In re W.V.
Filed 4/3/13 In re W.V. CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re W.V., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
W.V.,
Defendant and Appellant.
A134381
ORDER MODIFYING
NONPUBLISHED OPINION
(Alameda
County
Super. Ct. No.
SJ11017865)
BY THE COURT:
name="_ftnref1" title="">*
IT IS ORDERED
that the opinion filed on March 11, 2013 is
rehearing is DENIED:
1. On page 13, in part II.B., a new footnote
number 7 is added after the first sentence of the final, partial
paragraph:
Although not
raised by W.V. in his opening brief, the People volunteer that, if W.V. is
found unsuitable for DEJ on remand, the juvenile court should set W.V.’s
maximum time of confinement (Cal. Rules of Court, rule 5.795(b)) and declare
the status of the offense as a misdemeanor or a felony (§ 702; Cal. Rules of
Court, rule 5.795(a)). In his reply
brief, W.V. agrees. We will accept the
concession of the People and direct the juvenile court accordingly.
2. On page 17, in part III., a
new sentence is added at the end of the paragraph:
If the juvenile
court denies DEJ to W.V., it shall also set W.V.’s maximum time of confinement
and declare the status of his offense as a misdemeanor or a felony.
The modification
effects a change in the judgment only to the extent noted in modification
No. 2.
Date___________________
______________________ Acting P.J.
Filed 3/11/13
In re W.V. CA1/5 (unmodified version)
NOT TO BE PUBLISHED IN
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re W.V., a
Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
W.V.,
Defendant and Appellant.
A134381
(Alameda County
Super. Ct. No. SJ11017865)
Minor W.V. admitted committing a
sexual battery (Pen. Code, § 243.4, subd. (a)) against his sister. The juvenile court’s dispositional order
required him to submit to polygraph testing as part of his sex offender
therapy. W.V. contends that the
polygraph condition is overbroad and violates his Fifth Amendment right against
self-incrimination. He also contends
that the he was not notified of his eligibility for deferred entry of judgment
(DEJ). We agree on the latter point, and
remand the case to the juvenile court so that W.V. may be at least considered
for DEJ.
I. Factual
and Procedural Background
In October 2011, a wardship petition
under Welfare and Institutions Code section 602
counts, as follows: (1) committing
a lewd and lascivious act on a child under 14 (Pen. Code, § 288,
subd. (a)); (2) two separate counts of oral copulation with a minor
(Pen. Code, § 288a, subd. (b)(1)); and (3) two separate counts
of penetration of a minor with a foreign object (Pen. Code, § 289,
subd. (h)). W.V.’s sister (Jane
Doe) told a doctor that W.V. had been, over the course of about three years,
coming into her room at night and sexually assaulting her while she was
sleeping. She said the sexual assaults
began when she was 13 years old and W.V. was 14 years old. When interviewed by police, Doe said that
W.V. had assaulted her 10–15 times over the course of two to three years. W.V. admitted the allegations and said that
their father once found him on top of Doe.
W.V. felt remorseful and stated that he needed help.
On the same day the petition was
filed, the prosecutor also filed a “Determination of Eligibility—Deferred Entry
of Judgment—Juvenile†(Judicial Council Forms, form JV-750),
DEJ. However, the prosecutor did not
check the box on the form indicating that a “Citation and Written Notification
for Deferred Entry of Judgment—Juvenile (form JV-751)†was attached.
W.V. was detained at juvenile
hall. W.V.’s mother indicated that she
would like W.V. to return home. She said
that she and her husband would “ ‘make sure that the children won’t do it
again.’ †The probation officer
recommended that W.V. remain in custody, given that “[i]t does not appear there
are effective tools in place at the home to prevent the present matter from
reoccurring.â€
At the detention hearing, there was
a stipulated disposition. The first
count of the petition was orally amended to charge a felony sexual battery
(Pen. Code, § 243.4, subd. (a)) as a lesser related offense. W.V. admitted the amended count and all other
counts were dismissed. W.V. was declared
“a person described by Section 602.†The
court indicated that the maximum term of confinement was four years.
Prior to disposition, W.V.’s counsel
sought out-of-custody treatment on the grounds that W.V. had accepted
responsibility and had been very successful academically and in school athletics. The probation officer recommended that W.V.
be placed in a suitable family home or group home. He relied on the advice of a clinician from
the Guidance Clinic, who said he was very uncomfortable with W.V. staying with
a relative. The clinician said “the case
had a lot of red flags†because “[W.V.] was able to molest his sister for three
years without anyone finding out†and “father did not question why [W.V.] was
there when he saw his son on top of his daughter.†He believed that “the family [was] ‘circling
the wagons’ to try to minimize the impact of [W.V.’s] behavior. . . .
[¶] Initially [W.V.] also minimized his behavior but after intensively
interviewing, confronting him and helping to clarify the importance of honesty
. . . [W.V.] did begin to take on more responsibility for his
behavior albeit only a little at a time.â€
The clinician also reported that W.V. was assessed as “in the
low-moderate range†for recidivism risk.
He opined: “This is usually an
acceptable risk level for out-patient treatment . . . . However, other factors in this case, i.e.,
duration of abuse, level of family denial, ongoing family dysfunction,
emotional stability and proximity of the victim had to be assessed to determine
if a higher level of care was needed.â€
At the conclusion of the
dispositional hearing, held on November 29, 2011, the juvenile court adjudged
W.V. a ward of the court and ordered placement in the control of probation.
juvenile court’s written order required W.V. “not be in the presence of
children under the age of 14 without responsible relative adult supervision,
[and to have] no contact with the victim Jane Doe. [¶] . . .
[¶] Parent(s) and minor are to cooperate with the Probation Officer in any
program of guidance, counseling or therapy, specifically a comprehensive out of
home sex offender treatment program, not use computer unless being supervised
by responsible adult, not to use computer to obtain pornographic material,
. . . .†(Italics added
& some capitalization omitted.) On
the record, the juvenile court explained that “[W.V.] is required to submit to
polygraph testing as necessary in connection with his sexual offender treatment
program.†W.V.’s counsel objected to the
requirement. In its dispositional order,
the juvenile court did not declare a maximum time of confinement. This timely appeal followed.
II. Discussion
On appeal, W.V. challenges only the
polygraph testing condition and the juvenile court’s failure to consider
deferred entry of judgment.
A.
W.V. concedes that the juvenile
court had the authority to require him to submit to a polygraph examination as
a condition of his treatment. (See
Cal.App.4th 313, 319 (Brown)
[rejecting argument that polygraph condition is per se invalid and illegal];
Hackler (1993) 13 Cal.App.4th
1049, 1058 [“ ‘it is well established that courts have broad
discretion to impose restrictive conditions to foster rehabilitation and to
protect public safety’ â€]; § 730, subd. (b) [“[w]hen a ward
. . . is placed under the supervision of the probation officer
. . . , [t]he court may impose and require any and all
reasonable conditions that it may determine fitting and proper to the end that
justice may be done and the reformation and rehabilitation of the ward
enhancedâ€].)
Instead, W.V. argues that the
polygraph testing requirement, absent an offer of immunity, “impermissibly
requires that [he] choose between making incriminating statements or
jeopardizing his conditional liberty by remaining silent.†He is concerned “that any statements made by
him during the polygraph examination will be used as evidence to further
prosecute him for [other] crimes.†(See Evid. Code, § 351.1, subd. (b).)
Constitutional challenges to
probation conditions are reviewed de novo.
(In re Shaun R. (2010) 188
Cal.App.4th 1129, 1143.) The Fifth
Amendment provides, in pertinent part, that no person “shall be compelled
himself.†(U.S. Const., 5th Amend.,
italics added.) The Fifth Amendment
privilege against self-incrimination “permits a person to refuse to testify
against himself at a criminal trial in which he is a defendant [and] also
‘privileges him not to answer official questions put to him in any other
proceeding . . . where the answers might incriminate him in future
criminal proceedings.’ [Citation.]†(Minnesota
v. Murphy (1984) 465 U.S. 420, 426.)
The privilege against self-incrimination “is properly invoked whenever
the witness’s answers ‘would furnish a link in the chain of evidence needed to
prosecute’ the witness for a criminal offense.
[Citations.]†(
585, 617.)
The People suggest that W.V.
forfeited his constitutional argument by only raising an unspecified objection
in the juvenile court. We disagree. Constitutional challenges to probation
conditions raising pure questions of law are not forfeited by failure to object
in the trial court. (
879, 889; In re Shaun R., supra, 188
Cal.App.4th at p. 1143.)
However, the People are correct in
asserting that W.V.’s Fifth Amendment claim is not ripe. “The ripeness requirement, a branch of the
doctrine of justiciability, prevents courts from issuing purely advisory
opinions. [Citation.] It is rooted in the fundamental concept that
the proper role of the judiciary does not extend to the resolution of abstract
differences of legal opinion. It is in
part designed to regulate the workload of courts by preventing judicial
consideration of lawsuits that seek only to obtain general guidance, rather
than to resolve specific legal disputes.
However, the ripeness doctrine is primarily bottomed on the recognition
that judicial decisionmaking is best conducted in the context of an actual set
of facts so that the issues will be framed with sufficient definiteness to
enable the court to make a decree finally disposing of the controversy.
. . . [¶] . . . ‘The controversy must be definite and
concrete, touching the legal relations of parties having adverse legal
interests. [Citation.] It must be a real and substantial controversy
admitting of specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.’ †(
Coastal Com. (1982) 33 Cal.3d 158, 170–171.)
In People v. Miller (1989) 208 Cal.App.3d 1311 (Miller), the defendant, who had pleaded guilty to committing a lewd
and lascivious act on a minor, appealed after he was sentenced and required to
submit to polygraph testing as a condition of probation. (Id.
at p. 1314.) He argued that the
condition violated his privilege against self-incrimination. The Miller
court rejected the argument, explaining:
“Defendant misconstrues the nature of the privilege. The privilege against self-incrimination is
not self-executing; it must be claimed.
(Minnesota v. Murphy[
p.] 427.) Although defendant has a
duty to answer the polygraph examiner’s questions truthfully, unless he invokes
the privilege, shows a realistic threat of self-incrimination and nevertheless
is required to answer, no violation of his right against self-incrimination is
suffered. (Ibid.) The mere requirement
of taking the test in itself is insufficient to constitute an infringement of
the privilege.†(Miller, at p. 1315, parallel citations omitted.) In response to an argument that the condition
was overbroad, the Miller court stated: “This is patently incorrect. The polygraph condition was expressly
requested by the probation officer and imposed by the court to monitor
defendant’s compliance with the condition prohibiting unsupervised contact with
young females. Thus any polygraph
examination administered to defendant necessarily will be limited to questions
relevant to compliance with that condition.â€
(Id. at p. 1315.)
Like the defendant’s claim in Miller, W.V.’s self-incrimination argument is not ripe. W.V.’s reliance on
1073 (Saechao) and
F.3d 1128, 1135 (Antelope) does not
convince us otherwise.
In Antelope, supra, 395 F.3d 1128, the defendant pleaded guilty to
possessing child pornography. One of the
conditions of his grant of probation was that he participate in a sexual abuse
treatment program, which in turn required him to complete a “sexual history
autobiography assignment and ‘full disclosure polygraph’ verifying his ‘full
sexual history,’ †including all past sexual criminal offenses. (Id.
at p. 1131.) Subsequently, the
defendant’s probation was revoked and he was incarcerated, after he invoked the
Fifth Amendment when informed that his answers to polygraph sexual history
questions could be released to authorities.
(Id. at pp. 1131–1132,
1139.) Antelope argued that the Fifth
Amendment prohibited the government from forcing him to admit prior wrongdoing
unless his statements are protected by use and derivative use immunity. (Id.
at p. 1133.)
The Ninth Circuit concluded that the
defendant’s claim was ripe for review, observing: “From Antelope’s perspective, in whose shoes
we stand when deciding this threshold issue of justiciability, he has already
suffered the very serious and non-hypothetical injury of imprisonment after he
invoked his Fifth Amendment right. . . . Indeed, it is difficult to
imagine a more paradigmatic ‘injury in fact’ than actual incarceration.†(Antelope,
supra, 395 F.3d at p. 1133.)
The court went on to note: “The
Fifth Amendment privilege is only properly invoked in the face of ‘a real and
appreciable danger of self-incrimination.’
[Citation.] ‘If the threat is
remote, unlikely, or speculative, the privilege does not apply
. . . .’ [Citation.]
. . . Nor does its umbrella shelter statements whose ability to
incriminate is ‘highly unlikely.’
[Citations.] [¶] Instead, because the Fifth Amendment’s
self-incrimination clause was designed ‘to effect [the] practical and beneficent
purpose’ of preventing inquisitorial interrogation, [citation], it may only be
invoked when the threat of future criminal prosecution is reasonably particular
and apparent. [Citations.] [¶] . . . [But] an individual ‘need not
incriminate himself in order to invoke the privilege,’ [citation], but may
simply refuse to make any statements that place him at risk. [Citation]. . . . Thus, when
‘questions put to [a] probationer, however relevant to his probationary status,
call for answers that would incriminate him in a pending or later criminal prosecution,’
he may properly invoke his right to remain silent. [Citation.] [¶] In this case, Antelope’s
risk of incrimination was ‘real and appreciable.’ †(Id.
at pp. 1134–1135.) The court
concluded: “The treatment condition
placed Antelope at a crossroads—comply and incriminate himself or invoke his
right against self-incrimination and be sent to prison.†(Id.
at p. 1135.)
In Saechao, the defendant was subject to a condition that required him
to “ ‘promptly and truthfully answer all reasonable inquiries’ †from
his probation officer. (
probation officer and admitted that he possessed a firearm. The evidence was turned over to authorities
and the probationer was charged with being a felon in possession of a
firearm. (Id. at pp. 1075–1076.)
The district court granted the defendant’s motion to suppress,
concluding that his statements to the probation officer were compelled in
violation of the Fifth Amendment. (
ruling, reasoning that the statements were compelled because the probation
condition expressly required defendant to answer “ ‘all reasonable inquiries’ †under penalty of revocation, and
did not allow him to invoke his privilege without jeopardizing his
probation. (Id. at pp. 1078, 1081.)
Unlike the probationers in either
been asked any polygraph examination questions at all, much less any questions
that call for answers that would or could incriminate W.V. in a pending or
future criminal prosecution.
To the extent that W.V.’s polygraph
answers might be used for a nontherapeutic purpose in the context of a
probation revocation proceeding, the Fifth Amendment privilege is not
necessarily implicated. (See
p. 435, fn. 7 [privilege against self-incrimination not “available on
the ground that answering such questions might . . . result in the
termination of probationâ€]; Brown, supra,
101 Cal.App.4th at
p. 320 [“if the questions put to the probationer are relevant to his
probationary status and pose no realistic threat of incrimination in a separate
criminal proceeding, the Fifth Amendment privilege
would not be availableâ€].) W.V. has not
been forced “ ‘to choose between making incriminating statements
and jeopardizing his conditional liberty by remaining silent.’ †(Saechao,
supra, 418 F.3d at pp. 1078, 1081; Antelope,
supra, 395 F.3d at p. 1035.) In
other words, W.V. has not faced a “real danger of self-incrimination.†(Antelope,
supra, 395 F.3d at p. 1035.)
W.V. also argues that the polygraph
requirement is overbroad because the juvenile court’s written order does not
limit the questions that may be asked.
In Brown, supra, 101
Cal.App.4th 313, the defendant pleaded guilty to stalking his ex-girlfriend
while a restraining order was in effect.
The defendant was sentenced to probation, subject to several conditions,
one of which was the successful completion of a stalking treatment
program. (Id. at p. 317.) After
the defendant denied stalking his ex-girlfriend upon beginning treatment, the
trial court ordered him to submit to a polygraph examination (
. . . to put any restrictions on the administration of the
. . . examinations.†(
On appeal, the Fourth District Court
of Appeal held that “[t]he fact that [the defendant] has a duty to answer the
polygraph examiner’s question[s] truthfully does not mean his answers are
compelled within the meaning of the Fifth Amendment. [Citations.]â€
(Brown, supra, 101 Cal.App.4th
at p. 320.) The court noted: “Thus, unless Brown specially invokes the
privilege, shows he faces a realistic threat of self-incrimination and nevertheless
is made to answer the question or questions, no violation of his privilege
against self-incrimination is suffered.
[Citations.] Of course, if the
state puts questions to a probationer that call for answers that would
incriminate him in a pending or later criminal proceeding, and expressly or by implication asserts that invocation of the
privilege would lead to revocation of probation, the answers would be
deemed compelled under the Fifth Amendment and thus involuntary and
inadmissible in a criminal prosecution.
[Citations.]†(
are relevant only to a defendant’s “probationary status and pose no realistic
threat of incrimination in a separate criminal proceeding, the Fifth Amendment
privilege [is] not . . . available and the probationer [will] be
required to answer those questions truthfully.
[Citation.]†(
However, the court went on to hold that the trial court abused its
discretion in imposing a polygraph testing condition without restrictions
regarding the questions that may be asked.
(Id. at pp. 317,
321.) The trial court was directed to
enter an order limiting polygraph questions to those relevant to the crime for
which Brown was convicted and the completion of his court-mandated stalking
therapy program. (Id. at pp. 317, 321, 322–323.)
Here, the juvenile court explained,
at the dispositional hearing, that “[W.V.] is required to submit to polygraph
testing as necessary in connection with his sexual offender treatment
program.†Thus, presumably the court
intended to limit the questions that could be asked to those which would
monitor W.V.’s compliance with the other probation conditions, including his
treatment program. Since we otherwise
remand this case, we will direct the trial court to modify its written order to
make this limitation explicit.
B. DEJ
Next, W.V. complains that the
juvenile court failed to exercise its discretion to grant or deny DEJ.
“ ‘The DEJ provisions of section 790
et seq. were enacted as part of Proposition 21, The Gang Violence and
Juvenile Crime Prevention Act of 1998, in March 2000. The sections provide that in lieu of
jurisdictional and dispositional hearings, a minor may admit the allegations
contained in a section 602 petition and waive time for the pronouncement
of judgment. Entry of judgment is
deferred. After the successful
completion of a term of probation, on motion of the prosecution and with a
positive recommendation from the probation department, the court is required to
dismiss the charges. The arrest upon
which judgment was deferred is deemed never to have occurred, and any records
of the juvenile court proceeding are sealed.
(§§ 791, subd. (a)(3),[
subd. (c).)’ †(
973, 976; In re Luis B. (2006) 142
Cal.App.4th 1117, 1121–1122.) The
procedures for considering DEJ reflect a “ ‘strong preference for
rehabilitation of first-time nonviolent juvenile offenders’ †and limit
the court’s power to deny DEJ such that denial of DEJ to an eligible minor who
wants to participate is proper only when the juvenile court finds that
“ ‘the minor would not benefit from education, treatment and
rehabilitation.’ [Citation.]†(In re
A.I. (2009) 176 Cal.App.4th 1426, 1434.)
“ ‘Section 790 makes a minor eligible for DEJ if all
the following circumstances exist: [¶] “(1) The minor has not previously
been declared to be a ward of the court for the commission of a felony offense.
[¶] (2) The offense charged is not one of the offenses enumerated in
subdivision (b) of Section 707. [¶] (3) The minor has not previously
been committed to the custody of the Youth Authority. [¶] (4) The
minor’s record does not indicate that probation has ever been revoked without
being completed. [¶] (5) The minor is at least 14 years of age at the
time of the hearing. [¶] (6) The minor is eligible for probation
pursuant to Section 1203.06 of the Penal Code.â€
(§ 790, subd. (a)(1)–(6).)’ †(In re
Kenneth J., supra, 158 Cal.App.4th at pp. 976–977, fn. omitted; see
Cal. Rules of Court, rule 5.800(a).)
Section 790, subdivision (b), provides, in relevant part: “The prosecuting attorney shall review his or
her file to determine whether or not paragraphs (1) to (6), inclusive, of
subdivision (a) apply. If the minor is
found eligible for deferred entry of judgment, the prosecuting attorney shall
file a declaration in writing with the court or state for the record the
grounds upon which the determination is based, and shall make this information
available to the minor and his or her attorney.â€
Rule 5.800(b)(1) of the California Rules of Court
provides: “Before filing a petition
alleging a felony offense, or as soon as possible after filing, the prosecuting
attorney must review the child’s file to determine if the requirements of
[California Rules of Court, rule5.800](a) are met. If the prosecuting attorney’s review reveals
that the requirements of [California Rules of Court, rule 5.800](a) have been
met, the prosecuting attorney must file Determination of Eligibility—Deferred
Entry of Judgment—Juvenile (form JV-750) with the petition.†“If a minor is found eligible for DEJ, form
JV-751, entitled ‘Citation and Written Notification for Deferred Entry of
Judgment—Juvenile,’ is used to notify the minor and his or her parent or
guardian. There is a box to check on the
form JV-750 indicating that the form JV-751 is attached.†(In re
C.W. (2012) 208 Cal.App.4th 654, 659; accord, Cal. Rules of Court,
rule 5.800(c).)
“The DEJ statutes ‘empower the court, under specified
conditions, and upon the minor’s admission of the allegations of the petition,
to place the minor on probation without adjudging him or her to be a ward of
the court.’ (In re Mario C. (2004) 124 Cal.App.4th 1303, 1308.) Under appropriate circumstances, the court
may summarily grant DEJ to the minor.
(. . . §§ 790, 791; Cal. Rules of Court, rule
5.800.) If the court does not summarily
grant DEJ, it must conduct a hearing at which it must ‘consider the declaration
of the prosecuting attorney, any report and recommendations from the probation
department, and any other relevant material provided by the child or other
interested parties.’ (Rule
5.800(f).) It is the mandatory duty of
the juvenile court to either grant DEJ summarily or examine the record, conduct
a hearing, and determine whether the minor is suitable for DEJ, based upon
whether the minor will derive benefit from ‘education, treatment, and
rehabilitation.’ (. . . § 791,
subd. (b)[
name="_ftnref6" title="">[5]]; see In re Joshua S. (2011) 192 Cal.App.4th 670, 677 [(
it is required to ‘follow specified procedures and exercise discretion to reach
a final determination once the mandatory threshold eligibility determination is
made.’ (In re Luis B.[, supra,]
142 Cal.App.4th [at p. 1123].)†(In re
D.L. (2012) 206 Cal.App.4th 1240, 1243–1244, parallel citations & fn.
omitted.) “The juvenile court is excused
from its mandatory duty to hold a hearing if, after receiving notice of eligibility for DEJ, the minor
nonetheless rejects DEJ consideration by contesting the charges
. . . †(id. at
p. 1244, italics added), or “evinces no interest whatsoever in
[DEJ].†(In re Kenneth J., supra, 158 Cal.App.4th at pp. 979–980 [after
notice, “some measure of consent†is required]; see also In re Usef S. (2008) 160 Cal.App.4th 276, 283–286.)
Here, the prosecutor complied with California Rules of
Court, rule 5.800(b) by filing form JV-750 with the section 602 petition. The form indicated that W.V. was eligible for
DEJ. The problem is that no form JV-751
appears in the record, nor is there any evidence that the juvenile court served
W.V. or his parents with such a form, as required by California Rules of Court,
rule 5.800(c). Thus, there is no
evidence that the prosecutor provided notice to W.V. or his parents of DEJ
eligibility and procedures. Thereafter,
the juvenile court and the parties did not mention DEJ.
held that remand is required. (
at pp. 660–663 [where no evidence appeared in the record that appellant
was ever advised of DEJ eligibility, “it cannot be said that [appellant] chose
not to pursue DEJ, as there is no indication that she was aware of her
eligibility for itâ€]; In re Luis B.,
supra, 142 Cal.App.4th at p. 1123.)
The People acknowledge this authority and concede that
the lack of any evidence of notice of DEJ eligibility requires remand to the
juvenile court. However, they urge us to
remand with directions that W.V. have “the opportunity to withdraw his
negotiated admission†and that he be considered for DEJ only if he thereafter
admits all of the allegations of the original section 602 petition. The People contend that DEJ is not available
when a minor, such as W.V., admits only some of the allegations of the original
petition, pursuant to a negotiated resolution.
The People recognize that Joshua
S., supra, 192 Cal.App.4th 670, holds otherwise, but argue that
In Joshua S. supra,
192 Cal.App.4th 670, our colleagues in Division Two held that, although a
juvenile court is not required to consider DEJ suitability for a minor who
denies the allegations of the petition and insists upon a jurisdictional
hearing, it is required to consider DEJ suitability when a minor does not
request such a hearing and admits the allegations of an amended petition. (Id.
at pp. 681–682.) A section 602
petition was filed, alleging that Joshua S. possessed cocaine base for sale and
falsely represented his identity to a peace officer. He was determined to be eligible for
DEJ. (Id. at p. 674.)
Thereafter, the possession count was amended to allege that Joshua S.
was an accessory to a felony. Joshua S.
admitted the amended count and the second count was dismissed. (Ibid.) Another wardship petition was filed, alleging
four felony counts—possession of marijuana for sale, two counts of
transportation or sale of marijuana, and unlawful carrying of a loaded
firearm. Joshua S. was again determined
to be eligible for DEJ. He then admitted
an amended count 1 (possession of cannabis) and the remaining counts were
dismissed. The juvenile court committed
Joshua S. to a juvenile rehabilitation facility, without considering DEJ. (Id.
at pp. 674–675.)
On appeal, Joshua S. argued that the matter must be
remanded because the juvenile court failed to exercise its mandatory discretion
to grant or deny DEJ. (
at p. 675.) The court reviewed the
DEJ procedures outlined above and observed:
“ ‘While the court retains discretion to deny DEJ to an eligible
minor, the duty of the prosecuting attorney to assess the eligibility of the
minor for DEJ and furnish notice with the petition is mandatory, as is the duty
of the juvenile court to either summarily grant DEJ or examine the record,
conduct a hearing, and make “the final determination regarding education,
treatment, and rehabilitation . . . .†[Citations.] . . . ’ [Citation.]†(Id. at pp. 677–678.)
Joshua S. contended that the prosecutor’s burdens had
been met, but that the juvenile court failed to make the DEJ determination
required by sections 790 and 791. (
p. 678.) The court rejected the
respondent’s argument that the court properly did not consider DEJ because
Joshua S. had not admitted all of the allegations of the petitions, but rather,
had negotiated a plea to reduced charges.
(Id. at
pp. 678–679.) The court
reasoned: “Appellant did not initially
admit the allegations of the petition, but neither did he insist on a
jurisdictional hearing. [¶] . . . [¶] [A] minor is not required to
forego the right to a suppression hearing in order to accept DEJ. No part of a jurisdictional hearing was
undertaken in the present case. When the
suppression motion was denied . . . , [Joshua S.] admitted a
reduced charge. In the [other] case,
[Joshua S.] apparently did not pursue the suppression motion but rather
admitted an amended petition. . . . [Joshua S.] did not reject DEJ
and then seek to take advantage of it after contesting the allegations against
him. [¶] We are not persuaded by respondent’s assertion that the DEJ
procedures require the minor to admit the charge initially alleged in the
petition rather than a reduced one, as long as the admission
hearing. A minor is not entitled to DEJ
where he or she does not ‘ “admit the allegations†of the section 602
petition . . . “ ‘in lieu of jurisdictional and dispositional
hearings.’ †’ [Citations.]
. . . Here, however, no jurisdictional hearing was held.†(Id.
at pp. 679–680.)
The Joshua S. court
also rejected the respondent’s contention that Joshua S. should not be
considered for DEJ after negotiating a plea agreement reducing his legal
responsibility because to do so “would remove [a] minor’s incentive to
‘expedite the process by a full admission of responsibility.’ †(Joshua
S., supra, 192 Cal.App.4th at p. 681.)
The court explained: “[T]he
process in the present case was expedited: [Joshua S.] admitted the allegations of
the (amended) petition right after the denial of his suppression motion
. . . , with no attempt to litigate the petitions. Thus, DEJ could have been granted, if found
appropriate, ‘in lieu of jurisdictional and disposition hearings’ (§ 791, subd. (a)(3)). And [Joshua S.] did admit responsibility for
his offenses, albeit not full responsibility for the initially charged
offenses. In requiring a minor to
‘admit[] each allegation contained in the petition,’ section 791, subdivision
(a)(3), does not specify that the petition cannot be amended where, as here,
the amendment does not follow and is not the consequence of the minor
contesting one or more of the allegations of the initial petition. [Citation.]
The circumstances of this case are consistent with the goal of
expediting juvenile wardship proceedings and avoiding contested jurisdictional
hearings. Further, making DEJ
unavailable to a minor who admits an amended petition without contesting the
allegations of the initial petition would not serve the [stated statutory] goal
of increasing rehabilitation for first-time nonviolent offenders
. . . .
[Citations.]†(
added.) Accordingly, the matter was remanded so that
the juvenile court could determine whether to grant or deny DEJ. (Id.
at pp. 673, 682.)
We are not persuaded by the People’s argument that the
plain language of section 791, subdivisions (a)(3) and (a)(4). We find no basis to distinguish it, and we
decline to find that it was wrongly decided. Similar to Joshua S., W.V. here admitted the allegations of
the amended petition without requesting a contested jurisdiction hearing. Likewise, W.V. did not reject DEJ and then
seek to take advantage of it after contesting the allegations against him. (Joshua
S., supra, 192 Cal.App.4th at p. 680, distinguishing
973 and In re Usef S., supra, 160
Cal.App.4th 276.) The authority
the People rely on is distinguishable.
(See, e.g., In re T.J. (2010)
185 Cal.App.4th 1504, 1512 [minor not entitled to DEJ suitability hearing
because “[he] had not admitted any
allegations, and he necessarily had not done so in lieu of the jurisdictional hearing that had just been
conductedâ€]; In re R.C. (2010) 182
Cal.App.4th 1437, 1441–1443 [minor not entitled to DEJ suitability hearing
because he admitted only a misdemeanor]; In
re Spencer S. (2009) 176 Cal.App.4th 1315, 1329 [DEJ law does not violate
equal protection by denying benefits to first-time juvenile misdemeanants];
899 [minor under 14 was not eligible for DEJ].)
We are more sympathetic to the
contention that W.V.
seeks to improve a bargain he struck in the trial court, relying on
negotiated disposition provided for a significantly reduced maximum term of
confinement. The People also speculate
that the disposition here was intended to provide for the possibility of “more
intrusive†supervision than that available under DEJ supervised probation. They emphasize the contractual principles
governing a negotiated admission, and the general rule that “ ‘[a]
defendant may not retain the favorable aspects of his negotiated disposition
and at the same time jettison its unfavorable aspects.’ †(People
v. Miller (2012) 202 Cal.App.4th 1450, 1461.) While all this may well be true, what the
People ignore is the absence of anything in the record that would support a
finding that waiver of DEJ was a condition of, or consideration for, the
stipulated disposition. There was
certainly no explicit waiver. Moreover,
it is impossible to find any implicit waiver when W.V. was never advised of his
eligibility for DEJ in the first instance.
III. Disposition
The judgment is vacated. The case is remanded to the juvenile court
for further proceedings in compliance with section 790 et seq. and
rule 5.800 of the California Rules of Court. If the juvenile court grants DEJ to W.V., the
judgment will remain vacated. Any
polygraph testing probation condition shall be consistent with this
opinion. If the juvenile court denies
DEJ to W.V., it shall reinstate the judgment but modify the conditions of
probation consistent with this opinion.
_________________________
Bruiniers,
J.
We concur:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
Before Simons, Acting P.J., Needham, J., and Bruiniers, J.
otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
