People v. I.L. (In re I.L.)

• Decision Date: 30 October 2013
• Docket Number: A137352
• Court: California Court of Appeals Court of Appeals
• Parties: In re I.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. I.L., Defendant and Appellant.

In re I.L., a Person Coming Under the Juvenile Court Law.THE PEOPLE, Plaintiff and Respondent, v. I.L., Defendant and Appellant.

A137352

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Filed October 30, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Mateo County Super. Ct. No. JV82680)

ORDER MODIFYING OPINION[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on October 29, 2013, be modified as follows: On page 2, the first full paragraph, beginning "Minor now appeals" is deleted and the following paragraph is inserted in its place:

Minor now appeals, arguing the juvenile court abused its discretion both by failing to hold a hearing to determine his suitability for DEJ and by subjecting him to gang-related probation conditions. As to the first contention, we agree with Minor that the juvenile court was obligated to hold a suitability hearing and that its failure to do so was error. We will therefore remand this case so that the suitability hearing may be held. As to the second contention, we hold the juvenile court did not abuse its discretion in imposing the gang-related probation conditions.

There is no change in the judgment.

_____________, P.J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 re I.L., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

I.L.,

Defendant and Appellant.

A137352

(San Mateo County Super. Ct. No. JV82680)

The San Mateo County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, subdivision (a)¹ hacrging I.L. (Minor) with residential burglary and grand theft. The prosecuting attorney also determined Minor was eligible for deferred entry of judgment (DEJ) pursuant to section 790 et seq. Minor later admitted the burglary charge, and the grand theft charge was dismissed. Although Minor was eligible for DEJ, the juvenile court did not hold a hearing to determine Minor's suitability.

The juvenile court declared Minor a ward of the court and placed him in his parents' home under the supervision of a probation officer. Over the objections ofMinor's counsel at the disposition hearing, the juvenile court imposed on Minor a number of gang-related probation conditions.

Minor now appeals, arguing the juvenile court abused its discretion both by failing to hold a hearing to determine his suitability for DEJ and by subjecting him to gang-related probation conditions. In the published portion of our opinion, we agree with Minor's first contention. We hold the juvenile court was obligated to conduct a suitability hearing and its failure to do so was reversible error. We will therefore remand this case so that the suitability hearing may be held. In the unpublished portion, we hold the juvenile court did not abuse its discretion in imposing the gang-related probation conditions.

FACTUAL AND PROCEDURAL BACKGROUND²

On November 6, 2012, the San Mateo County District Attorney filed an original section 602 wardship petition regarding Minor, alleging felony violations of Penal Code sections 460, subdivision (a) (burglary) and 487, subdivision (a) (grand theft). The district attorney filed a "Determination of Eligibility" form (Judicial Council Form JV-750), finding Minor was eligible for DEJ. Appellant's parents were notified of that determination.

At a hearing on November 7, 2012, Minor's counsel waived further reading of the petition, requested that a pretrial hearing be set, and submitted as to detention. Counsel also waived time for the jurisdictional hearing. The court noted Minor was "DEJ eligible," and requested the probation department to address that issue. It then ordered Minor detained.

The probation officer filed a report with the court on November 29, 2012. Although she acknowledged Minor was eligible for DEJ, she recommended against it, because she believed Minor unsuitable due to marijuana addiction and poor school attendance. The probation officer attached recommended dispositional orders andfindings to her report. The recommended orders contained a number of gang-related probation conditions.

At a hearing on December 3, 2012, Minor admitted the burglary count, and the grand theft count was dismissed. The court sustained the petition as to the burglary count, declared Minor a ward of the court, and announced it was prepared to proceed to disposition.

Minor's counsel objected to the imposition of any gang-related probation conditions. After the court indicated its inclination to impose them, counsel clarified that she objected to the proposed condition prohibiting Minor from being "in any areas known to be where gang members meet or get together for gang-related activity[.]" The court then continued the hearing so the probation officer could "actually show on a map or outline the specific perimeters of the territory" subject to the stay-away condition.

When the disposition hearing resumed, the probation department provided maps depicting gang territory in East Palo Alto and Redwood City. Because Minor lives in East Palo Alto, the court concluded it would be too difficult to craft a stay-away order for the areas in that city. It did impose stay-away orders for certain areas in Redwood City, however, and allowed Minor to travel within those areas only if accompanied by an adult family member.

Over defense counsel's objection, the court adopted the following probation conditions, which Minor contends are gang-related:³

"The Minor shall not be a member of any gang (meaning a "'criminal street gang'" as defined in Penal Code Section 186.22(f)); "The Minor shall not associate with any person known by the Minor to be a gang member;

"The Minor shall not associate with anyone with whom the Minor knows a parent or probation officer prohibits association;

"The Minor shall not participate in any gang-related activity or any activity the Minor knows is prohibited by the probation officer as gang-related activity;

"The Minor shall not wear, possess, or display any clothing or item or display any hand signs with gang significance or which are indications of gang membership, e.g., colors, symbols, insignias, numbers, monikers, patterns, etc., known by the Minor to be such, as may be identified as such by law enforcement or probation officers;

"The Minor shall not obtain any new tattoos, brands, burns, or voluntary scarring. The Minor shall not obtain any piercing, voluntary eyebrow or hair shaving with gang significance or not in compliance with Penal Code Section 652(a). The probation officer may arrange for, and the Minor must submit to, photographing of any tattoos, brands, sears, or piercing that exist as of the date of this order;

"The Minor shall not be present at a courtroom or court lobby where the Minor knows or the probation officer informs the Minor that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless the Minor is a party, the Minor is a defendant in a criminal action, the Minor is subpoenaed as a witness in a proceeding, or the Minor has prior permission from the probation officer to attend/observe proceedings;

"The Minor shall not possess any graffiti materials, including but not limited to acid, spray paint cans, marker pens, 'white-out,' and liquid shoe polish;

"The Minor shall not be in possession of any paging devices or any other portable communication equipment, including, but not limited to, scanners, without the express permission of the probation officer;

"The Minor shall not access or participate in any Social Networking Site, including but not limited to Myspace.com. All Internet usage is subject to monitoring by Probation, parents or school officials; "The Minor shall not possess a computer which is attached to a modem or telephonic device, or which has an internal modem[.]"

Minor filed a timely appeal on December 12, 2012.

DISCUSSION

Minor contends the juvenile court committed two abuses of discretion. First, he argues that because the district attorney had determined he was eligible for DEJ, the court was required to hold a hearing to determine his suitability. He contends its failure to do so was an abuse of discretion. Second, he asserts the juvenile court abused its discretion by imposing gang-related probation conditions that (1) have no relationship to his crime, (2) restrict noncriminal behavior, and (3) are not reasonably related to any future criminality.

I. The Juvenile Court Abused its Discretion by Failing to Hold the Suitability Hearing.

The parties do not dispute Minor's eligibility for DEJ. The People also do not appear to quarrel with the numerous cases from the Courts of Appeal concluding that once the prosecuting attorney determines a minor is eligible for DEJ, and a minor admits the charge in the section 602 petition before a contested jurisdictional hearing, the juvenile court has a mandatory duty to conduct a suitability hearing. (See, e.g., In re C.W. (2012) 208 Cal.App.4th 654, 662, quoting In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.)

The parties' disagreement concerns the People's contention that no suitability hearing need be conducted where, as here, the minor admits some, but not all, of the allegations of the petition. The People concede that Division Two of this appellate district has rejected this argument. (In re Joshua S. (2011) 192 Cal.App.4th 670, 680-682 (Joshua S.)....