Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV-34989
ELIA, Acting P. J.A.M. appeals from a judgment declaring him to be a ward of the court and placing him on probation following a contested jurisdiction hearing in a delinquency proceeding under Welfare and Institutions Code section 602. (See §§ 725, subd. (b), 800, subd. (a).) He argues that the juvenile court abused its discretion in denying a Deferred Entry of Judgment (DEJ), the evidence was insufficient to support the order compelling an AIDS blood test, and the probation condition prohibiting certain associations is vague and overbroad.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
We strike the AIDS testing order, modify the probation condition, and affirm.
A. Procedural History and Evidence
A juvenile wardship petition, filed against A.M. on October 16, 2008, alleged that, on or about and between March 1, 2008 and May 20, 2008, minor committed a violation of Penal Code section 288, subdivision (a) (lewd or lascivious act on child under age 14). The petition indicated that minor was "DEJ Eligible."
By citation and written notice, minor was ordered to appear on November 14, 2008 at a hearing at which the court would consider whether or not to grant DEJ. On November 14, 2008, the prosecuting attorney filed a "Determination of Eligibility" stating minor was eligible for DEJ.
A suitability report from the Supervising Probation Officer, dated November 14, 2008 but file stamped March 20, 2009, did not find that minor had "demonstrable motivation" and recommended that the court find him unsuitable for DEJ.
The matter was continued several times. On January 13, 2009, the deputy public defender representing minor told the court that "we're going to set it for trial today." He explained the purposes of previous continuance requests, both from the D.A.'s office and him, and stated that, at the present point, he thought it was "appropriate to set the case for trial." Later, the court asked the deputy public defender, "So this a contested jurisdiction. Mr. Dunne, you're keeping it; right?" He replied, "Yes."
The juvenile court set the matter on the January 26, 2009 readiness calendar. When the court asked if there was anything else, the deputy public defender answered, "No," but the court officer replied, "I'm sorry. I didn't catch that. So is he unsuitable for DEJ, because that happened—" The court replied, "Yes." Minor's counsel stated, "Well, the recommendation was that he's unsuitable." The court responded, "Yes. And I haven't made that finding, I think. So at this time, is that matter submitted?" The deputy public defender answered, "Submitted. We're setting it for trial." The court asked, "Submitted on DEJ suitability?" The deputy district attorney said, "Yes." The court announced, "Okay. Then the Court will find that [minor] is unsuitable for DEJ at this time."
The evidence at the contested jurisdiction hearing showed the following. On the date of the alleged incident, minor was playing at his home with his friend and neighbor O., who was 12 years old at the time of the hearing, and O's younger brother E., who was six years old at the time of the incident. After O. went home to get some water at his home and while minor and E. were waiting for him to return, minor and E. played hide and seek. At some point, minor touched E.'s penis with his hand, and then, at another point, minor indicated it was E.'s turn, and E. touched minor's penis with his hand. Minor had told E. that what they had done was a secret and not to tell anyone. After he returned home, E. told his older sister that he had a secret and she then told their mother that E. had a secret. After being pressed in private to share his secret by his mother, E. told his mother what had happened.
On May 20, 2008, E.'s mother spoke to a police officer for the first time. This interview occurred sometime after a homework center conference during which E.'s mother asked that E. not be allowed to play with older children and disclosed the incident and she was told by the person in charge that he was "very sorry" but "he had to file a report."
When interviewed by San Jose Police Officer Saul Duran on May 28, 2008, E. said that minor had scratched his penis with his hand and the contact had been skin to skin.
The court found the petition's allegation true. At the disposition hearing, the court declared minor a ward of the court and permitted him to return home on probation under the supervision of a probation officer. The court ordered minor to submit to an AIDS blood test pursuant to Penal Code section 1202.1. The court also ordered minor to "not associate with any known probationer, parolee, or gang member."
B. Denial of DEJ
On appeal, minor maintains that the court should have granted DEJ because he would have benefitted from the education, treatment and rehabilitation provided by the DEJ program. He asserts that the denial of DEJ should be reversed because the record is void as to the court's reasons.
Section 790, subdivision (a), establishes the statutory prerequisites to be eligible for DEJ. (See Cal. Rules of Court, rule 5.800(a).) Once the prosecuting attorney gives notice of eligibility for DEJ, a juvenile court may grant DEJ "[u]pon a finding that the minor is also suitable for deferred entry of judgment and would benefit from education, treatment, and rehabilitation efforts...." (§ 790, subd. (b); see rule 5.800(b).) Under the DEJ procedure, "the court may grant a deferred entry of judgment with respect to any offense charged in the petition, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment...." (§ 791, subd. (a)(3); see rule 5.800(d) and (f).)
All further references to rules are to the California Rules of Court.
Section 791, subdivision (b), states: "If the minor consents and waives his or her right to a speedy jurisdictional hearing, the court may refer the case to the probation department or the court may summarily grant deferred entry of judgment if the minor admits the charges in the petition and waives time for the pronouncement of judgment. When directed by the court, the probation department shall make an investigation and take into consideration the defendant's age, maturity, educational background, family relationships, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors in determining whether the minor is a person who would be benefited by education, treatment, or rehabilitation. The probation department shall also determine which programs would accept the minor. The probation department shall report its findings and recommendations to the court. The court shall make the final determination regarding education, treatment, and rehabilitation of the minor." The court is required to "make findings on the record that a minor is appropriate for deferred entry of judgment pursuant to this article in any case where deferred entry of judgment is granted." (§ 790, subd. (b), italics added.)
With respect to the conduct of the hearing, rule 5.800(f) provides: "At the hearing, the court must consider the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by the child or other interested parties."
Neither the DEJ statute nor the implementing court rule requires a statement of reasons to accompany a denial of DEJ. Therefore, "we apply the general rule 'that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]' [Citations.] This rule derives in part from the presumption of Evidence Code section 664 'that official duty has been regularly performed.' Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order. [Citation.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115; see In re Julian R. (2009) 47 Cal.4th 487, 498; Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [An order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown].)
Moreover, while a juvenile court has discretion to grant deferred entry of judgment to an eligible minor, denial of DEJ is not an abuse of discretion merely because a minor satisfied the eligibility requirements. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607.) It appears from the transcript of the January 13, 2009 hearing that minor's counsel was aware that there had been a recommendation against finding minor suitable for DEJ. The Probation Department's Suitability Report, which apparently was belatedly filed, recommended that minor be found unsuitable for DEJ. It stated that minor had not admitted touching the victim's penis or the petition's allegations. The report indicated that minor "denie[d] touching the victim's penis in a sexually abusive way" and claimed that the touching had occurred accidentally during a game of hide and seek. It indicated that minor's motivation could not be determined at that time; it did not find that minor met the criteria of demonstrable motivation. Even putting aside the report, minor does not point to any materials received by the juvenile court demonstrating that minor was a suitable candidate for DEJ. No error has been affirmatively shown.
C. AIDS Testing
Penal Code section 1202.1, subdivision (a), requires a court to order an individual adjudged to be a person described by section 602 on the ground that the individual had committed any of the specified sexual offenses to submit to an AIDS test. The list of specified offenses includes lewd or lascivious conduct with a child in violation of Penal Code section 288 if "the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (Pen. Code, § 1202.1, subd. (e)(6)(A)(iii) , italics added.)
"Probable cause is an objective legal standard-in this case, whether the facts known would lead a person of ordinary care and prudence to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim. [Citations.]" (People v. Butler (2003) 31 Cal.4th 1119, 1127.) The court is statutorily required to "note its [probable cause] finding on the court docket and minute order if one is prepared." (Pen. Code, § 1202.1, subd. (e)(6)(B).) But "the failure to make an express finding of probable cause and to note that finding in the docket is not subject to review absent a timely objection." (People v. Stowell, supra, 31 Cal.4th at p. 1113.)
An order compelling an AIDS test pursuant to section 1202.1 may be challenged on appeal for insufficiency of the evidence even absent an objection, however, because involuntary testing is "strictly limited by statute" and conditioned "upon a finding of probable cause" and "[w]ithout evidentiary support the order is invalid." (People v. Butler, supra, 31 Cal.4th at p. 1123.) "Under the substantial evidence rule, a reviewing court will defer to a trial court's factual findings to the extent they are supported in the record, but must exercise its independent judgment in applying the particular legal standard to the facts as found. [Citations.]" (Id. at p. 1127.) "[I]f the trial court orders testing without articulating its reasons on the record, the appellate court will presume an implied finding of probable cause. [Citation.]" (Ibid.) "[T]he appellate court can sustain the order only if it finds evidentiary support, which it can do simply from examining the record. Moreover, even if the prosecution could have established probable cause, in the absence of sufficient evidence in the record, the order is fatally compromised. [Citation.]" (Ibid.)
In this case, there was only hand to penis contact. Nevertheless, the People point to evidence that minor "scratched" E.'s penis and argue that, "[b]y scratching [E.'s] penis, [minor] could have caused a break in the skin through which [minor's] bodily fluid (either blood or pre-ejaculatory fluid) could have entered [E.'s] blood system." The evidence merely showed external touching. There was no evidence that any scratching broke the skin, or that minor's blood, semen, or other bodily fluid capable of transmitting HIV was involved in any touching, or that there was any open sore or cut on either boy's hand or penis. Under these circumstances, there is no reasonable basis for believing any bodily fluids had been transferred from minor to E. The AIDS testing order must be stricken.
D. Probation Condition Regarding Association
As a condition of probation, the court ordered minor to "not associate with any known probationer, parolee, or gang member." Citing In re Sheena K. (2007) 40 Cal.4th 875, minor now argues that the condition is unconstitutionally vague and overbroad because the condition does not make clear who knows the status of the specified persons. The People do not object to modification of the condition to state that minor "not associate with any person known by you to be on probation, on parole, or a member of a criminal street gang."
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.) We agree that the condition should be modified to make explicit that the minor must have personal knowledge of the status of the disapproved persons. (See In re H.C. (2009) 175 Cal.App.4th 1067, 1071-1072.)
Disposition
The order requiring minor to submit to an AIDS blood test pursuant to Penal Code section 1202.1 is stricken. The probation condition limiting association is modified as follows: "14. That minor not associate with any person whom he knows is on probation, on parole, or a member of a criminal street gang." As modified, the judgment is affirmed. Upon remand, the court shall amend the disposition and order of probation to reflect the above changes.
WE CONCUR: MIHARA, J. McADAMS, J.