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In re E.S.

March 10, 2009

IN RE E.S., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
E. S., DEFENDANT AND APPELLANT.



Trial Courts: Humboldt County Superior Court (Humboldt County Super. Ct. No. JV060084) Mendocino County Superior Court Trial Judges: Hon. Christopher G. Wilson Hon. Leonard LaCasse.

The opinion of the court was delivered by: Kline, P. J.

CERTIFIED FOR PUBLICATION

E.S. appeals from the judgment of the juvenile court sustaining a petition alleging that he comes within the provisions of section 602 of the Welfare and Institutions Code. His court-appointed counsel initially filed a brief raising no legal issues and asking this court to conduct an independent investigation of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]. After conducting that review, we issued an order requesting supplemental briefing on the issue whether the Humboldt County Superior Court erred in denying appellant's motion for a new jurisdictional hearing.

Concluding it was error to deny the motion for a new jurisdictional hearing, we shall reverse and remand for such a hearing.

FACTS AND PROCEEDINGS BELOW

On October 4, 2006, the District Attorney of Mendocino County filed a three-count petition pursuant to Welfare and Institutions Code section 602 alleging that two days earlier appellant attempted to commit a lewd and lascivious act with a child under the age of 14 (Pen. Code, §§ 664, 288, subd. (a)), and on the same day annoyed or molested and made a criminal threat against the same child (Pen. Code, §§ 647.6, subd. (a), 422). Eight days later, the district attorney amended the petition to additionally charge a second attempt to commit a lewd or lascivious act with the same underage child.

Appellant, who was 17 years of age at the time the petition was filed, is a Native American eligible for enrollment in the Yurok Tribe. He had been previously declared a ward of the court in 2004 as a result of his commission of misdemeanor vandalism and, thereafter, battery on school property and theft, both also misdemeanors. The two latter offenses violated terms of the probation appellant was placed on for the vandalism. Appellant was again placed on probation and ordered to participate in the New Horizons program. It was difficult to find a residential placement for appellant because he had been abandoned by his mother in 2002, and his father was confined in the Humboldt County Correctional Facility on charges of vehicle theft and evading the police. Child Protective Services (CPS) was unwilling to place appellant with his grandmother, because her adult son Randall and his four children lived with her, and CPS believed appellant's claim that he had been physically abused by Randall, who had a criminal record. In 2004, appellant was permitted to live with his aunt Sherry S. in Mendocino County. In June 2005, he absconded from that placement and was subsequently apprehended and detained in the Mendocino County Juvenile Hall on February 8, 2006. With court approval, appellant was released from the New Horizons program on August 18, 2006, in order to facilitate another trial relative foster placement with Sherry S. It was shortly after this second placement with Sherry S. that the district attorney filed the petition before us.

On October 25, 2006, the day before the jurisdictional hearing was scheduled to begin, appellant moved for a one-week continuance. In support of the motion, Deputy Public Defender Shane Hauschild filed a declaration stating that he had been informed by a relative of appellant that the alleged victim and her mother "may have made similar accusations of molestation in the past" and that this information may lead to "exculpatory" evidence. Defense counsel also filed a petition pursuant to Welfare and Institutions Code section 827 seeking permission to inspect juvenile court records maintained by CPS apparently relating to the minor victim and/or her mother. The court granted a one-week continuance, resetting the jurisdictional hearing for November 3, 2006.

On October 31 the court conducted a hearing regarding appellant's motion to inspect juvenile records held by CPS. A representative of the Mendocino Department of Social Services testified that she had reviewed the CPS records "but I d[on't] find anything that really addressed the [minor victim's] honesty, truthfulness, veracity, or credibility." Defense counsel then pressed the court to allow inspection of reports of suspected child abuse or allegations by others that the minor had been untruthful; that is, anything "that's clearly relevant to her credibility whether it has to do with child abuse [or] not." The juvenile court agreed to inspect in camera the juvenile records produced by the Department of Social Services.

The court conducted a hearing the next day at which it stated that the records produced by Social Services in response to appellant's motion to inspect revealed nothing warranting disclosure. According to the court, the records contain "some matters" regarding the victim but "nothing about any claims or allegations by the victim that she was molested which were either substantiated or not substantiated." The court ordered a copy of the records produced to "be put in a file and sealed, not to be opened [by county counsel] until further order of the Court so that they're part of the record in this case."*fn1

The Jurisdictional Hearing

The contested jurisdictional hearing held in the Mendocino Superior Court on November 3, 2006, was exceedingly brief. Four witnesses testified: the victim, T.S., who had just turned 10 years of age; her mother, Sherry S.; Mike Dygert, a detective with the Mendocino Sheriff's Department; and appellant.

T.S. testified that on the evening in question she was alone in her house with appellant, who was her nephew, and her two brothers, I.S and S.S, all of whom lived in the house together with her mother, who was at the time at her boyfriend's house. According to T.S., appellant came into her mother's room, where T.S. was then sleeping, awoke her by pulling down her sweatpants and, when they were down, asked her to suck his penis. After she began yelling for her mom and said she would tell what appellant had done, appellant assertedly told her "You better not tell anybody" or "else I'll hurt you." Appellant then stopped what he was doing and left. T.S. stated that appellant never took his clothes off and she never saw his "private parts," though he had put his hand under his belt. T.S. said she telephoned her mother, who returned home shortly and later called the police.

Sherry testified that appellant was related to her deceased husband and the nephew of her children, and she had known him since he was two years of age. She was aware he was on probation at the time she left him alone with her children, but knew him to be "[v]ery kind and gentle towards my kids" who "seemed to like his company" and she "had never seen him exhibit any behavior that would give [her] cause for concern." After she returned home and heard from T.S. what had happened, Sherry called Jason S., "an uncle-or brother of [T.S.], an older brother, and . . . an uncle of [appellant]," because she was worried and scared. Jason wasn't home but Sherry spoke with his wife, Arla S., "another sister of [T.S.]'s and an aunt to [appellant]." Arla said they would call back when Jason returned. A few minutes later, Arla called back and said "they were unwilling to get involved." Sherry then called the police. Sherry also testified that later, after the police left with appellant, she found a "bulky" black leather belt with a silver buckle in her bedroom. The belt belonged to her but appellant had borrowed it, because "he had some pants that were too big." Sherry said she had seen appellant in the house earlier that day with the belt.

On cross-examination Sherry said she did not call the police immediately after arriving home and hearing from her daughter what appellant had done because appellant was doing well in school and sports, and thereby turning his life around, and reporting him to the police might set him back. She was also "worried about the repercussions from the relatives because I didn't want to overreact." However, because child molestation was prevalent in her family, Sherry believed her daughter's accusation was truthful and called the police. Sherry testified that molestations had happened "not necessarily to me but to all my cousins, all my siblings, everybody I know. And I'm the only one of two people in my extended family of about three generations that I know wasn't molested as a child." When Sherry made this statement, defense counsel said "Okay. I don't have any more questions."

Officer Dygert testified simply that appellant had been asleep when he and another officer arrived at the residence in response to the call from Sherry. After talking to the victim and Sherry, he woke appellant up and arrested him. Because he was "groggy" Dygert did not interview appellant at the scene but took him to the police station. He did not recall whether appellant was wearing a belt at the time he was arrested or later at the police station. Although the officer's conduct was "accusatory," appellant was at no time belligerent or uncooperative. Officer Dygert was never asked and did not say what statements, if any, were made to him by appellant.

Appellant testified that at the time of the alleged offenses he had been living at Sherry's house for about six weeks. He was placed there by county officials after being found guilty of "fighting in school and getting caught at school with drugs," and was still on probation for those offenses, which occurred almost a year earlier. Appellant had good relations with all Sherry's children. He played football with her sons, and helped them with their homework and chores. Appellant stated that Sherry often left him alone with one of her sons, I.S., but except on one occasion she always took the other two children with her. On one occasion, however, Sherry asked him to watch all three children while she was away. Appellant told her he would only watch I.S. "[b]ecause [S.S.] was too young and him and his brother fight a lot," and he wouldn't watch the daughter "because I didn't feel, like, right around her." Appellant said that although he was sometimes "uncomfortable" around T.S., he "did not have any problems with her" on the day in question, during which she played happily with her brothers. Appellant attributed his feeling about T.S. to the fact that Sherry had told him that T.S. had been raped by one of his uncles. He stated that he was "disgusted" by this information and that "I just don't want to be one of those people because, you know, if I go to prison some day and this comes up, and I just hear a lot about them and stuff, you know."

When reminded of Sherry's testimony that at the time of the alleged offense he had been trying to "turn [his] life around" and asked why he was doing so, appellant replied: "I was tired of being locked up, and I just wanted to really change my life because I couldn't-I was just tired of being around walls. I felt like I was taking my father's footsteps. But after I completed my program, I was, like, really wanting to turn my life around. It was going [in] that direction. But then this crime came up." Appellant insisted that that charged molestation and threat never occurred. He testified that he went to bed about three minutes after Sherry left the house at 10:00 p.m., fell asleep almost immediately, and stayed asleep until he was "woken up by the cops." Appellant was sure he went to bed at about 10:03 because when Sherry got off the phone with her boyfriend and went to her room and left, he saw on his computer that it was ten o'clock "[a]nd then three minutes later I just jumped off and went to bed." When asked whether, as T.S. testified, he had a belt on at the time he molested her, appellant stated that he did not have a belt on at any time during the night in question or during that day. He was at all times wearing the blue pants in which he was sleeping when awoken by Officer Dygert. Appellant's testimony on direct examination ended with the following short colloquy:

"Q: Did you ever at anytime that night go into Sherry's bedroom [in which the victim claimed she was sleeping when the molestation occurred]?

"A: No, I did not. "[¶] . . .[¶]

Q: Did you ever talk to [the victim] that night?

"A: No, I did not.

"Q: And you never woke up that entire night?

"A: Never. The only time I woke up is for the cops."

On re-direct, appellant stated that he had a girlfriend his own age (17) with whom he was still "involved," and had dated other girls in the past, the youngest of whom was 16.

At the close of the jurisdictional hearing the court found appellant guilty beyond a reasonable doubt on one of the two alleged attempts to commit a lewd or lascivious act with a child under the age of 14 (Pen. Code, §§ 664, 288, subd. (a)) and on the charge that he annoyed or molested a minor (Pen. Code, § 647.6, subd. (a)). The prosecution thereupon dismissed the allegation of criminal threat. No finding was made with respect to the second alleged attempt to commit a lewd or lascivious act with the same victim.

The juvenile court's finding rested on the testimony of the victim. As the court stated: "I think fundamentally what it comes down to is whether the child is credible or not. And I've had the opportunity to observe her. I didn't see any signs that she was using language that was the obvious result of coaching. She's amazingly smart and was a little nervous, but did pretty good in coping with the whole situation. . . . I didn't see any signs that she wasn't truthful. And I think that I'm satisfied beyond a reasonable doubt that she did tell the truth and her testimony . . . clearly establishes that the elements are met. [¶] She was under 14, and she was touched . . . and it was with the intent to gratify the minor's sexual desires.

At the close of the jurisdictional hearing, the district attorney indicated there was reason to believe appellant was not then residing in Mendocino County but with his father in Humboldt County, and the court should therefore consider transferring the case to that county. (Welf. & Inst. Code, ยง 263.) On November 14, 2006, after the probation department had also recommended ...


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