In re Alejandro V.

Filed 3/9/07 In re Alejandro 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

Mark Shenfield, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Christina D. Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.

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In a juvenile wardship petition (Welf. & Inst. Code, 602),^[1]it was alleged that appellant Alejandro V., a minor, committed a lewd and lascivious act with a child under the age of 14 (Pen. Code, 488, subd. (a)). Appellant admitted the allegation, and following the subsequent disposition hearing, the court denied appellants request for deferred entry of judgment (DEJ) under section 790, et seq.; adjudged appellant a ward of the court; and placed him on probation in the custody of his parents.

On appeal, appellant contends the court abused its discretion in denying appellants request for DEJ. Alternatively, he argues, if this argument is deemed waived by counsels failure to object to the courts denial he was denied his constitutional right to the effective assistance of counsel. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts^[2]

On May 13, 2005, an Officer, presumably a deputy sheriff, investigating a report of child molestation, made contact with a 10-year-old girl (victim), who related the following. Appellant, then age 13, the victims uncle, had been touching [the victims] buttocks over her clothes; had touched her near her vaginal area; had put his bare hands down her blouse; and had kissed her on the lips on several occasions. These incidents occurred at the victims house and at her grandmothers house, and had been going on for approximately one year. On one occasion, at the residence of the victims grandmother, appellant came out of the bathroom naked, and exposed himself to [the victim].

On August 24, 2005, at the CART Office, the victim told her interviewer the following. Appellant used to touch her on the breast[,] . . . vaginal area [and] buttocks. Appellant would touch [the victims] body, and then act like he was only tickling her. Appellant often times wanted to play mommy and daddy, when he would touch her body. When appellant touched the victim, he would do so over her clothing.

The Investigating Officer made contact with appellant on August 31, 2005, at which time appellant stated the following. On one recent occasion, the victim was on a swing and was about to strike her infant brother, who was crawling nearby. Appellant was standing next to the victim, and found it necessary to place his hands on her chest area, to keep her from striking her brother. Appellant was able to feel her breast, but he did not embrace them with his hand[s], and he did not act with sexual intent. Appellant frequently tickles the victims hands and feet, but [he] never touched any parts of her private areas.

On July 7, 2005, appellant told the probation officer he has never inappropriately touched the victim, and the victim made up everything.

Probation Officers Conclusions and Recommendations

As mitigating factor[s] the probation officer found that appellant has no prior record; does not display any behavioral problems at home or at school; denies being gang involved; and reports that he has never used any illegal drugs or alcohol. As aggravating factor[s] the officer found the following: the seriousness of the current offense; appellant denies doing anything wrong and reports that the victim made up the whole story; the victim was vulnerab[l]e; appellant took advantage of a position of the trust in that the victim is his niece; and Child Welfare Services records indicate that in 2003 appellant sexually molested two girls by grabbing their breasts with both . . . hands, and [i]t was also reported that he . . . previously grabbed their butts. With regard to the last of these factors, the RPO states, under the heading, Disposition, Unfounded.

The probation officer concluded, upon considering both aggravating mitigating circumstances, that appellant is not suitable for DEJ.

The probation office further opined that appellant is amenable to services provided by the Probation Department, and should be given an opportunity to participate in out-patient sex offender counseling.

Juvenile Courts Reference to the RPO

Immediately prior to adjudging appellant a ward of the court, the court stated it had read the RPO, and The Court makes the findings and orders herein based on the information contained in said report and on all other evidence received herein.

DISCUSSION

The DEJ provisions have been explained as follows: The DEJ provisions of sections 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. ( 791, subd. (a)(3); 793, subd. (c).) (In re Martha C. (2003) 108 Cal.App.4th 556, 558 (Martha C.).)

The determination of whether to grant DEJ requires consideration of two distinct essential elements of the deferred entry of judgment program, viz., eligibility and suitability. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10.) A minor is eligible for DEJ under section 790 if he or she is accused in a juvenile wardship proceeding of committing a felony offense and 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 Section 707. [] (3) The minor has not previously been committed to the custody of the Youth Authority. [] (4) The minors 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. ( 790, subd. (a)(1)-(6).)^[3]

After eligibility is determined, [t]he trial court . . . has the ultimate discretion to rule on the suitability of the minor for DEJ after consideration of the factors specified in [California Rules of Court, rule 5.8000] and section 791, subdivision (b), and based upon the standard of whether the minor will derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment. [Citations.] (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) The factors set forth in section 791, subdivision (b) are: [the minors] age, maturity, educational background, family relationships, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors . . . . California Rules of Court, rule 5.800(d)(3) identifies the factors affecting suitability, in virtually identical language, as The childs age, maturity, educational background, family relationships, motivation, any treatment history, and any other relevant factors regarding the benefit the child would derive from education, treatment, and rehabilitation efforts . . . . (Cal. Rules of Court, rule 5.800(d)(3)(A)(i).) A court may deny DEJ to an eligible minor only if [the court] determines the minor would not benefit from the education, treatment or rehabilitation available through the [DEJ] program. (Martha C., supra, 108 Cal.App.4th at p. 560, emphasis added.)

The determination to grant or deny DEJ may be reversed only upon a showing of abuse of discretion. (In re Sergio R., supra, 106 Cal.App.4th at p. 607.) Judicial discretion is abused only if it results in an arbitrary or capricious disposition, or implies whimsical thinking, and exceeds the bounds of reason, all of the circumstances being considered. (People v. Giminez (1975) 14 Cal.3d 68, 72, citations omitted.)

Appellant argues that the court abused its discretion because, he contends, the court based its denial of DEJ on factors other than appellants amenability to education, treatment or rehabilitation. He bases this contention, in turn, on the claims that (1) three of the aggravating factors upon which the probation officer based his recommendation of denial of DEJthat appellant took advantage of a position of trust, that he may have committed other acts of molestation and that he did not acknowledge guiltwere not supported by the record or, if supported, related to punishment and not to rehabilitation or treatment, and (2) the court adopted [these factors] by reference. Further, he asserts, he was quite suitable for DEJ because the probation officers belief that [appellant] was amenable to services provided by the Probation Department and should be given an opportunity to participate in out-patient sex offender counseling [citation] unequivocally implies that appellant would benefit from treatment and rehabilitation . . . . Appellants challenge to the denial of DEJ is without merit.

At the outset, we reject appellants claim that the court adopted by reference each of the aggravating factors set forth in the RPO. Appellant bases this claim on the courts statement that its findings and orders herein were based on the information contained in [the RPO] and on all other evidence received herein. (Emphasis added.) However, it is not fairly inferable from this statement that the court adopted, as its own findings, each of the aggravating factors found by the probation officer.

Although the court referred to the RPO and other evidence as the bases for its judgment and orders, the court did not state its reasons for denying DEJ. Under these circumstances, in reviewing a claim that such denial constituted an abuse of discretion, we apply the following well-established principles of appellate review: A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) When we apply these principles, we conclude the court did not err in denying DEJ. We base this conclusion on three factors.

First, as the RPO indicates, the instant offense was a serious one. A violation of section 288, subdivision (a) qualifies as both a serious felony under Penal Code section 1192.7, subdivision (c)(6) and as a violent felony under Penal Code section 667.5, subdivision (c)(6). Second, the court reasonably could have concluded from appellants admission of the instant offense, coupled with his claim, as indicated in the RPO, that he committed no act of sexual molestation and that the victims claims to the contrary were fabricated, that appellant committed the instant offense yet refused to take responsibility for his acts. (Cf. In re Michael D. (1987) 188 Cal.App.3d 1392, 1397 [in upholding commitment to California Youth Authority, the court noted that the minors unrepentant and cavalier attitude supported conclusion that the minor requires appropriate treatment and guidance].) And finally, under the DEJ program, a minors term of probation may extend no longer than 36 months from the date of the referral to the program. ( 791, subd. (a)(3).) By contrast, for a minor who, like appellant, is adjudged a ward of the court for an offense not listed in section 707, subdivision (b), the probationary period may extend until the ward . . . attains the age of 21 years . . . . ( 607, subd. (a).) Thus, appellant, who was 15 years old at the time of the disposition hearing, is potentially subject to the courts jurisdiction for a far longer period than if the court had granted DEJ.

In our view, the juvenile court reasonably could have concluded, based on the seriousness of the instant offense, considered in conjunction with appellants refusal to take responsibility for his act, that appellants rehabilitative needs necessitated a longer probationary period than he could have received under the DEJ program. Therefore, appellant has not met his burden of affirmatively showing that the court abused its discretion in denying DEJ.^[4]

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Wiseman, J., and Kane, J.

^[1] Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] The factual summary is taken from the report of the probation officer (RPO), which is, based, in turn, on records of the Tulare County Sheriffs Department.

^[3] There is no dispute that appellant was eligible for DEJ.

^[4] Because we reject appellants argument on the merits, we need not address his claim of ineffective assistance of counsel.