People v. D.H. (In re D.H.)

In re D.H., a Person Coming Under the Juvenile Court Law

THE PEOPLE, Plaintiff and Respondent, v. D.H., Defendant and Appellant.

B297239

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

November 17, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. FJ54217)

APPEAL from an order of the Superior Court of Los Angeles County, Robert Leventer. Affirmed with directions.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jonathan J. Kline and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

D.H. appeals from the juvenile court's disposition order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, now known as the Department of Youth and Community Restoration (the Department),¹ for a maximum term of five years eight months, after the court found D.H. violated the terms and conditions of his probation under Welfare and Institutions Code section 777.² D.H., who was 15 years old at disposition, argues the juvenile court abused its discretion in committing him to the Department because there were "less restrictive alternatives that could have met [his] needs while at the same time meeting the court's legal obligation to place [him] in the least restrictive environment." D.H. also argues, and the People concede, the juvenile court erred in calculating his predisposition custody credit. We direct the juvenile court to correct D.H.'s predisposition custody credit, but otherwise affirm.

PROCEDURAL AND FACTUAL BACKGROUND

A. The Prior Petitions Under Section 602

D.H.'s extensive criminal history began in October 2016 when he was 13 years old. By October 2017 the juvenile court had declared D.H. a ward of the court, removed him from his parent's custody, and sustained four section 602 petitions charging D.H. with numerous offenses. Those offenses included burglary, attempted robbery, robbery, theft, possession of burglary tools, attempted carjacking, carjacking, evading a peace officer, theft of a vehicle, receiving stolen property, presenting false identification, and driving without a license. During 2017 the juvenile court made multiple orders for suitable placement, including orders placing D.H. in a group home, a community detention program,³ and juvenile hall. On November 21, 2017 the juvenile court ordered D.H. "home on probation."

Two months later, on January 23, 2018, police officers saw a car driven by someone who was not wearing a seatbelt. D.H., who was sitting in the front passenger seat, "look[ed] nervously" at them. The officers followed the car and saw a gun on the ground at an intersection the car had just crossed. They ordered the driver to stop, told the occupants to get out, and called for another officer to retrieve the gun from the street. Officers located a second gun near a sidewalk. Both guns were loaded. The officers took D.H., the driver, and another passenger to the police station for further investigation, where the driver told the officers he saw D.H. throw a gun out the window.

The People filed a petition under section 602 charging D.H. with possession of a firearm and possession of live ammunition by a minor (Pen. Code, §§ 29610, 29650). D.H. admitted both allegations, and the juvenile court sustained the petition. The court set a disposition hearing for April 26, 2018.

On February 24, 2018 D.H. and four other minors entered a department store, stole several "high-end" purses, and fled in a car driven by D.H., who led police officers on a brief pursuit before stopping. The People filed a petition under section 602 charging D.H. with grand theft (Pen. Code, § 487, subd. (a)), conspiracy to commit a crime (Pen. Code, § 182, subd. (a)(1)), and driving without a license (Veh. Code, § 12500, subd. (a)). After D.H. admitted the conspiracy allegation, the juvenile court sustained the petition, dismissed the other two allegations, and set the case for disposition.

On March 19, 2018 D.H. entered a department store, took clothing off the shelves, walked past the registers, and tried to leave. When two store employees confronted him, D.H. punched one of them in the face. When police officers arrived, they took D.H. into custody and transported him to juvenile hall. The People filed another section 602 petition, the third in three months, charging D.H. with two counts of robbery (Pen. Code, § 211). After D.H. admitted one of the counts, the juvenile court sustained the petition, dismissed the second robbery count, and set the matter for disposition.

At the April 26, 2018 disposition hearing, the parties submitted on the recommendation of a camp community placement program. The juvenile court ordered D.H. to camp for seven to nine months and told him: "And so you understand what is happening, these are serious crimes. I got to get throughto you somehow because you will end up in prison the rest of your life. . . . I handle all the kids who go to [the Department]. You are headed in that direction. You need to turn this around. These are robberies, not just one. A possession of a gun. This is serious business. You are eligible for [commitment to the Department] today. Seven to nine months [of camp] is a break."

While at camp, D.H. received six suspensions for, among other things, attempted robbery, gang activity, and assault in a "mutual fight." D.H. was released from camp on December 6, 2018 and again placed home on probation.

B. The Current Petition Under Section 602

On December 21, 2018, two weeks after his release from camp, D.H. and four other minors entered two department stores and stole several items. D.H. again drove the getaway car. Police officers responding to a "theft in progress" call tried to pull over the car D.H. was driving. D.H. drove away and led police on a 10-mile high-speed chase on the freeway in "opposing traffic lanes" and on side streets during rush hour while throwing the stolen items out the car window. The police officers eventually conducted a "PIT maneuver,"⁴ which caused D.H. to crash his car into a police car as he tried to make an illegal U-turn. The officers detained D.H. and took him to juvenile hall. The People filed another petition under section 602, charging him with fleeing to elude a pursuing peace officer in a vehicle driven inwillful or wanton disregard for the safety of persons or property (Veh. Code, § 2800.2), three counts of second degree burglary (Pen. Code, § 459), two counts of grand theft (Pen. Code, § 487, subd. (a)), and possession of burglary instruments or tools (Pen. Code, § 466). The People subsequently filed a notice of probation violation under section 777 in lieu of the petition, and the juvenile court dismissed the petition and set a probation violation hearing.⁵

C. The Probation Violation Hearing, Disposition, and Commitment to the Department

At the probation violation hearing D.H. admitted that his conduct on December 21, 2018—failing to yield to police and driving recklessly—violated the terms and conditions of his probation. The juvenile court found D.H. in violation of probation and sustained the allegation in the section 777 notice.

The probation officer, testifying at disposition, recommended placing D.H. in a suitable facility in Iowa for a six-to 12-month program. The juvenile court asked the probation officer why he believed it was not appropriate for the court to commit D.H. to the Department. The probation officer said the court should give D.H. "another opportunity" in a place where he could "start over" and gain a new perspective. The probation officer stated that juvenile offenders like D.H. view theDepartment as a "prison" and a "place of no hope" and that it is particularly difficult for juveniles to rehabilitate in a setting where they know each other and their "past transgressions." When the court asked the probation officer whether the Iowa facility was a "locked facility," the probation officer said that he thought it was, but that he could be wrong.

The prosecutor asked whether there were any differences in programming between the Department and the Iowa facility, and the probation officer stated that "they offer the same services." When asked whether the Department's rehabilitative programs were "just as good" as any out-of-state program, the probation officer responded, "Possibly, yes." Neither the probation officer nor counsel for D.H. suggested a different placement.

The prosecutor argued that the Department had "an excellent program" and that, given D.H.'s "escalating criminal behavior," commitment to the Department was "the natural next step" and "best outcome in this case." Counsel for D.H. stated that, although the Department could be "a positive influence," D.H. would still be "around the people who know him." Counsel for D.H. argued that commitment to the Department was "not warranted" because the juvenile court had previously dismissed several allegations against D.H., including the current section 602 petition, and that the conduct that violated D.H.'s probation, while dangerous, was "an immature act."

The juvenile court stated: "I have known [D.H.] for quite a while. And we have tried lots of different ways to keep him from committing crimes, and we have been unsuccessful. We have tried electronic surveillance. We have tried home-on probation. We have tried suitable placement. We have tried camp. Rightafter he gets out of camp he is . . . on this high speed chase which is quite horrific. . . . ...