In re Steven N.

Filed 1/29/07 In re Steven N. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County.

Robert J. Totten, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.

___________________________________________________

Appellant, Steven N., admitted the allegations in a juvenile delinquency petition (Welf. & Inst. Code,  602)^[1]that when he was 12 years old he committed a lewd act upon a child (Pen. Code,  288, subd. (a); count 1) and orally copulated a person under the age of 14 (Pen. Code,  288, subd. (a)(c)(1); count 2). The juvenile court found count 1 of the petition true, held count 2 in abeyance, and placed appellant home on probation.

We hold as follows: (1) since appellant did not appeal from the dispositional order, he cannot complain about that underlying order placing him home on probation rather than granting a deferred entry of judgment ( 790), or about the courts statement of the theoretical maximum period of confinement; and (2) the court had no statutory authority to grant a postjudgment motion seeking to vacate the home on probation order and grant a belated deferred entry of judgment.

FACTUAL AND PROCEDURAL SUMMARY^[2]

On the afternoon of October 6, 2003, Los Angeles police officers went to a home in response to a radio call about child sexual abuse. The officers interviewed the victims mother. The mother indicated that approximately two weeks previously when their family was having dinner with other family members, she noticed that appellant and the victim, who are cousins, were no longer present with the rest of the family. The mother searched the house and discovered the two of them inside a locked bathroom. She unlocked the bathroom door and found appellant pulling up his pants and the victim standing frightened against the bathroom door. When the mother asked appellant what had happened, appellant stated that he touched the victims vagina, kissed her tongue to tongue, and had her kiss his penis.

One of the officers also interviewed the victim. She told the officer that appellant made her lick his penis, that he licked her vagina, and that he put his tongue into her mouth. At the time of the incident, appellant was 12 years old and in seventh grade; the victim was 4 years old.

In a written statement to the officers, appellant acknowledged the details of the incident. He also acknowledged that he attempted to put his penis into her vagina but had stopped because he didnt want to go that far. According to appellant, he engaged in this conduct for the feeling of power. He stated there were problems at home with his parents that made him feel weak, and that he was unable to do anything about it. Appellant had previously discussed sexual conduct with people on internet chat rooms and had spoken with friends about girls and sex. Appellant stated he was remorseful for his actions and for the pain he had caused others, and he realized what a bad, terrible, stupid thing he did.

Following appellants admission and the juvenile courts true finding as to the charge of committing a lewd act upon a child (count 1), at the hearing in February of 2005 the juvenile court declared appellant a ward of the court. Counsel for appellant argued for deferred entry of judgment ( 790), to which the prosecutor was very opposed because of the young age of the victim, the multiple occurrences during the incident, and the gravity of this type of molestation.

The juvenile court reviewed pertinent information regarding appellant, including the probation report, report cards, and various letters from appellants parents, a doctor, a psychologist, and a baseball coach. Despite some positive indications, the court stated it was particularly concerned about the fact that there was also an attempt for insertion, which caused the court great pause. The court was also concerned about the age difference between appellant and the victim and the predatory implications.

As the court explained: What about the age differential? If this was an older child, its much more predatory when Im dealing with a four year old and I realize this young man and I applaud the familys efforts, and I applaud this young man for everything he has accomplished since. Hes clearly moving in a very positive direction and I see that. I just dont know, in my own mind to get passed the fact that this is a vulnerable four year old that he used the relationship; I dont know if he used his size, his greater intellect and I just have difficulty with that. If it was closer in age range, I wouldnt have the problem.

The court then placed appellant home on probation with the requirement of 75 hours of community service. The court also declared the theoretical maximum period of confinement as eight years, which is the maximum term for an adult for the underlying felony offense.

Approximately eight months later, in October of 2005, appellant moved to set aside the order of wardship under section 775 and to change the order of home on probation to deferred entry of judgment. Appellant indicated that his probation officer strongly believe[d] he would be successful on the deferred entry of judgment program and had no objection to modification of the original order. Appellants motion further noted that he was doing well in school, was participating on a sports team, and had matured since the incident. The prosecutor argued that there was no legal basis after the disposition to grant deferred entry of judgment.

On November 22, 2005, the court denied the motion, stating that it had neither the statutory authority under section 775 to change the disposition to deferred entry of judgment, nor the inherent power to go back behind a plea and a previous disposition. On January 9, 2006, appellant filed a notice of appeal ( 800) from the November 22, 2005, order denying his motion.

DISCUSSION

I. General legal principles regarding deferred entry of judgment.

Section 790 et seq., enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, sets forth the procedure for deferred entry of judgment. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.) Pursuant to this procedure, a minor may admit the allegations in a section 602 petition instead of proceeding with jurisdictional and dispositional hearings. Entry of judgment is deferred and, [a]fter the successful completion of a term of probation, [and] on the motion of the prosecutor and with a positive recommendation from the probation department, the court is required to dismiss the charges. (Ibid.) Upon dismissal of 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. (Ibid.)

A court is vested with discretion to grant deferred entry of judgment for a felony offense where the minor is both eligible under specified statutory criteria ( 790, subd. (a); see also Cal. Rules of Court, former rule 1495(a), now rule 5.800(a)) and suitable. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607; see also In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) Suitability is evaluated by asking whether the minor will derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment. (In re Sergio R., supra, 106 Cal.App.4th at p. 607; see also  791, subd. (b).) One court of appeal has opined that denial of deferred entry of judgment for an eligible minor is proper only when the trial court finds the minor would not benefit from education, treatment and rehabilitation. (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 561.)

The juvenile court may not deny deferred entry of judgment, for example, merely because it seeks to send a message to other potential juvenile [offenders] as a means of deterring criminal activity by others. (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 562) Rather, the court must base its decision on the particular facts of the offense and the offender. Nonetheless, the courts disposition of home on probation and the rejection of deferred entry of judgment will be deemed a proper exercise of the courts broad discretion (see In re Sergio R., supra, 106 Cal.App.4th at p. 607, fn. omitted; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330), and will not be disturbed on appeal unless it exceeds the bounds of reason, all of the circumstances before it being considered. (Denhamv. Superior Court (1970) 2 Cal.3d 557, 566.)

In the present case, appellant challenges both (1) the denial at the February 23, 2005, hearing of a deferred entry of judgment, and (2) the denial on November 22, 2005, of his motion to set aside the order of wardship and grant deferred entry of judgment. As discussed below, the former order is not appealable because there was no notice of appeal from it, and the latter order is appealable but the challenge to it is unavailing.

II. Since appellant did not appeal from the dispositional order, he cannot complain about that underlying order placing him home on probation rather than granting a deferred entry of judgment ( 790), or about the courts selection of the theoretical maximum period of confinement.

^{Appellants contention that the juvenile court abused its discretion at the February 23, 2005, hearing in granting home on probation, rather than deferred entry of judgment, is not cognizable in this appeal. Nor may we review his claim that the court had discretion under section 731, subdivision (b) to specify a theoretical maximum period of confinement less than the maximum that could be imposed for an adult. Appellants January 9, 2006, notice of appeal seeks only to appeal from the subsequent order of said court dated November 22, 2005, and disposition was contrary to law. Such a limited notice of appeal does not permit an appeal from the prior underling February 23, 2005, dispositional order from which no notice of appeal was filed.}

^{We are precluded by the limits of appellate jurisdiction from addressing any claims of error arising from the February 23, 2005, proceeding, from which an appeal could have been taken. ( 800.) Appellate jurisdiction to review an appealable order is dependent upon a timely notice of appeal. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331, citing Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) The underlying order has long since become final and cannot be belatedly reviewed now. (Cf. People v.Chagolla (1984) 151 Cal.App.3d 1045, 1048 [issue of failure to state reasons for state prison term when suspending imposition of sentence and granting probation is cognizable only on appeal from the underlying judgment; issue is not cognizable on appeal after revocation of probation and imposition of suspended prison term]; Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 959, fn. 1 [judgment notwithstanding the verdict entered for plaintiff who appealed from order, not from original judgment; appeal from judgment notwithstanding the verdict held ineffective to appeal from judgment].)}

^{Accordingly, we have no jurisdiction to address appellants claim that the court abused its discretion at the February 2005 hearing when it rejected deferred entry of judgment and placed him home on probation. Nor, despite its patent lack of merit (In re Ali A. (2006) 139 Cal.App.4th 569, 571, 574, & fn. 2), do we have jurisdiction to rule on the claim of error as to the courts statement of the theoretical maximum term of confinement for a juvenile granted home on probation.}

III. The juvenile court lacked authority to modify its home on probation disposition to a belated deferred entry of judgment.

Absent appellate review permitting a contrary result because of some legal error, the deferred entry of judgment program is unavailable after the declaration of wardship. Sections 790 et seq. empower the juvenile court to grant deferred entry of judgment in lieu of jurisdictional and disposition hearings ( 791, subd. (a)(3)) when certain criteria are met. Deferred entry of judgment, by definition, does not entail the imposition and suspension of judgment, but rather the deferral of judgment pending the minors successful completion of the terms of probation, at which time the charges are dismissed. ( 791, subd. (a)(3).) As in the present case, where wardship is declared, judgment is necessarily imposed, rendering any subsequent deferment of judgment impossible as a matter of law.

Other aspects of the statutory scheme also support the conclusion that deferred entry of judgment cannot be done after jurisdictional and dispositional hearings. The deferred entry of judgment legislation specifically provides a mechanism to lift deferral of judgment and schedule a dispositional hearing where the minor fails to perform satisfactorily under a deferred entry of judgment program ( 793), but provides no procedures for the contrary situation. The legislative scheme simply lacks any provision for a juvenile court to nullify its prior wardship and disposition and to belatedly permit deferred entry of judgment.

Consistent with general notions of statutory interpretation, we may infer that [t]he expression of some things in a statute necessarily means the exclusion of other things not expressed. (In re Christopher T. (1998) 60 Cal.App.4th 1282, 1290; see Horwich v. Superior Court (1999) 21 Cal.4th 272, 276 [statutes adopted by initiative interpreted according to same rules governing interpretation of statutes enacted by legislature].) Thus, the absence of any specific statutory authority permitting belated deferred entry of judgment, when legislation fully addresses the general subject matter and allows for the contrary situation, implies intent not to permit the procedure absent in the statutory scheme.

Moreover, a minor is eligible for admittance to the deferred entry of judgment program only if certain prerequisites are satisfied, the first of which is that [t]he minor has not previously been declared to be a ward of the court for the commission of a felony offense. ( 790, subd. (a)(1).) Thus, a minor, such as appellant, who has already been declared a ward of the court based on the underlying felony matter cannot later, in the same case, become eligible for deferred entry of judgment. Appellant is, by virtue of the procedural status of his case, statutorily ineligible for the program.

It is also apparent that if deferred entry of judgment were available after an order of wardship, a minor such as appellant could bypass the normal record sealing procedure set forth in section 781, which is similar both in nature and effect to the expungement of adult offenders criminal records permitted under Penal Code section 1203.4. (People v.Superior Court (Manuel G.) (2002) 104 Cal.App.4th 915, 932.) Sealing records under section 781, which is still available to appellant, provides a mechanism to achieve essentially the same result as deferred entry of judgment, although it entails a longer time frame. Section 781 requires the minor to apply for sealing five years after the termination of jurisdiction by the juvenile court, or when the minor reaches age 18. ( 781, subd. (a).) The statute permits sealing of the records, including records of arrest, relating to the persons case, in the custody of the juvenile court and probation officer and any other agencies, including law enforcement agencies, and public officials . . .  [who] have custody of the records. (Ibid.) Sealing under this section is available where the minor has not been convicted of another felony or a misdemeanor involving moral turpitude, and where rehabilitation has been attained to the satisfaction of the court. (Ibid.)

Finally, appellants reliance on section 775 for authority to modify the order under review is unavailing. Section 775 provides that, Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper . . . . (Italics added.) However, the modification sought herein could not be deemed proper within the meaning of section 775. As previously discussed, the very nature of the deferred entry of judgment statutory scheme compels the conclusion that the juvenile court lacks authority to modify a home on probation disposition to a belated deferred entry of judgment.

Accordingly, the juvenile court properly concluded that it lacked authority to modify its wardship order to deferred entry of judgment.^[3]

DISPOSITION

The order under review is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J. ASHMANN-GERST, J.

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

^[2] The factual circumstances of the offense are described in the probation officers report.

^[3] We note that the juvenile court also reasoned that it lacked authority to modify its previous dispositional order because the order was the product of a court-sanctioned plea bargain between the prosecutor and the minor. (See People v. Tang (1997) 54 Cal.App.4th 669, 680.) In view of our discussion above, it is unnecessary to address this issue.