In re J.S. CA1/5

Filed 10/17/22 In re J.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule
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purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re J.S., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,
v. A162419

J.S., (Marin County
Defendant and Appellant. Super Ct. No. JV27024)

This case turns on the showing of good cause required to
obtain discovery under Penal Code section 745,1 enacted as part
of the California Racial Justice Act of 2020 (the Act) to combat
racial bias and disparities in our criminal justice system.
(Assem. Bill No. 2542 (2019-2020 Reg. Sess.), Stats. 2020, ch.
317, §§ 1, 3, 3.5.) The juvenile court denied a discovery motion,
finding the minor, J.S., had not established the good cause
required under section 745, subdivision (d). Following the
guidance of Young v. Superior Court (2022) 79 Cal.App.5th 138
(Young), we conclude J.S. established the threshold showing of
plausible justification for discovery under the Act. We therefore

Unless otherwise noted, undesignated statutory citations
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are to the Penal Code.
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reverse the order and remand for the juvenile court to address
the appropriate scope and extent of discovery in light of the
factors identified in Young.

BACKGROUND

A.

The Act proclaims the state “shall not seek or obtain a
criminal conviction or seek, obtain, or impose a sentence on the
basis of race, ethnicity, or national origin.” (§ 745, subd. (a).)
Section 745, subdivisions (a)(1) through (a)(4), delineate specific
violations of the Act. As relevant here, a defendant who makes a
prima facie showing of a violation is entitled to a hearing to prove
by a preponderance of the evidence that (1) the charge,
conviction, or sentence was more severe than for similarly
situated defendants of other races; and (2) the prosecution more
frequently sought more severe convictions or penalties against
individuals of the defendant’s race than against other similarly
situated individuals. (§ 745, subds. (a)(3), (a)(4)(A), (c).) Such
proof establishes a violation of the Act unless the prosecution
shows race-neutral reasons for the disparity. (§ 745, subd. (h)(1);
Young, supra, 79 Cal.App.5th at p. 167.)

To this end, the Act permits defendants to seek relevant
discovery. Under section 745, subdivision (d), “[a] defendant may
file a motion requesting disclosure to the defense of all evidence
relevant to a potential violation of subdivision (a) in the
possession or control of the state. . . . Upon a showing of good
cause, the court shall order the records to be released” subject to
court-authorized redactions. (§ 745, subd. (d), italics added.)
Section 745 specifically authorizes the use of statistical evidence
or aggregate data to prove race-based differential treatment. (§
745, subds. (c)(1), (h)(1).)

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 B.

During the early months of the COVID-19 pandemic, J.S.
and other minors broke into a shuttered high school swimming
pool in violation of stay-at-home orders then in effect.
Responding police officers apprehended the youths in the closed
and locked pool area and cited them for trespassing (Pen. Code, §
602, subd. (m)) and violating the stay-at-home orders (Health &
Saf. Code, § 120295).

Five months later, a security agent at a Target store
apprehended J.S. and another minor shoplifting alcohol. J.S.
gave the responding police officer a false name, but was
eventually identified through school records. The officer found
two bottles of stolen tequila in J.S.’s backpack and a bag of THC
edibles tucked into his waistband. While J.S. was being placed in
the back of the patrol car, the officer said, “ ‘the fact that you’re
demanding respect, that needs to stop’ because ‘you can ask any
gang member, respect gets respect and disrespect gets
disrespect.’ ” J.S. was cited for possessing marijuana (Health &
Saf. Code, § 11357, subd. (a)(1)) and providing false identification
to a peace officer (Pen. Code, § 148.9, subd. (a)).

C.

A juvenile wardship petition charged J.S. with one count of
trespassing (Pen. Code, § 602, subd. (m); the pool incident) and
one count of giving false identification to a peace officer (Pen.
Code, § 148.9, subd. (a); the Target incident). The probation
department initially recommended informal non-wardship
supervision under Welfare and Institutions Code section 654, but
later, due to J.S.’s poor behavior, referred the matter to the
district attorney for a wardship petition. (Welf. & Inst. Code, §
602.)

At the hearing set for entry of plea, probation
recommended that J.S. be given another six months on informal

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wardship. The court declined due to J.S.’s noncompliance on
informal supervision and what it observed to be a disrespectful
attitude toward the court. Nonetheless, it ordered probation to
prepare a report on his suitability for diversion.

According to that report, J.S. was generally uncooperative
with, and at times belligerent in responding to, the probation
officer’s efforts to work with him. He failed under informal
supervision due to his poor behavior, disrespectful attitude, and
lack of follow-through. His school records showed poor-to-failing
grades and disruptive and disrespectful behavior in the
classroom. The probation officer was also concerned about J.S.’s
offensive language and pattern of dishonesty.

Probation continued to recommend, with reservations, that
J.S. be placed on non-wardship probation. It cautioned, however,
that it would change its recommendation to wardship if his
behavior failed to improve despite the services provided to him.

The recommendation was short-lived. At the next hearing,
probation changed its recommendation to wardship based on new
concerns that J.S. had been seen in a video associating with
known adult and juvenile probationers. The court rejected
defense counsel’s suggestion that the matter had escalated “very
quickly.” J.S.’s behavior had started as far back as 2016; his
conduct had become worse, not better, since probation started
working with him; and the video showed him associating with
gang members. The court set the case for a jurisdictional
hearing.

D.

J.S. moved for discovery under section 745, seeking
anonymized documents and data showing, with respect to both
charges, all referrals of juveniles for prosecution in Marin
County; all instances in which juveniles in Marin County had
been charged; the resulting sentence or disposition; and each

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juvenile’s criminal history. J.S. also requested the date, time,
and description, if available, of each such incident; the concerned
juvenile’s age and ethnicity or race; and the number and nature
of any prior referrals and sustained delinquency petitions. J.S.
asserted these records were relevant to whether he was being
charged with or might be found to have committed a more serious
offense, or subjected to more severe consequences, than
defendants of other races. (§ 745, subd. (a).)

The juvenile court sustained the false identification charge
and found the trespassing allegation to be unsupported. Turning
to disposition, the court observed that J.S. “very clearly, needs
some interventions because he is going down a very wrong path.”
The court ordered wardship probation (Welf. & Inst. Code, § 602)
with various conditions.

It then denied J.S.’s discovery motion under section 745.
The court reasoned the motion was moot because it pertained to
the unsustained trespassing allegation; the pool incident was
more serious than average teenage hijinks because it occurred
during the COVID emergency; and defense counsel’s supporting
declaration about local law enforcement responses to teens
trespassing at school pools was based on unreliable anecdotal
information. After J.S.’s attorney pointed out that the motion
went to both allegations, the court clarified that its ruling
encompassed the shoplifting incident as well and found the
encounter raised no suggestion of racial profiling or
discrimination.

DISCUSSION

A.

After the ruling in this case, in Young, supra, 79
Cal.App.5th 138, Division Four of this court articulated a
multifactor test for good cause for discovery under section 745,
subdivision (d). Convicted of possessing Ecstasy for sale, the

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defendant there sought information he believed would show the
district attorney brought possession for sale charges against
black defendants more frequently than against similarly situated
defendants of other races. (Young, supra, at pp. 143-144.) He
cited as good cause statewide data showing black drivers are
more likely to be stopped than any other racial group and
circumstances surrounding his arrest that suggested racial
profiling. (Id. at pp. 146, 161.) The trial court denied the motion.
(Id. at p. 146.)

The court of appeal disagreed. Guided by the legislative
intent to eliminate racial bias in our criminal justice system
(Stats. 2020, ch. 317, § 2) and the showing required for the
disclosure of law enforcement records in analogous situations (see
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); City of
Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118
(Alhambra)), it distilled the following rule: “[I]n order to
establish good cause for discovery under the Racial Justice Act, a
defendant is required only to advance a plausible factual
foundation, based on specific facts, that a violation of the Racial
Justice Act ‘could or might have occurred’ in his case.” (Young,
supra, 79 Cal.App.5th at pp. 158-159, 144.)

This minimal “plausible justification” standard, Young
explains, is more relaxed than the “ ‘relatively relaxed’ ” good
cause standard for Pitchess discovery (which requires a logical
link between the charge and a proposed defense). (Young, supra,
79 Cal.App.5th at pp. 159-160, 167.) The Young court explicitly
rejected the Attorney General’s “catch-22” contention that
defendants seeking discovery to prove race-based differential
treatment in violation of the Act must make a showing of such
differential treatment in their own case. (Id. at pp. 162, 167.)

If the court finds a plausible justification for discovery, it
must then consider and weigh the factors identified in Alhambra
to decide the appropriate scope of the disclosures. (Young, supra,

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79 Cal.App.5th at pp. 145, 166, 168-169.) Those factors concern
whether the material requested is adequately described; its
relative availability to the responding entity and the defendant;
the risk of causing unreasonable delay or imposing an undue
burden on the responding entity; and the risk of violating third-
party confidentiality or privacy rights or protected governmental
interests. (Id. at pp. 144-145, 168.) “Described broadly, the
court’s task will be to engage in a discretionary weighing of the
strength of [the defendant’s] factual showing, the potential
probative value of the information he seeks, and the burdens of
gathering the requested ‘records or information’ for disclosure.”
(Id. at p. 145.) However, Young cautions, once the defendant has
established plausible justification for the information sought, it
will likely be an abuse of discretion for the court to totally deny
the discovery request. (Id. at pp. 168-169.)

B.

The parties do not dispute Young’s interpretation of section
745, subdivision (d)’s good cause standard as relevant here. They
part ways, however, at the result of its application. J.S. contends
it requires reversal and remand with directions to grant his
discovery motion in full. The People concede it “appear[s]” J.S.
has satisfied Young’s good cause standard. In their view,
however, the proper remedy is reversal and remand for the
juvenile court to make that determination in the first instance
and, in the “likely” event the court agrees, delineate the
appropriate scope of discovery with reference to the remaining
Alhambra factors.

We believe the better resolution lies somewhere in between.
In Young, the court opined that, while the defendant’s statewide
and out-of-county data provided weak support, specific facts
suggesting that racial profiling played a part in his arrest,
bolstered by his statistical data, “arguably” warranted discovery.
Nonetheless, it concluded that determination was better left to

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the trial court because weighing and balancing the considerations
entailed in assessing good cause is quintessentially a trial court
function. (Young, supra, 79 Cal.App.5th at p. 166.)

This case is different. First, J.S. provided statistical data
specific to the Marin County juvenile justice system showing that
Latino youths in the county are six times more likely than white
youths to be referred to probation, 10.4 times more likely to have
a petition filed, almost 13 times more likely to be declared a
ward, and 17 times more likely to be committed to an
institutional placement or electronic monitoring.

Second, J.S.’s counsel attested based on information from
two local high school students (her own children) that Marin
County teenagers trespass on high school athletic facilities,
including swimming pools, on an almost daily basis. Unless a
drug or other serious violation is involved, police and campus
security allow these teens to leave without demanding their
names or calling their parents.

Third, counsel had obtained hundreds of pages of police
records (and expected to receive more) supporting anecdotal
accounts that the vast majority of responses to trespasses at
Marin County high school athletic facilities are resolved with
warnings. As to the shoplifting incident, J.S. observed he was
handcuffed and placed in a patrol car even though Target
personnel told police they did not want to press charges.
Moreover, the officer’s comment suggested he may have assumed
J.S. was in a gang.

This is substantially stronger than the showing in Young.
(Young, supra, 79 Cal.App.5th at p. 166 [pointing out flaws in
Young’s statistical evidence].) The People’s reluctance to concede
it is enough to show plausible justification for discovery—despite
acknowledging it “appear[s]” to constitute good cause and that
the juvenile court will “likely agree”—is unpersuasive. The
threshold showing requires only a “plausible factual foundation,
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based on specific facts, that a violation . . . ‘could or might have
occurred.’ ” (Id. at p. 159.) J.S. provided such facts, and the
People fail to identify any deficiency in his data.

Heeding Young’s directive that the party seeking discovery
need only make a plausible case, not a strong one (Young, supra,
79 Cal.App.5th at p. 166), we are satisfied J.S. has established
plausible justification for discovery. We therefore remand for the
juvenile court to consider the remaining Young/Alhambra factors
to determine the scope of discovery. (See Young, supra, at pp.
166, 168-169.)

DISPOSITION

The order denying discovery is reversed. We remand the
case for the juvenile court to reconsider its ruling in light of our
determination that J.S. has established plausible justification for
discovery under the Act and to determine, guided by the other
Young/Alhambra factors, the appropriate scope and extent of
discovery warranted in this case.

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 ______________________
BURNS, J.

We concur:

____________________________
SIMONS, ACTING P.J.

____________________________
WISEMAN, J.*

A162419

* Retired Associate Justice of the Court of Appeal, Fifth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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