vacate the sustained allegation of grand theft. Because there was
evidence that defendant stole property–a phone, camera, and a laptop—that was worth
more than $950, the district attorney may choose to file a new petition. (People v. Wade,
supra, 204 Cal.App.4th at pp. 1153, fn. 5.)
III. DISPOSITION
The court’s order sustaining the misdemeanor grand theft finding is vacated, and
the matter is remanded to the juvenile court to allow a new hearing on the allegation
should the People choose to file a new petition. We reverse the court’s findings
approving an out-of-state placement for defendant. In all other respects, the dispositional
order is affirmed.
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_________________________
Rivera, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Bolanos, J.*
* Judge of the Superior Court of the City and County of San Francisco, assigned by the
Chief Justice pursuant to Article VI, section 6 of the California Constitution.
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