CENTRAL CALIFORNIA APPELLATE PROGRAM

The Indian Child Welfare Act (ICWA) section 224.2, subdivision (b) initial inquiry requirements do not apply when a minor is brought into custody pursuant to a warrant (section 340). The minor was removed from his parents pursuant to a detention warrant. Mother denied Indian ancestry and Father claimed Cherokee ancestry. The Cherokee Nation said that the minor was not eligible to be enrolled in the tribe. Father appealed the jurisdictional and dispositional findings that adjudged the minor as a dependent of the court and removed minor from his custody, raising an ICWA initial inquiry failure. The appellate court affirmed. Division two of the Fourth Appellate District followed the precedent in In re Robert F. (2023) 90 Cal.App.5th 492 and In re Ja.O. (2023) 91 Cal.App.5th 672 and declined to follow the holding in In re Delila D. (2023) 93 Cal.App.5th 953 (Delila D.). [Editor’s Note: Justice Slough wrote a concurring opinion following the reasoning of Delila D.]

Caretaker was entitled to a hearing on removal of minors in her care where the record showed a failure to provide caretaker with proper notice of removal. The minors were removed from their parents and placed with paternal grandparents. At the section 366.26 hearing, parental rights were terminated and adoption was chosen as the minors’ permanent plan. At the .26 hearing, minors’ counsel raised concerns about paternal grandfather’s alcohol use and a subsequent drug test found methamphetamine. The minors were removed pursuant to an emergency removal. The proof of notice filed with the court said that paternal grandmother (PGMA) was given notice of the removal “orally, in person” and did not reflect that PGMA was provided the required JV-324, JV-325, and JV-321 forms. Two weeks later, PGMA filed an objection to removal and requested a hearing. The juvenile court never held a hearing. Almost six months later, PGMA filed a section 388 petition, asking that the minors be returned to her care. The juvenile court denied the petitions without a hearing, finding that the objection to removal was untimely. The appellate court reversed the orders. The court is required to hold a hearing if the caretaker timely files a petition. The caretaker has standing and a right to present evidence and argument at the hearing. The period for filing an objection to removal begins to run on the date the caretaker is served with notice of the removal. Here, PGMA was not properly noticed of the removal because she was not given copies of the required forms. Thus, the five-day deadline to file an objection and request a hearing had not begun to commence when PGMA filed her objections. The matter must be remanded for a hearing on whether the minors should be returned to PGMA’s care.

When an appellate opinion is admitted at a Penal Code section 1172.6(d)(3) hearing without objection, the facts it recites constitute substantial evidence on which the trial court can rely. Vance’s section 1170.95 (now 1172.6) petition for resentencing in his first degree felony murder case was denied after a (d)(3) hearing. On appeal, he argued the trial court erred in relying upon the facts in the Court of Appeal’s opinion in the direct appeal. Held: Affirmed. Senate Bill No. 1437 narrowed the liability for murder and created a procedure whereby defendants who could no longer be convicted of murder could seek relief (§ 1172.6). While initially providing that the record of conviction was admissible at an evidentiary hearing, section 1172.6 was amended to provide that the court may consider the procedural history of the case recited in an appellate opinion. This reflects an intent to prohibit use of the opinion’s factual summary. However, there may be circumstances where a petitioner prefers to offer the opinion to the trial court. When an appellate opinion is admitted at a (d)(3) hearing without objection, “it is substantial evidence that the trial court can consider.” Vance forfeited any objection to such consideration. Improper reliance on the opinion is evaluated under a state harmless error standard, which Vance failed meet.

In a section 1172.6 proceeding, the trial court’s erroneous use of a substantial evidence test is not reversible per se and instead is subject to the state law harmless error standard. Vance also argued the trial court erred by merely finding there was substantial evidence that he was guilty and failing to find him guilty beyond a reasonable doubt. He further argued that the failure to find guilt beyond a reasonable doubt is reversible per se. The Court of Appeal disagreed. Section 1172.6 provides that at a hearing on the resentencing petition, the burden is on the prosecution to prove beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder under current California law. Here, the trial court erroneously denied the petition based on substantial evidence that Vance was the actual killer, or, alternatively, that there was substantial evidence that he was a major participant and acted with reckless indifference. However, applying the wrong burden of proof at an evidentiary hearing under section 1172.6 is not reversible per se; the state law “reasonably probable” standard applies. As Vance relied solely on the per se standard, he forfeited any claim the error was prejudicial.