Kody P. v. Superior Court, C050918.

• Decision Date: 22 March 2006
• Docket Number: No. C050918.,C050918.
• Citation: 137 Cal.App.4th 1030,40 Cal.Rptr.3d 763
• Court: California Court of Appeals Court of Appeals
• Parties: KODY P., a Minor, Petitioner, v. The SUPERIOR COURT of Butte County, Respondent; The People et al., Real Parties in Interest.

40 Cal.Rptr.3d 763

137 Cal.App.4th 1030

KODY P., a Minor, Petitioner, v. The SUPERIOR COURT of Butte County, Respondent;

The People et al., Real Parties in Interest.

No. C050918.

Court of Appeal, Third District.

March 22, 2006.

Law Offices of Berg & Associates, Eric Alan Berg, San Francisco, and Teal M. Dixon, San Diego, for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Charles A. French, Supervising Deputy Attorney General, and Angelo S. Edralin, Deputy Attorney General for Real Parties in Interest.

RAYE, Acting P.J.

This petition for writ of mandate was brought by a minor charged with a misdemeanor in a petition filed under Welfare and Institutions Code section 602.¹ The minor claims the Butte County Probation Department considered him suitable to participate in a program of informal supervision (see § 654) but denied him the opportunity to participate in the program based solely on his refusal to admit the offense. He further claims this was done pursuant to the probation department's policy and that the juvenile court has accepted and endorsed that policy.

As we shall explain, the probation representatives and the juvenile court have abused their discretion. The law requires an individualized assessment of a minor's suitability for informal supervision based on specified criteria. It is inconsistent with the nature of that assessment to apply a policy of categorical exclusion from informal supervision based on a minor's refusal to admit an offense. We shall direct the juvenile court to dismiss the section 602 petition and order the probation department to admit the minor to informal supervision.

BACKGROUND

Provided that informal supervision under section 654 is not otherwise prohibited,² the probation department may admit a minor to such a program in lieu of filing a section 601 petition or requesting a prosecutor to file a petition under section 601.3 or 602. The probation department is required to assess the case to determine whether informal supervision is warranted based on factors specified in the California Rules of Court. (See Cal. Rules of Court, rules 1404, 1405.) An informal supervision program may not exceed six months, but the probation department retains the discretion to file a section 601 petition or refer the matter to the prosecutor "at any time within the six-month period or a 90-day period thereafter." (§ 654.) Section 654.2 gives the juvenile court the authority to order informal supervision after a section 602 petition is filed.

The following is a summary of what occurred in the current case. At the outset, we note that real parties in interest have not filed a return. Accordingly, "we accept as true the uncontradicted allegations of the petition and its supporting exhibits." (Chambers v. Superior Court (1981) 121 Cal.App.3d 893, 896, 175 Cal. Rptr. 575.)

The minor's mother met with a representative of the Butte County Probation Department before the section 602 petition was filed. She asserts in a declaration that she was willing to work with the probation department to set up whatever program of supervision or counseling for the minor it deemed appropriate. The probation officer seemed amenable until she learned that the minor had not admitted the underlying offense. At that point, the probation officer told the minor's mother there was no purpose in continuing the meeting and indicated they would see each other in court.

The minor was charged in the section 602 petition with misdemeanor sexual battery. (Pen.Code, § 243.4, subd. (e)(1).) According to the petition, the minor was 11 years old at the time of the incident. Defense counsel described the charge on the record as an accusation that the minor "pinch[ed] a girl's butt in gym class."

Two attorneys who are representing the minor have submitted declarations along with the current writ petition. One of the attorneys asserts that he spoke with a representative from the probation department before the matter was called in court and was told the department had determined the minor was suitable for informal supervision except for his failure to admit the offense. The other attorney states the prosecutor told him that all minors who wanted informal supervision had to admit their offenses.

At a hearing in juvenile court on August 23, 2005, the minor's attorney indicated he understood it was the probation department's position that informal supervision would be "fine." But counsel explained the problem was that the probation department apparently had a policy of not allowing informal supervision if the minor refused to admit the crime. The court asked whether the minor would "admit it so that he can get the 654," or whether the defense wanted to set it for a contested hearing. Counsel indicated the defense did not believe an admission was required.

A short discussion followed:

"The Court: The 654 is up to the probation department, isn't it? It's up to you.

"Ms. Maddock [probation officer]: It's done at the request of the probation department, yes.

"Mr. Berg [defense counsel]: But they have to follow certain rules.

"The Court: What is your position then?

"Ms. Maddock: Our position is, we can't offer someone 654 if they're not going to take responsibility for their actions.

"The Court: Okay. That's simple enough.

"Mr. Noel [prosecutor]: The cornerstone of any rehabilitative program is admission and taking responsibility. You can't rehabilitate someone if they refuse to admit they did anything wrong.

"The Court: That's the primary purpose for juvenile law.

"Mr. Noel: Exactly."

The minor's counsel asked the juvenile court to set the case for a hearing on whether the minor should be granted informal supervision. The court said they could "have the hearing right now," but counsel said he wanted "to file papers as to the law on that, and whether or not that would be appropriate in this case." The court denied the request and commented that the minor could appeal. Counsel represents to this court that he had points and authorities with him at the time that he had been prepared to file.

Defense counsel consulted with the minor and then stated the minor would be willing to admit what was required. The juvenile court was prepared to take the admission on the record, but counsel requested that the matter be continued so the minor could meet with a probation officer. The prosecutor agreed, explaining: "Generally, the way we do these would be that the Court would continue this over for a couple weeks, order him to meet with the probation officer and convince the probation officer that he understands the nature of the charges and takes responsibility." The probation officer present at the hearing also agreed with this proposal. The court continued the matter so the minor could consult with a probation officer.

The minor ultimately refused to admit the offense. The next court hearing was held on September 13, 2005. No transcript of the hearing is included with this petition; however, counsel explains that the juvenile court and probation department were unwilling to revisit the issue, and the court continued the case so the minor could file this petition for writ of mandate.

On October 7, 2005, the minor filed the instant petition for writ of mandate in this court. Before acting on the petition, this court requested written opposition from real parties in interest. Real parties in interest (represented by the Attorney General) filed an informal letter brief on November 29, 2005, and a corrected version of the brief on December 2, 2005. On December 12, 2005, this court issued an alternative writ. Real parties in interest have not filed a return.

DISCUSSION

I. Merits

The minor claims the Butte County Probation Department erred by conditioning informal supervision on his willingness to admit the alleged offense, and the court erred in ratifying and adopting the same policy. The minor's position is supported by Paul D. v. Superior Court (1984) 158 Cal.App.3d 838, 205 Cal.Rptr. 77 (Paul D.).

In that case, the minor was charged in a section 602 petition with misdemeanor battery. (Paul D., supra, 158 Cal.App.3d at p. 840, 205 Cal.Rptr. 77.) His counsel informed the juvenile court that during a brief interview with the probation officer, the minor had denied involvement in the offense. (Ibid.) Counsel reported that the officer refused to consider the minor for informal supervision under a department policy not to accept minors for such supervision unless they admitted the charges against them. (Ibid.) The probation officer confirmed this was the department policy. (Ibid.) The minor's counsel challenged the policy and moved for the court to refer the matter to the department for consideration of informal supervision. (Ibid.) The juvenile court indicated it did not believe it had authority to order the department to exercise its discretion under section 654 after the section 602 petition was filed, and the court set the matter for a contested hearing. (Paul D., supra, 158 Cal.App.3d at p. 840, 205 Cal.Rptr. 77.) The minor filed a petition for writ of mandate or prohibition with the appellate court. (Id. at pp. 839-840, 205 Cal.Rptr. 77.)

The appellate court found that the probation department had abused its discretion by refusing to consider the minor for informal supervision. (Paul D., supra, 158 Cal.App.3d at p. 842, 205 Cal.Rptr. 77.) The court noted that the factors to be considered in determining eligibility for informal supervision were specified in the California Rules of Court. (Id. at p. 841, 205 Cal.Rptr. 77.) The court observed that no admission of guilt was required under the law as a precondition to informal supervision, and the court declined to imply one. (Id. at p. 842, 205 Cal.Rptr. 77.) The court recognized that after the filing of the section 602 petition, the discretion to...