People v. Travis J.

Opinion

Travis J. entered into a plea agreement in the juvenile court, pursuant to which he admitted felony charges of assault with a firearm and carrying a concealed firearm in a public place. As part of the plea agreement, he stipulated to a commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (also Division of Juvenile

On May 21, 2010, a warrant issued for Travis’s arrest after he absconded from Lifeworks group home. The warrant was recalled, on June 23, after Travis was taken into custody. The juvenile court vacated the out-of-home placement order and placed him on home probation with his father. On September 17, a notice of motion to revoke Travis’s probation (§ 777) was filed after he again left his father’s home and failed to attend school. Travis was again returned home.

2011 Petitions

On August 26, 2011, San Francisco police investigated reports of shots fired. Marquita Davis, an adult, reported that Travis, her former boyfriend, approached the car she was sitting in, called her a bitch, and strangled her. When she began to cry, Travis released Davis, removed a handgun from his pocket, aimed it at her stomach, removed $8 from her pocket, and then fired the gun at the car’s rear tire. Police found a flat rear tire, three shell casings, and one spent round on the ground.

On November 3, 2011, San Francisco police also investigated a call from Oliver Goldsmith stating that Travis had fired a gun at him. Goldsmith reported that he was in his van when another minor walked up to ask for some “weed.” Goldsmith noticed Travis walking up behind the other minor with a gun in his hand. When Goldsmith accelerated away, he heard gunshots. When Travis fired at Goldsmith’s van, a bullet singed the back of Goldsmith’s neck. A second bullet passed through the rear passenger window and a third bullet passed through the van’s rear window, shattering it. Travis was found in a nearby apartment, where a semiautomatic handgun was found inside the stove.

On November 7, 2011, two section 602 wardship petitions were filed against Travis, alleging a total of nine felony counts. The first petition, regarding the incident with Davis, alleged second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), assault (Pen. Code, § 245, subd. (a)), and carrying a concealed and loaded firearm in a public place (Pen. Code, former §§ 12025, subd. (a)(1), 12031, subd. (a)(1)). The second petition, regarding the incident

At the disposition hearing on January 8, 2013, the court “redeclared” Travis a ward of the court and committed him to DJJ for an MTC of three years. The court took Travis’s waiver of all credits earned up to that date, ordered Travis to pay $2,900 to Davis and $1,805 to Goldsmith in restitution, and imposed various terms and conditions of probation. The court explained its disposition as follows: “The Court finds that an award of custody to the parents would be detrimental to the minor and an award to a non-parent is required to serve the minor’s best interests. A return of the minor to his home would be contrary to his welfare, [ft Reasonable efforts have been made to prevent or eliminate the need for removing the minor from his home and to make it possible for the minor to return home, [ft And the Court is fully satisfied that the mental and physical conditions and the qualifications of the minor are such as to render probable that the minor will be benefited by reformatory educational discipline or other treatment provided by the probation or juvenile justice, [ft . . . [ft The Court has weighed and considered less restrictive alternatives and that is not appropriate to this case, [ft The Court has considered a number of factors, including the seriousness of the conduct, the need to protect society, the value of imposing discipline and accountability, extent of the minor’s need for a structured institutional setting, and professional help, intensive counseling, and school programs provided by DJJ .... [ft ... [ft And at this time I will issue a[n] [MTC] of three years. I find there are multiple mitigation factors. Among them is that the victims were adults who actually also victimized the minor. And they ... are the ones who . . . acted . . . very badly in many situations. And you being a minor, unfortunately, you took it a little bit too seriously and you did what you are alleged to have done. It got you into trouble .... [ft ... [ft And then I also took into consideration there are only property damages and there are no personal injuries to any of the victims. And that the minor has suffered emotional and cognitive deficits when he was growing up, coming from a very dysfunctional family home environment where the parents were fighting over him, causing Travis to be in a position of confusion and difficulty. And I took all of those [factors] into consideration, thereby mitigating your term of sentence to three years as the maximum.”

At a clarification of disposition hearing on January 14, 2013, the court stated its reasons for selecting the mitigated three-year term, stayed execution of sentence on the count of carrying a concealed weapon, and elected not to aggregate the period of confinement on previously sustained petitions. At the same hearing, Travis’s counsel argued that the restitution order to Davis was insufficiently verified. Specifically, he contended: “The damage to [Davis’s] vehicle was to the tire. The police photographed the bullet hole that went through one of the tires. ... [ft ... It is one tire. Under no circumstances could a tire be worth the amount that she is asking for nor . . . $400 of lost

The Welfare and Institutions Code contemplates that a juvenile may choose to admit the allegations of a jurisdictional petition alleging criminal conduct. “At the detention hearing, or any time thereafter, a minor who is alleged to come within the provisions of [sjection . . . 602, may, with the consent of counsel, admit in court the allegations of the petition and waive the jurisdictional hearing.” (§ 657, subd. (b).) California Rules of Court, rule 5.778 addresses the process by which a minor may admit the allegations of a section 602 petition and provides, in relevant part: “(a) Petition read and explained (§ 700). [f] At the beginning of the jurisdiction hearing, the petition must be read to those present. On request of the child, or the parent, guardian, or adult relative, the court must explain the meaning and contents of the petition, the nature of the hearing, the procedures of the hearing, and possible consequences. [!]... [1] (c) Admission of allegations; prerequisites to acceptance, [f] The court must then inquire whether the child intends to admit or deny the allegations of the petition. ... If the child wishes to admit the allegations, the court must first find and state on the record that it is satisfied that the child understands the nature of the allegations and the direct consequences of the admission, and understands and waives the rights in [subdivision] (b). HQ (d) Consent of counsel—child must admit, [f] Counsel for the child must consent to the admission, which must be made by the child personally, HQ • ■ • HO (f) Findings of the court (§ 702). HQ On an admission or plea of no contest, the court must make the following findings noted in the minutes of the court: [f] (1) Notice has been given as required by law; HQ (2) The birthdate and county of residence of the child; HQ (3) The child has knowingly and intelligently waived the right to a hearing on the issues by the court, the right to confront and cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the child’s behalf, and the right to assert the privilege against self-incrimination; HQ (4) The child understands the nature of the conduct alleged in the petition and the possible consequences of an admission or plea of no contest; HQ (5) The admission or plea of no contest is freely and voluntarily made; HQ (6) There is a factual basis for the admission or plea of no contest; HQ (7) Those allegations of the petition as admitted are true as alleged; [f] (8) The child is described by section . . . 602"; and HQ (9) In a section 602 matter, the degree of the offense and whether it would be a misdemeanor or felony had the offense been committed by an adult. . . . These determinations may be deferred until the disposition hearing. HQ (g) . . . HQ After accepting an admission or plea of no

Uriah R. is not directly on point. However, its reasoning is persuasive. Here, too, Travis presents no compelling reason that a juvenile is intelligent and mature enough to appreciate the consequences of admitting having committed a crime but is forestalled from agreeing to a particular disposition. Travis relies on a United States Supreme Court case holding that the Eighth Amendment forbids sentencing a juvenile offender to life in prison without parole for a nonhomicide crime. (Graham v. Florida (2010) 560 U.S. 48 [ 176 L.Ed.2d 825 , 130 S.Ct. 2011 ] (Graham).) In reaching that conclusion, the court summarized developments in psychology that “show fundamental differences between juvenile and adult minds.” (Id. at p. 68.) The court observed: “[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to aid in their defense. [Citations.] Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. [Citation.] These factors are likely to impair the quality of a juvenile defendant’s representation. [Citation.] A categorical rule avoids the risk that, as a result of these difficulties, a court or jury will erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a nonhomicide.” (Id. at pp. 78-79; see Miller v. Alabama (2012) 567 U.S._, - & fn. 5,_[ 183 L.Ed.2d 407 , 132 S.Ct. 2455 , 2464-2465 & fn. 5, 2468], (Miller) [raising similar concerns in holding that a sentencing scheme mandating life without parole for juveniles violates 8th Amend.].)

If anything, Graham and Miller could be read to suggest that plea bargains—in their entirety, not just stipulated commitments—are suspect in the juvenile delinquency realm. Indeed, Travis’s assertion that “adolescents’ incomplete brain development leaves them ill-equipped to weigh long-term consequences, and work with defense counsel in plea bargaining” would seem to apply equally to jurisdictional stipulations. But we decline to read Graham and Miller as broadly as Travis suggests. Neither case addressed a juvenile’s ability to plea bargain, and “it is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161 , 1176 [ 119 Cal.Rptr.2d 903 , 46 P.3d 372 ].)

We have serious difficulty seeing how juvenile offenders (and in particular Travis) would be well served by the sweeping prohibition against sentence bargaining that Travis would have us adopt. Ricardo C. highlights the very practical problem for Travis that he overlooks in his challenge to the dispositional order. We agree that a plea agreement—whether in adult or juvenile court—cannot constrain the sentencing court’s discretion if it ultimately finds that the agreed-upon terms are unacceptable or inconsistent with the court’s obligations. But the People are correct that Travis may not seek to improve, on appeal, a bargain he struck in the trial court. Contractual principles govern a negotiated admission, and the general rule is that “ ‘[a] defendant may not retain the favorable aspects of his negotiated disposition and at the [same] time jettison its unfavorable aspects.’ ” (People v. Miller (2012) 202 Cal.App.4th 1450 , 1461 [ 136 Cal.Rptr.3d 529 ].) Were we to accept that the court somehow failed to recognize its authority to reject a DJJ

But the issue in Julian R. was whether the juvenile court in fact gave consideration to the “facts and circumstances” and whether an oral pronouncement, accompanied by a statement of reasons, was required. (Julian R., supra, 47 Cal.4th at p. 498.) The court held that there was no requirement for an oral pronouncement. (Id. at p. 497.) As here, the minor argued that “a reviewing court must presume from the record’s silence that the juvenile court was either unaware of, or failed to perform, its statutory duty to consider that the ‘facts and circumstances’ might warrant a confinement period shorter than the adult maximum term.” (Julian R., at p. 498.) Rejecting that argument, the court observed that applying such a presumption would “ ‘ignore a cardinal principle of appellate review’: [that a] ‘ “ ‘judgment or order of the lower court is presumed correct ” ’ ” and “ ‘ “that a trial court is presumed to have been aware of and followed the applicable law.” ’ . . . [T]hus when ‘a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.’ ” (Id. at pp. 498-499, citations omitted.)

Here the record was not silent. At the time Travis’s plea was entered, defense counsel reminded the court of its obligation to make an independent finding on the appropriate DJJ term, reserving argument on the issue “to the time of disposition when the Court has a disposition report.” Prior to the

D. Probation Conditions

Next, Travis argues that the juvenile court erred in imposing probation conditions, in addition to the DJJ commitment. The People concede the error. Commitment to DJJ deprives the juvenile court of any authority to directly supervise the juvenile’s rehabilitation. (In re Owen E. (1979) 23 Cal.3d 398 , 404-405 [ 154 Cal.Rptr. 204 , 592 P.2d 720 ]; In re Ronny P. (2004) 117 Cal.App.4th 1204 , 1208 [ 12 Cal.Rptr.3d 675 ]; In re Allen N. (2000) 84 Cal.App.4th 513 , 516 [ 100 Cal.Rptr.2d 902 ] [“juvenile court’s imposition of discretionary conditions of probation constitutes an attempt to regulate or supervise the minor’s rehabilitation, a function solely in the hands of [DJJ] after the minor’s commitment”].) Accordingly, we will strike the probation conditions.

E. Restitution to Davis

Finally, Travis contends that the juvenile court’s order providing for $850 in restitution to Davis is unsupported by substantial evidence. On this point, we agree.

“Generally speaking, restitution awards are vested in the trial court’s discretion and will be disturbed on appeal only where an abuse of discretion appears. [Citation.]” (In re K.F. (2009) 173 Cal.App.4th 655 , 661 [ 92 Cal.Rptr.3d 784 ].) “ ‘ “When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.” ’ [Citations.]” (In re Johnny M. (2002) 100 Cal.App.4th 1128 , 1132 [ 123 Cal.Rptr.2d 316 ].) “The court abuses its discretion when it acts contrary to law [citation] or fails to ‘use a rational method that could reasonably be said to make the victim whole, and may not make an

The People assert that Travis’s challenge to the restitution order has not been preserved for appeal. We reject the assertion because “[s]ufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. [Citations.]” (In re K.F., supra, 173 Cal.App.4th at p. 660.)

1. Background

As part of the plea agreement, Travis agreed to pay restitution on the dismissed counts in both the first and second petitions. However, no amounts were stipulated. The original order of $2,900 was based on Davis’s claim, made to the probation officer, that she spent $1,500 repairing bullet holes, spent $1,000 on new rims and tires, and suffered $400 in lost wages. Although the juvenile court subsequently agreed that Davis’s credibility was questionable, it awarded her $850 in restitution based on its own “reasonable estimate” of the damages. The court explained: “I think there is strong evidence that there are some credibility issues. I agree with [defense counsel]. Nonetheless, [Travis] did . . . blow out one of [Davis’s] tires .... What I will do is make a reasonable estimate for what I believe the damages were. [1] With respect to [Davis], what I see as documented ... is that . . . there was one tire that was shot, I think that probably giving my most reasonable judgment I think probably would be in the amount of $800 for that tire. [][] And in terms of lost wages, I agree that I don’t see her here. I have never seen her in court. There is no documentation [supporting] where she works and why she incurred $400, but I do know there is some trouble when you have to take the tire to repair it and to retrieve it, so I will award $50 in terms of lost wages. So the total amount awarded is $850 to [Davis.]”

2. Analysis

Section 730.6 provides, in relevant part: “(h) Restitution ordered . . . shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. ... A restitution

“The purpose of an order for victim restitution is threefold, to rehabilitate the defendant, deter future delinquent behavior, and make the victim whole by compensating him for his economic losses. [Citation.] . . . HD The order is not however, intended to provide the victim with a windfall. [Citations.]” (In re Anthony M., supra, 156 Cal.App.4th at p. 1017.) A defendant bears the burden of proving that the amount of restitution claimed by the victim exceeds repair or replacement cost of lost or damaged property, but the defendant is not required to meet that burden until the replacement or repair cost of the victim’s property is established. (People v. Vournazos (1988) 198 Cal.App.3d 948 , 958-959 [ 244 Cal.Rptr. 82 ].)

Here, there is no evidence in the record that Davis paid $800 to replace a single tire or that she thereby lost $50 in wages. The replacement or repair cost of the victim’s property cannot be established simply by statements made by the victim to the defendant’s probation officer. (People v. Vournazos, supra, 198 Cal.App.3d at pp. 958-959; accord, People v. Harvest (2000) 84 Cal.App.4th 641 , 653 [ 101 Cal.Rptr.2d 135 ] [“mention of [victim’s burial expenses] in the probation officer’s report... . may satisfy notice requirements for due process [citation], but it cannot take the place of evidence”].) The juvenile court specifically indicated that it did not find Davis’s statements to the probation officer credible. Rather, the juvenile court based its restitution order to Davis on nothing more than speculation. It thereby abused its discretion. Accordingly, we will reverse the order and remand the matter for further proceedings to determine Davis’s “economic losses incurred as the result of [Travis’s] conduct.” (§ 730.6, subd. (h).)

Simons, Acting P. J., and Needham, J., concurred.