Metropolitan News-Enterprise


Thursday, November 4, 2021


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C.A. Affirms Order Denying Emergency Release of Juveniles

Panel Says Judge Did Not Err in Barring Testimony in Action Over Exposure of Detained Youths to COVID-19


By a MetNews Staff Writer


The Court of Appeal for this district yesterday upheld the denial of a writ of mandate sought by “All Youth Detained In Juvenile Halls and Camps in Los Angeles County” to compel the immediate release of certain categories of detained youths on the ground that they are not being adequately protected against COVID-19.

Div. Two, in an unpublished opinion by Justice Victoria M. Chavez, said that Los Angeles Superior Court Judge D. Brett Bianco did not err in declining to hold an evidentiary hearing, holding that declarations stuffed with hearsay did not raise triable issues of face.

Those declarations came from various persons including Cyn Yamashiro, directing attorney of the of the Los Angeles County Bar Association’s Independent Juvenile Defender Program; private attorney Jerod Gunsberg who receives court appointments in juvenile delinquency proceedings; and by Sean Kennedy, executive director of Loyola Law School’s Center for Juvenile Law and Policy. Kennedy was also attorney for the plaintiffs.

Chavez’s Opinion

Chavez explained:

“[A]ppellants did not present any admissible evidence regarding the conditions inside the juvenile facilities. Instead, they presented affidavits from the lawyers representing the juveniles, relaying what the juveniles told them about those conditions. ‘[H]earsay is not sufficient to trigger the court’s duty’ to convene an evidentiary hearing because, without competent evidence, there is no squarely presented factual dispute to resolve.”

The plaintiffs contended that the California Supreme Court directed that such a such a hearing be held. “It did not,” Chavez said.

The petition had been filed on April 15, 2020, in the Supreme Court which, on April 22, transferred the matter to the Court of Appeal, telling it to issue an order to show cause returnable before the Los Angeles Superior Court—which was the defendant in the case (on the theory that its Juvenile Division had not put adequate protections in place). The Superior Court was to address “whether juveniles detained in Los Angeles County juvenile facilities are being denied due process under the Fourteenth Amendment by being held in conditions that could subject them to contracting the COVID-19 virus and, if so, what remedies can be lawfully ordered.”

High Court Utterance

The justice cited the California Supreme Court’s 1995 opinion in People v. Duvall in which Chief Justice Malcolm Lucas, writing for the majority, said:

“Issuance of an OSC indicates the issuing court’s preliminary assessment that the petitioner would be entitled to relief if his factual allegations are proven.”

Chavez continued:

“It does not constitute [a determination] that any evidence submitted along with those allegations is admissible or that an evidentiary hearing is warranted; indeed, it is not possible to know whether there are any factual disputes justifying an evidentiary hearing when an OSC issues because the responding party has yet to respond (and hence to dispute any facts competently set forth in the evidence supporting the petition).”

Bianco’s Order

In his May 12, 2020 order denying relief, Bianco said:

“The issuance of an order to show cause afforded petitioners the opportunity to present additional evidence in support of the truth of the allegations in the petition….Rather than present specific facts and competent evidence in support of their allegations that conditions and enforcement were deficient, petitioners largely continued to rely on the general, hearsay statements offered in the Yamashiro and Kennedy declarations….[T]heir statements provided insufficient details surrounding clients who felt at risk or the circumstances of any particular facility’s failures.

“While the Court is troubled by the accounts raised by petitioners regarding the failure of County facilities to provide protective equipment and implement physical distancing protocols during the pendency of this petition, petitioners have not presented facts or evidence establishing a failure to act that rises to the level of a constitutional violation as to any individual juvenile, or as to the entire population of juveniles, detained in County facilities. This Court cannot assign significant weight to Yamashiro, Kennedy, or Gunsberg’s declarations which not only fail to provide competent evidence, but also fail to present basic facts regarding the Probation Department’s deficiency in safeguarding detainees against the COVID-19 pandemic.”

Other Considerations

Bianco observed in his order:

“At the hearing, petitioners argued that no safety measures undertaken by the County would be sufficient to survive a constitutional due process challenge because of the inherently unsafe conditions of detention and confinement. At the same time, petitioners acknowledged that every juvenile detainee could not. as a practical matter, be released from such facilities, and they do not pray for such relief. The incoherence of petitioners’ position highlights the difficulties facing all parties involved in maintaining the juvenile justice system and safeguarding juveniles detained in the County’s halls and camps against COVID-19 infection.

“In addition, the Court notes that it is unclear—and factually unexplored by the parties—whether release of juveniles would result in a reduced health risk due to COVED-19, particularly considering the high and rapidly increasing infection rates throughout the population of Los Angeles County, the unknown, diverse and. in many cases, unstable circumstances to which juveniles would likely be released and the effects of those circumstances on the health and safety of juveniles, and the improving safety protocols and availability of health care services within juvenile facilities.”

The case is All Youth Detained In Juvenile Halls and Camps in Los Angeles County v. Superior Court, B306642.

Rodney S. Diggs of the downtown Los Angeles firm of Ivie McNeill Wyatt Purcell & Diggs acted for the real party in interest, People of the State of California. There was no appearance for the Superior Court.


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