People v. R.G. (In re R.G.)

• Decision Date: 11 December 2017
• Docket Number: E067486
• Citation: 226 Cal.Rptr.3d 781,18 Cal.App.5th 273
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE R.G., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. R.G., Defendant and Appellant.

18 Cal.App.5th 273

226 Cal.Rptr.3d 781

IN RE R.G., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent,

v.R.G., Defendant and Appellant.

E067486

Court of Appeal, Fourth District, Division 2, California.

Filed December 11, 2017

Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

On July 23, 2013, the juvenile court declared defendant and appellant, R.G. (Minor, born in April 2000), a dependent of the court. On October 27, 2016, while Minor remained a dependent of the juvenile court, the People filed a juvenile wardship petition alleging Minor had committed misdemeanor battery. ( Pen. Code, § 242 ; count 1.)¹

On November 22, 2016, after denying Minor's request to refer the matter for a Welfare and Institutions Code section 241.1² assessment and report, Minor admitted the allegation that she had committed misdemeanor battery. The court declared Minor a ward of the court, placed her on formal probation, placed her in the custody of the San Bernardino County Department of Children and Family Services (CFS), and scheduled the matter for a hearing pursuant to section 241.1. After subsequently receiving a section 241.1 report, the court again declared Minor a ward of the court with "CFS lead jurisdiction."³

On appeal, Minor contends the juvenile court prejudicially erred by refusing to refer the matter for a section 241.1 assessment, report, and hearing prior to taking jurisdiction, resulting in violations of Minor's statutory and due process rights. Moreover, Minor asserts that the subsequent section 241.1 report and hearing were statutorily inadequate. Minor maintains these errors resulted in prejudicial, reversible error. CFS maintains Minor forfeited any contention the section 241.1 report was untimely or inadequate and that any error was harmless. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND⁴

On October 26, 2016, Minor attempted to slap the victim, accusing the victim of sleeping with Minor's best friend. The victim blocked the slap. An officer apparently arrested, cited, and released Minor to her foster mother that day.

At a prehearing on October 31, 2016, it was noted that the parties had agreed to informal probation; however, the court rejected that agreement: "So just to let [Minor] and [the foster mother] know, we did have an off-the-record discussion. I did receive an informal probation stipulation, but then [the People] pointed out there is a sealed case that may potentially impact the [section] 654 [resolution].^{[5 ]}[¶] And in addition, the court note[s] that there are two settled-out-of-court cases involving [section] 261.5 as well as [section] 496[, subdivision] (a), which concerns the court, and the court feels uncomfortable at this point agreeing to the informal probation without further social studies. And that's why we are requesting a [jurisdiction/disposition] report with full social studies."

On November 22, 2016, the probation department filed a report. The report includes a recitation of Minor's previous juvenile delinquency history, including an arrest on February 26, 2013, for unlawful sex with a minor;⁶ an arrest on June 25, 2013, for receiving stolen property;⁷ an arrest on September 1, 2015, for unlawful taking or driving of a vehicle;⁸ and an arrest on February 26, 2016, for fighting at school.⁹ It is noted in the report that Minor had been suspended from school 13 times for defiance and fighting; she had been expelled three times for nonattendance, truancy, and defiance; and she had 11 unexcused absences during the current school year.

The report further includes a description of Minor's dependency proceedings: the juvenile court had declared Minor a dependent of the court on July 23, 2013, pursuant to section 300, subdivisions (b) and (g) when Minor was living with her paternal grandmother.¹⁰ Both Minor's mother and father were drug addicts with criminal histories. Minor reported her mother left her in the care of her father who was using drugs who, in turn, left her in the care of her grandmother. It was reported that Minor had been a victim of frequent sexual assaults by her father at the age of 13 and had suffered physical abuse by both her father and grandmother.

Minor reported living in group homes beginning in 2012 when her grandmother no longer wished to care for her.¹¹ In May 2016, Minor reported she began living in a foster care home. Minor said she "loves her present home and gets along well with everyone." Minor's behavior had apparently improved since being placed in the home. Minor's foster mother reported Minor had been in the home for six months; she got along with everyone and was doing well. Minor had been diagnosed with asthma and bipolar disorder. Minor had been assessed as having the mental intellect of a nine year old pursuant to an IQ test administered on August 19, 2015. Minor was receiving counseling and participating in Wraparound services provided by CFS. The probation report recommended Minor be given formal probation as a ward under which she should continue active participation in individual counseling and other services provided by CFS.¹² The report concluded: "The youth is in the custody of [ ]CFS and is a [section] 300 dependent. The matter has not yet been referred to the [ section] 241.1 committee to determine which agency will be the lead, as such, terms and conditions will be submitted as an Order of the Court."

On November 22, 2016,¹³ the juvenile court held a pretrial hearing wherein Minor's counsel made the following request: "I think at this time what we're seeking is to send it to the [section] 241[.1] court before we do any resolution here. They need to assess it for—to make sure that what we work out up here is actually in compliance with what they work out there. And so ... our [section] 241[.1] attorney, contacted us by e-mail this morning and asked that we send it to the [section] 241[.1] court."¹⁴ The court responded: "I can do that but only after dispo[sition] here." Minor's counsel replied: "We're having some difficulty down in the [section] 241[.1] court, because in the previous months past—I've been told in months past the way we've resolved those is to send it to [the section] 241[.1] [court] first, and that way everything was done in conjunction with what they were doing down there. Subsequently, in the last couple of months that process has kind of been [changed]."

Minor's counsel further observed: "And the [section] 241[.1] partners, because I was handling [section] 241[.1] court last Tuesday, were very concerned about the change, because what's happening in the courts on cases where things are being resolved and we do our dispositional hearings—[¶] ... [¶]—then they get to the [section] 241[.1] court, and they're unable to give them sanctions for violations of placement terms and things like that. So they want to have a meeting with the court and counsel to try to get back to the old system. [¶] And our attorney, in particular, ... has specifically requested this case go to [section] 241[.1] for a resolution."

The court replied: "Okay. Until that change actually happens and that conversation happens with Judge Pace as well as Judge Marshall—Judge Pace is the supervising and Judge Marshall is in J-5 doing [section] 241[.1]s—I can't do that change here; otherwise, they'll send it back. And apparently this process was in place before, and then it was changed to the other process that you know of—[¶] ... [¶]—and now it's changed back to the old process. So I've already had discussions with Judge Pace and Judge Marshall about this. And we've tried to send [section] 241[.1] cases down there ...." "So it's going to have to [go] after dispo[sition] until that change is officially made."

After the court reviewed Minor's sealed record, it again rejected the program of supervision agreement whereby Minor would receive informal probation: "I think that formal probation is appropriate in this case." Minor's counsel then conferred with Minor. Before taking Minor's admission, the court informed Minor that by admitting to the allegation, "[t]he court can also place you in a locked facility like juvenile hall[ ]" for up to six months. Thereafter Minor admitted the truth of the allegation in count 1. The court found Minor a ward of the court pursuant to section 602, placed Minor on formal probation, and dismissed count 2.

The court then observed: "So at this point I'm not sure whether [ ]CFS is going to be the lead or probation is going to be the lead. I suspect it will be probation." Minor's counsel responded: "We'll refer it down to the [ section 241.1 ] team, and they can make the decision." The court replied: "And is there a reason why they want this case referred down to [the section] 241[.1] [team]?" Minor's counsel responded: "I believe so that they—so that terms and conditions of probation can comply with the terms of her placement. [¶] What happened last week on another—on obviously another situation was that one hand didn't know what the other hand was doing, and once cases were resolved in court, it tied the hands of the [section] 241[.1] team with regard to what consequences they could impose." The court referred the matter for a section 241.1 assessment and set a section 241.1 hearing for December 12, 2016.

The probation department alone submitted a section 241.1 report dated December 2, 2016. The probation officer noted that on "November 22, 2016, at a Pretrial Hearing the youth was declared a ward of the court and dual status with the Department of Children and Family Services as the lead agency following the sustained allegation ...."¹⁵ The probation officer reported that Minor had "been sexually violated prior to becoming a...