California Cases May 11, 2022: People v. Eduardo (In re Eduardo B.)

Case Description

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, No. J238468 Richard R. Monroy, Judge. Affirmed; remanded with directions.

Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Daniel Rogers, Acting Assistant Attorney General, Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

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HUFFMAN, Acting P. J.

The San Diego District Attorney's Office filed a juvenile petition under Welfare and Institutions Code sections 602 and 707 alleging Eduardo B. committed torture (Pen. Code, § 206; count 1); attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a), 189; count 2); corporal injury on a domestic partner (Pen. Code, § 273.5, subd. (a); count 3); and assault with a deadly weapon by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 4). Eduardo admitted count 2, and the remaining counts were dismissed. After a contested dispositional hearing, the juvenile court committed Eduardo to the Department of Juvenile Justice (DJJ) for nine years or nine years to life.

Eduardo appeals, claiming the confinement term was unauthorized and the court erred in committing Eduardo to DJJ. The People admit that the court was unclear about the length of commitment it was imposing (nine years or nine years to life) and suggest that this matter be remanded so the juvenile court can clear up the confusion. We agree with the People and will remand this matter to the juvenile court to allow it to resolve the ambiguity of the commitment imposed. That said, we conclude none of the other issues raised by Eduardo has merit. As such, we otherwise affirm the judgment.

FACTUAL BACKGROUND

Eduardo was one month shy of his eighteenth birthday when he brutally beat his girlfriend, Andrea S., because he thought she was cheating on him. For 35 minutes, Eduardo punched Andrea, kicked her, kneed her,

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stomped her, dragged her by her hair, threw an object at her head, hit her with a skateboard, strangled her with a cord, and lit her on fire. Eduardo actually took breaks during the attack before he would resume the onslaught.

The beating left Andrea with numerous cuts and abrasions, extensive bruising all over her body, a broken tooth, and multiple bone fractures in her back and hand. She went to the hospital where the police interviewed her.

At Eduardo's behest, Andrea initially lied to the police about what happened. After Andrea reluctantly told the truth, Eduardo's parents pressured her to recant and to stop cooperating with the authorities.

DISCUSSION

I

COMMITMENT TERM

A. Eduardo's Contentions

Eduardo contends the juvenile court erred as a matter of law by committing him to DJJ for a maximum confinement term equal to the upper term of nine years. Additionally, Eduardo claims the life term "later tacked on to the commitment order" cannot stand because the juvenile court did not orally commit Eduardo to a life term. As such, Eduardo insists this matter should be remanded for a new dispositional hearing.

The People concede there is some confusion in the record regarding whether the court ordered a commitment of nine years or nine years to life. Thus, they maintain the matter should be remanded to allow the court to address this ambiguity only.

We agree with the People that this matter should be remanded to allow the juvenile court to address the confusion regarding the commitment term.

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Other than a remand for that very limited purpose, we conclude that the other issues raised by Eduardo regarding his commitment term are without merit.

B. Background

At the outset of the June 15, 2021 hearing where Eduardo admitted he committed attempted premeditated murder, his counsel stated that she thought the maximum commitment term was seven years to life. The court disagreed, stating its belief that the maximum term was nine years to life. The prosecutor agreed with the court. Eduardo's counsel appeared to agree with the court's position by saying, "Okay." Eduardo then admitted to count 2, and the juvenile court set the matter for a dispositional hearing.

Before the dispositional hearing, probation department prepared a Department of Juvenile Justice Offense Workup indicating that the maximum term was nine years to life with the possibility of parole. At the August 3, 2021 dispositional hearing, the juvenile court declared Eduardo a ward of the court and committed him to DJJ. The court then stated: "Turning to the juvenile justice offense worksheet, count 2, the maximum term of nine years, and that's nine years to life with parole. The 189 allegation and 707-well, it's a 189 allegation, the 707(b). I'm not downward deviating. So I'm setting the term at nine years."

The ensuing minute order provided: "The Court understands its discretion to set the maximum term of confinement under subdivision (b) of Welfare and Institutions Code Section 731. The Court is exercising that

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discretion to set the maximum term of confinement at 9 YEARS." However, the subsequent commitment order differs from the oral pronouncement: "After having considered the individual facts and circumstances of the case under section 731(c), the court orders that the maximum period of confinement is: 9 YEARS TO LIFE."

C. Analysis

Eduardo claims his commitment term is unauthorized, which we review de novo. ( See People v. Tua (2018) 18 Cal.App.5th 1136, 1140.)

Eduardo argues the juvenile court erred by committing him in accordance with an old version of former section 731. Although it appears that the commitment order referenced an older version of section 731, Eduardo does not explain the impact of that error. Instead, he insists the nine-year commitment term the juvenile court selected was unauthorized under the current law.

Under section 726, subdivision (d)(1), when a juvenile court removes a minor from the physical custody of his or her parent or guardian as a result of a wardship order, the court must specify the maximum time of confinement, which cannot exceed the maximum term of imprisonment to which an adult convicted of the same offense would be subjected. (In re Edward B. (2017) 10 Cal.App.5th 1228, 1238; In re David H. (2003) 106 Cal.App.4th 1131, 1133.)

On September 30, 2020, the Governor approved Senate Bill No. 823 and its provision went into effect. Senate Bill No. 823 amended section 731, former subdivision (c). (See former § 731, subd. (c).) The amended section now limits the maximum term of confinement of a minor to DJJ to "the

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middle term of imprisonment that could be imposed upon an adult convicted of the same offense." (Stats. 2020, ch. 337, § 28, eff. Sept. 30, 2020.) Senate Bill No. 823 became operative on September 30, 2020, and inoperative on July 1, 2021. (See former § 731, subd. (d) ["This section shall become inoperative on July 1, 2021, and, as of January 1, 2022, is repealed."].)

Senate Bill No. 92 (2021-2022 Reg. Sess.) further amended section 731 and became effective upon its signing by the Governor on May 14, 2021. (Stats. 2021, ch. 18, § 8.) This legislation did not alter the definition of maximum confinement time under section 731, subdivision (b), as relevant to this appeal, and became operative on July 1, 2021. (Stats. 2021, ch. 18, § 8.) Current section 731, subdivision (b), as operative July 1, 2021, in relevant part, provides: "The court shall not commit a ward to the Division of Juvenile Justice for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense." (Stats. 2021, ch. 18, §8.)

Here, Eduardo argues the maximum confinement term the court could sentence him under the current law was the term of seven years. (See Welf. & Inst. Code, § 730, subd. (a)(2); Pen. Code, § 664, subd. (a).) We disagree.

Eduardo asserts that the middle term for attempted murder is seven years under Penal Code section 664, subdivision (a). But that is the middle term for attempted unpremeditated murder. ( See People v. Jefferson (1999) 21 Cal.4th 86, 97 ["Attempted murder without premeditation is punishable by a prison term of five, seven, or nine years."].) And Eduardo did not admit to attempted murder without premeditation. Rather, he admitted to attempted premeditated murder, which is not subject to the same triad sentencing scheme. Indeed, there is no middle term for attempted

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premeditated murder. Instead, Penal Code section 664, subdivision (a) states that, "if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." ( See People v. Flores (2009) 176 Cal.App.4th 1171, 1182 ["The sentencing statute in effect when appellant committed his offense imposed a life term with the possibility of parole for attempted premeditated murder, and did not provide for a seven-year midterm."].)

Since there is no middle term for attempted premeditated murder, neither a nine-year term nor a nine-year-to-life term would be a violation of section 731, subdivision (b). ( See In re R.O. (2009) 176 Cal.App.4th 1493, 1498 [holding that, where statute prescribes indeterminate life term, a juvenile court has discretion to impose a lesser commitment term].)

Although we conclude the court did not err in setting a nine-year or nine-year-to-life commitment term, we agree with the People that there remains some confusion regarding which commitment term the court meant to apply. At the dispositional hearing, the court expressly observed "the maximum term of nine years, and that's nine years to life with parole," and explained, "I'm not downward deviating." These comments imply the court intended to order a nine-year-to-life term. That said, the court then stated, "So I'm setting the term at nine years." Further, adding to the confusion, the minute order indicates a nine-year term while the commitment order indicates a nine-year-to-life term.

In light of these circumstances, the prudent approach is to remand this matter so the juvenile court can clarify the commitment term it meant to impose. (See People v. Johnson (2020) 45 Cal.App.5th 123, 126; In re D.H. (2016) 4 Cal.App.5th 722, 724.)

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II

THE COMMITMENT TO DJJ

A. Eduardo's Contentions

Eduardo contends the juvenile court abused its discretion in committing him to DJJ instead of the Healing Opportunities for Personal Empowerment (HOPE) program. Because we conclude substantial evidence supports the court's commitment order, we find there was no abuse of discretion.

B. Background

The court received three written submissions relating to Eduardo's commitment: one from the probation department, one from the People, and one from Eduardo.

The probation report summarized the circumstances of Eduardo's attempted murder of Andrea. In meetings with the probation officer, Eduardo attributed his behavior that night to alcohol and drug intoxication, and he claimed he had a substance abuse problem.

However, Eduardo's attack of Andrea was not an isolated incident. Eduardo was disciplined in high school on multiple occasions for punching or committing violence against other students. In fact, Eduardo had been expelled from one high school and suspended 13 times by another high school for his unruly, often violent conduct. Further, Eduardo acknowledged his association with a street gang.

Beyond his troubles in the community, Eduardo's home life was not positive. He repeatedly committed acts of violence against his siblings and his parents. Eduardo's parents physically abused him, and each other, on a regular basis.

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Since being taken to juvenile hall after his arrest for beating Andrea, Eduardo had been involved in multiple fights with other youths, and threatened to punch a staff member. Nonetheless, juvenile hall staff reported that Eduardo was doing well, generally abided by the rules, and did not have any notable peer problems.

Prior intervention attempts had been made to help Eduardo deal with his anger and substance abuse issues. Those attempts failed, mostly because Eduardo would not participate.

Having reviewed this information, as well as a December 1, 2019 psychological evaluation from Dr. Kristina Malek that Eduardo's counsel provided, the probation officer recommended Eduardo's commitment to DJJ. This recommendation was primarily due to the circumstances of Eduardo's crime against Andrea, Eduardo's ongoing pattern of violent behavior, and his significant substance abuse history. With that foundation in mind, the probation report indicated probation's belief that Eduardo represents a danger to the community and requires a higher level of treatment and commitment to ensure the public's safety.

The probation officer considered recommending commitment to the HOPE program, but decided against such a recommendation because of "Eduardo's age, coupled with the seriousness of the offense and the gravity of the victim's injuries." Further, probation explained that commitment to DJJ "will provide [Eduardo] with intensive therapy in a secure setting, which will ensure that he has time to reflect upon his actions and hopefully internalize the lessons that he learns so that he can eventually become a productive member of society."

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The People filed a disposition brief, which attached an expert report from Dr. David Wexler. The purpose of Dr. Wexler's report was "to provide a domestic violence risk/lethality assessment regarding Eduardo."

Dr. Wexler reviewed Eduardo's records and conducted a Spousal Assault Risk Assessment. The results of that assessment indicated that "somewhere between 83-92% of all other convicted domestic violence probationers are actually at a lower risk for reoffense than Eduardo is, and somewhere between 69-81% of all other convicted domestic violence inmates are actually at a lower risk for reoffense than he is." Dr. Wexler further opined that, based on the brutality and history of Eduardo's violence, his risk of future violence was even higher than the assessment's estimates.

Based on the factors laid out in Miller v. Alabama (2012) 567 U.S. 460, the circumstances of Eduardo's crime against Andrea, and Dr. Wexler's report, the People recommended Eduardo's placement in DJJ. The People argued that "DJJ will provide [Eduardo] with the skills to reduce any future criminal behavior and ways to manage his environment" and that, "[g]iven [Eduardo's] age and all the circumstances of the case, the Court should order DJJ for public safety and for [Eduardo's] well-being."

Eduardo also filed a disposition memorandum that included Dr. Malek's December 1, 2019 report, a March 3, 2021 addendum to the report, and a June 21, 2021 supplemental report. Dr. Malek's June 21, 2021 supplemental report came in response to a request from Eduardo's counsel "that [Dr. Malek] provide community treatment recommendations." Those recommendations included domestic violence treatment, substance abuse treatment, and parenting classes.

Eduardo argued that committing him to DJJ would not promote public safety because he was a "low-risk high-needs youth" who was less likely to

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recidivate if he were in community-based treatment. Eduardo additionally argued that DJJ was not in his best interest because it would interrupt the therapeutic progress he had made during the previous two years of juvenile hall detention. Finally, Eduardo asserted that he could be rehabilitated through less restrictive alternatives than DJJ.

On August 3, 2021, the juvenile court held the dispositional hearing wherein Dr. Malek testified. She reiterated the treatment recommendations from her supplemental report. At the same time, she criticized Dr. Wexler's report because it did "not take into account any of the present clinical features of [Eduardo]." She also minimized Eduardo's history of violent incidents referenced in the probation report because she did not think Eduardo instigated them.

Dr. Malek opined that Eduardo was an appropriate candidate for community-based treatment because "his violence appears to be more interpersonal in nature; not directed to the community at large." She believed Eduardo could be rehabilitated without going to DJJ, and she did not think Eduardo was a danger to the community. She also testified that continuity in Eduardo's service providers was important.

When asked about the possible adverse effects of placing Eduardo in DJJ, Dr. Malek testified that she believed the "only thing . . . would be . . . exposure to other delinquent youth."

In addition, Dr. Malek compared DJJ treatment with community-based treatment. To this end, Dr. Malek acknowledged there was "a lot of overlap in the programs" but said that "what [she] like[d] about the community treatment [was] that [Eduardo would be] able to establish support within the community." She later emphasized that the community-based treatment

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allowed Eduardo to stay closer to family and contacts that we would need in San Diego.

On cross-examination, Dr. Malek agreed that "DJJ has a number of different programs that would be beneficial to Eduardo," including a "reentry program where they try to assist youth back into the community in a smooth way so they have resources." She admitted that she did not think there was anything wrong with the DJJ program. Yet, Dr. Malek thought a community-based treatment would have the additional benefits of Eduardo being closer to family and being able to establish support in the community.

Following Dr. Malek's testimony, Eduardo's counsel strongly advocated for community-based treatment. Counsel emphasized Eduardo's therapeutic and treatment progress since his crimes against Andrea and urged the juvenile court not to commit Eduardo to DJJ but instead consider the HOPE program.

The People responded by pointing out Eduardo's history of violent offenses against peers and family members and cautioning about the danger Eduardo could commit additional violent acts. As such, the People asked the court to follow probation's recommendation and commit Eduardo to DJJ.

After considering the evidence and listening to argument, the juvenile court began its ruling by observing that, even before his attack on Andrea, Eduardo "clearly had significant violence issues demonstrated against his family and demonstrated against the public." Those issues, plus the brutality of Eduardo's crime against Andrea, made the court "completely disagree with Dr. Malek" regarding Eduardo's potential danger to the community.

Regarding Eduardo's crimes against Andrea, the court explained: "Anybody who is capable [of] committing that level of violence against another human being over that extended period of time, engaging in the

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violence, disengaging, thinking, having the time to actually consider what I'm doing, and then reengaging that attack, demonstrates to this court that Eduardo's issues are deep seated."

The court expressed its belief that "we owe it to Eduardo to use the maximum time available, the maximum level of our programming to try to redirect his behavior and secondarily to protect the public as long as we can and to protect the victim as long as we can." Consequently, the court concluded that "Eduardo's background, Eduardo's substance abuse history, domestic violence issues, general violence issues, are best addressed by the programming we have in DJJ. [¶]... [and] that is the appropriate level of rehabilitation that must be applied towards Eduardo's circumstances." After noting that Andrea is still suffering from "the mental and physical anguish that Eduardo inflicted upon her[, ]" the court emphasized "[i]t would be an extreme injustice if Eduardo is released back into the community to conduct his further rehabilitation while the victim continues, quite frankly, in this downward spiral as she tries to arrest her own demons she's dealing with."

C. Standard of Review and Relevant Law

We review a juvenile court's placement decision for abuse of discretion. (In re Carl N. (2008) 160 Cal.App.4th 423, 431-432.) Juvenile courts have "long enjoyed great discretion in the disposition of juvenile matters" and have" 'maximum flexibility to craft suitable orders aimed at rehabilitating the particular ward before it.'" (In re Greg F. (2012) 55 Cal.4th 393, 411.) So long as substantial evidence supports a juvenile court's commitment order consistent with the purpose of the juvenile court law, the order will be upheld. (In re Miguel C. (2021) 69 Cal.App.5th 899, 908 (Miguel C.).)

The purpose of the juvenile delinquency laws is twofold: (1) to serve the best interests of the delinquent ward by providing care, treatment, and

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guidance to rehabilitate the ward and enable him to be a law-abiding and productive member of his family and the community, and (2) to provide for the protection and safety of the public. (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615; see In re Walter P. (2009) 170 Cal.App.4th 95, 99; § 202, subd. (a).)

Regarding the placement of a juvenile ward, DJJ is the state's most restrictive option, reserved for the most severe offenders. (Miguel C, supra, 69 Cal.App.5th at p. 902.) Before placing a ward with DJJ, the juvenile court must find both that the placement would probably benefit the ward and that less restrictive options would be either ineffective or inappropriate. (Ibid.; see In re Carlos J. (2018) 22 Cal.App.5th 1, 6 (Carlos J.); § 734.)

DJJ is, however, in the process of being phased out. "It is the intent of the Legislature to close the Division of Juvenile Justice within the Department of Corrections and Rehabilitation, through shifting responsibility for all youth adjudged a ward of the court, commencing July 1, 2021, to county governments and providing annual funding for county governments to fulfill this new responsibility." (§ 736.5, subd. (a).)

Pending DJJ's closure, a juvenile court may still "commit a ward who is otherwise eligible to be committed under existing law and in whose case a motion to transfer the minor from juvenile court to a court of criminal jurisdiction was filed," but "[t]he court shall consider, as an alternative to commitment to the Division of Juvenile Justice, placement in local programs." (§ 736.5, subd. (c).)

D. Analysis

Here, Eduardo argues the juvenile court abused its discretion by placing him in DJJ instead of the HOPE program. To this end, he primarily relies on Miguel C, supra, 69 Cal.App.5th 899 and argues this court should

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follow that case. We conclude that Miguel C. does not mandate a finding that the juvenile court abused its discretion here. Nor does it stand for the proposition that Eduardo must be committed to HOPE.

As a threshold matter, we observe significant differences between the minor in Miguel C. and Eduardo. The minor in Miguel C. was 16 at the time he committed his offense, which involved a group of teenagers beating to death a victim in a gang-related crime. And although it was determined that the minor was a primary actor in the assault, there was no indication that he used any weapons. (Miguel C, supra, 69 Cal.App.5th at p. 903.) Shortly after that incident, the minor accosted a man as he was parking his car to unload groceries. The minor punched the man in the head repeatedly and chased the man when he tried to run away. (Ibid. ) However, the minor had an "unblemished record" that rendered his actions "perplexing." (Ibid.)

In contrast, Eduardo was just one month shy of his 18 birthday when he attempted to kill the mother of his child. Over a 35-minute timespan largely caught on tape, Eduardo beat and tortured his victim, using a skateboard to strike her, a cord to strangle her, and a cigarette lighter to light her on fire. He also threw an object at her, punched her, kicked her, stomped her, and dragged her by her hair. Eduardo even took breaks during his beating of the victim and then would resume his offense. Although this court referred to the minor's actions in Miguel C. as "both tragic and stunning" (Miguel C, supra, 69 Cal.App.5th at p. 904), Eduardo's vicious and relentless attack on Andrea was gruesome and heinous. Indeed, Eduardo's actions defy rational explanation. Further, Eduardo had a history of violence that far surpassed the "unblemished record" of the minor in Miguel C. In short, simply based on the vast factual differences between the minor in Miguel C. and Eduardo, we conclude Miguel C. is not very instructive here.

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In addition, the issue presented here is not the same as the one we addressed in Miguel C. There, "[w]e conclude[d] that where a minor presents evidence suggesting that a DJJ placement would be harmful for reasons specific to the minor, the People must provide some contrary evidence that would enable the juvenile court to make a comparative analysis of the placement options before it concludes the minor will probably benefit from DJJ, and that less restrictive options would be ineffective or inappropriate." (Miguel C, supra, 69 Cal.App.5th at p. 902.) And in that case, the minor adduced "expert testimony . . . that placing [him] in DJJ would be counterproductive because it would likely assure his entrenchment in gang culture and, due to the ready availability of drugs in DJJ facilities, undermine efforts to treat and improve a significant substance abuse disorder." (Ibid.)

Here, in contrast to the defense evidence presented in Miguel C, Eduardo did not offer comparable evidence that placement in DJJ would be detrimental to him. For example, Eduardo's expert witness, Dr. Malek noted there was "a lot of overlap in the programs" at DJJ and HOPE. Further, she admitted that Eduardo would "receive similar programming" at DJJ and HOPE. Dr. Malek liked "the benefit" of "community treatment" because Eduardo would be "closer to family" and could "establish support within the

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community[, ]" but admitted that she did not "think there [was] anything wrong with the DJJ programs."

Moreover, Dr. Malek was given the opportunity to explain any adverse effects on Eduardo if he was committed to DJJ. She testified that the "only" adverse effect would be "exposure to other delinquent youth." Yet, that effect appears to be a general issue for every person that was committed to DJJ and not something that would be harmful for reasons specific to Eduardo. (See Miguel C, supra, 69 Cal.App.5th at p. 902.) Without such evidence, the People were under no obligation to produce additional evidence before juvenile court committed Eduardo to DJJ.

Also, on the record before us, substantial evidence supports the juvenile court's commitment decision. The evidence presented at the commitment hearing showed that DJJ and community-based alternatives would each provide similar, largely overlapping, treatment and therapeutic programs that would be beneficial to Eduardo. Dr. Malek liked the community-based commitment more, noting that it allowed Eduardo to establish support within the community. She further observed that "a lot of problems happen with these guys when they're released" from DJJ because "[t]hey have to deal with real-world problems: paying bills, dealing with relationships, family problems, school." That said, Dr. Malek later admitted that DJJ offered a reentry program where it assists an individual's return to the community "in a smooth way so [he or she] has resources." Indeed, Dr. Malek conceded that DJJ offered programs beneficial to Eduardo.

Further, a brochure explaining the HOPE program was before the court at the commitment hearing, and Eduardo's counsel argued that Eduardo should be placed in the HOPE program. Moreover, the probation officer explicitly considered whether Eduardo should be placed in a community-

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based program. Nevertheless, the probation officer concluded that placement in DJJ would be more appropriate and beneficial for Eduardo. And, the juvenile court, which acknowledged the "wealth of information on this case before the court to make an informed decision," necessarily considered HOPE in making its commitment decision. (See § 736.5, subd. (c) ["The court shall consider, as an alternative to commitment to the Division of Juvenile Justice, placement in local programs."].) The court simply disagreed with Dr. Malek and Eduardo's counsel.

For example, Dr. Malek preferred community-based treatment, in part, because she did not deem Eduardo a danger to the community. However, the juvenile court "completely disagree[d] with Dr. Malek" about the danger Eduardo posed to the community. And there was evidence to support the court's conclusion. In addition to Eduardo's substance abuse history, Eduardo has a long history of violence-both within and outside the home- which culminated in his vicious beating of Andrea and indicated a likelihood of future violence. Given this evidence, it was not an abuse of discretion for the juvenile court to find that DJJ placement would probably benefit Eduardo and that less restrictive options like HOPE would be ineffective or inappropriate. (See Miguel C, supra, 69 Cal.App.5th at p. 912 ["Public safety . . . remains a consideration explicitly permitted by the law (§ 202), and the trial court would be entrusted with determining the level of security . . . necessary for the minor's commitment."].)

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DISPOSITION This matter is remanded only so the juvenile court can clarify the length of commitment it intended to order. In all other respects, the judgment is affirmed.

WE CONCUR: IRION, J., DO, J.

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