In re LUIS B.,

Filed 8/24/06; pub. order 9/12/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Following a contested jurisdictional hearing the juvenile court found that defendant committed the offenses of felony second degree burglary (Pen. Code, § 460, subd. (b)), and misdemeanor petty theft (Pen. Code, § 484), as alleged in a petition filed on October 7, 2005, pursuant to Welfare and Institutions Code section 602.[1] He also admitted allegations of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), as alleged in a previously filed, separate petition.[2] He was subsequently declared a ward of the court, removed from the custody of his parents, and placed in the Family Preservation Program. Defendant claims that the prosecutor and court erred by failing to consider him for the statutory deferred entry of judgment (DEJ) program (Welf. & Inst. Code, § 790, et seq.), and challenges the findings and orders of the juvenile court. We concur with defendant and the Attorney General that error was committed, and remand the case to the juvenile court to properly consider defendant for DEJ.

STATEMENT OF FACTS[3]

The burglary and petty theft offenses occurred on the afternoon of September 12, 2005, at the Valley Pride Supermarket on San Felipe Avenue in South San Francisco. Defendant and his friend Marco entered the market together, but separated: Marco purchased some candy from the front of the store, while defendant went to the "refrigerated cold box" at the rear of the store where the soda is kept. The store clerk watched defendant through a security mirror as he took a 20-ounce bottle of Coke from the refrigerator and put it in his pants pocket. When defendant reached the register, the bottle was apparent in his pocket, so the clerk asked him, "What's that in your pants?" Defendant smiled and "proceeded to walk out of the store." The clerk yelled at defendant, "Come back here," but defendant ignored him.

The clerk locked the store, got into his car, and pursued defendant and Marco as they ran to their "friend Mark's house" about a block away. The clerk then reported the incident and gave to police dispatch the address of the house defendant and Marco entered.

Marco testified that he purchased a cigar in the Valley Pride Supermarket, then went outside to wait for defendant. When defendant reappeared outside he told Marco the cashier suspected him of "stealing a Coke," but denied he had done it. As they walked away from the market the cashier yelled to them, "Come back here," and asked, "Did you take a Coke?" He then returned to the store. When defendant and Marco reached Mark's house, Marco observed that defendant "had a Coke on him." Defendant said he â€