People v. W.V. (In re W.V.)

• Decision Date: 11 March 2013
• Docket Number: A134381
• Parties: In re W.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. W.V., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

In re W.V., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. W.V., Defendant and Appellant.

A134381

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

Filed: March 11, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(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 602¹ was filed against W.V., alleging five felony 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),² which indicated that W.V. was eligible for 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."

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." 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."

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.³ Among other probation conditions, the 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, submit to polygraph testing . . . ." (Italicsadded & 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. Polygraph Testing

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 Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319 (Brown) [rejecting argument that polygraph condition is per se invalid and illegal]; People v. 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' "]; § 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 enhanced"].)

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 in any criminal case to be a witness against himself." (U.S. Const., 5th Amend., italics added.) The Fifth Amendmentprivilege 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.]" (People v. Cudjo (1993) 6 Cal.4th 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. (In re Sheena K. (2007) 40 Cal.4th 875, 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.' " (Pacific Legal...