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March 12, 2026 Get Citation Alerts Download PDF Add Note

In re S.W. CA1/5

California Court of Appeal

• Citations: None known
• Docket Number: A169378A

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

Filed 3/12/26 In re S.W. CA1/5
Opinion after recalling remittitur
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re S.W., a Person Coming Under
the Juvenile Court Law.

---

THE PEOPLE, A169378

Plaintiff and Respondent, (City & County of San Francisco
Super. Ct. No. JW22-6034)
v.

S.W.,
Defendant and Appellant.

Defendant S.W. appeals the juvenile court’s jurisdictional order,
contending that the court improperly reviewed his probation report and
related motions before determining jurisdiction, in violation of Welfare and
Institutions Code section 701 and California Rules of Court, rule 5.780(c).1
S.W. further contends that this error was prejudicial because the victim’s
identification of him as one of the perpetrators of the robbery was unreliable
and inconclusive. We agree and reverse.

1 All further statutory references are to the Welfare and Institutions Code

and all further rule references are to the California Rules of Court, unless
otherwise specified.

1
I. BACKGROUND
A. Procedural History
On July 19, 2023, an amended juvenile wardship petition was filed
against S.W., alleging that he committed second degree robbery (Pen. Code,
§ 211; count I) and was an accessory after the fact — knowledge of crime (id.,
§ 32; count II). The juvenile court held a contested jurisdictional hearing at
which both the victim and a defense expert in eyewitness identification
testified.
Following the hearing, the juvenile court found that the second degree
robbery allegations had been proven beyond a reasonable doubt and
sustained the petition as to count I. The court dismissed count II. At the
disposition hearing, the court declared S.W. a ward of the court and placed
him on probation in the custody of his parents with a maximum confinement
time of three years. S.W. timely appealed.
On June 7, 2024, S.W. filed a Wende2 brief. We conducted an
independent review of the record and affirmed the judgment in In re S.W.
(Aug. 27, 2024, A169378) [nonpub. opn.]. A remittitur subsequently issued.
On August 19, 2025, S.W. filed a motion to recall the remittitur, citing In re
S.R. (July 18, 2025, A169269) [nonpub. opn.], a case in which Division Four of
this court reversed the juvenile court’s jurisdictional order as to coparticipant
S.R., who was tried together with S.W. We granted S.W.’s motion on October
7, 2025.3

2 People v. Wende (1979) 25 Cal.3d 436.
3 We grant S.W.’s unopposed request for judicial notice of the People’s

response to motion to recall the remittitur as well as In re S.R., supra,
A169269. (See People v. Woodell (1998) 17 Cal.4th 448, 455 [a court may take
“ ‘ “judicial notice of the existence of judicial opinions . . ., along with the truth
of the results reached” ’ ”].)

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B. The Robbery
On March 18, 2022, Marcus C. was walking by a parking lot in the late
afternoon when he noticed a dark gray or black sedan drive through the
parking lot and then slow down significantly. Moments later, three men
wearing masks rushed towards him, demanding that he give them his watch
and wallet. Marcus C. either fell or was pushed to the ground and was lying
on his back. Two of the men were holding handguns, and the third was
holding an assault rifle. Marcus C. screamed as the men tried to reach into
his pockets. The man to Marcus C.’s left took Marcus C.’s watch off his wrist,
struck him in the forehead with the butt of his gun, and yelled “ ‘faggot.’ ”
The three men then got back into the sedan and drove off.
After the police arrived at the scene, Marcus C. identified the sedan as
a Mercedes and described the three suspects as “black men in their 20’s”
“wearing black clothing . . . .” He further noted that one suspect “had an olive
green and black scarf.”
Roughly four and a half hours after the robbery, the police arrested
S.W. outside of a parking garage along with three other suspects inside the
garage. The police found Marcus C.’s watch in the center console of a car that
matched the description Marcus C. had provided.4 S.W. was 17 years old and
was wearing a red hoodie at the time of his arrest.
Later that month, the probation department filed a detention report
that included a summary of the police incident report. The report noted that
after the robbery, the police “conducted a high risk felony stop” of the subject
Mercedes after its occupants were linked to “separate auto burglaries.” After

4 The parties stipulated to these facts at the jurisdictional hearing.
The
stipulation did not, however, state where the car was located in relation to
where the suspects were arrested.

3
the Mercedes stalled in front of a parking garage, the suspects, including
S.W., fled on foot and were arrested. None of this information was presented
through evidence properly introduced at the jurisdictional hearing.
In May 2022, S.W. filed a motion for voluntary probation. The motion
stated that three firearms were found at the scene where the Mercedes had
stalled and that S.W. was the driver of the Mercedes, although he was not in
possession of any of the firearms. The motion further noted that S.W. wrote
to defense counsel that he “felt ‘very remorseful for what he did and the role
he played and how it affected [Marcus C.’s] life.’ ” The juvenile court denied
the motion. S.W. filed two subsequent motions for voluntary probation that
the court also denied. The third motion included a February 2023 e-mail
from Assistant District Attorney (ADA) Kasie Lee to defense counsel, which
stated that after Marcus C. saw S.W. on video at a hearing in November
2022, he told her that “he recognized S.W. as the individual who pistol
whipped him.”5 Lee’s e-mail continued that Marcus C. “had made a similar
disclosure to ADA Ivan Rodriguez in May . . . 2022.”
C. The Jurisdictional Hearing
Beginning October 31, 2023, the juvenile court held a contested
jurisdictional hearing as to both S.W. and S.R that lasted several days. At
the start of the hearing, the court granted defense counsel’s request that
motions and objections made by one minor were to be deemed made by the
other minor.
1. Marcus C.’s Testimony
Marcus C. testified that on March 23, 2022, five days after the robbery,
he attended a hearing by video conference and saw the suspects’ faces. He
recognized S.W. by his eyes and hair as the man on his left who had struck

5 This e-mail was admitted into evidence at the jurisdictional hearing.

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him with a pistol. Specifically, Marcus C. described the eyes as “beadier . . .
not wide eyes” and the hair as “short braids or dreads.” He also recognized
S.R. by his eyes as the man on his right during the robbery. Marcus C.
explained that he did not initially give these descriptions to the police
because he “had just been attacked . . . [and] was covered in blood” and
“really just wanted to get to the hospital.” He testified that he told ADA Lee
about his March identification and requested a formal lineup, which never
occurred. Marcus C. continued that he subsequently saw and recognized
S.W. and S.R. at several other remote hearings. He then made an in-court
identification of both S.W. and S.R.
In July 2023, Marcus C. provided a statement to the police regarding
his identification of S.W. and S.R., and a recording of that statement was
admitted into evidence. In his statement, Marcus C. reiterated that he
recognized the minors by their eyes at the first court hearing and that S.W.
was the one who pistol whipped him. As for his original description of the
suspects as “black males in their twenties and thirties,” Marcus C. explained
that “seventeen can also look like a fully grown adult male” but conceded that
“[S.R. is] probably Hispanic.” At the jurisdictional hearing, when asked
whether it was “apparent . . . that [S.R. was] not black,” Marcus C. testified
that S.R. was “a person of color” who “could be of mixed race.” He concluded
that he was “95 percent certain” that S.W. and S.R. were the ones on his left
and right, respectively, during the robbery.
2. Minor’s Expert Testimony
The defense called an expert in eyewitness identification and memory
reconstruction. The expert identified multiple factors that cast doubt on
Marcus C.’s identification of S.W. and S.R. These included exposure time to
the suspect, whether the suspect was disguised, whether the witness was

5
distracted (particularly by the presence of a weapon), and how much time
passed before the identification. Another factor was cross-racial
identification, and the expert explained that people are “more accurate
identifying people of [their] own race rather than people of a different race or
ethnicity.” Finally, the expert testified that an in-court identification of a
suspect “is a highly biased form of information that should not be considered
reliable or accurate.”
Based on a hypothetical including all of those factors, the expert opined
that she would have doubts as to how clearly a witness like Marcus C. saw
the suspects and the reliability of his in-court identification of them.
3. Judicial Notice of File
On the first day of the jurisdictional hearing, S.R.’s counsel asked the
juvenile court to take judicial notice of the court minutes. The court
responded that it “will take judicial notice of everything in the file” and
review “these files . . . during the trial.” No counsel objected.
After the juvenile court determined jurisdiction on November 2, 2023,
S.R.’s counsel asked whether the court had reviewed “the court file,” which
contained “probation reports, motions” and “possibly a police report.” The
court responded that it did not review the police report but “read all of the
other stuff.” Counsel then highlighted, “So the probation reports, for
example, would have made factual assertions with regard to [the] integrity of
what happened. But did the [c]ourt take that into consideration with regard
to this ruling?” The court replied that it took judicial notice of the entire file
as requested, to which counsel stated, “[w]ell, specifically on moving the
minutes into evidence.”
At this point, the juvenile court stated that it would “decline to offer a
Statement of Decision, if that’s what [counsel was] asking,” and proceeded to

6
inform the minors of their rights to appeal. S.R.’s counsel then noted, “I just
want to clarify for the record lest that we appeal, my only request was for the
[c]ourt to take judicial notice of the court minutes.” The court reiterated,
“Well, I took the judicial notice of the entire file which . . . included many
home detention[ ] [reports], many, all of which were sterling, outstanding
. . . . I want to commend both [S.W. and S.R.] for that. That’s all I’m going to
say.”
II. DISCUSSION
A. Law and Standard of Review
The history of section 701 “indicates that the Legislature intended to
create a bifurcated juvenile court procedure in which the court would first
determine whether the facts of the case would support the jurisdiction of the
court in declaring wardship and thereafter would consider the social study
report at a hearing on the appropriate disposition of that ward.” (In re
Gladys R. (1970) 1 Cal.3d 855, 859 (Gladys R.).) The primary purpose of the
jurisdictional hearing “is to determine whether sufficient evidence exists to
declare the minor a ward of the juvenile court. [Citations.] If the court finds
that the minor is a person described in section 602, the court must . . .
determine whether the minor’s offense would be a misdemeanor or a felony if
committed by an adult. [Citations.] The court then proceeds to hold a
disposition hearing.” (In re P.A. (2012) 211 Cal.App.4th 23, 31–32.)
At the jurisdictional hearing, “[t]he admission and exclusion of evidence
shall be pursuant to the rules of evidence established by the Evidence Code
and by judicial decision. Proof beyond a reasonable doubt supported by
evidence, legally admissible in the trial of criminal cases, must be adduced to
support a finding that the minor is a person described by [Welfare &
Institutions Code] [s]ection 602.” (Welf. & Inst. Code, § 701.) Rule 5.780(c)

7
further provides that the juvenile “court must not read or consider any
portion of a probation report relating to the contested petition before or
during a contested jurisdiction hearing.” (Italics added.)
The juvenile court’s erroneous consideration of a probation report
before determining jurisdiction is reviewed for harmless error under People v.
Watson (1956) 46 Cal.2d 818. Under that standard, we determine whether “it
is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (Id. at p. 836.)
B. Forfeiture and Invited Error
The People contend that S.W. forfeited his claim by failing to
adequately object below. While we agree that defense counsel could have
been more explicit in objecting to the juvenile court’s review of the probation
reports, we find that counsel nonetheless sufficiently raised the issue to
preserve it for appeal.
“An objection is sufficient if it fairly apprises the trial court of the issue
it is being called upon to decide. [Citations.] In a criminal case, the objection
will be deemed preserved if, despite inadequate phrasing, the record shows
that the court understood the issue presented.” (People v. Scott (1978) 21
Cal.3d 284, 290.) Here, defense counsel only asked the juvenile court to take
judicial notice of the court minutes. The court then, on its own initiative,
took judicial notice of the entire court file. Although counsel did not object at
that time, the court also stated that it had not yet reviewed the file so counsel
arguably had no reason to believe that the court would review materials in
the file it was prohibited from reviewing. Indeed, the prosecution suggested
that the court would only be reviewing the court minutes, by responding, “if
for some reason [the minutes are] not in there, then I think we can bring this
back up.”

8
But as the People concede, following the hearing, defense counsel did
object that the file contained “probation reports, motions, [and] oppositions,”
all of which contained “factual assertions with regard to [the] integrity of
what happened.” This fairly apprised the juvenile court that its review of the
probation reports, as well as any summary of those reports in the detention
reports, was improper. In any event, to the extent the court did not
understand the issue based on its colloquy with counsel, we exercise our
discretion to reach the merits. (People v. Williams (1998) 17 Cal.4th 148, 161,
fn. 6 [“An appellate court is generally not prohibited from reaching a question
that has not been preserved for review by a party”].)
We also reject the People’s claim of invited error. Invited error bars a
claim on appeal “when a defendant, for tactical reasons, makes a request
acceded to by the trial court and claims on appeal that the court erred in
granting the request.” (People v. Russell (2010) 50 Cal.4th 1228, 1250.)
Here, defense counsel only asked the juvenile court to take judicial notice of
the court minutes. The court, however, took judicial notice of “everything in
the file” on its own motion. At the conclusion of the hearing, counsel raised a
concern that the file contained probation reports and motions that the court
should not consider at the jurisdictional hearing and the court again
responded that it had taken judicial notice of the entire file. Counsel then
reiterated that he only asked the court to take judicial notice of the court
minutes. On these facts, we find no invited error.
C. Prejudicial Error
Turning to the merits, we hold that the juvenile court’s review of
probation reports and related documents in the court file prejudiced S.W.
because the evidence presented at the jurisdictional hearing was close and
did not conclusively establish that S.W. was involved in the robbery.

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If the jurisdictional facts presented at the hearing are “far from
conclusive,” the juvenile court’s review of the probation report prior to
determining jurisdiction constitutes prejudicial error. (Gladys R., supra, 1
Cal.3d at p. 862.) Thus, if the “determination of jurisdiction” is made by
“closely balanced evidence,” reversal is proper. (In re James B. (2003) 109
Cal.App.4th 862, 875.)
At the jurisdictional hearing, the parties stipulated that S.W. was
arrested outside of a parking garage four and a half hours after the robbery
and that Marcus C.’s watch was found in a car matching the description that
Marcus C. had given to the police. But the stipulation did not describe the
car’s location in relation to where S.W. was arrested or any other facts
connecting S.W. to the car or watch. And there was no evidence at the
hearing connecting S.W. to the car or watch. Indeed, the only evidence of this
connection came from the probation report and other related documents in
the court file that the court should not have reviewed or considered.
Instead, to establish S.W.’s guilt, the prosecution primarily relied on
Marcus C.’s in-court identification of S.W. as the one who had pistol whipped
him. But there were several issues with Marcus C.’s testimony that cast
doubt on the reliability of his identification of S.W.
First, Marcus C. testified that he immediately recognized S.W., even
though the attacker was masked, at a remote court hearing five days after
the robbery based solely on S.W.’s eyes and hair. But this initial
identification was problematic because S.W. was appearing in court as a
suspect. (People v. Ochoa (1998) 19 Cal.4th 353, 413 [an identification
“ ‘procedure is unfair which suggests in advance of identification by the
witness the identity of the person suspected by the police’ ”].) As the defense
expert explained, “an in-court identification is a highly biased form of

10
information.” Compounding this potential bias, Marcus C. saw S.W. on video
at several more hearings before his in-court identification at the
jurisdictional hearing.
Second, Marcus C. initially described the suspects as “black men in
their 20’s” to the police. But both S.W. and S.R. were 17 years old at the time
of the robbery, and S.R. is a light-skinned Latino.
Third, Marcus C. did not provide the police with a formal identification
of S.W. as one of his attackers until July 2023, well over a year after the
robbery and after he had already seen S.W. on video at numerous court
hearings.
Finally, Marcus C. testified that he told ADA Lee that he recognized
S.W. after the first court hearing in March 2022. But Lee did not appear in
this case until August 2022.
Based on these issues and the factors, such as limited exposure,
distractions, and the presence of guns, identified by S.W.’s expert as casting
doubt on Marcus C.’s identification of S.W. as one of his attackers, we
conclude that the evidence of S.W’s guilt was “far from conclusive.” (Gladys
R., supra, 1 Cal.3d at p. 862.) We therefore find prejudicial error. (Ibid.)
III. DISPOSITION
The juvenile court’s jurisdictional order is reversed.

CHOU, J.

WE CONCUR.

SIMONS, ACTING P. J.
BURNS, J.

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