In re Ricardo B.
Filed 11/8/13 In re Ricardo B. CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re RICARDO B.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO B.,
Defendant and Appellant.
G048160
(Super. Ct. No. DL043792)
O P I N I O N
Appeal
from an order of the Superior Court of
County, Gregory W. Jones and Douglas Hatchimonji, Judges. Affirmed.
Arielle
Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Marissa
Bejarano and Stacy Tyler, Deputy Attorneys General, for Plaintiff and
Respondent.
The
court denied a Welfare and Institutions Code
section 790 deferred entry of judgment (DEJ) to a 17 year old who, together
with some friends, burglarized the garage of a vacationing homeowner. The minor claims the court abused its discretion
in so doing. We disagree, given the
court’s compliance with the requisite DEJ procedures and the minor’s marijuana
use and unexcused absences from school.
We affirm.
I
FACTS
Background:
On October 4, 2012, a Fullerton
resident telephoned the police about the suspicious behavior of four young men
who appeared to be robbing the house of an absent neighbor. The caller provided a description of their
car, together with the license plate number.
He told the police that the four young men had walked towards the house,
each carrying an empty backpack.
Thereafter, they climbed out of the bushes at the side of the yard, one
of them holding a backpack that was “absolutely packed to the hilt.â€
Fullerton Police Officer
Andrew Coyle responded to the radio call about a possible burglary. He located the described vehicle one street
over from the house in question. There
were five persons in the car eating ice cream “using writing pens as a
spoon.†Officer Coyle searched the
vehicle, with the permission of the driver.
He found a pair of bolt cutters, two pairs of gloves, a yellow and black
screwdriver, a backpack, a knife, and two iPods.
Proceedings:
The District
Attorney filed a petition to declare the minor a ward of the juvenile court,
pursuant to section 602. It was alleged
therein that the minor had committed first
degree residential burglary.
The District Attorney
thereafter filed a determination of eligibility form, stating the minor was eligible
for DEJ. The court ordered the probation
department to submit a DEJ suitability report.
According to the suitability
report, dated January 14, 2013,
the minor was 17 years old and had no prior record. He admitted having been a passenger in the vehicle
in question. He also admitted they had
gone “into the garage ‘to make money.’â€
The minor indicated that while he initially had entered the garage with
some of the others, “[a]fter a few seconds he exited and stood by the wall as
he knew what they were doing was wrong.â€
He denied having taken anything from the garage himself, but
acknowledged having eaten some of the ice cream. One of his companions admitted that they had
taken the ice cream and also that he himself had gone into the car in the garage
“looking for something good to take.†A
second companion said they had taken three buckets of ice cream.
The suitability report
further stated that an officer who checked out the garage noticed that there
was “a holder for six screwdrivers on the wall that was missing three
screwdrivers. He noticed the
screwdrivers had yellow or black handles.â€
When the homeowner
returned from his trip, he confirmed that his ice cream was missing. However, the suitability report does not
indicate whether the homeowner reported that anything else was missing.
The suitability report also
contains information from an interview with the minor’s mother. She expressed her belief that “the minor was
involved in the present offense because he was following his older friends.†She did not believe he would repeat the
behavior because he was no longer associating with those persons.
The mother said the
minor was respectful at home, did his chores, and obeyed his curfew. She did not believe that he had ever been
involved in any other thefts or in any gang or tagging crew. However, the mother said she believed the minor
did, at times, lie about who he was with and where he was going. She was uncertain whether he had experimented
with alcohol or drugs.
The suitability report
continued: “The minor is currently
enrolled in the 11th grade in the ACCESS program. He was previously enrolled at Gilbert
High School but was transferred due
to truancy. As of November 9, 2012, the minor had 20 unexcused
absences. His disciplinary records from Gilbert
High School reflected he was
suspended for five days on May 25,
2012 due to marijuana use on campus. The minor was transferred to ACCESS on December 12, 2012 and records from
the school did not reflect the minor had earned any credits as of yet, most
likely due to the winter recess occurring just after he began attending.â€
The suitability report
concluded the minor was “marginally suitable for DEJ.†The probation department recommended therein that
the minor be placed on a DEJ program for 12 to 36 months.
At the DEJ suitability
hearing, the court observed that, based on a reading of the suitability report,
the minor “had numerous issues in regards to school attendance, school
discipline.†The court found the minor
unsuitable for DEJ. It stated: “The report indicates that he has been
suspended from school for marijuana use.
That he is attending continuation school. That he has not earned any credits. There [have] been issues with unexcused
absences. I think his school attendance
and school performance is such that he needs more intensive supervision than
that which would be provided on DEJ.â€
The minor signed an
advisement of constitutional rights form, in which he admitted to unlawfully
entering an inhabited dwelling with the intent to steal and to committing first
degree residential burglary. He also
signed a disposition agreement. It
provided for 10 days in juvenile hall and a $100 restitution fine. It permitted the minor to return to court in
one year to “request a plea withdrawal, subject to the Court’s discretion.â€
The court found the
allegations of the petition to be true beyond a reasonable doubt and further
found the minor to be a person described under section 602. The court found the offense to be a felony,
with a maximum period of confinement of six years. It ordered the minor declared a ward of the juvenile
court, placed him on probation, and provided that he might be permitted to
withdraw his plea in one year provided he neither further violated the law nor violated
the conditions of his probation.
The minor filed an
appeal from the dispositional order. He challenges the finding that he was not
suitable for DEJ.
II
DISCUSSION
“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
probation, on the motion of the prosecution 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).)†(
Cal.App.4th 556, 558.)
It is true, as the minor
in the case before us points out, that there is a “strong preference for
rehabilitation.†(Martha C. v. Superior Court,
supra, 108 Cal.App.4th at p.
561.) However, just because a minor is
eligible for DEJ under section 790, subdivision (a), that does not mean he is
entitled to it. Rather, the court has
the discretion to deny DEJ to an eligible minor. (Martha
C. v. Superior Court, supra,
597, 605.)
“When directed by the
court, the probation department shall make an investigation and take into
consideration the defendant’s age, maturity, educational background, family
relationships, demonstrable motivation, treatment history, if any, and other
mitigating and aggravating factors in determining whether the minor is a person
who would be benefited by education, treatment, or rehabilitation. . . . The probation department shall report its
findings and recommendations to the court.
The court shall make the final determination regarding
of the minor.†(§ 791, subd. (b);
accord, Cal. Rules of Court, rule 5.800(d)(3).)
“If the court does not
summarily grant DEJ [to an eligible minor], it must conduct a hearing at which
it must ‘consider the declaration of the prosecuting attorney, any report and
recommendations from the probation department, and any other relevant material
provided by the child or other interested parties.’ [Citation.]
It is the mandatory duty of the juvenile court to either grant DEJ
summarily or examine the record, conduct a hearing, and determine whether the
minor is suitable for DEJ, based upon whether the minor will derive benefit
from ‘education, treatment, and rehabilitation.’ (Welf. & Inst. Code, § 791, subd.
(b); [citation].)†(In re D.L. (2012) 206 Cal.App.4th 1240, 1243-1244;
at pp. 604, 607.) “When the juvenile
court denies a request for DEJ where the minor is statutorily eligible, we
review the decision under the abuse of discretion standard. [Citation.]â€
(In re Damian M. (2010) 185
Cal.App.4th 1, 5.)
In the matter before us,
the minor contends the court abused its discretion in denying him DEJ. He compares the facts of this case to those
in two other cases in which the courts also denied DEJ—In re Damian M., supra,
597, 600.
In In re Damian M., supra,
participated in a sophisticated drug smuggling operation and was caught
crossing the border from Mexico into the United States with 10.1 pounds of
marijuana hidden in a compartment in the gas tank. (Id. at
pp. 3-4.) In In re Sergio R., supra,
admitted to possession of methamphetamine and first degree burglary, was an
entrenched gang member with a methamphetamine addition and a history of
marijuana and cocaine use. (
facts in his case are clearly distinguishable from those in either
or In re Sergio R.,
We agree that when the
minor and his friends stole ice cream from a garage, they did not engage in
conduct that rose to the level of participation in an organized international
drug smuggling operation. We also agree
that there is nothing in the record to suggest that the minor is a gang member,
carries weapons, is addicted to methamphetamine, or uses cocaine. But just because his activities are not as
egregious as those of the minors in In re
Damian M., supra,
597, that does not mean the court in the matter before us abused its discretion
in denying him DEJ.
There is every
indication that the court followed the procedures it was supposed to follow and
considered the factors it was supposed to consider in reaching the decision it
did. Furthermore, the court’s
determination is supported by the evidence.
The probation department suitability report showed that while the minor’s
mother claimed to be “unsure†whether he had experimented with alcohol or
drugs, he had been suspended from school for using marijuana on campus. Furthermore, he had extensive unexcused
absences and had been transferred to continuation school where he had yet to
earn any credits. Even assuming the
minor failed to earn any credits because of a school recess, the court did not
exceed the bounds of reason in concluding, based on his school record, that he
was unsuitable for DEJ, and the court’s decision was neither arbitrary nor
capricious. (People v. Lamb (2006) 136 Cal.App.4th 575, 582 [abuse of discretion
standard]; In re Marriage of Rosevear (1998)
65 Cal.App.4th 673, 682-683 [same].)
III
DISPOSITION
The
order is affirmed.
MOORE,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
THOMPSON, J.
name="_ftn1" title="">[1] All subsequent
statutory references are to the Welfare and Institutions Code unless otherwise
specifically stated.
