1

Filed 9/11/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

In re ALBERT W., a Person Coming Under the 

Juvenile Court Law.

C073744

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERT W.,

Defendant and Appellant.

(Super. Ct. No. JV124256)

APPEAL from the dispositional order of the Superior Court of Sacramento 

County, Stacy Boulware-Eurie, Judge. Affirmed.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts I, II-B, and II-C of the discussion.
2

Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Catherine Chatman, Michael Dolida, Deputy Attorney General, for Plaintiff and 

Respondent.

Delinquent minor Albert W. timely appeals from an order committing him to the 

Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF).1 He 

contends: 1) insufficient evidence supports the finding that he was competent; 2) the 

most recent sustained petition filed against him was a Louisiana petition that precludes a 

DJF commitment; 3) he was misadvised about the possible consequences of his 

admission; and 4) the juvenile court abused its discretion by committing him to the DJF. 

As we shall explain in the published portion of this opinion, Part II-A of the 

Discussion, the term “any petition” as used in Welfare and Institutions Code section 

733,2 which limits commitments to DJF based on the nature of the “most recent offense 

alleged in any petition,” does not encompass sister-state delinquency petitions as the 

minor claims. In the remainder of the opinion, we reject the minor’s other claims of 

reversible error. We shall affirm.

BACKGROUND

The minor was made a ward at age 12 based on his May 1, 2008, admission to 

second degree robbery, after which a petition alleging residential burglary and knowing 

 

1

 “Effective July 1, 2005, the correctional agency formerly known as the California 

Youth Authority (CYA) became known as [DJF]. DJF is part of the Division of Juvenile 

Justice [DJJ], which in turn is part of the Department of Corrections and Rehabilitation. 

[Citations.] Statutes that formerly referred to CYA . . . now refer to DJF.” (In re Jose T. 

(2010) 191 Cal.App.4th 1142, 1145, fn. 1; see In re J.L. (2008) 168 Cal.App.4th 43, 47, 

fn. 1 [DJJ and DJF interchangeable].)

2

 Further undesignated statutory references are to the Welfare and Institutions Code.
3

receipt of stolen property was dismissed with the understanding those charges could be 

used at disposition. The minor was sent to live with his father in Louisiana under the 

supervision of the probation department. 

Two sustained Louisiana petitions followed, alleging simple burglary, simple 

criminal damage, and disturbing the peace. On May 23, 2010, Louisiana authorities 

closed the minor’s case and returned him to his mother in California. 

A notice filed under section 777 on August 18, 2010, alleged several violations of 

probation (VOPs). (See In re Greg F. (2012) 55 Cal.4th 393, 400, 403-405 [describing 

VOP procedure].) A second VOP was filed the following week, alleging the minor had 

committed two residential burglaries. 

On January 5, 2011, proceedings were suspended, and after three evaluations--

including one by Dr. Kevin Dugan--the parties submitted the matter on September 16, 

2011, and the minor was found incompetent and referred to determine if he was 

intellectually disabled and to design an appropriate placement plan. 

On January 27, 2012, the probation department sought a warrant because the 

minor had absconded after threatening his mother with a sawed-off shotgun the day 

before. On February 7, 2012, the minor was detained. He was later released to his 

mother. 

On May 11, 2012, another VOP was filed, alleging the minor threatened a school 

official, among other acts. Later that month, a notice was filed alleging a violation of 

electronic monitoring restrictions. Another notice and a VOP replicating the charge of 

threatening a school official were filed on June 1, 2012. A superseding VOP was filed on 

June 8, 2012, adding that the minor possessed a loaded firearm at school, and related 

allegations. Later, a superseding June 26, 2012 VOP was filed. 

On July 11, 2012, counsel again expressed a doubt about the minor’s competence. 

This time, Dr. Dugan’s report rejected his 2011 diagnosis of “mild mental retardation” 

and incompetency and concluded the minor had been malingering. After a contested 
4

hearing held September 25 to 28, 2012, the juvenile court (Twiss, J.) found the minor to 

be competent.

Meanwhile, in July 2012, the probation department filed a report stating the minor 

was classified as a gang member and had had six formal incident reports while in 

custody; further he was sophisticated and dangerous and had failed on home supervision 

and electronic monitoring in the past. 

A second superseding VOP was filed on October 16, 2012, but the minor was not 

present due to a behavioral issue triggered when his counsel suggested continuing the 

case for two weeks, and the arraignment was postponed. 

On November 15, 2012, the minor admitted he committed a residential burglary in 

2010, and the juvenile court dismissed the remaining VOP charges with the stipulation 

that they could be used for dispositional purposes. These included another 2010 

residential burglary, criminal threats with personal use of a firearm in January 2012 (Pen. 

Code, §§ 422, 12022.5, subd. (a)), attempting to deter a peace officer by threats in May 

2012 (id., § 71), attempting to resist another officer by threats later in May (id., § 69), and 

possessing a loaded handgun at school in June 2012 (id., § 25850, subd. (a)). 

On November 29, 2012, yet another VOP was filed, alleging the minor had 

assaulted another resident of his detention facility. 

At a hearing on December 6, 2012, the juvenile court (Oros, J.) ordered a 90-day 

diagnostic evaluation (see § 704), after two unreported conferences with counsel, and 

after the minor’s counsel argued for a Level B referral.3 The November 29 VOP was 

dismissed with the understanding that it could be used at disposition. The court found the 

minor eligible for DJF placement. The minor opposed a DJF commitment, due partly to 

 

3

 The evaluation was not carried out, based on the lack of a contract. (See § 704, subd. 

(c).)
5

the Louisiana cases, arguing that his most recent offense (committed in Louisiana) was 

“an admission to a non-707(B) offense.” 

At the dispositional hearing on March 28, 2013, the juvenile court (BoulwareEurie, J.) committed the minor to DJF for up to five years. The minor timely appealed.

DISCUSSION

I

Competency

The minor raises various challenges to the competency finding.

A. Facts

At the competency hearing, Dr. Dugan testified (in a manner consistent with his 

2012 report) that the minor was malingering. He noted that the minor would change from 

cooperative and communicative to hostile, so that standard testing could not be 

completed. He had spoken with Aida Fuchs, at the Alta Regional Center, who had 

reported on the minor’s progress, and learned the minor was not making a good faith 

effort to avail himself of the services he had been receiving. His testing results reflected 

a poor effort; he had initially improved and then, after demonstrating progress, he tested 

below the level expected if the test taker were “randomly guessing.” This “notably 

deteriorating score after demonstrating consistent pattern of increasing a competence in 

learning” was unexpected.

After a break in the hearing, the minor refused to return to court and was using 

profanity. The minor claimed the prosecutor, the judge, and Dr. Dugan were conspiring 

against him. The next court day, the minor returned to court. 

Dr. Dugan again testified the minor was malingering. He based this opinion on 

disparities in an IQ test he had administered in 2011 indicating “mild mental retardation,”

and his later evaluation in which the minor did well when he wanted to. At the 2011 

evaluation he had found the minor to be incompetent, partly also based on a finding of 

paranoia. The minor now had the ability to understand the charges and the nature of the 
6

proceedings, and the ability to cooperate with counsel, if he wanted to. He was not 

incompetent. Dr. Dugan applied a presumption of competency in forming his opinion. 

Christopher White, a special education teacher who performed competency 

training (including at the Alta Regional Center working with intellectually disabled 

children), had helped develop the program in 1991. He had worked with the minor 

beginning January 6, 2012. Through testing, he determined the minor could learn. When 

the minor was in custody, he continuously regressed and blamed the regression on his 

incarceration. He used specific terms like “regress” and “comprehend,” terms which 

White had not used with him, and then immediately claimed not to know what the terms 

meant despite the fact that he had used them accurately. The minor told White he had 

spoken to another of White’s clients (in custody) about competency, and the “other client 

had been making real good progress and then just stopped also.” The minor then 

“regressed” so that his testing fell below random answering. 

The juvenile court (Twiss, J.) and the parties assumed the burden of proof rested 

with the minor to show incompetency by a preponderance of the evidence. The court 

found the minor had a “condition” within the meaning of section 709,4specifically, “a 

relatively low functioning level” coupled with developmental delay and developmental 

immaturity. But the court credited Dr. Dugan’s testimony that the minor was competent. 

It found Dr. Dugan had in essence repudiated his 2011 opinion, and in any event with the 

passage of time the minor was now competent, because the preponderance of the 

evidence did not show the minor either lacked the ability to consult with counsel or 

lacked the ability to understand the nature of the charges or the proceeding. 

 

4

 Section 709, subdivision (b), requires that when a doubt is expressed an expert evaluate 

“whether the minor suffers from a mental disorder, developmental disability, 

developmental immaturity, or other condition and, if so, whether the condition or 

conditions impair the minor’s competency.”
7

B. Discussion

1. Burden of Proof as to Competency

The minor initially contended there was no presumption of competency in 

delinquency cases, and a minor does not bear any burden to prove incompetency. As the 

minor concedes in a supplemental brief, our Supreme Court has decided these issues 

adversely to the minor. (In re R.V. (2015) 61 Cal.4th 181.) We are bound to follow that 

precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

2. Presumption of Continued Incompetency 

The minor contends that because in this case he previously was found to be 

incompetent, a presumption of continued incompetency should have been applied, 

requiring the People to prove he had been restored to competency. We disagree, and add 

that the court’s failure to apply any such presumption did not result in prejudice in this 

particular case.

The minor’s claim is based on an analogy to the criminal competency statutory 

scheme, which provides that a defendant found incompetent may receive a certificate of 

restoration of competency, and this certificate re-establishes the presumption of 

competency if competency is later challenged. (See People v. Rells (2000) 22 Cal.4th 

860, 865-868 (Rells).) The minor notes the absence of any provision for certification of 

restoration of competency in the juvenile competency statutes, and argues this means 

once he was found incompetent, he should have been presumed incompetent at the later 

competency hearing, and therefore a new hearing is required in this case. 

The argument fails to persuade for three reasons.

First, as we explain, the absence of a certificate of restoration of competence has 

no effect on the burden of proof in criminal cases, according to the very authority relied 

on by the minor. Instead, even where no such certificate has been filed, the mere passage 

of time compels a return to court for a hearing where the criminal defendant still bears the 

burden of proof if he claims to remain incompetent. (Rells, supra, 22 Cal.4th at p. 867.)
8

Penal Code section 1370, subdivision (b)(4) [formerly subd. (b)(2)] provides that 

after 18 months of treatment after a finding of incompetency, a defendant shall be 

returned to court for a hearing pursuant to “Section 1369.” Penal Code section 1369, 

subdivision (f), setting forth the procedures for a criminal competency hearing, provides 

for a presumption of competency. Penal Code section 1372, subdivision (a)(2) requires 

that the order committing the defendant for treatment shall provide that the defendant be 

returned to court when a certificate of restoration of competence has been issued.

In construing these statutes, our Supreme Court has held as follows: “[F]or a 

hearing on a defendant’s recovery of mental competence, Penal Code section 1372, 

unlike Penal Code section 1369, does not establish, expressly, a presumption that the 

defendant is mentally competent unless he is proved by a preponderance of the evidence 

to be otherwise. We believe, however, that it does so impliedly. The presumption that 

the defendant is mentally competent unless he is proved by a preponderance of the 

evidence to be otherwise is applicable at a trial of the defendant’s mental competence, in 

spite of the fact that it may run counter to any doubt expressed by the court and 

supported by the opinion of his own counsel. This presumption is applicable as well at a 

retrial of the defendant’s mental competence, which is mandatory when the defendant has 

been committed for 18 months and remains so without a certificate of restoration to 

mental competence filed by a specified mental health official, in spite of the fact that it is 

inconsistent with his apparent nonrecovery of mental competence. Therefore, in our 

view, this presumption should be understood to be applicable at a hearing on the 

defendant's recovery of mental competence, where it conforms in fact with the certificate 

of restoration filed by the specified mental health official.” (Rells, supra, 22 Cal.4th at p. 

867.)

Thus, whether or not a certificate of restoration has been issued, a criminal 

defendant eventually will be returned to court for a new competency hearing at which he 

or she will again bear the burden of proof. This undermines the minor’s analogy, as does 
9

authority subsequent to Rells. After discussing Rells, our Supreme Court in In re R.V.

stated “Because the presumption of competency applies in a wardship proceeding, the 

party asserting incompetency bears the burden of proving the minor is incompetent to 

proceed.” (In re R.V., supra, 61 Cal.4th at p 197.) We infer no exception for minors 

previously found incompetent in this passage. 

Second, after competency training for the minor was underway, it was minor’s 

counsel who again declared a doubt about competency, and therefore the minor properly 

bore the burden of proof, again. In accordance with general motion practice, the party 

seeking the finding of incompetency bears the burden of proof. (See Rells, supra, 22 

Cal.4th at p. 867; People v. Lopez (1997) 52 Cal.App.4th 233, 251 [“ ‘[o]n all motions 

the burden is on the moving party’ ”].) 

Third, the trial court found Dr. Dugan disavowed his earlier (2011) opinion of 

incompetency, because he now (2012 and onward) believed the minor was a malingerer. 

Thus, any presumption claimed by the minor was undermined because the original 

finding was shown to be based on the faulty assumption that the minor was providing

reliable information when tested for competency. No prejudice appears. (See People v. 

Leonard (2007) 40 Cal.4th 1370, 1391 [error in criminal competency hearing harmless 

where the hearing that was conducted “protected [the defendant’s] right not to be tried or 

convicted while incompetent”].) 

3. Sufficiency of the Evidence of Competency

In challenging the sufficiency of the evidence of competency, the minor initially 

argued for an “independent review” standard of review. In a supplemental brief, he 

concedes we must review a juvenile court’s finding of competency under the substantial 

evidence test. (See In re R.V., supra, 61 Cal.4th at pp. 200-202.) We view “the record in 

the light most favorable to the juvenile court’s determination.” (Id. at p. 200.) Where, as 

here, the juvenile court has found the minor to be competent, we must ask “whether the 
10

weight and character of the evidence of incompetency was such that the juvenile court 

could not reasonably reject it.” (Id. at p. 201.)

The minor asserts the evidence showed he was incompetent, but in making this 

argument he details the evidence in the light most favorable to him. The juvenile court 

certainly could rationally credit Dr. Dugan’s current opinion--corroborated by White’s 

testimony--that the minor was a malingerer, and that Dugan’s 2011 opinion had been 

based on the incorrect assumption that the minor had been sincerely cooperating in the 

psychological and other evaluations. 

The minor concedes, as he must, that Dr. Dugan’s 2012 report found the minor 

was competent and was simply unwilling to participate in services and unwilling to 

cooperate with his attorney. But he argues Dr. Dugan’s testimony was “less decisive and 

clouded with uncertainty.” We disagree. Although Dr. Dugan testified he could not be 

certain that the minor was malingering, he “strongly suspected” malingering. He added 

that because the minor understood the nature of the proceedings and had the ability to 

cooperate with counsel, the minor was not incompetent. He testified he could not be 

“100 percent” certain, but he was confident in his opinion that the minor was 

malingering. The minor cites no authority for the implied proposition that absolute 

certainty is required in such matters.

The minor misinterprets a passage of Dr. Dugan’s testimony, contending he 

testified his 2012 report (indicating malingering and competency)--rather than a 2011 test 

result which was a component of his 2011 report (indicating incompetency)--was invalid. 

However, it is clear that Dugan was referring to the 2011 test result indicating 

incompetency when he answered: “I’m saying it possesses questionable enough validity 

that I no longer consider that assessment to be a realistic and credible assessment of this 

minor’s cognitive ability.” He went on to explain that the 2011 test was invalid because

the minor was a malingerer and therefore the data the minor presented and any 

conclusions derived therefrom were “suspect.” Thus, in context, Dr. Dugan’s testimony 
11

did not undermine his 2012 report concluding the minor was malingering and not 

incompetent, but supported it.5

The minor also misinterprets a passage of White’s testimony, asserting the witness 

directly testified the minor’s ability to comprehend “was still unknown.” The cited 

testimony was that White had not yet evaluated the minor’s ability in that regard, as he 

had a certain training regimen and had not yet progressed to the comprehension part of 

the competency training. On redirect, White testified the minor was answering questions 

quickly, without thinking about them. He also testified the minor was, in fact, capable of 

learning, plotted to “regress” after learning what the word meant, and had intentionally 

regressed while in custody after he had spoken to another minor about competency

issues. Thus, viewed favorably to the juvenile court’s finding, White’s testimony 

supported Dr. Dugan’s view that the minor was malingering. 

In sum, viewed in the light favorable to the juvenile court’s finding, ample 

evidence shows the minor was competent to undergo an adjudication hearing, and was 

malingering to thwart the juvenile proceedings. 

II

DJF Commitment

For several reasons, the minor contends his DJF commitment was improper. We 

address his claims separately, and reject each of them.

 

5

 It appears that questionably placed punctuation in the reporter’s transcript may be 

responsible for the misunderstanding. The question asked by the prosecutor that elicited 

Dugan’s response as detailed above reads in relevant part: “[Y]ou’re saying that the 

[2011 test results] were based on your reevaluation -- your August 2012 evaluation was 

invalid; is that [correct]?” It should more properly read: “[Y]ou’re saying that the [2011 

test results] were -- based on your reevaluation, your August 2012 evaluation -- was 

invalid; is that [correct]?” Clearly the “was invalid” (although it should be “were 

invalid”) refers back to the 2011 test results, not the reevaluation from 2012.
12

A. Whether the Louisiana Petition Can Contain the Most Recent Offense

Section 733, stated in the negative, provides in part that a ward shall not be 

committed to DJF if, inter alia, he or she “(c) . . . is adjudged a ward of the court pursuant 

to Section 602, and the most recent offense alleged in any petition and admitted or found 

to be true by the court is not described in subdivision (b) of Section 707.” His most 

recent offense alleged in a CA petition was robbery; there is no dispute that this was a 

qualifying (section 707, subdivision (b)) offense.

The parties also agree the minor was the subject of a more recent Louisiana 

petition alleging acts that would not fall within section 707, subdivision (b) if committed 

in California. The minor contends the most recent Louisiana charge is “the most recent 

offense alleged in any petition” within the meaning of section 733, and therefore he may 

not be committed to DJF. We are not persuaded.

The key language of section 733, subdivision (c) is “the most recent offense 

alleged in any petition and admitted or found to be true by the court.” (Italics added.) 

The parties dispute the meaning of “any petition” and “the court” as those terms are used 

in this section.

“[A]ny” is broad and generally “means all or every.” (California Grocers Assn. v. 

Department of Alcoholic Beverage Control (2013) 219 Cal.App.4th 1065, 1078 (conc. 

opn. of Duarte, J.).) The section’s use of “any” lends some support to the minor’s claim 

that “any petition” means “any delinquency petition,” that is, any petition wherever filed. 

A “petition” under section 733 means a section 602 petition, not a VOP notice. 

(In re D.B. (2014) 58 Cal.4th 941, 944; In re Greg F., supra, 55 Cal.4th at pp. 404-405; 

In re J.L., supra, 168 Cal.App.4th at pp. 58-60.) However, as we will explain, section 

602 refers to petitions alleging state or federal crimes committed in California; there is no 

basis for California to exercise jurisdiction over crimes committed in sister-states. When 

we consider the delinquency scheme as a whole, as we must, we conclude the minor’s 

proffered candidate of meaning is not a plausible meaning, so as to raise a true 
13

ambiguity. (See Alameda County Flood Control & Water Conservation Dist. v. 

Department of Water Resources (2013) 213 Cal.App.4th 1163, 1179-1180.)

“[T]he goal of statutory construction is ascertainment of legislative intent so that 

the purpose of the law may be effectuated, and that we should construe a statute in the 

context of the entire statutory system of which it is a part, in order to achieve harmony 

among the parts.” (People v. Shirokow (1980) 26 Cal.3d 301, 306-307; see In re M.M.

(2012) 54 Cal.4th 530, 536.) Therefore, we review other sections of the delinquency law 

that may bear on the meaning of the words “petition” and “court” as used in section 733.

Section 245 provides in part: “Each superior court shall exercise the jurisdiction 

conferred by this chapter, and while sitting in the exercise of such jurisdiction, shall be 

known and referred to as the juvenile court.” The “court” referred to is a California 

court. (See Cal. Const., art. VI, § 4.) Section 650 provides in part: “Juvenile court 

proceedings to declare a minor a ward of the court pursuant to Section 602 are 

commenced by the filing of a petition by the prosecuting attorney.” (§ 650, subd. (c), 

italics added.) The reference to section 602 negates the idea that a proceeding based on 

Louisiana law would be deemed “commenced by the filing of a petition” under this 

statute. (See also Cal. Rules of Court, rule 5.502(29) [“ ‘petitioner,’ in section 601 and 

602 proceedings, means the probation officer or prosecuting attorney”].) 

In turn, section 602 provides in part: “Except as provided in subdivision (b) 

[listing particularly serious crimes], any person who is under 18 years of age when he or 

she violates any law of this state or of the United States or any ordinance of any city or 

county of this state defining crime other than an ordinance establishing a curfew based 

solely on age, is within the jurisdiction of the juvenile court, which may adjudge such 

person to be a ward of the court.” (§ 602, subd. (a), italics added.) Plainly, the court 

referenced is the juvenile court, which is a department of each California county’s 

superior court. (See § 245.)
14

Section 656 specifies the contents of a wardship petition commencing delinquency 

proceedings in a California juvenile court. Section 656.1 requires that “Any petition 

alleging that the minor is a person described by Section 602 shall specify as to each count 

whether the crime charged is a felony or a misdemeanor.” (Italics added.) Again, the 

referenced statutes refer to California proceedings under section 602, not any proceeding. 

As stated by our Supreme Court, albeit in another context: “No section 602 case 

begins until the prosecutor files a petition under that statute on the People’s behalf.” (In 

re Eddie M. (2003) 31 Cal.4th 480, 487, italics added.) “In a juvenile court hearing 

which is based upon a petition that alleges that the minor upon whose behalf the petition 

is being brought is a person within the description of Section 602, the prosecuting 

attorney shall appear on behalf of the people of the State of California.” (§ 681, subd. (a), 

italics added.) These passages again plainly reference the California cases. 

Ultimately, after an admission or contested hearing, “If the court has found that 

the minor is a person described by Section 601 or 602, it may order and adjudge the 

minor to be a ward of the court.” (§ 725, subd. (b).) This usage of “the court,” too, 

plainly references a California juvenile court. “California juvenile court law . . . does not 

apply to any person who violates a law of another state defined as a crime and is at the 

time of the violation under 18 years of age, or who subsequently flees into the State of 

California.” (Seiser & Kumli, Cal. Juvenile Courts Practice And Procedure (2015), 

Jurisdiction, § 3.20[6], p. 3-37.)

Accordingly, we do not believe the minor’s candidate of meaning of section 733, 

subdivision (c) plausibly accounts for the statutory language, when the statutory scheme 

is viewed as a whole, rather than in isolation. But even assuming without finding that 

there is any ambiguity to resolve, we would apply the venerable rule that statutes do not 

apply extraterritorially absent an explicit Legislative indication. “However far the 

Legislature’s power may theoretically extend, we presume the Legislature did not intend 

a statute to be ‘ “ operative, with respect to occurrences outside the state . . . unless such 
15

intention is clearly expressed or reasonably to be inferred ‘from the language of the act or 

from its purpose, subject matter or history.’ ” ’ ” (Sullivan v. Oracle Corp. (2011) 51 

Cal.4th 1191, 1207.) 

The minor emphasizes the purposes of section 733 were to reduce the number of 

delinquents housed in state facilities to end litigation, save money, and achieve better 

results for youthful offenders, by limiting DJF commitments to the more serious 

delinquents. (See In re Greg F., supra, 55 Cal.4th at p. 409-410; In re N.D. (2008) 167 

Cal.App.4th 885, 891-892.) But while acting to achieve those purposes, the Legislature, 

presumably aware of the statutes just described, and the presumption against 

extraterritoriality of state statutes (see Estate of McDill (1975) 14 Cal.3d 831, 837-839; In 

re Eddie L. (2009) 175 Cal.App.4th 809, 815), could have written section 733 so as to 

encompass foreign delinquency petitions. It did not do so.

Accordingly, we reject the minor’s claim that the Louisiana petitions have any 

relevance to his eligibility for a DJF commitment under section 733.

B. Advisement as to Consequences

The minor contends his admission to the VOP was invalid because he was not told 

he might be committed to DJF, did not understand the consequences of his admission, 

and therefore his commitment is invalid. We disagree.

Recently, in People v. Cross (2015) 61 Cal.4th 164, a case involving a defendant’s 

stipulation that he had a prior conviction, our Supreme Court reemphasized that the direct

penal consequences of a plea or admission must be explained to a criminal defendant, as 

a rule of judicially-created procedure. Similarly, a minor must be told the maximum 

possible confinement time he or she faces before a juvenile court accepts an admission to 

a section 602 petition or section 777 VOP notice. (See, e.g., In re Gary O. (1978) 84 

Cal.App.3d 38, 40-42 [where minor was misadvised about his maximum commitment, 

and promptly moved to withdraw his admission, the motion should have been granted].)
16

Here, the minor was advised that he would be placed on probation again if he 

admitted the present VOP, but if he violated probation again his maximum potential 

confinement was five years. Further, his counsel represented that he had discussed with 

the minor the consequences of his admission to the VOP. 

The minor then asked the court what a “violation” meant, and the juvenile court 

repeated: “You will continue to be on probation and you’ll have terms and conditions 

that guide your behavior while you’re on probation. [¶] If you violate any of those terms 

and conditions, what I’m telling you is you face a maximum confinement time of five 

years. [¶] It doesn’t necessarily mean that that’s what would be imposed for a violation, 

but we always want to make sure you know that maximum confinement time, the worst 

case scenario.” The minor said he understood, apparently again conferred with his 

attorney, and then--after being fully advised of and explicitly waiving (both personally 

and through counsel) his rights to a bench trial, to confront witnesses, to subpoena 

witnesses on his behalf, and the privilege against self-incrimination--the minor admitted 

the VOP. After the parties stipulated to a factual basis, the trial court (Oros, J.) found the 

“admission and waivers were made knowingly, intelligently, and voluntarily” and 

accepted the admission. 

The court did not, however, advise the minor that the five-year “worst case 

scenario” could be served at DJF, which is the recommended advisement when accepting 

a juvenile’s admission. (See Cal. Judges Benchguides, Benchguide 118, Juvenile 

Delinquency Jurisdiction Hearing (CJER 2011 rev.) § 118.62, p. 118-39.) But the minor 

never objected on the ground of misadvisement as to the VOP, although counsel at 

disposition urged that the minor had not understood his section 602 admission. 

On appeal, the minor contends he should have been advised on the record about 

the possibility that he could be committed to DJF and reversal is required. We disagree.

First, as the Attorney General points out, the lack of objection forfeits the claim. 

(See In re Ian J. (1994) 22 Cal.App.4th 833, 839-840 [advisement as to maximum 
17

penalty not constitutionally required; objection necessary]; cf. People v. Walker (1992) 

54 Cal.3d 1013, 1022-1023 [similar rule in criminal cases], overruled on a different point 

by People v. Villalobos (2012) Cal.4th 177, 183.) Neither at the hearing on the VOP 

admission nor at the dispositional hearing did the minor claim he had been under-advised.

Second, the minor’s counsel cites no authority for the proposition that where a 

minor might be confined is a consequence of an admission that must be explained on the 

record lest automatic reversal ensue. Instead, prejudice must be shown. (See In re Jimmy 

M. (1979) 93 Cal.App.3d 369, 372-374 [minor should have been told of possible Youth 

Authority commitment, but no prejudice shown on direct appeal because the record did 

not show the lack of advisement made a difference, i.e., that the minor would not have 

made the admission anyway]; accord, In re Ronald E. (1977) 19 Cal.3d 315, 325-326 [on 

habeas corpus, question was: “Is it reasonably probable that petitioner might not have 

been committed to the Youth Authority had the court advised him, prior to his admission 

of the truth of the allegations, that he might be so committed?”; answer: no such showing 

was made].) This record shows the minor knew he could be confined for up to five years, 

had discussed the consequences of his admission with his counsel, and entered a knowing 

and voluntary admission. (See Cal. Judges Benchguide, supra, § 118.45, p. 118:28.) 

There is no showing he would not have admitted the VOP had he been advised otherwise, 

despite counsel’s speculations, outlined for the first time in the reply brief.6

Accordingly, we reject the claim of reversible error as to the VOP admission.

 

6

 The minor also appears to suggest he was misadvised because the juvenile court told 

him on November 15 that he would receive probation, and only potentially suffer a fiveyear commitment if he again violated probation. But the minor did violate probation 

after this admission, resulting in the November 29 VOP, which was later dismissed with 

the understanding it could be used at disposition.
18

C. Abuse of Discretion

The minor contends the juvenile court abused its discretion in making the DJF 

placement. He argues his only serious crime occurred five years before, his criminality 

was de-escalating, viable alternatives to DJF existed, and reiterates the point that section 

733 militates in favor of local incarceration of juveniles. 

“A juvenile court’s commitment order may be reversed on appeal only upon a 

showing the court abused its discretion. [Citation.] ‘ “We must indulge all reasonable 

inferences to support the decision of the juvenile court and will not disturb its findings 

when there is substantial evidence to support them.” ’ ” (In re Robert H. (2002) 96 

Cal.App.4th 1317, 1329-1330.) 

Delinquent minors “shall, in conformity with the interests of public safety and 

protection, receive care, treatment, and guidance that is consistent with their best interest, 

that holds them accountable for their behavior, and that is appropriate for their 

circumstances. This guidance may include punishment that is consistent with the 

rehabilitative objectives of” the juvenile court laws. (§ 202, subd. (b).) “In reaching a 

disposition, the court considers (1) the minor’s age, (2) the circumstances and gravity of 

the offense, and (3) the minor’s previous delinquent history. (§ 725.5.)” (In re Greg F., 

supra, 55 Cal.4th at p. 404.) There must be evidence demonstrating a probable benefit to 

the minor by a DJF commitment and the inappropriateness or ineffectiveness of lesser 

alternatives, though a court need not actually place a minor through lesser alternatives if 

it determines a DJF commitment is appropriate in the first instance. (See In re Eddie M., 

supra, 31 Cal.4th at p. 507; In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re 

Asean (1993) 14 Cal.App.4th 467, 473.) The juvenile court must find that the ward will 

be benefited by the reformatory educational discipline or other treatment provided by 

DJF. (§ 734; see In re Edward C. (2014) 223 Cal.App.4th 813, 829.)

In this case the probation department recommended continued wardship, 45 days 

of further detention, and release of the minor to his mother under probation supervision, 
19

commencing with a period of electronic monitoring. Later, the probation department 

reported that all Level B facilities had rejected the minor, “based on his level of 

functioning, violent/aggressive behaviors, gang involvement, and extreme noncompliance.” The prosecution then filed a brief supporting a DJF commitment and the 

minor opposed. 

The juvenile court read and considered the various reports and briefs, and heard 

arguments for and against a DJF commitment. The juvenile court asked whether a 

“YDF” commitment (youth detention facility or juvenile hall) was feasible, and the 

People replied that there were no programs that would benefit the minor there, the minor 

had already been in custody for nearly 300 days, and that such a disposition would not 

adequately protect the public or help reform the minor. The minor’s counsel thought a 

local commitment was appropriate, although he acknowledged that would not provide the 

same level of programming available at DJF.

The juvenile court then asked the probation officer about recent incidents in 

custody, and learned there already had been five incident reports during the first three 

months of 2013. After a break to review further material, the court summarized the case, 

noting that in 2008 the minor had been made a ward for robbery; while placed in 

Louisiana he had committed multiple burglaries, one with his father; he was on electronic 

monitoring when he committed several of the VOP offenses; and he engaged in 

assaultive conduct while in the hall. During this time, “not only has he failed to reform, 

but his delinquent behavior has escalated.” Probation had not worked, and the parents 

were unable to provide necessary services, whereas the minor would benefit from the 

“reformatory and educational discipline and other treatments provided by [DJF], and less 

restrictive alternatives are both ineffective and inappropriate.” The court observed that it 

was apparent based upon rejections received from all of the Level B facilities that Level 

A and B placement were not adequate to serve the minor’s needs. YDF was not designed 
20

for long-term placement, and was inappropriate, partly because of the lack of available 

programs that would benefit the minor. 

To summarize the minor’s criminal record as considered by the juvenile court: In 

2008, at age 12, in addition to admitting a second degree robbery, the minor agreed that a 

dismissed residential burglary charge could be used for dispositional purposes.7 The 

minor then committed three other burglaries, a “simple burglary” in Louisiana and two 

more residential burglaries in California. He threatened his mother with a sawed-off 

shotgun in January 2012 and then absconded. Later in 2012 he threatened a school 

official, and still later that year possessed a loaded firearm at school. After the minor

admitted violating probation by committing a burglary, and agreed all remaining charges 

could be used for dispositional purposes, he assaulted another resident of his detention 

facility. 

Given the minor’s continued level of violence and recalcitrance, a DJF 

commitment in this case fell well within the juvenile court’s discretion.8

The minor makes a public policy argument, as follows: The minor committed his 

last serious offense (i.e., one listed in section 707, subdivision (b)) five years before the 

dispositional hearing, while aged 12; therefore because the general purpose of section 

733, subdivision (c) is to limit state custody of juveniles to violent offenders, it was an 

abuse of discretion to commit this minor to DJF.

We reject a necessary predicate of this claim. Although the minor claims he never 

committed “another 707(b) offense,” he overlooks the fact that he agreed dismissed VOP 

 

7

 Both the Attorney General and minor’s appellate counsel erroneously refer to one of 

the dismissed charges as a grand theft rather than a residential burglary. 

8

 Although the 90-day diagnostic report was never obtained, the juvenile court was 

aware of the referral and subsequent non-delivery, and impliedly concluded it nonetheless 

had sufficient information to make an informed disposition. We do not take issue with 

that conclusion.
21

charges could be considered at disposition. One of those charges--threatening his mother 

with a sawed-off shotgun--included an allegation that he personally used a firearm during 

the offense within the meaning of Penal Code section 12022.5, subdivision (a). Section 

707, subdivision (b) lists, among many other crimes, “An offense described in Section 

12022.5 or 12022.53 of the Penal Code.” (§ 707, subd. (b)(17).) Therefore it is not 

persuasive to argue a DJF commitment here transgresses the general policy underlying 

section 733, when the minor in fact did commit a further DJF-eligible offense by pointing 

a sawed-off shotgun at his own mother. Nor was this the minor’s only violent act after 

the original robbery. 

The minor’s arguments about possible lesser placements again amount to an 

invitation to this court to reweigh the facts before the juvenile court, and disregard nowsettled principles, set forth as follows: “Under section 202, juvenile proceedings are 

primarily ‘rehabilitative’ [citation], and punishment in the form of ‘retribution’ is 

disallowed [citation]. Within these bounds, the court has broad discretion to choose 

probation and/or various forms of custodial confinement in order to hold juveniles 

accountable for their behavior, and to protect the public. [Citation.] The voters 

reaffirmed these basic principles when they approved Proposition 21 . . . . Given these 

aims, and absent any contrary provision, juvenile placements need not follow any 

particular order under section 602 and section 777, including from the least to the most 

restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering 

the most restrictive placement before other options have been tried.” (In re Eddie M., 

supra, 31 Cal.4th at p. 507.)

Given the need to protect the public from further violent predation by the minor, 

who has shown no signs of reformation, and the juvenile court’s finding that local 

placements did not have the programming to benefit the minor, the record amply supports 

the juvenile court’s dispositional order in this case. No abuse of discretion is shown.
22

DISPOSITION

The dispositional order is affirmed.

 DUARTE , J.

We concur:

 ROBIE , Acting P. J.

 MAURO , J.