I’m packing up my juvenile office this week, moving back to trying adult felony cases. For eighteen months, I’ve been making the long commute through the rolling vineyards of Sonoma Valley to the Juvenile Justice Center. Tucked incongruously behind two swanky wineries (Ledson and St. Francis) are the juvenile hall, two courtrooms, and the juvenile branch offices of the public defender, district attorney and probation departments.
Within the first week at juvie, I was assigned the case* of a kid I’ll call Jamie, who had previously been placed on deferred entry of judgment (DEOJ), which is a special category of probation supervision available in California after a kid admits a first offense. On DEOJ, a minor has an opportunity to successfully complete one year of probation and have the case dismissed and all records sealed. This is about as close as it gets to going back to pre-arrest status, as if it never happened. Jamie had been working hard to complete counseling and community service; Jamie wanted that successful dismissal and record sealing.
However, Jamie faced a new petition to cancel DEOJ for giving a urine sample that tested positive for marijuana. But Jamie denied using marijuana and seemed baffled by the test; the parents concurred that they monitored Jamie closely and did not suspect any drug use. We decided to request an evidentiary hearing so I could ask the criminalist who did the urinalysis some questions about false positives, creatinine ratios and the failure to do a confirmatory test.
When we went to court to set the hearing for Jamie’s case, the judge announced, “a noncompliance petition has been filed, DEOJ is lifted, we’ll set sentencing in two weeks—“
“Wait,” I said, startled. “I object to the court setting sentencing. The violation hasn’t been proven. Jamie is denying the allegation and requesting an evidentiary hearing.”
“Denied! Set for sentencing! Read the statute!” The judge shouted. The next day, on the wall of the courtroom, there was a giant enlargement of the portion of the statute containing the phrase “must lift DEOJ.”
I read the statute (Welfare and Institutions code section 793) and the pertinent rules of court (Rules 5.800(h)(2) and 5.580.). Minors facing DEOJ termination had a right to an evidentiary hearing at which the violation had to be proven by a preponderance of the evidence, prior to the lifting of DEOJ and scheduling of the sentencing hearing. I filed a brief outlining the pertinent law.
Then I received a probation report that stated that Jamie had admitted the new violation in court.
“Why does it say it was admitted when it was actually denied?” I asked the probation officer.
“The court minutes say it was admitted,” he said.
“That can’t be,” I assured him. I checked the minutes. He was right.
“Why does it say it was admitted when it was actually denied?” I asked the court clerk.
“I can’t go to the next screen unless I check that box,” she replied. “I have to move to the next case. I have to move out of that screen to finish the minutes and go to the next case.”
“Can’t you just check that it was denied?” I asked.
“Not unless it’s set for hearing. If it’s set for sentencing, I have to check that it was admitted,” she explained.
Well, of course. Deep in this particular rabbit hole, it makes perfect sense that the computer program requires that denials become admissions, and that kids be sentenced for conduct that has been neither proven nor admitted.
On the date set to argue the motion I’d filed requesting an evidentiary hearing for Jamie, I stood ready at the front of the courtroom, with a stack of cases and statutes tabbed and highlighted in front of me. I was anticipating a showdown. Instead, the judge quickly and anticlimactically conceded that Jamie had a right to a hearing.
I won! I thought. I believed—naively even after all these years—that DEOJ violation cases would be handled differently going forward. I expected the kids to be asked if they admitted or denied the allegation, and whether they requested a hearing. I thought wrong. When the next DEOJ non-compliance petition came in, the judge lifted DEOJ and set sentencing. Over the course of a year, one judge routinely granted DEOJ non-compliance hearings and two refused. It became clear that I’d have to litigate the same issue over and over again, case by case.
A week ago, more than a year after I first started objecting to this truncated DEOJ violation procedure, I watched a private attorney request a hearing on a DEOJ non-compliance petition.
“Denied!” screamed the judge. In unison, the judge and the prosecutor and the probation officer pointed to the giant enlargement of the phrase on the wall “must lift DEOJ.”
“I’ve never seen anything like it,” the attorney marveled to me in the lobby ousted the courtroom. “From allegation straight to sentencing with no trial or hearing!”
“Speeds things up if you don’t require any evidence and cut out the opportunity to defend against the allegation,” I joked. He looked glum.“The law’s on your side on this,” I reassured him. “So if you file your brief and ignore everyone yelling at you and push for the hearing, you’ll probably get the hearing.”
This is the special insanity we face as defense attorneys. We push the same boulder up the same hill over and over like Sisyphus, in a system that too often prioritizes expediency over fairness.
*This “case” is not one actual case, but a composite of similar cases, with no actual names or case-specific confidential information revealed and several details changed to protect client confidentiality.