People v. Dennis C. (In re Dennis C.)

1

In re DENNIS C., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. DENNIS C., Defendant and Appellant.

A163563

California Court of Appeals, First District, Fifth Division

December 16, 2022

NOT TO BE PUBLISHED

(Contra Costa County Super Ct. No. J18-00281)

BURNS J.

Dennis C. appeals from a dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (Division) after he committed, most recently, two counts of second degree robbery (Pen. Code §§ 211, 212.5, subd. (c)) and personally used a firearm (id., § 12022.53, subd. (b)) in connection with each offense. He argues the juvenile court abused its discretion by committing him to the Division and in the alternative, that an electronic search condition should be stricken. We agree on the latter point but otherwise affirm the juvenile court's dispositional order.

Background

A.

This appeal involves the fifth juvenile wardship petition (Welf & Inst. Code, § 602, subd. (a)) filed against Dennis within two years.^[1] First, in February 2018, the Napa County District Attorney alleged that then 14-year-old Dennis committed one count of felony second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) and one count of misdemeanor shoplifting (id., § 459.5, subd. (a)). Dennis admitted the felony burglary offense and the remaining count was dismissed. After the case was transferred to Contra Costa County (where he lived) for disposition, Dennis was declared a ward of the juvenile court and placed on probation under home supervision.

A few months later, the San Mateo County District Attorney filed two section 602 wardship petitions, alleging that Dennis committed one felony count of grand theft (Pen. Code, § 487, subd. (a)) and one count of misdemeanor shoplifting. Dennis admitted a reduced count of misdemeanor grand theft (ibid.) and pled no contest to the misdemeanor shoplifting count. The case was again transferred to Contra Costa County for disposition. He was continued as a ward of the juvenile court and again placed on home supervision.

In August 2018, Dennis admitted violating the terms of his probation by cutting his ankle monitor. The juvenile court ordered Dennis to complete another 60 days of home supervision.

About a month later, the San Mateo County District Attorney filed a fourth wardship petition. Dennis admitted that he committed misdemeanor grand theft and additional felony counts were dismissed. The matter was transferred to Contra Costa County for disposition. Before that disposition hearing was held, Dennis admitted another probation violation-for failing to regularly attend school. At disposition, the juvenile court continued Dennis's status as a ward and committed him to the Orin Allen Youth Rehabilitation Facility (Orin Allen Facility) for a period of six months.

About two months before he was placed at the Orin Allen Facility, then 15-year-old Dennis committed the two counts of armed robbery (summarized below) that underly the challenged disposition order.

B.

In November 2018, S.V. advertised her father's marijuana for sale on Instagram. Dennis arranged with S.V., by exchanging text messages, phone calls, and direct social media messages, to buy six pounds of marijuana for $4,600. Around the same time, Dennis negotiated the purchase of a Glock pistol.

Dennis told S.V. that he could not go to her home, in Castro Valley, to complete the marijuana transaction. Instead, he convinced S.V. to meet at a particular intersection in Richmond. S.V., her father, and a friend (R.B.) drove to Richmond. S.V.'s father was driving, S.V. was in the front passenger seat, and R.B. sat in the rear passenger seat. The marijuana was in a trash bag, placed between the center console and the back seat. It was nearly dark when the three arrived at the meet up point in Richmond.

Two males approached the car. S.V. was surprised to see two people. One male, whom she recognized as Dennis, approached her side of the car. The other male approached her father's side of the car and, at some later point, opened the car's rear door and either sat down or put his knee on the rear driver-side seat.

As soon as S.V. displayed the marijuana-by untying the trash bag to reveal its contents-Dennis placed a gun to her head. The other (unidentified) male simultaneously placed a gun to S.V.'s father's head. S.V.'s father begged the unidentified male "not to do it." S.V. heard someone say" '[g]ive me the fucking weed.'" After Dennis said," '[g]rab the weed' ", S.V.'s father slammed on the gas and began driving away.

S.V. heard two shots fired, from somewhere close to her. She also may have heard a third shot fired from further away. R.B. testified that only one shot was fired, by the male who had entered the car on the rear, driver's side. The physical evidence, including shell casings from a Glock pistol, and early witness statements were consistent with two shots having been fired.

Shortly after the shots were fired, S.V.'s father crashed the car. S.V. exited and called 911. Dennis's unidentified accomplice grabbed the marijuana and both males ran away. S.V.'s father died from a gunshot wound to the chest.

C.

The Contra Costa County District Attorney filed a supplemental juvenile wardship petition, alleging that Dennis committed first degree murder (Pen. Code, § 187, subd. (a)) and two counts of second degree robbery. The petition further alleged that, in committing all three charged offenses, Dennis personally used, and personally and intentionally discharged, a firearm (id., § 12022.53, subds. (b)-(d)). It also gave notice of the intent to rely on Dennis's prior offenses to increase his maximum period of confinement.

After a contested jurisdictional hearing, the juvenile court sustained only the two robbery counts. The juvenile court explicitly found that Dennis arranged the marijuana purchase with S.V. and that the event was planned as an armed robbery; Dennis never intended to pay for the marijuana. However, the juvenile court found that only Dennis's unidentified accomplice fired a gun.

The court went on to state that not only had the People failed to carry their burden of proving, beyond a reasonable doubt, that Dennis fired a round at any time that night, they had also failed to prove beyond a reasonable doubt that Dennis intended to kill. (See Pen. Code, § 189, subd. (e)(2).) The juvenile court also concluded that although Dennis was a major participant in the robbery, the People did not prove beyond a reasonable doubt that Dennis acted with reckless indifference to human life. (See id., §§ 189, subd. (e)(3), 190.2, subd. (d).) In reaching the above determinations, the juvenile court emphasized the lack of any advance warning that Dennis's accomplice might shoot S.V.'s father. It appeared to be a decision made solely by Dennis's accomplice, after the car started moving. The court therefore dismissed the murder count, as well as its associated firearm enhancement allegations.

The juvenile court sustained both robbery counts, and found that, although Dennis did not discharge a firearm, he personally used one (§ 12022.53, subd. (b)) in committing each offense.

D.

In its disposition report, the Contra Costa County Probation Department (Probation Department) recommended that Dennis be committed to the Division, where he would receive appropriate rehabilitative programming and be eligible for parole in about three years.

The Probation Department's recommendation was based on the serious nature of Dennis's most recent offenses, as well as an assessment of his needs. The report noted Dennis exhibited criminal sophistication in committing the two counts of robbery, which involved luring and ambushing victims, as well as the use of a firearm. An evidence-based individualized assessment tool classified Dennis as being at overall "[m]oderate risk" for re-offending. However, two particular areas put Dennis at high risk-his negative peer relationships and his lack of pro-social skills.

The report noted that Dennis had previously been committed to the Orin Allen Facility, for six months, where he completed various local rehabilitation programs and had "minimal" behavioral issues. But, during the period of time that Dennis had been detained at juvenile hall while awaiting trial and disposition, Dennis was involved in more than 30 disciplinary incidents, which included passing contraband, refusing to follow staff directions, and making credible threats of violence toward staff. Dennis had also been involved in numerous physical fights with other detained minors, in which he was typically the aggressor. Approximately two weeks before the disposition report was filed, Dennis punched another minor.

The Probation Department screened Dennis to determine his fitness for commitment to either the Division or the Youthful Offender Treatment Program (the Program) at juvenile hall, which Dennis preferred. Dennis was found to qualify for the Division. But he was deemed "not acceptable" for the Program at juvenile hall due to the violent and anti-social nature of his instant offenses and the fact that prior local rehabilitative efforts proved unsuccessful. The Probation Department believed Dennis required more intensive treatment and structure than the Program could offer. The Probation Department concluded that the Division's supervision and structure was necessary not only for Dennis's rehabilitation, but also for the safety of the community.

E.

At the dispositional hearing, the juvenile court continued Dennis's status as a ward of the court; found it probable he would benefit from the programs available at the Division found local resources inappropriate for...