BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 1296 (Leno)                                             6
          As Introduced: February 21, 2014 
          Hearing date:  April 8, 2014
          Code of Civil Procedure and 
            Welfare and Institutions Code
          AA:sl

                                   JUVENILE JUSTICE:
                                       TRUANCY  

                                       HISTORY

          Source:  Youth Law Center; East Bay Children's Law Offices

          Prior Legislation: None

          Support: All of Us or None; Alliance for Children's Rights;  
                   California Attorneys for Criminal Justice (CACJ);  
                   California Catholic Conference of Bishops; California  
                   Probation, Parole and Correctional Association (CPPCA);  
                   California Public Defenders Association; Chief  
                   Probation Officers of California (CPOC); Children's  
                   Defense Fund of California (CDF-CA); Children's Law  
                   Center of California; Coalition for Juvenile Justice;  
                   Community Rights Campaign; Ella Baker Center for Human  
                   Rights; Friends Committee on Legislation of California;  
                   John Burton Foundation for Children Without Homes;  
                   Legal Advocates for Children and Youth; National  
                   Association for the Education of Homeless Children and  
                   Youth; Pacific Juvenile Defender Center; Public  
                   Defender of the City and County of San Francisco;  
                   Public Counsel

          Opposition:Unknown



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                                         KEY ISSUE
           
          SHOULD THE LAW PROVIDE THAT A STATUS OFFENDER WHO IS BEFORE THE  
          COURT SOLELY ON THE GROUND THAT HE OR SHE IS IN WILLFUL  
          DISOBEDIENCE OR INTERFERENCE WITH A LAWFUL COURT ORDER RELATING  
          TO THE MINOR'S TRUANCY SHALL NOT BE DETAINED IN A SECURE  
          FACILITY?    

          

                                       PURPOSE

          The purpose of this bill is to prohibit secured detention as a  
          sanction for truants who are found in contempt of court solely  
          on the grounds of failing to comply with a court order relating  
          to the truancy, as specified.  

           Under current law  , the purpose of juvenile court law "is to  
          provide for the protection and safety of the public and each  
          minor under the jurisdiction of the juvenile court and to  
          preserve and strengthen the minor's family ties whenever  
          possible, removing the minor from the custody of his or her  
          parents only when necessary for his or her welfare or for the  
          safety and protection of the public."  (Welfare and Institutions  
          Code ("WIC") § 202.) 

           Current law  generally provides for the jurisdiction of the  
          juvenile court over a person under the age of 18 who  
          "persistently or habitually refuses to obey the reasonable and  
          proper orders or directions of his or her parents, guardian, or  
          custodian, or who is beyond the control of that person," or who  
          violates curfew offenses, as specified.  (WIC § 601.)  These  
          types of offenses are known generally as "status" offenses -  
          acts that are illegal only if committed by juveniles (typically,  
          running away, disobeying parents, curfew violations and  
          truancy).
           
          Current law  provides that if "a minor has four or more truancies  
          within one school year . . . or a school attendance review board  
          or probation officer determines that the available public and  
          private services are insufficient or inappropriate to correct  
          the habitual truancy of the minor, or to correct the minor's  


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          persistent or habitual refusal to obey the reasonable and proper  
          orders or directions of school authorities, or if the minor  
          fails to respond to directives of a school attendance review  
          board or probation officer or to services provided, the minor is  
          then within the jurisdiction of the juvenile court which may  
          adjudge the minor to be a ward of the court. However, it is the  
          intent of the Legislature that no minor who is adjudged a ward  
          of the court pursuant solely to this subdivision shall be  
          removed from the custody of the parent or guardian except during  
          school hours. . . ."  (Welfare and Institutions Code § 601(b).)

           This bill  would revise the legislative intent language in this  
          subdivision to also state that minors adjudged wards of the  
          court solely because of truancy shall not be held in a secure  
          facility, except for the purposes of school attendance.

           Current law  strictly limits the detention of status offenders in  
          any jail, lockup, juvenile hall, or other secure facility, as  
          specified.  (WIC § 207.)    

           This bill  would enact a new statute providing that a "person  
          under 18 years of age shall not be detained in a secure  
          facility,<1> solely upon the ground that he or she is in willful  
          disobedience or interference with any lawful order of the  
          juvenile court, if the basis of an order of contempt is the  
          failure to comply with a court order pursuant to subdivision (b)  
          of Section 601 (truancy, as defined above). Upon a finding of  
          contempt of court, the court may issue any other lawful order,  
          as necessary, to ensure the minor's school attendance."

           Current law  enumerates specified acts or omissions with respect  
          to a court of justice or proceedings therein which are contempt  
          of the authority of the court, including "(d)isobedience of any  
          lawful judgment, order, or process of the court."  (Code of  
          Civil Procedure § 1209(a)(5).)

           Current law  generally provides that when the contempt consists  
          of the omission to perform an act which is yet in the power of  
          the person to perform, he or she may be imprisoned until he or  
          she has performed it, and in that case the act shall be  
          ---------------------------
          <1>   Specifically, "secure facility" as defined in Section 206  
          of the Welfare and Institutions Code.

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          specified in the warrant of commitment.  (CCP § 1219(a).)

           Current law  excepts from this authority "the victim of a sexual  
          assault or domestic violence crime for contempt when if the  
          contempt consists of refusing to testify concerning that sexual  
          assault or domestic violence crime, as specified."  (CCP §  
          1219(b).)  

           This bill  additionally would provide that, "(n)otwithstanding  
          any other law, a court shall not imprison, hold in physical  
          confinement,<2> or otherwise confine or place in custody a minor  
          for contempt if the contempt consists of the minor's failure to  
          comply with a court order (relating to truancy, as specified)<3>  
          if the minor was adjudged a ward of the court on the ground that  
          he or she is a (truant, as defined) . . . . Upon a finding of  
          contempt of court, the court may issue any other lawful order,  
          as necessary, to secure the minor's attendance at school."

                     RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy, known as "ROCA"  
          ---------------------------
          <2>   This bill would define "physical confinement" to have the  
          same meaning as defined in subdivision (d) of Section 726 of the  
          Welfare and Institutions Code.
          <3>   Welfare and Institutions Code section 601(b) and 727, the  
          latter providing the general statutory authority for juvenile  
          courts to make any "reasonable orders for the care, supervision,  
          custody, conduct, maintenance, and support of the minor or  
          nonminor, including medical treatment, subject to further order  
          of the court," over minors adjudged wards of the juvenile court  
          (status or delinquency offenders).

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          (which stands for "Receivership/ Overcrowding Crisis  
          Aggravation"), the Committee held measures that created a new  
          felony, expanded the scope or penalty of an existing felony, or  
          otherwise increased the application of a felony in a manner  
          which could exacerbate the prison overcrowding crisis.  Under  
          these principles, ROCA was applied as a content-neutral,  
          provisional measure necessary to ensure that the Legislature did  
          not erode progress towards reducing prison overcrowding by  
          passing legislation, which would increase the prison population.  
            

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted that the, ". . .  population in the State's 33 prisons  
          has been reduced by over 24,000 inmates since October 2011 when  
          public safety realignment went into effect, by more than 36,000  
          inmates compared to the 2008 population . . . , and by nearly  
          42,000 inmates since 2006 . . . ."  Plaintiffs opposed the  
          state's motion, arguing that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, continue to deliver health care that is  
          constitutionally deficient."  In an order dated January 29,  
          2013, the federal court granted the state a six-month extension  
          to achieve the 137.5 % inmate population cap by December 31,  
          2013.  

          The Three-Judge Court then ordered, on April 11, 2013, the state  
          of California to "immediately take all steps necessary to comply  
          with this Court's . . . Order . . . requiring defendants to  
          reduce overall prison population to 137.5% design capacity by  
          December 31, 2013."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."


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          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   


          In a status report to the Court dated February 18, 2014, the  
          state reported that as of February 12, 2014, California's 33  
          prisons were at 144.3 percent capacity, with 117,686 inmates.   
          8,768 inmates were housed in out-of-state facilities.

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 Whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 Whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 Whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and,


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                 Whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               California law has long prohibited the secure  
               confinement of "status offenders"- those who are under  
               the court's jurisdiction for behavior that would not  
               be illegal except for the individual's age.  These  
               violations include breaking curfew, running away,  
               being beyond the control of one's parents, and truancy  
               (see Welfare and Institutions Code Sec. 601).  While  
               young people may be made a ward of the court for  
               truancy, under current law they must not be held in  
               secure confinement.  

               Unfortunately, court decisions have found a way around  
               the statutory prohibition against incarceration in  
               California and nationally by using contempt or  
               violation of a valid court order.  This loophole has  
               allowed truants to be incarcerated over the years for  
               contempt or failing to obey a court order to attend  
               school. In many cases, incarceration of these youths  
               has made things worse for children whose only  
               transgression is not going to school.  SB 1296 would  
               close that loophole, and prohibit secure confinement  
               as a sanction in such instances. 

               California has been active in trying to stem the  
               School to Prison Pipeline with creative school  
               disciplinary measures and truancy interventions.   
               Counties around the state have developed active School  
               Attendance Review Boards that work to keep youth out  
               of the justice system, through mediation programs for  
               young people as well as for parents, and access to  
               extensive service systems that provide tutoring,  
               mentoring, school safety support, assessment of  


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               disabilities, alternative education programs,  
               transportation, and remedial services. 

               As a result, incarceration for truancy has been  
               dramatically reduced.  Still, data from 2012 and 2013  
               suggest that four counties still rely upon  
               incarceration.  The vast majority of the cases  
               involved youth of color, and some were as young as age  
               12.  Many were incarcerated multiple times, raising  
               further questions about the effectiveness of  
               incarceration as a sanction.  

               Research on truancy has established that persistent  
               refusal to attend school stems from a complex series  
               of factors that have nothing to do with disrespect for  
               the law.  Some youth are afraid to go to school  
               because of bullying or gang activity. Others have  
               challenges at home ranging from abuse, neglect or  
               drugs, to situations that require the youth to stay  
               home to care for relatives, or help support the  
               family.  Still others are too humiliated or frustrated  
               to attend school because of disabilities, intellectual  
               limitations, or because disruptions have caused them  
               to fall far behind their classmates.

               Incarceration for truancy is an illusory "solution"  
               that actually makes things worse.  Research indicates  
               that youth who are incarcerated find it more difficult  
               to complete their education and their employability is  
               negatively impacted.  Also, while state law requires  
               that truants be separated from delinquent youth, the  
               incarceration leads many of these youths to view  
               themselves as criminals, and to act accordingly.

               It is important to note that SB 1296 leaves intact a  
               court's power to punish contempt or violations of  
               court orders related to truancy, but simply eliminates  
               incarceration from the available sanctions in those  
               narrow instances.  SB 1296 reaffirms the Legislature's  
               long held intention that truants should not be  
               incarcerated. 



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          2.  Background: Status Offenders and Truants

           Courts and policymakers have long struggled with how best to  
          address status offenders, including truants.  In an op-ed piece  
          published last fall Judge Michael Nash, who since 1995 has  
          served as either Presiding Judge of the Juvenile Court or  
          Supervising Judge of the Juvenile Dependency Court in Los  
          Angeles, noted:

               We are now approaching the last quarter of 2013 and  
               the subject of status offenders and what we should do  
               with them or for them is still an active subject of  
               discussion within the framework of our juvenile  
               justice systems, and rightfully so. This is so despite  
               the fact that our courts, law enforcement entities,  
               child advocates, communities and law makers have been  
               talking about this issue for more than 40 years. . . .  
                 

               In Los Angeles, where I preside, we have had a court  
               called the Informal Juvenile and Traffic Court (IJTC)  
               for many of these offenses. In calendar year 2011, our  
               IJTC handled approximately 65,000 citations including  
               thousands for daytime loitering (aka truancy), curfew  
               violations and possession offenses.

               In 1974, Congress passed the Juvenile Justice and  
               Delinquency Prevention Act (JJDPA) that, among other  
               things, limited the placement of status offenders in  
               secure detention or correctional facilities because of  
               concerns that the delinquency system was  
               inappropriately treating these youth as criminal  
               offenders. Partially due to concerns of judges, JJDPA  
               was amended in 1980 to allow the detention of status  
               offenders who had violated court orders such as "stop  
               running away" or "go to school regularly." That  
               exception, known as the Valid Court Order exception  
               (VCO), has resulted in the detention of thousands of  
               youth classified as status offenders. The VCO is still  
               in effect in most states, but there are significant  
               efforts to eliminate it if and when Congress  
               reauthorizes the JJDPA, which it has not done since  


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               2002. There are good reasons for this, and there are  
               positive developments in this area.

               . . .  (R)esearch shows that responses such as secure  
               detention of status offenders is ineffective and  
               potentially dangerous. Rather than punish them, youth,  
               particularly status offenders, are better served by  
               being diverted from the justice system. When you  
               couple that with community programs that include  
               engagement of youth and their families as well as  
               programs designed to meet their specific needs, the  
               chances of achieving positive outcomes for youth and  
               their communities are greatly enhanced. . . .<4>  

          In a policy brief released last month, the Texas Public Policy  
          Foundation reported that as of 2011 (the most recently available  
          data), California was one of more than 33 states that authorized  
          the secured detention of status offenders for the violation of a  
          court order.  Characterizing these violations as a tool to  
          "criminalize status offenses," the brief explained in part:

               The treatment of status offenders was complicated by a  
               1980 congressional amendment to the JJDP Act regarding  
               valid court orders imposed on status offenders. The  
               1980 amendment enabled judges to confine status  
               offenders in secure detention facilities for limited  
               periods of time and to adjudicate a status offender as  
               a delinquent if the status offender was found to  
               violate a VCO.  The amendment was originally intended  
               to address concerns that the USDOJ's  
               Deinstitutionalization of Status Offenders mandate was  
               depriving judges of a tool they needed to handle  
               status offenders.  The bottom line of the exception,  
               however, is that it created a mechanism for judges to  
               criminalize status offenses.  As of 2011, the year of  
               the most-recent nationwide data on youth confinement,  
               more than 60 percent of the states (33) permitted  
               their juvenile courts to use the VCO exception for all  
               ----------------------
          <4>   Nash, Improving the Court's Response to Status Offenders,  
                                   Oct. 14, 2013  
          (http://jjie.org/op-ed-improving-the-courts-response-to-status-of 
          fenders/.)

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               status offenses, down from 36 states in 2001.  [fn.:   
               ". . . 16 states in which secure detention of status  
               offenders were prohibited included: Connecticut,  
               Delaware, Iowa, Maryland, Massachusetts, Minnesota,  
               Montana, New Hampshire, New Jersey, New Mexico, New  
               York, Pennsylvania, Rhode Island, Utah, Vermont, and  
               West Virginia. . . ."]<5>

          A court of appeal decision published last fall clearly explains  
          how California courts have contended with the issue of  
          sanctioning noncompliant truants with secured detention:

               The Legislature has expressly limited the power of the  
               juvenile court to order the secure confinement of  
               section 601 wards.  As relevant to truancy wards, . .  
               .  "it is the intent of the Legislature that no minor  
               who is adjudged a ward of the court pursuant solely to  
               this subdivision shall be removed from the custody of  
               the parent or guardian except during school hours."   
               Section 207, subdivision (a) applies more generally to  
               all section 601 wards and provides in relevant part  
               that "[n]o minor shall be detained in any jail,  
               lockup, juvenile hall, or other secure facility who is  
               taken into custody solely upon the ground that he or  
               she is a person







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               ----------------------
          <5>   Kids Doing Time for What's Not a Crime:  The  
          Over-Incarceration of Status Offenders, (March 2014) The Texas  
          Public Policy Foundation  
          (http://www.texaspolicy.com/sites/default/files/documents/2014-03 
          -PP12-JuvenileJustice  
          StatusOffenders-CEJ-DerekCohenMarcLevin.pdf);  See also,  
          Szymanski, What is the Valid Court Order Exception to Secure  
          Detention for Status Offenders? (May 2011) Nat'l Center for  
          Juvenile Justice (http://www.ncjj.org/pdf/  
          Snapshots/2011/vol16_no5_What%20is%20the%20Valid%20Court%20Order% 
          20Exception%20to%20Secure%20Detention%20for%20Status%20Offenders. 
          pdf.)








               described by Section 601 or adjudged to be such or  
               made a ward of the juvenile court solely upon that  
               ground ? ."   Section 207, subdivision (b) provides  
               time-limited exceptions to the prohibition against  
               secure confinement of section 601 wards in order to  
               determine if there are any outstanding warrants or  
               holds against the minor or to locate the minor's  
               parents. . . .

               In Michael G., supra, 44 Cal.3d at page 287, our  
               Supreme Court considered whether a contemptuous  
               section 601 ward may be confined in a secure facility  
               during non-school hours despite the express  
               limitations on secure confinement of status offenders  
               in sections 207 and 601.  The court held that "a  
               juvenile court retains the authority, pursuant to its  
               contempt power, to order the secure, non-school hours  
               confinement of a contemptuous section 601 ward."  
               (Michael G., supra, at p. 287.)  Although the court  
               concluded that the statutory limitations in sections  
               207 and 601 did not deprive the court of its inherent  
               power to punish a contemptuous section 601 ward with  
               secure confinement during non-school hours, it  
               recognized that "respect for the intent of our coequal  
               branch of government demands that courts exercise  
               caution when imposing such sanctions against  
               contemptuous status offenders." (Michael G., supra, at  
               p. 296.)

               In furtherance of the goal of exercising caution in  
               contempt proceedings against status offenders, the  
               Michael G. court adopted additional requirements that  
               must be satisfied before a juvenile court may find a  
               section 601 ward in contempt. . . .   First, a  
               juvenile court must ensure that the ward "is given  
               sufficient notice to comply with the order and  
               understands its provisions."  Second, the violation  
               must be egregious.  "The requirement of an egregious  
               violation ensures that secure incarceration will not  
               become a commonplace sanction in contravention of the  
               Legislature's intent to comply with the federal  
               mandate to deinstitutionalize status offenders."   


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               Third, the juvenile court must have considered less  
               restrictive alternatives and found them to be  
               ineffective.  Fourth, the confinement conditions  
               ordered by the court must ensure that the contemptuous  
               section 601 ward is not allowed to intermingle with  
               section 602 wards. (44 Cal.3d at pp. 297, 300.)

               . . .  By (also) requiring express findings, the  
               Michael G. court ensured "the court is aware that, by  
               ordering the secure confinement of a juvenile who has  
               not committed a criminal offense, it is taking the  
               extraordinary step of acting contrary to the wishes of  
               the Legislature but is justified in doing so because  
               it is convinced there is no other alternative which  
               will adequately serve the purpose of the contempt  
               citation."  . . .

               . . . (T)he court's inherent power to punish contempt  
               is tempered by reasonable procedural safeguards  
               enacted by the Legislature in Code of Civil Procedure  
               section 1209 et seq. . . . In Michael G., the court  
               went to great lengths to caution against making the  
               secure confinement of section 601 wards a commonplace  
               occurrence, going so far as to impose additional  
               requirements upon a juvenile court that may be  
               considering holding a status offender in contempt of  
               court. . . .  The court did not suggest these  
               requirements were imposed in lieu of the contempt  
               provisions of the Code of Civil Procedure.  Indeed,  
               given the court's cautious approach and reference to  
               the "extraordinary step of acting contrary to the  
               wishes of the Legislature" concerning the  
               incarceration of status offenders, it is difficult to  
               conceive that the Michael G. court envisioned  
               stripping section 601 wards of the procedural  
               safeguards contained in the Code of Civil Procedure.   
               A fair reading of Michael G. suggests that a juvenile  
               court must comply with the contempt provisions of the  
               Code of Civil Procedure as well as the additional  
               requirements specified by the Michael G. court.

               The Attorney General contends the Supreme Court in  
               Michael G. permitted the confinement of a contemptuous  









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               section 601 ward without requiring compliance with the  
               Code of Civil Procedure.  We disagree with the  
               Attorney General's characterization of the case.  As  
               we have discussed, while it is true the court did not  
               specifically address whether the juvenile court had to  
               comply with the Code of Civil Procedure, the court  
               assumed the contempt provisions of the Code of Civil  
               Procedure apply to contempt proceedings under Welfare  
               and Institutions Code section 213.  (In re M.R. (2013)  
               Cal.App.4th 49, 59-62 (some citations omitted).

          3.  Data: Truancy in California

           Based on the most recent information available on the Department  
          of Justice's website - for the year 2011 -- of the 21,827 status  
          offense arrests reported in California, 5,423 - 24.8 percent -  
          were for truancy.  Juveniles in the 12-14 age group were more  
          likely to be arrested on a truancy violation than any other age  
          group (27.5 percent).  Hispanic juveniles were more likely to be
          arrested for truancy violations compared to any other  
          race/ethnic group (28.4 percent).  In 2011, of the 16,357  
          petitioned status offenses reported, 2.5 percent (408) were for  
          truancy.<6>



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          ---------------------------
          <6>   2011 Juvenile Justice in California, California Dept. of  
          Justice.