Opinion
D058140 Super. Ct. No. JCM212719
09-28-2011
In re LILIANA G., a Person Coming Under the Juvenile Court Law. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. LILIANA G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Reversed.
This appeal arises out of the juvenile court's true finding that Liliana G. violated probation by threatening a woman with a knife and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
From December 2005 to early 2010, Liliana was the subject of numerous juvenile delinquency proceedings for committing various offenses, including burglary and petty theft, possessing a switchblade knife, possessing drug paraphernalia, possessing stolen property, robbery and assault. During this same time, Liliana was also detained on numerous occasions for other violations of the terms of her probation, including missing school and leaving home without permission. In response to these violations, the court repeatedly placed Liliana on supervised probation and ordered her to participate in various residential and nonresidential treatment programs (including Breaking Cycles, the Reflections Day Center Program, the Teen Recovery Center and the Youthful Offender Unit program (YOU)).
In mid-2010, Liliana was detained and admitted using methamphetamine. The court committed her to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (the Department), but stayed the commitment to give her one last opportunity to succeed as an outpatient participant in YOU. However, in July 2010, Liliana was again detained for exhibiting a deadly weapon and making a criminal threat.
At the hearing on the charges, the arresting officer testified (over defense objection) that the victim told him that Liliana came with a group of others to the victim's house at approximately 3:45 p.m. on July 14; the victim said that as she approached an open front window, Liliana said "snitches get found in ditches" and swung a five-inch knife toward the window. The officer also testified that the victim's roommate independently reported seeing Liliana in the company of some males who had knives (although she did not see Liliana with one), that the roommate overheard Liliana yelling at the victim and that both women were upset as a result of the incident. Finally, he testified that the victim knew Liliana and identified Liliana as her assailant in a curbside line-up conducted shortly after the incident. In her defense, Liliana called an alibi witness (a former volunteer at Juvenile Hall) who testified that Liliana was with him at the time the offense occurred. Liliana also took the stand and gave similar testimony.
The court found by a preponderance of the evidence that Liliana had violated three conditions of her probation requiring her to comply with all applicable laws and prohibiting her from using force, threats or violence against another and from possessing a weapon, but found that the evidence did not substantiate allegations that she had violated her probation by associating with members of a street gang. In accordance with the probation officer's recommendation, the court lifted the stay of commitment to the Department and ordered Liliana committed for a maximum of six years.
Liliana appeals the resulting judgment. Her appellate counsel filed a brief indicating that she had been unable to identify any argument for reversal and asking that this court independently review the record for error as mandated by Wende. Pursuant to Anders v. California (1967) 386 U.S. 738, the brief identifies the following issues as possible, but not arguable, on appeal:
1. Did the court abuse its discretion by committing Liliana to the Department of Juvenile Justice?This court invited Liliana to file a supplemental brief on her own behalf, but she has not responded.
2. Was there sufficient evidence to support the juvenile court's finding that Liliana violated probation?
DISCUSSION
We have reviewed the record in accordance with Wende and, based thereon, requested that the parties brief the issue of whether the juvenile court erred in relying on the arresting officer's testimony regarding the victim and witness statements as a basis for finding that Liliana violated the conditions of her probation. In its responsive letter brief, the Office of the Attorney General correctly concedes that the court's reliance on the officer's testimony was improper and that the error cannot be characterized as harmless. (People v. Arreola (1994) 7 Cal.4th 1144, 1157-1160 [recognizing that reliable testimonial hearsay evidence may be admitted in a juvenile probation revocation hearing only where good cause exists therefor and that good cause requires that (1) the hearsay declarant be either unavailable or available through great difficulty or expense, or (2) the declarant's presence at the hearing would pose a risk of harm to the declarant]; Gagnon v. Scarpelli (1973) 411 U.S. 778, 786; see generally People v. Johnson (2004) 121 Cal.App.4th 1409, 1410-1413.) Based on these authorities, we reverse the order of the juvenile court and remand the matter for further proceedings consistent herewith.
DISPOSITION
The judgment is reversed.
O'ROURKE, J.
WE CONCUR:
MCCONNELL, P.J.
IRION, J.