In re Omar C.
Filed 9/3/13 In re Omar C. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re OMAR C., a Person Coming
Under the Juvenile Court Law.
B243843
THE PEOPLE et al.,
Plaintiffs and Respondents,
v.
OMAR C.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. JJ19612)
APPEAL from
orders of the Superior Court
of
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
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.
title="">[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 241.1
name="_ftnref2" title="">[2]
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.
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 790
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.
title="">[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
worker, Mr. Howard, appeared on behalf of DCFS.
The deputy district attorney handling the matter was Mr. Roxas. Omar, who was present, was represented by
deputy public defender Daniel Tiktin.
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—
“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.â€
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.â€
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.â€
Judge
Groman ordered Omar to remain in juvenile hall pending resolution of the
rehearing issue. County Counsel filed an
application for a section 252
name="_ftnref6" title="">[6]
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
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.â€
title="">[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 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.â€
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 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. (
“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);
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.â€
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 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);
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.â€
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, 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
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
Referee Klaif’s order was final and Judge Groman’s order of rehearing was
beyond her power to make.
DCFS Was Not a Party to the Delinquency Action
DCFS
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.
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.†(
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
for example, the social services agency served an 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. (
1, 7; Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure,
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
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.â€
DCFS is wrong. It is the later
petition (i.e., the petition that creates the potential for dual jurisdiction)
that triggers section 241.1. (
1008, 1013.) In this case, the section
602 petitions triggered section 241.1, 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
offenseâ€].) 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.
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
bargain. (See V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, 1467 (
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.â€
(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
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.)
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.
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.
further section references are to the Welfare and Institutions Code unless
otherwise specified.
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.â€
