In In re G.L. (2009) 177 Cal. App. 4th 683, the parents both designated "Mary" as the Indian custodian of their child. (Id. at p. 687.) Subsequently, the mother filed a revocation of her transfer of care of her child to the Indian custodian. (Id. at p. 688.)
Later, mother testified that she now wanted Mary to be the child's Indian custodian. (Id. at p. 689.)
On appeal, the court held that Mary did not need to receive notice under ICWA because the mother had revoked Mary's Indian custodian status. (In re G.L., at p. 694.)
The court held that mother's revocation was effective without father's revocation. (Id. at p. 695.)
In G.L., both parents had designated a particular person as the Indian custodian and the court had not designated an Indian custodian.
The court in In re G.L. does not suggest that the parent who never made the designation can then revoke the designation. One parent cannot "usurp the rights of the other parent with respect to an Indian child's temporary custody." (Id. at p. 695.)
In In re Giovani M. (2000) 81 Cal.App.4th 1061, the Court of Appeal applied the People v. Hester (2000) 22 Cal.4th 290 rationale in the context of a bargained-for conviction on two charges, one of which was a lesser included offense to the other.
Pursuant to a negotiated agreement, a minor agreed to admit two counts alleged in the petition, in exchange for a maximum commitment term of five years two months; other more serious charges were dismissed.
On appeal, the minor argued that his admission of one of the charges should be vacated or set aside, because it was a necessarily lesser included offense to the other admitted charge.
However, the court found that, "when the minor chose to accept the bargain with the juvenile court in order to avoid a longer maximum period of confinement, the minor waived any right to claim that the court was precluded from sustaining the petition on count 3 even if it could be viewed as an act in excess of jurisdiction for the court to sustain count 3." (Id. at p. 1065.)
The court repeated the notion, spelled out in Hester, that binding the minor to his bargain, even when the trial court may have acted in excess of its jurisdiction, was "necessary because a person who has received the benefit of their bargain should not be allowed to 'trifle with the courts' by attempting to better the bargain through the appellate process." (Ibid.)
In Giovani M., "if the minor was successful in having his admission to count 3 vacated, the entire arrangement under which counts 2 and 3 were admitted and counts 1 and 4 were dismissed would no longer be viable. Upon remand, the entire matter including all counts and special allegations would once again be before the juvenile court and the minor would once again be potentially subject to a longer period of custody than he originally bargained for." (Giovani M., supra, 81 Cal.App.4th at p. 1065, fn. 3.)
Accepting the minor's argument on appeal would render the entire bargain untenable. Moreover, the minor had "obtained a substantial benefit in maximum confinement time, and the dismissal of a potential strike," so that he should not then be allowed to "'trifle with the courts' by trying to receive even a better bargain in the appellate court." (Id. at p. 1065.)
Even more importantly, the appellate court rejected the contention that one of the pleaded offenses was a necessarily lesser included offense to the other. (Id. at pp. 1065-1066.)
In In re Gino C. (2014) 224 Cal.App.4th 959, the Court reversed a judgment declaring minor children dependents and denying placement with the father.
The Agency conceded the court did not comply with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before assuming permanent subject matter jurisdiction, and we agreed. (Gino C., at p. 964.)
The Court explained:
"The court's efforts to comply with the UCCJEA fell short because the court misinterpreted Family Code section 3424, subdivision (b), as allowing the court's temporary emergency jurisdiction to automatically convert to permanent jurisdiction if the parents did not initiate child custody proceedings in Mexico. Instead, the statute precludes a child custody determination by a court exercising temporary emergency jurisdiction from becoming final until this state becomes the child's home state." (Id. at p. 966.)
In Gino C., supra, 224 Cal.App.4th at p. 968, the Court unconditionally reversed the judgment and remanded the case to the juvenile court for further proceedings consistent with the opinion.
The Court declined to reach the merits of the court's placement decision. (Id. at p. 961.)
In In re Gerardo B. (1989) 207 Cal. App. 3d 1252, the lower court made it clear that if there were other less restrictive alternatives, a California Youth Authority (CYA) commitment would be rejected.
But CYA was the only option because local and less restrictive programs were inappropriate, and of those programs that would have been appropriate, they were unavailable.
What influenced the reviewing court to affirm the commitment was what the trial court considered in addition to the unavailability of appropriate programs, such as Gerardo's record, his abilities, the seriousness of the crime, and his mother's lack of control over him. (Gerardo B., supra, 207 Cal. App. 3d at 1254-1255.)
A CYA commitment must be supported with evidence showing that CYA would be "(1) of probable benefit to the minor and (2) that less restrictive alternatives would be ineffective or inappropriate." (Gerardo B., supra, 207 Cal. App. 3d at p. 1256.)
Additionally, the emphasis on the availability of less restrictive alternatives, prevalent 20 years ago, has been replaced with an emphasis on ensuring the minor's commitment is restrictive enough to provide protection and safety for the public.
The Gerardo court made it clear that CYA commitment cannot be made "solely" to punish a minor and affirmed the commitment because the trial court considered the benefit and deemed other alternatives inappropriate.
The Court concluded that an expression of concern at a dispositional hearing in which a minor is committed to California Youth Authority (CYA) will not necessarily support a conclusion that the court was not "fully satisfied" with the commitment.
The court "considered the programs at CYA, and observed that although the minor could suffer detriment, it felt that he was bright enough to choose the right option and benefit from the programs." (In re Gerardo B., supra, 207 Cal.App.3d at p. 1258.)
In so doing, the juvenile court, while expressing concern over the commitment to CYA, considered other relevant factors and did not base the disposition solely on the lack of alternative placements. (Ibid.)
In In re Gerardo A. (2004) 119 Cal.App.4th 988, the Court held the father did not forfeit his ICWA claim by failing to appeal a January 2002 removal order in a timely fashion. (Id. at p. 993.)
However, in Gerardo A., the father was "first properly noticed in August 2003, when he was personally served in state prison with notice of the termination hearing...." (Id. at p. 991.)
Thus the Court held, "under these circumstances" the appeal was "the first opportunity" for father "to raise the issue of ICWA compliance." (Id. at p. 993.)
In other words, the Court would not fault an appellant for failing to timely challenge a January 2002 order when his first proper notice of the proceedings came in August 2003.
In In re George W. (1999) 68 Cal.App.4th 1208, the minor possessed a folding knife described as follows: "It was a black 'Gerber' knife.
It had a steel blade with a single-honed edge. The blade was three and a half to four inches long. The blade locked into place when opened. To fold the knife closed one had to push a release lever to permit the blade to retract into the handle." (Id. at pp. 1210-1211.)
Significantly in George, there was no evidence that at the time of the arrest "the blade of the folding knife in the minor's pocket was exposed and locked into position--as opposed to being closed and retracted into its handle." (Id. at p. 1215.)
George found the evidence insufficient to establish that the minor carried a dirk or dagger.
The Court addressed the question of whether a folding knife with a three and a half to four inch blade, which was found on the defendant's person during a probation search, constituted a dirk or dagger within the meaning of Penal Code section 12020.
The court noted that, historically, courts had defined a dirk or dagger as a stabbing weapon with a blade that was locked into position. The definition did not include folding knives or pocket knives, which may be used for outdoor recreational purposes. (George W., supra, 68 Cal.App.4th at pp. 1211-1212.)
The 1997 revision similarly was intended to make explicit this exclusion of folding knives that are found in a closed and secured state. (Id. at p. 1213.)
In applying the current version of section 12020, the court in George W. concluded that the knife did not qualify as a dirk or dagger. (George W., supra, 68 Cal.App.4th at p. 1215.)
The court explained: "It is . . . undisputed during a patdown search police officers found a folding knife with a blade capable of locking into position in appellant's front pants pocket. However, there is no evidence in the record demonstrating or tending to suggest the blade of the folding knife in appellant's pocket was exposed and locked into position-as opposed to being closed and retracted into its handle." (Id. at pp. 1214-1215.)
Accordingly, the court concluded that the evidence was insufficient to support defendant's conviction for carrying a concealed dirk or dagger. (Id. at p. 1215.)
In sum, a minor who was subject to a probation condition requiring him to consent to a search at any time was searched in his parent's home, and an item was found in his pants pocket. (Id. at pp. 1209-1210.)
A juvenile delinquency petition was filed alleging a violation of former section 12020, subdivision (a), which made it a crime for anyone to "carry upon his or her person any dirk or dagger."
The juvenile court sustained the petition. Division Seven of our court reversed the case, finding that the trial evidence did not establish that the item in the minor's pocket was a dirk or dagger. (Id. at pp. 1211-1215.)
In In re Geneva C. (2006) 141 Cal.App.4th 754, the minor argued that Welfare and Institutions Code section 731, subdivision (b), required the juvenile court to set a maximum confinement when the court placed a minor in camp, just as it must when committing a minor to California Youth Authority (CYA). (Geneva C., at p. 758.)
The court stated that "a plain reading of section 731, subdivision (b) defeats any contention that the statute contemplates granting discretion to the juvenile court in any situation other than confinement to CYA." (Ibid.)
The court went on to state that "presuming that the Legislature knew and meant what it wrote, we conclude that the exclusive reference to the Department of the Youth Authority demonstrates that the Legislature intended it to provide discretion only in computing the confinement term to CYA." (Id. at pp. 758-759.)
In In re Gary G. (1981) 115 Cal. App. 3d 629, the Court held that rough interview notes taken by investigating officers should be disclosed if still in existence, but we declined to impose a requirement that such notes be retained. (Gary G., supra, 115 Cal. App. 3d 629, 640.)
"Investigative notes do not necessarily fall into the category of material evidence bearing directly on an accused's guilt or innocence. Where such notes are incorporated into a formal report, where the officer testifies that the report accurately contains the substance of the information recorded on the notes, and when the report is thereafter turned over to the other side, the requirement of providing all discoverable evidence has been met; due process requires nothing more." (Id. at p. 642.)
In In re Garcia (1998) 67 Cal.App.4th 841, an inmate (Garcia) incarcerated at a California medical facility sought habeas corpus relief after his request for permission to correspond with an inmate at another prison, Richard J. Donovan Correctional Facility (Donovan prison), was denied by that prison, in reliance upon its correspondence policy. That policy limited correspondence between Donovan prison inmates and inmates housed at other institutions. (Garcia, supra, 67 Cal.App.4th at p. 843.)
Garcia challenged the Donovan prison policy on the ground it was a regulation of general application not promulgated pursuant to the APA. (Garcia, at pp. 843, 845.)
The prison authorities made two separate arguments as to why the APA did not apply: First, they argued the Donovan prison policy was not one of "general application," and second, even if it were, the policy was exempt from compliance with the APA under section 5058(c)(1) because it applied to only one prison facility. In its analysis of "general application," the Garcia court noted that the APA does not define this term, but suggested, in dicta, that in the prison context a rule is of general application where it significantly affected a "broad range of prisoners." (Garcia, at pp. 844-845.)
Garcia then concluded a correspondence policy that applied to a single prison did not have this effect and, so, was not a rule of general application. (Id. at p. 845.)
In In re Gabriel K. (2012) 203 Cal.App.4th 188, the child was removed from parental custody, the mother failed to take advantage of reunification services, and her services were terminated. (Id. at p. 191.)
The father reunified with the child but thereafter permitted the mother to have custody. (Id. at pp. 191-192.) Some time later, the child was again removed from parental custody. (Id. at pp. 192-193.)
At the disposition hearing, the mother opposed the recommendation to deny her services pursuant to section 361.5, subdivision (b)(10), arguing that the subdivision only applied when services were previously terminated in a sibling's or half sibling's case. (Gabriel K., at p. 194.)
The juvenile court denied the mother reunification services. (Ibid.)
On appeal, the reviewing court found the subdivision ambiguous, and "rather than applying technical rules of statutory construction," construed the subdivision so as to further the perceived legislative intent to deny services where the parents had previously failed to reunify and further services would be fruitless. (Id. at p. 195.) The court affirmed the denial of services as "consistent with the legislative intent" and "within the spirit of the statute." (Id. at p. 196.)
In In re Frye (1983) 150 Cal.App.3d 407, the Court held that an implied stipulation presupposes "voluntary and knowing assent." (Id. at p. 409.)
The reporter's transcript of the hearing failed to disclose any stipulation or knowledge that Commissioner Honn was a commissioner rather than a judge. (Ibid.)
There was no written stipulation in the court file. And the only notice that Commissioner Honn was a commissioner was a sign "posted in the hearing room stating that unless some objection is voiced it will be deemed stipulated the commissioner may act in the capacity of judge pro tempore." (Ibid.)
The Court did not determine the sufficiency of this procedure because we found that neither the petitioner nor his counsel "knew that Commissioner Honn was a commissioner rather than a judge and knew of the posted notice . . . ." (Ibid.)
Thus, the Court concluded that "in the absence of a proper stipulation Commissioner Honn lacked authority to hear and determine the contempt proceeding and the order of contempt is void." (Ibid.)
In In re Frederick B. (1987) 192 Cal.App.3d 79, a school police officer detained the defendant after he saw him exchange money with another student in an area of the campus where the officer knew other narcotics transactions had taken place.
This was sufficient to support a detention.
In In re Randy G. (2001) 26 Cal.4th 556, the California Supreme Court expressly disapproved of the holding in Frederick that reasonable suspicion was required before the detention of a student on school property was justified. (Frederick, supra, 192 Cal.App.3d at pp. 85, 86.)
In In re Foss (1974) 10 Cal.3d 910, the petitioner, an addict, was convicted of arranging five separate sales of heroin between his heroin supplier and an acquaintance. (Id. at p. 918.)
The petitioner's only prior conviction, for heroin possession, had occurred 14 years before. (Id. at p. 916.)
Although the petitioner was an addict at the time of the offense, he had been free of addiction (as well as convictions) for nearly eight years preceding his arrest. (Id. at p. 936 (dis. opn. of Clark, J.).)
Based on these facts, the Supreme Court declared that it was cruel and unusual punishment to forbid parole during the first 10 years of his indeterminate sentence of 10 years to life, although the court did not otherwise declare the sentence unconstitutional. (Id. at p. 917.)
In In re Fluery (1967) 67 Cal.2d 600, the petitioner applied for a writ of habeas corpus, in part, on the ground that "contrary to In re Patton (1964) 225 Cal. App. 2d 83, Y he was not credited for time served under a misdemeanor sentence that ran concurrently with his prison sentence .Y" (Fluery, supra, 67 Cal.2d at p. 601.)
When the court issued an order to show cause, the authority credited the petitioner with the disputed periods of jail time. (Ibid.)
Although the order resulted in the petitioner's relief, the court deemed it appropriate to decide the questions he presented on the ground that habeas petitions being filed by other prisoners at the time reflected their sentences were still being computed contrary to Patton and a similar case, entitled Aguilera v. California Dept. of Corrections (1966) 247 Cal. App. 2d 150, (Fluery, supra, 67 Cal.2d at p. 601.)
Fluery concluded that the petitioner was entitled to credit for time he had spent in jail custody:
"For the reasons stated in People v. Aguilera (1996) 51 Cal.App.4th 1151, we now hold that in computing time served the Adult Authority cannot disregard or add to the prison term time spent in actual custody in jail under its own orders suspending, cancelling, or revoking parole. A man jailed under such an order cannot be 'deemed an escape and fugitive' from the very body that is restraining him.Y
"The reasoning of Aguilera applies equally to time spent in jail under an Adult Authority order while that body is determining whether a prisoner should be reinstated on parole and to time spent in jail under such an order after the Adult Authority has decided to return him to state prison and is arranging to transport him there.
"We further hold in accord with In re Patton, supra, 225 Cal. App. 2d 83, 85, 87, that the Adult Authority must credit petitioner for the time served in jail under the 1966 misdemeanor sentence that was silent as to, and therefore concurrent with, his prison sentence. (Pen. Code, § 669.)" (Fluery, supra, 67 Cal.2d at p. 603.)
In In re Fernando M. (2006) 138 Cal.App.4th 529, a dependent child lived with maternal grandparents who also cared for his older siblings.
The child was undisputedly bonded and shared a close relationship with his grandparents and siblings. However, the grandfather was not willing to adopt and would have to sign a spousal waiver in order for the grandmother to adopt.
For her part, the grandmother did not want to adopt because she believed the child belonged to his mother and one day the mother would get him back. (In re Fernando M., supra, 138 Cal.App.4th at p. 533.)
Her statements of willingness to adopt were always followed by what she described as a threat that unless she adopted her grandson, the department would find another adoptive home. (Id. at p. 538.)
There was also compelling evidence that to remove the child from his grandmother's care would detrimentally affect him and deprive him of the stability to which he was entitled. (Ibid.)
The appellate court reversed, concluding there were exceptional circumstances as that term is used in section 366.26, subdivision (c)(1)(D) because (1) the grandmother was also caring for the child's siblings with whom he was bonded, and (2) adoption would disrupt the grandmother's marriage. (In re Fernando M., supra, 138 Cal.App.4th at pp. 537-538.)
It concluded its discussion with the following:
"under the peculiar facts of this case, the grandmother should not be coerced into either becoming 'willing' to adopt Fernando or watching as someone else does. That neither serves Fernando's best interest nor follows the mandate of section 366.26, subdivision (c)(1)(D)." (In re Fernando M., supra, 138 Cal.App.4th at p. 538.)
In In re Ewer (1918) 177 Cal. 660 and Estate of Cooper (1969) 274 Cal.App.2d 70, the Court held that the will cannot be used to impeach the decree of distribution, but it can be used to explain ambiguity.
The court said:
"The rule is well established that where the decree of distribution is contrary to the provisions in the will, the decree controls and prevails over the terms of the will with respect to the distribution of the property; in other words, that the will cannot be used to impeach the decree of distribution. But while the will cannot be used to impeach the decree, it can be used to explain it where the decree taken alone is uncertain, vague, or ambiguous." (In re Ewer, supra, 177 Cal. at p. 662.)
The noted held that:
"The rule that the decree of distribution prevails over the provisions of the will where the two are in conflict is one of necessity. It should not be applied in cases where the necessity does not exist, and if reasonably possible the decree should be construed so as to be consistent with the will, and so as to incorporate the will into it as a part of its directions, rather than to give it a meaning which conflicts with the provisions of the will." (In re Ewer, supra, at p. 664.)
In In re Establishment of Eureka Reporter (2008) 165 Cal.App.4th 891, a small percentage of the recipients of a free newspaper participated in a " 'Voluntary Pay Program' (the Program)," through which they contributed money to the paper to offset the cost of delivering it. (Id. at pp. 894-895.)
The Court held that these recipients were not "paying subscribers" within the meaning of Government Code section 6000, because there was "no evidence in the record of the existence of a contract between the newspaper and the participants in the Program wherein the participants agree to pay for (and receive) a certain number of issues of the newspaper." (Id. at pp. 894, 896, 899.)
Residents of the county in which the newspaper was located who did not participate in the Program would continue to receive the newspaper for free. (Id. at p. 896.)
In In re Eskiel S. (1993) 15 Cal.App.4th 1638, the minor made a "Harvey-Madden" challenge (People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.) to hearsay evidence of the radio broadcast on which the arresting officer relied.
The dispatcher was not called to testify, and the Court of Appeal held the mere fact the arresting officer saw the minor running from another officer was insufficient to permit a detention. The problem, explained the court, was an evidentiary one.
" 'While it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, "when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness." ' " (Eskiel S., supra, 15 Cal.App.4th at pp. 1642-1643, quoting Remers v. Superior Court (1970) 2 Cal.3d 659, 666, quoting People v. Adkins (1969) 273 Cal.App.2d 196, 198.)
" 'When an officer furnishes to another officer information which leads to an arrest, the People must show the basis for the former officer's information.' " (Eskiel S., at p. 1643, quoting Remers, supra, 2 Cal.3d at p. 667.)The only evidence presented was a radio broadcast reporting a possible gang fight involving 10 to 12 Black persons, including one possibly armed with a rifle, in the area of a certain intersection. The defendant and others were detained in a nearby park. (Id. at p. 1641.)
While recognizing that "where significant portions of the broadcast can be verified, it is reasonable to conclude that the source of the information 'is probably right about other facts . . . including the claim that the object of the tip is engaged in criminal activity,' " the court held that "because of the general nature of the information contained in the radio broadcast . . . , no amount of corroboration could have justified a detention based on the broadcast. . . . The individuals allegedly involved in the 'possible' criminal activity were not described other than by race and only a general 'area' was given as their location." (Id. at p. 1644.)
In In re Erik P. (2002) 104 Cal.App.4th 395, a parent failed to raise the sibling relationship exception at a section 366.26 hearing. The parent nevertheless asserted the applicability of the exception on appeal. (Id. at p. 402.)
In language equally applicable here, the court stated:
"If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence. Allowing the parent to raise the exception for the first time on appeal would be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence." (Id. at p. 403.)
The court in Erik P. therefore concluded that the parent "waived his right to raise the exception." (Ibid.)
In In re Eric S. (2010) 183 Cal.App.4th 1560, the victim was a member of Kaiser California North, an HMO "'providing medical services to its members rather than a medical service provider with a conventional creditor-debtor relationship to its patients.'" (Eric S., supra, 183 Cal.App.4th at p. 1565.)
Division Five of this court concluded that "assuming the victim was not obligated to pay Kaiser for any amount above his membership fee in the HMO, charges were nonetheless incurred on his behalf as a result of appellant's criminal conduct.
The fortuity that the victim had purchased membership in an HMO, like the fortuity that a victim has purchased third party insurance , or the fortuity that a victim is covered by Medicare/Medi-Cal , should not shield appellant from paying restitution for the medical expenses in this case." (Ibid.)
The district attorney had submitted documentation from Kaiser's collection agency indicating that Kaiser would accept an amount reduced for capitated charges in satisfaction of a lien, apparently entered against any recovery the victim might obtain. (Id. at p. 1563.)
The court concluded that restitution should be set according to the amount that Kaiser was willing to accept for the services it rendered. (Id. at p. 1566.)
In In re Erica R. (2015) 240 Cal.App.4th 907, the Court determined that "'there was no reason to believe the challenged condition would serve the rehabilitative function of precluding the minor from any future criminal acts'" because there was nothing in the record about either her drug-possession offense or "social history that connected her use of electronic devices or social media to illegal drugs," and thus "'nothing in her past or current offenses or her personal history that demonstrated a predisposition' to utilize electronic devices or social media in connection with criminal activity." (Id. at p. 913.)
The Court observed, "the record does not support a conclusion that the electronic search condition is reasonably related to future criminal activity by Erica. The juvenile court justified the electronic search condition solely by reference to its experience that 'many juveniles, many minors, who are involved in drugs tend to post information about themselves and drug usage.' However, 'not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable.' There is nothing in this record regarding either the current offense or Erica's social history that connects her use of electronic devices or social media to illegal drugs. In fact, the record is wholly silent about Erica's usage of electronic devices or social media. Accordingly, 'because there is nothing in Erica's past or current offenses or her personal history that demonstrates a predisposition' to utilize electronic devices or social media in connection with criminal activity, 'there is no reason to believe the current restriction will serve the rehabilitative function of precluding Erica from any future criminal acts.'" (Ibid.)
In In re E.O. (2010) 188 Cal.App.4th 1149, the Court considered the constitutionality of a condition that directed the minor to " 'not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.' " (E.O., supra, 188 Cal.App.4th at p. 1152.)
The Court highlighted the problem that "the prohibition on being near a building in which gang-related proceedings are known to be underway would prevent appellant not only from attending a gang-related trial but also from attending other proceedings in the same, and perhaps adjacent, buildings, or indeed from entering such a building for any reason, other than as a party or witness, without his probation officer's permission, unless he 'needs' to enter for 'a legitimate purpose." (E.O., supra, 188 Cal.App.4th at p. 1155.)
The court also observed that the condition interfered with the defendant's "specific right under the state Constitution to attend and participate in court proceedings if he or a family member is a victim of a crime" and that it "would also prevent the defendant from testifying voluntarily or addressing the court in a setting, such as a sentencing hearing, where comments from members of the public might be received." (Ibid.)
The probation condition in E.O. directed the minor to " 'not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.' " (E.O., supra, 188 Cal.App.4th at p. 1152.)
Among other arguments, the minor contended that the probation condition "unnecessarily infringes his specific right under the state Constitution to attend and participate in court proceedings if he or a family member is a victim of a crime. (See Cal. Const., art. I, § 28, subd. (b)(7); see id., subd. (e) defining 'victim'.)" (E.O., supra, at p. 1155.)
The E.O. court agreed, stating that the probation condition "not only interferes with these rights, but would also prevent the minor from testifying voluntarily or addressing the court in a setting, such as a sentencing hearing, where comments from members of the public might be received." (Ibid.)
The E.O. court ultimately struck the probation condition as overbroad, rather than modifying it, and indicated that the trial court should hold a new hearing to reconsider the necessity and purpose of the condition if requested by either party. (E.O., supra, 188 Cal.App.4th at pp. 1157-1158.)
With respect to the necessity and purpose of the condition, the E.O. court explained that "there was no evidence that the minor had 'loitered on courthouse property, that he had threatened or would threaten witnesses, or that his presence in a courthouse would incite violence.' " (Id. at p. 1157.)
In a footnote, the E.O. court suggested appropriate language if the trial court were to find such a restriction justified. Relevant here, the suggested language including a restriction on attendance at any gang-related case unless, among other reasons, "You or a member of your immediate family is a victim of the activity charged in the case." (Id. at p. 1157, fn. 5.)
In In re Enrique G. (2006) 140 Cal.App.4th 676, the parent's guardian ad litem filed a notice of intent to file a writ petition challenging the referral order to a Welfare and Institutions Code section 366.26 hearing. After review, counsel decided not to proceed with the petition for writ. (Enrique G., supra, 140 Cal.App.4th at p. 68.)
The Court concluded that one could not expect the guardian ad litem to seek review of the order appointing him and, similarly, could not expect counsel to seek review of the very order he requested. (Enrique G., supra, 140 Cal.App.4th at p. 683.)
The appellate court found the juvenile court violated the offending parent's due process rights when it appointed the parent a guardian ad litem. (Id. at p. 684.)
The reviewing court concluded that the juvenile court's error was harmless because the offending parent did not cite any prejudice resulting from the appointment of the guardian. (Id. at pp. 686-687.)
In In re Emiliano M. (2003) 31 Cal.4th 510, the California Supreme Court explained that Welfare and Institutions Code section 777, subdivision (a)(2), "covers all situations in which new misconduct by a criminal juvenile probationer is alleged only as a probation violation," and "a more restrictive disposition can be sought and obtained under the statute regardless of the actual criminal nature of the violation that is pled. " (Emiliano M., supra, 31 Cal.4th at p. 516.)
The California Supreme Court concluded that the Court of Appeal thus erred in determining that section 777, subdivision (a)(2), excluded an act by the minor that constituted a crime. (Emiliano M., supra, 31 Cal.4th at p. 516.)
The Court of Appeal's judgment was reversed on this ground, and the California Supreme Court did not reach the issue of whether the gang registration provision of Penal Code section 186.30, subdivision (b)(3), applies in a section 777, subdivision (a)(2), probation violation proceeding. (Emiliano M., supra, 31 Cal.4th at pp. 513, 517 & fn. 4.)
In In re Elodio O. (1997) 56 Cal.App.4th 1175, there were "only three comments from the prosecution's expert relating to the primary activities of appellant's gang." (In re Elodio O., supra, 56 Cal.App.4th at p. 1181.) One of those comments related to the gang's currently charged offenses and was therefore irrelevant to the enhancement. (Ibid.)
The remaining evidence indicated appellant's gang "'subscribed to an attitude . . . against certain other groups'" and the members had previously been involved in similar incidents. (Ibid.)
The court found this evidence inadequate. (Ibid.)
In order to establish the primary activity requirement there must be "credible testimony that the gang is known for committing one or more statutorily enumerated offenses . . . ."
In that case, the question of sufficiency of the evidence was in the context of whether there was evidence of the "primary activities" requirement of Penal Code section 186.22, subdivision (f), which this court determined could not be satisfied with evidence of current offenses, but rather required evidence of past activity. (Id. at pp. 1180-1181.)
In Elodio O., there was no evidence that defendant's gang was involved in criminal conduct aside from the current offense, and as such, the "primary activities" requirement of section 186.22, subdivision (f) could not be satisfied through current offenses, but required proof of past criminal activities. (Ibid.)