In re R.V. CA5

Filed 6/1/21 In re R.V. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re R.V., a Person Coming Under the Juvenile
Court Law.

THE PEOPLE, F081404

Plaintiff and Respondent, (Super. Ct. No. JJD071717)

v.
OPINION
R.V.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. John P.
Bianco, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Robert Gezi and Julie
A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
Appellant R.V., a minor who was born in 2004, admitted committing felony
second degree robbery (Pen. Code, § 211). He further admitted personally using a
firearm in the commission of the crime (Pen. Code, § 12022.53, subd. (b)). In May 2020,
the juvenile court committed appellant to a long-term program of 24 months. The court
set the maximum period of confinement at 16 years eight months.
Appellant subsequently filed a petition seeking to modify the disposition to a
shorter program. Appellant highlighted both his improved behavior while in custody and
concerns surrounding the coronavirus disease 2019 (COVID-19). The court denied the
petition.
Appellant raises two issues on appeal. We reject his claim the juvenile court
abused its discretion in denying his petition to modify the disposition.1 However, we
agree with the parties that appellant’s maximum period of confinement must be reduced
by four months. We direct the court to amend the disposition in that regard. In all other
respects, the orders appealed from are affirmed.

1 On July 7, 2020, appellant filed a notice of appeal. The following day, he filed his
petition in the juvenile court seeking modification of the disposition. On July 28, 2020,
the juvenile court heard and denied the motion to modify the disposition. On February
11, 2021, appellant filed in this court a motion to construe his notice of appeal as taken
from the July 28, 2020, denial of his petition to reconsider the disposition. On February
22, 2021, this court granted that motion and we deemed the appeal, filed on July 7, 2020,
to be taken from the July 28, 2020, denial of his petition to reconsider under Welfare and
Institutions Code section 778.

2.
 DISCUSSION
I. Appellant Has Forfeited His Claim The Juvenile Court Abused Its Discretion
In Denying His Petition For Modification; In Any Event, The Claim Fails On
Its Merits.
Appellant contends the juvenile court abused its discretion because it failed to
consider COVID-19 when denying his petition to modify the disposition. He seeks a
remand so the court can reconsider the petition.
A. Background.
On May 14, 2020, appellant was committed to juvenile hall for 24 months in a
long-term program. On July 8, 2020, he filed a petition in the juvenile court seeking a
shorter program. He emphasized his good behavior in the approximate six weeks he had
been in the long-term program. He also noted that on June 26, 2020, the local sheriff’s
office had announced that COVID-19 had broken out in the jail facilities, and 11 inmates
had tested positive. In his petition, appellant acknowledged that nothing showed
COVID-19 had yet to infiltrate the juvenile detention facility. However, he argued the
court should “act now to reduce the in custody population and reduce the risk of
widespread infection within the facility.”
On July 28, 2020, the juvenile court conducted a hearing regarding the petition.
The court noted it had received the petition. During the hearing, appellant’s counsel
made no additional arguments, but appellant personally read a letter to the court
explaining why he wanted to “either be released into aftercare or have a shorter
program.” Appellant acknowledged he had “messed up on probation” and he took “full
responsibility” for his actions. He explained he was “older and wiser,” and he asserted he
would “stay out of trouble” if released from custody. He knew he needed to stay home,
focus on school and avoid “bad influences” from the streets.
After appellant finished speaking, the juvenile court asked the attorneys if they
had anything further to add. Both declined. The court explained why it believed a long-

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term program remained the proper disposition. The court noted appellant had previously
been in a short-term program, but he had violated probation by not going to school.
Appellant then “picked up a new very serious offense” when he “used a weapon to steal
beer.” The court stated appellant had been involved in gangs, and the long-term program
would provide education on the negative effects of being involved in a gang. Finally, the
court commented that appellant had not been attending school when he was in the
aftercare program. The court stated it had “a little bit more control” with a long-term
program to ensure appellant could move forward and graduate from high school. The
court denied the petition.
B. Analysis.
Appellant argues the juvenile court abused its discretion because it failed to
consider his concerns regarding COVID-19. He asks us to remand this matter so the
juvenile court can reconsider his petition. In contrast, respondent contends appellant has
forfeited any argument the court failed to consider COVID-19. In the alternative,
respondent argues it is presumed the court considered that issue, and respondent asserts
the court did not abuse its discretion.
We agree with respondent and we reject appellant’s arguments. We conclude
appellant has forfeited this claim; in any event, it also fails on the merits.
1. This claim is forfeited.
We reject appellant’s assertion that COVID-19 was the “main concern” of his
petition seeking modification of the disposition. During oral argument, appellant did not
raise COVID-19 as a possible ground for granting the petition. Instead, appellant focused
on his changed behavior while in custody at juvenile hall. After appellant personally read
his letter to the court, the judge asked appellant’s counsel if she had anything to add. She
did not raise any additional arguments. The juvenile court responded to the issue raised

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at the hearing. It denied the petition because it felt appellant needed more time in the
long-term program to address his behavioral issues.
Under these circumstances, appellant has forfeited his claim the court failed to
consider his COVID-19 argument. Appellant never asked the juvenile court during the
hearing to comment on that issue. He did not alert the court he wanted that specific issue
expressly discussed in open court, and he did not give the court an opportunity to correct
a potential error. (People v. Valdez (2012) 55 Cal.4th 82, 143 [applying this standard in
the context of a ruling on a motion to exclude evidence]; People v. Ramos (1997) 15
Cal.4th 1133, 1171 [applying this standard in the context of ruling on objections in
limine].) Consequently, it is appropriate to invoke the forfeiture doctrine in this situation,
and this claim fails. In any event, even if forfeiture did not occur, this claim also fails on
the merits.
2. This claim fails on its merits.
Based on a “change of circumstance” or new evidence, a juvenile court may
change, modify, or set aside any previous order. (Welf. & Inst. Code, § 778,
subd. (a)(1).) In ruling on such a petition, the juvenile court should consider “whether
there has been a substantial change in the circumstances warranting a modification or
termination.” (In re Corey (1964) 230 Cal.App.2d 813, 831.) An abuse of discretion
standard is used to review a juvenile court’s order denying modification. An abuse must
be clearly established. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704; In re Corey,
supra, 230 Cal.App.2d at p. 832.)
Even if forfeiture did not occur, appellant’s claim fails on the merits. The court
was justified to continue appellant in the long-term program.
Appellant’s juvenile record started in 2018 when he admitted allegations of
misdemeanor possession of a concealed firearm by a minor; misdemeanor battery; and
misdemeanor manufacturing of a weapon. At the disposition hearing in September 2018,

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appellant was declared a ward of the court. He was placed on probation and ordered to
reside in the home of his parents.
In December 2018, appellant admitted the following six violations of probation:
(1) failing to contact the probation office to schedule an interview; (2) failing to obey his
parents; (3) failing to keep the probation officer informed of his personal information;
(4) failing to attend school regularly; (5) possessing a prohibited weapon; and (6) not
abiding by curfew. The juvenile court continued appellant on probation in the custody of
his parents. Appellant was placed on electronic monitoring.
On January 2, 2019 (about six days later), the district attorney filed a juvenile
petition alleging appellant had committed misdemeanor vandalism by damaging and
destroying the electronic monitor. The following day, appellant admitted that allegation.
Later that month, the juvenile court again released appellant on electronic monitoring,
ordered him to begin anger management counseling immediately, and a disposition
hearing was set in February 2019. At the February disposition hearing, appellant
represented he had enrolled in anger management counseling. The court placed appellant
on probation to reside with his parents without electronic monitoring.
In June 2019, the district attorney filed another notice of the following four alleged
violations of probation: (1) failure to attend school regularly; (2) failure to obey his
parents; (3) failure to abide by curfew; and (4) failure to report to the probation office as
ordered. The next day, appellant admitted the violations. Appellant was ordered to
remain in custody pending disposition.
In June 2019, with disposition of the most recent probation violations above still
pending, the district attorney filed another juvenile wardship petition. In July 2019,
appellant admitted he had driven a motor vehicle under the influence of alcohol, and he
had driven without a license. The court committed appellant to a short-term program for
180 days, with the aggregate maximum term of confinement set at two years two months.

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 In October 2019, appellant completed the short-term program. He was released to
an aftercare program, subject to electronic monitoring. In November 2019, the district
attorney filed another notice of the following five alleged probation violations:
(1) failing to following the directions of probation and his parents; (2) failure to attend
school regularly; (3) failure to abide by curfew; (4) failure to attend counseling; and
(5) failure to keep probation advised of his whereabouts, and his current whereabouts
were unknown. Later that same month, appellant admitted those probation violations.
The juvenile court released him on home supervision.
In April 2020, the district attorney filed the wardship petition that resulted in
appellant’s placement in the long-term program. On the day that petition was filed, the
juvenile court removed appellant from the home of his parents and ordered he remain in
custody pending adjudication. Later that month, appellant admitted he had committed
second degree robbery with a firearm enhancement. In May 2020, the court committed
appellant to a long-term program in juvenile hall for 24 months. It was shortly thereafter
when appellant filed his petition for modification of that disposition.
Based on appellant’s record and his behavior, the juvenile court did not abuse its
discretion in denying the petition. The court’s concern was justified that appellant had
not spent enough time in the long-term program. The court was clearly motivated to
provide the care, treatment and guidance which was in appellant’s best interest. The
court also held him accountable for his past behavior.
Although the juvenile court did not expressly address COVID-19, that is not
sufficient grounds to remand this matter for a further hearing. The COVID-19 issue had
been raised in the written petition, which the court indicated it had received. It is
reasonable to infer the court considered that issue before denying the petition. In any
event, appellant acknowledged in his petition that COVID-19 had yet to infiltrate juvenile

7.
hall. Under these circumstances, the juvenile court acted well within its discretion in
denying the petition.2
Based on this record, a manifest abuse of discretion is not present. The court acted
in appellant’s best interest, and circumstances had not changed warranting a modification
of the disposition. (Welf. & Inst. Code, § 778, subd. (a)(1); In re Corey, supra, 230
Cal.App.2d at p. 831.) Accordingly, we will not disturb the juvenile court’s order, and
this claim fails.
II. Appellant’s Maximum Period Of Confinement Must Be Reduced By Four
Months.
The parties agree, as do we, that appellant’s maximum period of confinement is
erroneous. The juvenile court set it at 16 years eight months. It must be reduced by four
months.
Appellant’s 2020 second degree robbery (Pen. Code, § 211) was the principal
offense used to calculate his maximum period of confinement. Along with the firearm
enhancement, the principal offense amounts to 15 years of confinement. The probation
report added subordinate terms to that principal term. The subordinate terms came from
the prior juvenile petitions.3 In adding the subordinate terms, the probation report made
two errors.
First, the report incorrectly stated that appellant’s 2018 misdemeanor violation of
possessing a pistol, revolver or other firearm (Pen. Code, § 29610) carried a jail term of
one year. This was erroneous because the maximum period of confinement for that

2 In his briefing filed with this court, appellant cites statistics related to COVID-19
and its impact in Tulare County and the City of Visalia. Those statistics do not
demonstrate that the juvenile court abused its discretion.
3 When aggregating multiple counts and previously sustained petitions in a juvenile
matter, “the maximum confinement term is calculated by adding the upper term for the
principal offense, plus one-third of the middle term for each of the remaining subordinate
felonies or misdemeanors.” (In re David H. (2003) 106 Cal.App.4th 1131, 1133–1134.)

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misdemeanor was six months. (Pen. Code, § 19 [every misdemeanor offense is
punishable by imprisonment in the county jail not exceeding six months if a different
punishment is not prescribed by any other law]; Pen. Code § 29610 [no punishment is
prescribed for this violation].) As a result, the maximum period of confinement appellant
could receive for that subordinate term was two months, which represents one-third of the
six-month sentence. The probation report improperly added four months for that
subordinate term.
The probation report also made a mathematical error when adding up appellant’s
subordinate terms from his prior juvenile petitions. The report calculated a total of one
year eight months. We agree with the parties the report incorrectly added two months to
the maximum term of confinement.
When the two mistakes are rectified, respondent is correct that appellant’s
maximum period of confinement is 16 years four months, not 16 years eight months. We
will direct the court to modify the disposition in that regard.
DISPOSITION
We strike that portion of the juvenile court’s disposition that set appellant’s
maximum period of confinement at 16 years eight months. The court shall amend its
order to reflect that appellant has a maximum period of confinement of 16 years four
months. The court shall have its corrected disposition order forwarded to any necessary
authorities. In all other respects, the orders appealed from are affirmed.

LEVY, Acting P.J.
WE CONCUR:

POOCHIGIAN, J.

SNAUFFER, J.

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