In re Omar C. CA2/8

Filed 9/3/13 In re Omar C. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re OMAR C., a Person Coming Under B243843
the Juvenile Court Law.
THE PEOPLE et al., (Los Angeles County
Super. Ct. No. JJ19612)
Plaintiffs and Respondents,
v.
OMAR C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Donna
Quigley Groman, Judge. Reversed and remanded.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Analee
J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Omar C. was a dependent of the juvenile court when he was charged with two
separate felonies. As part of a plea agreement, Omar admitted to the felonies in exchange
for deferred entry of judgment which would put him in the care of the Los Angeles
County Department of Children and Family Services (DCFS). The plea agreement was
approved by a referee sitting as a temporary judge. Subsequently, a judge of the juvenile
court ordered a rehearing of the referee‟s orders and placed Omar into the custody of the
probation department instead. Because the referee‟s orders were not subject to rehearing,
we reverse and remand to reinstate the referee‟s dispositional orders.
FACTUAL AND PROCEDURAL HISTORY
Omar was charged with possession of metal knuckles in violation of Penal Code
section 21810 in an April 11, 2012 petition filed under Welfare and Institutions Code
section 602.1 At the time of the petition, Omar was 16 years old. He had been a
dependent of the juvenile court pursuant to section 300 since 2006 as a result of physical
abuse by his father and substance abuse by both parents. Because the juvenile court
could potentially have dual jurisdiction over Omar as a dependent of the court and a ward
of the court, section 241.12 was triggered to allow the court to determine his status.
Another section 602 petition was filed on July 17, 2012, against Omar for one
count of grand theft auto (Pen. Code, § 487(d)(1)) when he tried to take a van from his
group home without consent. Omar stated that he tried to take the van because he was
tired of the group home and wanted to leave. However, he asked for another chance and
pointed out that he was doing well in school and was not taking any drugs or alcohol.
1
All further section references are to the Welfare and Institutions Code unless
otherwise specified.
2
Section 241.1(a) provides: “Whenever a minor appears to come within the
description of both Section 300 and Section 601 or 602, the county probation department
and the child welfare services department shall, pursuant to a jointly developed written
protocol described in subdivision (b), initially determine which status will serve the best
interests of the minor and the protection of society. The recommendations of both
departments shall be presented to the juvenile court with the petition that is filed on
behalf of the minor, and the court shall determine which status is appropriate for the
minor.”
2
The probation department recommended that Omar‟s case be handled by a section
241.1 unit. It stated that direct release would not be considered because Omar was a
habitual runaway, who had “awol‟d from placement six times” in the last four months of
placement. The probation department recommended secure detention for the safety of
the community because Omar had escalated into delinquent activity. Omar denied the
allegations in the July 17 petition and remained detained in juvenile hall. In an August 6,
2012 probation report, the multi-disciplinary team, which included DCFS, recommended
that Omar be placed on deferred entry of judgment pursuant to section 7903 with
meetings with a probation officer once a month or as needed. Omar would be released to
DCFS for placement and would receive individual therapy, drug and alcohol education
and random drug testing. It was also recommended that the deferred entry of judgment
be subject to numerous conditions, including not being out of the home between 6:00
p.m. and 6:00 a.m. without parental consent, not associating with anyone disapproved of
by the parent, probation officer or social worker, cooperating in a plan to control drug or
alcohol abuse and submitting to therapy and drug testing.
On August 6, 2012, Omar admitted to one count of attempted taking of vehicle
without consent of the owner.4 (Pen. Code, § 664; Veh. Code, § 10851(a).) The offense
was declared to be a felony count and Omar was detained in juvenile hall. On August 8,
2012, Omar appeared for a pre-plea hearing with respect to the section 602 petition
charging Omar with possession of metal knuckles. Judge Donna Q. Groman presided.
County counsel, Tammy Pruitt, and the social worker, Mr. Howard, appeared on behalf
3
Section 790, subdivision (b) provides: “Upon a finding that the minor is also
suitable for deferred entry of judgment and would benefit from education, treatment, and
rehabilitation efforts, the court may grant deferred entry of judgment.”
4
This count was added on August 6, 2012 to the section 602 petition and Omar
admitted to it as part of a plea agreement. The original count of grand theft auto was
dismissed.
3
of DCFS. The deputy district attorney handling the matter was Mr. Roxas. Omar, who
was present, was represented by deputy public defender Daniel Tiktin.5
Judge Groman indicated at the outset that there was “a discussion off the record
with respect to the recommendation of 790, which doesn‟t appear to be workable at this
time.” She asked Mr. Tiktin what he wanted to do. Mr. Tiktin replied, “ I believe we‟re
0 of 15 today, so if we could just confirm the trial date, and I‟m going to have a social
worker appointed. And I was going to request if we could have a status next Thursday.”
Noting that a hearing on August 16, 2012, will “just to be trial setting,” the court advised
county counsel and the social worker that they did not need to appear and directed county
counsel to give her phone number to the court staff if they needed to reach her.
At the August 16, 2012 hearing, Mr. Tiktin appeared with Mr. Wilson, a different
deputy district attorney. After stipulating that Referee Steve Klaif would serve as
temporary judge on the matter, the following colloquy occurred:
“The Court: “The matter is on calendar for a trial setting, as well as it looks like
we have a dispo trailing from a sustained petition out of 240—Department 245. How are
we proceeding?
“Mr. Tiktin: He‟s going to admit to the sole count on the open case, and he‟s got a
790 recommendation, which he‟s hoping the court would follow. He brought in some
good grades. And the comment says he‟s a great student and a pleasure to have in class.
“The Court: It‟s amazing how well you can do when you don‟t have any choice,
when you‟re in school and paying attention. Because you‟re apparently capable of doing
quite well. All right. Are the People in agreement?
“Mr. Wilson: Is the court in agreement?
“The Court: We‟ve got one count—
5
The reporter‟s transcript misidentifies Humberto Benitez as appearing for Omar
and Joel Wilson for the People. However, Judge Groman identified Mr. Tiktin as
Omar‟s counsel and Mr. Roxas as the deputy district attorney from the bench. The
parties agree that Mr. Tiktin and Mr. Roxas appeared on August 9, 2012.
4
“Mr. Wilson: Of attempted GTA [grand theft auto] and one count of knuckles,
metal knuckles.
“The Court: And no previous records. Yeah, we‟ll give him a shot.”
Mr. Wilson then took Omar‟s plea after informing him of the charges against him,
his constitutional rights and the consequences of the plea. After Omar indicated his
understanding, Mr. Wilson and Mr. Tiktin formally joined in the plea agreement.
Referee Klaif found that Omar “knowingly, intelligently, voluntarily, expressly waived
his right to a trial. He‟s aware of the charge against him and the consequence of
admission to that charge.” Omar was ordered to be “released to the custody of DCFS”
and the trial date was vacated.
The next day, Judge Groman expressed surprise at the section 790 disposition,
because she believed “the minor was not suitable for deferred entry of judgment [because
of] his unwillingness to stay anywhere.” Judge Groman further noted that “Mr. Tiktin
set it for adjudication, and we also set it for trial setting to get more information on the
paternal side of the family.” At the hearing, Ms. Pruitt appeared for DCFS and Mr.
Wilson appeared for the People. Omar was represented by a different deputy public
defender, Humberto Benitez. Indicating that she would entertain a motion for rehearing,
Judge Groman stated that the “biggest problem that I am faced with now is that the court
implicitly made a ruling on the 241.1 issue without county counsel being present and
having the opportunity to be heard. And so that‟s why there seems to be an issue.”
Judge Groman ordered Omar to remain in juvenile hall pending resolution of the
rehearing issue. County Counsel filed an application for a section 2526 rehearing on
August 17, 2012. Ms. Pruitt submitted a supporting statement which stated, “The court
made clear that DCFS social worker and county counsel did not need to appear as 790
was not approved by the court and it would be a simple trial setting and receipt of relative
6
Section 252 provides in relevant part: “At any time prior to the expiration of 10
days after service of a written copy of the order and findings of a referee, a minor or his
or her parent or guardian or, in cases brought pursuant to Section 300, the county welfare
department may apply to the juvenile court for a rehearing.”
5
information for possible suitable placement under 602 supervision on 8-16-12. DCFS
was in agreement with the 602 placement based on the AWOL concerns and the fact that
Omar would not meet Level 14 criteria.”7
On August 22, 2012, Mr. Tiktin, Mr. Wilson and Ms. Pruitt appeared to argue
“whether the court has the authority to grant a rehearing of the 241.1 issue, which
although Referee Klaif did not make an express finding as to the 241.1 issue, it could be
inferred that that issue was decided by virtue of the fact that the court had ordered minor
be placed on 790, deferred entry of judgment, which would be an informal dual status
with DCFS being the lead agency and also being required to place the minor.” After
hearing from counsel, Judge Groman granted the application for rehearing, reasoning as
follows:
“ . . . the court does find that DCFS, for purposes of the 241.1
hearing, not only is charged with providing a report but also has the
opportunity to be heard through counsel at a hearing under 241.1. Because
Ms. Pru[i]tt was specifically informed that there would be no substantive
decisions made on August 16th, she was not here. [¶] The court, on
August 8th, acknowledged the importance of having DCFS‟s participation
in rendering a decision as to whether the minor should be on dual formal
status or dual informal status and had put the matter over for further
determination. However, Mr. Tiktin and Mr. Wilson decided—And I know
that this is an unfamiliar proceeding, procedure with respect to 241.1, and I
trust that counsel just thought that it was appropriate to move forward
without the input of DCFS [¶] . . . [¶] However, on August 16th, when
counsel proceeded without the benefit of the court hearing from county
counsel, I think that that is a violation of due process for the county, which
is actually different than probation. Probation is not a party to 602
proceedings; however, DCFS is a party to 300 proceedings and, in my
7
A Level 14 placement is a group home intended to provide services for seriously
emotionally disturbed children. (See § 11462.01.)
6
view, is a party to whatever hearing under 241.1 occurs. Probation is not.
That‟s just the way the statutory scheme is set.
“But DCFS does have the opportunity to appear at the 241.1 hearing,
not only by providing a report with recommendations but to be represented
by counsel, if DCFS chooses to have counsel present.
“And so by proceeding with a 241.1 determination on August 16th
without affording DCFS due process and the opportunity to be heard, they
did not have an opportunity to sign a stipulation, accede to Referee Klaif‟s
apparent implied authority to proceed as a judge would on that date. They
were not here to stipulate, not stipulate, file a 170.6, not file a 170.6 on an
issue that is very important to the Department of Children and Family
Services and to which this court believes that they are a party and have
every opportunity to do so.”
Judge Groman then proceeded with the rehearing under section 241.1 and found
dual status to be appropriate with probation as the lead agency and DCFS as the
secondary agency. Omar‟s admission was vacated and Mr. Tiktin entered a plea of once
in jeopardy. Trial on the petition alleging possession of metal knuckles was held on
August 29, 2012. Judge Groman sustained the petition and declared Omar a ward of the
court to be held in physical confinement not to exceed three years four months. Omar
timely appealed.
DISCUSSION
Omar grounds his appeal on the deferred entry of judgment entered by Referee
Klaif under section 790. Omar contends Referee Klaif‟s order was not subject to
rehearing by Judge Groman because the parties stipulated to the referee acting as a
temporary judge. As such, Referee Klaif‟s order became final in the same manner as
orders made by a judge. The People and DCFS contend that DCFS was a party to the
delinquency matter and thus, entitled to be heard on the issue of Omar‟s dual status as
well as the stipulation appointing Referee Klaif as temporary judge. We disagree.
DCFS did not act as a party in this delinquency action. Further, it has presented no
7
grounds to unwind the plea agreement reached between the prosecution and the defense
and approved by the court.
I. Procedure for Dual Status Minors
Section 241.1 sets forth the procedure for the juvenile court to handle cases in
which it may have dual bases for jurisdiction over a child. Under section 300, a child
who is neglected or abused falls within the juvenile court‟s protective jurisdiction as a
dependent of the court. The juvenile court also may take jurisdiction over a minor as a
ward of the court when the child is habitually disobedient or truant (§ 601) or commits a
crime (§ 602). Section 241.1 requires that whenever it appears a minor may fit the
criteria of both a dependent child and a delinquent ward, the child protective agency and
the probation department must present a joint report to “initially determine which status
will serve the best interests of the minor and the protection of society.” (§ 241.1, subd.
(a).) The juvenile court then must determine the appropriate status for the child. (Ibid.)
“The joint assessment report must contain the joint recommendation of the
probation and child welfare departments if they agree on the status that will serve the best
interest of the child and the protection of society, or the separate recommendation of each
department if they do not agree.” (Cal. Rules of Court, rule 5.512(d).) Dual jurisdiction
is generally prohibited; a minor may not be both a dependent child and a delinquent ward
of the court absent a written protocol agreed upon by the presiding judge of the juvenile
court, the child protective agency and the probation department. (See § 241.1, subds. (d),
(e); In re Henry S. (2006) 140 Cal.App.4th 248, 254.) Under section 241.1, subdivision
(e)(5)(B), the agency designated as the lead agency “shall be responsible for case
management, conducting statutorily mandated court hearings, and submitting court
reports.”
The Rules of Court specify when the section 241.1 hearing is to take place: “If the
child is detained, the hearing on the joint assessment report must occur as soon as
possible after or concurrent with the detention hearing, but no later than 15 court days
after the order of detention and before the jurisdictional hearing. If the child is not
detained, the hearing on the joint assessment must occur before the jurisdictional hearing
8
and within 30 days of the date of the petition. The juvenile court must conduct the
hearing and determine which type of jurisdiction over the child best meets the child‟s
unique circumstances.” (Cal. Rules of Court, rule 5.512(e).) In short, the rule
contemplates the section 241.1 hearing will occur before a jurisdictional hearing to
determine whether a crime has been committed. (Cal. Rules of Court, rule 5.512(e); In re
Greg F. (2012) 55 Cal.4th 393, 403.) California Rules of Court, rule 5.512(g) further
specifies that “[a]ll parties and their attorneys must have an opportunity to be heard at the
[section 241.1] hearing.”
The juvenile court is permitted to appoint one or more referees to perform
“subordinate judicial duties,” including issuing orders regarding dual status minors.
(Cal. Const., art. VI, § 22; In re Edgar M. (1975) 14 Cal.3d 727, 732.) A referee‟s
rulings are subject to rehearing by a judge of the juvenile court on his or her own motion.
(In re Clifford C. (1997) 15 Cal.4th 1085, 1093; §§ 250 and 253.) “[A] minor or his or
her parent or guardian or, in cases brought pursuant to Section 300, the county welfare
department may apply to the juvenile court for a rehearing” of any matter heard by a
referee as well. (§ 252.) However, “[w]here a referee sits as a temporary judge, his or
her orders become final in the same manner as orders made by a judge.” (§ 250.) In
particular, “a referee shall not conduct any hearing to which the state or federal
constitutional prohibitions against double jeopardy apply unless all of the parties thereto
stipulate in writing that the referee may act in the capacity of a temporary judge.” (§ 248;
see In re Perrone C. (1979) 26 Cal.3d 49, 57; see also Cal. Rules of Court, rule 2.831.)
II. Analysis
A. There Were No Grounds for a Rehearing
The stipulation between Wilson and Tiktin conferred upon Referee Klaif full
judicial powers to issue a disposition in this case that was not subject to rehearing by
Judge Groman. The California Supreme Court‟s opinion in In re Mark L. (1983) 34
Cal.3d 171 illustrates our point. There, the minor entered a no contest plea to an
allegation that he committed felony burglary. (Id. at p. 173.) The plea was made before
a commissioner sitting as a juvenile court referee. At a subsequent dispositional hearing,
9
the commissioner declared the minor a ward of the court and released him to his parents‟
custody under a strict county probation program. (Ibid.) Acting on his own motion, the
presiding juvenile court judge ordered a rehearing under section 253, overturned the
commissioner‟s dispositional order, and placed the minor with the California Youth
Authority for evaluation. The minor filed a petition for writ of habeas corpus on the
ground the judge had no power to alter the commissioner‟s ruling. (Id. at p. 174.)
The high court found that the People and the minor had a “tantamount stipulation”
that the commissioner acted as a temporary judge with full judicial powers. The
commissioner repeatedly referred to himself as “the Court” and announced that the minor
had a right to a disposition by the same judicial officer as the one who took his plea.
Such an obvious reference to People v. Arbuckle (1978) 22 Cal.3d 749, without objection
from the People, was tantamount to a stipulation the commissioner was acting as a
temporary judge. (In re Mark L., supra, at pp. 179-180.) Thus, the commissioner‟s order
was final, the rehearing order was beyond the presiding judge‟s power to make, and the
rehearing violated the juvenile‟s right to disposition by the same judicial officer who took
his negotiated plea under Arbuckle. The high court found the presiding judge‟s order on
rehearing to be void. (In re Mark L., at p. 180.)
The facts here are more compelling than in Mark L. because there was an express
rather than an implied stipulation: a standard form stipulation for the appointment of a
referee as a temporary judge in the juvenile court was signed by the deputy district
attorney representing the People and the deputy public defender representing Omar; the
stipulation was approved by signature of the presiding judge of the juvenile court;
Referee Klaif also signed the form, consenting to the appointment; the oath of office was
administered by the executive officer of the court, who attested to it by his signature. No
other signatures were required. Indeed, there was no room to add any signatories on the
form. Under In re Mark L. and sections 248 and 250, Referee Klaif‟s order was final and
Judge Groman‟s order of rehearing was beyond her power to make.
10
B. DCFS Was Not a Party to the Delinquency Action
DCFS8 attempts to counter the holding in In re Mark L. by arguing that it was a
party to the proceedings. It disputes the validity of the stipulation appointing Referee
Klaif as temporary judge because it did not sign the stipulation and, as a party, it should
have. DCFS relies on a footnote in San Diego County Dept. of Social Services v.
Superior Court (1996) 13 Cal.4th 882, 892 (San Diego County Dept. of Social Services),
to support its argument. San Diego County Dept. of Social Services held that a party who
believed circumstances had changed since an order setting the permanent plan as long-
term foster care could petition the juvenile court to modify the permanent plan to
adoption or legal guardianship. No section 388 petition was necessary, and the juvenile
court had the power to determine a change of circumstances made at a party‟s request.
(Id. at pp. 888-889.) The party making the request in San Diego County Dept. of Social
Services was the social services agency. In footnote 4, the California Supreme Court
noted that a social services agency was “a party and sometimes more than a party. It is a
party because it litigates. And it is more than a party when it adjudicates, as in
conducting the six-month status review to determine whether long-term foster care
continues to be appropriate as the permanent plan.” (Id. at p. 891, fn. 4.)
The court‟s footnote illustrates the multiple roles a social services agency has in
dependency proceedings. As noted by Seiser & Kumli, Cal. Juvenile Courts Practice and
Procedure (2013) § 2.63[1], p. 2-217, “[t]he social worker has many differing roles and
responsibilities within and related to the dependency system. These roles and
responsibilities are carried out in a simultaneous, integrated, and ongoing basis.
Nevertheless, when possible and appropriate, all parties and courts should take care to
ensure they understand which role or responsibility the social worker is fulfilling in a
particular activity. This will help to avoid confusion as to that action and how it should
be reviewed by the juvenile court, superior court, or administrative agency.” In San
Diego County Dept. of Social Services, for example, the social services agency served an
8
Although the People stipulated to Referee Klaif acting as temporary judge and
agreed to the plea bargain, they nevertheless join in DCFS‟s arguments on appeal.
11
adjudicatory function when it conducted six-month reviews to determine the continued
efficacy of a long-term foster care plan under subdivision (d) of section 366.3. (§ 366.3,
subd. (d).) By contrast, courts have viewed a social services agency as an impartial arm
of the court when it prepares reports for the hearings held by the juvenile court in a
dependency matter and makes recommendations to assist the court. (In re Ashley M.
(2003) 114 Cal.App.4th 1, 7; Seiser & Kumli, Cal. Juvenile Courts Practice and
Procedure, supra, § 2.63[1], p. 2-217.)
We find DCFS was not a party to this delinquency matter. There is no reason to
bootstrap the Supreme Court‟s footnote in a dependency case into a finding that DCFS is
a party in a delinquency matter. Instead, we heed Mr. Seiser‟s and Judge Kumli‟s
admonition to carefully consider which role DCFS is fulfilling in a particular activity to
understand how it is to be reviewed on appeal. Even if we acknowledge that a
delinquency matter involving a dual status minor is different from a regular delinquency
matter, DCFS presents no authority for the proposition that it is a party in a delinquency
action as well as a dependency action. DCFS‟s role in a section 241.1 hearing is akin to
serving as an impartial arm of the court rather than a party who litigates. Under the
express terms of section 241.1, DCFS provides the court with guidance, along with the
probation department, regarding which status “will serve the best interests of the minor
and the protection of society.” Nowhere does section 241.1 require that DCFS “litigate”
as specified in San Diego County Dept. of Social Services.
Neither are we convinced that section 300 confers party status to a social services
agency in a delinquency action. DCFS argues, “[b]ecause section 241.1 involves both
section 300 and sections 601 or 602, and determines DCFS‟s role and responsibility with
respect to the minor, DCFS is a party. As Judge Groman pointed out, the proceedings
addressing whether section 790 was appropriate and which were required to occur before
the court conducted the jurisdictional hearing, were necessarily brought pursuant to
section 300.” DCFS is wrong. It is the later petition (i.e., the petition that creates the
potential for dual jurisdiction) that triggers section 241.1. (In re Marcus G. (1999) 73
Cal.App.4th 1008, 1013.) In this case, the section 602 petitions triggered section 241.1,
12
not the section 300 petition in 2006. There is no provision in section 241.1 to consolidate
the dependency and delinquency actions. Instead, section 241.1 merely provides that
notice must be given to the court with initial jurisdiction (here, the dependency court), but
it is the delinquency court that determines Omar‟s status. DCFS presents no authority for
the proposition that there exist any parties other than the People and the defendant in a
delinquency matter. (See Pen. Code, § 684 [“A criminal action is prosecuted in the name
of the people of the State of California, as a party, against the person charged with the
offense”].) We also note it does not argue that it was a party for purposes of the plea
agreement. As a result, there was no need for DCFS to sign the stipulation appointing
Referee Klaif as a temporary judge.9
C. A Valid Plea Agreement was Approved by the Court
DCFS argues that proceeding with a section 790 disposition was invalid because it
was deprived of the opportunity to be heard. Presumably, Referee Klaif would not have
approved the plea agreement if he was aware that DCFS had changed its
recommendation. However, DCFS provides no authority that would allow Judge
Groman to invalidate the plea agreement reached between the People and Omar and
approved by Referee Klaif. To the contrary, a mistake is not sufficient grounds to
invalidate a plea agreement. Omar is entitled to the benefit of his bargain. (See V.C. v.
Superior Court (2009) 173 Cal.App.4th 1455, 1467 (V.C.), disapproved on other grounds
in In re Greg F., supra, 55 Cal.4th at p. 415.) In V.C., the court explained that
“[a]llowing a trial court to rescind a plea bargain that has been accepted and fully
executed, because it was unaware of a change in the law in existence at the time of a
defendant‟s admission that if known by it and the parties would have changed the terms
or acceptance of the proposed plea, would clearly introduce unacceptable instability in
the practice of plea bargaining. No bargain would ever truly be secure.” (V.C., supra, at
p. 1467; see also Rules of Court, Rule 2.831(f) [“[T]hat a ruling is based on error of fact
9
Because we find that Referee Klaif was properly acting as a temporary judge, we
need not address DCFS‟s argument that it had the authority under section 252 to seek a
rehearing of a referee‟s order.
13
or law does not establish good cause for withdrawing a stipulation” for the appointment
of a temporary judge.])
DCFS makes much of the fact that defense counsel did not advise Referee Klaif
that Judge Groman felt deferred entry of judgment was not advisable or that DCFS‟s
position had changed from the recommendation presented in the joint assessment report,
particularly since DCFS was expressly told it did not need to appear for the hearing.
DCFS provides no authority to support an argument that Mr. Tiktin was obligated to
represent DCFS‟s interests or relay the opinion of another judge to Referee Klaif.
Defense counsel had an obligation to represent the interests of his client, not anyone else.
Further, the People were present, had the opportunity to object and failed to do so. That a
different prosecutor appeared that day does not change defense counsel‟s responsibilities.
“In plea bargaining arrangements it is the responsibility of lawyers in the prosecutor‟s
office to let „ “the left hand know what the right hand is doing” or has done.‟ ” (United
States v. I.H. Hammerman, II (4th Cir. 1975) 528 F.2d 326, 331; Couzens, Bigelow &
Prickett, Sentencing California Crimes (The Rutter Group 2013) § 2:6, p. 2-11.)
D. The Doctrine of Invited Error Does Not Apply
DCFS further argues that Tiktin‟s failure to advise Referee Klaif of these positions
invited any error resulting from the rehearing. Invited error occurs “where a party, for
tactical reasons, persuades the trial court to follow a particular procedure. The party is
estopped from claiming that the procedure was unlawful.” (In re Jamie R. (2001) 90
Cal.App.4th 766, 772.) Invited error does not apply here because Omar does not claim
that the procedure he advocated for (i.e., stipulation and deferred entry of judgment) was
unlawful. Further, Judge Groman expressly stated that she did not find Tiktin had tried to
defraud the court, unlike the defendant in People v. Malveaux (1996) 50 Cal.App.4th
1425, 1440-1441. We thus reject DCFS‟s invited error argument.
14
DISPOSITION
The dispositional order issued by Judge Groman on August 29, 2012 is reversed.
We remand the matter to reinstate Referee Klaif‟s findings and orders made on August
16, 2012.
BIGELOW, P. J.
We concur:
FLIER, J.
GRIMES, J.
15