Filed 3/29/22 In re E.M. CA1/5

Redacted

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant E.M. contends the juvenile court erred in denying his petition to withdraw his admission to a probation violation. He also contends he is entitled to the benefit of an amendment to Welfare and Institutions Code section 731[1], regarding the determination of the maximum time of confinement. We remand for redetermination of the maximum time of confinement and otherwise affirm.[2]

BACKGROUND[3]

In September 2017, the Contra Costa County District Attorney filed a section 602 petition alleging that appellant, born in January 2002, committed second degree robbery (Pen. Code, §§ 211 & 212.5, subd. (c)) while personally using a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)). According to a police probable cause declaration, as reported by the probation department, appellant refused to pay for purchases from a street vendor and threatened the vendor with a 10-inch knife. In October, appellant pleaded no contest to the robbery charge, and the juvenile court struck the enhancement. In November, the court adjudged appellant a ward of the court and placed him at the Orin Allen Youth Rehabilitation Facility (OAYRF) for six months.

In February 2018, the Contra Costa County Probation Department (Department) filed a notice of probation violation (§ 777) alleging that appellant participated in gang activity. Appellant admitted he violated probation, and the juvenile court again placed him at OAYRF. In May, a second notice of probation violation alleged appellant again participated in gang activity. Appellant admitted he violated probation and the juvenile court again placed him at OAYRF.

In October 2018, the Department filed a third notice of probation violation, and appellant admitted he violated probation by failing to comply with his curfew, driving without a license, and possessing marijuana. In November, before the disposition hearing on the probation violation, the Contra Costa County District Attorney filed a supplemental wardship petition alleging two counts of assault, with enhancements. The Department also filed a fourth notice of probation violation based on the alleged assaults. According to a police probable cause declaration, as reported by the Department, appellant punched and swung a knife at a male victim following a verbal argument.

In December 2018, appellant pleaded no contest to one count of assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), with a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)). The juvenile court dismissed the remaining count and enhancements, as well as the third and fourth probation violations. The court directed appellant to participate in the Youthful Offender Treatment Program (YOTP).

In March 2020, following appellant’s completion of the YOTP, the Department filed a fifth notice of probation violation, alleging appellant violated probation by possessing marijuana, associating with gang members, displaying gang symbols and a new gang tattoo, failing to comply with his curfew, possessing a firearm, and driving without a license. Appellant admitted the violation and the juvenile court again directed appellant to participate in the YOTP. The court admonished appellant that further probation violations were likely to result in a commitment to the Division of Juvenile Justice (DJJ).

In October 2020, the Department filed a sixth notice of violation of probation, alleging that appellant had violated probation by “striking another YOTP resident in the facial area with closed fists, and stomping on his head.” A November probation officer’s report stated that, according to juvenile hall incident reports, appellant approached another youth during recreation period and then hit and stomped on the victim. The victim had an arm in a sling and “did not retaliate.” The victim received stiches and “reported he had a loose tooth from the incident.”

Appellant admitted to “battering another YOTP resident.” In November 2020, the juvenile court committed appellant to the DJJ, setting his maximum time of confinement at nine years. This maximum term included the upper term of five years for the principal offense of robbery, one year for the subordinate offense of assault, plus three years for the great bodily injury enhancement.[4] Appellant appealed (A161454).

Later in November 2020, appellant filed a petition to withdraw his admission to the October probation violation, based upon new information that appellant suffers from a mental health condition requiring psychotropic medication. The juvenile court denied the petition. Appellant filed a second petition to withdraw his admission in January 2021, accompanied by a psychological assessment. The court again denied the petition, and appellant appealed (A161850).

DISCUSSION

I. The Juvenile Court Did Not Abuse Its Discretion in Denying the Petition

to Withdraw Appellant’s Admission

In petitioning to set aside appellant’s admission to the October 2020 probation violation, related to appellant’s assault on another YOTP resident, appellant’s counsel explained that he had learned on November 20, following the November 13 dispositional hearing committing appellant to the DJJ, that appellant had been prescribed psychotropic medication. The January 2021 petition attached a psychologist’s assessment regarding appellant. [REDACTED].

In appeal number A161850, appellant contends the juvenile court erred in denying his petition to set aside his October 2020 admission. Appellant has not shown the juvenile court abused its discretion. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.)[5] A court may permit a guilty or no contest plea to be withdrawn “for a good cause shown.” (Pen. Code, § 1018; Breslin, at p. 1415.) “To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. [Citation.] The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake.” (Breslin, at p. 1416.)

“Penal Code section 1018, which governs the standards for withdrawal of pleas in criminal cases, is not expressly applicable to admissions in juvenile court, and it does not have a statutory counterpart in delinquency proceedings. However, the principles that underlie the statute have been imported into delinquency proceedings in other respects.” (In re Matthew N. (2013) 216 Cal.App.4th 1412, 1420.) Accordingly, juvenile courts “routinely entertain motions to withdraw admissions” under section 775, which authorizes a juvenile court to set aside its orders “as the judge deems … proper.” (People v. Mortera (1993) 14 Cal.App.4th 861, 865; § 775.)

Appellant has not shown his diagnosis affected his ability to freely enter the October 2020 plea. Indeed, he concedes “there was nothing in the record that [appellant was] affected [REDACTED] in a way that would impair his ability to rationally assess whether [to plead] no contest based upon the advice provided to him by his defense counsel.” Instead, appellant argues defense counsel’s ignorance of his condition meant counsel was unable to advise appellant of a potentially meritorious defense. Although ignorance of such a defense can constitute a ground to withdraw a plea, appellant has not shown [REDACTED] diagnosis provided a “potentially meritorious” defense to the assault on another YOTP resident. (People v. Harvey (1984) 151 Cal.App.3d 660, 671.)

Appellant points to defense counsel’s assertion that counsel would have advised appellant differently had he known about appellant’s diagnosis, because had appellant been on psychotropic medication, [REDACTED]. However, even assuming that to be true, appellant cites no authority that the possibility that appellant’s untreated [REDACTED] contributed to or even caused the October 2020 assault was a defense to the charge. The only authority appellant cites is a superior court appellate division decision stating that “unconsciousness due to mental illness” is a defense to a battery charge. (People v. Lisnow (1978) 88 Cal.App.3d Supp. 21, 27.) In that case, a psychiatrist opined the “defendant’s unconscious condition was the result of a fugue (or dissociative) state brought on by the continuing traumatic neurosis from which defendant suffered due, in large part, to his combat experience.” (Id. at p. 23.)

Appellant does not argue he was in an unconscious state at the time of the October 2020 assault or point to any evidence that his mental condition could have caused such a state. Instead, appellant characterizes his condition as one [REDACTED]. Appellant reported to the evaluating psychologist only that the medication [REDACTED]. The psychologist’s assessment stated only that [REDACTED]. (Cf. People v. Harvey, supra, 151 Cal.App.3d at pp. 668–671 [the defendant entered her plea without having been advised by her attorney of an examining psychiatrist’s opinion that she was incapable of the mental state necessary to commit murder].) Because appellant has not shown his condition provided a defense to the assault charge, he has not shown the juvenile court abused its discretion in denying the petition to withdraw his plea. He also has not shown he would have declined to accept the plea offer (i.e., prejudice), given that he has not shown his condition provided a defense to the charge. (People v. Breslin, supra, 205 Cal.App.4th at p. 1416.)[6]

We also reject appellant’s contention that the juvenile court abused its discretion by “failing to consider defense counsel’s argument that [appellant] entered his plea without counsel’s knowledge that [appellant] had a mental health issue vitiating a willful violation of his probation.” (Italics added.) The only basis for the claim is that the court did not expressly address that argument in its verbal order. However, the juvenile court ruled broadly that the psychologist’s assessment did not establish a basis to withdraw appellant’s plea. Appellant cites no authority that the juvenile court was obligated to further detail its reasoning.

Appellant has not shown the juvenile court erred in denying the petition to withdraw his plea.

II. Juvenile Court Must Redetermine Maximum Time of Confinement

In appeal number A161454, appellant seeks remand for redetermination of the maximum time of confinement, due to an amendment to section 731 that took effect about two months before the dispositional hearing. In particular, prior to September 30, 2020, section 731, subdivision (c) authorized the juvenile court to commit a ward to the DJJ for a period not to exceed “the maximum term of imprisonment that could be imposed upon an adult for the same offense.” (Former § 731, subd. (c), italics added.) However, Senate Bill No. 823 (2019-2020 Reg. Sess.) amended the statute to limit the maximum time of confinement to “the middle term of imprisonment that could be imposed upon an adult convicted of the same offense.” (Stats. 2020, ch. 337, § 28, italics added.)[7]

In the present case, at the November 2020 dispositional hearing, the juvenile court calculated the maximum time of confinement in accordance with former section 731, subdivision (c). The parties agree appellant is entitled to the benefit of the amendments limiting the maximum time of confinement to the middle term that could be imposed upon an adult. The juvenile court’s order states that the second degree robbery charge was designated the principal term. That offense is punishable by two, three, or five years in prison. (Pen. Code, § 213, subd. (a)(2).) The juvenile court selected the upper term of five years, but the parties agree the maximum for the principal term under section 731, as amended, is the middle term of three years.

Respondent suggests that this court direct that appellant’s maximum time of confinement be reduced from nine to seven years. Appellant agrees seven years is the maximum the juvenile court could impose, but he argues this court should remand for the court to exercise its discretion. We remand for redetermination of the maximum time of confinement because there appears to be an error in the juvenile court’s order. The order states that the robbery charge is the principal offense and designates five years as the maximum time of confinement on that offense. The order then adds four years to the maximum time for the assault charge, including one year for the offense (one-third the middle term) and three years for the great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) (see fn. 4, ante). However, under Penal Code section 1170.l, subdivision (a), “[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Italics added; see also § 726, subd. (d)(3) [“If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within [s]ection 602, the ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a) of [s]ection 1170.1 of the Penal Code”]; In re Jovan B. (1993) 6 Cal.4th 801, 812.) Accordingly, the additional time for the subordinate assault offense should only have been two years (one year for the assault and one year for the enhancement).

We direct the juvenile court to redetermine the maximum time of confinement in light of the amendments to section 731 and to prepare a corrected record of commitment.[8]

DISPOSITION

The matter is remanded with directions that the juvenile court redetermine the maximum time of confinement and prepare a new record of commitment in accordance with this opinion. Otherwise, the juvenile court’s orders are affirmed.

SIMONS, J.

We concur.

JACKSON, P. J.

NEEDHAM, J.

(A161454/A161850)

[1] All undesignated statutory references are to the Welfare and Institutions Code.

[2] On March 4, 2022, this court consolidated the appeals in A161454 and A161850 for purposes of decision.

[3] The record on appeal includes a confidential psychological assessment report regarding appellant. Accordingly, we have filed both a redacted and a sealed opinion. Our redacted opinion, which is part of the public record, does not include facts derived from the confidential assessment. Our unredacted, sealed opinion is filed concurrently with this redacted opinion.

[4] The juvenile court’s December 14, 2020, amended record of commitment mistakenly states that the enhancement was a personal use enhancement (Pen. Code, § 12022, subd. (a)), but appellant pleaded guilty to a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)).

[5] Because we conclude appellant has not shown the juvenile court abused its discretion, we need not address whether the petition was timely filed below.

[6] Although appellant’s briefs on appeal do not reference the statements, we observe the record contains statements from appellant in which he claims not to remember the assault. Appellant told the Department he attacked the victim due to racist remarks made by the victim. He “described ‘blacking out’ ” and “[w]hen he finally came to he was walking away as staff told him to get on the ground. He then realized he had punched the victim.” [REDACTED] However, the psychologist did not opine that appellant’s [REDACTED] could cause him to commit an assault during a dissociative or unconscious state. (Cf. People v. James (2105) 238 Cal.App.4th 794, 809–810 [“There was ample evidence before the jury that appellant was unaware of his actions and acted in an unconscious state.”].)

[7] Subsequently, Senate Bill No. 92 (2021-2022 Reg. Sess.) further amended section 731. (Stats. 2021, ch. 18, § 8.) The further amendment did not alter the maximum time of confinement. (See § 731, subd. (b).)

[8] We do not address whether it would be appropriate on remand for the juvenile court to designate the assault charge as the principal term. (§ 1170.1, subd. (a) [“The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements.”].)