In re J.S. CA2/8 ( 2023 )

Filed 2/8/23 In re J.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.S., a Person Coming B316913
Under the Juvenile Court Law.
______________________________ Los Angeles County
Super. Ct. No. TJ23071
THE PEOPLE,
Plaintiff and Respondent,
v.
J.S.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Melissa N. Widdifield, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Steven A. Torres, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A juvenile court committed J.S. to the Division of Juvenile
Justice for murdering Alvaro Castro. As the prosecution
concedes, legislative changes made J.S. ineligible for commitment
to the Division. We reverse the commitment and remand for a
new disposition hearing. We otherwise affirm the judgment.
The Legislature is closing the Division on June 30, 2023
and is shifting responsibility for youth like J.S. to county
governments. (Welf. & Inst. Code, § 736.5, subds. (a) & (e).)
Beginning July 1, 2021, courts could not commit youth to the
Division, absent an exception. (Id., subd. (b).) The exception
applies to youth “otherwise eligible to be committed under
existing law and in whose case [the prosecution filed] a motion to
transfer the minor from juvenile court to a court of criminal
jurisdiction.” (Id., subd. (c).)
J.S. argues, the prosecution concedes, and we agree, that
the exception does not apply to J.S. The court ordered J.S.
committed to the Division on November 2, 2021 based on a
petition the prosecution filed on August 9, 2021. The prosecution
never moved to transfer the case of this August 2021 juvenile
petition to criminal court.
An earlier petition does not justify J.S.’s commitment. On
May 1, 2019, the prosecution filed a petition involving the same
murder and filed a motion to transfer the case for that petition to
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a court of criminal jurisdiction. Later, the juvenile court granted
the prosecution’s requests to withdraw that motion and to
dismiss the May 2019 petition without prejudice because the
prosecution was unable to proceed. The August 2021 petition did
not extend the earlier proceeding but initiated a new proceeding.
(See People v. Superior Court (Olivo) (2019) 36 Cal.App.5th 942,
949 [dismissal terminates a case and refiling begins a new case].)
The motion to transfer from the old case did not apply to the new
one.
The court should not have committed J.S. to the Division.
J.S. asks us to review sealed transcripts of two ex parte
communications the court had with a trial witness. We may
review the sealed transcripts. (See, e.g., People v. Anderson
(2018) 5 Cal.5th 372, 391.)
The juvenile court properly conveyed the substance of its
administrative ex parte communications and the communications
did not advantage any party. (See Cal. Code Jud. Ethics, canon
3B(7)(b).) The court described the two communications on the
record. One instance was to see if the witness, who was
testifying under an immunity agreement, consented to a
particular juvenile court lawyer representing her. The second
instance was to tell the witness about her lawyer’s scheduling
conflict. We have reviewed the sealed transcripts, which are
consistent with the court’s representations. The communications
were administrative, not about substantive matters of J.S.’s case.
Neither the defense nor the prosecution was present. The
communications conferred no procedural or tactical advantage to
any party. There was no error or prejudice.
///
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DISPOSITION
The judgment is reversed as to J.S.’s commitment to the
Division of Juvenile Justice. The matter is remanded to the
juvenile court to conduct a new disposition hearing consistent
with this opinion. The judgment is otherwise affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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