People v. M.V.

Filed 5/5/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re M.V., a Person Coming Under the

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

M.V., A137348

Defendant and Appellant. (Alameda County

Super. Ct. No. OJ11018154)

M.V., a minor, appeals from an order of the juvenile court dismissing dependency

jurisdiction under Welfare and Institutions Code section 300,1 declaring her to be a ward

of the court pursuant to section 602, and placing her in out-of-home care. Specifically,

M.V. identifies numerous bases for error in the juvenile court’s decision under section

241.1 to make her a ward of the court rather than continuing her as a juvenile court

dependent. M.V. also advances several reasons why the negotiated plea agreement on

which her declaration of wardship was based should be set aside. We affirm.

I. BACKGROUND

On October 22, 2012, the Alameda County District Attorney’s Office (District

Attorney) filed a wardship petition pursuant to section 602 alleging that M.V. (then 15

years old) had loitered in a public place with the intent to commit prostitution (Pen. Code,

§ 653.22) and had agreed to engage in an act of prostitution (Pen. Code, § 647, subd. (b)).

1

All statutory references are to the Welfare and Institutions Code unless otherwise

specified. All rule references are to the California Rules of Court.

1

The police report filed in connection with this matter described the incident upon which

these allegations were based as follows: On October 19, 2012, two police officers spoke

with an individual in the parking lot of the Islander Motel in Hayward, a venue known for

prostitution activity. The man admitted that he was at the motel to meet a prostitute

whom he had contacted through a magazine advertisement. He further stated that, while

in the motel room with the prostitute, she received a phone call informing her that the

police were in the parking lot and that he should leave. Subsequently, when M.V. exited

the motel room, the man identified her as the prostitute. The police then contacted M.V.,

and the minor admitted to being at the motel for prostitution. Further, she identified a

“friend” waiting for her nearby as her pimp. As a result, this individual—who admitted

that he knew the minor—was taken into custody on a host of charges, including felony

pimping (Pen. Code, § 266h, subd. (a)), and felony pandering involving a minor (Pen.

Code, § 266i, subd. (b).)

At the detention hearing on October 23, 2012, the court appointed counsel for

M.V., and the minor submitted to continued detention at the juvenile justice center. It

was also noted that M.V. was a current juvenile court dependent and that her “dual

status” would be considered in connection with the disposition in her 602 matter.

Thereafter, M.V. agreed to admit to the loitering charge in exchange for dismissal of the

prostitution allegation. Jurisdiction was established on this basis on October 31, 2012,

with the juvenile court finding the minor to be a person described by section 602. Since

M.V. was also a dependent minor under section 300, the court ordered that a report be

prepared pursuant to section 241.1 to aid in determining which status—dependent or

ward—would be most appropriate for the minor going forward.

M.V.’s involvement with the juvenile court began almost a year before her 602

petition was filed, when Alameda County Social Services (the Agency) filed a juvenile

dependency petition with respect to the minor, alleging that she came within the

dependency jurisdiction of the juvenile court under subdivisions (c) and (g) of section

300. Specifically, the petition averred that the then-14-year old minor had been

hospitalized for psychiatric issues four times over the previous two years. Nancy V., the

2

minor’s mother, was unwilling to provide further care or support for M.V. due to her

suicidal ideation and aggressive behavior. Further, the minor’s father had a history of

substance abuse and incarceration and was unavailable to care for M.V.

The minor’s relationship with her mother is a troubled one and has been variously

described as “complex,” “strained,” “extremely volatile,” and, by the minor’s own

admission, “not the best.” Nancy V. has long-term mental health issues and has stated

that she is both bipolar and has borderline personality disorder. In addition, she reports

that the minor has received a number of mental health diagnoses, including depression,

oppositional defiance, ADHD, bipolar, and borderline personality. Further, both M.V.

and her mother have a history of substance abuse and treatment. M.V. has reported daily

marijuana use and a history of ecstasy, alcohol, and oxycodone abuse. She has

completed two inpatient drug treatment programs.

The minor’s most recent psychiatric hospitalization occurred on December 15,

2011, when she was committed pursuant to section 5150 after she attempted to stab her

26-year old step-brother with a knife and talked about hanging herself.2 In addition, the

minor hit her mother with some wood from a broken picture frame. During this

hospitalization, Nancy V. refused to participate in family meetings and visited the minor

only once, on Christmas day for 15 minutes. She did not bring a gift. In addition, Nancy

V. refused to pick the minor up upon her release from the hospital on December 26 and

stated that she would “rather go to jail” than have the minor returned to her care.

M.V. has experienced significant trauma in her young life. When she resided with

her father during her early years, he would engage in drug dealing in front of her. There

are suspicions that the minor was sexually abused when she was seven years old. In

2

Pursuant to subdivision (a) of section 5150, “[w]hen a person, as a result of a mental

health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace

officer . . . or professional person designated by the county may, upon probable cause,

take, or cause to be taken, the person into custody for a period of up to 72 hours for

assessment, evaluation, and crisis intervention, or placement for evaluation and treatment

in a facility designated by the county for evaluation and treatment and approved by the

State Department of Health Care Services. . . .”

3

addition, in March 2010, her 23-year old step-brother—with whom she was quite close—

passed away due to complications from diabetes. In approximately April 2011, M.V. was

raped in an incident that was possibly related to sexual exploitation. Finally, shortly

before her dependency action was filed, in November 2011, Nancy V. became engaged

and moved her fiancé into the family home. The minor felt abandoned by her mother,

who admitted to spending much of her time with her fiancé. In addition, the minor felt

that Nancy V. had failed to protect her from an older step-brother, who called her

derogatory names and tried to seduce her. According to Nancy V., this step-brother may

also have psychiatric problems.

M.V. was arrested three times in the months prior to her detention under the

dependency statutes. On both September 7 and October 5, 2011, she was arrested for

misdemeanor possession of marijuana on school property. The minor successfully

completed diversion with respect to each incident. Additionally, on November 2, 2011,

M.V. was arrested for misdemeanor battery. This matter was closed with a reprimand.

When she attended school, the minor had an Individualized Education Plan (IEP) and

received special education services pursuant to AB 3632 for emotional disturbance.

M.V. is reported to do well in school when she is present and has been described

academically as “very capable of completing her work.”

The minor was detained in foster care at detention hearings on December 29 and

30, 2011. On January 18, 2012, the minor was removed from her first foster home due to

solicitation activity. Thereafter, at the combined jurisdiction and disposition hearing on

February 1, 2012, both parents submitted to jurisdiction on an amended petition, the

minor was found to be a person described by subdivisions (c) and (g) of section 300, and

the court declared M.V. to be a dependent child of the juvenile court. Reunification

services were ordered for both parents.

A month later, in March 2012, M.V. received a seven-day notice that she would

need to leave her second foster placement due to behavioral problems. Nancy V.

advocated that M.V. be placed in a locked residential facility, despite the fact that the

minor’s behavior did not warrant such a restrictive placement. Ultimately, M.V. was able

4

to be stabilized in this foster home, and the notice was withdrawn. However, on April 23,

2012—after a family therapy session with her mother “went very bad”—the minor went

AWOL from her foster placement for approximately three weeks. According to M.V.,

she “met a guy” who got her into prostitution. She went with him to Los Angeles and

prostituted there as well. While in Los Angeles, another man told her that he would take

care of her and that she should not be prostituting. She went with this man by bus to

Phoenix and then to Dallas, where she was eventually located by the police. After

destroying property while in juvenile hall in Texas, M.V. was detained in a psychiatric

facility until her social worker flew to Dallas and retrieved her.

Upon her return to California, the minor spent several weeks at the assessment

center awaiting a new foster home as her behavior problems made her difficult to place.

Ultimately, she was transferred to foster care in May 2012, but was asked to leave less

than a month later for stealing. M.V. entered her fourth foster home on June 15, 2012. In

July 2012, at the six month review in her dependency action, reunification efforts were

continued for both parents. The social worker opined that “the parents need to

demonstrate that they are willing and able to improve their parent/child relationship with

[M.V.] and demonstrate they can safely parent [the minor].” Progress towards

reunification at that point was minimal as the father had only recently been released from

jail and the minor and her mother continued to struggle and blame each other for their

problems.

M.V. went AWOL from her fourth foster placement on September 5, 2012.

According to the minor’s mother, M.V. had been visiting her home a few days earlier

over the Labor Day weekend when she left to go prostitute. M.V. was then placed in a

group home on September 11, 2012, but left “out of impulse” on October 16, 2012. She

admits that, after leaving the group home, she was staying in various hotels and

prostituting herself. Finally, on October 19, 2012—as discussed in detail above—M.V.

was arrested on prostitution charges in the incident that formed the basis for the wardship

petition in this case.

5

On November 28, 2012, the juvenile court held a hearing to determine the

appropriate disposition for the minor, including resolution of her dual status as both a

dependent and a ward. Both the Agency and the Alameda County Probation Department

(Probation) recommended in their assessment filed pursuant to section 241.1 that M.V. be

adjudged a ward and that her dependency case be dismissed. Specifically, the report

concluded that there was “no placement plan that would meet this minor’s needs”

through the dependency system. M.V.’s dependency counsel, in contrast, submitted a

letter and appeared at the hearing to argue in favor of continued dependency. The

minor’s 602 attorney and the District Attorney also argued in favor of maintaining

M.V.’s 300 status. At the conclusion of the hearing, the juvenile court stressed its

concern about the minor’s “level of dangerous activity” and indicated the need for a

placement “that’s more secure where we can keep her there.” The court then adopted the

joint recommendation of Probation and the Agency, adjudged M.V. a juvenile court

ward, dismissed the minor’s dependency action, and referred the minor to Probation for

out-of-home placement. A timely notice of appeal was filed on December 13, 2012.

II. DUAL JURISDICTION ISSUES

A. Statutory Framework and Standard of Review

A child that has been abused or neglected falls within the juvenile court’s

protective jurisdiction under section 300 as a “dependent” child of the court. In contrast,

a juvenile court may take jurisdiction over a minor as a “ward” of the court under section

602 when the child engages in criminal behavior. (In re W.B. (2012) 55 Cal.4th 30, 42-

43 (W.B.); D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1123 (D.M.).) As a

general rule, a child who qualifies as both a dependent and a ward of the juvenile court

cannot be both. (§ 241.1, subd. (d); In re Marcus G. (1999) 73 Cal.App.4th 1008, 1012,

1015 (Marcus G.).)3 Instead, section 241.1 sets forth the procedure that the juvenile court

3

As of 2005, under certain statutorily enumerated circumstances, the probation

department and the child welfare department of a county, in consultation with the

presiding judge of the juvenile court, may create a written protocol permitting a child to

be “dual status”—that is, both a dependent child and a ward of the court. (§ 241.1,

6

must follow when faced with a case in which it may have dual bases for jurisdiction over

a minor.

Pursuant to section 241.1, whenever it appears that a minor may fit the criteria for

both dependency and wardship, “the county probation department and the child welfare

services department shall . . . initially determine which status will serve the best interests

of the minor and the protection of society.” The assessment of a minor under section

241.1 is statutorily required to include, at a minimum, consideration of the following

eight factors: (1) the nature of the referral; (2) the age of the minor; (3) the prior record of

the minor’s parents for child abuse; (4) the prior record of the minor for out-of-control or

delinquent behavior; (5) the parents’ cooperation with the minor’s school; (6) the minor’s

functioning at school; (7) the nature of the minor’s home environment; and (8) the

records of other agencies that have been involved with the minor and his or her family.

(§ 241.1, subd. (b)(2).) This statutory mandate has been augmented by rule 5.512, which

requires the joint assessment under section 241.1 to be memorialized in a written report.

Further—in addition to the eight factors set forth in section 241.1 that must be considered

in any such joint assessment—rule 5.512 demands evaluation of four additional items:

(1) the history of any physical, sexual, or emotional abuse of the child; (2) any services or

community agencies available to assist the child and his or her family; (3) a statement by

any counsel currently representing the minor; and (4) a statement by any Court

Appointed Special Advocate (CASA) currently appointed for the child. (Rule 5.512(d).)

Once the recommendations of both departments are presented to the juvenile court, it

remains for the court to “determine which status is appropriate for the minor.” (§ 241.1,

subd. (a); see also rule 5.512(g) [court must make a determination regarding the

appropriate status of the minor and must state its reasons on the record or in a written

order].)

subd. (e); see also Assem. Bill No. 129 (2003-2004 Reg. Sess.) § 1.) There is no

indication in the record, however, that such a protocol has been adopted in Alameda

County or that dual status was a possibility for this minor. (See generally W.B., supra, 55

Cal.4th at pp. 46-47.)

7

We review the juvenile court’s determination under section 241.1 for abuse of

discretion. (In re Joey G. (2012) 206 Cal.App.4th 343, 346 (Joey G.).) “To show abuse

of discretion, the appellant must demonstrate the juvenile court exercised its discretion in

an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of

justice.” (Ibid.) Throughout our analysis, we will not lightly substitute our decision for

that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to

support the decision of the juvenile court and will not disturb its findings where there is

substantial evidence to support them. (In re Michael D. (1987) 188 Cal.App.3d 1392,

1395.)

B. Timeliness of Section 241.1 Assessment

As a preliminary matter, M.V. contends that the section 241.1 assessment in these

proceedings was untimely and, specifically, that the juvenile court violated her due

process rights by holding the jurisdictional hearing in her 602 matter before completion

of the section 241.1 report. Although it does not speak in terms of a written report,

subdivision (a) of section 241.1 does state that a joint recommendation regarding status

should “be presented to the juvenile court with the petition that is filed on behalf of the

minor.” We have previously construed this statement to mean that the report should be

filed in connection with the later petition—that is, the petition that creates the potential

for dual jurisdiction. (Marcus G., supra, 73 Cal.App.4th at p. 1013.) Rule 5.512

similarly states that, “[w]henever possible, the determination of status must be made

before any petition concerning the child is filed” (rule 5.512(a)(2)) and that the

“assessment must be completed as soon as possible after the child comes to the attention

of either department” (rule 5.512(a)(1)). In addition, rule 5.512 is quite specific

regarding the timing for the actual assessment report: “If the child is detained, the

hearing on the joint assessment report must occur as soon as possible after or concurrent

with the detention hearing, but no later than 15 court days after the order of detention and

before the jurisdictional hearing. If the child is not detained, the hearing on the joint

assessment must occur before the jurisdictional hearing and within 30 days of the date of

8

the petition.” (Rule 5.512 (e).)4 Notice of the hearing—including a copy of the joint

assessment report—must be provided to various interested parties at least five calendar

days before the hearing. (Rule 5.512(f).)

Here, the District Attorney filed the juvenile wardship petition on October 22,

2012, after the minor had previously been declared a juvenile court dependent. At the

detention hearing on October 23, 2012, the court announced on the record that M.V. was

a “dual status” minor, and Probation’s intake report filed with the court on that same date

stated that M.V. had a “300 History” and that her “current case worker” had been

notified. Further, Valerie Patton, the 241.1 liaison, indicated that the “241” issue would

be handled along with disposition by another department, but that everything prior to

disposition could proceed before the current juvenile court judge. Thus, at the detention

hearing, the minor’s court-appointed counsel was aware not only of the minor’s dual

status, but also of the court’s plan to defer resolution of the 241.1 issue until disposition.

Despite this knowledge, counsel failed either to request that a section 241.1 assessment

be conducted before the jurisdictional hearing or to object to the court proceeding on the

section 602 petition without such an assessment. Similarly, at the jurisdictional hearing

on October 31, 2012, the juvenile court judge accepted the minor’s admission, found her

to be a person described by section 602, referred the case for a 241.1 report, and set the

matter for disposition, all without any objection from minor’s counsel. Thereafter, a

section 241.1 assessment was filed with the court on November 26, 2012, and was

4

We note that at least one commentator has indicated that the timeframes set forth in

Rule 5.512(e) may be contrary to the best interests of the minor and the protection of

society and therefore void as inconsistent with the intent of section 241.1. (See Seiser &

Kumli, Cal. Juvenile Courts Practice and Procedure (2013) § 3.27[2], p. 3–52 [citing

California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th

15, 24-26].) This is because a decision to terminate one status should not be made until

after a determination that the jurisdictional allegations supporting the alternate status are

true. (Id. at p. 3–51.) As is pertinent to the present matter, “[s]ince the full nature of the

delinquency allegations may not become clear until after they have been litigated and the

juvenile court may or may not find those allegations true,” there may be “substantial

merit” to deferring the 241.1 determination until after the jurisdiction hearing in the

appropriate case. (Id. at pp. 3–51-3–52.)

9

considered in connection with the November 28 combined disposition and 241.1 hearing.

Given these facts, it is clear that the section 241.1 assessment in this case was not

provided within the timeframes contemplated by rule 5.512. Equally clear, however, is

that the minor has forfeited any right to complain about the timeliness of the assessment

by failing to object in the juvenile court to the lateness of its preparation.5

Contrary to appellant’s assertion, the fact that section 241.1 imposes a

“mandatory” statutory duty does not preclude the application of the forfeiture rule. (See

§ 241.1, subd. (a) [241.1 recommendations “shall be presented to the juvenile court with

the petition . . . .”]; see also § 15 [“shall” is mandatory].) Rather, courts have repeatedly

held that a party’s failure to object forfeits appellate review of the adequacy of—or the

failure to prepare—mandatory assessment reports in juvenile proceedings. (See, e.g., In

re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to prepare section 366.22

assessment waived by failure to object despite that provision’s mandatory language]

(Dakota S.); In re Crystal J. (1993) 12 Cal.App.4th 407, 411-413 [inadequacy of

mandatory adoption assessment under subdivision (i) of section 366.21 waived by failure

to object] (Crystal J.); see also In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [similar

waiver of challenge to mandatory adoption assessment].) Indeed, “[a]s some of these

courts have noted, any other rule would permit a party to trifle with the courts. The party

could deliberately stand by in silence and thereby permit the proceedings to reach a

conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (In

re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)

We also reject the minor’s argument that failure to provide a section 241.1

assessment and recommendation at the time that the 602 petition was filed in this matter

5

On the initial date set for disposition, November 14, 2012, minor’s 602 counsel did

object to Probation’s request for a continuance because it had failed to complete the

241.1 report. The basis for his objection was section 702, which requires disposition

within 10 judicial days of the jurisdictional finding when a minor is detained. Minor’s

300 counsel also noted his concern “that there’s not a report for today.” At the point that

both of these objections were made, however, jurisdiction had already been established.

Thus, these later objections to the continuance of the dispositional hearing are not

relevant to the issue before us.

10

somehow deprived the delinquency court of jurisdiction to proceed. M.V. correctly notes

the language of section 304 which states that once a 300 petition has been filed and a

“child is under the jurisdiction of the juvenile court all issues regarding his or her custody

shall be heard by the juvenile court.” (See also rule 5.620(a).) However, a careful

reading of the full text of section 304 makes clear that this grant of exclusive jurisdiction

was meant to circumscribe the authority otherwise granted to the superior court to make

custody orders in family law matters or to establish probate guardianships.6 The statute is

silent regarding issues of dual jurisdiction within the juvenile court.

M.V. also cites to case law stating that “[w]hen . . . a minor qualifies as both a

dependent and a ward of the juvenile court, the Legislature has declared that a minor

cannot simultaneously be both.” (Marcus G., supra, 73 Cal.App.4th at p. 1012; see also

Joey G., supra, 206 Cal.App.4th at p. 347.) There is no indication, however, that the

Legislature intended this prescription to be jurisdictional. Rather, section 241.1 clearly

contemplates situations when more than one juvenile court will simultaneously and

appropriately maintain jurisdiction over a minor. For instance, when a recommendation

6

Section 304 provides in full: “After a petition has been filed pursuant to Section 311,

and until the time that the petition is dismissed or dependency is terminated, no other

division of any superior court may hear proceedings pursuant to Part 2 (commencing with

Section 3020) of Division 8 of the Family Code regarding the custody of the child or

proceedings under Part 2 (commencing with Section 1500) of Division 4 of the Probate

Code, except as otherwise authorized in this code, regarding the establishment of a

guardianship for the child. While the child is under the jurisdiction of the juvenile court

all issues regarding his or her custody shall be heard by the juvenile court. In deciding

issues between the parents or between a parent and a guardian regarding custody of a

child who has been adjudicated a dependent of the juvenile court, the juvenile court may

review any records that would be available to the domestic relations division of a superior

court hearing that matter. The juvenile court, on its own motion, may issue an order as

provided for in Section 213.5, or as described in Section 6218 of the Family Code. The

Judicial Council shall adopt forms for these restraining orders. These form orders shall

not be confidential and shall be enforceable in the same manner as any other order issued

pursuant to Division 10 (commencing with Section 6200) of the Family Code.

This section shall not be construed to divest the domestic relations division of a

superior court from hearing any issues regarding the custody of a child when that child is

no longer a dependent of the juvenile court.”

11

regarding status is presented to one juvenile court under subdivision (a) of section 241.1,

notice of that recommendation must be given to “[a]ny other juvenile court having

jurisdiction over the minor.” (§ 241.1, subd. (a); see also rule 5.512(f) [requiring that

notice of hearing and a copy of the 241.1 assessment report be provided to “any other

juvenile court having jurisdiction over the child”].) Moreover, as stated above, the

Legislature amended section 241.1 in 2005 expressly to allow for the dual exercise of

juvenile court jurisdiction over a minor under the terms of a locally adopted protocol.

(§ 241.1, subd. (e); see also Assem. Bill No. 129 (2003-2004 Reg. Sess.) § 1.)7 Any such

protocol must include a “provision for ensuring communication between the judges who

hear petitions concerning children for whom dependency jurisdiction has been suspended

while they are within the jurisdiction of the juvenile court pursuant to Section 601 or

602.” (§ 241.1, subd. (e)(3).) Further, under such circumstances, “[i]t is the intent of the

Legislature that judges, in cases in which more than one judge is involved, shall not issue

conflicting orders.” (§ 241.1, subd. (e)(5).) The Legislature thus clearly understands that

there are situations where dual juvenile court jurisdiction may legitimately be exercised

in the best interests of a minor. Here, we recognize one such circumstance and hold that

continued jurisdiction by both the dependency court and the delinquency court was

appropriate until a determination under section 241.1 was made.

Nor do we see any error in the timing of the 241.1 assessment as a violation of due

process and therefore not subject to forfeiture. (See In re Janee J. (1999) 74 Cal.App.4th

198, 208-209 (Janee J.).) In the dependency context, due process may be implicated

where a required investigative report is completely omitted. (Crystal J., supra, 12

Cal.App.4th at p. 413.) However, where “the assessment report is prepared, is available

to the parties in advance of the noticed hearing, and does address the principal questions

at issue in the particular proceeding, errors or omissions in the report cannot be

characterized in terms of denial of due process.” (Ibid.) Here, a 241.1 report was

prepared and available prior to the court’s noticed 241.1 hearing and did address the

7

On our own motion, we take judicial notice of these and all other official legislative acts

cited herein. (See Evid. Code, §§ 452, subd. (c), 459.)

12

principal question at issue. Further, the report was considered by the juvenile court—

along with argument by the parties regarding the report’s recommendation—before the

court announced its 241.1 decision. Under such circumstances, we do not perceive any

lateness in the report’s preparation to be a defect that fundamentally undermined the

statutory scheme such that the minor was unable to avail herself of its protections.

(Compare Janee J., supra, 74 Cal.App.4th at p. 208.)

In sum, neither due process nor any other argument advanced by the minor

provides a basis for the relaxation of the forfeiture rule in this case. Thus, M.V. may not

challenge the timeliness of the section 241.1 assessment in this appeal.

C. Adequacy of Section 241.1 Assessment

M.V. also argues that the 241.1 assessment prepared in this case was deficient

because it failed adequately to address at least four specific areas required by statute

and/or court rule: (1) the history of any physical, sexual, or emotional abuse of the child;

(2) the prior record of the minor’s parents for child abuse; (3) the nature of the child’s

home environment; and (4) the history of involvement of any agencies or professionals

with the child or the child’s family. (§ 241.1, subd. (b)(2); rule 5.512(d)(3), (4), (8) &

(9).) The minor further contends that the report improperly failed to explore the

possibility of higher-level dependency placements.8 We conclude that neither assertion

provides grounds for reversal of the juvenile court's 241.1 determination.

For instance, to the extent that discussion of the four required elements identified

by the minor was inadequate in the 241.1 report at issue, we find any such error harmless.

“When a parent challenges an assessment report as inadequate, the reviewing court

evaluates any deficiencies in the report in view of the totality of the evidence in the

appellate record.” (In re Michael G. (2012) 203 Cal.App.4th 580, 591; see also Crystal

J., supra, 12 Cal.App.4th at p. 413 [deficiencies in report insignificant in light of the

8

In support of her arguments, appellant counsel cited to, among other things, the minor’s

court-ordered psychological evaluation. As this document was not before the juvenile

court at the time it made its 241.1 determination, we decline to consider it in connection

with these or any of appellant’s other contentions.

13

totality of evidence before the court, including other reports and live testimony].) Here,

since the vast majority of the evidence that the minor complains was lacking in the 241.1

assessment was before the court from other sources, any technical deficiencies in the

assessment were harmless.

Specifically, minor’s dependency counsel submitted a letter to the court which

included much of the minor’s prior history, including her mother’s significant mental

health issues, the minor’s own mental health problems, the minor’s dependency

involvement, and her “complex and strained” relationship with her mother. The letter

further detailed M.V.’s history of “grief, trauma, and loss” such as the death of an adult

sibling to whom she was extremely close, allegations of attempted sexual and verbal

abuse by another adult sibling, issues involving her mother’s failure to protect the minor,

and the minor’s feelings of rejection in the wake of her mother’s recent engagement. In

addition, the probation report detailed the minor’s substance abuse history, her father’s

repeated incarceration and substance issues, a list of prior Agency referrals for the family

(most of which had been evaluated out without investigation), and the minor’s sexual

abuse history. Also, the minor’s involvement with Bay Area Women Against Rape

(BAWAR) and her individual therapy through Westcoast Children’s Clinic were both

discussed in court reports issued by those agencies as well as in dependency counsel’s

letter. Thus, the totality of the evidence before the juvenile court was sufficient for

purposes of section 241.1.9

Moreover, with respect to the issue of placement, the 241.1 report indicated that

the minor had a history of absconding from her 300 placements, including from a

structured group home setting. Prior to the group home placement, the minor lived in

9

Citing Joey G., supra, 206 Cal.App.4th at p. 349, M.V. also argues that the 241.1 report

in this case failed to specify how each of the factors mentioned in the report “favored

dependency or wardship.” We discern no requirement in either section 241.1 or rule

5.512 that compels this type of individualized assessment of the mandatory report

elements. However, to the extent that any such analysis of the factors presented was

required, the minor has waived this issue by failing to raise it in the juvenile court. (See

Dakota S., supra, 85 Cal.App.4th at p. 502; Crystal J., supra, 12 Cal.App.4th at pp. 411-

413.)

14

four different foster homes from which she either went AWOL or was asked to leave.

All of this occurred during a time span of less than one year. Given her history of

running away from placements, the Agency was unable to treat her behavioral or mental

health problems. The report concluded that there was “no placement plan that would

meet this minor’s needs” through the dependency system. At the 241.1 hearing, M.V.’s

dependency counsel argued that higher-level dependency placements were available

which could address all of the minor’s particular needs and keep her safe. Agency

counsel, however, disputed this assertion, stating that a higher-level placement had been

tried and that the Agency was “fearful” that it would not be able to “keep her in one place

on our side.” Discussion of placement options in a 241.1 assessment is not expressly

mandated by either section 241.1 or rule 5.512, although it arguably falls under rule

5.512(d)(10): “Any services or community agencies that are available to assist the child

and his or her family.” In the present case, we believe that the placement issue was

adequately, if not exhaustively, addressed by the Agency. Further, minor’s counsel was

able to challenge the Agency’s conclusions at the 241.1 hearing. Given these facts, we

see no error.

D. The Juvenile Court’s Section 241.1 Determination

At the conclusion of the 241.1 hearing in this matter, the juvenile court

determined—in accordance with the recommendation of both Probation and the

Agency—that M.V. should be adjudged a juvenile court ward and her dependency

proceedings dismissed.10 As stated above, once it has been established that a minor

10

M.V.’s contention that respondent should be barred from arguing in support of the

juvenile court’s 241.1 determination under theories of judicial estoppel is easily

discarded. “ ‘ “ ‘Judicial estoppel precludes a party from gaining an advantage by taking

one position, and then seeking a second advantage by taking an incompatible position. [ ]

The doctrine’s dual goals are to maintain the integrity of the judicial system and to

protect parties from opponents’ unfair strategies. [ ] Application of the doctrine is

discretionary.’ ” [ ] The doctrine applies when “(1) the same party has taken two

positions; (2) the positions were taken in judicial or quasi-judicial administrative

proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal

adopted the position or accepted it as true); (4) the two positions are totally inconsistent;

15

meets the criteria for either dependency or wardship, the juvenile court is required by

section 241.1 to “determine which status is appropriate for the minor.” (§ 241.1,

subd. (a).) When doing so, the juvenile court considers the recommendations of the

county probation department and the child welfare services department as to “which

status will serve the best interests of the minor and the protection of society.” (Ibid.) We

read this statute, within the context of the Juvenile Court Law generally, as granting

broad discretion to the juvenile court when determining which status will best meet a

particular minor’s needs. (See § 202, subd. (b) [both delinquent and dependent minors

shall receive “care, treatment, and guidance” that is “consistent with their best interest”];

Joey G., supra, 206 Cal.App.4th at p. 346 [juvenile court determination under section

241.1 reviewable only for abuse of discretion]; see also In re Abdirahman S. (1997) 58

Cal.App.4th 963, 969 [juvenile delinquency court has broad discretion to set conditions

of probation for purpose of rehabilitation]; In re Jose M. (1988) 206 Cal.App.3d 1098,

1103-1104 [juvenile dependency court “has broad discretion to determine what would

best serve and protect the child’s interest and to fashion a dispositional order in

accordance with this discretion”].)

Despite the juvenile court's significant latitude in this area, appellant faults the

court’s choice of wardship over dependency on a number of grounds. First, she states

that the court’s focus on the minor’s safety when making this decision was improper. We

are not convinced. The juvenile court judge (along with virtually every other hearing

participant) was understandably concerned with M.V.’s safety given her apparent naiveté

and propensity for involving herself in dangerous situations. (See § 202, subd. (a) [the

purpose of the juvenile court law is “to provide for the protection and safety of . . . each

and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” ’ ”

(People v. Castillo (2010) 49 Cal.4th 145, 155, italics omitted.) Here, in the juvenile

court, the District Attorney advocated for continuing the minor as a dependent. As M.V.

concedes, this was not the successful position below. Even more importantly, however,

respondent’s current arguments are not “totally inconsistent” with the District Attorney’s

prior position. Advocating for a particular status in the juvenile court is simply not

equivalent to maintaining that the juvenile court’s decision was not an abuse of discretion

or that appellant has forfeited certain arguments.

16

minor under the jurisdiction of the juvenile court . . . .”].) The judge opined that, under a

declaration of wardship, the minor could still pursue many of her stated goals—

reunifying with family, finishing school, getting a job, and volunteering in the

community. At the same time, however, placement through probation would allow the

minor to get some services and to get help in understanding the consequences of her

actions.11 Indeed, the 241.1 recommendation adopted by the juvenile court was based

largely on the Agency’s admission that it had been ineffective in providing the minor

with the services that she so clearly needed. Given these facts, we see no abuse of

discretion in the juvenile court’s conclusion that the minor’s interests—including her

manifest need for a safe and secure placement—would best be served through the

delinquency system.12

M.V. also complains that the juvenile court’s 241.1 determination was defective

because the delinquency court judge failed to review the minor’s dependency file prior to

determining her status as a ward. Although respondent argues that the delinquency

court’s review of the dependency file can be inferred, the record is simply unclear on this

11

Support for the juvenile court’s conclusion can be found in the human trafficking

literature: “Attorneys and judicial officers have stated that sometimes incarceration may

be the only alternative available to keep a youth safe. . . . [S]ome feel that a locked

facility in which a victim can receive necessary services and guidance and, more

importantly, be isolated from the trafficker, is the best option. Some practitioners have

called detention the ‘best among worst choices’ since young victims are often returned to

the homes from which they fled or placed in nonsecure facilities, leading to increased risk

of revictimization.” (Admin. Off. of the Cts., Center for Families, Children & the Cts.,

Human Trafficking Cases in California’s Courts: Successful Practices in the Emerging

Field of Human Trafficking (2012) p. 14, fn. omitted (Human Trafficking).)

12

Our conclusion is not inconsistent with In re Natasha H. (1996) 46 Cal.App.4th 1151,

cited by M.V. In that case, the juvenile court terminated its dependency jurisdiction over

a minor who was a chronic runaway and failed to cooperate with the services offered to

her. (Id. at pp. 1153-1155.) The appellate court reversed, holding that “misbehavior and

lack of cooperation” are not appropriate grounds for termination of dependency where a

minor remains in need of supervision. (Id. at p. 1158.) Here, obviously, the juvenile

court did not “throw in the towel” and release the minor from all juvenile court

supervision, but instead thoughtfully selected the type of juvenile court supervision most

likely to meet the minor’s unique needs. (Compare id. at p. 1153.)

17

point. However, neither section 241.1 nor rule 5.512 requires judicial examination of the

full dependency file. In fact, while section 241.1 requires that relevant “records of other

agencies” be considered by Probation and the Agency in the development of their

recommendation regarding a dual status minor (§241.1, subd. (b)(2)), the 241.1 report

prescribed by rule 5.512 requires only “the history of involvement” of those agencies.

This makes sense as a well-drafted 241.1 report should successfully summarize the

minor’s social history, including the impact of any previous abuse or neglect on current

wrongdoing, that would otherwise be contained in the underlying records. (Rule

5.512(d); see also Bellinger, “Can we Talk?” Facilitating Communication Between

Dependency and Delinquency Courts (2000) 21 J. Juv. L. 1, 24.) Of course, where the

best interests of a child are at stake, it may well be prudent for the juvenile court to

consider as much information as possible. However, review of the entire dependency file

was not mandatory.

M.V. finally argues that the juvenile court’s decision to declare her a ward and

dismiss dependency was erroneous because—as a commercially sexually exploited

minor—she should have been treated as a victim rather than a criminal.13 Alameda

County has specific statutory authority “to develop a comprehensive, replicative,

multidisciplinary model to address the needs and effective treatment of commercially

sexually exploited minors [CSECs] . . . .” (§ 18259, subd. (a).)14 Alameda’s voluntary

13

Section 18259.3 defines a “ ‘commercially sexually exploited minor’ ” as “a person

under 18 years of age who has been abused in the manner described in paragraph (2) of

subdivision (c) of Section 11165.1 of the Penal Code [sexual exploitation], and who has

been detained for a violation of the law or placed in civil protective custody on a safety

hold based only on a violation of subdivision (a) or (b) of Section 647 [lewd

conduct/prostitution] or subdivision (a) of Section 653.22 of the Penal Code [loitering

with intent to commit prostitution].”

“Sexual exploitation” includes “[a]ny person who knowingly promotes, aids, or

assists, employs, uses, persuades, induces, or coerces a child . . . to engage in, or assist

others to engage in, prostitution . . . .” (Pen. Code, § 11165.1, subd. (c)(2).)

14

For purposes of this opinion we use the acronym “CSEC” to refer to a “commercially

sexually exploited minor” as defined in section 18259.3. Also relevant to M.V.’s

situation are federal and state provisions regarding human trafficking. (See 22 U.S.C.

18

pilot project may include as a component “a diversion program reflecting the best

practices to address the needs and requirements of arrested or detained minors who have

been determined to be victims of commercial sexual exploitation.” (Id., subd. (c).) In

2011, the repeal date for the legislation authorizing the pilot project was extended from

January 1, 2012, to January 1, 2017. (See Stats. 2011, ch. 51 (AB 799).)

There is scant information in the record regarding Alameda’s CSEC program.

However, the legislative history for AB 799 quotes a March 2011 progress report issued

by the District Attorney which states that—as a result of the pilot project—it “has been

able to develop a comprehensive system response that directs CSEC away from the

criminal justice system and into programs offering specialized services essential for the

stabilization, safety, and recovery of these vulnerable children.” (Assem. Com. on Public

Safety, Analysis of Assem. Bill No. 799 (2011-2012 Reg. Sess.) April 5, 2011, p. 4 (AB

799 Analysis).) Further, with respect to diversion, a new model program—Girls’

Court—has been created as a “forum for the identification, recovery, and

decriminalization of CSEC . . . .” (Id. at p. 5.)

“The mission of the Girls’ Court is to provide a non-adversarial, trauma-informed

courtroom that is focused on addressing the trauma, healing, and empowerment of young

women through comprehensive case plans that address each young woman’s unique

challenges.” (Alameda County Public Defender Web site

<http://www.co.alameda.ca.us/defender/services/juvenile.htm#juv14> [as of April 29,

2014].) However, not all CSEC are eligible for inclusion in the Girls’ Court diversion

program. Between February 2009 and October 2010, for example, only half of the 100

CSEC identified “were amenable to diversion, meaning they were willing to receive

§ 7102(10) [defining sex trafficking as “the recruitment, harboring, transportation,

provision, or obtaining of a person for the purpose of a commercial sex act”]; (22 U.S.C.

§ 7102(9)(B); [characterizing a “severe” form of such trafficking as “sex trafficking in

which a commercial sex act is induced by force, fraud, or coercion, or in which the

person induced to perform such act has not attained 18 years of age”] Pen. Code, § 236.1,

subd. (g) [state definition of human trafficking “equivalent to the federal definition of a

severe form of trafficking”].)

19

services and did not have a juvenile history or other pending cases which would preclude

their participation in a services only response.” (AB 799 Analysis at p. 5.) As of January

2011, Alameda County was using a multi-disciplinary team model to conduct “ ‘Safety

Net’ ” meetings in which identified CSEC were assessed to determine whether they were

appropriate candidates for diversion. (Id. at p. 6; see also Human Trafficking, supra, at

p. 13 [noting that, under Alameda’s diversion program, “arrested youth who qualify are

released to foster care, group homes, or their parents instead of going to juvenile hall,”

italics added].)

We agree with M.V. that there is evidence in the record supporting her status as a

CSEC. As required by section 18259.3, the only charges underlying the 602 petition in

this matter were prostitution (Pen. Code, § 647, subd. (b)) and loitering with the intent to

commit prostitution (Pen. Code, § 653.22, subd. (a)), based on the minor’s October 2012

arrest. Moreover, there is evidence that the minor was sexually exploited by the man she

identified as her pimp on the date of her arrest. In addition, M.V. reported that she “met a

guy who got her into prostituting” in April 2012 and that she traveled to Los Angeles

with this individual and engaged in prostitution there. This occurrence provides further

evidence of exploitation. And, in approximately April 2011, M.V. was raped in an

incident that was possibly related to sexual exploitation. Indeed, virtually all of the

participants at the 241.1 hearing acknowledged M.V.’s status as a CSEC. In addition, the

evidence presented at the hearing included statements from the minor's BAWAR

advocate and her therapist regarding her ongoing treatment for sexual exploitation.

Finally, the juvenile court judge clearly recognized M.V.'s status as a CSEC, stating:

“This is a Girls Court case. . . . [T]his does meet the criteria for our Girls Court.”

Unfortunately for M.V.’s argument, however, her recognition as a CSEC is not the

end of the inquiry. As we have previously stated, the juvenile court had broad discretion

in determining which status—dependent or ward—would best meet M.V.’s needs. It is

abundantly clear from the record that the juvenile court was aware of the minor’s history

of sexual exploitation and considered it when making its 241.1 determination. M.V.

directs us to no authority, nor have we discovered any, mandating that her designation as

20

a CSEC exempt her completely from the purview of the delinquency court.15 Rather,

under the Alameda program—while diversion or other “decriminalization” of a CSEC is

permissible in the appropriate case—the juvenile court retains the authority to process a

CSEC through the delinquency system when such a response is indicated for a particular

minor. Indeed, such a system may very well be in the best interests of these exploited

children as it maximizes the tools available to the juvenile court in crafting a dispositional

order most responsive to the circumstances of each individual CSEC.

In sum, we conclude that the court’s reasons for its 241.1 determination are amply

supported by the record, and that its decision to declare M.V. a ward of the court was not

an abuse of discretion in light of the court’s justifiable concern for her safety and the

failure of all of her previous dependency placements.16

15

In this regard—although not referenced by either party—we note that recently enacted

subdivision (a) of section 1161 of the Evidence Code provides that “[e]vidence that a

victim of human trafficking, as defined in Section 236.1 of the Penal Code, has engaged

in any commercial sexual act as a result of being a victim of human trafficking is

inadmissible to prove the victim’s criminal liability for the commercial sexual act.” This

provision was adopted by California voters in November 2012 as part of Proposition 35,

also known as the Californians Against Sexual Exploitation (CASE) Act. (Ballot Pamp.,

Gen. Elec. (Nov. 6, 2012) text of Prop 35 at pp. 100-101 (Prop. 35).) Since a juvenile

adjudication under section 602 is not a criminal conviction (See § 203; W.B., supra, 55

Cal.4th at p. 43.), the application of this new provision to juvenile delinquency

proceedings is uncertain, a fact recently acknowledged by the Second District in In re

Aarica S. (2014) 223 Cal.App.4th 1480. We need not resolve this issue here, however, as

the matter was neither raised in the court below nor briefed before this Court. (Evid.

Code, § 353, subd. (a) [admission of evidence may not be questioned on appeal absent

objection in the trial court]; In re Robert B. (1985) 172 Cal.App.3d 763, 773 [same];

Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 776-777

[noting issue “ ‘doubly waived’ ” where not raised below or in opening or reply brief on

appeal].)

16

Before we leave this topic, we feel compelled to admonish respondent for the many

comments made throughout its brief to the effect that M.V. is a “victim of her own

dangerous willfulness” and that she “repeatedly exposed herself to being a sexually

exploited minor.” These statements seriously misapprehend the nature of sexual

exploitation and are not well taken. As both state and federal law make clear, a minor’s

status as a sexually exploited youth operates independently of any notion that a minor has

somehow consented to her own victimization. (See Pen. Code, § 236.1, subd. (e)

21

III. CHALLENGES TO UNDERLYING CONVICTION

At the October 31, 2012, jurisdictional hearing on M.V.’s 602 petition, the minor

entered into a plea arrangement whereby she agreed to admit to count one of the petition

(loitering with the intent to commit prostitution) in return for dismissal of count two

(prostitution). Both the court and minor’s counsel questioned M.V. regarding her

understanding of the plea bargain and the rights that she was waiving. In addition, both

minor’s counsel and the prosecutor agreed that there was a factual basis for the plea. At

the conclusion of this process, the juvenile court accepted the plea, found that there was a

factual basis for the admission, found the count one allegations true, dismissed the count

two allegations with facts and restitution open, and concluded that the minor was a

person described by section 602.

M.V. now challenges this negotiated plea agreement on a number of grounds.

First, she argues that the evidence was insufficient to support the loitering charge.

Second, M.V. asserts that the juvenile court erred in finding that a factual basis supported

her plea. Finally, the minor states that her 602 attorney’s failure to identify and pursue

these meritorious claims in the juvenile court amounted to ineffective assistance of

counsel. We address each contention in turn.

A. Sufficiency of the Evidence

We first consider M.V.’s argument that insufficient evidence supported the charge

to which she admitted in the juvenile court, loitering in a public place with the intent to

commit prostitution in violation of section 653.22 of the Penal Code. The standard of

review in juvenile proceedings involving criminal behavior is the same as that required in

adult criminal trials: We review the entire record in the light most favorable to the

[“[c]onsent by a victim of human trafficking who is a minor at the time of the

commission of the offense is not a defense to a criminal prosecution under this section”];

22 U.S.C. § 7102(10) [defining sex trafficking as “the recruitment, harboring,

transportation, provision, or obtaining of a person for the purpose of a commercial sex

act”]; 22 U.S.C. § 7102(9) [characterizing a “severe” form of such trafficking as “sex

trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in

which the person induced to perform such act has not attained 18 years of age,” italics

added].)

22

judgment to determine whether substantial evidence supports the charge, so that a

reasonable trier of fact could find guilt beyond a reasonable doubt. (In re Matthew A.

(2008) 165 Cal.App.4th 537, 540; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-

1089.) As a preliminary matter, however, respondent argues that we should not reach the

merits of M.V.’s sufficiency claims because—by entering her admission in the juvenile

court as part of a negotiated plea bargain—the minor waived any challenge to the

sufficiency of the evidence on appeal.

The Juvenile Court Law gives a minor the option to admit the jurisdictional

allegations of a petition alleging criminal conduct. (§ 657, subd. (b); Rule 5.778 [setting

forth procedure for taking a juvenile admission to the allegations in a petition filed

pursuant to section 602]; see also In re Uriah R. (1999) 70 Cal.App.4th 1152, 1158

[minor deemed intelligent enough to appreciate the consequences of admitting to having

engaged in criminal behavior].) As a general matter, when a minor enters an admission

as part of a negotiated plea agreement and does not later seek to withdraw that plea, the

minor has forfeited the right to attack the terms of the bargain on appeal, including any

challenge to the sufficiency of the evidence. (See In re Travis J. (2013) 222 Cal.App.4th

187, 194-196; People v. Voit (2011) 200 Cal.App.4th 1353, 1364 [admission waives

appellate challenge to the sufficiency of the evidence] (Voit); Ricki J. v. Superior Court

(2005) 128 Cal.App.4th 783, 792 [guilty plea “constitutes an admission of every element

of the offense charged . . . and concedes the prosecution possesses admissible evidence

sufficient to prove guilt beyond a reasonable doubt”] (Ricki J.).) Application of this

forfeiture rule, however, is not absolute. An appeal is permitted, for instance, on the

issue of whether the waiver of rights made upon entering a plea was knowingly,

voluntarily, and intelligently made. (Voit, supra, 200 Cal.App.4th at pp. 1364-1365.) In

addition, an appellant may successfully assert that his or her admission included a legal

impossibility. (People v. Soriano (1992) 4 Cal.App.4th 781, 783 [plea to filing a forged

instrument may be challenged when death certificate at issue did not qualify as an

instrument].) Finally, relaxation of the general forfeiture rule may be appropriate in a

rare case presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293,

23

superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953,

962.)

Here, M.V. has waived her right to contest the sufficiency of the evidence with

respect to her loitering charge. Arguably, however, her contention that she was legally

incapable of forming the requisite intent to commit prostitution could, if true, implicate

the exceptions to forfeiture for legal impossibility and/or for presentation of an important

legal issue. Because of this, and because analysis of the sufficiency issues she raises is

otherwise relevant to the resolution of her two remaining arguments on appeal, we will

consider the merits of her claims.

First, M.V. contends that the evidence was insufficient to support a finding that

she intended to commit prostitution. To bolster this claim, she points to the laundry list

of conduct evincing an intent to commit prostitution set forth in CALCRIM No. 1156

(2013) (which essentially restates subd. (b) of Pen. Code, § 653.22) and argues that she

did not engage in any of this conduct.17 M.V., however, fails to appreciate that both the

jury instruction and the statute on which it is based expressly indicate that the factors

described are non-exhaustive and are meant only to assist in establishing intent. (See

Pen. Code, § 653.22, subd. (c) [“The list of circumstances set forth in subdivision (b) is

17

Subdivision (b) of Penal Code section 653.22 provides in full as follows: “Among the

circumstances that may be considered in determining whether a person loiters with the

intent to commit prostitution are that the person:

(1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or

engage in conversations with passersby, indicative of soliciting for prostitution.

(2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving

arms, or making any other bodily gestures, or engages or attempts to engage the drivers

or passengers of the motor vehicles in conversation, indicative of soliciting for

prostitution.

(3) Has been convicted of violating this section, subdivision (a) or (b) of [Penal Code]

Section 647, or any other offense relating to or involving prostitution, within five years of

the arrest under this section.

(4) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to

contact or stop pedestrians or other motorists, indicative of soliciting for prostitution.

(5) Has engaged, within six months prior to the arrest under this section, in any behavior

described in this subdivision, with the exception of paragraph (3), or in any other

behavior indicative of prostitution activity.”

24

not exclusive. . . . Any other relevant circumstances may be considered in determining

whether a person has the requisite intent”]; CALCRIM No. 1156 (2013) [“This list of

factors is not intended to be a complete list of all the factors you may consider on the

question of intent. The factors are provided only as examples to assist you in deciding

whether the defendant acted with the intent to commit prostitution”].) In this case, where

the minor, herself, admitted that she was at the hotel for the specific purpose of engaging

in prostitution, intent has been unequivocally established, and these listed factors are

irrelevant.

Next, the minor asserts that the evidence was insufficient to support a finding that

she loitered in a public place in violation of Penal Code section 653.22. M.V. concedes

that the Islander Motel is a “public place” within the meaning of the statute. (See Pen.

Code, § 653.20, subd. (b) [defining public place to include a “building open to the

general public”].) However, she claims that there is no evidence that she “loitered” at the

motel. For purposes of establishing criminal conduct under Penal Code section 653.22,

loitering means “to delay or linger without a lawful purpose for being on the property and

for the purpose of committing a crime as opportunity may be discovered.” (Pen. Code,

§ 653.20, subd. (c).) In the instant case, the record reveals that M.V. arranged to meet the

witness at the motel for the purpose of engaging in prostitution; that the motel was known

to be a high prostitution area; that the minor arrived at the motel and spent a period of

time in a room with the witness; that she advised the witness to leave the motel room

after receiving a phone call disclosing that the police were in the parking lot; that the

minor left the motel room some period of time after the witness exited; and that, after the

police contacted her in a common area of the motel, M.V. admitted to being on site for

purposes of prostitution. Thus, M.V. admitted that she was not on the property for a

lawful purpose, but instead for the express purpose of engaging in criminal behavior.

Moreover, “linger” is commonly defined as “to remain or wait long.” (Webster’s 3d New

Internat. Dict. (2002) p. 1316.) Reviewing the record in the light most favorable to the

judgment, we believe that the evidence in this case is sufficient to established that M.V.

remained in and around the motel for the unlawful purpose of engaging in prostitution.

25

(Compare People v. Pulliam (1998) 62 Cal.App.4th 1430, 1432 [police observed Pulliam

for 15-20 seconds in a high prostitution area; Pulliam was wearing revealing clothes and

waved at a passing car; when approached she admitted to being there to engage in

prostitution].)

Finally, M.V. avers that—as a minor—she was legally incapable of forming the

requisite intent to commit prostitution. In support of this claim, the minor cites to statutes

and related case law involving statutory rape and other crimes based on sexual

misconduct with children that generally operate without regard to consent. As the

Supreme Court summarized in People v. Scott (1994) 9 Cal.4th 331, 341-342: “Above

and beyond the protection afforded to all victims of sexual assault, the Legislature has

determined that children are uniquely susceptible to ‘outrage’ and exploitation. Hence,

special laws on the subject of sex with children have been enacted. They expand the

kinds of acts which may be deemed criminal sexual misconduct, and they generally

operate without regard to force, fear, or consent. (See, e.g., [Pen. Code,] § 261.5 [sexual

intercourse with nonspouse under 18], 266 [enticing female under 18 into prostitution],

266j [procuring child under 16 for lewd act], 267 [abducting person under 18 for

prostitution], 285 [incest], 288.2 [distributing harmful materials to minor for sexual

purpose], 288.5 [continuous abuse of child by resident molester].)” (See also People v.

Soto (2011) 51 Cal.4th 229, 238 (Soto) [“The Legislature has drafted the child

molestation laws to make issues regarding the child victim’s consent immaterial as a

matter of law in these cases”].) It is true that courts analyzing the availability of a

consent defense under these statutes have, at times, talked in terms of the minor victim’s

inability to consent to sexual intercourse. (See, e.g., People v. Hernandez (1964) 61

Cal.2d 529, 531 (Hernandez) [statutory rape]; People v. Stratton (1904) 141 Cal. 604,

606 (Stratton) [incest]; People v. Verdegreen (1895) 106 Cal. 211, 214 (Verdegreen)

[statutory rape].) However, these statutes operate to maximize the protection from sexual

exploitation afforded to children by removing a potential defense that might otherwise

relieve a perpetrator from criminal responsibility. Thus, while relevant to our inquiry,

we perceive a distinction between such situations and the question presented here:

26

Whether the minor, herself, can form the requisite intent and thus be held responsible as a

perpetrator for engaging in prostitution or related sexual misconduct.

It is clear that a minor can actually consent to—that is voluntarily and willingly

participate in—sexual activity. (See Michael M. v. Superior Court (1979) 25 Cal.3d 608,

614 (Michael M.) [By adopting statutory rape law “the Legislature necessarily

acknowledged the obvious truism that minor females are fully capable of freely and

voluntarily consenting to sexual relations. If this was not so, the charge brought in these

cases would uniformly be one of forcible rape”].) Thus, the question becomes whether a

minor in this state can legally consent to such behavior. (Compare In re B.W. (2010) 313

S.W.3d 818, 824 [clarifying difference between “the ability to factually agree to sex,

which can have legal relevance in the treatment of the offender, with the legal capacity to

consent, which is necessary to find that a person ‘knowingly agreed’ to engage in sexual

conduct for a fee”].) In California, persons of all ages are generally deemed capable of

committing crimes, except “[c]hildren under the age of 14, in the absence of clear proof

that at the time of committing the act charged against them, they knew its wrongfulness.”

(Pen. Code, § 26.) When assigning culpability for crimes committed by minors which

involve sexual activity, however, application of this otherwise relatively bright-line rule

has been far from straightforward.

Early court interpretations of the rape statute, for instance, concluded that women

under the age specified by that statute (14 at that time) were unable to consent to sexual

intercourse as a matter of law.18 (People v. Tobias (2001) 25 Cal.4th 327, 333 (Tobias),

citing Verdegreen, supra, 106 Cal. 211.) By 1964, however, the Supreme Court

concluded in Hernandez that a reasonable belief that a female was over the age of

consent (i.e., over the age of 18) is a valid defense to statutory rape. (Hernandez, supra,

61 Cal.2d at pp. 535-536.) In reaching this conclusion, the court noted that “in one sense,

the lack of consent of the female is not an element of the offense. In a broader sense,

however, the lack of consent is deemed to remain an element but the law makes a

18

The age of consent specified in the rape statute was 14 in 1895 and 16 in 1904. It was

raised to 18 in 1913. (See Tobias, supra, 25 Cal.4th at pp. 332-333.)

27

conclusive presumption of the lack thereof because she is presumed too innocent and

naive to understand the implications and nature of her act.” (Id. at p. 531.) The court

confirmed that “actual” consent from a female known to be under age would not be a

viable defense. (Id. at p. 536.)

Then, in 1970, the Legislature removed sex with a minor from the definition of

rape (Pen. Code, § 261) and created instead the separate crime of unlawful sexual

intercourse with a minor (Pen. Code, § 261.5). (See Tobias, supra, 25 Cal.4th at p. 333.)

In upholding the constitutionality of this new section 261.5 against an equal protection

challenge, the high court noted in Michael M. that the “statute makes no statement about

the girl’s ability to consent” and “emphatically rejected” the contention that its decision

created “adverse inferences concerning the capacity of minor females to make intelligent

and volitional decisions.” (Michael M., supra, 25 Cal. 3d at p. 614.) Rather, the court

based its decision on the state’s compelling interest in curtailing teenage pregnancy. (Id.

at pp. 611-612.)

Thereafter, in 2001, the Supreme Court unanimously endorsed “a consistent line

of cases dating back nearly 75 years” which repeatedly held that “a minor who has

incestuous sexual intercourse with an adult is not guilty of incest, even if the minor is

older than 14 and participates voluntarily in the incestuous act.” (Tobias, supra, 25

Cal.4th at pp. 329, 332.) Although the incest statute makes no express exception for

minor participants, the case law interpreting the statute had consistently held both that

consent is not an element of incest and that a minor cannot legally consent to sexual

intercourse (regardless of any actual consent). (Id. at pp. 332-333, citing Stratton, supra,

141 Cal. 604.) In Tobias, however, a majority of the high court concluded that—by

changing the rape statute in 1970—the Legislature abrogated the rule that a girl under 18

is in all cases incapable of giving legal consent to sexual activity. Rather, citing to

Michael M., the court opined that “the Legislature implicitly acknowledged that, in some

cases at least, a minor may be capable of giving legal consent to sexual relations.”

(Tobias, supra, 25 Cal.4th at p. 333, fn. omitted.) Thus, the consent construct upon

which the previous incest cases had been based was “undermined.” (Id. at p. 334.)

28

Moreover, the court noted a number of cases where minors as young as 11 had been held

responsible for a variety of sex-related crimes. (Ibid. [listing cases].) Against this

backdrop, the Tobias majority abandoned the whole notion of legal consent and held that

a refusal to hold a minor legally culpable for having incestuous sexual intercourse “need

not . . . turn on the minor’s categorical inability ‘to give legal assent’ to sexual

intercourse.” (Ibid.) Rather, it upheld the result, if not the reasoning, of the prior

precedent based on the existence of a “comprehensive legislative scheme establishing

that the minor is a victim of, not an accomplice to, the incest.” (Id. at pp. 334-337.)19

Like the incest statute considered in Tobias, the wording of the prostitution

statutes is unambiguous and makes no express exception for minors. (Pen. Code, §§ 647,

subd. (b), 653.22.) Here, however—in contrast to Tobias—there is no long history

interpreting the prostitution statutes to conclude that all minors up to the age of 18 are

incapable of forming the legal intent to engage in prostitution or “comprehensive

legislative scheme” requiring that all such minors be treated as victims. Rather, with

respect to crimes involving sexual acts, the Supreme Court has recently acknowledged a

“long-standing presumption that children under age 14 cannot give legal consent to

sexual activity.” (Soto, supra, 51 Cal.4th at pp. 245, 248, fn. 11 [holding that lack of

consent is not an element of, and therefore consent is not a defense to, aggravated lewd

conduct with a minor under the age of 14 in violation of subdivision (b) of Penal Code

section 288].)20 Given this precedent, it would be difficult to argue that minors under age

19

In his concurring opinion, Chief Justice George disagreed that the statutory changes

made by the Legislature in 1970 altered the established principle that a minor cannot

legally consent to sexual intercourse. Rather, he opined that the Legislature had merely

“indicated that a minor actually can consent to (i.e., voluntarily participate in) sexual

intercourse.” (Id.. at p. 340 (conc. opn. of George, C.J.).)

20

Indeed, in concluding that reasonable mistake as to the female’s age was a defense to a

charge of statutory rape, the Supreme Court in Hernandez was clearly influenced by the

change in the “age of consent” under the rape statute from 14 to 18. (Hernandez, supra,

61 Cal.2d at pp. 533, 536.) And, twenty years later, in People v. Olsen (1984) 36 Cal.3d

638, the high court held that a good faith, reasonable mistake as to age was not a defense

to a charge of lewd or lascivious conduct with a minor under the age of 14 (See Pen.

29

14 could legally form the intent to commit prostitution. (Compare In re B.W., supra, 313

S.W.3d 818, 821 [ruling of Texas Supreme Court that a child under 14 years of age

cannot be prosecuted for prostitution because “in Texas, ‘a child under fourteen cannot

legally consent to sex’ ”]; but see Tobias, supra, 25 Cal.4th at p. 334 [listing cases

holding minors under 14 culpable for numerous sex-related crimes].)

With respect to minors aged 14 to 17 such as M.V., in contrast, no such

presumption of incapacity to consent to sexual activity appears currently operative in this

state.21 In practice, minors clearly have been subject to prosecution for soliciting

prostitution in violation of subdivision (b) of section 647. (See In re Cheri T. (1999) 70

Cal.App.4th 1400, 1403 [upholding 602 petition alleging solicitation under subdivision

(b) of section 647 against sufficiency of evidence challenge]; In re Elizabeth G. (1975)

53 Cal.App.3d 725, 730 [violation of subdivision (b) of section 647 as set forth in 602

petition upheld against selective enforcement and sufficiency of evidence challenges].)

Further, as described in Tobias, notions of legal capacity to consent applied when a minor

is a victim (to foreclose a consent defense) do not seem to have been uniformly applied

where a minor is the perpetrator. Rather, numerous minors have been held culpable for

acts involving sexual misconduct. (See, e.g., In re T.A.J. (1998) 62 Cal.App.4th 1350,

1365 [minor may be charged with violation of Penal Code section 261.5 (unlawful sexual

Code, § 288, subd. (a).) In distinguishing Hernandez, the court noted that “[t]ime and

again, the Legislature has recognized that persons under 14 years of age are in need of

special protection” and found that the public policy considerations involved in protecting

“children of tender years” were more substantial than those associated with statutory

rape. (People v. Olsen, supra, 36 Cal.3d at pp. 646-649.)

21

This view is not universal. (See Prop. 35, § 2 at p. 101 [noting in measure’s findings

and declarations that “[b]ecause minors are legally incapable of consenting to sexual

activity, these minors are victims of human trafficking whether or not force is used”];

Human Trafficking, supra, at pp. 11, fn. omitted, 16 & 24, fn. 69 [citing Penal Code

section 261.5 (unlawful sexual intercourse with a minor) and Penal Code section 267

(abduction of person under 18 for purposes of prostitution) as support for the contention

that “youth charged with prostitution or solicitation in California can easily be detected as

trafficking cases since youth under 18 do not have the ability to consent to sex under any

circumstances in the first place”].)

30

intercourse with a minor)]; In re Paul C. (1990) 221 Cal.App.3d 43, 47 [minor can be

found to have violated Penal Code section 288 (lewd or lascivious act on a child) with

evidence of appropriate criminal intent]; see also Tobias, supra, 25 Cal.4th at p. 334

[listing cases].)22

In addition, in the sexual harassment context, a federal district court has cited

Tobias as its basis for rejecting a claim that “ ‘a minor cannot legally consent to sexual

intercourse with an adult.’ ” (Doe v. Starbucks, Inc. (C.D. Cal. 2009) 2009 U.S. Dist.

LEXIS 118878, *20 [108 Fair Empl. Prac. Cas. (BNA) 153]; see also Donaldson v.

Department of Real Estate (2005) 134 Cal.App.4th 948, 951, 961 [real estate license

improperly revoked based on conviction of a sex crime involving a “ ‘non-consenting

participant’ ” where 16-year-old victim willingly participated; presumption of nonconsent

obsolete as discussed in Tobias].) And, indeed, if all minors under the age of 18 were

deemed incapable of legally consenting to prostitution, Alameda’s CSEC pilot program

as crafted by the Legislature would be rendered a nullity, as no minor would ever meet

the definition of a CSEC for purposes of potential diversion under the program. (See

22

Of course, to the extent these crimes have been committed by minors under the age of

14, their prosecution based on compliance with section 26 of the Penal Code is difficult

to square with the “long-standing presumption” recently acknowledged by the Supreme

Court in Soto that “children under age 14 cannot give legal consent to sexual activity.”

(Soto, supra, 51 Cal.4th at pp. 245, 248, fn. 11.) However, most of the cases citing the

inability of a victim to consent to sexual activity have concluded, in addition, that lack of

consent was not an element of the crime charged. (See e.g. id. at p. 245; Tobias, supra,

25 Cal.4th at pp. 332-333; Michael M., supra, 25 Cal.3d at p. 614; Hernandez, supra, 61

Cal.2d at p. 531; Stratton, supra, 141 Cal. at pp. 608-609.) Thus, the more prudent

approach might be to uphold this precedent on these alternate grounds, scrap the notion

of incapacity to consent, and handle minor perpetrators of sexual misconduct either in

accordance with the dictates of Penal Code section 26 or—to the extent that a

“comprehensive legislative scheme” requires the treatment of certain minor-perpetrators

as victims—in accordance with Tobias. (Cf. People v. Hillhouse (2003) 109 Cal.App.4th

1612, 1619 [“although common parlance (even that indulged in by courts) tends to

suggest that minors cannot consent to sexual contact, none of the statutory provisions

which specifically govern that contact says any such thing. To the contrary, the concept

of consent, whether legal or actual, is actually irrelevant to the determination of whether

those statutes have been violated”].)

31

§ 18259.3 [defining a CSEC as any sexually exploited person under the age of 18 who

has been detained solely based on a violation of subdivisions (a) or (b) of Section 647

[lewd conduct/prostitution], or subdivision (a) of Section 653.22 of the Penal Code

[loitering with intent to commit prostitution].)

M.V. may well be correct that changing public policy will ultimately lead to the

complete decriminalization of all prostitution activity engaged in by minors. Until the

Legislature acts to clarify its intent with respect to these vulnerable youth, however, we

are compelled to conclude under existing statutes and precedent that M.V. was legally

able to form the requisite intent to engage in an act of prostitution. Thus, the evidence

was sufficient to support the charge to which she admitted in the juvenile court, loitering

in a public place with the intent to commit prostitution in violation of section 653.22 of

the Penal Code.

B. Factual Basis for Admission

M.V. also contends that there was an insufficient factual basis to support her

admission on the loitering charge. Pursuant to rule 5.778(f)(6), when a juvenile court

accepts an admission, it must make a finding that there is a factual basis for that

admission. This requirement is analogous to the procedure for taking a conditional plea

in an adult criminal case pursuant to section 1192.5 of the Penal Code. (Pen. Code,

§ 1192.5 [“If the court approves of the plea . . . [t]he court shall also cause an inquiry to

be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and

that there is a factual basis for the plea”]; see also Ricki J., supra, 128 Cal.App.4th at

pp. 791-792 [minor’s admission of a juvenile court petition is analogous to a guilty plea

in an adult criminal matter]; In re Jermaine B. (1999) 69 Cal.App.4th 634, 640

[principles underlying section 1192.5 with respect to plea bargains imported into juvenile

delinquency proceedings].) The purpose of the factual basis finding is to protect against

a situation where the juvenile, while realizing what he or she has done, is not sufficiently

skilled in law to recognize that those acts do not constitute the offense charged. (See

People v. Palmer (2013) 58 Cal.4th 110, 112 (Palmer).) A juvenile court’s finding that

there is a factual basis for a plea is reviewable for abuse of discretion. (People v. Holmes

32

(2004) 32 Cal.4th 432, 442-443 (Holmes).) Any error in the factual basis inquiry will be

deemed harmless if the record otherwise supports the factual basis finding. (Id. at p.

443.)

In the present case, prior to accepting M.V.’s admission on the loitering charge,

the juvenile court confirmed that the minor had previously talked with her attorney about

the pending charges and the consequences of those charges. Additionally, the court

asked the minor to admit in open court that she had violated section 653.22 of the Penal

Code, loitering with the intent to commit prostitution, on or about October 19, 2012,

which the minor did. M.V. was also advised of her trial rights and expressly waived

those rights. M.V.’s delinquency counsel then indicated that he consented to the minor’s

admission, and both he and the District Attorney stipulated that there was a factual basis

for the plea. However, the attorneys’ stipulation did not reference any document or other

evidence establishing the existence of a factual basis. Nevertheless, the juvenile court

subsequently accepted the minor’s admission and found that there was a factual basis for

it.

Respondent argues that M.V. has forfeited her right to challenge the factual basis

for her loitering charge because she did not object to the lack of a factual basis in the

court below. Noting that a claim questioning the factual basis for a plea is

“fundamentally equivalent” to an attack on the sufficiency of evidence, the Sixth District

in Voit concluded that a guilty plea forecloses appellate review of the factual basis for

that plea. (Voit, supra, 200 Cal.App.4th at pp. 1365-1366.) In contrast, the Third

District, in People v. Marlin (2004) 124 Cal.App.4th 559, 571-572, characterized the

factual basis inquiry as a procedural safeguard and found that a challenge to that

procedure was cognizable on appeal. We need not, however, resolve the Voit/Marlin

dispute regarding the scope of appellate review for a factual basis finding in this case.

(Compare Palmer, supra, 58 Cal.4th at p. 115 [declining to reach Voit/Marlin issue].)

Generally speaking, a bare stipulation, without reference to supporting evidence in

the record, has been deemed inadequate to establish the factual basis for a plea. (See,

e.g., People v. Willard (2007) 154 Cal.App.4th 1329, 1333-1335; People v. Tigner (1982)

33

133 Cal.App.3d 430, 435.) Such was the situation in this case. However, any such error

will be deemed harmless where the contents of the record otherwise supports a factual

basis finding. (Holmes, supra, 32 Cal.4th at p. 443; People v. Watts (1977) 67

Cal.App.3d 173, 182.) Here, the documents contained in the record and available to the

juvenile court judge at the time of the plea—the 602 petition, Probation’s intake report,

and the related police report—supply the factual basis necessary to support M.V.’s

admission. As we have previously discussed at length, these materials disclosed evidence

sufficient to support the loitering charge to which M.V. admitted in the juvenile court.

Thus, even if appellate review of M.V.’s factual basis claim is permitted and error

assigned, any such error was harmless.

C. Ineffective Assistance of Counsel

M.V.’s final argument—that her 602 counsel was ineffective for failing to raise

the meritorious issues that she has identified on appeal—is easily dismissed given our

previous holdings in this matter. The due process right to effective assistance of counsel

extends to minors in juvenile delinquency proceedings. (Timothy J. v. Superior Court

(2007) 150 Cal.App.4th 847, 857.) To demonstrate that she received ineffective

assistance of counsel, M.V. “bears the two-pronged burden of showing that [her]

counsel’s representation fell below prevailing professional norms and that [she] was

prejudiced by that deficiency.” (In re Angel R. (2008) 163 Cal.App.4th 905, 909, citing

Strickland v. Washington (1984) 466 U.S. 668, 694.) “When a claim of ineffective

assistance is made on direct appeal, and the record does not show the reason for counsel's

challenged actions or omissions, the conviction must be affirmed unless there could be no

satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Before

permitting a guilty plea, counsel does have a duty to confer with his or her client about all

available defenses of fact and of law. (People v. McCary (1985) 166 Cal.App.3d 1, 9.)

However, “where the alleged error of counsel is a failure to advise the defendant of a

potential affirmative defense to the crime charged, the resolution of the ‘prejudice’

inquiry will depend largely on whether the affirmative defense likely would have

succeeded at trial.” (Hill v. Lockhart (1985) 474 U.S. 52, 59.)

34

Here, we have concluded that there was a factual basis for M.V.’s plea and have

specifically held that, under current law, the 15-year old minor was legally capable of

forming the intent to engage in prostitution. We have also opined that the juvenile court

did not abuse its discretion in adjudging M.V. a ward and that the minor’s status as a

CSEC did not mandate a particular dispositional outcome. Thus, the issues raised by

M.V. on appeal were not likely to have succeeded at trial, and their lack of merit provides

a more than satisfactory explanation as to why counsel did not press them in the court

below. No attorney is required to raise unmeritorious arguments “simply to ‘create a

record impregnable to assault for claimed inadequacy of counsel.’ ” (In re Angel R.,

supra, 163 Cal.App.4th at p. 910, citing People v. Weston (1981) 114 Cal.App.3d 764,

780.) M.V.’s delinquency counsel was not ineffective.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

35

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Rhonda Burgess

Counsel for Appellant: Linda K. Harvie

First District Appellate Project

Counsel for Respondents: Kamala D. Harris

Attorney General of California

Dane R. Gillette

Chief Assistant Attorney General

Gerald A. Engler

Senior Assistant Attorney General

Eric. D. Share

Supervising Deputy Attorney General

Christina Vom Saal

Deputy Attorney General

In re M.V., A137348

36