Filed 8/7/03 Note to Publishers: Publish this opinion immediately following the companion opinion, In re
Eddie M., S109902, also filed 8/7/03
IN THE SUPREME COURT OF CALIFORNIA
In re EMILIANO M., a Person Coming )
Under the Juvenile Court Law.
____________________________________)
THE PEOPLE,
Plaintiff and Respondent,
S107904
v.
) Ct.App.
4/3
G027919
EMILIANO M.,
Orange
County
Defendant and Appellant.
Super. Ct. No. J164204-008
This juvenile law case presents an issue related to that we decide today in
In re Eddie M. (August 7, 2003, S109902) __ Cal.4th __ (Eddie M.). There we
construe Welfare and Institutions Code section 777,1 as amended on March 7,
2000, by Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of
1998 (Proposition 21). Section 777 has long allowed a more restrictive disposition
where juvenile probationers previously found to have committed crimes under
section 602 commit new misconduct. Among its many provisions, Proposition 21
limits section 777, as applied to persons under section 602 jurisdiction, to
“allege[d]” probation violations “not amounting to . . . crime[s].” (§ 777, subd.
(a)(2) (section 777(a)(2)).) In Eddie M., we conclude that section 777(a)(2) is not
1
All unlabeled statutory references are to the Welfare and Institutions Code.
1
limited to probation violations that are inherently noncriminal in nature, but
applies to any misconduct, criminal or noncriminal, so long as it is alleged only as
a probation violation, not as a new juvenile crime.
Here, the Court of Appeal construed section 777(a)(2) in a manner contrary
to Eddie M., thereby negating the application of another important provision of
Proposition 21. This latter provision, by adding section 186.30, subdivision (b)(3)
to the Penal Code (Penal Code section 186.30(b)(3)), imposes a gang registration
requirement for a “petition sustained” in juvenile court for any gang-related
“crime.”
Specifically, the Court of Appeal held Proposition 21’s gang registration
requirement inapplicable in this case where the juvenile court had: (1) sustained
an allegation under section 777(a)(2) that the minor violated probation by
possessing ammunition, and (2) found, for purposes of the gang registration
provision, that this conduct was a gang-related crime. The Court of Appeal
reasoned that because criminal conduct is excluded per se from proceedings under
section 777(a)(2) as amended by Proposition 21 — a result we disavow in Eddie
M. — both the ammunition-possession count and the gang registration order the
juvenile court had attached to that count must be overturned.
But as the Court of Appeal’s premise fails, so must its conclusion based
solely on that premise. Because the Court of Appeal erred in its determination that
misconduct cannot be adjudicated as a probation violation under section 777(a)(2)
if, in fact, it constitutes a crime, the court also erred when it relied exclusively on
that principle to void the juvenile court’s finding of a gang-related crime for which
a registration condition was appropriate.
In so deciding, we do not address whether there may be other reasons why
the gang registration provision of Penal Code section 186.30(b)(3) might not apply
in a section 777(a)(2) probation violation proceeding. (See post, p. 8, fn. 4.) We
2
leave that question to be decided in the first instance by the Court of Appeal.
Accordingly, we will reverse the Court of Appeal’s judgment insofar as it conflicts
with Eddie M. and this case, and will remand for further proceedings consistent
with the views expressed in these two decisions.
A. Juvenile Court Proceedings
In 1996, the juvenile court sustained a section 602 petition charging
Emiliano M. with two misdemeanors, namely, joyriding (Pen. Code, § 499b), and
carrying a concealed firearm in a vehicle (id., § 12025, subd. (a)). On September
12, 1996, Emiliano was declared a ward under section 602, and received
probation. The court imposed conditions which, among other things, prohibited
the possession of weapons and ammunition, banned any association with specific
persons linked to the Thugs Gone Krazy gang, and required payment of a
restitution fine.
Between January 1997 and July 1999, the juvenile court sustained as many
as five petitions against Emiliano under section 777 for numerous probation
violations, including the possession of ammunition and association with gang
members. Each time, the juvenile court continued Emiliano’s wardship and
probation, and ordered compliance with existing conditions. New conditions also
were imposed barring any association with the Central Myrtle Street gang, and
requiring the payment of various fees and fines.
After he turned 18 years old and while still on juvenile probation, Emiliano
became the subject of an attempted murder investigation arising out of a drive-by
shooting. While executing a search warrant in the shooting case on July 20, 2000,
police found Emiliano in the possession of two air pistols, four boxes of
ammunition, and Central Myrtle Street gang paraphernalia.
The present juvenile court proceeding began shortly after the police search.
Authorities filed two new section 777 petitions which, as amended, accused
3
Emiliano of violating juvenile probation by: (1) failing to pay restitution, fines,
and fees ordered on three occasions in 1996 through 1999, (2) possessing air
pistols on July 20, 2000 in violation of the wardship order dated September 12,
1996, and (3) possessing ammunition on the same date in violation of the same
court order. A consolidated bifurcated hearing occurred on August 29, 2000.
At the jurisdictional phase of the instant section 777 hearing, Emiliano
admitted violating juvenile probation by not paying restitution, fines, and fees
notwithstanding his ability to pay. He submitted the remaining allegations to the
juvenile court for adjudication based on certain police reports. The court found
Emiliano possessed both air pistols and ammunition in violation of probationary
terms imposed on September 12, 1996 in the underlying section 602 proceeding.
At the dispositional phase of the section 777 hearing, the juvenile court
retained Emiliano as a section 602 ward, and continued probation under numerous
conditions, including confinement for one year in county jail and compliance with
restrictions on gang activity and associations. In addition, the court ordered
Emiliano to register with law enforcement as a gang member within 10 days of his
release from custody, alluding to Penal Code section 186.30(b)(3) as the source of
this requirement.2 Emiliano objected to gang registration on unspecified grounds.
2
Penal Code section 186.30 provides, in part, as follows: “(a) Any person
described in subdivision (b) shall register with the chief of police of the city in
which he or she resides, or the sheriff of the county if he or she resides in an
unincorporated area, within 10 days of release from custody or within 10 days of
his or her arrival in any city, county, or city and county to reside there, whichever
occurs first. [¶] (b) Subdivision (a) shall apply to any person . . . who has had a
petition sustained in a juvenile court in this state for any of the following offenses:
[¶] . . . [¶] (3) Any crime that the court finds is gang related at . . . disposition.”
(Italics added.)
4
The juvenile court overruled the objection, stating on the record that it assumed
Emiliano was challenging the constitutionality of the registration statute.
B. Court of Appeal Decision
On appeal, Emiliano targeted the registration requirement. In particular, he
claimed that Penal Code section 186.30(b)(3) is facially unconstitutional on
several grounds. The Court of Appeal ultimately agreed to invalidate the gang
registration requirement in this case. However, after soliciting supplemental briefs
on the issue, the panel based its decision solely on statutory grounds that
implicated both Penal Code section 186.30(b)(3), and section 777(a)(2), on which
the underlying probation violations were based.
At the outset, the Court of Appeal alluded to the fact that after Proposition
21, section 777(a)(2) applies only to “allege[d]” probation violations “not
amounting to . . . crime[s].”3 According to the court, this language limits section
777 to probation violations that involve “noncriminal misconduct,” and that do not
3
Section 777, as amended by Proposition 21, provides, in part, as follows:
“An order changing or modifying a previous order by removing a minor from the
physical custody of a parent, guardian, relative, or friend and directing placement
in a foster home, or commitment to a private institution or commitment to a
county institution, or an order changing or modifying a previous order by directing
commitment to the Youth Authority shall be made only after a noticed hearing.
[¶] (a) The notice shall be made as follows: [¶] . . . [¶] (2) By the probation
officer or the prosecuting attorney if the minor is a court ward or probationer
under Section 602 in the original matter and the notice alleges a violation of a
condition of probation not amounting to a crime. The notice shall contain a
concise statement of facts sufficient to support this conclusion. [¶] . . . [¶] (c)
The facts alleged in the notice shall be established by a preponderance of the
evidence at a hearing to change, modify, or set aside a previous order. The court
may admit and consider reliable hearsay evidence at the hearing to the same extent
that such evidence would be admissible in an adult probation revocation hearing,
pursuant to the decision in People v. Brown [(1989) 215 Cal.App.3d 452] and any
other relevant provision of law.”
5
comprise “independent crime[s].” The sole authority cited for this conclusion was
In re Marcus A. (2001) 91 Cal.App.4th 423 (Marcus A.), which used similar
reasoning to reverse a section 777 probation violation based on a criminal act.
Thus, the instant Court of Appeal held that even where no new crime is alleged in
the section 777(a)(2) proceeding, the statute does not apply to probation violations
that are inherently criminal in nature.
Next, the Court of Appeal determined that its interpretation of Proposition
21’s version of section 777(a)(2) undermined a key jurisdictional finding in the
juvenile court. The appellate court observed that, unlike the other probation
violations sustained below (i.e., failure to pay fines and fees, and possession of air
pistols), Emiliano’s act of possessing ammunition in violation of an express
probationary term constituted a crime. (See Pen. Code, §§ 12021, subd. (d),
12316, subd. (b).) Reasoning that such conduct is excluded under section
777(a)(2)’s “not amounting to a crime” language, the Court of Appeal decided that
the latter probation violation must be set aside.
Finally, and critical here, the court used its analysis of section 777(a)(2) to
find a fatal flaw in the gang registration requirement. The court observed that
Penal Code section 186.30(b)(3) applies by its own terms to anyone who has had
“a petition sustained in a juvenile court” for “[a]ny crime that the court finds is
gang related” at disposition. (Italics added.) Relying on the definition of the
italicized term provided in Penal Code section 15, the Court of Appeal noted that a
“crime” is any “act committed . . . in violation of a [penal] law.” (Italics added.)
The Court of Appeal explained that, while Emiliano’s possession of ammunition
actually involved a crime, the corresponding probation violation could not stand,
because section 777(a)(2) only covers noncriminal acts under Proposition 21.
Insisting no gang-related crime was properly sustained in a juvenile court petition
6
under Penal Code section 186.30(b)(3), the court felt compelled to strike the
registration requirement.
In sum, the Court of Appeal reversed the section 777 order insofar as it
found that Emiliano violated probation by possessing ammunition, and required
him to register as a gang member under Penal Code section 186.30(b)(3). In all
other respects, the juvenile court’s order was affirmed. The Attorney General
petitioned for review.
C. Analysis on Review
The Attorney General contends the Court of Appeal’s decision under Penal
Code section 186.30(b)(3) was based on an erroneous interpretation of section
777(a)(2), to wit, that the latter statute, as amended by Proposition 21, cannot be
used to allege and sustain probation violations based on criminal acts. We agree.
Eddie M. holds that section 777(a)(2), as amended by Proposition 21,
covers all situations in which new misconduct by a criminal juvenile probationer
is alleged only as a probation violation. In other words, a more restrictive
disposition can be sought and obtained under the statute regardless of the actual
criminal nature of the violation that is pled. (Eddie M., supra, __ Cal.4th __, __
[3].) Probation violations alleged under section 777(a)(2) are proven under new
procedural rules added by Proposition 21 to subdivision (c) of section 777. Such
rules include a preponderance of the evidence standard of proof. (See Eddie M.,
supra, __ Cal.4th at p. __ [at p. 3].)
Eddie M. explains that under a contrary interpretation of section 777(a)(2),
unless each new crime could otherwise be proven beyond a reasonable doubt in
either juvenile or adult court, “reoffense by a section 602 ward and probationer
would entail no specific statutory sanction. Such a potentially wide gap in the law
would impair the ability of both the executive and judicial branches to guide
youthful reform and to ensure accountability for all offenders properly within the
7
juvenile court’s jurisdiction.” (Eddie M., supra, __ Cal.4th __, __ [23].) Eddie M.
disapproves the decision in Marcus A., supra, 91 Cal.App.4th 423, to the extent it
reached an inconsistent result. (Eddie M., supra, __ Cal.4th at p. __ [at p. 25].)
Here, the Court of Appeal erred in following Marcus A., supra, 91
Cal.App.4th 423, and in concluding that section 777(a)(2) excluded the act of
possessing ammunition because it constitutes a crime. The finding that Emiliano
violated probation by possessing ammunition should not have been reversed on
this ground.
Moreover, based solely on its erroneous conclusion that the ammunition-
possession count was not properly alleged and sustained under section 777(a)(2),
the Court of Appeal also reversed the gang registration requirement attached to
that count under Penal Code section 186.30(b)(3). Our decision invalidates the
Court of Appeal’s reasoning on this point. Accordingly, the Court of Appeal on
remand should reconsider this issue and address any other issue concerning Penal
Code section 186.30(b)(3). We have no occasion to do so.4
4
For example, Penal Code section 186.30(b)(3) imposes a gang registration
requirement on any person “who has had a petition sustained in a juvenile court in
this state” for “[a]ny crime that the court finds is gang related at the time of . . .
disposition.” A question arises whether Proposition 21 voters meant this provision
to apply in juvenile probation violation proceedings under section 777(a)(2) — a
statute which the same voters amended to cover any “notice alleg[ing] a violation
of a condition of probation not amounting to a crime.” This issue has never been
briefed by the parties, and was not addressed by the Court of Appeal. For these
reasons, we do not decide the issue here.
8
D. Conclusion
The Court of Appeal’s judgment is reversed insofar as it (1) reversed the
probation violation involving the possession of ammunition, and (2) on that basis,
reversed the gang registration requirement. The matter is remanded to the Court
of Appeal for further proceedings consistent with both this opinion and Eddie M.,
supra, __ Cal.4th __. In all other respects, the judgment of the Court of Appeal is
affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion In re Emiliano M.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
ORIGINAL PROCEEDING
Review Granted XXX 99 Cal.App.4th 304
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S107904Date Filed: August 7, 2003
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: James S. Odriozola, Temporary Judge*
__________________________________________________________________________________
Attorneys for Appellant:
Lynne G. McGinnis and Amanda F. Doerrer, under appointment by the Supreme Court, for Defendant andAppellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,Assistant Attorney General, Janelle Boustany, Steven T. Oetting, Vincent L. Rabago and Anthony Da
Silva, Deputy Attorneys General, for Plaintiff and Respondent.
*Pursuant to California Constitution, article VI, section 21.
10
Counsel who argued in Supreme Court (not intended for publication with opinion):
Amanda F. DoerrerAppellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282
Anthony Da Silva
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2608
11
| Date: | Docket Number: |
| Thu, 08/07/2003 | S107904 |
| 1 | The People (Plaintiff and Respondent) Represented by Anthony Dasilva Office of the Attorney General 110 West A Street, Suite 1100 San Diego, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Vincent L. Rabago Office of the Attorney General P.O. Box 85266 San Diego, CA |
| 3 | M., E. (Defendant and Appellant) Represented by Appellate Defenders, Inc. 555 West Beech Street, Suite 300 555 West Beech Street, Suite 300 San Diego, CA |
| 4 | M., E. (Defendant and Appellant) Represented by Amanda Fay Benedict Appellate Defenders Inc. 555 West Beech Street, Suite 300 San Diego, CA |
| 5 | M., E. (Defendant and Appellant) Represented by Lynne G. Mcginnis Attorney At Law P.O. Box 178504 San Diego, CA |
| 6 | M., E. (Overview party) Represented by Appellate Defenders, Inc. 555 West Beech Street, Suite 300 555 West Beech Street, Suite 300 San Diego, CA |
| 7 | M., E. (Overview party) Represented by Lynne G. Mcginnis Attorney At Law P.O. Box 178504 San Diego, CA |
| Disposition | |
| Aug 7 2003 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| Jun 28 2002 | Petition for review filed Respondent People |
| Jun 28 2002 | Record requested |
| Jul 2 2002 | Received Court of Appeal record 1-doghouse |
| Jul 3 2002 | Answer to petition for review filed By counsel for appellant {Emiliano M.,} |
| Jul 31 2002 | Petition for Review Granted (criminal case) Brown, J., was absent and did not participate. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ. |
| Aug 21 2002 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Appellate Defenders Inc. is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Aug 27 2002 | Request for extension of time filed By respondent asking until September 30, 2002 to file Respondent's Opening Brief on the Merits. |
| Sep 6 2002 | Extension of time granted On the representation of Anthony Da Silva, counsel for respondent, that no further extension requests are contemplated, the time to file respondent's brief on the merits is extended to and including September 30, 2002. |
| Sep 27 2002 | Opening brief on the merits filed In San Diego by counsel for Respondent {The People}. |
| Oct 24 2002 | Request for extension of time filed in San Diego by counsel for appellant (Emiliano M.) requesting extension to November 26, 2002 to file answer brief on the merits. *ok to grant - order being prepared* |
| Nov 4 2002 | Extension of time granted To November 26, 2002 to file appellant's answer brief on the merits. |
| Dec 2 2002 | Request for extension of time filed By Appellant asking until December 27, 2002 to file Appellant's Answer Brief on the Merits. 40(K). |
| Dec 5 2002 | Extension of time granted Good Cause appearing, and based on the representation of Amanda F. Doerrer, counsel for defendant and appellant in this court, that she anticipates completing appellant's brief on the merits on or before December 27, 2002, time for filing such brief is extended to and including December 27, 2002. No further extensions of time are contemplated. |
| Dec 23 2002 | Answer brief on the merits filed In San Diego by counsel for appellant {Emiliano M.,} |
| Jan 13 2003 | Reply brief filed (case fully briefed) in San Diego by counsel for respondent People |
| Jan 14 2003 | Received: Respondent's Certificate of Word Count. |
| Apr 30 2003 | Case ordered on calendar 5-29-03, 1:30pm. S.F. |
| May 29 2003 | Cause argued and submitted |
| Aug 7 2003 | Opinion filed: Affirmed in part, reversed in part and remanded to CA4/3. Majority Opinion by Baxter, J. joined by George C.J., Kennard, Werdegar, Chin, Brown & Moreno, JJ. |
| Sep 8 2003 | Remittitur issued (criminal case) Two certified copies mailed to Fourth District, Division Three |
| Sep 15 2003 | Received: Receipt for remittitur from CA4/3, signed for by Orlando Duarte, Deputy Clerk |
| Nov 21 2003 | Note: Record returned to 4 DCA Div. 3. Attn. John |
| Sep 7 2005 | Compensation awarded counsel Atty Benedict-Doerrer - Appellate Defenders, Inc |
| Briefs | |
| Sep 27 2002 | Opening brief on the merits filed |
| Dec 23 2002 | Answer brief on the merits filed |
| Jan 13 2003 | Reply brief filed (case fully briefed) |
