Filed 1/13/15 In re D.V. CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


In re D.V., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE,
                                                                                           F068153
         Plaintiff and Appellant,
                                                                         (Super. Ct. No. 13CEJ600334-1A)
                   v.

D.V.,
                                                                                         OPINION
         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Fresno County. Timothy Alan
Kams, Judge.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Larenda
R. Delaini, Deputy Attorneys General, for Plaintiff and Appellant.
         Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Respondent.


                                                        -ooOoo-
                                      INTRODUCTION
       The People appeal from an order dismissing, with prejudice, a juvenile wardship
petition (Welf. & Inst. Code, § 602, subd. (a)), which charged D.V. (the minor) with
soliciting his mother, M.V. (mother), to commit and join in the commission of the murder
of the minor’s father, P.G. (father), and stepmother, M.G. (stepmother), in violation of
Penal Code,1 section 653f, subdivision (b).
       On appeal, the People contend the juvenile court erred in denying the People’s
request to grant father and stepmother use immunity and compel their testimony under
section 1324, after they invoked their Fifth Amendment privilege against self-
incrimination during a pretrial hearing on the minor’s motion to exclude evidence of
recordings of incriminating telephone conversations between the minor and mother on
the ground they were secretly intercepted and recorded by father and stepmother in
violation of state and federal law.
       We conclude the court’s denial of the People’s request to grant use immunity to
father and stepmother was premised on an incorrect legal assumption that a grant of
immunity would not adequately protect the witnesses’ Fifth Amendment privilege against
self-incrimination because their compelled testimony in this case could subject them to
later criminal prosecution in federal court. We will therefore reverse the court’s order
dismissing the petition and remand the matter with directions to reinstate the petition and
conduct further proceedings consistent with the views expressed in this opinion.
                             PROCEDURAL BACKGROUND
       On August 6, 2013, the Fresno County District Attorney filed a juvenile wardship
petition charging the then 14-year-old minor with two counts of solicitation of murder.
       On August 19, 2013, the minor filed a motion to suppress the recordings of his
telephone conversations with mother. Because the recordings were made by private


1      Further statutory references are to the Penal Code unless otherwise specified.
                                                2
parties, not state actors, the juvenile court agreed with the People that the facts asserted
by the minor did not support a Fourth Amendment violation and were not properly the
subject of a motion to suppress evidence under Welfare and Institutions Code section
700.1 or section 1538.5. Consequently, the court deemed the minor’s suppression motion
to be an in limine motion to exclude evidence and set it for hearing under Evidence Code
section 402.
       At the Evidence Code section 402 hearing on September 17, 2013, the People
called father to testify. After the prosecutor asked father a few questions about the
challenged recordings, the juvenile court interrupted and appointed two defense attorneys
to consult with father and stepmother regarding potential issues of self-incrimination.
After consulting with the defense attorneys and their family law attorney, father and
stepmother invoked their Fifth Amendment privilege against self-incrimination and
declined to testify further in the proceedings.
       The juvenile court continued the hearing to give the prosecutor an opportunity to
confer with her office about seeking immunity to compel father and stepmother’s
testimony. When the hearing resumed the following morning, the court observed that it
had received the People’s petition to grant use immunity to father and stepmother under
section 1324, and a letter from a senior attorney at the United States Attorney’s office in
their district, which essentially expressed the office’s current lack of interest in
prosecuting father and stepmother for recording telephone conversations between the
minor and mother.
       After engaging in an extensive discussion with counsel, the juvenile court denied
the prosecutor’s request to grant use immunity and “decline[d] to make an order requiring
that the father or stepmother testify in these proceedings.” The court explained:

       “The most compelling argument of those I think is the issue of the federal
       prosecution. This letter doesn’t—assuming, and I note the objection under
       hearsay which is valid, one, it’s not under penalty of perjury; but two, the
       substance of it is what’s the most troubling. It’s not an agreement to forego
                                               3
       prosecution. It’s simply an expression of their disinterest in prosecuting.
       That doesn’t go very far as far as I’m concerned. So based on the letter
       from the U.S. Attorney’s Office, I think the provision of [section] 1324 are
       applicable in that there is still the prospect of these folks, father and
       stepmother, being prosecuted in another jurisdiction, and there would be
       nothing I could do under this grant of immunity to forego that and to
       protect them from a new prosecutor in the federal system where a federal
       judge might think otherwise.”
       The juvenile court next granted the minor’s motion to strike father’s brief
testimony preceding his invocation of his Fifth Amendment privilege against self-
incrimination. After the prosecutor advised the court the People were unable to proceed
in light of the court’s ruling denying use immunity to father and stepmother, the court
granted the minor’s motion to dismiss the petition with prejudice.
       On October 7, 2013, the People filed a timely notice of appeal from “[a]ll findings
and rulings resulting in the court’s dismissal of the action on September 18, 2013.” The
notice of appeal specified that the order appealed from was “[a]n order or judgment
dismissing or otherwise terminating the action pursuant to subdivision (4) of paragraph
(b) of Welfare and Institutions Code section 800.”
                                       DISCUSSION
       The People contend the juvenile court erred in denying their request to compel the
testimony of father and stepmother by granting them use immunity under section 1324.
As a preliminary matter, we reject the minor’s claim that the People forfeited their right
to challenge the order dismissing the juvenile wardship petition by failing to make a
specific objection to the dismissal of the petition with prejudice.
       Before the juvenile court granted the minor’s request to dismiss the petition with
prejudice, the prosecutor expressly advised the court that the People were not moving to
dismiss the petition but simply were unable to proceed due to the court’s ruling denying
the People’s request to grant use immunity to father and stepmother. The People
properly challenged this ruling by filing a timely appeal from the order dismissing the
petition.
                                              4
       It is undisputed that the minor was not placed in jeopardy prior to the dismissal of
the petition. Therefore, his appeal is authorized by Welfare and Institutions Code section
800, subdivision (b)(4), which provides that the People may appeal an order or judgment
dismissing a juvenile wardship petition before the juvenile has been placed in jeopardy.
(See, e.g., In re Ricardo C. (1995) 37 Cal.App.4th 431, 436-437 [In enacting Welf. &
Inst. Code, § 800, subd. (b)(4), the Legislature clearly intended the People to have the
right to appeal dismissal orders or judgments, including dismissals premised on pretrial
evidentiary rulings].) No more was required to preserve for appellate review the People’s
current challenge to the court’s ruling denying use immunity to father and stepmother,
which effectively precluded the prosecution from calling as witnesses the alleged victims
of the charged crimes.2
       Turning to the question of whether the juvenile court erred in denying the People’s
request to grant use immunity to father and stepmother under section 1324, we initially
observe the court proceeded correctly by interrupting father’s testimony at the Evidence
Code section 402 hearing and appointing counsel to consult with father and stepmother
on potential issues of self-incrimination which might arise from their testimony regarding
the telephonic recordings at issue.3 California Rules of Court, rule 5.548, which governs

2       Contrary to the minor’s suggestion, there is no indication the juvenile court exercised its
discretion to dismiss the petition with prejudice in “the interests of justice and the welfare of the
[minor]” under Welfare and Institutions Code section 782. Rather, it appears the dismissal
resulted directly from the People’s stated inability to proceed with their case due to the denial of
use immunity to father and stepmother. Citing the court’s acceptance of father’s reassurances
that he wished the minor to be returned to his custody after the case was dismissed (instead of
following the court’s initial inclination to refer the matter to child protective services), the minor
suggests renewal of the juvenile court proceedings will frustrate the interests of justice by
undermining father’s efforts to “heal their relationship.” In concluding there is no evidence the
court intended to exercise its discretion under Welfare and Institutions Code section 782, we
express no opinion on whether dismissal of the reinstated petition would be appropriate under
this provision and the minor is free to address to the juvenile court, on remand, his argument that
dismissal would serve the interests of the justice.
3       Because the court ordered all of father’s testimony stricken, we reject the minor’s
assertion—which is based on father’s stricken testimony that he was the one who made the
recordings of the minor’s telephone conversations with mother—that the court did not err in
                                                  5
requests for immunity in juvenile delinquency cases, provides: “If a person is called as a
witness and it appears to the court that the testimony or other evidence being sought may
tend to incriminate the witness, the court must advise the witness of the privilege against
self-incrimination and of the possible consequences of testifying.” (Cal. Rules of Court,
rule 5.548, subd. (a).)
       The rule further provides: “In proceedings under [Welfare and Institutions Code]
section 602, the prosecuting attorney may make a written or oral request on the record
that the court order a witness to answer a question or produce evidence. The court must
then proceed under … section 1324.” (Cal. Rules of Court, rule 5.548, subd. (c).)
Section 1324 provides, in relevant part:

       “In any felony proceeding … if a person refuses to answer a question or
       produce evidence of any other kind on the ground that he or she may be
       incriminated thereby, and if the district attorney … requests the court … to
       order that person to answer the question or produce the evidence, … the
       court shall order the question answered or the evidence produced unless it
       finds that to do so would be clearly contrary to the public interest, or could
       subject the witness to a criminal prosecution in another jurisdiction, and
       that person shall comply with the order.” (Italics added.)4

denying use immunity to stepmother because she did not “physically record” the telephone
conversations and therefore could not offer any relevant testimony at the hearing on the minor’s
in limine motion to exclude the recordings. Even if stepmother did not physically make the
audio-recordings of the minor’s telephone conversations, the court reasonably perceived her
testimony on the subject could tend to incriminate her because the minor’s motion to exclude the
recordings alleged that stepmother listened to and transcribed the contents of the recordings,
which she brought to the police department. The minor’s motion also implied that stepmother
eavesdropped on his telephone conversations with mother. Thus, the minor’s motion alleged
various forms of conduct by stepmother which could arguably subject her to criminal liability
under the state and federal statutes cited by the minor. (See, e.g., 18 U.S.C. 2511; see also,
§ 632.)
4       In its entirety, section 1324 provides: “In any felony proceeding or in any investigation
or proceeding before a grand jury for any felony offense if a person refuses to answer a question
or produce evidence of any other kind on the ground that he or she may be incriminated thereby,
and if the district attorney of the county or any other prosecuting agency in writing requests the
court, in and for that county, to order that person to answer the question or produce the evidence,
a judge shall set a time for hearing and order the person to appear before the court and show
cause, if any, why the question should not be answered or the evidence produced, and the court
                                                 6
       Although a variety of concerns were addressed at the hearing on the People’s
petition to grant use immunity to father and stepmother under section 1324, the record
clearly indicates the court based its ruling denying the People’s request on the court’s
primary concern, which was that an order granting immunity to father and stepmother
would not be binding on federal courts or prosecutors and therefore their compelled
testimony in these proceedings could subject them to criminal prosecution in another
jurisdiction within the meaning of section 1324. The court’s concern for protecting the
witnesses’ Fifth Amendment privilege against self-incrimination was very commendable,
but misplaced in this particular case because a grant of use immunity under section 1324
would have sufficed to protect the witnesses’ Fifth Amendment rights as their immunized
testimony in this case could not be used against them in any later criminal proceedings.
       “Under California law, a witness may not be prosecuted for any act about which
he or she was required by the district attorney to testify. (§ 1324.) In addition to broad
transactional immunity, there is also ‘use immunity’—‘[i]mmunity from the use of
compelled testimony, as well as evidence derived directly and indirectly therefrom ....’
[Citation.] Use immunity does not afford protection against prosecution, but merely
prevents a prosecutor from using the immunized testimony against the witness. Use
immunity provides sufficient protection to overcome a Fifth Amendment claim of



shall order the question answered or the evidence produced unless it finds that to do so would be
clearly contrary to the public interest, or could subject the witness to a criminal prosecution in
another jurisdiction, and that person shall comply with the order. After complying, and if, but
for this section, he or she would have been privileged to withhold the answer given or the
evidence produced by him or her, no testimony or other information compelled under the order
or any information directly or indirectly derived from the testimony or other information may be
used against the witness in any criminal case. But he or she may nevertheless be prosecuted or
subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in
answering, or failing to answer, or in producing, or failing to produce, evidence in accordance
with the order. Nothing in this section shall prohibit the district attorney or any other
prosecuting agency from requesting an order granting use immunity or transactional immunity to
a witness compelled to give testimony or produce evidence.”
                                                7
privilege. Transactional immunity is not constitutionally required.” (People v. Cooke
(1993) 16 Cal.App.4th 1361, 1366.)
       The United States Supreme Court in Kastigar v. United States (1972) 406 U.S.
441 (Kastigar), held that the scope of immunity granted under an immunity statute must
be coextensive with the scope of the Fifth Amendment privilege against self-
incrimination to justify supplanting the privilege and compelling a witness to testify.
(Kastigar, at pp. 449, 459.) The court held that immunity from use and derivative use
affords the same protection as the privilege by assuring that the compelled testimony
cannot lead to criminal penalties, and therefore is sufficient to compel testimony when a
witness invokes the privilege. (Id. at pp. 453, 461.) The court further held that, once a
defendant shows that his testimony on matters related to the present prosecution was
compelled by a grant of immunity, the prosecution must show that the evidence it
proposes to use was derived from sources wholly independent of the compelled
testimony. (Id. at p. 460.) A hearing where the prosecution must show that its evidence
was derived from independent sources is known as a Kastigar hearing. (See, e.g., U.S. v.
Anderson (9th Cir. 1996) 79 F.3d 1522, 1526.)
       Applying these authorities here, the prosecutor was correct in arguing that a grant
of use immunity under section 1324 is coextensive with the scope of the Fifth
Amendment privilege against self-incrimination and therefore the juvenile court could
order father and stepmother to testify under a grant of use immunity without violating
their Fifth Amendment rights. Kastigar teaches that, had such immunity been conferred,
at any later prosecution of father or stepmother in connection with the telephonic
recordings at issue, the prosecutor would be required to prove the evidence offered was
not obtained or derived from father and stepmother’s immunized testimony in the minor’s
adjudication. In other words, although the witnesses could potentially face prosecution in
federal court, as the juvenile court feared, the prosecution could not permissibly be based
on testimony compelled from the witnesses under a grant of use immunity in this case.
                                             8
       Thus, the People correctly argued below that a federal court would be bound by
the juvenile court’s grant of use immunity in the sense that a federal court would be
committing constitutional error if it were to permit the witnesses to be criminally
prosecuted based on self-incriminating testimony they were compelled to give under the
state immunity statute. The minor essentially concedes this point on appeal, but argues
that the court’s denial of use immunity to father was nonetheless proper based on the
court’s concern that immunity would not have protected father from having his testimony
used against him in a later contempt proceeding for violating his family court order,
which expressly prohibited father from recording the minor’s telephone conversations
with mother.
       The record does not indicate that any concern regarding father’s family law case
ultimately factored into the juvenile court’s ruling to deny the People’s request to grant
father use immunity. However, we agree with the People that the provision of section
1324 barring the use of immunized testimony in any criminal case would also apply in a
contempt proceeding premised on a violation of father’s family court order, which, as the
People point out in their reply brief, provides that failure to obey the order shall be
deemed a violation of various Penal Code sections which provide for criminal penalties.
“A civil contempt proceeding is criminal in nature because of the penalties that may be
imposed. [Citation.] Alleged contemners are entitled to most constitutional rights
guaranteed to all criminally accused persons. [Citation.] Thus, an alleged contemner is
entitled to the presumption of innocence until proven guilty ‘beyond a reasonable doubt.’
[Citation.] Fifth Amendment rights are similarly guaranteed.” (In re Witherspoon (1984)
162 Cal.App.3d 1000, 1001-1002, fn. omitted.)
       Because the record shows the juvenile court exercised its discretion to deny the
People’s request to grant use immunity to father and stepmother under section 1324 was
based on an incorrect legal assumption that the witnesses’ compelled testimony could be
used against them in a later criminal prosecution in another jurisdiction, we agree with
                                              9
the People that the court order dismissing the juvenile wardship petition should be
reversed. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [discretionary
decision may be reversed if improper criteria were applied or incorrect legal assumptions
were made].)
                                     DISPOSITION
       The order dismissing the juvenile wardship petition with prejudice is reversed.
The matter is remanded to the juvenile court with directions to reinstate the petition and
conduct further proceedings consistent with the views expressed in this opinion.



                                                                 _____________________
                                                                             HILL, P. J.
WE CONCUR:


 _____________________
LEVY, J.


 _____________________
PEÑA, J.




                                            10
