In re L.W. ( 2020 )

Filed 1/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re L.W., a Person Coming 2d Juv. No. B294336
Under the Juvenile Court Law. (Super. Ct. No. PJ52813)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
L.W.,
Defendant and Appellant.
L.W. was charged in a juvenile wardship petition with
committing sexual battery against two minor females. (Welf. &
Inst. Code,1 § 602; Pen. Code, § 243.4, subd. (e)(1).) Prior to
adjudication, and without any prior notice to L.W. or his counsel,
the juvenile court issued temporary restraining orders against
appellant as to the two alleged victims pursuant to section 213.5
All statutory references are to the Welfare and
1
Institutions Code unless otherwise stated.
and rule 5.630 of the California Rules of Court (rule 5.630).
Following a noticed hearing held prior to adjudication, the court
issued a three-year restraining order as to both alleged victims.
L.W. appeals from both the temporary restraining orders
and the three-year restraining order.2 He contends the
temporary restraining orders were erroneously granted without
notice, and that the three-year restraining order was not
supported by substantial evidence. We agree with the first
contention but reject the second. We affirm.
FACTS AND PROCEDURAL HISTORY
In February 2018, appellant (who was then 14 years old)
was charged in a section 602 petition with assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)), false imprisonment by
violence (id., § 236), and resisting a peace officer (id., § 148, subd.
(a)(1)). He was ordered detained. Pursuant to a negotiated
disposition, appellant admitted the assault and the court
sustained the petition as to that count, dismissed the other
counts, and ordered appellant placed home on probation with
various terms and conditions.
2 The appeal from the temporary restraining orders is
technically moot because those orders terminated when the
three-year restraining order was issued. (O’Kane v. Irvine (1996)
47 Cal.App.4th 207, 210, fn. 4.) The appeal from the pre-
adjudication three-year restraining order was also technically
rendered moot when, during the pendency of the appeal, the
court found the allegations of the wardship petition to be true
and ordered that the restraining order remain in effect. (See In
re Carlos H. (2016) 5 Cal.App.5th 861, 864, fn. 2. (Carlos H.)) We
nevertheless exercise our discretion to address appellant’s claims
because the issues to be decided are of important and continuing
public interest and are likely to recur yet evade review. (People v.
Alsafar (2017) 8 Cal.App.5th 880, 885-886.)
2
On October 5, 2018, appellant was charged in a subsequent
wardship petition with committing sexual battery against 14-
year-old minors S.G. (count 1) and C.M. (count 2). At the
November 13, 2018 arraignment hearing, the prosecutor
requested that the court issue temporary restraining orders
against appellant as to S.G. and C.M. Defense counsel objected
on the ground that the prosecution had not satisfied the
requirements for the issuance of temporary restraining orders
without notice, as set forth in Code of Civil Procedure section 527,
subdivision (c). The prosecutor countered that applications for
temporary restraining orders in juvenile cases are governed by
rule 5.630(d), which makes no mention of Code of Civil Procedure
section 527.
The court concluded that “the rule of court applies” and
granted the temporary restraining orders, which were prepared
on form JV-250 as provided in rule 5.630(d). After the court
made its ruling, the prosecutor sought to “make a record” by
orally adding “[i]t’s alleged . . . that at a high school football game
[appellant] grabbed one victim and began touching her breast
and vagina against her consent and then went on to touching
another victim in a similar way trying to unbutton her pants.
These are the facts under which the People are submitting this
temporary restraining order request.” Defense counsel objected
to the prosecutor’s offer of proof on the ground “[i]t does not
comply with what is required by law.” The court overruled the
objection. In accordance with section 213.5, a noticed hearing on
the restraining orders was set for December 4, 2018.
At the December 4 hearing, the prosecutor presented the
testimony of Los Angeles Unified School District Police Officer
3
Leo Gil.3 On September 12, 2018, Officer Gil interviewed S.G.
and C.M. S.G. told the officer she was at a high school football
game on the night of September 7 when appellant pulled her by
the arm, hugged and touched her, and rubbed her vagina over
her clothing. Appellant also asked S.G. if she was “horny.” She
pulled away from him and left with her friend. C.M. told Officer
Gil that appellant approached her at the football game that same
evening, said “I want you,” and touched her breast and vagina
over her clothing. Appellant also tried to unbuckle C.M.’s pants,
but she told him to stop and pulled away from him.
At the conclusion of the hearing, the prosecutor argued: “I
believe the court has before it evidence showing good cause to
issue this restraining order. There were two victims here who
were assaulted . . . within an hour of each other, both taken to an
area that the minor had exclusive access to them. Both were
contacted by the minor physically. He touched their breasts,
their vaginas. In the case of the second victim, [C.M.], he
attempted to unbutton her pants. . . . [¶] Additionally, this court
is able to look at the record of [appellant] in determining whether
good cause has been shown to issue a restraining order.
[Appellant] is on probation for [an assault] against his mother.
He’s also on probation [for another assault] in Maryland. So the
People believe there’s good cause for this court to issue a
restraining order.”
3Appellant acknowledges that the court could consider
hearsay evidence in deciding whether to issue the restraining
order. (Rule 5.630(f)(1); see also Kaiser Foundation Hospitals v.
Wilson (2011) 201 Cal.App.4th 550, 557 [a trial court may
“consider all relevant evidence, including hearsay evidence, when
deciding whether to issue an injunction to prevent workplace
violence pursuant to [Code of Civil Procedure] section 527.8”].)
4
Appellant countered among other things that the order
could not be issued because “[t]here has been no good cause to
establish that my client, after the alleged incidents, intimidated,
dissuaded any victims, alleged victims. There’s no evidence
presented that an emergency existed at the time the People are
seeking this restraining order. This incident happened on
allegedly September 7, 2018. The officer didn’t interview them
until September 12, 2018, and my client has not been at that
school . . . for at least a few months. So in light of that, I don’t
believe that there’s the requisite justification for the court to sign
off on this restraining order.”
The court found good cause for the restraining order and
signed and issued an order providing that appellant shall not
“contact, threaten, stalk, or disturb the peace of” S.G. and C.M.
for a period of three years. The order also states that appellant
“must stay 100 yards away” from S.G. and C.M. and “must not
make contact via [a] third party, unless otherwise authorized by
law.”
On February 21, 2019, appellant pleaded no contest to the
section 602 petition pursuant to People v. West (1970) 3 Cal.3d
595. The court sustained the petition as to count 1, dismissed
count 2 pursuant to appellant’s plea agreement, ordered that
appellant remain a ward, and placed him home on probation.
The court also ordered that the three-year restraining order
remain in effect.
DISCUSSION
The Temporary Restraining Orders
Appellant contends the temporary restraining orders were
erroneously issued without notice because the People failed to
satisfy the requirements for such orders. We agree.
5
“The question whether the [temporary restraining] order[s
were] authorized under the statute, as a matter of statutory
interpretation, is reviewed de novo. [Citation.] We review
procedural due process claims de novo because ‘the ultimate
determination of procedural fairness amounts to a question of
law.’ [Citation.]” (In re Jonathan V. (2018) 19 Cal.App.5th 236,
241 (Jonathan V.).)
Section 213.5 and rule 5.630 govern the issuance of
restraining orders in juvenile proceedings. Section 213.5,
subdivision (b) states that “[a]fter a petition has been filed
pursuant to Section 601 or 602 to declare a child a ward of the
juvenile court, and until the time that the petition is dismissed or
wardship is terminated, upon application in the manner provided
by Section 527 of the Code of Civil Procedure . . . , the juvenile
court may issue ex parte orders . . . enjoining the child from
contacting, threatening, stalking, or disturbing the peace of any
person the court finds to be at risk from the conduct of the child,
or with whom association would be detrimental to the child.”
(Italics added.) Subdivision (c)(1) states that “[i]f a temporary
restraining order is granted without notice, the matter shall be
made returnable on an order requiring cause to be shown why
the order should not be granted, on the earliest day that the
business of the court will permit, but not later than 21 days or, if
good cause appears to the court, 25 days from the date the
temporary restraining order is granted.”
Rule 5.630(b)(1) states that applications for restraining
orders in juvenile proceedings may be made orally at any
scheduled hearing regarding the minor “or may be made by
written application, or . . . on the court’s own motion.” Rule
5.630(d) provides that “[t]he application may be submitted
6
without notice, and the court may grant the petition and issue a
temporary order.” The rule further provides that “[i]n
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.” (Rule 5.630(d)(1).)
In issuing the temporary restraining orders without notice,
the juvenile court concluded that “the rule of court applies.” Rule
5.630, however, cannot be interpreted to dispense with the
requirements of section 213.5. (Jonathan V., supra, 19
Cal.App.5th at p. 242, fn. 7.) In any event, rule 5.630(a) makes
clear that “the court may issue restraining orders as provided in
section 213.5.” (Italics added.) Section 213.5 also makes clear
that applications for restraining orders must be made “in the
manner provided by Section 527 of the Code of Civil Procedure.”
(§ 213.5, subd. (b).)
Code of Civil Procedure section 527, subdivision (c) states
that “[n]o temporary restraining order shall be granted without
notice to the opposing party, unless both of the following
requirements are satisfied: [¶] (1) It appears from facts shown
by affidavit or by the verified complaint that great or irreparable
injury will result to the applicant before the matter can be heard
on notice. [¶] (2) The applicant or the applicant’s attorney
certifies one of the following to the court under oath: [¶] (A)
That within a reasonable time prior to the application the
applicant informed the opposing party or the opposing party’s
attorney at what time and where the application would be made.
[¶] (B) That the applicant in good faith attempted but was
unable to inform the opposing party and the opposing party’s
attorney, specifying the efforts made to contact them. [¶] (C)
7
That for reasons specified the applicant should not be required to
so inform the opposing party or the opposing party’s attorney.”
The People made no effort to comply with these
requirements. Instead, they asserted that temporary restraining
orders may be issued without notice under rule 5.630, subject
only to the requirement that the court “consider all documents
submitted with the application.” (Rule 5.630(d)(1).) For the first
time on appeal, the People contend they effectively complied with
subdivision (c)(1) of Code of Civil Procedure section 527 because
“[t]he facts alleged in the [petition]—that appellant committed
sexual battery against S.G. and C.M.—demonstrated that great
or irreparable injury would result to the victims before the
matter could be heard on notice.”
But the facts alleged in the petition demonstrated no such
thing. The sexual batteries were alleged to have occurred on
September 7, 2018, yet the People did not seek the temporary
restraining orders until November 13, 2018. Moreover, the
People made no effort to establish that appellant was given prior
notice of their intent to seek the orders or that they should be
excused from providing such notice, as required under Code of
Civil Procedure section 527, subdivision (c)(2). “While the specific
amount of time necessary to satisfy the ‘notice’ requirement is not
delineated in section 213.5, more than courtroom notice is
required. [Citation.]” (Jonathan V., supra, 19 Cal.App.5th at
p. 245.) Because the People presented no evidence of an
emergency or other urgency and made no attempt to give
appellant prior notice of their intent to seek the temporary
restraining orders, the court erred in issuing those orders without
notice.
8
The Three-Year Restraining Order
Appellant also contends the evidence is insufficient to
support the pre-adjudication three-year restraining order. We
disagree.
“With regard to the issuance of a restraining order by the
juvenile court pursuant to section 213.5, appellate courts apply
the substantial evidence standard to determine whether
sufficient facts supported the factual findings in support of a
restraining order and the abuse of discretion standard to
determine whether the court properly issued the order.
[Citations.]” (Carlos H., supra, 5 Cal.App.5th at p. 866.) “‘“To
show abuse of discretion, the appellant must demonstrate the
juvenile court exercised its discretion in an arbitrary, capricious
or patently absurd manner that resulted in a miscarriage of
justice.” [Citation.] Throughout our analysis, we will not lightly
substitute our decision for that rendered by the juvenile court.
Rather, we must indulge all reasonable inferences to support the
decision of the juvenile court and will not disturb its findings
where there is substantial evidence to support them.’ [Citation.]”
(Ibid.)
“Section 213.5 is part of a web of statutory provisions
known as the ‘juvenile delinquency laws.’ [Citation.] ‘The
purpose of juvenile delinquency laws is twofold: (1) to serve the
“best interests” of the delinquent ward by providing care,
treatment, and guidance to rehabilitate the ward and “enable
him or her to be a law-abiding and productive member of his or
her family and the community,” and (2) to “provide for the
protection and safety of the public . . . .”’ [Citation.] Section 202,
subdivision (b), in pertinent part, provides: ‘Minors under the
jurisdiction of the juvenile court as a consequence of delinquent
9
conduct shall, in conformity with the interests of public safety
and protection, receive care, treatment and guidance that is
consistent with their best interest, that holds them accountable
for their behavior, and that is appropriate for their
circumstances. . . .’” (Id. at pp. 867-868, italics omitted.) “Under
the juvenile delinquency laws, and consistent with their
overarching purpose, the juvenile court is expressly authorized to
make “any and all reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of the child . . . .’
[Citation.]” (Id. at p. 868, italics omitted.)
The juvenile court did not err in issuing the pre-
adjudication three-year restraining order. The order “was a
reasoned and reasonable response by the juvenile court to
[appellant’s] conduct and the other relevant facts of the case . . . .
Moreover, the order was entirely consistent with the public policy
objectives underlying the juvenile delinquency laws generally and
section 213.5 specifically.” (Carlos H., supra, 5 Cal.App.5th at
p. 871 [juvenile court did not abuse its discretion in imposing pre-
adjudication restraining order against minor charged with
committing sexual batteries against female classmate].)
In contending otherwise, appellant refers us to cases
involving restraining orders issued in criminal cases under Penal
Code section 136.2. (See, e.g., Babalola v. Superior Court (2011)
192 Cal.App.4th 948, 950.) As relevant here, such orders “must
be based on a finding of good cause to believe an attempt to
intimidate or dissuade a victim or witness has occurred or is
reasonably likely to occur. That finding may be based on the
underlying charges and the circumstances surrounding the
commission of the charged offenses, but a mere finding of past
harm to the victim or witness is not sufficient.” (Id. at p. 964.)
10
Restraining orders issued in juvenile proceedings under section
213.5, however, require no such finding. (Compare In re B.S.
(2009) 172 Cal.App.4th 183, 193, and cases cited therein [for
restraining orders issued in juvenile dependency cases under
section 213.5, subdivision (a), “evidence that the restrained
person has previously molested, attacked, struck, sexually
assaulted, or battered the child is certainly sufficient”].)
Moreover, appellant offered nothing to counter the evidence that
he committed the sexual batteries against S.G. and C.M. His
claim that the court erred in issuing the three-year restraining
order thus fails.
DISPOSITION
The three-year restraining order issued on December 4,
2018, is affirmed.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
11
Fred J. Fujioka, Judge
Morton Rochman, Judge
Superior Court County of Los Angeles
______________________________
Courtney M. Selan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Zee Rodriguez and Stephanie
C. Santoro, Deputy Attorneys General, for Plaintiff and
Respondent.