DJJ Disposition DJJ Disposition AdvocacyAdvocacy

a primer for the juvenile a primer for the juvenile defenderdefender

Jonathan LabaJonathan LabaContra Costa County Public Contra Costa County Public

Defender’s OfficeDefender’s Office

April 2006April 2006

Components of this Components of this PresentationPresentation

Legal principles governing a DJJ Legal principles governing a DJJ commitmentcommitment

Current conditions at DJJ / overview Current conditions at DJJ / overview of Farrell v. Hickman lawsuitof Farrell v. Hickman lawsuit

Pre-hearing preparationPre-hearing preparation Handling the disposition hearingHandling the disposition hearing

Theme: Approach the Theme: Approach the Hearing Hearing

Like a Three-Strikes Like a Three-Strikes SentencingSentencing The most important disposition The most important disposition

hearing your young client has ever hearing your young client has ever hadhad

Years of his / her life are at stakeYears of his / her life are at stake Separation from friends and familySeparation from friends and family Potential for victimizationPotential for victimization Likely transformation into a more Likely transformation into a more

sophisticated or more mentally ill sophisticated or more mentally ill offenderoffender

LEGAL PRINCIPLESLEGAL PRINCIPLES

What is the DJJ?What is the DJJ?

The entire California corrections system The entire California corrections system was reorganized effective July 1, 2005was reorganized effective July 1, 2005

The California Youth Authority was The California Youth Authority was renamed the Division of Juvenile Justice renamed the Division of Juvenile Justice (DJJ) of the California Department of (DJJ) of the California Department of Corrections and Rehabilitation (CDCR)Corrections and Rehabilitation (CDCR)

DJJ currently houses about 3,000 of DJJ currently houses about 3,000 of California’s most serious juvenile California’s most serious juvenile offendersoffenders

Disposition FactorsDisposition Factors

In determining the appropriate disposition, the In determining the appropriate disposition, the juvenile court is expressly required to consider, juvenile court is expressly required to consider, in addition to other relevant and material in addition to other relevant and material evidence:evidence:

1)1) The minor’s age;The minor’s age;2)2) The circumstances and gravity of the The circumstances and gravity of the offense committed by the minor; andoffense committed by the minor; and3)3) The minor’s previous delinquent history.The minor’s previous delinquent history.

W&I § 725.5W&I § 725.5In re Tyrone O.In re Tyrone O. (1989) 209 Cal.App.3d 145, 152. (1989) 209 Cal.App.3d 145, 152.

Court Must Find “Probable Court Must Find “Probable Benefit”Benefit”

No ward of the juvenile court shall be No ward of the juvenile court shall be committed to the Youth Authority unless the committed to the Youth Authority unless the judge of the court is fully satisfied that the judge of the court is fully satisfied that the mental and physical condition and mental and physical condition and qualifications of the ward are such to render qualifications of the ward are such to render it probable that he will be benefited by the it probable that he will be benefited by the reformatory, educational, discipline or other reformatory, educational, discipline or other treatment provided by the Youth Authority.treatment provided by the Youth Authority.

W&I § 734; W&I § 734; In re John H.In re John H. (1978) 21 Cal.3d (1978) 21 Cal.3d 18, 22.18, 22.

Less Restrictive Less Restrictive Alternatives Must Be Alternatives Must Be

Ineffective or InappropriateIneffective or Inappropriate

To support a CYA commitment, the record must show that the minor will probably benefit from CYA and that less restrictive alternatives would be ineffective or inappropriate.

In Re Teofilio A. (1989) 210 Cal.App.3d 571, 576.

Court Not Required to Court Not Required to Attempt Attempt

Less Restrictive Less Restrictive AlternativesAlternatives The juvenile court can send a minor to CYA The juvenile court can send a minor to CYA

without first attempting less restrictive without first attempting less restrictive alternatives. alternatives. In re John H.In re John H. (1978) 21 Cal.App.3d (1978) 21 Cal.App.3d 18, 27; 18, 27; In re Martin L.In re Martin L. (1986) 187 Cal.App.3d (1986) 187 Cal.App.3d 534.534.

The juvenile court can send a minor to CYA for a The juvenile court can send a minor to CYA for a first offense. first offense. In re Gerardo B.In re Gerardo B. (1989) 207 (1989) 207 Cal.App.3d 1252; Cal.App.3d 1252; In re Asean D.In re Asean D. (1993) 14 (1993) 14 Cal.App.4th 467.Cal.App.4th 467.

The juvenile court can send a minor to CYA even The juvenile court can send a minor to CYA even if less restrictive local alternatives are available, if less restrictive local alternatives are available, and even if probation recommends a less and even if probation recommends a less restrictive placement. restrictive placement. In re John H.In re John H. (1978) 21 (1978) 21 Cal.App.3d 18, 27; Cal.App.3d 18, 27; In re Martin L.In re Martin L. (1986) 187 (1986) 187 Cal.App.3d 534, 544.Cal.App.3d 534, 544.

Less Restrictive Less Restrictive AlternativesAlternatives

Must Be ConsideredMust Be ConsideredAlthough all less restrictive dispositions Although all less restrictive dispositions need not be tried before a commitment to need not be tried before a commitment to the youth authority is ordered, there must the youth authority is ordered, there must be substantial evidence in the record be substantial evidence in the record showing that less restrictive options were showing that less restrictive options were properly considered and rejected.properly considered and rejected.

In re Teofilio A.In re Teofilio A. (1989) 210 Cal.App.3d (1989) 210 Cal.App.3d 571, 577-78.571, 577-78.

Punishment as Punishment as RehabilitationRehabilitation

Punishment can be used as a Punishment can be used as a rehabilitative tool (W&I § 202); butrehabilitative tool (W&I § 202); but

A commitment to the DJJ cannot be A commitment to the DJJ cannot be made solely on grounds of made solely on grounds of retribution.retribution.

In re Michael D.In re Michael D. (1987) 188 (1987) 188 Cal.App.3d 1392, 1396.Cal.App.3d 1392, 1396.

It’s Hard to Win on It’s Hard to Win on AppealAppeal

Standard of review is abuse of discretionStandard of review is abuse of discretion Appellate court will make all reasonable Appellate court will make all reasonable

inferences in favor of the DJJ inferences in favor of the DJJ commitmentcommitment

An abuse of discretion may be found An abuse of discretion may be found when there is no substantial evidence to when there is no substantial evidence to support a finding of probable benefit to support a finding of probable benefit to the minor. the minor. In re Teofilio A.In re Teofilio A. (1989) 210 (1989) 210 Cal.App.3d 571, 576. Cal.App.3d 571, 576.

CURRENT CURRENT CONDITIONSCONDITIONS

andandFARRELL v. HICKMAN FARRELL v. HICKMAN

LITIGATIONLITIGATION

DJJ Current FactsDJJ Current Facts April 2006 population: approximately 2,900April 2006 population: approximately 2,900 Institutional population in 2000: 7,300Institutional population in 2000: 7,300 Average length of stay for first commitments: 33 Average length of stay for first commitments: 33

months (2004) – almost triple the national averagemonths (2004) – almost triple the national average DJJ budget: Projected $457MM for FY 06-07 DJJ budget: Projected $457MM for FY 06-07 Institutional cost per ward per year: $125,000 -- Institutional cost per ward per year: $125,000 --

150,000+ (projected) (has more than tripled 150,000+ (projected) (has more than tripled during past ten years)during past ten years)

County share: Depends on offender classification; County share: Depends on offender classification; ranges from $176 / mo. (Levels I – IV) to $3000 / ranges from $176 / mo. (Levels I – IV) to $3000 / mo. (Level VII)mo. (Level VII)

Recidivism rate: 70-90%, depending on measureRecidivism rate: 70-90%, depending on measure

Contra Costa Contra Costa CommitmentsCommitments

As of November 2005, there were 102 As of November 2005, there were 102 wards at CYA that were committed wards at CYA that were committed from Contra Costa Countyfrom Contra Costa County

There were 23 new commitments There were 23 new commitments from the county between January and from the county between January and November 2005November 2005

More than half of those were lower-More than half of those were lower-level offenders (ten Category Five; level offenders (ten Category Five; two Category Six)two Category Six)

The Farrell v. Hickman The Farrell v. Hickman LitigationLitigation

Taxpayer lawsuit Taxpayer lawsuit Farrell v. HarperFarrell v. Harper filed filed January 2003 in Alameda County Superior January 2003 in Alameda County Superior Court by Prison Law Office and several Court by Prison Law Office and several leading law firmsleading law firms

CYA and AG decided not to fight the caseCYA and AG decided not to fight the case Parties agreed to jointly designate experts Parties agreed to jointly designate experts

to prepare reports in six areas:to prepare reports in six areas: General corrections / ward safety General corrections / ward safety Mental health and substance abuseMental health and substance abuse EducationEducation Medical careMedical care Sex offender programsSex offender programs Wards with disabilitiesWards with disabilities

Expert Reports Issued Expert Reports Issued January / February 2004January / February 2004

Describe a system rife with abusive practices and Describe a system rife with abusive practices and unsafe conditionsunsafe conditions

Large, prison-like institutions and large living units Large, prison-like institutions and large living units the poorest model for rehabilitationthe poorest model for rehabilitation

Entrenched gang cultureEntrenched gang culture Absence of programs and little to occupy timeAbsence of programs and little to occupy time Youth with mental health issues go untreated and Youth with mental health issues go untreated and

often emerge with exacerbated mental illnessoften emerge with exacerbated mental illness Critical shortage of teachers and frequent class Critical shortage of teachers and frequent class

cancellationscancellations Inaccessible and poorly delivered medical careInaccessible and poorly delivered medical care Poor sexual offender programs with extended Poor sexual offender programs with extended

waiting listswaiting lists

Consent DecreeConsent Decree

Consent decree signed November Consent decree signed November 20042004

Parties (including CYA and Attorney Parties (including CYA and Attorney General) agreed “the facts and General) agreed “the facts and opinions contained in the reports are opinions contained in the reports are substantially correct”substantially correct”

Called for development of remedial Called for development of remedial plans in each of the six areas with a plans in each of the six areas with a specific timetable for issuancespecific timetable for issuance

January 2005 StipulationJanuary 2005 Stipulation

CYA commits to reforming California’s CYA commits to reforming California’s juvenile system to a rehabilitative model juvenile system to a rehabilitative model based on a therapeutic environmentbased on a therapeutic environment

Parties agree to new schedule for issuance Parties agree to new schedule for issuance of remedial plans throughout 2005of remedial plans throughout 2005

Centerpiece Ward Safety and Welfare Plan Centerpiece Ward Safety and Welfare Plan to be issued November 2005to be issued November 2005

Several interim steps are mandated, such Several interim steps are mandated, such as reduction of lockdowns and expansion of as reduction of lockdowns and expansion of open programmingopen programming

Inspector General AuditsInspector General Audits Office of the California Inspector General Office of the California Inspector General

charged with investigating and auditing charged with investigating and auditing the state’s juvenile and adult correctional the state’s juvenile and adult correctional systemsystem

Issued in January 2005 the Issued in January 2005 the Accountability Accountability Audit: Review of Audits of the California Audit: Review of Audits of the California Youth Authority 2000-2003Youth Authority 2000-2003

Issued in May 2005 the Issued in May 2005 the Management Management Review Audit of the N.A. Chaderjian Youth Review Audit of the N.A. Chaderjian Youth Correctional FacilityCorrectional Facility (“Chad”) (“Chad”)

Reports echoed the harsh criticisms of DJJ Reports echoed the harsh criticisms of DJJ by the by the FarrellFarrell experts experts

December 2005 December 2005 StipulationStipulation

Draft Safety and Welfare Plan issued Draft Safety and Welfare Plan issued by DJJ November 2005by DJJ November 2005

Rejected by plaintiffs as lacking Rejected by plaintiffs as lacking necessary detail and timetablesnecessary detail and timetables

Recognizing the inadequacy of the Recognizing the inadequacy of the draft Safety and Welfare Plan, the draft Safety and Welfare Plan, the parties agree to hire five nationally parties agree to hire five nationally recognized experts to redevelop the recognized experts to redevelop the Safety and Welfare Remedial Plan by Safety and Welfare Remedial Plan by March 2006March 2006

Remedial PlansRemedial Plans The plaintiffs in The plaintiffs in FarrellFarrell have accepted the have accepted the

remedial plans in the following areas:remedial plans in the following areas: Medical CareMedical Care EducationEducation Sexual BehaviorSexual Behavior DisabilitiesDisabilities

Rejected the Mental Health and Ward Rejected the Mental Health and Ward Safety and Welfare remedial plansSafety and Welfare remedial plans

New Ward Safety and Welfare Plan issued New Ward Safety and Welfare Plan issued March 2006March 2006

New Mental Health plan due May 2006New Mental Health plan due May 2006

March 2006: Planning March 2006: Planning Experts IssueExperts Issue

Revised Safety and Welfare Revised Safety and Welfare PlanPlan

Comprehensive and well doneComprehensive and well done Excellent language you can use in Excellent language you can use in

your disposition hearingsyour disposition hearings ““It is not just reform that is needed. It is not just reform that is needed.

Everything needs to be fixed.” Everything needs to be fixed.” “…“…[T]his is not a system that needs [T]his is not a system that needs

tinkering around the edges; this is a tinkering around the edges; this is a system that is broken almost everywhere system that is broken almost everywhere you look.”you look.”

Safety and Welfare Plan Safety and Welfare Plan HighlightsHighlights

A system with:A system with: High levels of violence and fear; unsafe for wards and staffHigh levels of violence and fear; unsafe for wards and staff Antiquated facilities unsuited for any missionAntiquated facilities unsuited for any mission An adult corrections mentality with an adult/juvenile mixAn adult corrections mentality with an adult/juvenile mix Frequent lockdowns to manage violenceFrequent lockdowns to manage violence Time adds for infractions adding 8+ months to lengths of Time adds for infractions adding 8+ months to lengths of

staystay Hours on end when many youths have nothing to doHours on end when many youths have nothing to do Capitulation to gang culture with youths housed by gang Capitulation to gang culture with youths housed by gang

affiliationaffiliation Abysmal achievement despite enormous outlays for Abysmal achievement despite enormous outlays for

educationeducation Little partnership with counties; poor re-entry planning Little partnership with counties; poor re-entry planning

and parole servicesand parole services Enormous costs with little to show for itEnormous costs with little to show for it

March 2006:March 2006:Special Master Report Special Master Report

IssuedIssued Process of reform still in its beginning phasesProcess of reform still in its beginning phases DJJ is “beset by urgent systemic problems”DJJ is “beset by urgent systemic problems” Constant and pervasive violence that is Constant and pervasive violence that is

“‘stunning,”’ just as Dr. Barry Krisberg (one “‘stunning,”’ just as Dr. Barry Krisberg (one of the of the FarrellFarrell experts) found in 2003 experts) found in 2003

High level of violence stems from High level of violence stems from overpopulation in housing units, inadequate overpopulation in housing units, inadequate staff to youth ratios, insufficient programs to staff to youth ratios, insufficient programs to occupy youth, insufficient resources to meet occupy youth, insufficient resources to meet youths’ individual treatment and youths’ individual treatment and rehabilitation needs and insufficient capacity rehabilitation needs and insufficient capacity to monitor conditions and practices at the to monitor conditions and practices at the facility levelfacility level

SummarySummary DJJ has been a disaster for a long timeDJJ has been a disaster for a long time DJJ is STILL a disasterDJJ is STILL a disaster Very little progress made to date in reforming Very little progress made to date in reforming

systemsystem Many of the proposed changes will require Many of the proposed changes will require

substantial appropriation of funds by the substantial appropriation of funds by the LegislatureLegislature

Some recent facility-specific improvements in Some recent facility-specific improvements in safety due to decrease in populationsafety due to decrease in population

No reform of treatment programsNo reform of treatment programs ThemeTheme: Even if funded, most of the changes will : Even if funded, most of the changes will

take years to fully implement and will not benefit take years to fully implement and will not benefit your client currently facing a DJJ commitmentyour client currently facing a DJJ commitment

CONTESTING A DJJ CONTESTING A DJJ RECOMMENDATIORECOMMENDATIO

NN

Pre-Hearing PreparationPre-Hearing Preparation

Handling the Contested Handling the Contested HearingHearing

PART I:PART I:

PRE-HEARING PRE-HEARING PREPARATIONPREPARATION

Pre-Hearing PreparationPre-Hearing Preparation

Discussing case with colleagues / supervisorDiscussing case with colleagues / supervisor Collecting documents and recordsCollecting documents and records Interacting with probation officerInteracting with probation officer Consulting with experts (e.g., DJJ expert, Consulting with experts (e.g., DJJ expert,

mental health or sex offender expert)mental health or sex offender expert) Identifying witnesses and evidence for the Identifying witnesses and evidence for the

hearinghearing Identifying an appropriate alternative Identifying an appropriate alternative

dispositiondisposition Preparing a sentencing memorandum and Preparing a sentencing memorandum and

motionsmotions

Scheduling and Time Scheduling and Time WaiversWaivers

Take your time preparing the case, but Take your time preparing the case, but remember that none of this time will apply to remember that none of this time will apply to your client’s time to paroleyour client’s time to parole

Initially set the case for a TNW dispo so you Initially set the case for a TNW dispo so you can get the probation report in timely fashioncan get the probation report in timely fashion

Flag for the court that you will likely request Flag for the court that you will likely request additional time if probation recommends DJJadditional time if probation recommends DJJ

Tell probation to contact you if they wish for Tell probation to contact you if they wish for additional time to prepare the report or to additional time to prepare the report or to screen with placementsscreen with placements

Before you invest a lot of Before you invest a lot of time . . .time . . .

Discuss case with supervisor and Discuss case with supervisor and colleaguescolleagues

Consider asking to discuss case in Consider asking to discuss case in chambers with judge to see if court chambers with judge to see if court is truly considering DJJis truly considering DJJ

Collecting Documents and Collecting Documents and RecordsRecords

Letters from family, friends, teachers, Letters from family, friends, teachers, church leaders, others in the communitychurch leaders, others in the community

Dependency recordsDependency records Education records / IEPsEducation records / IEPs Psychiatric and other treatment recordsPsychiatric and other treatment records Medical recordsMedical records Prior probation reports and placement Prior probation reports and placement

recordsrecords Other good stuff (report cards, artwork, Other good stuff (report cards, artwork,

athletic awards, etc.)athletic awards, etc.) Review probation file(s) and Juvenile Hall Review probation file(s) and Juvenile Hall

adjustment records / incident reportsadjustment records / incident reports

Dealing with ProbationDealing with Probation Try to impact the process Try to impact the process beforebefore the the

probation report is writtenprobation report is written Demand that your client be screened with Demand that your client be screened with

actual placements, not just the Placement actual placements, not just the Placement Screening CommitteeScreening Committee

Ensure that helpful information is Ensure that helpful information is communicated to the p.o. so they are communicated to the p.o. so they are obligated to put it in the reportobligated to put it in the report

Communicate your version of the factsCommunicate your version of the facts Have p.o. attach relevant documents to the Have p.o. attach relevant documents to the

probation reportprobation report Talk to their supervisor or the probation Talk to their supervisor or the probation

managermanager

Prepping Your Client to Prepping Your Client to Talk to P.O.Talk to P.O.

Educate client about the placement Educate client about the placement screening processscreening process

If case involved a plea, make sure If case involved a plea, make sure client is prepared to admit the offense client is prepared to admit the offense and acknowledge responsibilityand acknowledge responsibility

If client FG at trial, need to strategize If client FG at trial, need to strategize whether client should speak to whether client should speak to probation at allprobation at all

Help client write a letter to the judgeHelp client write a letter to the judge

An Overview of Placement An Overview of Placement ScreeningScreening

Placement screening committeePlacement screening committee: Several : Several members from probation (placement members from probation (placement supervisor, another placement p.o., the supervisor, another placement p.o., the p.o. writing the dispo); mental health p.o. writing the dispo); mental health representative; public health nurse; othersrepresentative; public health nurse; others

It’s a Star Chamber!It’s a Star Chamber! Our inarticulate clients are questioned Our inarticulate clients are questioned

about the offense, whether they are about the offense, whether they are remorseful, their future plans, etc.remorseful, their future plans, etc.

Demand any summaries of the offense and Demand any summaries of the offense and offender given to the screening committee offender given to the screening committee and any notes generated by the committeeand any notes generated by the committee

Review the Probation Review the Probation ReportReport

Probation report is due 48 hours prior to Probation report is due 48 hours prior to dispodispo

Must carefully review the probation report Must carefully review the probation report for accuracy and completenessfor accuracy and completeness

Common errors:Common errors: Facts parroted from police reports when you did a Facts parroted from police reports when you did a

trial or the D.A. may stipulate otherwisetrial or the D.A. may stipulate otherwise Failure to include your client’s positive activities Failure to include your client’s positive activities

and achievementsand achievements Misrepresentation of client’s statements to p.o.Misrepresentation of client’s statements to p.o. Incorrect parole / offender classificationIncorrect parole / offender classification

Offender ClassificationOffender Classification If sentenced to the DJJ, client will receive an initial If sentenced to the DJJ, client will receive an initial

parole date based on the classification of the parole date based on the classification of the offenseoffense

Classification levels:Classification levels: Level 1Level 1 – 7 years to parole (murder, kidnapping with – 7 years to parole (murder, kidnapping with

substantial injury [“SI”])substantial injury [“SI”]) Level 2Level 2 – 4 years to parole (vol. manslaughter, 288) – 4 years to parole (vol. manslaughter, 288) Level 3Level 3 – 3 years to parole (rape, 211 w/ SI and weapon) – 3 years to parole (rape, 211 w/ SI and weapon) Level 4Level 4 – 2 years to parole (211 w/ SI or weapon, 245 w/ – 2 years to parole (211 w/ SI or weapon, 245 w/

SI, sale or poss. for sale of drugs, burglary w/ weapon or SI, sale or poss. for sale of drugs, burglary w/ weapon or SI)SI)

Level 5Level 5 – 18 months to parole (245, 211, 487(c), 460(a)) – 18 months to parole (245, 211, 487(c), 460(a)) Level 6Level 6 – one year to parole (all unenumerated felonies) – one year to parole (all unenumerated felonies) Level 7Level 7 – less than one year to parole (misdemeanors) – less than one year to parole (misdemeanors)

Consider Hiring an Consider Hiring an ExpertExpert

Sex offender treatment expertsSex offender treatment experts A Step Forward (Art Paull, Dr. Tia A Step Forward (Art Paull, Dr. Tia

Halpern)Halpern) Crossroads (Dr. Larry Wornian)Crossroads (Dr. Larry Wornian)

Other mental health expertsOther mental health experts DJJ expertDJJ expert

Dan Macallair, Center on Juvenile and Dan Macallair, Center on Juvenile and Criminal JusticeCriminal Justice

Sandra Tellers, California Justice CoalitionSandra Tellers, California Justice Coalition

Consult with a DJJ ExpertConsult with a DJJ Expert Decide if you want them to do a case workup / Decide if you want them to do a case workup /

alternative dispo report or if you want them to alternative dispo report or if you want them to simply testify about poor conditions at the DJJsimply testify about poor conditions at the DJJ

If they will do a case workup, provide them If they will do a case workup, provide them with all relevant materials as soon as possible with all relevant materials as soon as possible (police reports, probation reports, education, (police reports, probation reports, education, medical and mental health records, letters, medical and mental health records, letters, etc.)etc.)

If they will be interviewing client, prepare If they will be interviewing client, prepare confidential authorization letter and fax to confidential authorization letter and fax to juvenile halljuvenile hall

Engage them as early as possibleEngage them as early as possible

Develop Alternatives to Develop Alternatives to the DJJthe DJJ

Contact placements directly or have Contact placements directly or have your expert contact the placements your expert contact the placements (or send a packet)(or send a packet)

Some placements reluctant to screen Some placements reluctant to screen clients for us because concerned clients for us because concerned about probation repercussionsabout probation repercussions

If probation claims your client was If probation claims your client was rejected by the placement, you may rejected by the placement, you may wish to speak to the facility yourselfwish to speak to the facility yourself

Prepare Motions for the Prepare Motions for the HearingHearing

Motion to strike irrelevant / unsubstantiated Motion to strike irrelevant / unsubstantiated portions of probation report (e.g., unsupported portions of probation report (e.g., unsupported gang info):gang info):

Due Process Clause precludes court from considering facts Due Process Clause precludes court from considering facts at a sentencing hearing that have not been proven by a at a sentencing hearing that have not been proven by a preponderance of the evidence.preponderance of the evidence.United States v. WattsUnited States v. Watts (1997) 519 U.S. 148, 156-57 (1997) 519 U.S. 148, 156-57

Presentence reports must be founded on accurate and Presentence reports must be founded on accurate and reliable information; court does not have “unbridled judicial reliable information; court does not have “unbridled judicial discretion” to consider any evidence contained in a probation discretion” to consider any evidence contained in a probation report.report.People v. Chi Ko WongPeople v. Chi Ko Wong (1976) 18 Cal.3d 698, 719 (overruled (1976) 18 Cal.3d 698, 719 (overruled on other grounds in on other grounds in People v. GreenPeople v. Green (1980) 27 Cal.3d 1) (1980) 27 Cal.3d 1)

Can make the motion to strike in your sentencing briefCan make the motion to strike in your sentencing brief

Prepare Motions for the Prepare Motions for the HearingHearing

Motion for judicial notice of expert reportsMotion for judicial notice of expert reports All the judges in this county will deny itAll the judges in this county will deny it Making the request allows for marking of Making the request allows for marking of

expert reports for appellate purposesexpert reports for appellate purposes Judge may say they are denying notice but Judge may say they are denying notice but

have read and considered the reportshave read and considered the reports Appellate court will not grant judicial notice if Appellate court will not grant judicial notice if

request not made in the trial courtrequest not made in the trial court Joinder motion when other agencies fail in Joinder motion when other agencies fail in

their duties (W&I §727(a)) – but court their duties (W&I §727(a)) – but court cannot impose joinder if client committed cannot impose joinder if client committed to DJJto DJJ

Prepare a Sentencing Prepare a Sentencing MemorandumMemorandum

File a sentencing brief in File a sentencing brief in every caseevery case where DJJ is realistically on the tablewhere DJJ is realistically on the table

Personalize your clientPersonalize your client Force judge to consider information Force judge to consider information

that probation will ignorethat probation will ignore Narrate Narrate youryour version of the facts version of the facts Argue 731(b) factors in aggravation Argue 731(b) factors in aggravation

and mitigationand mitigation Attach relevant documents to the briefAttach relevant documents to the brief

PART II:PART II:

HANDLING THE HANDLING THE CONTESTED CONTESTED

HEARINGHEARING

Handling the ContestHandling the Contest

TOPICSTOPICS:: Preparing the clientPreparing the client Presenting letters, records, and other Presenting letters, records, and other

documentary evidencedocumentary evidence Striking and correcting portions of the Striking and correcting portions of the

probation reportprobation report Putting the probation officer on the standPutting the probation officer on the stand Making a record of current conditions at Making a record of current conditions at

DJJ (judicial notice of reports; presenting DJJ (judicial notice of reports; presenting expert)expert)

Presenting character witnesses and familyPresenting character witnesses and family Argument (incl. dispo and 731(b) issues)Argument (incl. dispo and 731(b) issues)

Prep the Client for the Prep the Client for the HearingHearing

Educate client about what will occurEducate client about what will occur If client wishes to address the court, If client wishes to address the court,

have him prepare a written have him prepare a written statement he can readstatement he can read

First Move: Ask for Your First Move: Ask for Your Client Client

To Be UnshackledTo Be Unshackled You know the case will be appealed if you You know the case will be appealed if you

lose – so make the record re shacklinglose – so make the record re shackling Make the request at every court Make the request at every court

appearance, not just the dispo hearingappearance, not just the dispo hearing Don’t just ask – cite the cases:Don’t just ask – cite the cases:

Deck v. MissouriDeck v. Missouri (2005) 125 S.Ct. 2007 (2005) 125 S.Ct. 2007 People v. FierroPeople v. Fierro (1991) 1 Cal.4th 173, 218-20 (1991) 1 Cal.4th 173, 218-20 People v. DuranPeople v. Duran (1976) 16 Cal.3d 282, 290-91 (1976) 16 Cal.3d 282, 290-91 United States v. HowardUnited States v. Howard (9 (9thth Cir. 2005) 429 Cir. 2005) 429

F.3d 843F.3d 843

Submitting Documentary Submitting Documentary EvidenceEvidence

You are building an appellate recordYou are building an appellate record Mark exhibits and move them into Mark exhibits and move them into

evidenceevidence Mark each of the expert reports for Mark each of the expert reports for

which you are requesting judicial which you are requesting judicial noticenotice

Mark letters and other documents Mark letters and other documents (can do some as group exhibits)(can do some as group exhibits)

Correcting and Modifying Correcting and Modifying the Probation Reportthe Probation Report

If probation officer has agreed to any If probation officer has agreed to any of the corrections, let the court knowof the corrections, let the court know

If the D.A. is agreeing to any If the D.A. is agreeing to any modifications of the facts, prepare a modifications of the facts, prepare a stipulation or a settled statement of stipulation or a settled statement of factsfacts

Make sure court rules on your motion Make sure court rules on your motion to strike unsubstantiated or to strike unsubstantiated or inaccurate portions of reportinaccurate portions of report

Examining the Probation Examining the Probation OfficerOfficer

You should put the p.o. on the stand You should put the p.o. on the stand unless there is a good tactical reason unless there is a good tactical reason for not doing sofor not doing so

Most p.o.’s know nothing about the DJJ; Most p.o.’s know nothing about the DJJ; allows you to highlight their ignoranceallows you to highlight their ignorance

Can use their testimony as opportunity Can use their testimony as opportunity to elicit helpful facts they did not put in to elicit helpful facts they did not put in the probation reportthe probation report

Grill them regarding their phone call to Grill them regarding their phone call to the DJJ Intake Unitthe DJJ Intake Unit

Motion for Judicial Notice Motion for Judicial Notice of Expert Reportsof Expert Reports

At a minimum, you should request judicial At a minimum, you should request judicial notice of the notice of the General Corrections ReviewGeneral Corrections Review (December 2003), the Consent Decree, and (December 2003), the Consent Decree, and the new the new Safety and Welfare PlanSafety and Welfare Plan (March (March 2006) and 2006) and First Report of Special MasterFirst Report of Special Master (March 2006)(March 2006)

Request notice of other appropriate reports Request notice of other appropriate reports depending on your client’s needs (e.g., sex depending on your client’s needs (e.g., sex offender report, mental health report)offender report, mental health report)

Remember to mark all the reports and Remember to mark all the reports and request they be moved into evidencerequest they be moved into evidence

Present DJJ ExpertPresent DJJ Expert Even if expert not doing a case workup, Even if expert not doing a case workup,

make sure they know something about your make sure they know something about your client and his / her caseclient and his / her case

Review with the expert the documents you Review with the expert the documents you want to discuss during their testimonywant to discuss during their testimony

Even if judicial notice has been denied, Even if judicial notice has been denied, calling the expert gives you another calling the expert gives you another opportunity to get the contents of the expert opportunity to get the contents of the expert reports into evidence because they are a reports into evidence because they are a basis for the experts’ opinionbasis for the experts’ opinion

Have expert testify as to current conditions Have expert testify as to current conditions and lack of programs and relate those and lack of programs and relate those conditions to your individual clientconditions to your individual client

Have Family, Friends, and Have Family, Friends, and OthersOthers

Address the CourtAddress the Court They don’t need to take the witness stand (and if They don’t need to take the witness stand (and if

they do, they are subject to cross examination)they do, they are subject to cross examination) Statements of family can be quite moving Statements of family can be quite moving

(although it rarely seems to have much effect on (although it rarely seems to have much effect on the dispo result)the dispo result)

See if any juvenile hall staff would speak See if any juvenile hall staff would speak favorably on behalf of clientfavorably on behalf of client

See if Reverend Tinsley has worked with your See if Reverend Tinsley has worked with your client, and if so, whether he would be willing to client, and if so, whether he would be willing to come to court and / or speak on your client’s come to court and / or speak on your client’s behalfbehalf

Arguing the Appropriate Arguing the Appropriate DispositionDisposition

Stand up!Stand up! Present an alternative if you have Present an alternative if you have

one (and consider arguing for one (and consider arguing for juvenile hall if no other alternative juvenile hall if no other alternative exists)exists)

Use passion and emotion – after all, Use passion and emotion – after all, your client’s life is at stakeyour client’s life is at stake

Requesting Findings and Requesting Findings and OrdersOrders

Factual findings re the caseFactual findings re the case Individual with exceptional Individual with exceptional

educational needs (for special educational needs (for special education clients)education clients)

Court request for client to get Court request for client to get certain programs (e.g., sex offender certain programs (e.g., sex offender programs) – DJJ not required to programs) – DJJ not required to follow but they consider itfollow but they consider it

Setting the Maximum Setting the Maximum Term of ConfinementTerm of Confinement

Court must set a maximum term of confinement based Court must set a maximum term of confinement based upon the “facts and circumstances of the matter or upon the “facts and circumstances of the matter or matters which brought or continued the minor under matters which brought or continued the minor under the jurisdiction of the juvenile court.” W&I 731(b).the jurisdiction of the juvenile court.” W&I 731(b).

Provides for court consideration of factors about the Provides for court consideration of factors about the offense and the offender’s history which would be offense and the offender’s history which would be comparable to those employed now for the triad comparable to those employed now for the triad sentencing of adults. sentencing of adults. In re Sean W.In re Sean W. (2005) 127 (2005) 127 Cal.App.4th 1177, 1185.Cal.App.4th 1177, 1185.

Court not limited to the felony sentencing triad for Court not limited to the felony sentencing triad for adults; the juvenile court is to consider the facts and adults; the juvenile court is to consider the facts and circumstances of the matter, rather than being circumstances of the matter, rather than being restricted solely to the criminal aggravating or restricted solely to the criminal aggravating or mitigating circumstance scheme. mitigating circumstance scheme. In re Carlos E.In re Carlos E. (2005) (2005) 127 Cal.App.4th 1529, 1542. 127 Cal.App.4th 1529, 1542.

Statutory Factors Statutory Factors Governing the MaxGoverning the Max

Rule 4.414 – criteria when evaluating Rule 4.414 – criteria when evaluating suitability for probation (can be quite suitability for probation (can be quite useful)useful)

Rule 4.421 – circumstances in Rule 4.421 – circumstances in aggravationaggravation

Rule 4.423 – circumstances in mitigationRule 4.423 – circumstances in mitigation

Be aggressive but reasonable with what Be aggressive but reasonable with what you ask foryou ask for

FINAL STEPS:FINAL STEPS:

WHAT TO DO WHEN WHAT TO DO WHEN YOU LOSEYOU LOSE

It’s Not Over YetIt’s Not Over Yet

We will continue to represent the client We will continue to represent the client pursuant to Rule 1479pursuant to Rule 1479

Get file in order for post-dispo attorneyGet file in order for post-dispo attorney Have client and family sign release formsHave client and family sign release forms Educate client and family about the Educate client and family about the

process going forwardprocess going forward Fill out CYA data form and give to Fill out CYA data form and give to

supervisorsupervisor FILE AN APPEAL, without exception!FILE AN APPEAL, without exception!

A Parting ThoughtA Parting Thought