In re V.B.

Filed 7/26/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Tammy Chung Ryu, Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Jack Newman, Deputy Attorneys General, for Plaintiff and Respondent.

In this case we hold the Superior Court is not estopped from vacating an order placing a minor in a deferred entry of judgment program, pursuant to a plea bargain, where the placement order was made in excess of the court's jurisdiction.

FACTUAL AND PROCEDURAL SUMMARY

The appellant, V.B. (appellant), was arrested for attempted robbery of a fellow middle school student. Appellant was 11 years old at the time. A delinquency proceeding was filed against him pursuant to section 602 of the Welfare and Institutions Code. (All subsequent code citations are to that code unless another is stated.) Two counts were charged: attempted second degree robbery and grand theft from the person (Pen. Code, §§ 664/211, 212.5, subd. (c), and 487, subd. (c)). The probation officer's report, the only factual summary in the record concerning the underlying facts, indicates that two separate crimes were committed: an attempted shakedown robbery at school and a theft committed against the same victim as he was walking home from school.

The parties entered into a plea agreement at the adjudication hearing. Under the terms of that arrangement, appellant pled guilty to the second count, grand theft from the person, the first count (attempted robbery) was dismissed, and the minor was ordered placed into the deferred entry of judgment program under section 790. This plea bargain apparently was offered by the prosecution. It was accepted by appellant personally and through his attorney, and by the court. The trial court presided over a detailed explanation of appellant's rights and waivers of those rights before accepting the plea. The transcript of the proceeding does not reflect any discussion that, as a minor under 14, appellant was not eligible for the program. He was placed in the program, and he agreed to obey several conditions of probation, including terms aimed at improving his performance at school, and enrollment and completion of specified programs. He was released to the care of his grandmother.

Subsequent progress reports showed substantial improvement in appellant's performance at school, both in terms of grades and attendance. He was participating in the ordered programs. At subsequent periodic reviews, all orders, including the order placing him in the deferred entry of judgment program, were continued in full force and effect.

This state of affairs continued until the May 3, 2005 hearing. By that time, the trial judge (a different bench officer than the referee who had accepted the plea bargain) had discovered that appellant was ineligible to participate in the deferred entry of judgment program because he was under 14 at the time of the plea bargain and order admitting him into the program. Section 790, subdivision (a)(5) provides that, to be eligible, the minor must be at least 14 years of age at the time of the hearing. The hearing was held on May 3, 2004. Appellant was born on June 29, 1992, and hence was still 11 at that time.

The trial judge explained that placing appellant in the deferred entry of judgment program was a mistake that could not remain uncorrected. The court proposed to leave him in home-on-probation status with his grandmother until he completed his community service obligation, and to then place him home on probation without a declaration of wardship. Once he completed all conditions of probation the court would terminate jurisdiction and consider dismissing the petition. The court observed that this was what appellant would have attained under the deferred entry of judgment program.

Appellant's attorney argued that the benefits were not exactly the same; under the deferred entry of judgment program, his record would have been automatically sealed upon completion of the program; otherwise he would have to wait until his 18th birthday to seek a sealing order.

The court recognized that ineligibility for the deferred entry of judgment program would result in a delay to the time when appellant could receive a sealing order with respect to the record for the present charges. But it found no escape from the basic problem: appellant was not eligible to be in the program, and ordering him into it was not only a mistake but also an action taken in excess of the court's jurisdiction. The court rejected appellant's argument that the court itself was estopped to raise that issue. It saw only two alternatives: appellant could withdraw his plea and begin over, or he could accept the short home-on-probation alternative outlined by the court. The prosecutor neither supported nor opposed the court's intended ruling; he simply submitted the matter without comment.

Appellant's attorney said his client would choose to withdraw his plea and begin over, and would file a motion to do so. The record does not reflect that such a motion was filed, let alone acted upon. The court vacated its earlier order placing appellant in the deferred entry of judgment program. By the time of the next hearing, appellant had completed all the conditions of probation. The court ordered him home on probation and terminated jurisdiction over the case.

Appellant filed a timely notice of appeal from the May 3, 2005 order vacating the order that had placed him in the deferred entry of judgment program.

DISCUSSION

Sections 790-795 (comprising article 20.5, a part of chapter 2, part I, division 2 of the Code), were enacted by initiative as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. This measure was approved by voters at the March 2000 election. The new statute provides that â€