Filed 12/5/18 In re Tabitha B. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Tabitha B. appeals from an order denying her petition to vacate and seal two juvenile delinquency adjudications (Pen. Code, § 236.14).[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A May 2016 wardship petition alleged Tabitha, then 15 years old, committed misdemeanor battery on a peace officer. After considering a joint assessment report (Welf. & Inst. Code, § 241.1), the trial court determined Tabitha “would be ‘best served’ under the court’s delinquency jurisdiction[.]” It found Tabitha committed misdemeanor battery on a peace officer, adjudged her a ward of the court, and placed her on probation. Tabitha appealed; we affirmed. (In re Tabitha B. (June 12, 2017, A149826) [nonpub. opn.].) A second wardship petition alleged Tabitha committed vehicle theft and received stolen property. Tabitha admitted receiving stolen property and the court reinstated probation.

Third Wardship Petition and Probation Violation

In June 2017, the prosecution filed a third wardship petition alleging Tabitha committed vehicle theft. Tabitha left her father’s house—where she had been “doing well”—and forced her way into her aunt’s home. Tabitha “took the keys from the counter, and stole the truck. . . . She drove the truck to Fairfield and parked it around the corner from her mother’s residence. When she returned to the truck the next morning, it was gone. She assumed it was towed, and threw the keys into a lake.” Tabitha told law enforcement officers she was “stealing several cars, trying to get arrested, so she could be booked into juvenile hall.” In July, Tabitha admitted misdemeanor vehicle theft (vehicle theft adjudication). The court continued wardship and placed Tabitha on probation, at a group home for sex trafficking victims.

In October 2017, the probation department filed a notice alleging Tabitha violated the court’s placement order by going “AWOL” from the group home. Later that month, Tabitha was arrested while working as a prostitute. She admitted the probation violation—leaving the group home without permission. Defense counsel requested a joint assessment report.

Petition to Vacate and Opposition

Tabitha filed a petition to vacate and seal the vehicle theft adjudication and the probation violation (collectively, offenses or crimes). Brought pursuant to section 236.14, the petition stated (1) Tabitha was a victim of human trafficking; (2) the offenses were the “result of the trafficking”; (3) Tabitha had “expressed a desire to get away from this exploitation and live the life of a normal teenager”; and (4) granting relief was in Tabitha’s best interest.

The petition alleged “Tabitha is a Commercially Sexually Exploited Child (CSEC) who has suffered from trauma, abuse and neglect for her entire life.” According to the petition, the “trafficking started as early as 2012,” and was “still occurring until she was taken into custody on October 27, 2017. Tabitha’s offense was a result of the exploitation that she has been suffering, as this exploitation has been intertwined with her fractured parental relationship.” The petition also claimed the offenses were “a direct result of familial dysfunction and her history as a CSEC victim.” Finally, the petition stated Tabitha wanted “to leave the life of sexual exploitation.” It referenced police, probation, and joint assessment reports, but did not attach them, or request judicial notice of them.

In opposition, the prosecution argued there was no “direct link” between the offenses and Tabitha’s status as a human trafficking victim. According to the prosecution, there was no evidence Tabitha “took the vehicle . . . as a result of human trafficking. [Tabitha] had been with her mother and was supposed to go to her father’s home when she took the truck and fled. There is no indication that [Tabitha] was under duress or the instruction of a pimp. Nor is there evidence that the crime was related

to prostitution in any way.” The prosecution made the same argument regarding the probation violation, noting Tabitha had “a history of leaving group homes and there

is no evidence to show she left the group homes as a direct result of human trafficking. . . . Without a nexus between the crime and the victimization, [section] 236.14 does not apply.”

In addition, the prosecution argued Tabitha had not engaged in a good faith effort to distance herself from human trafficking because she “deliberately left a place of safety and put herself at risk of further victimization. . . . [She] has had multiple opportunities . . . to escape from human trafficking but has not yet made a good faith effort to leave the trafficking.” Finally, the prosecution claimed it was not in Tabitha’s best interest to vacate the delinquency because Tabitha needed “intervention and supervision to help her change her life.”

Joint Assessment Report

A December 2017 joint assessment report recommended dismissing the delinquency and returning Tabitha to dependency jurisdiction. The report opined Tabitha’s “traumatic history related to CSEC . . . victimization seems to outweigh her minimal delinquent history. . . . [Tabitha] is a sex trafficking victim . . . with a survivor’s stance on her life circumstances. . . . [Tabitha] admits that she needs therapy and she is willing to participate in all services that will assist her.” According to the report, Tabitha’s attorney had requested the case “be handled” in dependency court because Tabitha’s “delinquency is a product of her engagement in CSEC related activities.”

The report recounted Tabitha’s interview with a social worker, where Tabitha said she left the group home in October 2017 because she did not “want to be in a ‘facility’ with charts and chores.” Tabitha’s mother intended to take her to the probation office, but Tabitha “left before that could happen,” and went to her boyfriend’s residence. While staying there, Tabitha engaged in prostitution and was arrested. Tabitha identified the man “making her engage in sexual activities for money” and “cooperated with the police.”

Hearing and Order

The court considered Tabitha’s petition to vacate and the joint assessment report at a combined hearing. Counsel for Tabitha urged the court to grant relief pursuant to section 236.14. The prosecutor opposed the request, arguing there was no nexus between Tabitha’s crimes and her status as a human trafficking victim. According to the prosecutor, “these are crimes she committed on her own . . . when she had options of safety. [¶] She was at a family member’s house when she took the car. She was at a group home when she committed the [probation violation]. So I don’t see how you can say these were committed because of her victimizations.” The prosecutor also claimed Tabitha had not attempted to distance herself from the trafficking. Defense counsel disagreed, noting Tabitha cooperated with law enforcement when she was arrested and provided information leading to the arrest of the man who “was exploiting her.”

Defense counsel also opined the “matter should be handled” in dependency court, irrespective of the petition to vacate. The prosecutor disagreed, arguing delinquency jurisdiction was “more appropriate” because Tabitha could receive services under Welfare and Institutions Code section 600, and “[i]f she flees again, which . . . is likely . . . we have the extra tool of arresting her and maintaining her in custody. That would be important to keep her . . . off the street. [¶] In this case, she fled and went back on the street and it was a police officer who found her and arrested her and took her away from the ongoing CSEC.”

The court adopted the recommendation in the joint assessment report, dismissed the delinquency, and determined the “matter will become a [section] 300.” The court denied the petition to vacate without prejudice. (See § 236.14, subd. (s).) It determined Tabitha would have the opportunity to repetition the dependency court “should there be additional facts.”

DISCUSSION

I.

Statutory Framework and Standard of Review

As relevant here, section 236.14 allows a person convicted of a nonviolent offense committed while a victim of human trafficking to petition the court to vacate the conviction. (Sen. Bill No. 823, Stats. 2016, ch. 650, § 1, eff. Jan. 1, 2017.) The petition must be “submitted under penalty of perjury” and must describe the “grounds and evidence that the petitioner was a victim of human trafficking and the . . . conviction

of a nonviolent offense was the direct result of being a victim of human trafficking.” (§ 236.14, subd. (b).) The petitioner has the burden to “establish, by clear and convincing evidence,” the “conviction was the direct result of being a victim of human trafficking.” (§ 236.14, subd. (a); see also subds. (g), (j).)

The court may conduct an evidentiary hearing on the petition, where it may consider “[t]estimony by the petitioner” and “[e]vidence and supporting documentation.” (§ 236.14, subd. (f)(1), (2).) “[O]fficial documentation of a petitioner’s status as a victim of human trafficking may be introduced as evidence . . . the offense was the result of . . . her status as a victim of human trafficking. . . . ‘[O]fficial documentation’ means any documentation issued by a federal, state, or local agency that tends to show the petitioner’s status as a victim of human trafficking.” (§ 236.14, subd. (m).)

“After considering the totality of the evidence,” the court may vacate the conviction if it finds (1) “the petitioner was a victim of human trafficking at the time the nonviolent crime was committed”; (2) “[t]he commission of the crime was a direct result of being a victim of human trafficking”; (3) “[t]he victim is engaged in a good faith effort to distance . . . herself from the human trafficking scheme”; and (4) “[i]t is in the best interest of the petitioner and in the interests of justice.” (§ 236.14, subd. (g)(1)-(4).) “If the court denies the application because the evidence is insufficient to establish grounds for vacatur, the denial may be without prejudice.” (§ 236.14, subd. (s).)

We review the denial of Tabitha’s petition to vacate for abuse of discretion. (§ 236.14, subd. (g); People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 [statutory motions to vacate are reviewed for abuse of discretion].)

II.

No Abuse of Discretion in Denying the Petition to Vacate

Tabitha claims the court erred by denying her petition to vacate the offenses.[2] To obtain relief pursuant to section 236.14, the petitioner must, as relevant here, provide clear and convincing evidence the “commission of the crime[s] was a direct result of being a victim of human trafficking.” (§ 236.14, subds. (a), (g)(2).) “ ‘ “Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” ’ ” (In re Z.K. (2011) 201 Cal.App.4th 51, 65.) When evaluating the trial court’s ruling for abuse of discretion, we review its findings of fact for substantial evidence and its conclusions of law de novo. The trial court’s “application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712.) On appeal, we presume “a judgment or order of the trial court is correct, ‘ “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ ” (People v. Giordano (2007) 42 Cal.4th 644, 666.)

Here, the court impliedly concluded the evidence was insufficient to establish the offenses were the “direct result of being a victim of human trafficking.” Tabitha has not demonstrated that conclusion was erroneous. She has not defined “direct result” as that term is used in section 236.14, nor has she articulated why the court abused its discretion in denying her petition. Tabitha’s disagreement with the court’s conclusion does not establish a lack of evidence supporting the court’s implied factual findings or demonstrate the court’s ruling was arbitrary or capricious. Tabitha’s petition was not made under penalty of perjury, as the statute requires. (See § 236.14, subd. (b).) Trial counsel’s statement in the notice of the petition that the petition was “presented upon information and belief . . . under penalty of perjury” does not satisfy this standard. The petition was unaccompanied by “[t]estimony by [Tabitha]” or other [e]vidence and supporting documentation.” (§ 236.14, subd. (f)(1), (2).) Trial counsel offered no evidence at the hearing on the petition.

The court was well within its discretion to deny Tabitha’s petition based on her failure to provide clear and convincing evidence the offenses were the direct result of her status as a human trafficking victim. (§ 236.14, subd. (g)(2).) Having reached this result, we need not determine whether Tabitha satisfied the other elements of the statute. (See, e.g., § 236.14, subds. (g), (j).)

DISPOSITION

The December 4, 2017 order denying the petition to vacate is affirmed.

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Jones, P. J.

We concur:

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Needham, J.

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Bruiniers, J.^*

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