Filed 3/29/18 In re I.A. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


In re I.A., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,
v.
I.A.,
Defendant and Appellant.




A150686

(Solano County
Super. Ct. No. J43604)


18-year-old I.A. (appellant) appeals from the juvenile court’s jurisdictional and dispositional orders placing him on wardship probation for committing misdemeanor assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4) ). He contends the court denied his request for non-wardship probation based on a misunderstanding of the law, and that the matter must therefore “be remanded for the court to exercise its informed discretion.” We reject the contention and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2016, a juvenile wardship petition was filed alleging appellant committed misdemeanor assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). At a contested jurisdictional hearing, Joel B. testified that on August 26, 2016, a silver car stopped near him as he waited for his brother to pick him up at a parking lot across the street from his high school. He also noticed that someone—later identified as Joseph—had been following him on foot and was standing behind him. A youth named Richard—who Joel had known since elementary school—got out of the car and punched Joel in the jaw and face. Joseph then tripped Joel, causing him to fall to the ground. Appellant, who had also gotten out of the car, kicked Joel while he was on the ground. There was a fourth person sitting in the driver’s seat of the car who never got out of the car. Joel got up and ran towards the front of the high school, where his brother picked him up and drove him away. Joel suffered bruised ribs and a swollen eye.
The defense called Richard, his brother Nathan, Joseph, and police officer Jerriod Mack to the stand. Richard testified he was on probation after having admitted in his own juvenile delinquency proceedings that he had assaulted Joel. He said he had been “fed up” with Joel “talking mess,” so that when he saw Joel at the parking lot, he jumped out of the car and punched and kicked Joel. He took sole responsibility for the attack and testified that no one else assaulted Joel. Richard said he did not see appellant get out of the car because he was focused on attacking Joel and was not looking at appellant.
Nathan testified he was in the driver’s seat of the car during the incident and that Richard was the only person who attacked Joel. He said appellant also got out of the car but did not participate in the attack. Joseph testified that he was walking towards the parking lot when he saw Richard—who he only knew as Nathan’s brother—get out of a car and “start[] beating on” a person who was later identified as Joel. Appellant also got out of the car but stayed about 10 to 15 feet away. Joseph admitted on cross-examination that he “was more or less” lying when he told an officer that he could not identify the attacker as Richard, and when he declined to identify the other occupants of the car. He did this because he was trying to protect his friends.
Police Officer Jerriod Mack testified that he interviewed Joel twice following the attack. In the first interview, Joel said that Richard punched him in the left eye, Joseph punched and kicked him in the ribs, and appellant punched him in the chest and in the right shoulder. In the second interview, Joel said that Richard hit him first and appellant hit him second, and that he believed Joseph had also hit him because he was in the vicinity. Joel did not mention during either interview that Joseph tripped him or that anyone hit him in the jaw.
The juvenile court sustained the petition. In a dispositional report, the probation department recommended that appellant be placed on wardship probation in his parents’ home. Appellant skipped classes regularly, had numerous tardies, and had four or five suspensions for marijuana-related incidents. He was behind in credits and his last reported school grades were one pass, one C, three Ds and one F. He tried marijuana at age nine and alcohol at age fourteen, and was smoking marijuana two to three times a week before he was arrested for the current offense. He denied being a gang member but said he lives in an area where a lot of Norteños congregate, and that “older members” used to give him money for delivering packages he believes may have been drugs. He said he stopped associating with them “once he got older and understood what was going on.” The Fairfield Police Department identified appellant as a known Norteño “associate.” In May 2016, appellant was found in possession of gang-related drawings at school. Appellant’s mother said appellant is a “good son” who is participating in anger management counseling to address his anger issues.
At the dispositional hearing, defense counsel asked that appellant be placed on non-wardship probation, emphasizing, among other things, that he has family support and no prior delinquency record, is attending anger management counseling, and wishes to join the Marines to obtain engineering training to become an auto mechanic. The prosecutor objected, stating appellant was “still not taking responsibility,” has anger issues, “fighting issues,” “substance abuse issues,” and “gang affiliation issues,” and that non-wardship probation is not appropriate “for the type of offense where more than one ganged up on one victim.”
Before ruling on the matter, the juvenile court encouraged appellant to apply to the Department of Defense Challenge Academy—a free, fully-credited, five-month, “military style” program in Tracy, California, that the court characterized as “great” and “impressive.” The court then placed appellant on wardship probation, stating, “Based on the contents of the [probation] report, inputting some of the gang concerns [from] not even a year ago, I think the recommendation is a good one.” The court again encouraged appellant to apply to the Challenge Academy, stating, “He seems like a perfect candidate.”
After the juvenile court finished imposing probation conditions, the prosecutor reminded the court that section 29820 mandates that appellant be prohibited from owning or possessing firearms until the age of 30. The court agreed and imposed the condition. Defense counsel stated, “In light of that, would the Court reconsider its decision [denying non-wardship probation] given that he would like to go into the military? Essentially, if he is declared a ward, he won’t be able to possess a firearm and won’t be able to enter the military until he is 30 years old.” The prosecutor responded that if appellant successfully completes his probation, “he would be able to have his records sealed which would then make that term impossible to enforce.” The court responded, “That’s true. Part of the orders for sealing and dismissing, then that restriction would be lifted.” “It shouldn’t be a [hindrance] to his future plans as long as he complies with probation.” The court ended the hearing by encouraging appellant to look into the Challenge Academy program.
DISCUSSION
Appellant contends the matter must be remanded because the juvenile court denied his request for non-wardship probation based on a misunderstanding of the law—that a sealing of his juvenile record would render the prohibition against firearm ownership or possession impossible to enforce. We disagree.
It is the duty of the juvenile court to determine the most appropriate disposition for the minor. Thus, its determination will be reversed only if the court has acted beyond the scope of reason. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) “ ‘A discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order.’ ” (In re Ray M. (2016) 6 Cal.App.5th 1038, 1051; In re I.V. (2017) 11 Cal.App.5th 249, 257.)
Here, as noted, the juvenile court agreed with the prosecutor that a sealing of appellant’s juvenile record upon successful completion of probation would render the firearm restriction “impossible to enforce.” However, the Court of Appeal in In re Joshua R., supra, 7 Cal.App.5th at page 866, held that the section 29820 prohibition against firearm ownership and possession is “exempt from the requirement of destruction” of records upon sealing. (Italics added.) The Court of Appeal stated that the proper method is for the juvenile court to seal a minor’s juvenile court upon successful completion of probation, and to destroy the records relating to the firearm restriction upon the minor’s 30th birthday. (Id. at pp. 866, 869.) Thus, as appellant argues—and the Attorney General acknowledges—the juvenile court here appears to have misunderstood the effect that a sealing of records would have on the prohibition against firearm ownership or possession.
Nevertheless, remand is not warranted because appellant has failed to show he was prejudiced by the juvenile court’s misunderstanding. (People v. Watson (1956) 46 Cal.2d 818, 836 [no reversal on state law error unless reasonably probable defendant would have obtained a more favorable result absent error].) The record shows that the court denied appellant’s request for non-wardship probation based on the various factors set forth in the probation report, most notably the “gang concerns [from] not even a year ago.” Both the probation department and the prosecutor expressed concern about appellant’s gang affiliation. Although appellant said he had not associated with gang members for some time, there were reports that he was found in possession of gang-related drawings as recently as May 2016.
Moreover, there were concerns regarding appellant’s marijuana use, suspensions from school, poor academic performance and attendance, anger management issues, and his violent conduct in the current offense. There is nothing in the record indicating that the juvenile court believed this was a close case, or that the court was inclined to impose non-wardship status had it known that the firearms restriction would continue in the event he successfully completed probation and his records were sealed. In light of the ample evidence supporting the imposition of wardship, and because the record does not affirmatively show that the misunderstanding was a significant factor in the court’s imposition of wardship, we conclude appellant has failed to establish by a reasonable probability that a remand for a new dispositional hearing would lead to a more favorable result.
Appellant points out that the juvenile court repeatedly urged him to apply to the Challenge Academy. His argument appears to be that it is reasonably probable the court would have placed him on non-wardship probation—which would not include a mandatory firearm restriction—had it known the firearm restriction would prevent him from participating in the Challenge Academy. The argument fails because it is based on a premise that was never proven, i.e., that a firearm restriction would in fact prevent appellant from participating in the Challenge Academy. According to the Challenge Academy’s website, the purpose of the program is “to help high school dropouts improve their education level, life skills, and employment potential.” (http://iamdiscovery.org/faq/.) While it is run in a “quasi-military format emphasizing self-discipline, personal responsibility, and positive motivation,” it is not a gateway to joining the military, nor “is there any military obligation at all. Only 6% of our graduates ever join the Military.” (Ibid.) There is nothing in the record or on the website that suggests the program involves firearm training or use, or that a firearm restriction would preclude appellant from participating in the program. Thus, even if the court had known that the firearm restriction would not be removed by a sealing of the record, it is not reasonably probable the court would have placed appellant on non-wardship probation for the purpose of removing the firearm restriction.
To the extent appellant is arguing that a firearm restriction would preclude him from joining the Marines in the future, we note the record is similarly devoid of evidence that a firearm restriction would preclude military service. Moreover, appellant merely mentioned military service as a potential future goal, i.e., that he wished to eventually graduate from high school and join the Marines in order to obtain training to become an auto mechanic. He was significantly behind in high school credits and there was no indication he was close finishing high school or ever joining the Marines. There was no evidence he had looked into joining the military or that he had applied for—or that he was otherwise eligible for—military service. Thus, even assuming a firearm restriction could preclude military service, we conclude that in light of the speculative nature of appellant’s future goals, the serious concerns the court had regarding appellant’s gang affiliation and anger management issues, and the availability of auto mechanic training outside of joining the Marines, it is not reasonably probable the court would have placed appellant on non-wardship probation for the purpose of removing the firearm restriction.
In re Michael G. (1977) 76 Cal.App.3d 872, on which appellant relies, is distinguishable. There, the juvenile court imposed wardship probation based on the mistaken belief that it was illegal to impose probation conditions to a non-wardship probationer. (Id. at p. 874.) The record showed that the sole reason the court imposed wardship probation was because it believed it was prohibited from imposing conditions if it placed the minor on non-wardship probation. (Ibid.) Under those circumstances, the Court of Appeal held that the juvenile court misunderstood the scope of its discretion, and that “the exercise of discretion to which [the minor] is entitled has not yet been exercised.” (Id. at p. 875.)
Here, in contrast, the juvenile court did not misunderstand the scope of its discretion in imposing wardship. Rather, the court was mistaken about a possible post-wardship collateral consequence of sealing, i.e., whether appellant would be able to lift the firearms restriction in the event he were to successfully complete probation and obtain a sealing of his records. With regard to the imposition of wardship, nothing in the record showed the court misunderstood the full extent of its authority in exercising its discretion to impose either wardship or non-wardship probation. Accordingly, the holding in In re Michael G. requiring a remand for the juvenile court to exercise its discretion does not apply here.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.





_________________________
McGuiness, Acting P.J.*


We concur:

________________________
Pollak, J.


_________________________
Siggins, J.













POLLAK, J., Concurring.
Although beyond the scope of the issues before us, I wish to emphasize the questionableness of the assumption that Penal Code section 29820 could validly preclude appellant from military service.

_________________________
Pollak, J.