Filed 6/29/15 In re Victor C. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re Victor C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A141599
v.
(Mendocino County Super. Ct.
VICTOR C., No. SCUK JDSQ 13-1691201-002)
Defendant and Appellant.
Victor C. appeals from the juvenile court’s jurisdiction findings and an order
declaring him a ward of the court. Victor, who was 16 years old at the time of the
offenses, was found to have carried a concealed dirk or dagger (Pen. Code, § 21310) and
resisted a police officer (id., § 148, subd. (a)(1)). On appeal, Victor contends his trial
counsel was ineffective for failing to move to suppress evidence purportedly obtained
through an illegal detention and arrest; the jurisdictional findings are not supported by
substantial evidence; and the juvenile court abused its discretion by denying his motion
for informal supervision, under Welfare and Institutions Code section 654.2.1 We agree
that substantial evidence does not support the juvenile court’s finding that Victor
concealed a knife on his person. Accordingly, we remand for a new disposition hearing.
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 25, 2013, around 3:00 a.m., Fort Bragg Police Officer Jeremy
Mason was patrolling, in uniform and a marked police car, in an area that had recently
reported multiple mail thefts. Specifically, Mason testified that on the previous day
approximately 47 thefts had been reported of “gifts, money, gift cards all that kind of
stuff sent during the holiday season.” It was raining intermittently and several street
lights were out, “so it was very dark.”
Mason noticed someone wearing dark clothes walking eastbound on the sidewalk
of East Pine Street: “[W]hen I first saw the person, I was quite a distance away and the
only thing I noted was that it was early morning hours and the person was in dark
clothing on Christmas, it seemed suspicious to me.” Mason maneuvered his car to get
closer and drove very slowly. Mason didn’t see anyone, “which seemed odd.” Once past
the area where he had seen the person, Mason looked in his rearview mirror and noticed
“something underneath a SUV . . . in the area I had seen the person in the first place.”
Mason turned his car around and returned to the location “to try to figure out what
that object was. [¶] . . . [¶] Initially it looked like some kind of cat or something, it was a
white object moving around oddly.” Mason then saw “two legs and shoes of a person.
[¶] . . . [¶] . . . And as I was driving eastbound I noted the person[, later identified as
Victor,] was now staying, keeping the vehicle between themselves and me.” Mason was
asked, “were you able to see the top part of [Victor’s] body?” Mason responded, “[n]ot
at all.” Thinking Victor was “acting very suspiciously,” Mason got out of his car and
approached on foot. Victor “stood up” and started walking westbound away from
Mason.
Mason called out, “Hey, over there, what are you doing?” Victor did not respond
to being addressed in a “normal tone,” so Mason “upped [the] level of authority” in his
voice and repeated the question. When Victor still failed to respond, Mason approached
so that he was about 10 feet away from Victor and yelled, “Hey, stop.” Victor started to
run, and as Mason gave chase he heard an object fall from Victor and hit the ground.
Mason could not initially see what fell, but could tell from the noise that it was metal.
2
Victor eventually slipped and fell. Mason fell on top of Victor and placed him in
handcuffs. After Victor was placed in a police car, Mason returned to the area where
Victor had been running to look for stolen items. Mason found a large knife and a sheath
on the ground. The knife blade was about six inches long. Mason believed that the knife
fell from Victor’s person, and he was certain that it could not have fallen out of Victor’s
pant leg or hands. Victor wore “a large dark shirt with dark pants.” Mason said, “if I
recall correctly” Victor’s shirt was not tucked in. Mason could not remember whether
Victor was wearing a belt. Mason reviewed his report and stated, “I don’t specifically
see where I noted that he was wearing a belt.”
Victor was taken to the Fort Bragg police station. Victor was intoxicated. After
being allowed to use the restroom at the police station, he shoved Mason out of the way,
fled outside to the parking lot, and unsuccessfully attempted to scale a chain link fence
topped with three feet of barbed wire. During booking, Victor responded affirmatively to
a question about whether he intended to harm himself. Mason testified: “He [stated he]
was going to use his knife [to cut his throat] and pointed to the knife that was sitting next
to me on the booking table . . . .”2
The Mendocino County District Attorney filed a section 602 petition, which
charged Victor with carrying a concealed dirk or dagger (Pen. Code, § 21310; count one);
prowling (id., § 647, subd. (h); count two); obstructing or resisting a police officer (id.,
§ 148, subd. (a)(1); counts three and five); and violation of curfew (Mendocino County
Code, §§ 8.08.010, 8.08.030; count four).3 Victor was detained for further investigation
of his claims that he wanted to harm himself and that he suffered physical abuse at home.
2 Defense counsel objected to admission of Victor’s statement regarding the knife,
relying on Miranda v. Arizona (1966) 384 U.S. 436. The juvenile court overruled the
objection because Victor’s incriminating statement was made in response to standard
booking questions and not during custodial interrogation. (See People v. Williams (2013)
56 Cal.4th 165, 187, disapproved on other grounds by People v. Elizalde (June 25, 2015,
S215260) ___ Cal.4th ___.)
3 Victor filed a successful demurrer against count two. Count four was later
dismissed on the People’s motion.
3
At the contested jurisdictional hearing, the juvenile court found counts one, three,
and five to be true. At disposition, the court elected to treat count one, a “wobbler,” as a
misdemeanor. The court adjudged Victor a ward of the court and imposed formal
probation in parental custody. The court explained: “And because there [are] some
issues with regards to the family, . . . I’m concerned about the lack of candor and
cooperation during the interview, there was a lot of contradictory information there. I’m
going to follow probation’s recommendation and declare Victor a ward as opposed to
adopt the defense request for informal probation.” Victor filed a timely notice of appeal.
II. DISCUSSION
Victor contends: (1) his trial counsel was ineffective for failing to move to
suppress evidence purportedly obtained through an illegal detention and arrest; (2) the
juvenile court’s jurisdictional findings are not supported by substantial evidence; and
(3) the juvenile court abused its discretion by denying his motion for informal
supervision, under section 654.2, without obtaining a more detailed report from the
probation department. We conclude that Victor’s substantial evidence argument has
merit with respect to count one.
A. Fourth Amendment
Victor contends that the knife and his statement about the knife should have been
suppressed as the fruits of an illegal detention or arrest. Recognizing the claim was
forfeited by failure to raise it below, Victor argues that his trial counsel was ineffective in
failing to move to suppress.
To establish ineffective assistance of counsel, a defendant must show:
(1) counsel’s performance was so deficient that it fell below an objective standard of
reasonableness, under prevailing professional norms, and (2) the deficient performance
was prejudicial, rendering the results of the trial unreliable or fundamentally unfair.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 692; People v. Ledesma (1987)
43 Cal.3d 171, 216–217.) As an ineffective assistance of counsel claim fails on an
insufficient showing of either element, a court need not decide the issue of counsel’s
alleged deficiencies before deciding if prejudice occurred. (People v. Rodrigues (1994)
4
8 Cal.4th 1060, 1126.) Generally, prejudice must be affirmatively proved. (Strickland, at
p. 693.)
“The Sixth Amendment does not require counsel to raise futile motions.” (People
v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24.) Thus, “[a] claim of ineffective assistance
of counsel based on a trial attorney’s failure to make a motion or objection must
demonstrate not only the absence of a tactical reason for the omission [citation], but also
that the motion or objection would have been meritorious, if the defendant is to bear his
burden of demonstrating that it is reasonably probable that absent the omission a
determination more favorable to defendant would have resulted.” (People v. Mattson
(1990) 50 Cal.3d 826, 876.) We agree with the People that a motion to suppress would
not have been successful.
1. Reasonable Suspicion
Victor contends his detention violated the Fourth Amendment because Mason had
no reason to believe Victor was involved in criminal activity. “The Fourth Amendment
protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v.
Ohio (1968) 392 U.S. 1.) ‘A detention is reasonable under the Fourth Amendment when
the detaining officer can point to specific articulable facts that, considered in light of the
totality of the circumstances, provide some objective manifestation that the person
detained may be involved in criminal activity.’ (People v. Souza (1994) 9 Cal.4th 224,
231.)” (People v. Hernandez (2008) 45 Cal.4th 295, 299.)
“ ‘ “[I]n order to justify an investigative stop or detention the circumstances
known or apparent to the officer must include specific and articulable facts causing him
to suspect that (1) some activity relating to crime has taken place or is occurring or about
to occur, and (2) the person he intends to stop or detain is involved in that activity. Not
only must he subjectively entertain such a suspicion, but it must be objectively reasonable
for him to do so: the facts must be such as would cause any reasonable police officer in a
like position, drawing when appropriate on his training and experience [citation], to
suspect the same criminal activity and the same involvement by the person in question.
The corollary to this rule, of course, is that an investigative stop or detention predicated
5
on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in
complete good faith.” ’ ” (People v. Pitts (2004) 117 Cal.App.4th 881, 885.) In
determining the reasonableness of a detention, we must consider “the totality of the
circumstances—the whole picture . . . . [¶] [A]n assessment of the whole picture must
yield a particularized suspicion . . . [¶] . . . [¶] that the particular individual being stopped
is engaged in wrongdoing.” (United States v. Cortez (1981) 449 U.S. 411, 417–418.)
Victor premises his Fourth Amendment argument on the notion that he was
detained when Mason ordered him to stop and that nothing was suspicious about
“walking with parked cars between himself and Officer Mason’s police car . . . because
there are always parked cars separating a person walking on the sidewalk from a person
driving along in the road.” In contrast, the People maintain no seizure occurred until
Victor was handcuffed and seizure at that time was justified in the “totality of
circumstances” of Victor’s act of “hiding under a parked car,” his flight, and the falling
metallic object. Neither party accurately characterizes Mason’s testimony. Although the
record is ambiguous, it supports a reasonable inference that Mason observed Victor
attempting to hide behind, but not under, the SUV. However, the People are correct on
the legal point.
“A seizure through a show of authority occurs when a reasonable person would
not believe he or she is free to leave or to decline an officer’s request.” (People v. Bates
(2013) 222 Cal.App.4th 60, 65.) The United States Supreme Court has made clear,
however, that this test “states a necessary, but not a sufficient, condition for seizure.”
(California v. Hodari D. (1991) 499 U.S. 621, 628.) “[F]or purposes of the Fourth
Amendment, a seizure does not occur where a suspect does not yield to an officer’s show
of authority.” (People v. Magee (2011) 194 Cal.App.4th 178, 191, fn. 12, citing
Hodari D., at pp. 625–626.) In other words, an attempted seizure is not a seizure.
Had Victor in fact stopped on Mason’s initial order to do so, he clearly would have
been detained. And assuming for purposes of argument that Victor was detained when
Mason instructed him to stop, the detention was nonetheless lawful. Before giving the
order to stop, Mason observed Victor walking outside at 3:00 a.m. on a rainy night in an
6
area where multiple thefts had recently occurred. Although “time and location of an
encounter are insufficient by themselves to cast reasonable suspicion on an individual”
(People v. Medina (2003) 110 Cal.App.4th 171, 177), such factors are relevant to a
determination of “whether the circumstances are sufficiently suspicious to warrant further
investigation.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124; People v. Pitts, supra,
117 Cal.App.4th at p. 887.)
Here, sufficient additional context justified Mason’s suspicion. When Mason
drove by in his marked police car, Victor attempted to hide behind an SUV. When
Mason approached, Victor turned and walked in the direction from which he had just
come. “[A] refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure” (Florida v. Bostick (1991)
501 U.S. 429, 437), but “nervous, evasive behavior is a pertinent factor in determining
reasonable suspicion.” (Illinois v. Wardlow, supra, 528 U.S. at p. 124; see also People v.
Souza, supra, 9 Cal.4th at pp. 234–235 [“that a person approached by police for
questioning may decline to answer the questions and ‘may go on his way,’ does not imply
that the manner in which a person avoids police contact cannot be considered . . . by
courts assessing reasonable cause”].)
People v. Souza, supra, 9 Cal.4th 224, is illustrative. In Souza, police noticed the
defendant standing next to a parked car, in a high crime area, and talking to its occupant.
It was 3:00 a.m. and very dark. When the police turned on a spotlight, the defendant ran,
and narcotics were discovered after he was apprehended and frisked. (Id. at p. 228.) Our
Supreme Court affirmed the denial of his motion to suppress, concluding that the Fourth
Amendment was not violated because the detention occurred in a high crime area, late at
night, after the defendant exhibited suspicious behavior and then ran from police. (Id. at
p. 242.) Here, just as in Souza, Mason had a reasonable basis to suspect that Victor was
involved in criminal activity before giving the order to stop.4
4Victor misplaces his reliance on In re Tony C. (1978) 21 Cal.3d 888, which was
superseded on other grounds by the passage of Proposition 8 (Cal. Const., art. I, § 28). In
Tony C., a highway patrol officer stopped two black youths walking on the sidewalk in
7
2. Probable Cause
After Mason told Victor to stop, Victor ignored the order and ran. Only when
Victor fell and was handcuffed was he seized within the meaning of the Fourth
Amendment. (See California v. Hodari D., supra, 499 U.S. at pp. 625–626; People v.
Magee, supra, 194 Cal.App.4th at p. 191, fn. 12.) It appears undisputed that Mason’s
seizure of Victor, at that point, went beyond a temporary detention and became an arrest.
(See People v. Stier (2008) 168 Cal.App.4th 21, 27 [“[h]andcuffing substantially
increases the intrusiveness of a detention and is not part of a typical detention”].)
“A warrantless arrest in a public place does not violate the Fourth Amendment so
long as the police have probable cause. [Citation.] . . . ‘Probable cause exists when the
facts known to the arresting officer would persuade someone of “reasonable caution” that
the person to be arrested has committed a crime. [Citation.] “[P]robable cause is a fluid
concept—turning on the assessment of probabilities in particular factual contexts . . . .”
[Citation.] It is incapable of precise definition. [Citation.] “ ‘The substance of all the
definitions of probable cause is a reasonable ground for belief of guilt,’ ” and that belief
must be “particularized with respect to the person to be . . . seized.” ’ ” (People v. Lujano
(2014) 229 Cal.App.4th 175, 183.)
Victor contends that Mason lacked probable cause to arrest because “Mason never
had reason to believe that [Victor] was carrying a concealed weapon or had committed
any other crime.” The People, on the other hand, suggest that Mason had probable cause
to arrest Victor after finding the knife. But the knife was only discovered after Victor
the middle of the day because he had “learned informally” the previous day that several
burglaries had been reported in the area and “ ‘three male blacks’ were being sought.”
(Id. at p. 896.) The reviewing court found the detention unsupported by reasonable
suspicion because “[t]here is nothing suspicious in the sight of two school children
walking along the sidewalk during the noon hour . . . .” (Id. at p. 897.) “To [uphold the
detention] would authorize the police to stop and question every black male, young or
old, in an area in which a few black suspects were being sought. Such wholesale
intrusion into the privacy of a significant portion of our citizenry would be both socially
intolerable and constitutionally impermissible.” (Id. at p. 898, fn. omitted.) The facts
before us are readily distinguishable.
8
was handcuffed and placed in a police car. Nonetheless, by the time Victor was
handcuffed, Mason had probable cause to believe he was guilty of resisting arrest (Pen.
Code, § 148, subd. (a)).5
“ ‘The legal elements of a violation of [Penal Code] section 148, subdivision (a)
are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer,
(2) when the officer was engaged in the [lawful] performance of his or her duties, and
(3) the defendant knew or reasonably should have known that the other person was a
peace officer engaged in the performance of his or her duties.’ ” (People v. Ghebretensae
(2013) 222 Cal.App.4th 741, 759, italics added & brackets in original; In re
Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [“physical resistance, hiding, or
running away from a police officer have been found to violate section 148”].) When a
police officer has the legal right to detain a minor, a minor’s flight which delays the
officer’s ability to effect a lawful detention violates Penal Code section 148, provided the
person fleeing knows the officer wishes to detain him. (In re Gregory S. (1980)
112 Cal.App.3d 764, 778; People v. Allen (1980) 109 Cal.App.3d 981, 985–987.) At no
time has Victor argued that he was unaware of Mason’s wish to detain him and, as
discussed ante, that attempted detention was supported by reasonable suspicion. Thus,
by observing Victor’s actions thereafter, Mason had probable cause to arrest. (People v.
Allen, supra, 109 Cal.App.3d at p. 987 [police officer had probable cause to arrest for
violation of Pen. Code § 148 when defendant ran and hid in attempt to avoid lawful
detention].)
3. Ineffectiveness of Counsel
Having concluded that Mason had both the legal right to detain Victor and
subsequent probable cause to arrest him, a motion to suppress the knife and Victor’s
statement about the knife as the fruits of an illegal detention or arrest would have been
5 “Every person who willfully resists, delays, or obstructs any . . . peace officer . . .
in the discharge or attempt to discharge any duty of his or her office or employment” is
guilty of a misdemeanor. (Pen. Code, § 148, subd. (a)(1).)
9
properly denied. Trial counsel did not render ineffective assistance by failing to make a
motion that would not have been successful.
B. Resisting Arrest
Victor makes a related argument that the juvenile court’s true findings on counts
three and five are not supported by substantial evidence. When faced with such a
challenge, “the court must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)
26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318–319; In re
Jose R. (1982) 137 Cal.App.3d 269, 275.) “A reviewing court must accept logical
inferences the [fact finder] might have drawn from the circumstantial evidence.
[Citation.] ‘ “A reasonable inference, however, ‘may not be based on suspicion alone, or
on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A
finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.’ ” ’ ” (People v. Sifuentes (2011) 195
Cal.App.4th 1410, 1416–1417.)
Victor’s position is that there was insufficient evidence that Mason was acting
lawfully when he attempted to detain Victor. (See Yount v. City of Sacramento (2008)
43 Cal.4th 885, 894 [Pen. Code, § 148, subd. (a)(1) “requires that the officer be lawfully
engaged in the performance of his or her duties” (italics omitted)].) “ ‘Under California
law, an officer is not lawfully performing her duties when she detains an individual
without reasonable suspicion or arrests an individual without probable cause.’ ” (Garcia
v. Superior Court (2009) 177 Cal.App.4th 803, 819, italics omitted.) Specifically, Victor
contends that Mason was acting unlawfully “by attempting to detain him without
reasonable suspicion, and by then arresting him without probable cause.” We have
already rejected these arguments.
When Mason yelled “stop,” he had reasonable suspicion justifying his attempt to
detain Victor. Victor resisted when he ran thereafter. (See In re Gregory S., supra,
10
112 Cal.App.3d at p. 778.) Mason also had probable cause to arrest Victor. (See People
v. Allen, supra, 109 Cal.App.3d at pp. 985–987.) Substantial evidence supports the true
findings on counts three and five.
C. Carrying a Concealed Dirk or Dagger
Victor also challenges the juvenile court’s true finding on count one—carrying a
concealed dirk or dagger (Pen. Code, § 21310). He contends the finding “should be
reversed for lack of any [substantial] evidence that the knife carried on [Victor’s] person
was concealed.” We agree.
In relevant part, Penal Code section 21310 provides: “[A]ny person in this state
who carries concealed upon the person any dirk or dagger is punishable by imprisonment
in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of
Section 1170.” Only substantial concealment, not complete concealment, is required
under the statute. (People v. Wharton (1992) 5 Cal.App.4th 72, 75 [knife concealed
where “one and one-half to two inches of the [knife] blade were protruding from
defendant’s pocket”].) However, a knife carried openly, in an ordinary sheath suspended
from the waist is not “concealed.” (In re Alfredo S. (1984) 162 Cal.App.3d 800, 802.)
With respect to its true finding on count one, the juvenile court explained:
“Although there was not direct evidence of where this knife was concealed on Victor’s
person, the testimony of the officer established that Victor was wearing dark pants and a
large untucked dark shirt, there was no evidence of any belt found on Victor on the date
in question. The officer heard the knife fall, he wrote in his report that he saw something
fall from Victor’s person and Victor admitted during his comments in response to
booking questions that the knife, in fact, was his knife.” (Italics added.)
Victor contends that the only reasonable inference from the record is that it was
simply not known where Victor carried the knife. He relies on the facts that it was very
dark, Mason did not actually see the knife fall, and Mason was certain the knife did not
fall from Victor’s pant leg. When Mason recovered the knife, he found its sheath nearby.
In fact, on cross-examination Mason was asked, “So it had to fall from where, on the
11
outside of his pants where you would see it? Is that a ‘yes’?” (Italics added.) The
prosecutor raised no objection to the question and Mason answered, “Yes.”
To support the juvenile court’s finding, the People rely on Mason’s testimony that
he could see Victor’s hands during the chase, Victor was not holding the knife in his
hands, Victor wore “a large dark shirt with dark pants,” and, “[i]f [he] recall[ed]
correctly,” Victor’s shirt was not tucked into his pants. The People also contend that
Victor “was not wearing a belt.” But Mason only testified that he could not recall exactly
what Victor was wearing when arrested, he could not recall whether Victor wore a belt,
and no mention of a belt was made in his report. This testimony is not substantial
evidence that Victor was not wearing a belt. (Louis & Diederich, Inc. v. Cambridge
European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1591–1592 [“ ‘I don’t recall’ ”
testimony is insufficient to support a finding that event not recalled either did or did not
occur].) The fact that Mason did not see the knife before it was recovered on the
sidewalk is not substantial evidence of concealment in the circumstances present here—
where it was very dark and, before the knife fell, Mason did not see anything but Victor’s
back and feet at a close distance. The People and juvenile court appear to rely on nothing
more than the possibility that the knife was concealed under Victor’s clothing. “A
theoretical possibility is not the equivalent of substantial evidence.” (Roddenberry v.
Roddenberry (1996) 44 Cal.App.4th 634, 646, fn. omitted.)
Substantial evidence does not support the juvenile court’s finding that Victor
concealed a dirk or dagger on his person. “The Double Jeopardy Clause forbids a second
trial for the purpose of affording the prosecution another opportunity to supply evidence
which it failed to muster in the first proceeding.” (Burks v. United States (1978) 437 U.S.
1, 11, fn. omitted; accord, People v. Hatch (2000) 22 Cal.4th 260, 271–272; In re
Johnny G. (1979) 25 Cal.3d 543, 546.) Accordingly, the true finding on count one must
be reversed and retrial is barred.
D. Informal Supervision Under Section 654.2
Finally, Victor argues that the juvenile court erred, at the outset of the
proceedings, by failing to exercise informed discretion with respect to informal
12
supervision under section 654.2. “In any case in which a probation officer, after
investigation of an application for a petition or any other investigation he or she is
authorized to make concludes that a minor is within the jurisdiction of the juvenile court
or will probably soon be within that jurisdiction, the probation officer may, in lieu of . . .
requesting that a petition be filed by the prosecuting attorney to declare a minor a ward of
the court under . . . Section 602 and with consent of the minor and the minor’s parent or
guardian, delineate specific programs of supervision for the minor, for not to exceed six
months, and attempt thereby to adjust the situation which brings the minor within the
jurisdiction of the court or creates the probability that the minor will soon be within that
jurisdiction.” (§ 654.) “[S]ection 654.2 was enacted to permit the court to order a
section 654 informal supervision program for a minor after a section 602 petition has
been filed.”6 (In re Adam R. (1997) 57 Cal.App.4th 348, 351–352, fn. omitted.) “[O]nce
a petition under section 602 is filed, institution of informal probation is no longer solely
the province of the probation officer, but that informal probation will be instituted on the
basis of court action. . . . Only the court may dismiss the section 602 petition, and neither
the district attorney, the minor’s counsel nor the probation officer can interfere with the
exercise of judicial power.” (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747.)
“[T]here is an obvious strong public policy interest in rehabilitating minors without, if
possible, making them wards of the juvenile court.” (In re Omar R. (2003)
105 Cal.App.4th 1434, 1439.)
1. Background
Approximately two weeks after the section 602 petition was filed, Victor filed a
section 654.2 motion requesting informal supervision. Victor’s counsel acknowledged
6 Section 654.2, subdivision (a), provides in relevant part: “If a petition has been
filed by the prosecuting attorney to declare a minor a ward of the court under
Section 602, the court may, without adjudging the minor a ward of the court and with the
consent of the minor and the minor’s parents or guardian, continue any hearing on a
petition for six months and order the minor to participate in a program of supervision as
set forth in Section 654. . . . If the minor successfully completes the program of
supervision, the court shall order the petition be dismissed.”
13
that informal supervision was only available to a first time offender charged with a felony
“in unusual cases.” (§ 654.3, subd. (h).)7 However, Victor’s trial counsel pointed out
that, in addition to having no prior juvenile record, Victor had a 3.46 grade point average
and was intoxicated and suicidal on the night of his arrest.
At the hearing, on January 21, 2014, the prosecutor indicated that she had not
received Victor’s moving papers. Victor’s counsel indicated he would agree to a week’s
continuance, but said, “I’d like to go forward.” Once given an opportunity to review the
motion, the prosecutor said she was “perfectly happy responding to [it] orally.” The
prosecutor argued: “The motion for informal probation, [Victor’s trial counsel] files
these very frequently, and the difficulty has always been for everyone is that in a case
like this, when it is the first petition or first encounter with the minor, nobody, not
probation, or anybody else, has a lot of information about the minor, about how he’s
doing in school, about the familial situation. [¶] . . . [¶] This was a situation in which
Victor was telling everybody who would listen that his parents were . . . abusing him and
were going to beat him if he went home and were going to kill him, and he was thinking
of taking his own life . . . . So, there was concern on the part of what was going on with
the family itself . . . . [¶] . . . [¶] . . . According to the [Child Protective Services] records,
there was no indication of ongoing physical abuse. . . . Their investigation indicated that
basically Victor had made it all up. [¶] And no one was then sure whether or not anything
that he said could be trusted. . . . [¶]. . . [¶] [Also], that fact pattern which is in the police
reports . . . plus the knife . . . , and his being out at three in the morning, and intoxicated,
7 Section 654.3 provides, in relevant part: “No minor shall be eligible for the
program of supervision set forth in Section 654 or 654.2 in the following cases, except in
an unusual case where the interests of justice would best be served and the court specifies
on the record the reasons for its decision: [¶] . . . [¶] (h) The minor is alleged to have
committed a felony offense when the minor was at least 14 years of age. Except in
unusual cases where the court determines the interest of justice would best be served by a
proceeding pursuant to Section 654 or 654.2, a petition alleging that a minor who is
14 years of age or over has committed a felony offense shall proceed under Article 20.5
(commencing with Section 790) or Article 17 (commencing with Section 675).” (Italics
added.)
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gives me pause to say I’m not consenting at this point to a 654.2. [¶] . . . [¶] This case had
a myriad of potential serious problems that probation might need to address in a formal
. . . manner or that a [dependency] court may need to address in a formal manner; but,
until we know more about it, I cannot agree, although I know I do not need to agree as a
matter of law. I could not recommend a 654.2 to this court until we have a little better
handle on what’s going on.”
The court also asked for the probation officer’s position, who said, “I think
probation [is] kind of in agreement with [the prosecutor.] I feel like there’s too many
concerns to allow a 654 at this time. I believe, with more discovery and more
investigation with the family, we can find out a little bit more.” Victor’s trial counsel
maintained that unusual circumstances justified informal supervision because “[w]e don’t
know where he carried that weapon” and “neither does the arresting officer. Number
one. [¶] Number two, [Victor] has a spotless record and an outstanding GPA. This is
what section 654 is designed for.”
The juvenile court denied the motion without prejudice, stating that Victor was not
generally eligible for informal supervision because he was charged with a felony. The
court also said: “While it is true that the referral back under 654.2 can be ordered over
the district attorney’s objection, it is discretionary with the court and it is discretionary
with probation whether they believe that the minor would benefit from such a program.
[¶] At the current time the court’s going to exercise its discretion to deny the referral back
without prejudice. If further facts come to light that warrant this and make the court
believe that it is in fact in this minor’s best interest, and that it is the exceptional case that
warrants a referral on a felony charge, it can be raised again.”
2. Analysis
Victor contends that the juvenile court abused its discretion in denying informal
supervision under section 654.2 because it acted without a detailed report from probation.
He points to California Rules of Court, rule 5.516(b), which provides: “In determining
whether to undertake a program of informal supervision of a child not described by rule
5.514(d), the social worker or probation officer must consider: [¶] (1) If the condition or
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conduct is not considered serious, whether the child has had a problem in the home,
school, or community that indicates that some supervision would be desirable; [¶]
(2) Whether the child and the parent or guardian seem able to resolve the matter with the
assistance of the social worker or probation officer and without formal court action; [¶]
(3) Whether further observation or evaluation by the social worker or probation officer is
needed before a decision can be reached; [¶] (4) The attitudes of the child and the parent
or guardian; [¶] (5) The age, maturity, and capabilities of the child; [¶] (6) The
dependency or delinquency history, if any, of the child; [¶] (7) The recommendation, if
any, of the referring party or agency; [¶] (8) The attitudes of affected persons; and [¶]
(9) Any other circumstances that indicate that a program of informal supervision would
be consistent with the welfare of the child and the protection of the public.” (Italics
added.)
Specifically, he asserts: “If a probation department has already done its job of
investigating whether a minor should be diverted pre-petition under section 654, then the
probation department can easily prepare a report providing the information which the
juvenile court needs to exercise informed discretion under section 654.2 should the minor
request post-petition diversion. In this case, however, the probation officer admitted that
the department had not conducted a thorough pre-filing section 654 investigation.”
However, Victor overlooks that the probation department did not have any prepetition
duty to assess informal supervision. (Cal. Rules of Court, rule 5.514(d) [“[t]he probation
officer must refer to the prosecuting attorney, within 48 hours, all affidavits requesting
that a petition be filed under section 602 if it appears to the probation officer that: [¶] . . .
[¶] (2) The child was 16 years of age or older on the date of the alleged offense and the
referral is for a felony offense”]; § 653.5, subd. (c)(3).)8 Victor was presumptively
8 “Whenever any person applies to the probation officer to commence proceedings
in the juvenile court, the application shall be in the form of an affidavit alleging that there
was or is within the county, or residing therein, a minor within the provisions of
Section 602, or that a minor committed an offense described in Section 602 within the
county, and setting forth facts in support thereof. The probation officer shall immediately
make any investigation he or she deems necessary to determine whether proceedings in
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ineligible for informal probation because of the felony allegations. (§ 654.3, subd. (h);
In re Spencer S. (2009) 176 Cal.App.4th 1315, 1328 [“in the aftermath of Proposition 21,
informal probation pursuant to programs of supervision is generally unauthorized for
juvenile felons aged 14 and older”]; Derick B. v. Superior Court (2009) 180 Cal.App.4th
295, 304 [“program of informal supervision under section 654 or 654.2 [generally]
applies only to first-time minor offenders who are alleged to have committed no more
than misdemeanors”].)
This presumption may be overcome “in an unusual case where the interests of
justice would best be served and the court specifies on the record the reasons for its
decision . . . .” (§ 654.3.) To the extent Victor is arguing that, even if probation had no
prepetition duty to investigate informal supervision, the trial court abused its discretion
by failing to order probation to submit a more detailed report prior the section 654.2
ruling, he forfeited the argument. (See In re Sheena K. (2007) 40 Cal.4th 875, 880 [“a
criminal defendant who does not challenge an assertedly erroneous ruling of the trial
court in that court has forfeited his or her right to raise the claim on appeal”]; In re M.V.
(2014) 225 Cal.App.4th 1495, 1508 [“courts have repeatedly held that a party’s failure to
object forfeits appellate review of the adequacy of—or the failure to prepare—mandatory
assessment reports in juvenile proceedings”]; In re Dakota H. (2005) 132 Cal.App.4th
212, 221 [“[a] party forfeits the right to claim error as grounds for reversal on appeal
when he or she fails to raise the objection in the trial court”].)
the juvenile court shall be commenced. If the probation officer determines that it is
appropriate to offer services to the family to prevent or eliminate the need for removal of
the minor from his or her home, the probation officer shall make a referral to those
services.” (§ 653.5, subd. (a).) “Notwithstanding subdivision (b), the probation officer
shall cause the affidavit to be taken within 48 hours to the prosecuting attorney in all of
the following cases: [¶] . . . [¶] If it appears to the probation officer that the minor was
14 years of age or older at the date of the offense and that the offense constitutes a felony
referral to the probation officer. [¶] . . . [¶] However, if it appears to the prosecuting
attorney that the affidavit was not properly referred, that the offense for which the minor
was referred should be charged as a misdemeanor, or that the minor may benefit from a
program of informal supervision, he or she shall refer the matter to the probation officer
for whatever action the probation officer may deem appropriate.” (§ 653.5, subd. (c)(3).)
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We are mindful that “Section 654 and [California Rules of Court, rule 5.516]
unequivocally require the probation officer to conduct an independent and careful review
of circumstances peculiar to each case in order to determine whether a particular accused
juvenile would be a suitable candidate for informal probation. [Citation.] The
requirement that each juvenile offender receive treatment as an individual is not satisfied
by an administrative policy of rejecting application for informal probation upon the sole
basis of the juvenile’s offense.” (Mark F. v. Superior Court (1987) 189 Cal.App.3d 206,
209–210.) The record makes clear that the probation officer considered Victor’s
individual circumstances, reported his recommendation to the juvenile court, and did not
base that recommendation solely on the nature of Victor’s offense. If the probation
officer’s report and recommendation was inadequate, the issue should have been raised
before the juvenile court when it could have been remedied. Instead, Victor’s counsel did
not object to the brevity or informality of the probation officer’s oral report and urged the
juvenile court to “go forward.”
III. DISPOSITION
The part of the juvenile court’s jurisdictional order sustaining the charges that
Victor violated Penal Code section 148, subdivision (a), is affirmed, and that part of the
order sustaining the charge of carrying a concealed dirk or dagger, in violation of Penal
Code section 21310, is reversed. The disposition order is vacated and the matter is
remanded to the juvenile court for a new disposition hearing.
_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
SIMONS, Acting P. J.
_________________________
NEEDHAM, J.
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