People v. E.M. (In re E.M.)

• Decision Date: 18 May 2018
• Docket Number: A150740
• Court: California Court of Appeals Court of Appeals
• Parties: In re E.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.M., Defendant and Appellant.

In re E.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. E.M., Defendant and Appellant.

A150740

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

May 18, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. J43103)

E.M. (Minor) appeals from an order of wardship (Welf. & Inst. Code,¹ § 602) entered after the juvenile court sustained allegations that, when Minor was between the ages of 12 and 15, he committed three sex offenses against two daughters of his father's girlfriend, R.S. and K.M.² The court placed Minor on probation, in the custody of his parents, under various terms and conditions.

On appeal, Minor contends reversal is required because (1) the juvenile court failed to meet its obligations under the deferred entry of judgment (DEJ) statutory scheme described in section 790 et seq.; (2) the juvenile court prejudicially erred in excluding Minor's father from the courtroom when the sisters testified during hisjurisdictional hearing; and (3) the juvenile court's order sustaining the allegations of the petition lacked adequate evidentiary support. Minor also contends the juvenile court erred in imposing certain probation conditions. We shall reverse the disposition order and remand for further DEJ proceedings. We also strike certain of the probation conditions.

I. BACKGROUND

On August 10, 2015, the Solano County District Attorney filed a wardship petition alleging that Minor committed the following offenses against R.S. between May 1, 2015 and August 7, 2015, when Minor was 14 and R.S. was 13: attempted oral copulation of a person under the age of 14 (Pen. Code, §§ 664/288a, subd. (c)(1)) (count 1), and attempted forcible rape (id., §§ 664/261, subd. (a)(2)) (count 2). The same day, the district attorney filed a "DETERMINATION OF ELIGIBILITY, Deferred Entry of Judgment—Juvenile" form (DEJ eligibility form) confirming that Minor was DEJ eligible. A box on the form was checked, indicating that a "Citation and Written Notification for Deferred Entry of Judgment—Juvenile, Form JV-751" (JV-751 form) was attached. In fact, however, only the second page of the JV-751 form was attached.³ That page provided required notices describing DEJ procedures. (§ 791, subd. (a).) Although not attached in this instance, the first page of a JV-751 form ordinarily would order a minor and his or her "custodial parent, guardian, or caregiver" to appear at a hearing, on a specified date at a specified time, where the court would consider whether or not to grant a deferred entry of judgment.⁴

The day after the district attorney filed the wardship petition and DEJ eligibility form, on August 11, 2015, the juvenile court held a detention hearing. Minor was present, as was his mother.⁵ An attorney in the public defender's office accepted an appointment to represent Minor, and acknowledged receipt of the petition. After a quick discussion of other topics, the juvenile court judge and Minor's counsel had the following exchange: "THE COURT: . . . . The DA filed a DEJ eligibility form in this case, which Count One, it's obvious. Count Two surprised me a little bit, that that would be DEJ eligible. [¶] Do you know if that's correct?" "[Minor's counsel]: I don't know. I haven't received - - I saw the DEJ eligibility, but since today was only a detention hearing, I really haven't gotten that far, in terms of resolution, so I don't know." "THE COURT: Okay. I mean, maybe because it's a 664 that makes it somehow."⁶ "[Minor's counsel]: That actually may be right." "THE COURT: But it also may be that they can't make that count. I don't know based on what I read in the detention report, but you all may want to sort that out, which it's - - if you're going to do that, better sooner rather than later, right?" "[Minor's counsel]: Right." "THE COURT: Okay." "[Minor's counsel]: I'll make a note." The parties agree this was the only hearing in which the DEJ issue was discussed.

Two weeks later, on August 25, 2015, the district attorney amended the petition, to allege in the first count that the attempted oral copulation had been forcible. (Pen. Code, §§ 664/288a, subd. (c)(2)(B).) On September 11, 2015, the district attorney amended thepetition again to add count three, alleging that, between January 1, 2013 and March 27, 2014, Minor committed a lewd act upon K.M.,⁷ then a child under the age of 14 (Pen. Code, § 288, subd. (a)).⁸

Fifteen months later, on December 9, 2016, the matter was set for a contested jurisdictional hearing. Because the prosecutor had failed to subpoena the witnesses and did not have good cause for a continuance, however, the juvenile court granted the prosecutor's request to dismiss and refile the original and amended petitions without substantive change. The contested jurisdictional hearing commenced the following month, on January 13, 2017. The hearing continued and was completed on January 17, 2017. The prosecutor called the two sisters as witnesses. Minor called his aunt and the lead detective as witnesses. At the conclusion of the hearing, the juvenile court sustained counts two and three.⁹ The court also sustained a lesser included offense for count one, attempted forcible oral copulation in violation of Penal Code section 288a, subdivision (c)(2)(A).¹⁰

The dispositional hearing was held on February 28, 2017. In advance of the hearing, Minor was evaluated by a psychologist who rated him a low risk to sexually reoffend.¹¹ Relying in part on this evaluation, the probation officer recommended probation. The probation officer reasoned that, although "extremely serious," the charged offenses represented Minor's first formal petition, and appeared to be a crime of opportunity, that Minor had remained offense-free in the community for almost two years since the charged events, had no reported behavioral issues, and was receptive and appropriate for community treatment.

The juvenile court concurred, and placed Minor on probation in the custody of his parents, imposing various terms and conditions. Among other things, Minor's probation conditions included the following: (1) Minor may not possess "any pornographic material, including accessing, downloading, or viewing internet pornography"; (2) Minor's "[c]omputer use limited to educational purposes" and "must be supervised by an adult"; (3) Minor may not engage in "interactive web sites including Facebook or any social networking [s]ites"; (4) Minor must submit his computer "and any means of electronic communication, such as cell phone, . . . to search and seizure"; and (5) Minor may not "have contact with juveniles under the age of 14", or be alone in the home with juveniles under the age of 14.

This timely appeal followed.

II. DISCUSSION

A. The Case Must Be Remanded For A Determination Regarding Minor's Suitability For Deferred Entry Of Judgment.

Minor contends reversible error occurred, requiring that the jurisdictional and dispositional orders be set aside, because his parents were not personally served with a properly completed JV-751 form, and the juvenile court never offered him a DEJ hearing. We agree that the DEJ statutory procedures were not followed.

1. The DEJ Statutory Scheme

The DEJ procedure is described in section 790 et sequitur, which is "part of the Gang Violence and Juvenile Crime Prevention Act of 1998 enacted with the adoption of Proposition 21 in March 2000. [Citation.]" (Trenton D., supra, 242 Cal.App.4th at p. 1322.) Under that statutory scheme, " '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 the 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), 793, subd. (c).)' [Citation.]

"A juvenile is eligible for a DEJ if (1) the minor has not previously been adjudged a ward of the court for the commission of a felony offense, (2) the charged offense is not listed in section 707, subdivision (b), (3) the minor has not previously been committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, (4) probation has never been revoked for the minor without having been completed, (5) the minor is at least 14 years old, (6) the minor is eligible for probation under Penal Code section 1203.06, and (7) the charged offense is not rape or other specified sexual offenses. (§ 790, subd. (a).) The prosecuting attorney 'shall' review the file to determinewhether the minor is eligible for a DEJ, and if the minor is found to be eligible, inform the court and the minor of the 'grounds upon which the determination is based' (§ 790, subd. (b)) by filing Judicial Council form JV-750 (Determination of Eligibility-Deferred Entry of Judgment-Juvenile). (Cal. Rules of Court, rule 5.800(b)(1).)" (Trenton D., supra, 242 Cal.App.4th at pp. 1322-1323.) It is undisputed that Minor was eligible for a DEJ and that the district attorney filed the necessary DEJ eligibility form.

Under section 791, subdivision (a), the prosecuting attorney's written notification to the minor must include specified information about the DEJ procedures. The required information is printed on the second page of the JV-751 form (Trenton D., supra, 242 Cal.App.4th at p. 1323), and the district attorney attached that second page to the DEJ...