In re E.W. CA3 ( 2015 )

Filed 6/30/15 In re E.W. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re E.W., a Person Coming Under the Juvenile Court C077534
Law.
THE PEOPLE, (Super. Ct. No. JV135935)
Plaintiff and Respondent,
v.
E.W.,
Defendant and Appellant.
The minor E.W. appeals following the juvenile court’s order terminating her
nonwardship probation pursuant to Welfare and Institutions Code section 725,
subdivision (a), and declaring her a ward of the court.1 Her contention on appeal is that
the juvenile court violated her statutory and due process rights when it issued the above
order without providing her notice or a contested hearing.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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We conclude the juvenile court properly terminated the minor’s nonwardship
probation but that it erred when it subsequently declared her a ward of the court without
providing the requisite contested dispositional hearing. Therefore, we affirm the juvenile
court’s order revoking the minor’s nonwardship probation, but we reverse the juvenile
court’s order declaring the minor a ward of the court and placing her on probation, and
remand the matter for a contested dispositional hearing.
FACTUAL AND PROCEDURAL BACKGROUND
In a juvenile wardship petition filed March 4, 2014, pursuant to section 602,
subdivision (a), it was alleged the minor had brought a knife to school (Pen. Code,
§ 626.10, subd. (a)) and had twice been cited for fare evasion (Pen. Code, § 640,
subd. (c)(1)).
On April 2, 2014, the minor admitted possessing a knife at school, which was
deemed by the juvenile court to be a misdemeanor, and the juvenile court deemed the
minor a person described in section 602 and placed her on probation for a period of six
months pursuant to section 725, subdivision (a). The conditions of her probation required
the minor to complete 30 hours of community service within five months, and to
complete an alcohol/drug assessment and any counseling deemed necessary as a result of
the assessment. The juvenile court notified the minor she must provide proof of
completion of the probation conditions at the compliance review hearing scheduled for
September 15, 2014, and stated, “[w]hat’s going to happen [at the hearing] is if you’ve
done your community service, your counseling, no other issues [sic] you will be off
probation and good to go.”
At the September 15, 2014, compliance review hearing, the minor reported she
had completed 14 of the 30 ordered hours of community service and had not completed
the alcohol/drug assessment, but minor’s counsel was hopeful the minor would obtain the
assessment prior to the October 2, 2014, deadline. At the request of minor’s counsel, the
juvenile court continued the compliance review hearing to September 29, 2014, but the
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juvenile court advised the minor that “[t]ime is running out” and to “[g]et this done” if
she wanted the case dismissed.
At the continued hearing, the minor provided proof that she had completed all
required community service, but counsel conceded the minor still had not completed the
alcohol/drug assessment. Minor’s counsel indicated the minor had attempted to schedule
the assessment but had not heard back from the scheduling authority. Minor’s counsel
asked that the minor’s probation be preliminarily revoked and that a continued hearing be
scheduled “in a couple months” to determine whether the assessment had been
completed. The juvenile court noted that the six-month probation period had nearly
expired and that the minor had not even begun the assessment. The prosecution objected
and requested the minor be adjudged a ward of the court for the purpose of completing
the assessment and any counseling, noting the previously ordered six-month period was
statutory and that the minor had not established that she would be able to complete the
assessment or any required counseling within that period. Minor’s counsel argued the
minor was entitled to a hearing to determine if wardship is in the minor’s best interests
prior to her being adjudged a ward of the court.
Over counsel’s objection, the juvenile court found the minor had failed probation,
revoked the minor’s probation, and adjudged her a ward of the court pursuant to the same
terms and conditions previously imposed.
DISCUSSION
Section 725, subdivision (a), provides that “[i]f the court has found that the minor
is a person described by Section 601 or 602 . . . it may, without adjudging the minor a
ward of the court, place the minor on probation . . . for a period not to exceed six months.
. . . If the minor fails to comply with the conditions of probation imposed, the court may
order and adjudge the minor to be a ward of the court.” The effect of awarding the minor
nonwardship probation is to halt the wardship proceedings. (In re Deon W. (1998)
64 Cal.App.4th 143, 146-147 (Deon W.).) If the minor fails to perform satisfactorily, the
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juvenile court may reinstitute the wardship proceedings. (Id. at p. 147.) Once the
juvenile court elects to proceed with reinstituting wardship proceedings, the minor is
entitled to an evidentiary hearing, if requested, on whether she violated the terms of
probation and a dispositional hearing, including notice, an opportunity to present
evidence, and a current social study. (§ 706; Cal. Rules of Court, rule 5.785; Deon W., at
pp. 146-147.)
Here, the minor contends she was not afforded an opportunity to establish she had
not violated her nonwardship probation, and was not afforded a proper dispositional
hearing. The People contend the minor had notice and a hearing that substantially
complied with procedural requirements, and even if the court erred, the error was not
prejudicial. We conclude the minor has forfeited her contention regarding the
termination of her probation, but that she was denied an evidentiary hearing regarding
whether wardship and probation was an appropriate disposition.
A. Revocation of Probation
The minor contends that nonwardship probation pursuant to section 725,
subdivision (a), “does not automatically revoke,” so the juvenile court should have
afforded her a hearing prior to terminating her probation so that she could present a
defense as to why she had not complied and to receive evidence to support the finding
that she had violated probation. However, the minor did not request such a hearing in the
juvenile court. Rather, minor’s counsel indicated the minor had attempted to schedule
the required alcohol/drug assessment but had not yet done so, asked the juvenile court to
preliminarily revoke probation, and to order the parties to “come back in a couple
months” to determine whether the minor had complied because “[s]he wouldn’t have met
the terms and conditions within time.” Though minor’s counsel did request an
evidentiary hearing, it was to determine if wardship was in the minor’s best interests, not
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to determine whether the minor had violated her probation.2 Therefore, the minor has
forfeited this contention. (See In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344
[procedural errors, even those implicating constitutional rights, may not be raised for the
first time on appeal] (Christopher S.); see also In re Sheena K. (2007) 40 Cal.4th 875,
880-885 (Sheena K.).) In any event, there was substantial compliance with the
evidentiary hearing requirement based on not one, but two compliance review hearings
for which the minor was given notice and an opportunity to present evidence of
compliance with the probationary terms and conditions.
B. Disposition
The minor contends she was entitled to a contested disposition hearing, including
notice, an updated social study, and an opportunity to present evidence, prior to being
adjudged a ward of the court. We conclude the minor forfeited her contentions that she
lacked notice and that no current social study was prepared or considered prior to the
court’s dispositional order. But the juvenile court did prejudicially err by failing to afford
the minor an evidentiary hearing, as requested, to determine whether wardship was in her
best interest.
2 The minor’s counsel argued to the court that “[s]he’s entitled to a hearing before we
adjudge her a ward. In the alternative I would ask to put this over for a settlement
conference because the 725(a) doesn’t automatically revoke. She’s entitled to a hearing
before wardship is determined to be in her best interest.” When the trial court asked why
there was a need for a settlement conference since the statute provides for a “six month
hard deadline,” counsel replied, “But nowhere in 725 does it say automatically if you
don’t complete this within time, you agree to be adjudged a ward of the court. She’s
entitled to a hearing. So at a minimum if we don’t want to put it over for settlement, we
can put it over for a hearing.” Thus, while counsel mentioned that nonwardship
probation pursuant to section 725, subdivision (a), does not “automatically revoke,”
counsel did not request a revocation hearing. Instead, as alternative to a dispositional
hearing, counsel asked for a settlement conference.
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The minor claims she was entitled to notice and a current social study prior to the
court adjudging her a ward of the court on September 29, 2014. However, the minor did
not object on these bases below, but merely sought an evidentiary hearing. Therefore,
these claims are forfeited. (See Christopher S., supra, 10 Cal.App.4th at p. 1344; see also
Sheena K., supra, 40 Cal.4th at pp. 880-885.) In any event, the juvenile court
substantially complied with the notice requirement because the minor was on notice that
if she failed probation, she could be adjudged a ward of the court, and the juvenile court
had already found her to be a minor described in section 602, subdivision (a). It also
substantially complied with the social study requirement because evidence of the minor’s
age, her social, personal, and behavioral history, the circumstances and gravity of her
offense, her prior delinquent history, and potential appropriate dispositional
recommendations were before the juvenile court. In the absence of prejudice, the
juvenile court’s order will not be set aside. (See In re Eugene R. (1980) 107 Cal.App.3d
605, 615.) Here, the minor has not shown she suffered prejudice as a result of not
receiving notice or an updated social study, and we conclude it is not reasonably probable
she would have received a more favorable result had either been provided. (Id. at p. 615;
People v. Watson (1956) 46 Cal.2d 818, 836.) Therefore, the minor has not established
error on these bases.
However, the juvenile court is required to provide the minor with a contested
dispositional hearing after terminating nonwardship probation and before declaring her a
ward of the court (Deon W., supra, 64 Cal.App.4th at p. 147), and the minor repeatedly
requested one to provide evidence that wardship was not in her best interest. Minors
have the right to present evidence at the dispositional hearing. (§ 706; Cal. Rules of
Court, rule 5.785(b); In re Shannon B. (1994) 22 Cal.App.4th 1235, 1246-1247.) And
contrary to the People’s contention otherwise, we cannot say that the failure of the
juvenile court to provide the minor with an opportunity to present that evidence was not
prejudicial. Therefore, we conclude the juvenile court erred in failing to provide the
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minor with a contested dispositional hearing to determine whether wardship and further
probation was in the minor’s best interest.
DISPOSITION
The judgment (order revoking probation and instituting wardship) is affirmed in
part and reversed in part. We affirm the juvenile court’s order revoking probation, but
we reverse the court’s order instituting wardship, and remand for a contested
dispositional hearing.
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
HOCH , J.
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