Filed 1/30/18 In re Ryan F. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

These consolidated appeals are from a juvenile court order committing appellant Ryan F. to juvenile hall for six months following findings that he had violated probation in both cases. Ryan’s court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised Ryan of his right to file a supplemental brief within 30 days of the filing of the Wende brief and he has filed no such brief.

FACTS AND PROCEEDINGS BELOW

On August 23, 2016, Ryan, who was then 17 years of age, was alleged in a wardship petition (Welf. & Inst. Code § 602) to have committed misdemeanor cruelty to a child causing injury (Pen. Code, § 273a, subd. (b))[1] and misdemeanor battery. (§ 242.) According to the probation report, Ryan had shoved his six-year-old stepsister, causing her to fall to the floor and injure herself. The petition was sustained and Ryan adjudged a ward of the court after Ryan admitted the misdemeanor and the other charge was dismissed. Ryan was placed under the supervision of the probation department in the home of his divorced father.

A second wardship petition was filed on October 26, 2016, charging Ryan with unlawful use of a tear gas weapon (§ 22810, subd. (d)) and misdemeanor battery. (§ 242.) A police report stated that in an altercation at work, Ryan sprayed a co-worker in the face with pepper spray. Ryan admitted the unlawful possession of a tear gas weapon after the other charge was dismissed, and the court sustained the petition. At a disposition hearing on December 28, 2016, relating to both petitions, the court placed Ryan in the Family Preservation Program, ordered him to serve 15 days of therapeutic detention in juvenile hall, followed by 30 days on electronic monitoring. The court imposed standard conditions of probation, including that Ryan not possess or consume any alcoholic beverages, controlled substances, or tobacco.

At a hearing on February 10, 2017,[2] after the probation department notified the juvenile court that Ryan violated the conditions of probation—in that he had used marijuana and cocaine and had unexplained absences or incidents of tardiness at his high school—Ryan admitted violation of probation by using cocaine, and the allegations of other violations were dismissed. The probation department recommended that Ryan be ordered to participate in “therapeutic detention” for 12 weekends. Noting that Ryan was almost 18 years of age, was employed and due to graduate from high school at the end of the current year, his attorney asked the court to reject the recommendation, release Ryan from detention, and terminate his probation. The district attorney, claiming that detention was warranted, stated as follows: “This is a minor with a serious anger issue, and it hasn’t been addressed in the past. [¶] Even when he is waiting to be sentenced, he goes out and he does something else that has a tinge of assault to it. [¶] When spoken to by the probation officer, his attitude is dismissive. His attitude is, ‘Hmm, I’ll get probation, so who cares.’ [¶] This is not the attitude you have when you have been in the system a couple of times, when you have gone to traffic court a couple of times, you have a pending case, and then you pick up another case, and it’s, like, ‘who cares.’ [¶] He is not taking this seriously. He is committing criminal offenses, and I think detention time is warranted to get across to him that his behavior cannot be tolerated. [¶] He has to deal with his anger issues. He has to deal with his violence issues. And I think the only way to get that across to him is detention time.”

The court adjudged wardship, placed Ryan in the Family Preservation Program, and ordered him to serve 15 days of therapeutic detention “beginning immediately, and then he will be on electronic monitoring for the first 30 days of the program.” Striking the weekend detentions previously ordered, the court ordered a review of Ryan’s progress for March 23.

Five days later, on February 15, the court conducted a hearing to consider a disposition apparently agreed to by the parties and the probation department during off-the-record negotiations. Apparently, the probation department agreed to recommend no detention in return for Ryan’s strict adherence to unusually rigorous conditions of probation. Ryan’s counsel stated that she had explained to Ryan how serious his situation was and his options and “I do believe that he understands that he’s going to be checked up on and he can’t make any mistakes.”

The trial court was dubious. After stating that it did not believe Ryan was “going to make it,” the court pointed out that “[y]ou violated the middle of January and they put you in for three days and you violated again already. So that’s like three times in three weeks or something. We’re talking about going to school every day. No tardies. No cuts. No probation violations. No marijuana. No drugs. No EMP [Electronic Monitoring Program] violations. No new cases. That’s a lot.” Asked whether he thought he could satisfy these requirements, and was aware that the alternative was to remain in detention “for another two, three weeks and then just go back on probation,” Ryan answered: “Yes, your Honor.”

On March 21, the probation department alleged that Ryan violated his probation on March 2 and 8, by consuming alcohol and marijuana. That same date, a detention hearing was held at which defense counsel waived time for a probation violation hearing and requested a pretrial conference. At that hearing, the court asked defense counsel: “Waive reading and advice of rights?” and counsel responded: “Yes, your Honor. So waived.” The court ordered that Ryan remain detained pending that conference, which was set for March 30. On that date, Ryan admitted the violation by using alcohol on March 8, and the court sustained the petition on that ground and dismissed the other allegation, which was using marijuana.[3] The court again ordered that Ryan remain in detention until the contested disposition.

The probation report filed on April 27, recommended that Ryan serve 180 days of therapeutic detention in juvenile hall. The report acknowledged this might seem harsh but pointed out that Ryan admitted he “has never been clean and sober” and an extended period of detention “is required to force sobriety from alcohol and drugs and cleanse the body of toxins.”

Later in April, a psychiatric evaluation of Ryan was conducted by Dr. Daniel Vermillion. Dr. Vermillion’s report stated that “Due to persistent problems with impulse control and inattention,” the minor has been diagnosed with “Attention Deficit Hyperactivity Disorder since grade school. Within one or two years of diagnosis, he began to receive medication. However, these needed to be discontinued due to unacceptable side effects. To facilitate his academic work, he has been receiving behavioral accommodations since grade school.” Dr. Vermillion discussed medications with Ryan, who chose not to use them.

At the contested disposition hearing on May 2, the court accepted the recommendation of the probation department that Ryan serve 180 days of therapeutic detention in juvenile hall. In doing so, the court rejected Ryan’s request to be released from juvenile hall so that he could attend summer school at the high school and serve any juvenile hall detention ordered after graduation. Defense counsel argued that Ryan would in this manner serve the previously imposed and suspended six-month sentence “without any consideration of the minimal nature of the violation, the severe learning disability with which minor suffered since kindergarten, the unstable home circumstances minor faced after being returned home on EMP, and the severe sanction and life-altering consequence of missing graduation and gaining a diploma from a very good school—all because [as the judge said at the dispositional hearing] ‘a deal is a deal.’ ”

The court stated that it rejected Ryan’s request, and followed the probation department’s recommendation, “not simply because Ryan agreed to it before, but because I think it’s justified based on the current circumstances on violation of probation, on continued problems at school, all of it. So I’m going to terminate the electronic monitoring order, detain him for 180 days [in juvenile hall] at this time with credit for 47 [days] served, 36 for good behavior. The court advised Ryan’s counsel that it would consider a motion to modify the disposition order after Ryan graduated from the school that was located in the San Mateo Youth Services Center. The court told Ryan “you’re going to be off probation when this is done whenever it is.”

DISCUSSION

The scope of reviewable issues on appeal after a plea of guilty or no contest is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)

The record provides no indication that, at the March 30 hearing at which he admitted violating probation, Ryan was admonished by the court as to the rights he was giving up, as required by Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 to insure his admission to the violation was informed, intelligent, and voluntary. However, at the March 21 hearing, which appellant attended, defense counsel waived the requirement that the court personally inform Ryan of the rights he would later be waiving by admitting the probation violation and its consequences. We do not applaud the peremptory manner in which the waiver was elicited by the court from counsel at a hearing prior to the one at which the admission was made, but we cannot say the waiver was invalid and the admission should not have been received by the court at the March 30 hearing or that briefing of this issue is warranted. An express waiver is not required. The applicable test is set forth in People v. Allen (1999) 21 Cal.4th 424, 438. In assessing whether a defendant’s admission of an offense—or a violation of probation—was intelligent and voluntary, an appellate court must examine the record of the entire proceeding in light of the totality of the circumstances. (See also People v. Mosby (2004) 33 Cal.4th 353, 360.) Circumstances weighing heavily in favor of a determination that Ryan’s admission was knowing and voluntary are that he was nearly 18 years of age at the time he made the admission, he had twice recently made admissions at which he was properly admonished in accordance with Boykin and Tahl, and his remarks and requests at recent hearings indicated a sophisticated understanding of the juvenile justice system. The totality of the circumstances indicate Ryan voluntarily and intelligently admitted the violation of probation he admitted at the March 30 hearing.

There was a factual basis for Ryan’s admission. Appellant was at all times represented by competent counsel who zealously protected his rights and interests. The sentenced imposed is authorized by law.

DISPOSITION

Our independent review having found no arguable issues that require further briefing, the judgment, including the disposition, is affirmed.

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Kline, P.J.

We concur:

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Stewart, J.

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Miller, J.