In re Jonathan V. ( 2018 )

Filed 1/9/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JONATHAN V., B271319
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. PJ51828)
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Morton Rochman, Judge. Reversed.
Courtney M. Selan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Shawn McGahey Webb and
David W. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
INTRODUCTION
On February 10, 2016, defense counsel, in a juvenile case,
walked into court for a trial setting conference and was given
“notice” by the prosecutor that the People were going to seek a
two-year restraining order against her client, Jonathan V. When
the case was called, defense counsel objected to the issuance of
the order, informed the court she had not been given prior notice
of the People’s application and requested time to prepare for the
hearing. Overruling defense counsel’s objections, the court issued
the two-year restraining order.
Jonathan argues the order must be reversed because (1) he
did not receive adequate notice of or a hearing on the People’s
application for the restraining order, and (2) the order is not
supported by substantial evidence.1 Because we agree the
juvenile court erred by issuing the restraining order without
providing Jonathan sufficient notice or a meaningful opportunity
to be heard, we reverse the two-year restraining order. In light of
this ruling, we need not reach Jonathan’s second contention
concerning the sufficiency of the evidence.
1 Restraining orders issued in juvenile proceedings are
appealable. (In re Cassandra B. (2004) 125 Cal. App. 4th 199,
208.)
2
FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 2015, Randy G., Brandon S., H.Y., and
Justin P. (hereinafter referred to collectively as “victims”) were
walking down the street when a gray truck with a camper pulled
up next to them.2 Jonathan and approximately six companions
exited the truck and asked, “Where you guys from?” When the
victims did not answer, Jonathan and his companions yelled,
“San Fer.”3 One of the companions pointed a gun at the victims
while the others took the victims’ wallets, cell phones and
jewelry. The robbers got back in the truck and left.
A little while later, one of the victims flagged down police
officers and told them he had been “jumped” by Jonathan and his
companions. The police located the gray truck and attempted to
conduct a traffic stop, but the truck drove away. A pursuit
ensued, and the truck ran off the road and hit a guard rail. The
occupants fled on foot, but were caught and arrested.
The victims identified Jonathan as one of the perpetrators.
The police recognized Jonathan as a “San Fer” gang member.
Jonathan denied any gang involvement.
On December 8, 2015, the People filed an amended petition
alleging that on December 4, Jonathan, then 15 years old,
committed second degree robbery against the four victims (Pen.
Code, §§ 211, 212.5, subd. (c)), that a principal personally used a
firearm in the commission of the crimes (id., § 12022.53,
2 The factual background is based upon the probation
officer’s report and the detention report.
3 “San Fer” refers to a street gang.
3
subds. (b), (e)(1)), that a principal was armed with a firearm in
the commission of the crimes (id., § 12022, subd. (a)(1)), and that
the crimes were committed for the benefit of a criminal street
gang (id., § 186.22, subd. (b)(1)(B)).
At the December 9 detention hearing, Jonathan denied the
allegations of the petition. The trial court found a prima facie
case that Jonathan was a person described by Welfare and
Institutions Code section 602, and detained him in juvenile hall.
On January 5, 2016, Jonathan was placed on home detention in
the community detention program.
At the February 10 trial setting hearing, at which
Jonathan was present, he was released from the community
detention program over the People’s objection. The court based
its decision on the positive reports it had received from his high
school and the community.
At the same hearing, the People requested a juvenile
restraining order precluding Jonathan from contacting the
victims of the crime. Defense counsel objected to the request and
stated she “wouldn’t object to the court ordering my client to stay
away from anyone he knows to be a witness or victim alleged in
this case, but I don’t think it’s appropriate for a CLETS-type[4]
order. This is a restraining order that’s going to stay in the file
for the rest of my client’s life. For a CLETS-type order,
restraining order in domestic violence type cases, my client
doesn’t—there is no allegation my client has any contact with
anyone on that list.”
4 CLETS refers to the California Law Enforcement
Telecommunications System. (Gov. Code, § 15150 et seq.; People
v. Martinez (2000) 22 Cal. 4th 106, 113, 124.)
4
Defense counsel argued Jonathan “is entitled to an actual
hearing before the court signs that order, and I would request
that we set a hearing on that. I had no notice of it. The district
attorney walks in with a serious restraining order which I have
no notice of and asks the court to sign something. I think my
client’s entitled to have his attorney be able to articulate and be
prepared on this, and this is not something that is going to go
away. These go into the CLETS system and stay there forever.
And the juvenile court has always been able to order my client to
stay away as a condition of his release, stay away from the
witnesses and victims, and I think that that’s appropriate.”
The People responded that rule 5.630 of the California
Rules of Court authorized them to make their request orally and
without notice. Additionally, the People argued issuance of the
order was reasonable because of the seriousness of the charges,
and the fact Jonathan was out of custody and no longer in the
community detention program.
The court agreed with the People. The court noted the
petition “has multiple victims, and the allegations are serious
violations of the Penal Code. The motion by the People is well
taken. Over [Jonathan’s] objection, the court signed the
order . . . .” The restraining order went into effect on February
10, 2016, for a period of two years, lasting until February 10,
2018.5
5 We augment the record, on our own motion (Cal. Rules of
Court, rule 8.155), adding the November 9, 2016, minutes from
the superior court file (Evid. Code, § 452, subd. (d)), which
indicate that at the adjudication hearing held on that date, the
court sustained the petition based upon Jonathan’s admission to
5
DISCUSSION
The issue in this case is whether Jonathan received
adequate notice and an opportunity to contest the People’s
request for a two-year restraining order. We conclude Jonathan
did not receive adequate notice or an adequate opportunity to be
heard to contest the issuance of the order.
A. Standard of Review
The question whether the order was authorized under the
statute, as a matter of statutory interpretation, is reviewed de
one count of robbery in the second degree, that a principal was
armed with a firearm in the commission of the offense, and one
count of grand theft from a person (Pen. Code, § 487, subd. (c)).
The adjudication order provides that Jonathan will be allowed to
withdraw his plea to robbery and the special allegation “if, after
[two] years, [he] has absolutely no violations.” Jonathan was
declared a ward of the court under Welfare and Institutions Code
section 602 and was placed at home on probation. One of the
conditions of probation was that Jonathan have no “contact with
or have someone else contact the victims or witnesses of any
offense against” him. The language of the restraining order is
broader, ordering Jonathan not to “molest, attack, strike, stalk,
threaten, batter, harass, destroy the personal property of, or
disturb the peace; contact, either directly or indirectly, in any
way, including but not limited to, in person, by telephone, in
writing, by e-mail, by text message, or by other electronic means,
and stay away at least 100 yards from the home, job, vehicle, and
school of protected persons. Do not take any action to get the
address or location of protected persons, or the addresses or
locations of family members, caregivers, or guardians of protected
persons.”
6
novo. (Babalola v. Superior Court (2011) 192 Cal. App. 4th 948,
956 (Babalola).) We review procedural due process claims de
novo because “the ultimate determination of procedural fairness
amounts to a question of law.” (Nasha v. City of Los Angeles
(2004) 125 Cal. App. 4th 470, 482.)
B. The Juvenile Court Erred by Issuing a Two-year
Restraining Order
1. The Law Applicable to Restraining Orders in
Juvenile Delinquency Proceedings
Welfare and Institutions Code section 213.5 (section 213.5)
governs the issuance of restraining orders in juvenile delinquency
proceedings.6 Section 213.5 provides for two types of restraining
orders: (1) temporary orders that may be issued without notice
and a hearing, and which may remain in effect for a maximum of
25 days (id., subd. (c)); and (2) restraining orders that may be
issued after notice and a hearing and which can remain in effect
for a period of up to three years (id., subd. (d)).
When a party seeks a temporary restraining order,
subdivision (c) of section 213.5 permits the juvenile court to issue
a temporary restraining order without notice or a hearing. (See
also Cal. Rules of Court, rule 5.630(b) & (d) (rule 5.630).) A
temporary restraining order issued without notice may remain in
effect for a period not to exceed 21 days, or for good cause, 25
days, after which the court must either hold a hearing to
6 California Rules of Court, rule 5.630 also applies to the
issuance of restraining orders in juvenile delinquency
proceedings.
7
determine whether to issue a restraining order or to dissolve the
temporary restraining order. (§ 213.5, subd. (c)(1).) A temporary
restraining order issued under this subdivision may be extended
for a limited time if the court grants either party a continuance.
(Id., subd. (c)(2)-(4).) The party to be restrained is “entitled, as a
matter of course, to one continuance, for a reasonable period, to
respond to the petition.” (Id., subd. (c)(2).) A temporary
restraining order must be issued on form JV-250. (Rule
5.630(d)(2) [“The temporary restraining order must be prepared
on Notice of Hearing and Temporary Restraining Order—Juvenile
(form JV-250) and must state on its face the date of expiration of
the order”].)
Subdivision (d) of section 213.5 authorizes the court to
issue a restraining order, as distinguished from a temporary
restraining order, that can remain in effect for up to three years,
but only “upon notice and a hearing.” (§ 213.5, subd. (d)(1).) This
order must be issued on form JV-255. (Rule 5.630(f)(2) [“The
order after hearing must be prepared on Restraining Order—
Juvenile (form JV-255) and must state on its face the date of
expiration of the order”].)
2. Jonathan Did Not Receive Adequate Notice or an
Opportunity to Be Heard Prior to the Issuance of the
Two-year Restraining Order
The restraining order in this case is not a temporary
restraining order. It was not issued on form JV-250, the form
designated for temporary restraining orders, but rather on form
JV-255, the form used to issue restraining orders. And the order
is effective for a period of two years, from February 10, 2016
through February 10, 2018, well beyond the 21 or 25 days
8
permitted for a temporary restraining order. Before the court can
issue such an order, however, subdivision (d) of section 213.5
requires notice and a hearing. Jonathan received neither.
The People, relying on rule 5.630, contend the order was
properly issued in compliance with the “no notice” provision
found in rule 5.630(d). Reliance on this rule is misplaced. Rule
5.630(d) states in relevant part: “The application may be
submitted without notice, and the court may grant the petition
and issue a temporary order: (1) In determining whether or not
to issue the temporary restraining order without notice, the court
must consider all documents submitted with the application and
may review the contents of the juvenile court file regarding the
child.” (Italics added.) Because the “no notice” provision applies
only to temporary restraining orders, reference to this
subdivision is of no help to the People.7
In addition to his statutory rights, Jonathan’s right to due
process entitled him to advance notice of the People’s request for
a two-year restraining order, plus a meaningful opportunity to
present evidence in opposition to that request, before the court
could issue the restraining order. (See Babalola, supra, 192
Cal.App.4th at p. 965 [“‘[t]he essential requirements of due
process . . . are notice and an opportunity to respond’”]; see also
7 To the extent any part of rule 5.630 is read or interpreted
to dispense with the requirements of section 213.5, the statute
prevails. “‘Rules promulgated by the Judicial Council may not
conflict with governing statutes. [Citation.] If a rule is
inconsistent with a statute, the statute controls.’ [Citations.]”
(People v. Guerra (2016) 5 Cal.App.5th 961, 966; accord, Kahn v.
Lasorda’s Dugout, Inc. (2003) 109 Cal. App. 4th 1118, 1123.)
9
In re Large (2007) 41 Cal. 4th 538, 552 [purpose of requirement
that parties be given “notice and the opportunity to be heard is to
give them a chance to present information that may affect the
decision”]; Isidora M. v. Silvino M. (2015) 239 Cal. App. 4th 11, 22
[Due Process Clause requires that a party be given notice of, and
time enough to permit adequate preparation for, an impending
hearing].)
In Babalola, we considered a similar question concerning
the sufficiency of notice prior to the issuance of a criminal
protective order. Babalola was charged in February 2010 with
two counts of assault with a semiautomatic firearm. The crimes
took place on November 1, 2009. Babalola appeared at all of his
pretrial proceedings in March, April and May 2010. In June, the
People sought a criminal protective order pursuant to Penal Code
section 136.2, subdivision (a). Babalola was not charged with
crimes involving domestic violence and, as of the time of the
application in June, there was no good cause to believe Babalola
had attempted either during or after the commission of the
alleged aggravated assaults to intimidate or dissuade any of his
victims. The People had not previously sought a protective order
“and no evidence was presented that any emergency existed in
late June 2010 when the prosecutor finally submitted the
request.” (Babalola, supra, 192 Cal.App.4th at p. 965.) Under
these circumstances, we noted that “Babalola was entitled at
minimum to some notice that the request was going to be made
so he could prepare for the hearing.” (Ibid.)
Similarly here, the People had not previously sought a
protective order, Jonathan was released from home detention
because he was doing well, and the prosecution did not present
any evidence an emergency existed at the time the People sought
10
the restraining order.8 Jonathan, like Babalola, was entitled to
some notice prior to the hearing so counsel and Jonathan could
prepare for the hearing.
The People cite two cases in support of their position that
same-day oral notice is adequate. Both cases are distinguishable.
In Rayburn v. Stewart (9th Cir. 1997) 132 F.3d 40, an
unpublished memorandum opinion (reported in full at Rayburn v.
Stewart (9th Cir. Dec. 15, 1997, No. 97-35150) 1997 U.S.App
LEXIS 36061), Rayburn, a Washington state prisoner, brought a
habeas petition alleging that his parole revocation proceeding
lacked minimum due process. The court found written notice of
his alleged violation, “albeit on the same day that his suspended
sentence was revoked,” was sufficient to satisfy his “due process
right to pre-revocation notice.”9 (Id. at p. *3.) The court affirmed
8 The People did not seek a temporary restraining order,
presumably because there was no urgency for such an order, and
the juvenile court did not issue a temporary restraining order.
Indeed, the grounds offered by the People for the issuance of the
two-year protective order did not demonstrate an emergency or
the need to proceed without notice or a hearing. The People
sought issuance of the order based upon (1) the nature of the
charges, (2) Jonathan’s release from community detention, and
(3) the fact that a restraining order was issued against another
minor, presumably one of the other perpetrators involved in the
robbery.
9 Morrissey v. Brewer (1972) 408 U.S. 471 [92 S. Ct. 2593, 33
L. Ed. 2d 484] established the minimum due process requirements
for revocation of parole. These include: “(a) written notice of the
claimed violations of parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be heard in person and to
present witnesses and documentary evidence; (d) the right to
11
the denial of the habeas petition finding that the proceedings
complied with the due process requirements applicable to parole
violation proceedings.
In the present case, Jonathan, who had successfully
completed his community detention program, had no reason to
believe the People would request a restraining order at his trial
setting conference. Rayburn, on the other hand, knew the
revocation hearing was forthcoming because it was based upon
his prior termination from his treatment program. (Rayburn v.
Stewart, supra, 1997 U.S.App LEXIS 36061, *3.) At his
revocation hearing, Rayburn testified, as did his treatment
provider and probation officer. (Ibid.) Unlike Rayburn, Jonathan
was not provided with written notice, a description of the
evidence to be used against him, a meaningful opportunity to be
heard or an opportunity to present evidence in opposition to the
People’s request.
The second case relied on by the People is Olson v. Arnett
(1980) 113 Cal. App. 3d 59. Olson involved a personal injury suit
over a motorcycle accident and settled shortly before the trial
date. Thereafter, the settlement collapsed and the defendant
moved for and was granted a bifurcated trial on the affirmative
defense of accord and satisfaction. On the day of trial, the court
confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing body such as
a traditional parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the factfinders
as to the evidence relied on and reasons for revoking parole.” (Id.
at p. 489.)
12
granted the defendant’s request to file a cross-complaint for
specific performance of the settlement agreement and damages
for breach of that agreement. Because the facts and
circumstances surrounding the collapse of the settlement
agreement were well known to the plaintiff and the plaintiff had
been on notice for at least seven weeks that “there would be a
defense based upon the settlement agreement,” the appellate
court found “no merit to [the plaintiff’s] contention he was denied
adequate notice by the filing of the cross-complaint and the
commencing of the bifurcated trial on the same day.” (Id. at
p. 65.)
Olson has nothing in common with the present case. Olson
is not a juvenile case or a criminal case, nor does it involve a
restraining order governed by statutory requirements. Unlike
counsel in Olson, who received more than seven weeks notice to
prepare for the bifurcation hearing and was well aware of the
settlement related defenses and claims, Jonathan’s counsel was
caught by surprise, and, therefore, unable to investigate the
issues or present evidence in opposition thereto.
As the record shows, the People requested and the court
issued the restraining order on the same day, February 10, 2016.
Jonathan’s counsel objected, arguing she had not been given prior
notice and, as a result, was unprepared to proceed in opposition
to the request. She asked the court to set an “actual” hearing
date so she could prepare. She emphasized the seriousness of the
restraining order, given its duration and entry into the CLETS
system. Nonetheless, the juvenile court overruled the objections
and issued the two-year restraining order.
While the specific amount of time necessary to satisfy the
“notice” requirement is not delineated in section 213.5, more than
13
courtroom notice is required.10 (See Babalola, supra, 192
Cal.App.4th at p. 965.) The issuance of a two-year restraining
order has substantial consequences. A violation of such a
restraining order could subject Jonathan to a new delinquency or
criminal proceeding. A willful and knowing violation of a
restraining order issued under section 213.5 is a misdemeanor
punishable under Penal Code section 273.65, and, as a matter of
evidence in any such proceeding, the entry of a CLETS report
may be admissible under the official records exception to the
hearsay rule. (People v. Martinez, supra, 22 Cal.4th at p. 134.)
As counsel noted, issuance of the restraining order requires entry
of the order into the CLETS system, which is available to all
public law enforcement agencies, and may, as defense counsel
argued, negatively impact a restrained party’s ability to attend
10 Reference to other rules concerning the timing for motions
demonstrates that, absent grounds for an exception, such as
urgency or an emergency, more than oral courtroom notice is
required. For example, with respect to civil motions, Code of
Civil Procedure section 1005, subdivision (b), provides that
moving and supporting papers, in general, must be “served and
filed at least 16 court days before the hearing.” With respect to
motions in juvenile court, the Superior Court of Los Angeles
County, Local Rules, rule 7.16 (b), provides in pertinent part:
“The moving party must serve the motion upon all other counsel
in the case at least five calendar days but not less than three
court days before the date of the hearing if served personally or
by facsimile, and at least seven calendar days before the hearing
if served by mail.” With respect to criminal motions, California
Rules of Court, rule 4.111 states in pertinent part, “all pretrial
motions, accompanied by a memorandum, must be served and
filed at least 10 court days” before the hearing.
14
school, obtain housing, apply for admission to the military, gain
certain types of employment and obtain governmental benefits.11
As counsel stated repeatedly, such consequences raise the stakes
and underscore the need for notice and an opportunity for counsel
to prepare for the hearing.
Because Jonathan was not provided with notice or a
hearing on the People’s application, the juvenile court erred by
issuing the restraining order. Consequently, we reverse the
order.12
DISPOSITION
The order is reversed.
11 Government Code section 15153 states that CLETS “shall
be under the direction of the Attorney General, and shall be used
exclusively for the official business of the state, and the official
business of any city, county, city and county, or other public
agency.” While defense counsel did not present evidence
establishing that the issuance of a CLETS order has the effects
described by counsel, nonetheless, the point concerning the actual
and potential impact of such an order is well taken.
12 In so doing we note that our decision does not preclude the
juvenile court from entering a new restraining order against
Jonathan should circumstances warrant it, provided he is
afforded the notice and hearing required under subdivision (d) of
section 213.5, and is still a ward of the court and on probation for
the offense giving rise to the underlying delinquency proceeding.
(See rule 5.630 [party may request a restraining order any time
after a Welf. & Inst. Code, § 602 petition has been filed, and until
wardship is terminated or the ward is no longer on probation].)
15
BENSINGER, J.*
We concur:
ZELON, Acting P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
16