Metropolitan News-Enterprise


Wednesday, January 10, 2018


Page 1


Court of Appeal:

Restraining Order in Juvenile Delinquency Case Required Notice and Hearing to Offender


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed a restraining order barring a juvenile offender from contacting his robbery victims for a period of two years because his defense lawyer was not informed that such an order would be sought until she walked into the courtroom for a trial setting conference.

The order was not only statutorily infirm but breached the constitutional due process rights of the minor, Jonathan V., Acting Justice Kerry R. Bensinger, a Los Angeles Superior Court judge sitting on assignment, said in an opinion for Div. Seven. Her opinion reverses an order by Los Angeles Superior Court Judge Morton Rochman.

The judge issued the order over the objection of his lawyer who argued that the youth “is entitled to an actual hearing before the court signs that order, and I would request that we set a hearing on that.”

Counsel’s Argument

She argued:

“I had no notice of it. The district attorney walks in with a serious restraining order which I have no notice of and asks the court to sign something. I think my client’s entitled to have his attorney be able to articulate and be prepared on this, and this is not something that is going to go away. These go into the [California Law Enforcement Telecommunication System (“CLETS”)]…and stay there forever. And the juvenile court has always been able to order my client to stay away as a condition of his release, stay away from the witnesses and victims, and I think that that’s appropriate.”

The deputy district attorney argued that under California Rules of Court, rule 5.630, no notice was necessary, and Rochman agreed.

The appeals court didn’t.

Code Section Cited

Under Welfare and Institutions Code §213.5, a “temporary restraining order” can be put into effect in a juvenile case, of a duration of up to 25 days, without notice, Bensinger wrote, but a “restraining order”—which can extend for as long as three years—may only be issued “upon notice and a hearing.”

The jurist noted that “[t]o the extent any part of rule 5.630 is read or interpreted to dispense with the requirements of section 213.5, the statute prevails.”

Bensinger declared:

“In addition to his statutory rights, Jonathan’s right to due process entitled him to advance notice of the People’s request for a two-year restraining order, plus a meaningful opportunity to present evidence in opposition to that request, before the court could issue the restraining order.”

Consequences of Order

She pointed out that the two-year restraining order presented the prospect of “substantial consequences” including new charges against Jonathan if he breached the order. Entry of it into CLETS, the judge noted, could be introduced as evidence in a future proceeding under the “official records” exception to the hearsay rule.

“As counsel stated repeatedly, such consequences raise the stakes and underscore the need for notice and an opportunity for counsel to prepare for the hearing,” Bensinger remarked.

The case is In re Jonathan V., B271319.

Courtney M. Selan represented Jonathan, under appointment by the Court of Appeal, and Deputy Attorneys General Shawn McGahey Webb and David W. Williams argued for the People.


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