People v. Shaun R.

MIHARA, J., Concurring and Dissenting.

My colleagues conclude that appellant Shaun R. is precluded from challenging the weapons probation condition because he did not appeal from the 2008 dispositional order. They agree with the Attorney General’s claim that the weapons condition is “not properly challenged in this appeal” because Shaun “could have challenged” it in an appeal from the 2008 dispositional order. Although I agree that Shaun is precluded from challenging the 2008 dispositional order itself in this appeal from the 2009 dispositional order, I do not agree that Shaun’s appellate *1146challenge to the weapons condition is a challenge to the 2008 order rather than to a provision of the 2009 order.

The juvenile court’s 2008 order declaring Shaun to be a ward of the court and returning him to his parents’ custody included a number of probation conditions, among them the weapons condition. In 2009, the juvenile court issued an order continuing Shaun’s wardship and removing him from his parents’ custody. The 2009 order, which included a number of probation conditions but no weapons condition, also provided that “All prior orders not in conflict remain in effect.”1 In Shaun’s timely appeal from the 2009 order, he challenges, among other things, the constitutionality of the weapons condition, which is the only 2008 probation condition which was “not in conflict” with (or identical to) any of the 2009 probation conditions.2

My colleagues conclude that the “all prior orders” provision in the 2009 order was a “routine continuation of a previous order without change” (maj. opn., ante, at p. 1139) that did not reimpose, adopt, or incorporate by reference the weapons condition in the 2008 order. I disagree. In my view, the “all prior orders” provision in the juvenile court’s 2009 order reimposed any 2008 probation condition that was “not in conflict” with the probation conditions set forth in the 2009 order and thereby made any such probation condition part of the 2009 order, which Shaun could properly challenge in his appeal from the 2009 order. My disagreement with my colleagues stems from their belief that a previous juvenile delinquency dispositional order continues in force after a subsequent juvenile delinquency dispositional order has been entered as to the same juvenile. Their belief reflects a fundamental misunderstanding of the nature of juvenile delinquency dispositional orders.

When a juvenile has already been declared a ward and a dispositional order is therefore in place, additional misconduct by the minor may be alleged in either a new Welfare and Institutions Code section 6023 petition or a section 777 notice. (See In re Michael B. (1980) 28 Cal.3d 548, 552-553 [169 Cal.Rptr. 723, 620 P.2d 173] (Michael); In re Eddie M. (2003) 31 Cal.4th 480 [3 Cal.Rptr.3d 119, 73 P.3d 1115].) “After a new petition is sustained under section 602, ... the court may consider the juvenile’s entire record before *1147exercising its discretion at the dispositional hearing . . . and may rely on prior sustained section 602 petitions in determining the proper disposition and maximum period of confinement.” (Michael, at p. 553.) Disposition of a new section 602 petition “effectively terminate^]” the previous dispositional order on a prior sustained section 602 petition. (In re Ruben M. (1979) 96 Cal.App.3d 690, 699 [158 Cal.Rptr. 197] (Ruben M.), disapproved on another point in Michael, at p. 554.) Because a subsequent dispositional order “effectively terminate[s]” a prior dispositional order, the prior dispositional order does not ordinarily continue to be in force after the entry of the subsequent dispositional order.

“The stated central objective of the law with respect to delinquent children is to provide the ‘care, treatment and guidance which is consistent with their best interest, which holds them accountable for their behavior, and which is appropriate for their circumstances.’ (§ 202, subd. (b).) To determine what is appropriate under a given set of circumstances, a court must review those circumstances every time the minor appears for a dispositional hearing.” (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1087-1088 [12 Cal.Rptr.2d 875], italics added.) “Each time a ward comes before the court, whether the result of a subsequent section 602 or 777 petition, the goal of any resulting dispositional order is to rehabilitate the minor. Thus, a dispositional order should be all encompassing. This may simply require the juvenile court to adopt previous orders of the court or make wholesale changes . . . .” (In re Scott K. (1984) 156 Cal.App.3d 273, 277 [203 Cal.Rptr. 268], boldface & italics added (Scott K.).)

Because the new dispositional order on a subsequent section 602 petition must be “all encompassing” (Scott K., supra, 156 Cal.App.3d at p. 277) and “effectively terminate[s]” (Ruben M., supra, 96 Cal.App.3d at p. 699) the earlier dispositional order on the prior section 602 petition, the new dispositional order in a delinquency case displaces the earlier dispositional order, and the only means available to the court by which the provisions of the earlier order may be continued in force is a provision in the later order incorporating into the later order provisions of the earlier order. The juvenile court’s “all prior orders” provision in its 2009 dispositional order was precisely such a provision. It adopted and reimposed the 2008 weapons condition. Since the weapons condition was reimposed by the 2009 order, Shaun may properly challenge the weapons condition in his timely appeal from the 2009 order.

My colleagues cite no authority for their rejection of my analysis, but they discount my analysis apparently on the ground that the law set forth in the cases I cite above was not part of the holdings in those cases. I readily concede that there is no case with a holding precisely on point. However, the *1148absence of a case with a holding that supports my analysis does not establish that my analysis is invalid. Indeed, it is because the principles upon which I rely are so well accepted that it has never been necessary for an appellate court to publish a decision containing a holding on this point. Unfortunately, my colleagues now publish a decision which discards these principles and substitutes their apparent conclusion that a juvenile court is precluded from incorporating provisions of a prior dispositional order into a new dispositional order by means of an “all prior orders” provision in the new dispositional order. As I have explained, their conclusion would mean that those prior orders would no longer be in force. In this case, where Shaun has a history of involvement with weapons, my colleagues’ conclusion would mean that Shaun would no longer be subject to a weapons condition, which could hardly have been the juvenile court’s intent.

I dissent from my colleagues’ conclusion that Shaun is precluded from challenging the weapons condition because that condition was not part of the 2009 dispositional order.4

Appellant’s petition for review by the Supreme Court was denied January 19, 2011, S187935. Kennard, J., was of the opinion that the petition should be granted.

This provision of the dispositional order was repeated twice more in the order. The second time it read: “ALL PRIOR ORDERS NOT IN CONFLICT WITH TODAY’S ORDERS TO REMAIN IN FULL FORCE AND EFFECT.” The third time it read: “That all previous Orders of the Court not inconsistent with today’s Orders remain in full force and effect.” The fact that this provision was twice repeated suggests that the juvenile court felt that this provision was rather important.

The challenged probation condition reads: “That the minor not own, use, or possess any dangerous or deadly weapons and not remain in any building, vehicle, or the presence of any person where dangerous or deadly weapons exist.”

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

Since my colleagues refuse to allow Shaun to challenge the weapons condition, it would serve no purpose for me to discuss its defects. I note only that the Attorney General concedes that the weapons condition would require modification to correct its unconstitutionality.