In re D.M. CA1/3

Filed 10/16/20 In re D.M. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re D.M., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A157612
v.
D.M., (Napa County
Defendant and Appellant. Super. Ct. No. 20193593202)
D.M., a minor, was adjudged a ward of the juvenile court and placed on
probation with various conditions after she admitted one count of felony
vandalism. She contends the court erred when it (1) permitted her case to
proceed as a delinquency matter under Welfare and Institutions Code section
6021 rather than a status offense under section 601; (2) rejected her requests
for non-wardship probation or deferred entry of judgment; and (3) conducted
proceedings in chambers outside the presence of her and her parents and
signed an ex parte search warrant. None of her contentions have merit. We
affirm.
1 Further statutory citations are to the Welfare and Institutions Code.
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BACKGROUND
The facts of D.M.’s offense are from the probation report. On May 4,
2019, 17-year-old D.M. was “home alone feeling ‘bored’ and wanted to go to a
friend’s house. She thought her father had left his car keys at home for her to
use but when she looked for them, she could not find them. She texted with
her father about getting the keys to the car. When she realized her father
was not leaving the funeral he was attending to bring her the keys, she
became frustrated and texted stating she was going to ‘hotwire’ his ‘fucking
truck.’ The minor followed through with attempting to hotwire her father’s
truck, causing damage.” D.M.’s father estimated the damage to the ignition
would cost approximately $1,000 to repair.
On May 16, 2019, a detective updated D.M.’s mother on a case in which
D.M. was identified as a victim of human trafficking. D.M.’s mother said her
daughter had been missing for several days. The detective discovered that
D.M. had posted an ad on a Web site called “megapersonals.com” and, posing
as a prospective john, arranged to meet her for a “date” at a hotel in San
Francisco. D.M. was detained at the hotel that evening and booked into the
Napa County Juvenile Justice Center. She smelled of marijuana and
admitted using marijuana daily.
D.M.’s mother told the probation officer that D.M. had been trafficking
herself since November 2018. “As a result, the minor has failed to come
home.” The mother tried to get D.M. into counseling, but D.M. left after 10
minutes “because it made her feel bad about herself.” Both parents wanted
D.M. detained for her own safety “as she is beyond their control.” D.M.’s
mother expressed concern that D.M. was a flight risk. “[S]he will take her
money and fake identification and leave.” The mother was “desperate for
intervention and services” for her daughter.
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During her initial days of detention D.M. argued with staff and was
disruptive “as she does not believe she belongs in Juvenile Hall.”
The Napa County District Attorney filed a petition under section 602
alleging one count of vandalism over $400 and one count of attempted auto
theft, both felonies. At the May 21, 2019 detention hearing, D.M. asked for
release on home detention subject to GPS monitoring. The prosecutor
opposed release. “We think that’s in the best interests of the minor and the
public. In this case she was in the process of stealing her parents’ car to go to
San Francisco. She was involved in human trafficking. The parents are
present and they indicate they cannot control her. They have concerns over
her safety. . . . She is unruly and while in the hall she’s having problems.”
D.M.’s father confirmed the prosecutor’s statements. “The human
traffic side of it, she’s going to end up dead, raped, beat up. And we can’t
control her. We think she needs a major, major time out. We love her with
all our heart. She has all the support of us, her aunts, uncles, and her
brother. . . . [¶] At this point we can’t control her. We love her. I would love
for her to be at home with us today, but I don’t want her to die.”
The court found D.M.’s placement in her parents’ home would be
contrary to her welfare and that reasonable efforts were made to eliminate
the need for removal. A readiness conference and contested jurisdictional
hearing were set for June 5 and 6, and, “to check in,” an uncontested hearing
was set for May 29.
On May 29, 2019, D.M., her parents, the probation officer and all
counsel were in court for the uncontested hearing. The court, counsel and the
probation officer had an unreported chambers discussion. When they
returned, the court granted the prosecutor’s request to “advise the parents
what we talked about” and a discussion was held off the record without
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objection. The court then informed the prosecutor and defense counsel “that I
signed a search warrant related to this matter yesterday just so when you see
my name on it with respect to a telephone.” Defense counsel responded,
“Okay.” The court said, “Okay. No reason why I can’t be fair and impartial.”
D.M.’s attorney advised the court that the parties had reached an
agreement for D.M. to admit the vandalism charge (count 1) in exchange for
dismissal of auto theft (count 2). Following advisements, D.M. admitted to
felony vandalism. The court dismissed count 2, found that D.M. came within
section 602, and set a disposition hearing for June 12.
On June 10, 2019, the probation officer filed a disposition and a section
790 report.2 D.M. had been involved in human trafficking for approximately
one year. She said she sought opportunities to traffic herself because she was
attracted to the “fast money” and did not view what she was doing as
prostitution. She was upset when she was booked into juvenile hall because
she felt her independence was being taken away “as she has been successful
up to this point in living two separate lives.” She would anger quickly when
she did not get her way, “and will demonstrate that anger by yelling
profanities and refusing to cooperate with whatever is being asked of her.”
However, her attitude and participation in programming and groups had
improved.
The probation department reported that D.M. was at a high risk of
reoffense and ineligible for probation under section 654.2 or 725,
subdivision (a), because her offense was a felony. Her high-risk behavior
made her unsuitable for deferred entry of judgment under section 790
because she could not be detained for probation violations on the program,
2 The report is titled “WIC 654.2 Evaluation Report,” but the probation
officer explained at the hearing that “it was a dispo and 790 report.”
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“which is necessary in supporting her physical safety should she continue to
be placed, or place herself, in these dangerous situations.” Probation
recommended formal supervision with GPS monitoring, electronic search and
other conditions.
The disposition hearing was held on June 12, 2019. D.M. asked the
court to reduce the vandalism offense from a felony to a misdemeanor and
grant deferred entry of judgment. The prosecutor argued there were no
mitigating factors to support the request to reduce the offense and suggested
D.M. could earn the reduction through good behavior in the coming months.
The probation officer advised against deferred entry of judgment because only
with formal probation could the court impose the intensive probation
supervision D.M. required.
The court summarized a “brief conversation in chambers prior to this
hearing at which [the probation officer] disclosed to the Court and counsel
that there was an incident at Juvenile Hall” that involved D.M. passing a
note that led to a fight. The incident did not change the probation
department’s recommendation.
The court denied D.M.’s request to reduce the felony to a misdemeanor,
agreed to revisit the issue in six months, and denied the request for non-
wardship probation. “Based upon not just the allegations of the damage to
the car but the other circumstances that are set forth in the report . . . , I
think it’s very important for Probation to have all the tools at its disposal to
help [D.M.]. The Court is concerned with 725 Diversion, if it were to reduce
the felony to a misdemeanor now, because I don’t believe that’s a long enough
time. As you know, the purpose of the juvenile program is to keep minors
safe and to rehabilitate them, and I think we really need the time to do that
again, and all the tools.” The court also denied the request for delayed entry
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of judgment. D.M. was declared a ward of the court and placed on formal
juvenile probation.
This appeal is timely.3
DISCUSSION
I. D.M. forfeited her claim the case should have proceeded under
section 601.
D.M. contends the prosecutor engaged in misconduct by filing a petition
under section 602 rather than section 601, and that the juvenile court erred
by permitting the matter to proceed as a delinquency case under section 602.
These contentions are unavailing.
In re W.B. (2012) 55 Cal.4th 30, 42, explains the relevant difference
between delinquency petitions based upon section 601 and section 602: “In
California, the juvenile court’s jurisdiction over a minor can be invoked . . . by
a delinquency petition, which accuses the child of either disobedience or
truancy (§ 601) or the violation of a law that defines a crime (§ 602). . . .
[¶] Allegations that a minor refuses to obey orders of a parent or guardian, is
beyond parental control, violates age-based curfew ordinances, or is truant or
disobedient in school, must be brought in a petition filed under section 601.
[Citation.] These allegations . . . are commonly called ‘status offenses’
because they address conduct that is not criminal but is nevertheless subject
to punishment because of the offender’s status as a person under age 18.
[Citations.] Strictly speaking, ‘[a]n adjudication under section 601 neither
requires nor implies a finding of “delinquency.” ’ ”
3 On April 10, 2020, this court denied D.M.’s motion to consolidate this
appeal with a second appeal arising from the same proceedings, No. A159362.
Her accompanying request that the court addressing the second appeal take
judicial notice of the entire record in the first appeal will be decided in case
No. A159362.
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On the other hand, “[s]ection 602 confers broad juvenile court
jurisdiction over allegations that the minor’s conduct ‘violates any law.’ ” It
extends to offenses that, like purchasing tobacco products or underage
drinking, can only be committed by a minor, as well as acts that would be
criminal if committed by an adult. (In re W.B., supra, 55 Cal.4th at pp. 42–
43.) “However, in juvenile court, a minor is not designated as a ‘defendant,’
nor accused of a ‘crime,’ even though the allegation would describe a crime in
adult court. [Citation.] The determination whether a minor has violated a
criminal provision is made solely in order to establish that the juvenile court
has jurisdiction. Once this determination is made, the juvenile court can
declare the minor a ward of the court and order a disposition that will
address the minor’s behavior.” (Id. at p. 43.)
D.M. argues, in essence, that “the juvenile court sat passively by” while
the prosecutor improperly colluded with her parents to charge her under
section 602 with two “pretextual” felonies “in order to justify incarceration
intended as a substitute for effective parental control.” The claim is not
properly before us because D.M. failed to raise it before the juvenile court.
“ ‘It is axiomatic that arguments not raised in the trial court are forfeited on
appeal.’ ” (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670.)
Contrary to D.M.’s suggestion, her request for deferred entry of judgment
during the disposition phase of the proceedings is no substitute for a timely
objection or demurrer addressed to the decision to charge her under section
602.
In any event, the claim is meritless. The section 602 petition was
authorized because D.M. was charged with two felonies, one of which she
admitted. Nothing in our review of the record substantiates her claim that
the prosecutor, with or without her parents’ collusion, filed the felony charges
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as a pretext to punish her for trafficking herself in order to end-run around
the Legislature’s exclusion of juveniles from our statutes criminalizing
prostitution. Nor does the record back up her claim that the prosecutor
“used” her parents or misled them to believe he was their personal attorney.
Finally, D.M.’s assertion of ineffective assistance of counsel in this regard
fails with her claim of error. She can show neither that competent counsel
would have objected to proceeding under section 602 nor that such an
objection would have prevailed. (See Strickland v. Washington (1984) 466
U.S. 668, 687–688.)
II. Denial of Requests for Non-wardship Probation and Deferred
Entry of Judgment
D.M. next contends the juvenile court erred when it denied her
requests to impose non-wardship probation under section 725 or deferred
entry of judgment under section 790. These contentions also lack merit.
With specified exceptions, section 725, subdivision (a) allows the court
to place a truant or delinquent minor on informal probation for up to six
months without adjudging him or her a ward of the court.4 Section 654.3 lists
the circumstances of ineligibility for non-wardship supervision, including
“[t]he minor is alleged to have committed a felony offense when the minor
was at least 14 years of age.” (§ 654.3, subd. (h); see § 725, subd. (a).) D.M.
acknowledged that she committed a felony, and her request to reduce it to a
4 It provides: “If the court has found that the minor is a person
described by Section 601 or 602, by reason of the commission of an offense
other than any of the offenses set forth in Section 654.3, it may, without
adjudging the minor a ward of the court, place the minor on probation, under
the supervision of the probation officer, for a period not to exceed six months.
The minor’s probation shall include the conditions required in Section 729.2
except in any case in which the court makes a finding and states on the
record its reasons that any of those conditions would be inappropriate.”
(§ 725, subd. (a).)
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misdemeanor was denied, a ruling D.M. does not challenge on appeal. She
was therefore ineligible for non-wardship probation under section 725,
subdivision (a).
D.M.’s assertion the court erred when it denied her request for deferred
entry of judgment is also meritless. “The DEJ provisions of section 790
et seq. . . . provide that in lieu of jurisdictional and dispositional hearings, a
minor may admit the allegations contained in a section 602 petition and
waive time for the pronouncement of judgment. Entry of judgment is
deferred. After the successful completion of a term of probation, on the
motion of the prosecution and with a positive recommendation from the
probation department, the court is required to dismiss the charges. The
arrest upon which judgment was deferred is deemed never to have occurred,
and any records of the juvenile court proceeding are sealed.” (Martha C. v.
Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C.).)
Here, it is undisputed that D.M. was eligible under the statutory
requirements for deferred entry of judgment. But eligibility does not
determine suitability. Once eligibility is established, the court must make an
independent determination of the minor’s suitability after consideration of
the factors specified in section 791, subdivision (b), “with the exercise of
discretion based upon the standard of whether the minor will derive benefit
from ‘education, treatment, and rehabilitation’ rather than a more restrictive
commitment.” (In re Sergio R. (2003) 106 Cal.App.4th 597, 607; Martha C.,
supra, 108 Cal.App.4th at p. 562.) Suitability factors include the minor’s age,
maturity, educational background, family relationships, motivation, any
treatment history, and any other factors relevant to the determination of
whether the minor is a person who would be benefited by education,
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treatment, or rehabilitation. (§ 791, subd. (b); In re Sergio R., at p. 607.) We
review the denial of deferred entry of judgment for abuse of discretion. (Ibid.)
There was no abuse of discretion here. D.M. was a victim of human
trafficking “and appears to be deeply imbedded in that lifestyle.” Probation
reported she was “entrenched in trafficking behavior and substance use
without concern for her own safety placing her at significant risk.” She was
attracted to the “fast money,” which she used for drugs and rent in San
Francisco; felt she had control over her situation; and did not plan to stop her
dangerous behaviors.
Further, “the underlying issues surrounding [D.M.’s] admitted anger,
defiance and substance use is [sic] alarming. Information revealed within
this investigation indicate [sic] the minor has demonstrated an increase in
defiant and disrespectful behavior at home. Her parents’ attempts to redirect
and establish boundaries have had little effect in motivating behavior change
for the minor. Despite her parents’ intervention, the minor has increased her
use of marijuana and the unsafe behavior of leaving her parents’ home
without their permission for days at a time. In addition, her defiance and
runaway behavior led her mother to conclude she had another place to live
and ultimately found out the minor was renting and staying at an apartment
in San Francisco when she left the family home.”
D.M.’s behaviors, attitude and drug use placed her at high risk of
reoffense, but on deferred entry of judgment the probation department would
be powerless to detain her if she violated probation and “continue[d] to be
placed, or place herself, in those dangerous situations.” The probation officer
therefore advised against deferred entry of judgment.
In sum, all indications were that without the structure afforded by
probation following entry of judgment, it was highly likely that D.M. would
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continue to defy her parents and return to the trafficking and drug use that
threatened to derail any chance she had for rehabilitation. It was well within
the court’s discretion on this record to find she was unamenable to education,
treatment, or rehabilitation without the full coercive authority available
under formal wardship. (See Martha C., supra, 108 Cal.App.4th at p. 562.)
To the extent D.M. asserts the court failed to appropriately consider the
suitability factors or make express findings on them at the hearing (see § 791,
subd. (b)), she is mistaken. The suitability factors were addressed in the
probation report; nothing in the record suggests the court disregarded them;
and neither the statute nor case law requires the juvenile court to make
express findings on a minor’s unsuitability for deferred entry of judgment.
III. Chambers Conferences and Ex Parte Warrant Application
Finally, D.M. argues reversal is required because there was no court
reporter present for the two chambers conferences or the ex parte search
warrant application the court disclosed to counsel and, although D.M.’s
attorney was present at the chambers conferences, she and her parents were
not. In her view, as a matter of constitutional law “[e]ach record of a juvenile
delinquency case should . . . be complete, gavel to gavel.”
These claims are also forfeited by D.M.’s failure to assert them before
the juvenile court. “A constitutional right, or a right of any other sort, may be
forfeited in criminal as well as civil cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine it.”
(People v. Trujillo (2015) 60 Cal.4th 850, 856.) D.M. failed to object to the
juvenile court procedures she now asserts violated her rights, and the record
reveals no compelling reason for this court to address them despite the
resulting forfeiture.
DISPOSITION
The judgment is affirmed.
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_________________________
Siggins, P. J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Jackson, J.
A157612/People v. D.M.
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