Opinion
E052053 Super.Ct.No. INJ020436
02-03-2012
In re A.V ., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.V ., Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
On July 14, 2010, the Riverside County District Attorney filed a Welfare and Institutions Code section 602 amended petition, alleging that defendant and appellant A.V. (minor) committed burglary (Pen. Code, § 459), and was an accessory after the fact of the burglary (Pen. Code, § 32). Minor admitted the accessory allegation; the burglary allegation was dismissed. The juvenile court refused a request from minor for deferred entry of judgment (DEJ). (Welf. & Inst. Code, § 790 et. seq.) The juvenile court declared minor a ward of the court, placed him in the care, custody, and control of the probation department, and released him to his mother on specified terms of probation.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
On appeal, minor contends that the juvenile court abused its discretion in denying his request for DEJ. We affirm.
FACTUAL BACKGROUND
On April 9, 2010, the police responded to a call regarding a residential burglary. The victim stated that when his daughter arrived home from school, she observed that a number of items were missing, including several video game consoles, controllers, games, computers, and DVD's. The victim's daughter told the police that a student at her high school, A.Z., was responsible. A.Z. had told the victim's daughter, approximately one month prior, that he was going to break into her home and steal her video game systems.
About three weeks later, a school resource officer investigated the matter and discovered that a witness had seen a suspicious vehicle on April 9, 2010, near the victim's residence. The witness observed two male juveniles exiting a ditch, carrying duffle bags, getting into a car, and driving off.
The officer identified minor as a friend of A.Z. and went to minor's residence. Minor's mother said he was not at home, she consented to a search of minor's room, but no items of interest were found. However, minor's mother said she had gone to A.Z.'s house two weeks prior and had observed several video game consoles and games in A.Z.'s room.
Subsequently, minor went to the police station and told the police that, on April 9, 2010, he accompanied A.Z. to a residence near the high school. They entered through the sliding glass door, and A.Z. grabbed two duffle bags and filled them with video games and computer equipment. Minor said he told A.Z. he was not going to participate in taking the items. They left the residence with the duffle bags, walked to a nearby ditch, and A.Z. placed them into a drainage hole. They later retrieved the bags. Minor said he did not know A.Z. was going to burglarize the residence. Minor thought about notifying the police, but was too "'nervous.'" The victim claimed restitution of about $10,000.
ANALYSIS
The Juvenile Court Did Not Abuse Its Discretion in Denying DEJ
Minor contends that a court may deny DEJ only if it determines that a minor would not benefit from the education, treatment, or rehabilitation available through the program. Relying on Martha C. v. Superior Court (2003) 108 Cal.App.4th 556 (Martha C.), minor argues that the juvenile court abused its discretion in denying him DEJ, since its denial was based "on a misunderstanding of [his] history, on matters that were irrelevant and extraneous to [his] case, and on speculation about what [his] future would hold if it granted DEJ." We conclude that there was no abuse of discretion.
A. Relevant Law
"The DEJ provisions of section 790 et seq. were enacted as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000. The sections provide that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a section 602 petition and waive time for the pronouncement of judgment. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed. [Citations.]" (Martha C., supra, 108 Cal.App.4th at p. 558.)
A court may grant DEJ if a minor is both eligible and suitable. (Martha C., supra, 108 Cal.App.4th at p. 562.) A minor is eligible for DEJ under Welfare and Institutions Code section 790 if all of the following circumstances apply: "(1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. [¶] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of [Welfare and Institutions Code] Section 707. [¶] (3) The minor has not previously been committed to the custody of the Youth Authority. [¶] (4) The minor's record does not indicate that probation has ever been revoked without being completed. [¶] (5) The minor is at least 14 years of age at the time of the hearing. [¶] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code." (Welf. & Inst. Code, § 790, subd. (a)(1)-(a)(6).)
Once eligibility is established, "the statutory language empowers but does not compel the juvenile court to grant" DEJ. (In re Sergio R. (2003) 106 Cal.App.4th 597, 605 (Sergio R.).) A court must make an independent determination of the minor's suitability after consideration of the factors specified in California Rules of Court, rule 5.800, and Welfare and Institutions Code section 791, subdivision (b), "'with the exercise of discretion based upon the standard of whether the minor will derive benefit from "education, treatment, and rehabilitation" rather than a more restrictive commitment. [Citations.]'" (Martha C., supra, 108 Cal.App.4th at p. 562, italics omitted.) These "suitability" factors include the minor's "age, maturity, educational background, family relationships, motivation, any treatment history, and any other relevant factors regarding the benefit the [minor] would derive from education, treatment, and rehabilitation efforts." (Cal. Rules of Court, rule 5.800(d)(3)(A)(i); see also Welf. & Inst. Code, § 791, subd. (b).) A grant of DEJ is a matter addressed at the discretion of the court. (Sergio R., supra, 106 Cal.App.4th at p. 607.) Thus, we review the juvenile court's denial of DEJ for abuse of discretion. (Ibid.)
B. Relevant Background
At the disposition hearing on October 8, 2010, the juvenile court stated that it had received a disposition report from the probation department and had read and considered it. Minor's counsel stated that he was not submitting on the probation officer's recommendation that minor be declared a ward. Instead, he urged the juvenile court to grant minor DEJ. He argued that nothing in the report indicated that minor would not benefit from education, rehabilitation, and treatment under DEJ, and noted that minor's previous petition was dismissed under Penal Code section 654.2 in May 2009.
The juvenile court stated the following: "I disagree. His criminal activity has somewhat expanded. He had two grants of diversion on youth accountability. He had 654, informal probation that he completed. However, after that he obtained a petition for 242. Then he basically picked up a second-degree burglary on May 17th—first degree burglary in 2010." The juvenile court noted that, with regard to the current petition, the first degree burglary allegation was dismissed, and minor admitted to being an accessory. The juvenile court then stated: "It's the same type of activity and it's serious. The thing is the minor is 16, going to be 17 on November 10th. We have a very limited period of time to deal with him in juvenile court. And if he continues with the activity that he is involved in, he is soon to be in state prison. And it seems to me that 790 probation does not give him the structure [and] supervision . . . that probation will give him if [we] make him a ward. And he needs that so we can address the issues and get him on the straight and narrow. [¶] If he picks up a first-degree burglary when he turns 18, it's mandatory state prison. And that's not a good thing."
Minor's counsel corrected the juvenile court by stating that the May 17, 2010 petition alleging burglary was dismissed when it was determined that the charge would not "stand up." That petition was essentially refiled as an amended petition on July 14, 2010. The July 14 petition alleged the same burglary, along with the accessory allegation. The burglary allegation was dismissed; minor admitted the accessory allegation.
Minor's counsel also pointed out that the police report reflected that minor had "no complicity" and "no intent" in the burglary, and that A.Z. "did it all." Minor's counsel explained that the accessory allegation, which minor admitted, entailed minor helping the perpetrator of the burglary carry some of the property out of the ditch, where it had been placed, and into the car. Minor's counsel asserted that minor's only previous offense was more than two years prior to that "foolish act." Minor's counsel mentioned the December 30, 2008 petition for battery (Pen. Code, § 242), which was dismissed in May 2009. Minor's counsel argued that minor had "gone for quite a while without the seriousness that the Court [was] talking about." He reiterated his request for DEJ, stating his belief that minor "would benefit from the treatment and education of the rehabilitation that DEJ would afford."
The juvenile court replied: "I disagree. This minor, even by his own admission, indicates that he has some bad friends. That is something that needs to be addressed. And he has been involved in criminal activity that is serious in nature. We also have a history of substance abuse. We also have him, by his own admission, . . . affiliated with a tagging crew. And . . . minor admits to being a member of Kreated 2 Destroy tagging crew. So we have those issues. Bad affiliations, bad peers, affiliated with a tagging crew. If you look at his school records, it indicates that he missed 24 days of school during the year of 2009, 2010. He has extensive behavior referrals for defiance, destruction, harassment, and fighting. He was suspended on March 18th, 2010, for possession of drug paraphernalia. And he admits to experimenting with marijuana since the age of 13. And it appears that he tested positive for marijuana in May of this year. And there [are] also anger management issues. [¶] . . . [¶] So it seems to me that [the] probation evaluation is correct that he needs the most structured supervision that probation can give him, while we allow him to stay home. But he is real close to going to placement. I'm not going to lose him if I can help it. I'm not going to basically lose this year that we have and take the risk that he doesn't straighten himself out because he is going to wind up in state prison, sure as anything. [¶] He needs counseling. He needs to get focused on school. He needs to graduate. He needs to go farther. But he needs to be focused on that, not on this other stuff. And I know if we make him a ward, he will have a probation officer that will be assisting mom to get him straightened out. And they will have a more structured plan in place. And there will be more people that will be watching him. [¶] On 790, he wouldn't get that. He can't be on his own; it's obvious. I'm not going to do that. He has to understand that if I make him a ward on these terms and conditions, he is going to comply."
Minor's counsel interjected that minor had not been charged or caught doing any tagging. He said that "[s]ome of these kids refer to tagging and tagging crews, which is in essence no more than clubs." He went on to explain that once minor's tagging group realized that use of the term "'tagging crew'" was looked on with great criticism, it began meeting as an art class at a church.
The juvenile court responded, "All right. Let's put it in this context. It's not an association. It's not the label that somebody that is focused on doing the right thing would be involved in, period. [¶] If I have a kid [who] comes in here and he admits he is a member or associate of Jackson Terrace, a criminal street gang here in Indio, but he has no history of committing any crimes, [and] indicates that he hasn't done anything[, i]sn't there a problem [with] those associations? That has to be dealt with because it potentially puts the minor at high risk of getting into trouble. Even if he hasn't got[ten] into trouble previously, those associations will have a tendency to increase the risk that trouble is coming. And they have to be dealt with. [¶] He has to understand what is appropriate activity and what [are] appropriate friendships. He has to understand what his focus has to be." The judge recalled living in East Los Angeles as a child and observing the gangs that were on his street. The juvenile court then said, "This minor has a lot of issues that need to be dealt with, that have to be dealt with now, no[t] later. We have come to the end of the line for this type of negative behavior, period. And now we have to start—we tried in the past less formal means and it hasn't worked. Now we are going to do something that works. And it still comes down to his choice. If it doesn't work, at least I know in my heart and mom knows that we have done everything. . . . [I]t's not my responsibility if he end[s] up in state prison after this, it's his choice." The juvenile court went on to tell minor "what bad associations can do for you." The juvenile court cited an example of a 16-year-old boy, recently convicted as an adult of homicide, who would be housed in a juvenile holding placement until he turned 18, then transferred to state prison.
The juvenile court stated, "Your friends in this activity didn't care about you." It added that minor needed to focus on his mother and making her happy. The juvenile court concluded by telling minor that if he did not comply with the terms and conditions of probation, it would terminate his wardship and put him in a placement for a year. Minor was declared a ward of the court and placed in the care, custody, and control of the chief probation officer.
C. Minor Was Not Suitable for DEJ
Minor contends that when a minor meets the eligibility requirements of section 790, subdivision (a), the juvenile court may deny DEJ only if it determines the minor would not benefit from the education, treatment, or rehabilitation available through the DEJ program. Minor also argues that the juvenile court abused its discretion in denying him DEJ since its denial was based on "incorrect information, and speculative and non-statutory factors." We find no abuse of discretion.
In Martha C., supra, 108 Cal.App.4th 556, Division One of this court held that DEJ may only be denied if the juvenile court finds that the minor would not benefit from education, treatment, and rehabilitation. (Id. at p. 561.) The juvenile court relied on findings included in Proposition 21 regarding the DEJ program, which "express not only a strong preference for rehabilitation of first-time nonviolent juvenile offenders but suggest that under appropriate circumstances DEJ is required." (Ibid.)
In granting the minor's petition in Martha C., the appellate court noted that the juvenile court had refused to defer entry of judgment "because it wished to send a message to other potential juvenile drug smugglers that there would be permanent consequences flowing from such criminal activity." (Martha C., supra, 108 Cal.App.4th at p. 562.) The appellate court stated that this was "not an appropriate basis" for refusing to defer entry of judgment. (Ibid.) The appellate court essentially concluded that a juvenile court may not deny DEJ "as a means of deterring criminal activity by others." (Ibid.)
Martha C. is distinguishable from the present matter. The minor in that case "had no juvenile record, her behavior at home was compliant, her home was stable and nurturing, and while she had been habitually truant from school in the past, she was in a new alternative education program and was doing well." (Martha C., supra, 108 Cal.App.4th at p. 559.) The probation officer in Martha C. concluded the minor "would benefit by education, treatment and rehabilitation pursuant to the DEJ procedure." (Ibid.) Furthermore, the juvenile court appeared to agree with the probation department that the minor was suitable for DEJ. (Id. at p. 562.) Nonetheless, the juvenile court denied DEJ "because it wished to send a message to other potential juvenile drug smugglers." (Ibid.)
In contrast, the probation officer here found minor unsuitable for DEJ, and the juvenile court agreed. The suitability factors that the juvenile court considered included "the defendant's age, maturity, educational background, . . . and other [unspecified] mitigating and aggravating factors." (§ 791, subd. (b).) The juvenile court properly based its determination on these factors after considering the information contained in the probation report. The juvenile court first noted minor's juvenile record, and then discussed minor's age, noting that he was going to be 17 in November, and that there was, thus, a limited time to deal with him in juvenile court. The juvenile court was concerned that if it did not address minor's issues now and get him "on the straight and narrow," he would continue with his bad "associations" and criminal activity and, at age 18, end up in state prison. Minor cannot be compared to the minor in Martha C., who was found to be suitable for DEJ. (Martha C., supra, 108 Cal.App.4th at p. 562.)
Furthermore, as set forth above, the juvenile court listed minor's problems with his attendance and behavior at school, drugs, anger management, and the unsuccessful attempts to help minor in the past. The juvenile court also cited the need for the more intensive direction minor would receive in a probation wardship, as opposed to DEJ. All of these factors amply support the juvenile court's decision to deny DEJ.
Minor points out in his opening brief that the juvenile court mistakenly believed that he had completed informal probation and then "picked up" another petition for the battery allegation, and that it apparently believed that two different petitions alleged two different burglaries. While the record does reflect that the juvenile court was mistaken, it also shows that minor's counsel immediately clarified with the juvenile court that the May 17 and July 14, 2010 petitions referred to the same burglary. Minor's counsel also asserted that minor's only previous offense (the misdemeanor battery) was more than two years prior to the current offense. Thus, the juvenile court's error was corrected before it could affect its judgment.
Minor also contends that the juvenile court improperly based its denial on "factors not contemplated by the statute," including his affiliation with a tagging crew. He claims that the juvenile court "equated [his] affiliation with a tagging crew with the commission of violent crimes by gang members." In support of this claim, minor cites the juvenile court's example of a juvenile who admitted he was an associate of a street gang in Indio. Minor also cites the juvenile court's recollection of the Mexican gang that was active in the neighborhood where the judge grew up.
We disagree with minor's characterization of the juvenile court's comments. The record reflects that minor's counsel asserted that minor's tagging group now met as "an art class," and the juvenile court remarked that "[i]t's not the label that somebody [who] is focused on doing the right thing would be involved in." The juvenile court was apparently referring to minor's admission that he was a member of a tagging crew called "Kreated 2 Destroy." The record thus indicates that the juvenile court was simply rebutting minor's counsel's innocent portrayal of minor's tagging group. Regarding the juvenile court's remembrance of the Mexican gang in East Los Angeles, such recollection was apparently just a tangential comment, not a basis for the juvenile court's denial.
Minor further argues that the juvenile court based its denial of DEJ on "[u]nfounded speculations about [his] future." He claims that the juvenile court "purported to predict the future" when it repeatedly referred to its belief that, if placed on DEJ, he would soon be in state prison. Minor appears to be misinterpreting the juvenile court's comments. For example, minor cites the juvenile court's statement that if he "continue[d] with the activity that he [was] involved in, he [was] soon to be in state prison." The juvenile court was clearly referring to minor's fate if he continued with his delinquent behavior. The juvenile court was not stating that, if it placed him on DEJ, he would simply end up in state prison, as minor claims.
Minor additionally points out that the juvenile court's reference to "a 16-year-old boy . . . that [recently] was charged as an adult on homicide" was "completely unconnected" to his case. The juvenile court stated that the 16-year-old was sentenced to state prison for 15 years to life. We agree that this example had no direct connection to minor's case. However, the juvenile court apparently cited it as an example of "what your bad associations can do for you." As minor himself observes, the juvenile court just used this as an example "to scare [him] straight." In any event, the juvenile court did not base its denial of DEJ on this example, as minor contends.
Ultimately, the juvenile court properly considered minor's age, maturity, educational background, and other relevant factors regarding the benefit minor would derive from education, treatment, and rehabilitation efforts. (§ 791, subd. (b).) The juvenile court expressly found that DEJ would not give him the structure and supervision that probation would, if the juvenile court made him a ward. In view of minor's circumstances, the juvenile court's decision to deny DEJ and adjudge him a ward of the court was a proper exercise of discretion, as it did not fall outside the bounds of reason.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P.J.
We concur:
McKINSTER
J.
MILLER
J.