Opinion
D057926 Super. Ct. No. J219741
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. ISAIAS A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed.
Isaias A. appeals from an order of the juvenile court denying his request to recall a previous bench warrant issued for his arrest. He contends that the superior court abused its discretion in initially issuing the bench warrant and again later in failing to recall it. We find Isaias's arguments unavailing and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2008, 16-year-old Isaias was arrested at the scene of an automobile accident he caused and charged with, inter alia, driving under the influence of alcohol, causing injury to more than one person and having a blood alcohol level of .15 percent or more. In an interview several months later, Isaias admitted that he had had a substantial number of beers on the evening in question, but lost count after the 12th one and could not remember anything after that, except that he "maybe hit[] one car . . . ." He also told the probation officer that he drank every two weeks and, when he did so, would drink "how ever much [his] body [could] take." An aunt told the probation officer that Isaias had two prior arrests for being intoxicated in public.
Isaias also told the probation officer that his parents lived in Vera Cruz, Mexico, and that since July 2007, he had resided with two of his uncles in El Cajon. He admitted that he had entered the United States illegally 12 times and the United States Immigration and Customs Enforcement (ICE) confirmed that it had apprehended him nine times between June 2007 and February 2008.
The probation officer prepared a social study recommending that the juvenile court adjudge Isaias to be a ward and place him on probation, subject to detention in juvenile hall until being released to ICE officials. The juvenile court made true findings on the allegations described above, adjudged Isaias to be a ward of the court and placed him on probation. Based on Isaias's statements to the probation officer, the court found that Isaias had been born in Vera Cruz, Mexico, and ordered him transferred to ICE custody. In August 2008, Isaias was deported to Mexico.
The following month, Isaias attempted to reenter the United States on three separate occasions; he was apprehended and granted voluntary removal each time. At some point thereafter, he succeeded in illegally reentering the United States again and, in December 2008, he was arrested for disorderly conduct and released to a family member in El Cajon.The probation officer thereafter was unable to reach Isaias's parents or uncles at the telephone numbers on file for them and, for reasons that are unclear from the record, the superior court clerk began to identify the parents' address as "unknown."
The probation report for the annual review hearing indicated that Isaias was released to his father in El Cajon; the record, however, shows that Isaias's father lives in Mexico and his uncles live in El Cajon.
At an annual review hearing in July 2009, the juvenile court continued Isaias's wardship and probation; in August 2009, the district attorney filed a supplemental petition charging Isaias with public intoxication arising out of the December 2008 incident and alleging that the offense constituted a violation of his probation. (See generally Welf. & Inst. Code, § 777.) At the hearing on the supplemental petition, Isaias did not appear and his counsel reported being unable to reach him. The juvenile court issued a bench warrant for Isaias's arrest based on its concerns about his safety and that of the public.
All further statutory references are to the Welfare and Institutions Code.
The court held a special hearing at the request of Isaias's counsel in October 2009. At that hearing, counsel reported that she could not get any information about her client's status from ICE, which "seemed to have kind of lost him," but indicated her belief that Isaias had been deported and argued that the court should recall the bench warrant on that basis. The court set a follow up hearing and ordered probation to determine whether Isaias had been taken into federal custody or formally deported.
The probation officer made repeated attempts, but was unable to get any information from ICE regarding Isaias's status. At the November 2009 follow up hearing, Isaias's counsel represented that, according to her client's immigration attorney, Isaias was in federal custody; she again argued that the court should recall the bench warrant and not take any further action relating to the public intoxication charge. The deputy district attorney urged the court to keep the bench warrant outstanding, in case Isaias returned to the United States at some point prior to the next annual review hearing in July 2010. The court agreed, indicating that if Isaias was still out of the country at that time, it would consider recalling the bench warrant.
At the July 2010 annual review hearing, defense counsel again requested that the bench warrant be recalled. The prosecutor objected to a termination of the warrant in light the serious nature of the offense for which Isaias was originally placed on probation. The court kept the bench warrant in place and Isaias appeals.
DISCUSSION
Section 663, subdivision (a), provides:
"Whenever a petition has been filed in the juvenile court alleging that a minor comes within the provisions of Section 601 or 602 . . . , or whenever any subsequent petition has been filed praying for a hearing in the matter of the minor, a warrant of arrest may be issued immediately for the minor upon a showing that any one of the conditions [is] satisfied:Isaias argues that (A) the court's issuance of the bench warrant under this statute was improper (1) because there was no evidence of good cause to support it, and (2) due to the fact that he was not served with the supplemental petition; and (B) even if the bench warrant properly issued at the outset, the court abused its discretion in failing to recall it.
"(1) It appears to the court that the conduct and behavior of the minor may endanger the health, person, welfare, or property of himself . . . or others . . . .
"(2) It appears to the court that either personal service upon the minor has been unsuccessful, or the whereabouts of the minor are unknown." (See also Cal. Rules of Court, rule 5.526(c)(1).)
As a preliminary matter, it is questionable that the scope of the current appeal allows a challenge to the propriety of the issuance of the bench warrant in the first instance. Isaias's notice of appeal purports to challenge the "issuance of bench warrant, July 30, 2010" but does not identify the September 2, 2009 order originally issuing the bench warrant, nor does the record contain any indication that Isaias filed a separate notice of appeal as to that order. The parties, however, have proceeded on the assumption that Isaias can raise such challenges and thus we will address them on their merits.
1. Insufficiency of the Evidence
Isaias argues that the juvenile court erred in issuing the bench warrant because there was insufficient evidence to support the court's finding that the warrant was necessary to protect his safety and that of the community. However, the evidence in the record establishes that Isaias had a serious and continuing substance abuse problem and that he repeatedly entered and left this country, without any apparent adult supervision. Contrary to Isaias's assertion, this evidence is sufficient to support the court's finding that the issuance of the warrant was justified by safety concerns.
Isaias also suggests that the juvenile court issued the bench warrant as a result of his failure to appear at the August or September 2009 hearings. This argument, however, is belied by the record, which establishes that the court issued the bench warrant in response to the filing of the supplemental petition rather than any failure to appear on his part. For this reason, Isaias's reliance on Ruben V. v. Superior Court (1997) 56 Cal.App.4th 723, 727-728 and Renita S. v. Superior Court (1994) 29 Cal.App.4th 553, 558-559, as authorities relevant to this case is misplaced.
2. Service Problems
Isaias also argues that he was not personally served with the August 2009 supplemental petition and that this invalidates the bench warrant. Although a supplemental petition must be personally served on a minor before a hearing is held on its allegations (§§ 777, subd. (b), 658, 660), the statutory scheme also expressly provides that such service is not required prior to the issuance of a bench warrant. (§§ 660, subd. (c) [authorizing the issuance of a bench warrant where the whereabouts of the minor are unknown], 663, subd. (a)(2) [same, where "personal service on the minor has been unsuccessful[] or the whereabouts of the minor are unknown"].) Thus, the applicable statutes authorize the issuance of a bench warrant even where service of the petition on the minor cannot be achieved. Accordingly, the court did not err in issuing the bench warrant in the first instance.
He also makes a vague argument that his parents and uncles were not served with certain notices in these proceedings, but does not specifically contend or cite any authority to establish that this somehow invalidated the bench warrant.
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3. Failure to Recall the Bench Warrant
Finally, Isaias argues that the court's failure to recall the bench warrant constituted an abuse of discretion because there was no evidence that he had been successfully evading service or that he continued to pose any danger to himself or others. As previously noted, however, section 663, subdivision (a)(2) does not require that a minor be evading service for a bench warrant to issue; rather, it is sufficient that the whereabouts of the minor are unknown.
Further, the record clearly establishes that Isaias's whereabouts were unknown on each occasion when his counsel sought to have the bench warrant recalled. In fact, the court continued the hearing on the request twice and, despite several attempts by the probation officer and Isaias's own counsel in the interim, no one was able to provide a definitive answer on where Isaias was.
In light of the inability of the parties to locate Isaias and the evidence of Isaias's history of substance abuse and lack of supervision, which remained undisputed, the juvenile court acted well within its discretion in concluding that the circumstances supported the continuing effectiveness of the bench warrant.
DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.