E.P. v. Superior Court of Yolo Cnty.

59 Cal.App.5th 52

273 Cal.Rptr.3d 268

E.P., Petitioner,

v.The SUPERIOR COURT OF YOLO COUNTY, Respondent;

The People, Real Party in Interest.

C092677

Court of Appeal, Third District, California.

Filed December 28, 2020

Tracie Olson, Yolo County Public Defender, and Jonathan Opet, Deputy Public Defender, for Petitioner.

The Superior Court of Yolo County, for Respondent.

Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Real Party in Interest.

Robie, Acting P. J.

This petition for writ of mandate by E.P., a minor in a juvenile delinquency proceeding, challenges a July 30, 2020, decision by respondent Yolo County Superior Court denying his motion to physically appear in juvenile court in the presence of the judge at court hearings. Petitioner claims the court's decision, as well as certain temporary local rules (Super. Ct. Yolo County, Temporary COVID-19 Local Rules¹ ) issued by the court in response to the COVID-19 pandemic, conflict with Welfare and Institutions Code ² section 679 and the emergency rules related to COVID-19 adopted by the Judicial Council and contained in appendix I of the California Rules of Court.³ As we shall explain, section 679 provides that a minor who is the subject of a juvenile court hearing has the right to be physically present in the courtroom at such hearings, although the minor may waive such right. We shall further conclude, consistent with section 679 and the case law interpreting it, that the emergency rules require a court obtain a minor's consent before conducting a hearing in a juvenile delinquency proceeding remotely. Accordingly, the respondent superior court erred in denying petitioner's motion to physically appear in court at his juvenile hearings. To the extent the court's temporary local rules require all hearings in juvenile delinquency proceedings be conducted remotely absent a finding of good cause, the rules are in conflict with both section 679 and the emergency rules.⁴

FACTUAL AND PROCEDURAL BACKGROUND

Since 1961, a minor who is the subject of a juvenile court hearing in a juvenile delinquency proceeding in California has had a statutory right "to be present" at such hearing. ( § 679 ["A minor who is the subject of a juvenile court hearing ... is entitled to be present at such hearing"].)

On March 4, 2020, Governor Gavin Newsom declared a state of emergency as a result of the threat of COVID-19, and on March 19, 2020, issued an executive order directing all Californians not providing essential services to stay home. ( Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 167-168, 263 Cal.Rptr.3d 735.)⁵ The order did not close the courts, which provide an essential service. ( In re M.P. (2020) 52 Cal.App.5th 1013, 1016, 267 Cal.Rptr.3d 106.)

On March 23, 2020, Chief Justice Tani G. Cantil-Sakauye, pursuant to her authority under the California Constitution, article VI, section 6, and Government Code section 68115, issued an order authorizing superior courts to adopt proposed local rules or local rule amendments to address the impact of the COVID-19 pandemic to take effect immediately, without advance circulation for 45 days of public comment. ( In re M.P., supra , 52 Cal.App.5th at p. 1016, 267 Cal.Rptr.3d 106.)

On March 27, 2020, the Governor issued Executive Order N-38-20, which "suspended any limitations in Government Code section 68115 or any other provision of law that limited the Judicial Council's ability to issue emergency orders or rules, and suspended statutes that may be inconsistent with rules the Judicial Council may adopt." ( Stanley v. Superior Court, supra , 50 Cal.App.5th at pp. 167-168, 263 Cal.Rptr.3d 735.)

Acting on that authority, on April 6, 2020, the Judicial Council adopted 11 emergency rules. Emergency rule 7, which specifically pertains to "juvenile delinquency proceedings," provides: "A court may hold any proceeding under this rule via remote technology consistent with [California Rules of Court,] rule 5.531 and emergency rule 3." (Emergency rule 7(c)(1).) Emergency rule 7 "applies to all proceedings in which a petition has been filed under Welfare and Institutions Code section 602 in which a hearing would be statutorily required during the state of emergency related to the COVID-19 pandemic." (Emergency rule 7(a).) Consequently, it applies to the delinquency case at issue here.

Emergency rule 3(a), which pertains to the use of technology for remote appearances, provides: "Notwithstanding any other law, in order to protect the health and safety of the public, including court users, both in custody and out of custody defendants, witnesses, court personnel, judicial officers, and others, courts must conduct judicial proceedings and court operations as follows: [¶] (1) Courts may require that judicial proceedings and court operations be conducted remotely. [¶] (2) In criminal proceedings, courts must receive the consent of the defendant to conduct the proceedings remotely and otherwise comply with emergency rule 5.... As used in this rule, ‘consent of the defendant’ means that the consent of the defendant is required only for the waiver of the defendant's appearance as provided in emergency rule 5.... [¶] (3) Conducting proceedings remotely includes, but is not limited to, the use of video, audio, and telephonic means for remote appearances ...."

Emergency rule 5, which pertains to personal appearance waivers of defendants during the health emergency, provides in part: "With the defendant's consent, a defendant may appear remotely for any pretrial proceeding."⁶ (Emergency rule 5(e)(1).) Emergency rules 7, 3 and 5 "remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council." (Emergency rules 7(f), 3(b), 5(f).)

Effective June 18, 2020, respondent superior court issued temporary local rules. Temporary local rule 6, which pertains to appearances in juvenile court generally, states: "All persons who have a right to appear in Juvenile Court shall appear only by remote means (video or telephone) unless the Court finds good cause for live physical appearance in the Courtroom." (Temporary local rule 6(a).)

Effective June 19, 2020, respondent issued temporary local rule 8, which pertains to all court appearances. It provides: "[U]less authorized by statute or Court order, all Court appearances in Yolo Superior Court shall be presumptively by Video.... [¶] ... Physical appearance is subject to either statute or a good cause finding made by a judicial officer."

Meanwhile, on May 21, 2020, the Yolo County District Attorney filed a section 602 petition alleging petitioner violated Health and Safety Code section 11351 by possessing cocaine for sale. Petitioner appeared in custody for a detention hearing the following day, which was conducted remotely via Zoom, a video-conferencing platform, from the Yolo County Juvenile Detention Facility. Petitioner denied the allegation in the petition, and the court ordered him released on home supervision with a GPS monitor.

On June 24, 2020, petitioner appeared remotely with a deputy public defender. At that hearing, petitioner, through counsel, objected to appearing remotely as provided in temporary local rule 6, claiming he had a right to appear in person, and that his consent was required for a remote appearance. The court did not rule on the objection and continued the matter to July 30, 2020.

On July 6, 2020, petitioner filed a motion to physically appear in court, arguing respondent court's temporary local rule 6, which requires all appearances in juvenile court occur remotely absent a good cause finding, conflicts with emergency rule 7, which together with emergency rule 3, requires petitioner's consent for a remote hearing. Petitioner further asserted that such a construction of the emergency rules is consistent with section 679 ’s provision that minors who are the subject of juvenile court hearings are entitled "to be present" at such hearings. The People did not file a written opposition. At the hearing on July 30, 2020, the People argued that although emergency rule 7 "indicate[s] that hearings can be done remotely consistent with ... emergency rule 3," emergency rule 3's provision requiring courts obtain the defendant's consent to conduct a criminal proceeding remotely does not apply to petitioner because he is not a "defendant" in a "criminal proceeding."

Respondent superior court agreed with the People and denied petitioner's motion. It found section 679 provides petitioner with a "a right to a presence, ... but not personal presence." It compared section 679, which states a minor has a right "to be present" with Penal Code section 977, which states a criminal defendant charged with a felony has a right to "be physically present," (italics added) and concluded the Legislature's failure to specify a minor has a right to be physically present in section 679, evidences an intent not to provide minors with such a right. The court's interpretation of section 679 informed its interpretation of the emergency rules. In rejecting petitioner's claim that emergency rules 7 and 3 together require a court obtain a minor's consent before conducting a hearing in a juvenile delinquency proceeding remotely, the court indicated it was "not going to ... find these emergency rules ... provide a greater right for personal presence" than that afforded in section 679. The court further concluded the Judicial Council did not intend "to incorporate all portions of rule 3," in particular the provision requiring a court obtain a defendant's consent before conducting a hearing in a criminal proceeding remotely, reasoning petitioner is not a "defendant" in a "criminal proceeding."

This petition for writ of mandate was filed on September 21, 2020. The People filed a preliminary opposition on October 8, 2020, and petitioner...