Filed 11/26/14 In re G.O. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re G.O., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                          A141020

         Plaintiff and Respondent,                                   (Solano County
v.                                                                   Super. Ct. No. J40306)
G.O.,
         Defendant and Appellant.


         Appellant G.O. admitted to allegations in a juvenile wardship petition that he
inflicted corporal injury on a spouse or cohabitant. The juvenile court found the offense
was a felony, declared a wardship, placed appellant on probation, and ordered him to
complete a nine-month program at Changing Paths. The court further ordered that if
appellant failed to comply with the program after he turned 18 years of age, it would
recommend he serve the remainder of his time in county jail.
         Appellant contends a county jail term is unauthorized by law. Respondent moves
to dismiss the appeal for lack of ripeness, while conceding the juvenile court’s order must
be reversed if this court reaches its merits. We deny the motion to dismiss and reverse
the judgment.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
       The following facts are drawn from reports prepared by the probation department:
       Appellant’s girlfriend (also the mother of their five-month-old daughter) reported
to police that during the early morning hours of November 30, 2013, appellant began
yelling at her about talking to other guys. He threatened to kill her and began to strangle
her. She did not lose consciousness, but was unable to breathe. After releasing his
girlfriend, appellant slapped her in the face several times, causing a swollen lower lip and
a bruise to her left eye. He then squeezed scissors around the girlfriend’s right little
finger, causing marks on both sides of the finger, and threatened to cut her finger off.
The girlfriend also sustained cuts to her thumb and shoulder from the scissors.
       According to his girlfriend, appellant drank rum and also smoked marijuana
throughout the following day.1 He was drunk when they went to bed that evening. Their
infant daughter was sleeping on the floor next to the girlfriend’s side of the bed. The
couple argued again regarding her talking to other boys. The argument woke up their
daughter, and she started to cry. Appellant slapped his daughter across the face, leaving a
red mark. He picked the infant up and threw her to the girlfriend. Appellant got back
into bed, telling his girlfriend, “I told you before that if she wakes me up, I’d slap her.”
The girlfriend left with their daughter once appellant fell asleep, and contacted the police.
B. Wardship Proceedings
       A juvenile wardship petition filed on December 3, 2013, pursuant to Welfare and
Institutions Code section 602, subdivision (a), alleged appellant committed, in count 1,
assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); in
count 2, corporal injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)); and in
count 3, child abuse (Pen. Code, § 273a, subd. (a)).




       1
           Appellant told the probation officer he drank a liter of tequila that night.


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       Appellant entered a negotiated admission to count 2 of the petition (corporal injury
to a spouse or cohabitant), and the court dismissed counts 1 and 3. The court found the
offense was a felony.
       Prior to the instant petition, appellant admitted to one count of receiving stolen
property (Pen. Code, § 496) on August 25, 2010. He and two other boys jumped another
boy. The other two boys punched and fought with the victim before stealing his bicycle.
Appellant was declared a ward of the court, placed in the custody of his mother, and put
on probation.
       On November 3, 2010, appellant admitted to one count of making criminal threats
as a misdemeanor (Pen. Code, § 422) and one count of lewd conduct in public as a
misdemeanor (Pen. Code, § 647, subd. (a)) for sexually harassing and threatening a girl at
his school over an extended period. He was placed on probation and ordered to complete
sexual offender counseling. On March 23, 2012, appellant completed his probation and
the juvenile court’s jurisdiction over him ended.
       The probation officer reported in her social study that appellant started drinking
alcoholic beverages when he was nine, and by the time he was detained on these
offenses, was drinking several bottles of tequila during social gatherings. Appellant
began smoking marijuana at age 10 and continued to smoked marijuana on a daily basis.
Appellant had previously been shot in the arm and stabbed several times in his back. He
had several Sureño tattoos.
       In her disposition report, the officer recommended commitment to Changing Paths
for nine months and, if appellant failed to comply with his treatment program there,
service of the remainder of his commitment time in county jail: “There is a serious
concern with the minor’s behavior in the instant offense, and he presents a significant risk
to community safety. The minor accepts minimal responsibility for his actions and the
victim reports a pattern of abuse, which she believes . . . may continue. . . . Changing
Paths will offer a certain degree of community safety, while offering the minor various
cognitive behavioral groups, his education [sic], body conditioning, and Boys to Men
Mentoring. . . . [E]xposure to rehabilitative services may prepare him for his participation


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in a 52-week domestic violence program [after his release from custody]. . . . [¶] . . .
Should the minor fail to comply with the treatment program after his eighteenth
birthday,[2] it is recommended that he serve the remain[der] of his commitment in county
jail.”
         At the conclusion of the contested dispositional hearing, the court ordered the
following disposition: “. . . I will follow the recommendations of the Department. [¶] . . .
[¶] The minor will be adjudged a ward of the Court. [¶] He will be placed on probation,
under the terms and conditions . . . starting on page three [of the written dispositional
order]. . . . [¶] . . . [¶] The minor is committed to the care, custody, and control of the
probation officer for placement in the Juvenile Hall. The minor shall remain in Juvenile
Hall pending further order of the Court. He’s committed to the Solano County Juvenile
Hall for 307 days. [¶] . . . [¶] He shall serve a nine-month commitment to Changing
Paths, with a release date of October 4th, 2014. Should the minor fail to comply with the
program after his 18th birthday, . . . it’s the Court’s intention that the minor serve his
remaining time in county jail.” (Italics added.)
         The January 10, 2014 written dispositional order provided: “Minor to serve a
9 month Commitment to Changing Paths . . . . Should the minor fail to comply with the
program after his 18th birthday . . . , it is recommended that he serve his remaining time
in county jail.”
C. Appellate Proceedings
         Appellant filed a timely notice of appeal from the dispositional order. On June 3,
2014, appellant filed his opening brief in this court challenging the juvenile court’s
dispositional order on the sole ground that the portion concerning a possible commitment
to county jail was unauthorized by law. Respondent filed a motion to dismiss, asserting
the appeal was not ripe because no order committing appellant to county jail had been




         2
        Appellant was within two weeks of his 18th birthday at the time of the
January 10, 2014 dispositional hearing.


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made. We deferred consideration of the motion to dismiss to the decision of this appeal
on its merits.
                                     II. DISCUSSION
       Welfare and Institutions Code section 202 states: “Minors under the jurisdiction
of the juvenile court as a consequence of delinquent conduct 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 this chapter.” (Id., § 202, subd. (b).)
Subdivision (e) of section 202 states the term “punishment” means the imposition of
sanctions and specifies such sanctions “may include . . . [¶] . . . [¶] . . . Commitment of
the minor to a local detention or treatment facility, such as a juvenile hall, camp, or
ranch,” or to “the Division of Juvenile Facilities, Department of Corrections and
Rehabilitation.” (Id., subds. (e)(4), (5).) The case law has uniformly held that placing a
juvenile ward in an adult facility such as county jail is not authorized by the juvenile
court law. (See In re Jose H. (2000) 77 Cal.App.4th 1090, 1099–1100 [juvenile court
may not commit an 18-year-old ward to county jail]; In re Kenny A. (2000) 79
Cal.App.4th 1, 7–8 [commitment of 18-year-old ward to juvenile hall with the
understanding he would be transferred to county jail is not authorized by the wardship
statute]; In re Charles G. (2004) 115 Cal.App.4th 608, 618 [agreeing with Kenny A. and
Jose H. that transfer of 18-year-old ward to county jail not authorized by law].)
       In the face of the foregoing authorities, respondent concedes that if this court
reaches appellant’s claim on its merits, the juvenile court’s dispositional order should be
reversed. The concession is well-taken. Accordingly, the issue raised by respondent’s
motion to dismiss—whether the challenged portion of the juvenile court’s order is ripe
for appellate review before any commitment to county jail has been ordered—is
dispositive.




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       Respondent’s position is that any jail commitment is purely speculative at this
point because appellant has not been terminated from the Changing Paths program,3 and
assuming he was terminated, the juvenile court could not enter an order committing him
to county jail without first holding a probation violation hearing as required by Welfare
and Institutions Code section 777 and entering a new dispositional order. (See In re
Jose T. (2010) 191 Cal.App.4th 1142, 1147–1150 [dispositional modification following a
probation violation requires a noticed hearing and individualized, reasoned consideration
of the circumstances existing at the time].) Further, respondent maintains the juvenile
court’s dispositional order was merely tentative, stating the court’s “intention” to order a
jail commitment should appellant be terminated from Changing Paths, leaving room for
the court to change its mind about any such commitment if appellant failed in the
program. Because all of these contingencies render any future jail commitment
speculative and uncertain, the minor’s appeal is premature according to respondent, and
seeks in essence an impermissible advisory opinion about how the law would apply to a
hypothetical state of facts. (See Pacific Legal Foundation v. California Coastal Com.
(1982) 33 Cal.3d 158, 170–171 (PLF) [ripeness doctrine generally prevents courts from
issuing purely advisory opinions on matters before the controversy between the parties
has become sufficiently “definite and concrete”].)
       In PLF the Supreme Court held that evaluating ripeness requires consideration of
“ ‘both the fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration.’ ” (PLF, supra, 33 Cal.3d at p. 171, italics omitted.)
Thus, if a case presents a clear-cut issue of law and a delay in deciding it would place one
or more parties at risk of suffering a penalty if they guessed wrong about how the legal
issue would ultimately be decided, this would weigh against deferring a decision to a
later point. (See id. at pp. 171–172.) On the other hand, if the case presents complex

       3
        Appellant’s release date from Changing Paths was October 4, 2014, with an
annual review scheduled for October 8, 2014. Because appellant remains on probation
and subject to the court’s January 10, 2014 dispositional order, the legality of the order is
not moot.


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questions about how the law would apply in different factual scenarios, and the effects of
delay are not felt in any concrete way by the challenging party, the case may be deemed
not ripe for determination. (Id. at pp. 172–173.)
       In our view, both factors weigh in favor of deciding the present appeal on the
merits. As discussed, the issue of whether a county jail term may be imposed on
appellant involves no complicated analysis of how the law might or might not apply in
the future to a factual record that is still developing. The issue is purely one of law and
its application in this case is wholly undisputed. Here, the only factor potentially
weighing against adjudication of the appeal on the merits is whether a delay in deciding
the legal issue would work a hardship or is felt in any concrete way by the appellant. We
answer that question in the affirmative. The dispositional provision in issue is in
practical effect a stayed or suspended order of commitment to county jail. The well-
recognized purpose of stayed commitment orders is to provide a threat or warning to the
minor to encourage his reform. (See In re Kazuo G. (1994) 22 Cal.App.4th 1, 9; In re
Ronnie P. (1992) 10 Cal.App.4th 1079, 1090, fn. 8.) The value of such a “sword of
Damocles is that it hangs—not that it drops.” (Arnett v. Kennedy (1974) 416 U.S. 134,
231 (dis. opn. of Marshall, J.).) The practice of staying commitment orders to promote
compliance with juvenile probation terms has generally won approval from the appellate
courts as long as lifting of the stay is not made automatic upon violation of probation.
(See In re Jose T., supra, 191 Cal.App.4th at p. 1147.) To this stipulation we would add
that the commitment stayed must also be one legislatively sanctioned. Where, as here,
the court has imposed a form of coercion the Legislature has impliedly deemed to be
inconsistent with the purposes of the juvenile law, the coercion itself must be deemed an
undue hardship regardless of whether the order of commitment to county jail ultimately
comes to pass. In our view, the order is therefore ripe for review on this appeal.
       Furthermore, the ripeness doctrine “should not prevent courts from resolving
concrete disputes if the consequence of a deferred decision will be lingering uncertainty
in the law.” (PLF, supra, 33 Cal.3d at p. 170.) The court in this case followed the
probation department’s recommendation. If we adopted respondent’s view of ripeness,


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we may presume the probation department will continue to make similar
recommendations for stayed or presumptive county jail commitments until the issue
becomes ripe in this or another case. We are unwilling to countenance such a delay in
clarifying for the department and the juvenile court that the form of disposition the
department recommended in this case is not authorized by law.
       For these reasons, we will deny the motion to dismiss and reverse the juvenile
court’s dispositional order on the grounds a commitment to county jail was not
authorized by law in this case.
                                   III. DISPOSITION
       The motion to dismiss is denied. The judgment is reversed and the matter is
remanded to the juvenile court to reconsider its dispositional order in light of the views
expressed in this opinion.




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                                _________________________
                                Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.




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