People v. D.N. (In re D.N.)

In re D.N., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. D.N., Defendant and Appellant.

F080624

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APELLATE DISTRICT

March 23, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 19CEJ600384-1)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.

Sangeeta Sinha, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant D.N., a minor, challenges some of the terms and conditions of probation which the juvenile court imposed against him. Although we reject a majority of his claims, we agree that the court failed to articulate the required probable cause necessary to impose AIDS testing, and the record is insufficient to sustain that finding. We strike the AIDS testing condition but remand to provide the People with the opportunity to introduce evidence sufficient to support it. We otherwise affirm the disposition order.

BACKGROUND

Appellant was 14 years old when this wardship petition was filed. It was alleged he had committed continuous sexual abuse in violation of Penal Code section 288.5, subdivision (a). The petition alleged that the victim was under 14 years of age, and appellant had unlawfully engaged in three or more acts of substantial sexual conduct.

The victim was seven years old and in the second grade when she testified in this matter. She and appellant are cousins. Appellant spent time with the victim and her older brother at the victim's residence in Fresno County.

The Ongoing Sexual Abuse.

The testimony from the victim established that, on at least three occasions, appellant touched her "private" with his hand or finger. These touchings occurred both over and under her underwear. During some of these encounters, appellant exposed his "private" to her. The victim believed these touchings may have started when she was in kindergarten, and they continued until she was in second grade. The victim testified that, in total, appellant touched her between "five and ten times."

During her testimony, the victim said appellant tried to lick her private on one occasion, but she could not remember if he actually succeeded. During a forensic interview, however, the victim had reported that appellant had licked her "private" once for about one second.

On one occasion, appellant took out his "private" from his pants. He asked the victim to touch it. During her testimony, she initially could not recall if she touched it but she later indicated that she had touched it. According to the victim, appellant also asked her to lick his private, but she refused. They lay on a bed and appellant moved his "private" towards her and he touched her private with his. His private touched her on her skin. Her panties were pulled down a little.

The final incident involved appellant touching the victim's "private" with his hand while at her house. He told her not to tell her parents what had happened. The victim, however, reported the final incident to her mother, and law enforcement was alerted.

Appellant's Testimony.

Appellant testified on his own behalf. The juvenile court learned that, when speaking with police officers, appellant had denied ever touching the victim inappropriately. In court, appellant denied ever touching the victim's vagina or underwear, putting his mouth on her vagina, asking her to touch his penis, or asking her to put her mouth on his penis.

The Juvenile Court's Findings.

At the conclusion of the contested hearing, the juvenile court noted that the victim and appellant had provided testimony that contained inconsistencies. The court credited the victim's testimony over appellant's denials of wrongdoing. The court found the victim's demeanor in court credible. Despite certain inconsistencies between her testimony and her forensic interview, the court also found credible her statements made during the forensic interview. The court determined the victim had no apparent or obvious reason to fabricate the allegations. The court found true that appellant had committed continuous sexual abuse of a child under 14 years of age.

At the December 4, 2019, disposition, appellant was adjudged a ward of the court. His maximum period of confinement was set at 16 years. He was placed on probation with certain terms and conditions. He was directed to reside with a parent or guardian.

DISCUSSION

Appellant's various claims deal with the imposition of some of his conditions of probation. We use an abuse of discretion standard to review the juvenile court's imposition of these conditions. (In re David C. (2020) 47 Cal.App.5th 657, 661.)

I. THE JUVENILE COURT DID NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE WHEN IT AUTHORIZED THE PROBATION DEPARTMENT TO OFFER COMMUNITY SERVICE TO APPELLANT.

The first disputed probation condition occurred when the juvenile court authorized the probation department to offer appellant up to 50 hours of community service, with a cumulative total of 10 days, "to work off any alleged probation violations." The court commented that any sanction could also include GPS monitoring.¹ The court stated, "I would anticipate if there's any significant violation of any term and condition of the grant of probation here, that [appellant] would be brought back to court for additional recommendations, which most likely would include substantial amount of time in custody." The court issued a written disposition order which imposed 50 hours of community service to be administered at the direction of the probation department.

In August 2020, appellant's current counsel sent a letter alerting the court that its oral disposition had not imposed community service but, instead, had authorized it "in case of a future probation violation only and not as an immediate condition of probation." In September 2020, the juvenile court issued an amended written disposition order which omitted a community service requirement. Instead, the amended order states: "Probationis authorized to offer [appellant] up to 50 hours of community service, or up to a cumulative total of 10 days on the community service work program as an option to work off alleged probation violations." It also ordered that appellant would remain on GPS for three months.

Appellant argues that the juvenile court violated his due process rights by improperly delegating its authority to the probation officer to decide if and when he is in violation of probation. He contends this violates the separation of powers doctrine, and this condition must be stricken. In contrast, respondent asserts that appellant has forfeited this claim in failing to raise it below. In the alternative, respondent maintains this claim fails on its merits because the juvenile court "essentially imposed the community service and GPS monitoring conditions on appellant . . . but left the probation department discretion over when (if ever) to utilize it." Respondent argues that this was a permissible delegation of authority.

We disagree with respondent that we should apply the forfeiture doctrine in this situation. In any event, we conclude that the court did not improperly delegate its authority.

A. We Decline to Find Forfeiture.

It is undisputed that appellant's counsel below did not object to the imposition of this probation condition. Generally, the failure to object to a probation condition at sentencing forfeits its later challenge. (People v. Welch (1993) 5 Cal.4th 228, 237.) However, exceptions exist when the challenge raises a question of pure law that can be resolved without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) We review such an issue de novo. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1345.)

The parties dispute whether appellant has forfeited this claim. We agree with appellant that this issue involves a pure question of law. We can resolve this claimwithout referring to any disputed facts. Accordingly, we decline to find forfeiture in this situation and we will address the merits.

B. The juvenile court properly delegated its authority.

Under the separation of powers doctrine, executive or administrative officers cannot exercise or interfere with judicial powers. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1235.) However, a nonjudicial officer may be authorized to perform quasi-judicial powers to determine facts and exercise discretion. (Id. at p. 1236.) A court may delegate its authority to a nonjudicial officer so long as (1) it is incidental or subsidiary to a function or power otherwise properly exercised by the court and (2) the court retains ultimate control over it, such as through court review. (Ibid.)

Although a juvenile court may not delegate its judicial discretion to the probation department, probation can be authorized to determine how best to implement the details of a particular condition. (In re Victor L. (2010) 182 Cal.App.4th 902, 919 (Victor L.); In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372-1373.) As such, it is generally permissible for a juvenile court to delegate to a probation officer or social worker the time, place and manner of compliance for an imposed probation condition, such as visitation.² (See In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374; In re Danielle W., supra, 207 Cal.App.3d at p. 1237.) On the other hand, a juvenile court may not delegate to a probation officer the authority to decide if and...