Metropolitan News-Enterprise


Friday, December 18, 2009


Page 3


C.A.: No Fourth Amendment Waiver for Minor in Diversionary Program


By STEVEN M. ELLIS, Staff Writer


A juvenile court exceeded its authority when it ordered a minor facing drunk and drugged driving charges to relinquish his Fourth Amendment rights as a condition of a pre-plea diversionary program, the Fourth District Court of Appeal ruled yesterday.

Div. One said that the Legislature did not intend to force minors who are granted informal supervision without an admission of culpability to waive the right to be free of warrantless and random search and seizures by probation and police officers.

“Derick B.”—who was 17 in November 2008 when he allegedly drove under the influence of alcohol with a pipe that smelled of marijuana in the vehicle—challenged the condition after he sought informal suspension of charges under Welfare and Institutions Code Secs. 654 and 654.2.

The statutes essentially provide for a pre-plea diversion type program to keep minors out of the juvenile justice system and avoid true findings of criminal culpability.

Over the prosecution’s objection, San Diego Superior Court Judge Carolyn M. Ciaetti suspended the proceedings for six months of supervision in May. In addition to the waiver, she ordered Derick to complete 40 hours of community service and a youthful drunk driving program, attend a Mothers Against Drunk Driving victim impact panel and write a two-page essay on “Why I will never again drive under the influence.” She also ordered Derick’s mother to randomly test him for drugs each month.

Derick then sought a writ prohibiting the juvenile court from imposing the waiver condition. He argued that the plain language and stated philosophy and purpose of the statutes—when contested with other statutory provisions for juvenile offenders, such as Sec. 790, which provides for a post-plea diversion program and specifically mandates a waiver—showed the Legislature did not intend to grant such authority where the minor is placed on informal supervision without entering a plea.

In an opinion by Justice Richard D. Huffman, the Court of Appeal agreed and vacated the condition.

Huffman rejected the prosecution’s arguments that the waiver fell within the juvenile court’s broad discretion to impose reasonable conditions of probation on juveniles, and that the waiver was proper because it was not overly intrusive and it was tailored to meet the minor’s needs.

He wrote that the lack of inclusion of a waiver condition in statutory language defining the informal supervision program was “clearly reasonable in light of the difference in the status of the minor offenders to which the pre-plea diversionary program applies as well as that program’s stated purpose to divert minors away from the juvenile justice system before admission of guilt or a finding of jurisdiction and wardship.”

Adding that the Legislature could have included such waivers as a condition of informal suspension if it had chosen, Huffman noted that the Legislature did not do so when it enacted legislation with respect to diversionary type programs in 1982, 1989, 1990 and 2000.

Justices James A. McIntyre and Joan Irion joined Huffman in his opinion.

The case is Derick B. v. Superior Court (People), 09 S.O.S. 7079.


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