Opinion
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190 Cal.App.4th 1469a __ Cal.Rptr.3d __ YVETTE LUJANO, a Minor, etc., Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA et al., Defendants and Respondents. B218145 California Court of Appeal, Second District, Sixth Division December 30, 2010Super. Ct. Santa Barbara County No. 1244546
THE COURT:It is ordered that the opinion filed herein on November 3, 2010 (190 Cal.App.4th 801;___Cal.Rptr.3d___), and modified on December 3, 2010, be modified as follows and the petition for rehearing is DENIED:
1. On page 3, at the end of the first full paragraph [190 Cal.App.4th 805, advance report, 3d par.] add as footnote 1 the following footnote, which will require renumbering of all subsequent
1 All statutory references are to the Welfare and Institutions Code unless otherwise stated.
2. On page 6, first full paragraph [190 Cal.App.4th 807, advance report, 2d par., lines 2-3 and 5-6, through 190 Cal.App.4th 808, advance report, 1st par., lines 1 and 3], delete all references to the phrase Welfare and Institutions Code.
3. On page 7, after the first full paragraph [190 Cal.App.4th 808, advance report, 2d full par.], insert:
In her petition for rehearing, Lujano asserts that under our analysis a juvenile who accepts informal probation under section 654 "could never prevail in a lawsuit claiming that excessive force was used to effectuate a lawful arrest." This conclusion posits three possible outcomes when management under section 654 is considered: (1) Proceed with section 654 management, (2) file a section 602 petition, or (3) close the investigation without further action. There is, however, a fourth option: The minor and the minor's "parent or guardian" may refuse to accept informal probation. (§ 654.) The
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probation officer would then determine whether to seek the filing of a petition or close the file. (§ 653.5.)
Lujano did not allege that any exception to the Heck rule applied and she did not request a Heck hearing to prove that the alleged excessive force was independent of the crime for which she was charged. (Heck v. Humphrey, supra, 512 U.S. 477; Yount , supra, 43 Cal.4th at pp. 895-896.)
Lujano accepted section 654 management. In doing so, she consented to participate in counseling or education programs as well as, inter alia, temporary placement in shelter care facilities should that be merited. (§ 654, subd. (a).) Moreover, successful completion of the specific program or programs delineated under section 654 would result in a bar to further prosecution for the offense. (§ 654.2, subd. (a); Cal. Rules of Court, rule 5.514(e)(2).) Having elected to proceed under section 654, having submitted to the power of the State and its programs for counseling and education, and having obtained a shield to further prosecution upon successful completion of the program, Lujano may not now complain that she is barred from seeking civil redress under section 1983. Her option was to deny her culpability and put the State to its proof. (Yount , supra, 43 Cal.4th at p. 897.) What she may not do is take advantage of the leniency of the State and thereafter pursue a civil claim for damages.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.