Filed 11/18/20 In re V.R. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re V.R., a Person Coming B300527
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. PJ53358)
THE PEOPLE,
Plaintiff and Respondent,
v.
V.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Morton Rochman, Judge. Dismissed in part and
affirmed in part.
Holly Jackson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
A juvenile wardship petition (Welf. & Inst. Code, § 602)
charged V.R. with criminal threats (Pen. Code, § 422, subd. (a))
and exhibiting a deadly weapon, a knife (Pen. Code, § 417, subd.
(a)(1)). Without prior notice to V.R., the juvenile court issued a
temporary restraining order, protecting the alleged victim and a
witness from V.R., and set the matter for a noticed hearing on a
permanent restraining order. At the noticed hearing, held prior
to adjudication, the juvenile court issued a three-year restraining
order against V.R., as to the alleged victim and the witness. On
appeal, V.R. challenges both orders, contending (1) the juvenile
court erroneously issued the temporary restraining order without
prior notice, and (2) insufficient evidence supports the permanent
restraining order. We dismiss the appeal from the temporary
restraining order as moot and affirm the three-year restraining
order.
BACKGROUND
I. Testimony at Probable Cause/Detention Hearing
At an August 5, 2019 probable cause/detention hearing on
the July 30, 2019 juvenile wardship petition against 14-year-old
V.R., Los Angeles Police Department Officer Todd Krudis
testified for the prosecution regarding the circumstances of the
criminal threats and exhibiting a deadly weapon charges.
According to Officer Krudis’s testimony, victim E.S., a minor,
reported to Krudis that in the afternoon on July 28, 2019, he was
standing on the sidewalk using his cell phone when two
2
individuals rode by him on bicycles and one of them grabbed his
cell phone out of his hand. E.S. was scared. He went home and
reported the incident to his adult brother L.S., who helped him
track the cell phone using its Global Positioning System. L.S.
drove E.S. to the cell phone’s location, a park about a block away
from where the alleged incident occurred. E.S. observed the two
individuals and pointed them out to his brother. L.S. asked one
of the individuals to return the cell phone to E.S. That
individual—later identified as appellant V.R.—pulled out a gold
and silver folding knife and said something like “you want some
of this” and “I’ll fuck up your day.” The two individuals rode
away on their bicycles, and E.S. and L.S. contacted the police.
Officer Krudis further testified that when he responded to
the scene, E.S. “was very scared” for his and his brother’s safety,
and “he was still visibly shaken up about the incident.” L.S.
reported to Krudis that he believed the individual who
threatened him with the knife “might either kill him or stab him
with it.” E.S. gave Krudis a description of the two suspects and
their bicycles, and Krudis sent out a radio call with the
descriptions.
Later the same day as the incidents, another officer
detained someone about a quarter mile away from the park,
based on the descriptions of the suspects and bicycles Officer
Krudis provided in the radio call. That officer searched the
suspect and recovered a gold folding knife. Officer Krudis went
to the location. During his testimony at the probable
cause/detention hearing, Officer Krudis identified V.R. as the
person who was detained and in possession of the “extremely
distinctive” gold folding knife. Krudis testified that V.R. told him
(1) he was present with the other individual when that person
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took the cell phone from E.S., and (2) he (V.R.) had friends in the
MS-13 gang.
According to Officer Krudis, at a field show-up, E.S.
identified V.R. as the person who pulled out the knife and made
the threatening statements. E.S. told Krudis that another
individual who was with V.R. during the incidents (but not at the
field show-up) took the cell phone. L.S. initially did not identify
V.R., but he positively identified the knife recovered from V.R.’s
person. Thereafter, L.S. took a closer look and identified V.R. as
the person who pulled out the knife and made the threatening
statements.
After V.R.’s arrest, Krudis was present when another
officer interviewed V.R.’s father. V.R.’s father stated that V.R.
had “been in a lot of trouble and hanging out with gang
1
members.”
At the August 5, 2019 hearing, the juvenile court found the
prosecution satisfied its burden of showing probable cause to
proceed on the July 30, 2019 juvenile wardship petition. The
court also concluded V.R. should remain detained because he
“pose[d] a danger to community safety.”
II. Probation Officer’s Report
As set forth in a probation officer’s report, filed August 14,
2019, L.S. told the probation officer that E.S. “has lingering fear
and . . . remains concerned for his safety.” L.S. also stated that
V.R. “ ‘took the feeling of security away from my brother [E.S.].’ ”
L.S. added: “ ‘We have been going through hell. The fact that
this guy pulled a knife on us.’ ” The probation officer concluded:
1
The Detention Report, filed July 31, 2019, indicates “no
prior gang membership” for V.R.
4
“The victim [E.S.] and the witness [L.S.] remain understandably
traumatized. The minor’s [V.R.] actions changed the victim’s day
to day behaviors; the victim and witness have lost the feeling of
security in their own neighborhood.”
The probation officer also reported that due to safety
concerns, L.S. wanted the juvenile court to issue a restraining
order protecting E.S. and his family. L.S. stated that a police
officer informed him that V.R. “frequents” areas near the family’s
home. The report also includes V.R.’s father’s statement to
officers that V.R. “hangs around with gang members.” During his
interview with the probation officer, however, V.R.’s father
denied making that statement.
III. Temporary and Permanent Restraining Orders
At a hearing on August 28, 2019, the juvenile court issued
and served V.R. with a temporary restraining order, protecting
2
E.S. and L.S. As set forth in the order, a noticed hearing was set
for September 3, 2019 and the temporary restraining order was
set to expire at the end of that hearing.
At the September 3, 2019 hearing, the prosecutor urged the
juvenile court to issue a permanent restraining order based on
Officer Krudis’s testimony at the August 5, 2019 probable
cause/detention hearing and the information in the August 14,
2019 probation report (summarized above). Defense counsel
asked the court to take the restraining order matter off calendar
and leave the temporary restraining order in place until the
disposition stage of the proceedings, or issue a stay-away order,
arguing that issuance of a permanent restraining order “would
2
The record before us does not include a reporter’s
transcript of the August 28, 2019 hearing.
5
basically mean the court’s finding him guilty before [he] had a
chance to go to trial.” Defense counsel also argued there was no
evidence indicating V.R. had seen E.S. and L.S. before the
incidents or knew where they lived and “nothing to suggest a
restraining order is necessary in this case.” Defense counsel did
not argue insufficient notice of the September 3, 2019 hearing or
lack of opportunity to present evidence.
At the September 3, 2019 hearing, the juvenile court issued
and served V.R. with a three-year restraining order, protecting
E.S. and L.S., and ordering V.R. to stay 100 yards away and
refrain from contacting them. V.R. timely appealed from the
September 3, 2019 permanent restraining order.
DISCUSSION
V.R. contends (1) the juvenile court erroneously issued the
temporary restraining order without prior notice, and (2)
insufficient evidence supports the permanent restraining order.
I. V.R.’s Challenge to the Temporary Restraining Order
is Moot
In the opening appellate brief, V.R.’s counsel acknowledges
that V.R.’s challenge to the temporary restraining order based on
inadequate notice is “likely” moot. Case law supports this
position. (See In re E.F. (2020) 45 Cal.App.5th 216, 219 [“minor’s
challenge to the TRO is moot”]; citing O’Kane v. Irvine (1996) 47
Cal.App.4th 207, 210, fn. 4 [“appeal from the TRO, following the
trial court’s grant of the three-year restraining order, is moot.
Accordingly, we dismiss [the] purported appeal from the TRO”];
In re L.W. (2020) 44 Cal.App.5th 44, 47, fn. 2 [“The appeal from
the temporary restraining orders is technically moot because
those orders terminated when the three-year restraining order
was issued”].)
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V.R.’s counsel urges us to exercise our discretion to address
the contention that the juvenile court erroneously issued the
temporary restraining order without prior notice, arguing that
the issue is “of broad public interest and likely to recur.” Counsel
is correct that where an appeal is moot, we may “nevertheless
exercise our discretion to address appellant’s claims because the
issues to be decided are of important and continuing public
interest and are likely to recur yet evade review.” (In re L.W.,
supra, 44 Cal.App.5th at p. 47, fn. 2.) Here, however, we decline
to exercise our discretion because the issue V.R. raises has not
evaded review, as it has been addressed in published decisions.
(See, e.g., id. at pp. 49-51 [juvenile court erroneously issued
temporary restraining order without notice because the
prosecution failed to satisfy the requirements for dispensing with
notice under Code of Civil Procedure section 527; In re E.F.,
supra, 45 Cal.App.5th at pp. 220-222 [juvenile court’s issuance of
temporary restraining order without notice was proper under
Welfare and Institutions Code section 213.5, and conflicting and
more general provisions regarding notice of temporary
restraining orders in Code of Civil Procedure section 527 did not
apply].) Because V.R.’s challenge to the temporary restraining
order is moot, and the issue does not warrant the exercise of our
discretion as it has not evaded review, we decline to weigh in on
the issue, and we dismiss V.R.’s appeal from the temporary
restraining order.
II. Substantial Evidence Supports the Permanent
Restraining Order
In reviewing a restraining order issued by a juvenile court,
“appellate courts apply the substantial evidence standard to
determine whether sufficient facts supported the factual findings
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in support of a restraining order and the abuse of discretion
standard to determine whether the court properly issued the
order.” (In re Carlos H. (2016) 5 Cal.App.5th 861, 866.) V.R.
challenges the sufficiency of the evidence supporting the three-
3
year restraining order against him. “Under substantial evidence
review, we ‘interpret the facts in the light most favorable to the
[order], indulge . . . all reasonable inferences in support of the
trial court’s order,’ and do not reweigh the evidence.” (In re E.F.,
supra, 45 Cal.App.5th at p. 222.)
4
Under Welfare and Institutions Code section 213.5, after a
juvenile wardship petition has been filed under section 602, a
juvenile court may issue an order enjoining the child from
“disturbing the peace of any person the court finds to be at risk
from the conduct of the child.” (§ 213.5, subds. (b) & (d)(1).) Such
a restraining order “shall remain in effect, in the discretion of the
court, no more than three years, unless otherwise terminated by
the court, extended by mutual consent of all parties to the
restraining order, or extended by further order of the court on the
motion of any party to the restraining order.” (§ 213.5, subd.
(d)(1).)
3
To the extent V.R. challenges the sufficiency of the
evidence supporting the temporary restraining order, that
challenge is dismissed. As discussed above, an appeal from a
temporary restraining order following a juvenile court’s grant of a
three-year restraining order is moot. (In re E.F., supra, 45
Cal.App.5th at p. 219, citing O’Kane v. Irvine, supra, 47
Cal.App.4th at p. 210, fn. 4.)
4
Further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
8
As a threshold matter, we reject V.R.’s assertion that the
juvenile court erroneously issued the three-year restraining order
“in the pre-adjudication phase of the proceedings when untested
hearsay evidence is the only source of information available to
the court.” As section 213.5 plainly states, the juvenile court may
issue a three-year restraining order at any time after a juvenile
wardship petition has been filed under section 602. (§ 213.5,
subds. (b) & (d)(1).) The court need not wait until adjudication.
Moreover, a juvenile court may “consider hearsay evidence in
deciding whether to issue the restraining order.” (In re L.W.,
supra, 44 Cal.App.5th at p. 48, fn. 3.)
We also reject V.R.’s reliance on cases addressing the
sufficiency of the evidence supporting restraining orders issued in
criminal cases under Penal Code section 136.2 to support his
assertion that a finding of past harm to the victim does not
constitute substantial evidence supporting a permanent
restraining order. (See, e.g., Babalola v. Superior Court (2011)
192 Cal.App.4th 948; People v. Ponce (2009) 173 Cal.App.4th
378.) Such orders under Penal Code section 136.2 “ ‘must be
based on a finding of good cause to believe an attempt to
intimidate or dissuade a victim or witness has occurred or is
reasonably likely to occur. That finding may be based on the
underlying charges and the circumstances surrounding the
commission of the charged offenses, but a mere finding of past
harm to the victim or witness is not sufficient.’ [Citation.]
Restraining orders issued in juvenile proceedings under section
213.5, however, require no such finding.” (In re L.W., supra, 44
Cal.App.5th at p. 52, quoting Babalola, at p. 964; see also In re
E.F., supra, 45 Cal.App.5th at p. 223 [“Unlike Penal Code section
136.2, section 213.5 does not require ‘evidence of a reasonable
9
apprehension of future physical abuse’ or potential harm as a
predicate to the issuance of a restraining order”].) For an order
under section 213.5, “ ‘[t]here need only be evidence that the
[minor who is restrained] “disturbed the peace” of the protected
child’—that is, that the minor engaged in ‘ “ ‘conduct that
destroy[ed] the mental or emotional calm of the other party.’ ” ’ ”
(In re E.F., at pp. 222-223.)
Substantial evidence in the record set forth above
demonstrates V.R. threatened E.S. and L.S. with a knife, and
5
they no longer felt safe in their own neighborhood. The
probation officer’s report indicates V.R. frequented the
neighborhood where E.S. and L.S. lived. Accordingly, sufficient
evidence supports the juvenile court’s issuance of a permanent
restraining order under section 213.5 because there is substantial
evidence in the record that V.R. disturbed the peace of E.S. and
L.S. in that V.R. engaged in conduct that destroyed the mental or
emotional calm of E.S. and L.S. (See In re E.F., supra, 45
Cal.App.5th at pp. 222-223.) We reject V.R.’s request that we
reweigh the evidence or resolve conflicts in the evidence, as the
substantial evidence standard of review precludes that, as
discussed above.
5
As set forth above, a juvenile court retains the authority
to terminate a restraining order. (§ 213.5, subd. (d)(1).) Thus, if
a juvenile court were to find the charges not true at adjudication
based on additional evidence, the court could terminate the
restraining order.
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DISPOSITION
The appeal from the August 28, 2019 restraining order is
dismissed. The September 3, 2019 three-year restraining order is
affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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