In re J.W.
Filed 7/6/12 In
re J.W. CA1/1
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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publication 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 J.W., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
J.W.,
Defendant and
Appellant.
A132442
(San Francisco City &
County
Super. Ct. No.
JW106237)
Defendant and appellant J.W. appeals from a disposition order made
after the juvenile court found true allegations of a Welfare and Institutions
Code section 602 petition alleging defendant committed
§§ 261, 264.1)
title="">[1]
and forcible rape (§ 261, subd. (a)(2)).
The court placed defendant on supervised home probation, with 10
weekends in juvenile hall, stayed, pending his successful completion of a
juvenile sex offender treatment program.
Defendant contends he was entitled to a jury trial at the
potentially faces commitment to the Department of Juvenile Facilities (DJF) and
upon discharge or parole therefrom would be subject to registration requirements
under section 290.008
name="_ftnref2" title="">[2]
and residency restrictions under section 3003.5.
holds there is no constitutional right to
jury trial in juvenile proceedings, but contends this authority did not
consider lifetime registration requirements and residency restrictions, and the
seemingly blanket rule that there is no jury trial right in juvenile
proceedings should be revisited under equal protection and due process
theories. He further points out the
California Supreme Court has granted review on the issue he raises in
2011, S187897.
title="">[4] The Attorney General contends the issue
raised is not ripe for review since defendant was not committed to and is not
facing parole from DJF, and this court is, in any event, is bound by existing
precedent. Even assuming the issue
defendant raises is properly before us, we agree existing precedent controls
and affirm the disposition order.
Background
We recite only the facts relevant to the issue before us. (See People
v. Garcia (2002) 97 Cal.App.4th 847, 850, fn. 1.) On April 19, 2011, the San Francisco District
Attorney filed a delinquency petition (Welf. & Inst. Code, § 602,
subd. (a)) alleging defendant, then aged 12, participated with two other male
classmates, in raping a female classmate.
Prior to the jurisdictional hearing, defendant moved for a jury
trial on the ground he potentially faced lifetime sex offender registration
requirements and residency restrictions.
Defendant conceded the juvenile court was bound “under the doctrine of
but preserves this argument for appeal.â€
The juvenile court denied the motion, agreeing Nguyen made clear there is no right to jury trial in a juvenile
case.
Defendant did not testify at the jurisdictional hearing. One of the other alleged participants, J.G.,
did so, and so did the victim. At the
conclusion of the hearing, on June 13, 2011, the juvenile court found the
allegations to have been sustained.
Defendant filed a notice of appeal from the jurisdiction order on June
24, 2011.
At the disposition hearing on July 29, 2011, both the prosecution
and defense counsel agreed defendant’s performance on home detention during the
proceedings had been exemplary.
weekends of juvenile hall time sought by the prosecution all be stayed; the
prosecution asked that two weekends be imposed and the balance stayed. In recognition of defendant’s strong
performance at school, compliance with home detention, and continuing support
from his mother, the juvenile court declared wardship, stayed all 10 weekends
in juvenile hall and placed him on probation on numerous terms and conditions,
including that he complete the juvenile sex offender treatment program.
On December 23, 2011, defendant’s appellate counsel advised the
court his notice of appeal was premature and should have been filed following
the disposition order, and requested augmentation of the record to include the
disposition proceedings. On
January 10, 2012, the court granted the augmentation request and deemed
defendant’s notice of appeal to have been premature.
Discussion
As we stated above, defendant raises
one issue on appeal—that he was entitled to a jury trial during the
jurisdictional hearing because he potentially faces commitment to the DJF, and
upon discharge or parole therefrom would be subject to sex offender registration
requirements and residency restrictions.
(§§ 290.008, 3003.5.)
Although he took the position in the juvenile court that
(Nguyen), is binding precedent on the
issue of jury trial in juvenile proceedings (and he was “preserv[ing] this
argument for appealâ€), he urges in his briefing on appeal that
address the circumstances presented here, i.e., where a juvenile faces
potential lifetime sex offender registration requirements and residency
restrictions.
We conclude defendant’s representation to the juvenile court was
correct—that Nguyen is controlling on
the salient issue. In
United States Supreme Court “has concluded that the Constitution does not
afford the right to a jury trial in juvenile proceedings.†(Nguyen,
supra, 46 Cal.4th at
p. 1019, citing McKeiver v.
Pennsylvania (1971) 403 U.S. 528 (McKeiver).) The court observed at least five United
States Supreme Court justices were of the opinion a juvenile proceeding was not
the equivalent of a criminal proceeding under the
including a greater emphasis on “informality, rehabilitation, and
minor.†(Nguyen, at p. 1019.) Five justices were also of the view “that a
jury is not essential to fair and reliable factfinding
in a juvenile case†and “ ‘[t]he imposition of the jury trial on the
juvenile court system would not strengthen greatly, if at all, the factfinding
function.’ †(Id. at p. 1020, quoting McKeiver,
supra, 403 U.S. at p. 547.)
The Nguyen court therefore
agreed with the “overwhelming majority†of other state and federal cases that
there is no constitutional impediment to using juvenile court adjudications to
enhance later adult sentences. (
While Nguyen involved an
enhancement question in an adult criminal proceeding, the Supreme Court’s
pronouncement that there is no constitutional
proceedings was pivotal to its analysis, and it is not a pronouncement with
which we may, or are even inclined to, disagree. As the court discussed, there is a rational
reason to treat adult and juvenile offenders differently and
because a judge, rather than a jury, serves as the trier of fact. (See McKeiver,
supra, 403 U.S. at p. 551 (conc. opn. of White, J.) [“Although the function
of the jury is to find facts, that body is not necessarily or even probably
better at the job than the conscientious judge.â€].)
We are also bound by the Supreme Court’s determination that sex
offender registration is not “punishment†(People
v. Hofsheier (2006) 37 Cal.4th 1185, 1196-1197; In re Alva (2004) 33 Cal.4th 254, 287-292; People v. Castellanos (1999) 21 Cal.4th 785, 792), and similarly,
its determination that Jessica’s Law’s residency restrictions do not impose
rise to the registration requirement, but rather for conduct that occurs after
the commission of, or the conviction for, the registerable offense. (People
v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4; In re E.J. (2010) 47 Cal.4th 1258, 1280.) Moreover, if either is “punishment,†the
inquiry becomes that described in the preceding paragraph, i.e., whether the
juvenile has a constitutional right to a jury trial. The law at this juncture is that he or she
does not.
Disposition
The juvenile court’s dispositional order is
affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
references are to the Penal Code unless otherwise indicated.
pertinent part: “(a) Any person who . .
. is discharged or paroled from the [DJF] . . . after having been adjudicated a
ward of the juvenile court pursuant to Section 602 . . . because of the
commission or attempted commission of any offense described in subdivision (c)
shall register in accordance with the Act.â€
(§ 290.008, subd. (a).)
Subdivision (c) includes offenses specified in sections 261 and
264.1. (§ 290.008, subd. (c).)
