Opinion
A149426
12-07-2017
In re D.G. et al., Persons Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Appellant, v. D.G. et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. Nos. JW16-6033, JW16-6067, JW16-6184)
The People appeal from orders dismissing petitions alleging that three minors came within the meaning of Welfare and Institutions Code section 602, subdivision (a). The People contend, among other things, that dismissal was not required to safeguard minors' speedy trial rights and that the juvenile court abused its discretion by dismissing the petitions without making a specific finding under section 782 that dismissal was required in the interest of justice. We find no prejudicial error and shall affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Factual and Procedural Background
On August 8, 2016, the People filed a section 602 petition charging minors, then ages 15 (D.G.), 13 (M.J.), and 15 (S.B.), with second degree robbery (Pen. Code, § 211), false imprisonment (Pen. Code, § 236), and child endangerment (Pen Code, § 273a, subd. (a)) arising out of an incident involving the victim and his 10-year-old son.
On August 9, 2016, D.G. was arraigned, denied the charges and was ordered detained. S.B. was arraigned on the same day and also denied the charges. He waived time and was placed on home detention. M.J.'s arraignment and detention hearing was held the following day. After denying the charges, M.J. was ordered detained. Both D.G. and M.J. asserted their right to a speedy trial.
The jurisdictional hearing for all three minors was set for August 30, 2016. At 1:30 p.m. on August 30, the case was called for the jurisdictional hearing. The prosecutor informed the court that the victim and a key witness were not present despite having been served with subpoenas commanding their appearance, and that the case could not proceed without them. She requested a brief continuance and asked that the court issue body attachments for the witness and victim.
The prosecutor explained that on August 24 or 25 the victim acknowledged service of a subpoena but told her that he did not want to testify. About an hour prior to the hearing, the victim acknowledged by telephone that he had been served a second subpoena, but told the prosecutor he would not comply. Similarly, a subpoena was served on the witness on August 23. When the witness was handed the subpoena, he called the prosecutor and told her he did not want to testify. The prosecutor had a phone conversation with the witness on August 24 or 25, and he again told her he was not interested in testifying.
The court issued writs of body attachments and granted a recess until 3:45 p.m. When the hearing resumed at 3:45 p.m., the prosecutor had received the body attachments but because the court clerk had been unable to upload them into the Central Warrants Bureau, the police department had been unable to execute them. The prosecutor indicated that the uploading problem had been resolved and requested that the hearing be continued until the next morning. She argued that the witnesses' failure to appear after service of subpoenas provided good cause for the continuance. Minors' counsel objected to the continuance and requested that the cases be dismissed.
The court dismissed without prejudice the petition as to D.G., considering itself bound to do so because D.G. had been in custody for 15 days, but continued the case against M.J. and S.B. until the following day.
The next morning, the prosecutor reported that the previous evening police officers had been unsuccessful in their attempt to arrest the victim on the body attachment. That morning, police officers went to the victim's place of business in a second attempt to execute the warrant and spoke with his wife. She was uncooperative and hostile and informed the officers that her husband was actively avoiding court. In the course of the arguments, the prosecutor also reported that at the time of the incident, the victim went home and did not call the police. The witness, who knew the victim, called the police and followed the bus that the young people boarded after the incident, and later called the victim and asked him to participate in the cold show of the minors. The prosecutor requested a continuance until 1:30 that afternoon "to see . . . whether or not the victim has been able to be found and brought to court on the body attachment."
Minors' counsel objected to any continuance on the grounds that the People had been given ample time to secure the witnesses, that it was clear the victim did not want to pursue the case, and that it was a huge inconvenience to the minors and their families to be held in a holding pattern. Counsel argued that there was no "reasonable probability that continuing the matter further is going to bear fruit given the obvious stance that [the victim] has taken" and that the cases should be dismissed because the prosecutor could re-file at any time.
According to counsel, "It's an enormous inconvenience to people who are coming — the family and support members of the co-minors who are coming to court. This is ear-marked to be a two-day trial and we are now being asked to go midway into the second day even to begin it . . . ."
The prosecutor opposed dismissal on the ground that it was not in the interest of justice to have the petitions dismissed. She argued, "There are often times that victims choose not to participate or inform individuals from the district attorney's office that they don't want to participate. . . . I'm not going to get into the feelings both this witness and victim have with regards to the nature of this offense and who did it, but what I will say to this court is I believe both the witness and [the victim] are not coming to court because they are afraid." The prosecutor added that even if the court finds that the victim does not want to participate, "[t]here are many, many, many cases that the district attorney's office chooses to prosecute in which victims or witnesses don't want to participate. And it is because of that that the district attorney's office makes a decision independent of what a victim or witness wants to do and chooses sometimes to go forward with prosecutions even without the cooperation of a victim or a witness."
The court noted that it had been inclined to grant a short continuance until the afternoon session, but in light of the information that the victim had been reluctant to participate from the start, the court believed a continuance would be useless. "It doesn't seem that there's any reasonable possibility that we're going to be in a different position at 1:30." Before dismissing the petition the court inquired as to whether there were any public safety concerns that should be considered "for purposes of whether or not the cases should be dismissed." The record does not reflect any response by the prosecutor to the court's inquiry. The court then dismissed the petitions against the remaining two minors.
Prior to the court's inquiry, the prosecutor had stated she "ha[d] information to believe" the witnesses did not want to testify "out of fear," to which S.B.'s counsel objected, noting "my kid has never been in the system before. So I'm not sure what she thinks she knows." No further information was provided in this regard.
The court found that "[i]t is not in any minors' best interest to be faced with allegations that impact their liberty, whether or not they're currently being detained, in a circumstance where it is not likely that there will be a hearing on the merits." The court added, "It does not appear that these two witnesses are going to come to court today. It doesn't appear they're going to come to court in the near future. It also does not appear that they will come to court without being arrested." The court emphasized that although the witnesses were not technically in violation of a court order until 1:30 p.m. the previous day, the prosecutor had "ample reason to believe that they would not show up" for over a week and had not prepared for that inevitability. The court recognized that the prosecutor did not violate any "requirement" by failing to raise the witness unavailability sooner, but noted that it "does impact this court's decision when it comes to good cause" for a continuance. The court acknowledged that "[t]he law abhors dismissals based on procedural defect" and that it was not pleased "to hear that individuals or members of our society are choosing to disobey court orders and not showing up for court." Nonetheless, the court concluded that the interests of justice outweighed these concerns in this instance.
The People timely filed notices of appeal from the court's orders dismissing the petitions.
Discussion
Several statutes and court rules govern the timing and management of jurisdictional hearings in juvenile court. First, when a minor is charged with a criminal offense, absent a waiver of time, the jurisdictional hearing must be commenced within 30 days, except if the minor is detained, in which case "the petition must be set for hearing within 15 judicial days from the date of the order of the court directing such detention." (§ 657, subd. (a)(1).) Under California Rules of Court, rule 5.774(b), "If the child is released from detention before the jurisdiction hearing, the court may reset the jurisdiction hearing within the time limit [applicable in nondetention cases]." " 'Absent a waiver of time, a [minor] may not be detained beyond the statutory time limits.' " (In re Kerry K. (2006) 139 Cal.App.4th 1, 4; In re Maurice E. (2005) 132 Cal.App.4th 474, 479 [Rule 5.776(a)(1) "unequivocally provides that the minor may not be detained beyond the 15-day limit absent a time waiver by the minor."].)
All further references to rules are to the California Rules of Court.
In In re Robin M. (1978) 21 Cal.3d 337, 346-347, the court explained, "If a minor is to be released from further detention because his jurisdiction hearing will not commence within 15 judicial days of his detention hearing, the petition against him need not and in most instances should not be dismissed. Rather, the minor should be discharged from custody, the petition reset for hearing within the time prescribed for cases of nondetained minors [citation], and continued thereafter if sanctioned by the statutes governing non-detention cases." (Fn. omitted.)
Section 682, subdivision (b) requires a showing of good cause before a jurisdiction hearing may be continued. " ' "To establish good cause for a continuance, [a party has] the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." ' " (In re Chuong D. (2006) 135 Cal.App.4th 1303, 1312-1313.)
When there is no good cause for a continuance and the jurisdiction hearing is not begun within the statutory time limits, "the court must order the petition dismissed." (Rule 5.774(d).) The dismissal "does not bar the filing of another petition based on the same allegations as in the original petition, but the child must not be detained" on the new petition. (Ibid.) If, however, the statutory time limit has not been exceeded, the absence of good cause for a continuance alone will not justify dismissal of the petition. (Derek L. v. Superior Court (1982) 137 Cal.App.3d 228, 235 [When a minor's right to speedy trial is not violated, an unreasonable delay does not provide grounds for dismissal of the petition.]; see also People v. Henderson (2004) 115 Cal.App.4th 922, 935-936 [Where speedy trial rights are not implicated by the continuance, a lack of good cause for a continuance does not itself support dismissal, the court must find that dismissal furthers the interests of justice prior to dismissing criminal proceedings.].) As the court explained in Derek L., a dismissal is appropriate in these circumstances only if the court finds under section 782 that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal. (137 Cal.App.3d at p. 232, citing § 782.) Absent such findings under section 782, "lesser sanctions must be utilized by the trial court" to protect the minor's rights and to ensure the jurisdiction hearing proceeds in a timely manner. (Id. at p. 235.)
People v. Henderson, supra, 115 Cal.App.4th 922 did not involve juvenile court proceedings so that the statutes applicable in that case were in the Penal Code rather than the Welfare and Institutions Code. The provisions in both codes, however, are analogous. Both Penal Code section 1050 and Welfare and Institutions Code section 682 require good cause for a continuance. Penal Code section 1385, which authorizes a court to dismiss a criminal action "in furtherance of justice" is analogous to Welfare and Institutions Code section 782, discussed post, which authorizes the dismissal of a delinquency petition when "the interests of justice and the welfare of the minor require such dismissal." (See also People v. Haro (2013) 221 Cal.App.4th 718, 720 [Section 782 " 'is a general dismissal statute' that is similar in its operation to Penal Code section 1385."].)
In deciding whether to dismiss a petition under section 782 "the court must take into account all circumstances relevant to the public's need for safety and the juvenile's need for rehabilitation." (In re Greg F. (2012) 55 Cal.4th 393, 418.) The juvenile court "is not only authorized, but obligated, in carrying out its duties under the Juvenile Court Law, to weigh and consider both the interests of the juvenile and the interests of society." (Derek L. v. Superior Court, supra, 137 Cal.App.3d at p. 233.) "A section 782 dismissal is also subject to review for abuse of discretion." (In re Greg F., supra, at p. 413.)
Contrary to the People's argument, we find no authority for the proposition that the court was required to state the "specific reasons" for dismissal in the minutes. Unlike Penal Code section 1385, subdivision (a), which provides: "The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter," section 782 is silent in this respect. Rule 5.790(a)(2)(A), which provides that a court may "dismiss the petition in the interests of justice and the welfare of the child . . . with the specific reasons stated in the minutes" applies only to a dismissal entered at a dispositional hearing. The court's statement in In re Greg F., supra, 55 Cal.4th at page 413 that "[a] juvenile court's decision to dismiss a 602 petition under section 782 must be supported by a statement of 'specific reasons' in a minute order" must be read in the context of the facts of the case (dismissal at a disposition hearing) and the court's citation to rule 5.790.
In this case, the section 657 time limits were applicable to the proceedings involving D.G. and M.J., because both were detained at their arraignments, but not to the proceedings against S.B., because he waived enforcement of the time limits at his arraignment. The 15-day time limit ran as to D.G. on August 30 and as to M.J. on August 31. When the prosecutor was unable to proceed on those days, the court was required to release the minors from custody. But upon their release 9 or 10 days remained under the 30-day time limit for commencing the jurisdictional hearing. (§ 657, subd. (a).) Neither section 657 nor rule 5.774 required that the petitions against M.J. or D.G. be dismissed at that point.
Turning to the prosecutor's requested continuance, we question whether "due diligence" required the prosecutor to do more than subpoena the witnesses and request a body attachment when they failed to appear. Nonetheless we conclude that the court did not abuse its discretion in denying the continuance to the afternoon of August 31, and presumably indefinitely until the missing witnesses could be brought before the court. The record supports the finding that it was not likely that the witnesses' testimony could be obtained within a reasonable time. At no point did the victim indicate any interest in participating in the proceedings and he was actively avoiding his appearance. Because he lived in a different county, arresting him at home would require coordination with a second law enforcement agency. And no information was provided regarding the police department's attempts to serve the body attachment on the other witness.
As noted above, the absence of good cause for the continuance did not itself justify dismissal of the petitions. (Derek L. v. Superior Court, supra, 137 Cal.App.3d at p. 235; People v. Henderson, supra, 115 Cal.App.4th at pp. 935-936.) The relevant question is whether the court acted within its discretion in dismissing the petitions under section 782. The court emphasized that it was dismissing the petitions "both to comply with the procedure with respect to release [from custody] and in the interest of justice of these minors." If the court believed that dismissal was contrary to the interests of justice, it might have opted for a lesser sanction—such as setting the hearing on the 30th day with a clear warning that the case would be dismissed if the People were unable to proceed at that time—but it was not required to do so, having found that the interests of justice warranted dismissal.
The court undoubtedly prematurely dismissed the petition against D.G. on August 30. Because, as we conclude post, the co-minors' petitions were properly dismissed under section 782 on August 31, any error with respect to D.G. was harmless.
The juvenile court's minute order states that the petition was "dismissed without prejudice [pursuant to] 1385pc." The mistaken reference to the Penal Code rather than to section 782 is immaterial. --------
The court reasonably believed that it was unduly burdensome on minors and their families to continue the hearing on a day-to-day basis and to require them to remain on standby, unsure when, if ever, the case would proceed. Despite the court's inquiry, the record reflects no specific public safety concerns that weighed against dismissing the petitions. As S.B.'s attorney noted, he had no prior juvenile record and the other minors were released under conditions of probation that had previously been imposed. The record reflects that the court considered society's interest in pursuing such proceedings and acknowledged the prosecutor's discretion "in pursuing a case where a victim may or may not want to participate" but concluded that the interests of justice, on balance, supported dismissal in this instance. We cannot say the court abused its discretion in so concluding. Accordingly, we shall affirm the orders dismissing the petitions. As the trial court noted, because the dismissals were without prejudice, the prosecutor "retains all its authority and discretion to reinstitute these proceedings at a time that they see fit."
Disposition
The orders dismissing minors' petitions are affirmed.
Pollak, J. We concur: McGuiness, P. J.
Siggins, J.