In re D.F.
Filed 1/31/14 In re D.F. CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(San
Joaquin)
----
In re
D.F., a Person Coming Under the Juvenile Court Law.
C072949
THE
PEOPLE,
Plaintiff and
Respondent,
v.
D.F.,
Defendant and
Appellant.
(Super. Ct. No. 69219)
The minor, D.F., admitted committing
first degree burglary, conspiracy to
commit burglary, vandalism, possession of burglary tools, and misdemeanor
assault. The juvenile court placed the
minor on deferred entry of judgment (DEJ), but subsequently found that the
minor violated the terms of his DEJ. At
the dispositional hearing, the juvenile court adjudged the minor a ward of the
court and placed him on probation subject to various conditions, including 60
days in juvenile hall with 30 days of credit.
The minor now contends (1) the
juvenile court erred in refusing to hold a hearing on whether DEJ should have
been revoked, (2) denial of the hearing violated various
is an error in the disposition order.
We conclude (1) the juvenile court held
a hearing when it revoked DEJ, (2) the hearing complied with federal and state
constitutional provisions, and (3) the disposition order -- the juvenile
detention disposition report -- must be corrected.
We will order a
disposition order and affirm the judgment.
BACKGROUND
The minor and an accomplice entered
a Stockton home on April 24,
2012, with
the intent to commit a theft. The minor helped
damage the home’s front door and damaged an alarm system and a console in the
kitchen. He took electronics, a backpack
and over $950 in cash. He was found in
possession of a screwdriver and tin snips. The minor also tried to hit a person who lived
near the home.
The minor admitted allegations in an
amended delinquency petition (Welf. & Inst. Code, § 602) that he
committed first degree burglary (Pen. Code, § 459),
(§ 182, subd. (a)(1)), grand theft (§ 487, subd. (a)), felony
vandalism (§ 594, subd. (b)(1)), two counts of possession of burglary
tools, a misdemeanor (§ 466), misdemeanor vandalism (§ 594), and
misdemeanor assault (§ 240). The
juvenile court placed the minor on DEJ.
However, on November 19, 2012, the probation officer filed a request for an order to show cause
(OSC) asserting that the minor violated the terms of his DEJ. The request alleged the minor failed to follow
curfew, was not performing satisfactorily in school, did not follow the instructions
of his parent or school
officials, and left his residence without returning on November 2,
2012. The minor had a number of school suspensions. One day, the minor showed up at school while
on suspension. The minor also failed to
comply with repeated warnings not to violate the school’s colors policy. When his disruptive behavior was addressed,
the minor announced in the classroom that he would come back and get his
revenge if he was kicked out of school.
The minor denied the allegations at
the arraignment on December 11, 2012. Minor’s counsel asserted that the parents
failed to pick the minor up from his aunt’s house, and that other
supportive than his parents. According
to counsel, the minor’s father was “the one who is causing all the problems.†The juvenile court found a prima facie case
for violating the DEJ had been established, and temporarily placed the minor
with the probation department.
A hearing on the matter was held on December 13, 2012. The
minor’s father and aunt were present. The
juvenile court told the father about allegations from the probation department
that he was not willing to take the minor home and did not want him back in the
house. According to the father, “we had
an incident prior to him being picked up to where he didn’t want to do nothing.
He’s coming and leaving when he wants
and stuff.†The parents tried to talk to
the minor, but stated: “We don’t know
what the issues are. We don’t know what
he’s going through, but we also have other kids, and like I said, he’s coming
and going and we don’t know what’s outside, where he’s going, what he’s doing. So when he comes home it becomes very
irritating. I have other kids. I’m trying to keep them on board. So here we are.â€
The juvenile court said it would have
to do a child protective services (CPS) referral because the minor could not
stay in juvenile hall until he was 18. Either
another family member or some other home would have to be found for the minor. The father replied, “we are not saying that he
can never come home, but right now, I mean, what do we do?†According to father, the minor was not getting
any better and not going to school.
The juvenile court had the minor’s
school records except for the most recent ones, so it was going to order the November
school records. When the juvenile court
asked the minor for his permission to get his school records, minor’s counsel
replied that “he’s indicating that he wasn’t in school during the month of
November because they wanted to switch him to Insight, but he needed to go with
his parents to the school to get him switched over to Insight. So you can -- I don’t think he has a problem
with you getting those records. He just
wanted you to know that that’s what they’re going to say.â€
When the juvenile court asked the
father whether they tried to switch the minor to another school, he said,
“well, we had a meeting at the school with his teacher, and he just told her
‘I’m not going to go to school. I don’t
want to go to school. I don’t want to be
in that program.’ So at that point in time
my wife, we had to throw our hands up. We
can’t -- you have to go to school. So
that’s the law.â€
The juvenile court reiterated its
intent to get the recent school record and a CPS referral for the minor. Father then indicated the parents could change
their opinion if the minor was willing to change, but “Juvenile Hall is a good
place for him because I know he’ll be safe. Stockton is really dangerous.â€
The juvenile court asked if the
minor went to school while he was in juvenile hall. Minor’s counsel replied, “He’s been going
great,†and the probation officer agreed. Counsel told the court she believed her client
had no write ups in juvenile hall, but the probation officer said he had one
for not keeping his room clean. The
juvenile court set another hearing on the OSC and DEJ for December 20, 2012, to address the new school records.
At the beginning of the December 20, 2012, hearing, the juvenile court said it had the
minor “on today for further OSC, and we have the DEJ issue was pending.†Both parents were present. The juvenile court obtained contact information
from both parents, who had separate addresses. The juvenile court then expressed its
understanding that an aunt wanted to be at the hearing, and asked the minor’s
counsel for what purpose. Counsel said
she was unsure which aunt was there, as she expected both aunts to be present. The parents said only one of the aunts was
related. The juvenile court asked the
parents if the related aunt could attend. The parents said no, and the juvenile court
excluded the aunt “at this time,†as “we need to deal with this issue first.â€
The juvenile court noted it had the CPS
report and asked if everyone had one. Minor’s
counsel said she got it this morning and had some comments about it. The juvenile court explained CPS did not feel
they wanted “to get involved at this point,†and asked minor’s counsel for her
response. Minor’s counsel said she
talked to her client, who told her the person who interviewed him talked to him
for about 15 minutes and was not interested in what he had to say. The minor told counsel the interviewer kept
saying, “ ‘if you just go home and do what you have to do, you wouldn’t be
here.’ †Counsel said the report
was inaccurate as it listed the father as living at the address for one of the aunts,
and the phone number for him was wrong as well.
According to counsel, the parents
were not separated; the father lived with the mother full time except on
occasion to get a break on the lease. Regarding
allegations of abuse, minor’s counsel said the report was inaccurate. The CPS investigation of the allegations of
abuse had been impeded by the mother, who falsely said the father did not live
there.
Counsel said she knew of two
relatives and a friend of the minor’s family who previously cared for the minor
and were willing to do so again because the minor was not being cared for at
the family home. Counsel told the
juvenile court that on August 22, the probation officer called on the
minor at his aunt’s house. According to
counsel, the minor indicated several times that “he knows that his parents are
sabotaging him on DEJ.†The minor wants
to be in an environment where he can do well, which was not at his parents’
house where the father smokes marijuana and plays video games all day. Counsel said the relatives and friend who had
cared for the minor “are willing and able to support him and provide a much
more constructive environment for him.â€
The prosecutor replied that the
allegations from minor’s counsel are more a family court matter than addressing
the minor’s “conduct following the orders of the Court. I guess it sounds like they want to contest
it, the violation.†The juvenile court said,
“No, it’s -- they don’t get a hearing. This
is a DEJ violation.†The prosecutor responded,
“That is what I am saying. It’s like
they want to contest the DEJ violation.†The juvenile court asked the prosecutor if she
had any further comments. The prosecutor
responded, “Just that it speaks to itself. If he’s not at home when he is supposed to [be
home] and he is not following Court orders, it is a DEJ violation.â€
Minor’s counsel interjected, “if
he’s at home and there’s marijuana at the home, he’s going to get violated.†According to counsel, the minor told the
probation officer he needed to go somewhere else to be safe, but the probation
officer “forced him to go home, and this is what happened.†The juvenile court told counsel, even if it
assumed what she was saying about the minor’s home was true, “I have three
pages of school violations where he’s been suspended, where he’s bullying
people, and he’s not following dress codes, and that alone is a DEJ violation. And so what I’m going to do is I am going to
lift the deferral on his DEJ. The
petition is sustained.â€
The juvenile court indicated that
for the disposition hearing, it would have the probation department look into
the family problems. The court
reiterated the minor was not successful on DEJ as he was “completely
misbehaving at school, even if you cut out the family problem.†Minor’s counsel responded, “It is a function
of the family problems,†to which the juvenile court said, “Are you going to
continue to argue with me?†Minor’s
counsel said, “No. I’m just commenting that I think that the school problems
are a direct function of the dysfunction at his home.†The juvenile court then said it had already
ruled, and set a disposition hearing.
The disposition report said CPS
reported three prior referrals: two 2010
referrals of physical abuse by the father against the sister, both
unsubstantiated, and a substantiated
2002 referral for physical abuse of the minor’s sister by the minor’s
mother. The minor had nine negative
reports from staff since being booked into juvenile hall on December 9,
2012. The minor said that he would like
to be released to his aunt, as his home was not really a healthy environment. The minor also said the father brings guns and
drugs into the home and used to be abusive. The mother was willing to take the minor, who
lived with her before removal. According
to the mother, the father did not live with her, but visited often and was
available when needed. The aunt
indicated she was willing to take care of the minor if no one was available,
but she was unwilling to overstep parental authority if they wished to care for
the minor.
At the disposition hearing, the
minor’s counsel objected only to placing the minor under any sort of house
arrest, “given the background that’s previously been provided to the Court.†No other matters were addressed before the
juvenile court ordered disposition.
DISCUSSION
I
The minor contends the court committed
prejudicial error in rescinding his DEJ without a hearing on whether DEJ should
be revoked. We disagree.
Welfare and Institutions Code section 793,
subdivision (a) states in pertinent part: “If it appears to the prosecuting attorney,
the court, or the probation department that the minor is not performing
satisfactorily in the assigned program or is not complying with the terms of
the minor's probation, or that the minor is not benefiting from education,
treatment, or rehabilitation, the court shall
lift the deferred entry of judgment and schedule a dispositional hearing.†(Italics added.)
According to the minor, the juvenile
court focused on the statute’s phrase “shall lift†and terminated his DEJ without
a hearing because it “appear[ed]†to the prosecutor or the probation department
that the minor was not performing satisfactorily, complying with probation, or
benefitting from the program. The minor
contrasts this with the two other statutory grounds for terminating DEJ. Under Welfare and Institutions Code section 793,
subdivision (a), the juvenile court “shall enter judgment and schedule a
dispositional hearing†if a Welfare and Institutions Code section 602
petition is sustained after DEJ finds the minor committing one felony or two or
more misdemeanors on separate occasions. Subdivision (a) of section 793 further
provides that the juvenile court “shall enter judgment and schedule a
dispositional hearing†after a subsequent sustained petition for one
misdemeanor or two or more misdemeanors arising from the same occasion. According to the minor, while it makes sense
to terminate DEJ after a subsequent conviction for a new offense, it is
senseless to require the juvenile court to terminate DEJ “where no finding of
guilt or any equivalent has occurred simply because it ‘appears,’ either to the
court or the prosecutor or probation, that the minor is not complying with or
benefiting from the DEJ program.â€
The minor contends Welfare and
Institutions Code section 793 should be construed to require an
evidentiary hearing before terminating DEJ. He additionally notes the rules of court
require such a hearing.
California Rules of Court, rule
5.800(h)
title="">[2] states in pertinent part:
“(2)
Before the date of the progress hearing, on the court's own motion, or
if the court receives a declaration from the probation department or the
prosecuting attorney alleging that the child has not complied with the
conditions imposed or that the conditions are not benefiting the child, or if
the child is found to have committed a felony offense or two or more
misdemeanor offenses on separate occasions, the court must schedule a hearing
within 10 court days. [¶] (A) At the hearing, the court must follow the
procedure stated in rule 5.580(d) and (e) to determine if the deferred entry of
judgment should be lifted, with a disposition hearing to be conducted
thereafter.â€
title="">[3]
The minor claims he was not accorded
a hearing as required by statute and the rules of court. According to the minor, the juvenile court did
not give his counsel the opportunity to show that his difficulty in complying
with DEJ “were a ‘function of the dysfunction at his home.’ †From this, the minor concludes he “was allowed
no hearing whatsoever on the question whether the juvenile court should ‘lift’
the DEJ.â€
The OSC alleged two categories of
violations, failure to comply with parental authority and misbehavior at
school. The juvenile court addressed
both issues at the December 13 and 20 hearings.
At those hearings, it interviewed the father regarding family issues, allowed
the minor’s counsel to raise arguments and present allegations regarding the
family’s alleged interference with the minor’s progress on DEJ, and noted the
school report documenting the minor’s misbehavior. While the minor did not present evidence
regarding his family and the juvenile court cut short counsel’s arguments on
this line, the minor was not deprived of his opportunity to contest the
allegations against him or the right to have the prosecution meet its burden of
proof. By ruling that the school records
established a violation even assuming counsel’s statement’s were true, the
juvenile court in effect allowed minor’s counsel to make an offer of proof
regarding the minor’s family, but found that evidence irrelevant as to whether
the minor violated the juvenile court’s orders through his behavior at school.
It is true the juvenile court
incorrectly said “they don’t get a hearing. This is a DEJ violation†after the prosecutor
said it appeared the minor wished to contest the matter. But that does not show a failure to terminate
the DEJ without a hearing. The comment
was made after the juvenile court reviewed the school records and after minor’s
counsel had been given an opportunity to address the subject. Immediately after the juvenile court’s
statement, the prosecutor noted that the minor was contesting the DEJ. Asked for further explanation, the prosecutor
said the minor’s failing to stay at home or follow the court’s orders
established the DEJ violation. Minor’s
counsel was again allowed to oppose the violation, asserting the minor would be
violated on his DEJ if he stayed home because of the father’s marijuana use,
and when told of this by the minor, the probation officer forced him to go
home. At this point, the juvenile court
ruled that the school records established a violation even assuming the
statements were true about the minor’s family.
Although the hearings did not have
the formalities of a trial, the juvenile court held hearings on the allegations
that the minor violated his DEJ by not behaving at home and at school. At those hearings, the juvenile court took
evidence and minor’s counsel was able to argue her client’s case. Based on the school records, the juvenile
court implicitly found that the school records supported the school misbehavior
allegations by a preponderance of evidence even assuming the truth of the
allegations made by minor’s counsel. This
procedure satisfied the requirements of rule 5.800 and any statutory right to a
hearing on the DEJ violation.
II
The minor contends the failure to
hold a hearing violated various constitutional provisions. We reject this contention, as it relies
primarily on the mistaken premise that no hearing was held.
The minor asserts terminating his
DEJ without a hearing violated his right to due process. Regarding the issue of eligibility for DEJ, a
minor is entitled to notice and the opportunity to present evidence as a matter
of due process. (In re D.L. (2012) 206 Cal.App.4th 1240, 1245.) The minor was informed of the allegations at
the arraignment on the OSC. As we have
already discussed, he was afforded the opportunity to contest the allegations
in the OSC and present evidence through arguments of counsel accepted as
evidentiary proof by the juvenile court. Due process requires nothing more.
The minor also claims the lack of
hearing violated his Sixth Amendment right to present evidence and effective
assistance of counsel. This argument has
no merit as counsel was allowed to contest the claims and present evidence. The minor’s final constitutional claim, that
the juvenile court violated the separation of powers by terminating DEJ based
on the probation officer’s allegations, is similarly mistaken as it relies on
the mistaken assumption that the court terminated DEJ based on the probation
department’s allegations, when, in fact, the ruling was based on evidence,
specifically the school reports.
III
The parties identify an error in the
disposition order, a document entitled “Juvenile Detention Disposition Reportâ€
prepared by the clerk.
The disposition order incorrectly
says the minor admitted to the offense of receiving stolen property (§ 496,
subd. (a)), but in fact, that allegation was dismissed. We will order a corrected disposition order.
DISPOSITION
The judgment is affirmed. The juvenile court is ordered to prepare a corrected
disposition order (juvenile detention disposition report) reflecting that the
allegation of receiving stolen property (§ 496) was dismissed, and the
juvenile court shall forward a certified copy of the corrected disposition
order to appropriate authorities.
MAURO , J.
We concur:
NICHOLSON ,
Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1] Undesignated statutory
references are to the Penal Code.
name="_ftn2" title="">[2] Undesignated rule references
are to the California Rules of Court.
