In re D.N. ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
In re D.N., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.N.,
Defendant and Appellant.
S268437
Fifth Appellate District
F080624
Fresno County Superior Court
19CEJ600384-1
December 12, 2022
Chief Justice Cantil-Sakauye authored the opinion of the Court,
in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Guerrero concurred.
In re D.N.
S268437
Opinion of the Court by Cantil-Sakauye, C. J.
After determining that D.N., a minor, was within the
jurisdiction of the juvenile court because of his violation of
criminal laws (Welf. & Inst. Code, § 602),1 the court adjudged
D.N. (hereafter minor) to be a ward of the court and ordered him
to reside in his parent or guardian’s home under several
conditions of probation. The court further ordered: “Probation
is authorized to offer the minor up to 50 hours of community
service, or up to a cumulative total of 10 days on the community
service work program as an option to work off alleged probation
violations.”
On appeal, minor attacks this provision of the court’s
dispositional order as a constitutionally improper delegation of
judicial authority to the probation department and as a
deprivation of due process. Both challenges rest on the premise
that the court’s order allowed the probation department itself to
determine that the minor had violated his probation and to
impose community service as a sanction for the violation. We
reject that premise and the constitutional challenges based on
it. The juvenile court did not authorize the probation officer to
adjudicate violations or impose sanctions for them, but only to
“offer” minor the “option” of performing community service
when a violation is “alleged.” In effect, the juvenile court gave
1
All further unspecified statutory references are to the
Welfare and Institutions Code.
1
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Opinion of the Court by Cantil-Sakauye, C. J.
its advance approval to an agreement that might be reached
between minor and the probation officer for the performance of
a certain amount of community service in lieu of having an
alleged probation violation adjudicated in a judicial proceeding.
The court’s order did not thereby improperly delegate any part
of the judicial function to the probation officer, nor did it deprive
minor of any judicial process constitutionally due him. Under
the challenged provision, minor remained free to reject any offer
the probation department made and to invoke the ordinary
statutory procedures for adjudication of an alleged probation
violation.
I. PROCEDURAL BACKGROUND
The People brought a juvenile wardship petition under
section 602, subdivision (a), alleging minor had committed one
count of violating Penal Code section 288.5 (continuous sexual
abuse of a child under 14 years of age). The juvenile court found
the allegation true after a contested jurisdictional hearing. At
the hearing on disposition, the court adjudged minor a ward of
the court and determined his maximum period of confinement
was 16 years. In order that minor could enter a sex offender
treatment program as soon as possible, however, the court
declined to impose any initial period of confinement. Instead,
the court placed minor on probation, ordered him to remain on
G.P.S. supervision for at least three months, and imposed other
conditions of probation including participation in a long-term
sex offender program, school attendance, a curfew, a restitution
fine, restrictions on his association with others, and search
conditions.
In the portion of its disposition at issue here, the court
orally ordered: “The Court is granting probation in this matter.
2
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
And the Court is authorizing the Probation Department [to]
offer the minor community service, up to 50 hours of community
service, up to a cumulative total of 10 days, to work off any
alleged probation violations. That can also include the GPS
system as a sanction, up to 30 days, but he’d already be on that
program.” The court continued: “I would anticipate if there’s
any significant violation of any term and condition of the grant
of probation here, that he would be brought back to court for
additional recommendations, which most likely would include
[a] substantial amount of time in custody.” The court’s written
dispositional order included the same provision for community
service, though with some additional language, italicized below:
“Probation is authorized to offer the minor up to 50 hours of
community service, or up to a cumulative total of 10 days on the
community service work program as an option to work off alleged
probation violations. Minor to remain on GPS for 3 months.”
This provision appears to have been drawn from a standard
order option on the juvenile court’s delinquency minute order
form (not selected by the court in this case), which reads: “The
Court authorizes the Probation Department to offer the minor
community service up to 50 hours as an option to work off
alleged probation violations in lieu of being brought back before
the court.”
The Court of Appeal rejected minor’s claims that the
community service provision violated separation of powers
principles and infringed his due process rights.2 Citing In re
2
The appellate court determined that because minor’s
challenge presented a pure question of law that could be
resolved without reference to any disputed fact, the claim was
3
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
Gabriel T. (2016) 3 Cal.App.5th 952, 958, the appellate court
acknowledged that a juvenile court may not delegate to a
probation officer the authority to determine that a minor is in
violation of probation. But in this case, the court held, the
juvenile court’s order did not permit the probation department
“to decide if and when a violation of probation had occurred. . . .
Instead, the court permitted the probation officer to offer
appellant the option of community service for an alleged
violation. The juvenile court set the basic condition, but it left
the specific details to the probation officer and appellant to
resolve.” The Court of Appeal also rejected minor’s challenges
to several other probation conditions but struck an AIDS testing
condition subject to presentation of additional evidence
concerning its validity. In all other respects, the appellate court
affirmed the dispositional order.
We will affirm the Court of Appeal’s judgment.
II. DISCUSSION
The challenge here is to a juvenile court order authorizing
the probation officer to offer a minor on probation the option of
performing community service, in an amount chosen by the
probation officer up to a maximum set by the court, in the event
the minor is alleged to have violated a term of probation. Minor
contends this provision “not only permits the probation officer
to unilaterally find appellant in violation of probation, but also
to choose the appropriate sanction for any alleged violation.” He
maintains that the juvenile court’s delegation of these
assertedly judicial functions — adjudicating violations of
not forfeited by his failure to object in the juvenile court to this
part of the order. The Attorney General does not dispute this
holding.
4
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Opinion of the Court by Cantil-Sakauye, C. J.
probation and imposing sanctions for them — violates both due
process and separation of powers principles.
Before addressing minor’s arguments, we outline the roles
of the court and the probation officer regarding juvenile
offenders on probation supervision.
When a minor has been adjudged a ward of the juvenile
court because of delinquency under section 602 and placed
under the supervision of a probation officer, the 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.” (§ 730, subd. (b).) A few basic conditions involving
education and curfew are generally required, absent a finding of
inappropriateness, of all wards who are not removed from their
parent or guardian’s physical custody (§ 729.2), while other
conditions are specifically mandated or authorized under
certain circumstances or for violations of certain criminal laws
(see, e.g., §§ 729, 729.1, 729.3, 729.6, 729.8). Aside from those
required conditions, the juvenile court retains significant
flexibility to fashion its rehabilitative mandates and conditions.
“The statutory scheme governing juvenile delinquency is
designed to give the court ‘maximum flexibility to craft suitable
orders aimed at rehabilitating the particular ward before it.’ ”
(In re Greg F. (2012) 55 Cal.4th 393, 411.)
After disposition, the juvenile court retains the authority
to modify its orders regarding a minor under its jurisdiction
(§ 775), and a parent, the minor through a guardian ad litem, or
another person having an interest in the minor may petition the
court for a modification (§ 778). The probation officer or public
prosecutor may also seek a modification from the court. (§ 777,
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In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
subd. (a)(2).) A modification that involves removal of the minor
from the custody of a parent, guardian, relative or friend and
placement in foster care or commitment to confinement must be
pursued by the notice and hearing procedures set out in
section 777. At the hearing, the facts alleged in the notice must
be proved by a preponderance of the evidence. (Id., subd. (c).) If
the probation officer proposes a modification that does not call
for removal from parental custody or commitment to
confinement, the officer may seek modification through a
petition under section 778. (Cal. Rules of Court, rule 5.560(e)(1);
In re Glen J. (1979) 97 Cal.App.3d 981, 984–986.)
Under California’s general municipal law, a county’s chief
probation officer is appointed by the judges of the superior court,
and the charter of Fresno County, where this case arises, is to
the same effect. (§ 270; Gov. Code, § 27770; Fresno County
Charter (as amended June 5, 2018), § 21.) The probation
officer’s duties include “[c]ommunity supervision of offenders
subject to the jurisdiction of the juvenile court pursuant to
[Welfare & Institutions Code] Section 602” (Gov. Code, § 27771,
subd. (a)(1)), and in performing that function the probation
officer plays a dual role, serving as both an arm of the juvenile
court and, in some circumstances, as an aide to law enforcement.
(See In re Arron C. (1997) 59 Cal.App.4th 1365, 1372
[considering juvenile probation department to be “effectively an
arm of the juvenile court”]; id. at pp. 1377–1378 (conc. & dis.
opn. of Jones, J.) [emphasizing probation officer’s status as a
limited-powers peace officer].) On the one hand, the probation
officer qualifies as a peace officer for purposes of enforcing
compliance with the conditions of probation. (Pen. Code,
§ 830.5, subd. (a)(1).) On the other, the probation department
aids the juvenile court by “furnish[ing] to the court such
6
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Opinion of the Court by Cantil-Sakauye, C. J.
information and assistance as the court may require” (Welf. and
Inst. Code, § 280), including a social study and recommended
disposition (ibid.), which the court must read and consider
(§ 706). And as noted, the probation officer supervises offenders
subject to the court’s jurisdiction and may, in the course of that
supervision, petition the court to address violations of a
probationer’s conditions by ordering a more restrictive
disposition (§ 777, subd. (a)(2)) or another form of modification
(§ 778).
In light of the probation officer’s close links to the juvenile
court, and the impracticality of juvenile courts themselves
supervising juvenile probationers on a day-to-day basis,
California courts have recognized that a juvenile court may
place significant supervisory discretion in the probation
department’s hands, at least when the department’s decisions
are subject to judicial review. (See, e.g., In re I.M. (2020)
53 Cal.App.5th 929, 933–936 [no improper delegation when
length of detention depends on minor’s completion of
rehabilitative program supervised by probation department, but
court retains ultimate authority to determine whether minor
has completed program and to release minor from detention]; In
re J.C. (2019) 33 Cal.App.5th 741, 747–748 [same: noting that
the minor can bring any issue of unfair delay in certification of
rehabilitative progress to the court’s attention through a
petition under section 778]; In re Robert M. (2013)
215 Cal.App.4th 1178, 1185 [noting that ward in rehabilitative
program “is answerable on a daily basis to those who operate
the program, but that does not change the ultimate
responsibility of the juvenile court for the ward’s supervision
and control”].)
7
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
In the related context of dependency proceedings,3 courts
considering orders for visitation have permitted a similar degree
of delegation to public officers, or even private actors, so long as
the juvenile court retains ultimate control. In In re Chantal
S. (1996) 13 Cal.4th 196, 213, the juvenile court ordered that the
dependent child’s father could have visits with the child, but
visitation would not begin until “father’s chosen therapist
determined father had made ‘satisfactory progress for a time.’ ”
We upheld the order, which we explained “does not vest
therapists with ‘absolute’ discretion to determine whether
visitation should occur.” (Ibid.) We noted that any parties who
believed themselves prejudiced by the therapist’s decision
“would be permitted to raise those claims in the family court,
and a family court judge would make the final decision as to
whether visitation should begin.” (Id. at p. 214; see In re Moriah
T. (1994) 23 Cal.App.4th 1367, 1374 [“the juvenile court may
delegate to the probation officer or social worker the
responsibility to manage the details of visitation, including time,
place and manner thereof”]; In re Jennifer G. (1990)
221 Cal.App.3d 752, 757 [court may delegate “the ministerial
tasks of overseeing the [visitation] right as defined by the
court”]; see also In re James R. (2007) 153 Cal.App.4th 413, 435–
438 [surveying dependency case law on this point].) As one
Court of Appeal explained, “The nature of the task of the
juvenile court system in responding to the rapidly changing and
complex family situations which arise in dependency
proceedings and the interests of judicial economy require the
3
A dependency proceeding is one brought pursuant to
section 300, generally because of abuse or neglect by a parent or
guardian.
8
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
delegation of some quasi-adjudicatory powers to a member of the
executive branch dedicated to the dependent child’s welfare. As
long as that role is limited and subject to supervision, as it was
here, there is no violation of the separation of powers doctrine.”
(In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.)
In contrast, courts have found an improper delegation
when the juvenile court has given nonjudicial persons or
institutions complete discretion over a significant aspect of the
court’s legal control of the minor. In In re Gabriel T., supra,
3 Cal.App.5th at page 958, the juvenile court had committed the
minor to a correctional academy for 12 months, the last six to be
in “aftercare under the supervision of the probation officer,” and
had added that “[a]t any time during the aftercare component
you may be returned to the Correctional Camp for a one-time
remediation of 30 days due to a violation of probation or program
rules.” The Court of Appeal held the last provision violated the
statutes defining the procedures for finding a probation
violation: “Here, the condition imposed upon appellant vested
absolute discretion in the probation officer to determine if and
when a violation of probation occurred during the aftercare
program.” (Id. at p. 960.) The court further noted that, in
contravention of the statutory framework, the challenged
condition failed to “require a judicial finding that appellant
violated a condition of probation or that his continuance in the
home was contrary to his welfare” and that the order did not
guarantee the minor “notice or an opportunity to be heard”
before being sanctioned for a violation. (Id. at pp. 960–961; see
also In re Jennifer G., supra, 221 Cal.App.3d at p. 757 [holding
dependency orders giving county agency the power to determine
the right to and frequency of visitation were improper
delegations of the judicial function]; In re Pedro Q. (1989)
9
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
209 Cal.App.3d 1368, 1371–1372 [condition restricting the
minor’s travel improperly imposed by the probation officer
without judicial approval]; In re Danielle W., supra,
207 Cal.App.3d at p. 1237 [“a visitation order granting the
Department [of Children’s Services] complete and total
discretion to determine whether or not visitation occurs would
be invalid”]; cf. In re Sheena K. (2007) 40 Cal.4th 875, 889
[probation condition forbidding a minor from associating with
“ ‘anyone disapproved of by probation’ ” is impermissibly vague
in absence of requirement that the minor know of probation’s
disapproval]; id. at pp. 889–892.)4
4
In the context of adult felony probation, as well, courts
have disapproved provisions purporting to completely delegate
the setting of a condition to the probation department. (See, e.g.,
People v. Smith (2022) 79 Cal.App.5th 897, 901–903 [order
delegating to probation department decision whether
probationer was to attend a residential drug treatment
program, as opposed to an outpatient program, violated
separation of powers doctrine]; People v. Cruz (2011)
197 Cal.App.4th 1306, 1311 [statute giving probation
department sole discretion to require G.P.S. monitoring violates
the separation of powers]; People v. O’Neil (2008)
165 Cal.App.4th 1351, 1358–1359 [striking stay-away order for
delegating to probation department all specification of persons
to be avoided: “The court may leave to the discretion of the
probation officer the specification of the many details that
invariably are necessary to implement the terms of probation.
However, the court’s order cannot be entirely open-ended”];
People v. Cervantes (1984) 154 Cal.App.3d 353, 356–361
[striking order giving probation department power to set
amount of restitution]; but see People v. Penoli (1996)
46 Cal.App.4th 298, 307–308 [no improper delegation in order
permitting probation department to select a particular
residential drug rehabilitation program].)
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Opinion of the Court by Cantil-Sakauye, C. J.
Minor contends that the order here falls on the
impermissible side of the line — violating both separation of
powers and due process — because it gives the probation officer
the power to determine whether minor has violated his
probation and to impose community service as a sanction. The
order, minor argues, went well beyond those endorsed in the
case law: “[T]he juvenile court delegated to the probation officer
not simply the specific details of a particular probation
condition, but rather the authority to determine whether
conditions of probation had been violated, as well as the
authority to impose sanctions for such violations without the
necessity of a court hearing or due process.”
If the provision minor challenges did what he says it
does — if it permitted the probation officer to find a violation of
probation and impose a sanction without minor having notice,
an opportunity to be heard, or any form of judicial process — it
would raise constitutional concerns of the type minor posits.
But as we read it, the juvenile court’s order did not delegate any
such judicial power to the probation officer. Instead, as the
Court of Appeal below explained, the juvenile court merely
“permitted the probation officer to offer appellant the option of
community service for an alleged violation.” When the contested
provision of the juvenile court’s order is read together with the
court’s caution that minor would be returned to court for “any
significant violation” of his probation and would face the
probability of “substantial amount of time in custody” (impliedly
invoking section 777), it is clear the provision does no more than
authorize the probation officer to reach a consensual
arrangement with minor for performance of community service
as a means of addressing allegations of relatively insignificant,
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Opinion of the Court by Cantil-Sakauye, C. J.
technical violations of probation.5 Under that grant of
authority, if minor wishes to contest an allegation that he has
violated his probation or the probation officer’s determination
that community service hours are warranted, he is free to
decline the offer. As the Attorney General explains, the
probation department would then be free to decide whether the
alleged violation warrants seeking a modification of the juvenile
court’s probation order under section 777, or under section 778
if no more restrictive disposition were sought.
Minor disputes this reading of the order’s provision,
maintaining that “[a]side from the single word ‘offer,’ the plain
language of the court’s order contains no mention or hint of a
consensual arrangement.” We cannot agree. Even by itself, the
word “offer” clearly indicates the contemplated arrangement
was a consensual one, as an offer by its nature may be accepted
or declined.6 But beyond that, the juvenile court’s order refers
to community service as an “option” for minor. Again, an option
necessarily involves a choice7 — in this context, minor’s choice
5
As the Attorney General suggests, these might include a
violation of curfew, a failure to report to the probation officer, or
an absence from school. For alleged low-level violations such as
these, the probation officer was authorized to offer minor an
appropriately limited sanction, up to 50 hours of community
service. We do not address in this case the validity of a
probation order that would authorize a probation officer to offer
more serious sanctions, such as time in custody, presumably for
correspondingly more significant violations of probation.
6
See Random House Unabridged Dictionary (2nd ed.,
1993), page 1344 (defining “offer” as “1. to present for acceptance
or rejection; proffer”).
7
See Random House Unabridged Dictionary, supra, at page
1360 (defining “option” as “1. The power or right of choosing.
2. Something that may be or is chosen; choice”).
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Opinion of the Court by Cantil-Sakauye, C. J.
between agreeing to perform a certain number of hours of
community service, or not agreeing and facing potential
modification of his probation through judicial process.8
In contrast, minor’s own interpretation of the juvenile
court’s order — as an authorization for the probation
department to unilaterally adjudicate and sanction violations of
probation — is inconsistent with the order’s actual language. It
does not account for the court’s references to the probation
department “offer[ing]” minor community service as an “option.”
Nor does it fit with the reference to “alleged” violations (as
opposed to violations found to have been committed). In effect,
minor reads the court’s order as saying: “Probation is
authorized to mandate the minor perform up to 50 hours of
community service, or up to a cumulative total of 10 days on the
community service work program to work off probation
violations found to have been committed.” But the order’s actual
language cannot support that reading.
“A probation condition should be given “ ‘the meaning that
would appear to a reasonable, objective reader.’ ” (People v.
8
That this is the nature of the choice is made especially
clear in the standard, preprinted form of this provision, which
specifies that community service would be “in lieu of being
brought back before the court.”
The juvenile court did not say on the record why it did not
use the preprinted provision. It may have been because that
preprinted form did not include the specification that the
up-to-50 hours of community service could be served as “up to a
cumulative total of 10 days on the community service work
program,” language ultimately included in the court’s order and
(in a slightly different form) in a provision — checked as
accepted by the court — on the recommendation form submitted
by the probation department.
13
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Opinion of the Court by Cantil-Sakauye, C. J.
Olguin (2008) 45 Cal.4th 375, 382.) Following that precept, we
read the challenged provision here not as delegating
adjudicatory powers to the probation officer but as indicating
the court’s advance approval of an agreement that the probation
officer might reach with minor — and that minor has the power
to decline — to settle allegations of probation violations, in lieu
of a petition to the court for modification under sections 777 or
778. So understood, the provision neither delegates any
essentially judicial function to the probation department nor
deprives minor of due process.
We consider the separation of powers question first. “The
powers of state government are legislative, executive, and
judicial. Persons charged with the exercise of one power may
not exercise either of the others except as permitted by this
Constitution.” (Cal. Const., art. III, § 3.) Although the
separation of powers doctrine “does not prohibit one branch from
taking action that might affect another, the doctrine is violated
when the actions of one branch defeat or materially impair the
inherent functions of another.” (Steen v. Appellate Division of
Superior Court (2014) 59 Cal.4th 1045, 1053.) “Separation of
powers does not mean an entire or complete separation of
powers or functions, which would be impracticable, if not
impossible.” (In re Danielle W., supra, 207 Cal.App.3d at
p. 1236.)
The challenged provision takes effect when the probation
department makes an allegation that the minor has violated his
or her probation. This function — assessing a delinquent
minor’s performance on probation and reaching conclusions
about probable violations — is squarely within the ordinary
statutory role of the probation department. If, in the course of
supervising a juvenile probationer, the probation officer
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Opinion of the Court by Cantil-Sakauye, C. J.
observes or learns of an apparent probation violation, the officer
may petition the court for a modification of its order, “alleg[ing]”
the violation in the petition. (§ 777, subd. (a)(2); see also § 778
[petition for modification not involving more restrictive
disposition].) In this respect, the juvenile court’s order made no
delegation of judicial authority; alleging a violation is a function
statutorily belonging to the probation department (and the
prosecuting attorney (see § 777, subd. (a)(2))), not to the court.
Moreover, when an alleged violation of criminal law or
probation conditions is deemed insufficiently serious to warrant
a delinquency proceeding under section 602 or a proceeding for
modification under section 777, the statutes assign to the
probation officer the duty to fashion an appropriate course of
action. When a petition under section 777 is dismissed on
motion of the prosecuting attorney, the matter may be “referred
to the probation officer for whatever action the prosecuting or
probation officer may deem appropriate.” (Id., subd. (a)(3).)
More analogous to the present order is the diversion program
established by section 654. This statute authorizes the
probation officer, “after investigation of an application for a
petition or any other investigation the probation officer is
authorized to make” and in lieu of asking the prosecuting
attorney to file a section 602 petition, “with consent of the minor
and the minor’s parent or guardian, [to] refer the minor to
services provided by a health agency, community-based
organization, local educational agency, an appropriate non-law-
enforcement agency, or the probation department.” (§ 654,
subd. (a); see Charles S. v. Superior Court (1982) 32 Cal.3d 741,
746–747 [explaining roles of probation department and court
under § 654].)
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Opinion of the Court by Cantil-Sakauye, C. J.
To be sure, the challenged provision here did not invoke a
statutory diversion program such as section 654’s, and did not
include the procedural detail of such a statutory program.9 We
nonetheless agree with the Attorney General that the provision
here “functions in the spirit of diversion and informal
probation.” Like a program of informal probation under section
654, a juvenile court’s authorization for informal resolution of
less significant violation allegations, without the court’s
renewed involvement, serves to keep minor probationers in
compliance with their rehabilitative program, consistent with
the rehabilitative purposes of the juvenile delinquency system
(In re Greg F., supra, 55 Cal.4th at p. 411) and the probation
officer’s statutory role. And like a section 654 diversion, it was
intended for situations where “all can agree to a program of
rehabilitation.” (Charles S. v. Superior Court, supra, 32 Cal.3d
at p. 749.) Insofar as the present order authorized the probation
department, in its role of supervising a minor’s rehabilitative
program, to offer minor community service for alleged violations
in lieu of pursuing a judicial proceeding, it invoked a type of
power that was already within the probation department’s core
function, and in that respect involved no delegation of any
uniquely judicial authority.
9
Diversion statutes like section 654 include a requirement
of parental concurrence to ensure that the minor’s choice to
accept diversion is made knowingly and voluntarily. (See § 654,
subd. (a).) As a policy matter, a parental-consent requirement
or similar safeguard might be appropriate in this context, too, to
ensure the minor’s effective consent to the probation officer’s
proposed sanction. Whether such a requirement is necessary,
however, is beyond the scope of the issues presented and briefed
here.
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Opinion of the Court by Cantil-Sakauye, C. J.
Under the challenged provision, the probation department
also was empowered to decide how many hours of community
service to offer minor, up to the maximum set by the court. We
conclude that the court’s delegation to the probation department
of the number of hours to offer lay within constitutional limits.
Having determined that community service would be an
appropriate response to a relatively technical or insignificant
probation violation by minor, and that 50 hours was the most
that minor might appropriately serve for such a violation, it did
not violate the separation of powers doctrine for the juvenile
court to assign the probation department to fix — with minor’s
agreement — the precise number of hours appropriate to the
alleged violation. (See In re Chantal S., supra, 13 Cal.4th at
pp. 213–214 [approving visitation order in dependency case that
left open exactly when visits could begin]; In re I.M., supra,
53 Cal.App.5th at pp. 933–936 [delinquency court may delegate
to probation department, in first instance, supervision of
minor’s completion of rehabilitative program]; In re Moriah T.,
supra, 23 Cal.App.4th at p. 1374 [delegation of “time, place and
manner” of visitation permitted].) The court’s order here gave
the probation department a very limited discretionary power: to
set the details of a community service program that would be
agreed upon with minor in lieu of filing a formal petition in
juvenile court alleging probation violations. Even viewed as a
delegation of a judicial function, this limited delegation of
discretion is not comparable to a statute giving the probation
department complete authority to decide whether to impose a
particular condition of probation (People v. Cruz, supra,
197 Cal.App.4th at p. 1311), or a juvenile court’s attempted
delegation of the authority to return a minor to confinement
without any judicial determination of violation (In re Gabriel T.,
17
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
supra, 3 Cal.App.5th at pp. 958–961). We stress, again, that
under the challenged provision participation in community
service was merely an option that the probation officer could
offer to minor. Minor was free to refuse the offer, and potentially
return to juvenile court, if he believed the probation department
was proposing an inappropriate level of community service for
the alleged violation of probation (or, for that matter, if he
contested the allegation itself).
Because community service was, under the challenged
provision, to be performed only with minor’s agreement, we also
find no deprivation of due process here despite the lack of
judicial procedure. When a minor is accused of violating a
criminal law (§ 602) or the terms of probation (§ 777), due
process requires that the minor receive notice of the allegations
and that the burden be on the People to prove the violation,
though the constitutionally mandated standard of proof differs
in these two circumstances: beyond a reasonable doubt for
allegations of criminal violations, and preponderance of the
evidence for allegations the minor has violated the terms of
probation. (In re Eddie M. (2003) 31 Cal.4th 480, 503–508; In re
Arthur N. (1976) 16 Cal.3d 226, 234–235.) A juvenile court order
that permitted the probation officer to make a finding of a
probation violation and impose a sanction for the violation
without providing the minor notice or an opportunity to be
heard, and without a requirement that the People prove the
violation by a preponderance of the evidence would, at the least,
raise serious due process questions. But no such issues are
present here; the probation department was authorized only to
offer minor community service as an option, in lieu of returning
to court, to clear alleged violations of his probation. The
challenged provision deprived minor of no judicial process he
18
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
would otherwise receive; it merely authorized providing him
with another option for resolving allegations of probation
violations that, in practice, are likely to be relatively
insignificant. If he declined that option, the ordinary procedures
under sections 777 or 778 would come into play: The probation
officer would be required to give formal notice, and judicial
proceedings for modification of probation would commence. (See
§ 777, subds. (a), (c); § 778, subd. (a).) Minor raises no claim of
constitutional insufficiency against those statutory provisions
for notice and hearing.
The record is unclear concerning whether the juvenile
court intended to authorize probation to offer additional G.P.S.
monitoring, as well as community service, as an option to clear
an alleged violation. To the extent it did, however, there is no
indication that the terms of that provision were any different
from the community service provision — that is, an offer that
the minor could accept or reject. Our constitutional analysis of
the G.P.S. monitoring would therefore be the same.
In conclusion, the challenged provision of the juvenile
court’s probation order merely authorized the probation
department to offer minor a community service option for
nonjudicial resolution of alleged probation violations. In
authorizing an option for informal resolution of such allegations,
the court neither delegated judicial functions in an improper
manner to the probation officer nor deprived minor of any
judicial process due him.
19
In re D.N.
Opinion of the Court by Cantil-Sakauye, C. J.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
20
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re D.N.
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 3/23/21 – 5th Dist.
Rehearing Granted
__________________________________________________________
Opinion No. S268437
Date Filed: December 12, 2022
__________________________________________________________
Court: Superior
County: Fresno
Judge: Gary D. Hoff
__________________________________________________________
Counsel:
Elizabeth Campbell, under appointment by the Supreme Court, and
Sangeeta Sinha, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Darren K. Indermill, Rachelle A. Newcomb and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Elizabeth Campbell
Attorney at Law
3104 O Street
PMB 334
Sacramento, CA 95816
(530) 786-4108
Kari Ricci Mueller
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244
(916) 210-7731