Filed 6/2/17 In re Ruben 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


In re RUBEN V., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN V.,

Defendant and Appellant.

F073774

(Super. Ct. No. JJD069254)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2015, a juvenile wardship petition was filed alleging appellant Ruben V. came within the provisions of Welfare and Institutions Code section 602. In April 2016, it was found true that appellant Ruben had sodomized an unconscious person, in violation of Penal Code section 286, subdivision (f). At disposition, he was placed on probation in his father’s custody. Ruben appeals, contending he was eligible for deferred entry of judgment and the juvenile court erred in not holding a suitability hearing. He also contends the juvenile court erred in not awarding predisposition custody credits against his maximum confinement time. We reject both contentions and affirm the disposition.
FACTUAL AND PROCEDURAL SUMMARY
On September 28, 2015, a juvenile wardship petition was filed in Tulare Superior Court alleging Ruben came within the provisions of section 602 because he violated Penal Code section 289, subdivision (d). That same day, Judicial Council form JV-750, Determination of Eligibility for Deferred Entry of Judgment—Juvenile, was filed. The box for item 2.b. stating “The youth is ineligible” was checked, and the form was signed by a deputy district attorney.
The juvenile court appointed counsel for the minor on September 30, 2015. Ruben, through counsel, denied the allegation in the petition.
On October 7, 2015, a first amended petition was filed, deleting the Penal Code section 289 allegation and instead alleging Ruben had violated Penal Code section 286, subdivision (f), and Health and Safety Code section 11357, subdivision (b). No new JV-750 form was filed.
Ruben’s birth date made him 13 years old at the time of the October 8, 2015, hearing. Ruben’s counsel indicated Ruben was denying the allegations and wanted to set the matter for trial. The juvenile court set October 29, 2015, for a contested jurisdiction hearing.
During the October 8 hearing, Ruben’s counsel asked if Ruben was “still DEJ [deferred entry of judgment] eligible with the amended petition.” The People responded that “the charge is a 707 so he’s not eligible.” The People also stated that the eligibility form they previously filed classified Ruben ineligible because of his age. The juvenile court responded that the charges were not within section 707 and that Ruben would be 14 years old within two weeks. The People indicated they would “look further” into eligibility and notify Ruben’s counsel. Ruben’s counsel declined to set a further pretrial hearing and wanted to proceed to a contested jurisdiction hearing.
At the October 22, 2015, readiness conference, the juvenile court released Ruben on electronic monitoring. The October 29 contested jurisdiction hearing was vacated because discovery was ongoing.
Ruben turned 14 years old in October 2015. There is no indication in the record that Ruben admitted the allegations of the amended petition and requested a suitability hearing for DEJ on his birth date or on any other date.
On March 21, 2016, the parties were before the juvenile court on a motion by Ruben’s counsel to dismiss the charges. Swabs had been taken from the anal cavity and the vagina of the victim, however, only the swabs taken from the anal cavity were tested. Ruben’s attorney opined that the People had an obligation to test the vaginal swabs because it might assist with the defense theory of the case—that sexual contact was consensual.
The People responded that they had no obligation to investigate all possible defenses, but that the vaginal swabs were not tested because they had no bearing on the charge of sodomy of an unconscious person. The juvenile court denied the motion to dismiss.
The victim, G.D., testified at the contested jurisdiction hearing. She took two prescription medications in the morning, and two prescriptions at night, but she took an extra pill that night because she was “stressed.” G.D. stated she took prescription antidepressant medication, Buspirone, on a daily basis. The prescription called for one pill per day, which she took at night, but on the night of the incident she had taken two pills. The medication made her groggy and sleepy; in order to be woken up, she would literally have to be shaken awake.
G.D. was at Ruben’s home the night of September 7, 2015, and into the morning of September 8; the two families were friends. After taking her medication for the night, she was sleeping/unconscious and lying on the bed on the side furthest away from the wall. She woke up when she “felt pain” in her “butt hole” and the pain was “strong.” It felt like something was “ripping” or “tearing through” her. G.D. turned and saw Ruben next to her; she felt Ruben take his penis out of her. G.D. pushed Ruben and asked, “What are you doing? What are you doing?”
G.D. left and ran home; she lived five houses away. Before she left, Ruben’s sister asked what was wrong and G.D. replied, “Your brother raped me.” G.D.’s sister called 911. The 911 call was placed at 2:07 a.m. and deputies arrived at 2:17 a.m.
Detective Rodney Klassen went to investigate in response to the 911 call. G.D. was “upset” and “distraught.” Klassen had G.D. do an “in-field showup” and G.D. identified Ruben as the person that had sexually assaulted her.
Sheriff’s Deputy Daniel McBride advised Ruben of his rights and specifically made sure Ruben understood he did not have to talk with the deputies and had the right to an attorney free of charge. McBride asked Ruben if it was wrong to have anal sex with someone without the person’s permission; Ruben stated he knew it was wrong.
Klassen also interviewed Ruben, who initially stated he and G.D. had consensual sex on a prior occasion. Ruben admitted that in the early morning hours of September 8, he had sex with G.D. while she was sleeping. He initially tried to enter her vagina, but was unable to because of the positioning of G.D. on the bed; he had anal sex with her instead. Ruben admitted sending a text message to G.D. from his sister’s phone stating, “‘Don’t tell on my brother. He’ll get in trouble.’” Ruben was taken into custody.
When G.D. was examined by a nurse, she reported “pain to her butt.” G.D. told the nurse she thought Ruben ejaculated. The analysis of the vaginal and anal swabs collected from G.D. showed the presence of sperm and that Ruben was the sperm donor.
On April 14, 2016, the juvenile court found true the allegation that Ruben had violated Penal Code section 286, subdivision (f). At the May 20 disposition hearing, the juvenile court placed Ruben on probation and returned him to his home with his father and stepmother.
Ruben filed a notice of appeal on May 20, 2016.
DISCUSSION
Ruben contends he was eligible for DEJ and was not notified of his eligibility. He also contends the juvenile court should have awarded predisposition custody credits against his maximum confinement time.
I. Deferred Entry of Judgment
A. Standard of Review and Applicable 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. (§§ 791, subd. (a)(3), 793, subd. (c).)” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
In granting or denying DEJ, the court engages in a two-step process, first determining an applicant’s eligibility and second, the applicant’s suitability for the program. (§ 790, subd. (b).) Under section 790, the prosecuting attorney is required to determine whether the minor is eligible for DEJ. Upon determining that a minor is eligible for DEJ, the prosecuting attorney “shall file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and shall make this information available to the minor and his or her attorney.” (§ 790, subd. (b).) The form designed for this purpose is form JV-750, the completion of which requires the prosecutor to indicate findings as to the eligibility requirements by checking, or not checking, corresponding boxes. (Cal. Rules of Court, rule 5.800(b).)
“If a minor is found eligible for DEJ, form JV-751, entitled ‘Citation and Written Notification for Deferred Entry of Judgment—Juvenile,’ is used to notify the minor and his or her parent or guardian. There is a box to check on the form JV-750 indicating that the form JV-751 is attached.” (In re C.W. (2012) 208 Cal.App.4th 654, 659.) This latter notice informs the minor of the procedures for obtaining DEJ and the need to admit the offense charged in the petition to obtain that relief. (Id. at p. 660.)
“While the court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory.” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) “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.” (In re Damian M. (2010) 185 Cal.App.4th 1, 5.) 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; see Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 783.)
To be eligible for the DEJ program, the juvenile must fall within several criteria. (§ 790.) Section 790, subdivision (a) specifies seven criteria that must be met, including: the juvenile must be at least 14 years of age, cannot previously been declared a ward of the juvenile court, the offense charged is not one of the offenses enumerated in section 707, subdivision (b), and the offense is not rape, sodomy, oral copulation, or an act of sexual penetration when the victim was prevented from resisting due to being rendered unconscious by any intoxicating or controlled substance. (Ibid.)
However, the juvenile court is not required to conduct a suitability hearing if the prosecutor determines the minor is eligible for DEJ and the minor receives the requisite notice of his or her eligibility, but he or she nevertheless denies the allegations of the petition and requests a contested hearing. (In re Kenneth J. (2008) 158 Cal.App.4th 973, 976-980; In re Usef S. (2008) 160 Cal.App.4th 276, 281-283.) In such circumstances, the minor’s denial of the allegations and insistence on a contested hearing are “tantamount to a rejection of DEJ.” (Kenneth J., supra, at p. 980; see Usef S., supra, at p. 286, fn. 3.)
B. Analysis
At the time the original section 602 petition was filed, Ruben was ineligible for DEF based upon his age, 13 years, as section 790, subdivision (a)(5) specifies the juvenile must be “at least 14 years of age.” Ruben still was 13 years old when the amended section 602 petition was filed. The People complied with the requirement in section 790, subdivision (b) to notify Ruben of his eligibility or ineligibility by filing form JV-750 on September 28, 2015. Because Ruben was ineligible for DEJ, the juvenile court was under no obligation to conduct a suitability hearing. (§§ 790, subd. (b), 791.)
Section 790, subdivision (b) contemplates that a hearing on DEJ may be scheduled at the first hearing on the petition under section 657. Ruben was in custody, so the first hearing had to be within 15 days of detention. (§ 657, subd. (a)(1).) That first hearing was held on September 30, 2015, at which time Ruben’s counsel entered a denial of the allegations of the petition. Section 791, subdivision (a)(3) requires that for DEJ, the minor must admit each allegation of the petition in lieu of jurisdictional and disposition hearings. Even if Ruben’s age had made him eligible for DEJ, his denial of the allegations of the petition amount to a rejection of DEJ. (In re Kenneth J., supra, 158 Cal.App.4th at p. 980; In re Usef S., supra, 160 Cal.App.4th at p. 286, fn. 3.)
Moreover, on October 8, 2015, a discussion of possible DEJ eligibility was had between the People, Ruben’s counsel, and the juvenile court. The People were going to “look further into it” and contact Ruben’s counsel, the public defender. Presumably, this occurred or Ruben and his counsel would have raised the issue at a subsequent hearing. In any event, there is no indication in the record that Ruben raised the issue of DEJ at any time after October 8, 2015.
At the hearing on the day before Ruben’s 14th birthday, no discussion of DEJ was had; the parties discussed discovery and the trial date. On November 9, 2015, when Ruben was already 14 years old, there again was no discussion of DEJ; the parties set a trial date. Ruben’s continued denial of the allegations and insistence on a contested hearing are “tantamount to a rejection of DEJ.” (In re Kenneth J., supra, 158 Cal.App.4th at p. 980; see In re Usef S., supra, 160 Cal.App.4th at p. 286, fn. 3.)
Furthermore, the offense with which Ruben was charged fell within section 790, subdivision (a)(7). The amended petition alleged Ruben violated Penal Code section 286, subdivision (f), sodomy of an unconscious person, and the allegation was found true. The evidence established the victim was unconscious or asleep because of the use of controlled substances, specifically prescription medication. Consequently, Ruben’s offense fell within the parameters of section 790, subdivision (a)(7), which precludes DEJ for those minors who commit sodomy of an unconscious person when the person is unconscious by virtue of the use of a controlled substance.
Contrary to Ruben’s assertion, there is nothing in the language of section 790, subdivision (a)(7) requiring the minor know the victim has been rendered unconscious by the use of a controlled substance, nor is any such knowledge requirement found in Penal Code section 286, subdivision (f). The only knowledge requirement is knowing the victim is unconscious; not the reason the victim may be unconscious. We will not read into the statute a requirement not placed there by the Legislature. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1123.)
In sum, the People complied with their obligation under section 790, subdivision (b) to notify Ruben of his eligibility or ineligibility for DEJ. Ruben was ineligible for DEJ based upon his age and the nature of the charged offense; alternatively, Ruben rejected DEJ by denying the allegations of the petition and requesting a contested hearing. Consequently, the juvenile court had no obligation to hold a suitability hearing.
II. Custody Credits
We also reject Ruben’s contention the juvenile court should have calculated and awarded predisposition custody credits.
A minor is entitled to credit against his term of commitment for all days spent in physical confinement on the charges that resulted in his or her commitment. (In re Antwon R. (2001) 87 Cal.App.4th 348, 352.) Ruben, however, did not receive a term of commitment; instead, he was released into his father’s custody.
The juvenile court was required to specify custody credits in the dispositional order only if Ruben had been removed from the custody of his parents and a maximum period of confinement set. (§§ 731, subd. (c), 726.) The requirement to set a maximum period of confinement does not apply when the minor is released to his or her parents subject to probation supervision. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.) If Ruben at some point in the future violates probation, a noticed hearing will have to be held before he can be removed from his father’s custody and confined. (Id. at pp. 573-574.) At that time, the maximum period of confinement and any custody credits will be calculated. (Ibid.)
DISPOSITION
The May 20, 2016, disposition order is affirmed.