People v. James S.

California Court of Appeal May 23, 1978 No. Docket Nos. 31724, 32049Published

Before: Stephens

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Holding. The court held that a juvenile court may modify a disposition order under Welfare and Institutions Code section 777 when a previously ordered 'suitable placement' is unavailable, even in the absence of new misconduct by the minor.

Issues

Whether a section 777 modification requires proof of new misconduct by the minor.
Whether the inability to effectuate a 'suitable placement' order constitutes a failure of the previous disposition's effectiveness under section 777.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The crux of the problem facing us is to decide whether a section 777 modification requires some misconduct upon the part of the minor or whether the inability of the juvenile court to effectuate its own disposition permits the escalation of restriction.”

“When, however, the preferred disposition is in fact nonexistent, i.e., there exists no “suitable placement” facility, then certainly that disposition has failed of effectiveness within the meaning of the section.”

Opinion

STEPHENS, J. —

This appeal follows a commitment of James to the California Youth Authority.

In October 1976, James was found to come

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within the provisions of Welfare and Institutions Code section 602 in that he committed attempted forcible rape. The victim was James’ sister. Following a Youth Authority diagnostic study, James was declared a ward of the court on March 29, 1977, and ordered suitably placed. The court was under the impression that placement at Pride House was possible; that placement was strongly recommended.

On May 24, 1977, a supplemental petition pursuant to Welfare and Institutions Code section 777 was filed alleging that the “suitable placement” disposition therefor made had not been effective in James’ rehabilitation in that: “... Eight placements, among them those present at the screening for difficult-to-place wards, have rejected minor, indicating that due to minor’s legal history and his lack of motivation to help himself they cannot rehabilitate him.”

James demurred to the petition; it was overruled. The allegations of the petition were denied. Following the taking of testimony in support of the petition, James moved for a dismissal of the petition under Penal Code section 1118. The motion was denied. Additional evidence was introduced and, following argument, the petition was sustained.

There is no contention that James did not do the acts alleged in the original section 602 petition. Nor is there any question about the “placement” facilities refusing to accept James under the original disposition order. In addition to the eight facilities referred to in the petition, the bulk of 43 other placement facilities had been contacted without success or ruled out as not available to a youth of James’ age (he was then approximately 18 years old).

The trial judge articulated the issue when he said: “The fact that the minor can’t be placed insofar as I am concerned is the crucial issue here.” Section 777 of Welfare and Institutions code, so far as relevant here, states: “An order changing ... a previous order ... by directing commitment to the Youth Authority shall be made only after noticed hearing upon a supplemental petition, (a) The supplemental petition shall be filed by the probation officer in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the minor.”

People v. James S.

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