In re C.Y.

Filed 8/17/07 In re C.Y. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Julia L. Bancroft, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant C.Y. was charged with unlawfully taking or driving a car and receiving stolen property. He was found eligible to receive deferred entry of judgment (DEJ) and admitted the allegations. However, the court determined he was not suitable for DEJ and permitted him to withdraw his admissions. Thereafter, appellant admitted the vehicle offense and he was adjudged a ward of the court, ordered to perform community service, and placed on an electronic monitoring program.

On appeal, appellant argues the court abused its discretion when it found he was not suitable for DEJ, failed to make sufficient findings to support its decision, and failed to clarify whether the vehicle offense was a felony or misdemeanor. Respondent argues that appellant failed to object to the courts findings that he was not suitable for DEJ and thus waived appellate review. Respondent also argues the court inferentially found the vehicle offense was a felony.

FACTUAL AND PROCEDURAL HISTORY

On May 14, 2006, a police officer was on patrol in Fresno when he ran a check on a vehicles license plate number and learned it had been reported stolen.^[1] The officer conducted a traffic stop of the vehicle. Appellant C.Y. (born 1990) was the driver and sole occupant. Appellant stopped the vehicle and attempted to walk away, but he was apprehended by the officer. Appellant spontaneously stated he did not know the vehicle was stolen.

Jesus Bejar, the owner of the vehicle, stated that appellant did not have permission to take his vehicle. Bejar reported that the camper shell, a cassette player, and his tool box were missing from the vehicle. Appellant denied stealing these items, and also denied any knowledge about the missing items. Appellant later stated he stole Bejars vehicle from a market parking lot, the window was down and the keys were in the ignition, and he stole the vehicle because he was too lazy to walk home. Appellant was booked into juvenile hall and released to his parents custody the same day. He remained out of custody for the entirety of this case.

The juvenile petition

On June 9, 2006, a petition was filed in the Superior Court of Fresno County alleging that appellant was a juvenile within the provisions of Welfare and Institutions Code^[2]section 602, based on his commission of count I, unlawful driving or taking of a motor vehicle (Veh. Code,  10851, subd. (a)); and count II, receiving stolen property (Pen. Code,  496d, subd. (a)).

On the same day, the prosecutor filed a determination that appellant was eligible for both DEJ and probation because he was 14 years of age or older; he allegedly committed at least one felony offense; there was no allegation that he committed an offense described in section 707, subdivision (b); he had not previously been declared a ward of the court based on a previous felony finding; and he had never been on formal or informal probation.

On July 26, 2006, appellant denied the petitions allegations. On August 9, 2006, defense counsel advised the court that appellant had been found eligible for DEJ, and the parties were going to explore whether appellant should receive such a disposition. Counsel stated that appellant would admit the allegations, and the matter would be referred to the probation department for determination of whether he would receive DEJ. Thereafter, the court advised appellant of his constitutional rights. Appellant stated he understood and waived those rights and admitted count I, unlawful taking or driving a vehicle, and count II, receiving stolen property. The parties stipulated to the factual basis and the court found appellant a ward of the court and referred the matter to the probation department for a determination as to whether appellant was suitable for DEJ.

The probation officers report

On August 31, 2006, the probation report was filed, which set forth the nature of the offense and offender. Appellant lived with his parents, who were both unemployed. Appellants parents arrived in the United States in 1991, they had lived in Fresno since that time, and they were legal residents. His parents did not have criminal records or substance abuse issues, and there were no prior referrals to child protective services. His parents were dedicated to appellants well-being and wanted to participate in the case plan.

The probation officer interviewed appellants mother, who did not speak English, but her daughter acted as translator. According to the probation report, appellants mother stated his positive behavior was that he was well-behaved at home, respectful, caused few problems, obeyed the parents restrictions, and only left the house after receiving permission. Appellants mother identified his negative behavior as coming and going from home as he pleased, in spite of contrary instructions; he often left home and stayed away overnight without permission; he failed to help with household chores; and he sometimes did not adhere to curfew and returned home as late as 2:00 a.m. His parents disapproved of his choice of friends. Appellants mother stated that about twice a week appellants friends would come over and then they would all leave. Appellants mother reported he did not respond to her discipline, and he usually argued with his parents.

The probation officer also interviewed appellant, who stated that he stole the vehicle from a parking lot located next to a market. Appellant said the camper shell, the tool box, and the stereo were already missing when he stole the vehicle. Prior to admitting his involvement, he had reported that he was only parking the vehicle for his friends, then but did not want to reveal his friends. [Appellant] reported that one of his friends drove the vehicle, but [appellant] failed to provide [his friends] full name.

Appellant did not have any prior record and this case was his first appearance before a juvenile court. He previously attended Roosevelt High School, but was transferred to Cambridge Continuation High School because he was cutting classes and his grades dropped. He was in the 11th grade and had the following grades for the 2005-2006 school year: incomplete in English III-IV, a B in algebra/geometry, and a C in math IV. His previous grades were poor. In the same school year, he attended 134 days out of a possible 143 days and had nine unexcused absences. In February 2003, he was suspended for five days because of fighting. In February 2005, he was suspended for three days for pushing another student and a teacher had to intervene to prevent appellant and the other student from fighting. Appellant reported he had been employed as a part-time caregiver in Sanger for several months in 2006.

Appellant denied any use of drugs or alcohol or any involvement in gang activity. Appellant said he did not know what should happen to him. Appellants mother suspected he was using drugs because he was always out with his friends. She also suspected he may be associating with gang members. Appellants mother wanted him to receive electronic monitoring as a suitable disposition. However, she also felt appellant needed structure and accountability, and that appellant could benefit from boot camp, a juvenile hall commitment, a community service program, individual counseling, formal probation, or electronic monitoring.

The probation officer offered the following analysis and plan:

[Appellant] admitted to stealing the vehicle, but denies having any involvement with the items stolen from the vehicle. It is this officers opinion based on the interview with [appellant] and the police report, that [appellant] may not have been totally truthful. This officer feels that he was protecting his friends.

There appears to be some issues with [appellant] at home. He doesnt listen to his mother, and he is out late at night with his friends. Furthermore, there are times that he does not return home. Though the mother suspects that [appellant] may be using drugs and associating with gang members, there is no proof. [Appellant] denied any use of drugs or alcohol. It appears that the parents do not have control of [appellant], because he comes and goes as he pleases. [Appellants] overall school performance is below expectations and ability, therefore, needs improvement. [Appellant] has received incomplete grades in 2 of his 4 classes.

This officer considered the circumstances of the offense, [appellants] home behavior, his overall school performance in determining [his] suitability for participation in the [DEJ] Program. Though this was [appellants] first offense, this officer does not find [appellant] amenable to treatment, education, and rehabilitation as required by the DEJ Program. The parents cannot control [appellant], and his school performance has deteriorated. This officer also feels that the likelihood of [him] re-offending is possible. Therefore, this officer does not find [appellant] suitable for the DEJ Program.

The courts findings

On August 31, 2006, the court conducted a hearing on appellants suitability for DEJ and reviewed the probation officers report. Defense counsel objected to the probation officers findings, particularly the officers opinion that appellant had not been totally truthful about the vehicle theft. Counsel urged the court to find appellant suitable for DEJ. Counsel acknowledged there was some room for improvement in appellants grades, and that he reportedly would come and go from his parents home as he pleased, but noted the vehicle theft was appellants first offense. Counsel also objected to the statements in the probation report attributed to appellants mother, which were made through the sisters translation, that appellant used drugs and associated with gang members. Counsel argued there was no proof of such allegations, and that appellants mother should be called to testify instead of relying on the translated statements in the report.

The prosecutor replied that the probation officers recommendation was appropriate based on the various issues raised in the report, and noted appellants parents said he was beyond their control and did not listen to them. Under such circumstances, releasing appellant on DEJ would be contrary to everyones best interests. The probation officer submitted on the report.

The court stated it found appellant unsuitable for the Deferred Entry of Judgment program. The court asked defense counsel what she wanted to do. Counsel requested that the court permit appellant to withdraw his admissions and proceed to trial. The court allowed appellant to withdraw his admissions and continued the matter.

The disposition hearing

On September 27, 2006, the court conducted the disposition hearing. Defense counsel stated appellant would admit count I, felony unlawful taking or driving a vehicle, and count II, receiving stolen property, would be dismissed.^[3] Thereafter, the court advised appellant of his constitutional rights and appellant stated he understood and waived those rights. Appellant admitted count I, the court dismissed count II, and appellant was adjudged a ward of the court.

The court turned to the dispositional issues, and asked the probation officer if she could go ahead and provide us with the orders? The probation officer made the following recommendations: (1) ) that appellant be adjudged a ward of the court; (2) that appellant receive credit for time served (one day) against the maximum period of confinement of three years; (3) that appellant be committed to the juvenile electronic monitoring program for a period not to exceed 90 days; (4) that the probation department be authorized to offer up to 10 days as an option to work off any alleged probation violations in lieu of returning to court; (5) and that appellant complete 14 days of the community service work program, complete a property offender program, pay a $100 restitution fine (with victim restitution to be subsequently determined), attend school, reside in his parents home, report to the probation officer as ordered, obey curfew from 9:00 p.m. to 6:00 a.m., not use alcohol or drugs, and not associate with anyone appellant knows is disapproved by his parents or the probation officer. The court adopted the probation officers recommended disposition, advised appellant of his appellate rights, and adjourned the hearing.

On September 28, 2006, appellant filed a timely notice of appeal of the courts findings and orders of September 21, 2006. On October 12, 2006, appellant filed a first amended notice of appeal of the courts findings and orders of the corrected date of September 27, 2006.

DISCUSSION

I. Denial of DEJ

On appeal, appellant contends the court abused its discretion when it found he was not suitable for DEJ, and it failed to state adequate findings to support its decision. Respondent asserts appellant failed to preserve appellate review of the adequacy of the courts findings, and the court did not abuse its discretion in finding appellant not suitable for DEJ.

We begin with the provisions of the DEJ program. 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. [Citations.] (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C.).)

The determination of whether to grant DEJ requires consideration of two distinct essential elements of the DEJ program: eligibility and suitability. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10 (Sergio R.), italics in original.) Before filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney shall review the childs file to determine if the requirements of [section 790] subdivision (a) are met. If the prosecuting attorneys review reveals that the requirements of subdivision (a) have been met, the prosecuting attorney shall file [the appropriate Judicial Council determination of eligibility form] with the petition. (In re Luis B. (2006) 142 Cal.App.4th 1117, 1122 (Luis B.), quoting 790, subd. (b).) If the minor is found eligible for DEJ, the prosecutor must file a declaration or state on the record the grounds for this determination and notify the minor. ( 790, subd. (b); 791, subd. (a) [contents of notification]; Cal. Rules of Court, former rule 1495(b).)^[4]

A minor is eligible for DEJ under section 790 if he or she is accused in a juvenile wardship proceeding of committing a felony offense and all of the following circumstances apply: (1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. [] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. [] (3) The minor has not previously been committed to the custody of the Youth Authority. [] (4) The minors record does not indicate that probation has ever been revoked without being completed. [] (5) The minor is at least 14 years of age at the time of the hearing. [] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code. ( 790, subd. (a)(1)-(a)(6).) The parties herein agree that appellant was eligible for DEJ in the instant case.

Once eligibility is established, the statutory language empowers but does not compel the juvenile court to grant DEJ. (Sergio R., supra, 106 Cal.App.4th at p. 605.) While such eligibility is a necessary condition for DEJ, it is not alone a sufficient basis. Under proper circumstances the court may refuse DEJ even to minors eligible under section 790, subdivision (a). [Citation.] (Martha C., supra, 108 Cal.App.4th at p. 560.) If the prosecuting attorney finds the minor eligible, the court has a mandatory . . . duty . . . to either summarily grant DEJ or examine the record, conduct a hearing, and make the final determination regarding education, treatment, and rehabilitation . . . [Citations.] (Luis B., supra, 142 Cal.App.4th at p. 1123.) Thereafter the court retains discretion to deny DEJ to an eligible minor.... (Ibid.) The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made. [Citations.] (Ibid.)

Thus, the fact that the minor meets the statutory criteria for eligibility does not mean the minor is automatically entitled to DEJ. Rather, a grant of DEJ is a matter addressed to the discretion of the juvenile court. (Sergio R., supra, 106 Cal.App.4th at pp. 604-605, 607.) In this regard, the court makes an independent determination after consideration of the suitability factors specified in [California Rules of Court, former] rule 1495(d)(3) and section 791, subdivision (b), with the exercise of discretion based upon the standard of whether the minor will derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment. [Citations.] (Sergio R., supra, 106 Cal.App.4th at p. 607, fn. omitted; Martha C., supra, 108 Cal.App.4th at p. 562, italics omitted.)

The suitability factors include the minors age, maturity, educational background, family relationships, motivation, any treatment history, and any other relevant factors regarding the benefit the minor would derive from education, treatment, and rehabilitation efforts. (Cal. Rules of Court, former rule 1495(d)(3); see also 791, subd. (b).) California Rules of Court, former rule 1495(d)(3) reiterated and expanded the suitability factors in section 791, subdivision (b). In particular, former rule 1495(d)(3)(A) provided that [t]he Probation report shall address the following: [] (i) The childs age, maturity, educational background, family relationships, motivation, any treatment history, and any other relevant factors regarding the benefit the child would derive from education, treatment, and rehabilitation efforts; and [] (ii) The programs best suited to assist the child and the childs family.

The court may grant DEJ to the minor summarily under appropriate circumstances [citation], and if not must conduct a hearing at which the court shall 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.] (Luis B., supra, 142 Cal.App.4th at p. 1123.) When directed by the court, the probation department shall make an investigation and take into consideration the defendants 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 also determine which programs would accept the minor. ( 791, subd. (b); see Cal. Rules of Court, former rule 1495(d).)

In evaluating whether a minor should be granted DEJ, the court makes an independent determination after consideration of the suitability factors specified in [former] rule 1495(d)(3) and section 791, subdivision (b), with the exercise of discretion based upon the standard of whether the minor will derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment. [Citations.] (Sergio R., supra, 106 Cal.App.4th at p. 607, fn. omitted.) While the probation department reports its findings and recommendations to the court, the court is not bound by these recommendations and is charged with making the final independent determination of suitability. (Martha C., supra, 108 Cal.App.4th at p. 561; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.) Denial of deferred entry of judgment is proper only when the trial court finds the minor would not benefit from education, treatment and rehabilitation. (Martha C., supra, at p. 561.) In making such a determination, the court may find the circumstances of a crime indicate that a minor is not amenable to rehabilitation. (Id. at p. 562.)

If the entry of judgment is deferred, the court is required to make submission to a warrantless search a condition of probation and consider the imposition of drug testing and other stated conditions, and it may impose any condition of probation authorized by the code that the court believes would assist in the education, treatment and rehabilitation of the minor and prevent criminal activity. ( 794.) (Martha C., supra, 108 Cal.App.4th at p. 559.) If the minor fails to perform satisfactorily, the court may lift the deferred entry of judgment, impose the judgment previously deferred, and make an appropriate dispositional order. ( 793, subd. (a); In re Mario C. (2004) 124 Cal.App.4th 1303, 1308.)

The determination to grant deferred entry of judgment is a matter addressed to the discretion of the juvenile court, which may be reversed only upon a showing of abuse of discretion. (Sergio R., supra, 106 Cal.App.4th at p. 607; In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330.) An abuse of discretion occurs only when the trial court exceeds the bounds of reason, all of the circumstances before it being considered. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

In Sergio R., the minor admitted to possession of methamphetamine and first degree burglary and he met the statutory eligibility criteria for DEJ, but the juvenile court found the minor was not an appropriate candidate. Sergio R. upheld the denial of DEJ, and pointed out that the statutes that govern the trial courts responsibility to grant DEJ to a qualifying juvenile invariably use discretionary rather than compulsory terms and therefore the trial court had discretion to deny the motion even though the minor met the statutory eligibility criteria. (Sergio R., supra, 106 Cal.App.4th at pp. 600-602.)

Nothing in the statutory language indicates to us an intent to require the juvenile court to grant deferred entry of judgment if the circumstances specified in section 790 and [California Rules of Court, former] rule 1495 are found to exist. To the contrary, the statutes invariably use discretionary rather than compulsory terms when expressing both the guidelines and procedures that govern the trial courts responsibility to grant deferred entry of judgment to a qualifying juvenile defendant. (Id. at p. 603, fn. omitted.)

Sergio R. held that the minors youth and lack of a prior record militated in favor of deferred entry of judgment, but his history as an entrenched gang member and drug abuser and his participation with other gang members in a residential burglary supported the trial courts decision. (Id. at p. 608.)

In Martha C., a 17-year-old minor and another person were caught smuggling over 50 pounds of marijuana into the United States from Mexico, some hidden in the rear seat and some in the gas tank of their car. The minor had no juvenile record, her behavior at home was compliant, her home was stable and nurturing, and while she had been habitually truant from school in the past, she was in a new alternative education program and was doing well. (Martha C., supra, 108 Cal.App.4th at p. 559.) The probation officer in Martha C. concluded the minor would benefit by education, treatment and rehabilitation pursuant to the DEJ procedure and that she would be acceptable to all appropriate programs. (Ibid.) The juvenile court appeared to agree with the probation department that the minor would benefit from education, treatment, and rehabilitation, but denied DEJ because the method of smuggling was sophisticated, and because it wished to send a message to other potential juvenile drug smugglers that they would not receive DEJ if they engaged in similar conduct. (Id. at p. 562.)

Martha C. held the juvenile court abused its discretion when it denied DEJ to the minor because it wanted to send a message to other minors, and held that DEJ may only be denied to an eligible minor if the court finds the minor would not benefit from education, treatment, and rehabilitation. In doing so, Martha C. relied on noncodified findings included in Proposition 21 regarding the intent and purpose of the DEJ program. (Martha C., supra, 108 Cal.App.4th at p. 561.)

Proposition 21 contains a noncodified section entitled Findings and Declarations; subdivision (j) of those findings states: Juvenile court resources are spent disproportionately on violent offenders with little chance to be rehabilitated. If California is going to avoid the predicted wave of juvenile crime in the next decade, greater resources, attention, and accountability must be focused on less serious offenders such as burglars, car thieves, and first time non-violent felons who have potential for rehabilitation. This act must form part of a comprehensive juvenile justice reform package which incorporates major commitments to already commenced at risk youth early intervention programs and expanded informal juvenile court alternatives for low-level offenders. These efforts, which emphasize rehabilitative protocols over incarceration, must be expanded as well under the provisions of this act, which requires first time, non-violent juvenile felons to appear in court, admit guilt for their offenses, and be held accountable, but also given a non-custodial opportunity to demonstrate through good conduct and compliance with a court-monitored treatment and supervision program that the record of the juveniles offense should justly be expunged. (Italics added.)

These findings express not only a strong preference for rehabilitation of first-time nonviolent juvenile offenders but suggest that under appropriate circumstances DEJ is required. This strong preference for rehabilitation and the limitation on the courts power to deny delayed entry of judgment are reflected in the procedures used in considering DEJ. (Martha C., supra, 108 Cal.App.4th at p. 561; see also In re V.B. (2006) 141 Cal.App.4th 899, 904.)

Martha C. held that there was nothing in the section suggesting that any consideration other than the minors nonamenability to rehabilitation is a proper basis for denying deferred entry of judgment. Such a narrow limitation on the bases for denial is consistent with the strong preference for rehabilitation stated in the Findings and Declarations section of Proposition 21. (Martha C., supra, 108 Cal.App.4th at p. 561.) In so holding, however, Martha C. did not suggest the minors offenses were not serious or sophisticated, or that the juvenile court could not consider such circumstances in finding a minor unsuitable for DEJ. While a court might find that the circumstances of a crime indicate a minor is not amenable to rehabilitation [citation], and on that basis deny DEJ, it may not do so as a means of deterring criminal activity by others. (Id. at p. 562.)

In the instant case, appellant complains the juvenile court failed to state specific reasons when it denied DEJ and simply found he was unsuitable for the Deferred Entry of Judgment program. Respondent asserts appellant failed to object to the adequacy of the courts finding that he was not suitable. Appellant contends he repeatedly objected to the courts reliance upon the probation officers underlying opinions and recommendation that he was not suitable for DEJ. In the alternative, however, appellant argues defense counsel was prejudicially ineffective for failing to request a more detailed finding from the court.

The entirety of the record clearly reflects defense counsels numerous objections to the probation officers report that appellant was not suitable for DEJ. While the court simply found appellant was not suitable without further explanation, the record implies the court agreed with the probation officers recommendations and findings on this issue and rejected defense counsels objections. Counsel preserved appellate review of the denial of DEJ and we need not address the parties contentions as to ineffective assistance. Moreover, under these circumstances, in reviewing a claim that such denial constituted an abuse of discretion, we apply the following well-established principles of appellate review: A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)

As to the merits, appellant argues the court abused its discretion when it found he was not suitable for DEJ. Appellant asserts the facts and circumstances of his case are identical to the situation presented in Martha C., because he is precisely the type of at-risk youth targeted by the DEJ legislation--a first time, nonviolent offender who committed a car theft and who has a stable home life with parents committed to his well-being. Appellant challenges the findings in the probation report that he was not totally truthful about the vehicle theft, his school performance had deteriorated, and his parents could not control him, and, as in Martha C., argues the court herein abused its discretion when it found he was not suitable.

As noted ante, the juvenile court apparently rejected appellants objections to the probation report and agreed with the probation officers conclusion that appellant was not amenable to treatment, education, and rehabilitation as required by the DEJ program. It is undisputed that the instant vehicle theft was appellants first offense, which placed him within the parameters of the DEJ program as described by the uncodified portions of the statute and explained in Martha C. The probation officer acknowledged these circumstances, but also focused on other aspects of the case.

While the instant case presents a close question, the entirety of the record establishes the court did not abuse its discretion when it found appellant was not suitable for DEJ.

First, the probation officer observed appellant was not being totally truthful about his participation in the vehicle theft. Appellant objects to such a finding, but the undisputed record demonstrates that appellant had various explanations for why he was driving a stolen vehicle. According to the police report, appellant complied when the officer conducted the traffic stop of the stolen vehicle, but he immediately walked away. When the officer apprehended him, he spontaneously said he did not know the vehicle was stolen. Appellant denied stealing the camper shell, cassette player, and tool box. Appellant later stated he stole the vehicle from a market parking lot, the window was down and the keys were in the ignition, and he stole the vehicle because he was too lazy to walk home. Prior to admitting his involvement, he had reported that he was only parking the vehicle for his friends, then but did not want to reveal his friends. [Appellant] reported that one of his friends drove the vehicle, but [appellant] failed to provide [his friends] full name. Appellants various explanations raise the inference that he was not completely forthcoming about his conduct.

Second, the probation report concluded appellants parents could not control him. Appellant asserts such a conclusion may have been based on language issues because his mother did not speak English, and the probation officer relied on appellants sister as translator. The probation report seems to contain contradictory statements about appellants home behavior. Certainly, in discussing appellants home life, the probation officer noted the parents were supportive. The report states that appellants parent(s)/guardian, presumably his mother, described appellants positive behavior as being well behaved at home, respectful, causing few problems, obeying their restrictions, and only leaving the house after obtaining permission. The report also states his parent(s)/guardian described his negative behavior as coming and going from home as he pleased in spite of contrary instructions, he often left home and stayed away overnight without permission, he didnt help with household chores, he did not adhere to curfew, his mother specifically reported that he sometimes comes home as late as 2:00 a.m., and his parents disapproved of his choice of friends.

While the list of positive and negative behaviors may seem contradictory, and while appellants parents stated they were dedicated to his well-being, his parents also felt he was in need of structure and accountability, and that programs such as boot camp, a juvenile hall commitment, electronic monitoring, and/or community service would benefit him. Moreover, appellants mother specifically stated that he did not respond to her discipline and usually argued with his parents. The entirety of the record thus supports the probation officers conclusion that appellants parents could not control his behavior.^[5]

Appellant argues the court should have heard testimony from his mother to clarify these contradictions in the probation report. As noted ante, if the court does not grant DEJ to the minor summarily, it must conduct a hearing at which the court shall 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.] (Luis B., supra, 142 Cal.App.4th at p. 1123.) Appellant was not foreclosed from presenting evidence to challenge the probation report. At the DEJ hearing, defense counsel asserted appellants mother should be called to testify instead of relying on the translated statements in the probation report. The record reflects appellants mother was present at the hearing with a Hmong interpreter, but counsel never asked for an evidentiary hearing, called the mother to testify, or made any type of offer of proof that appellants mother would contradict her statements in the probation report.

The probation officer also cited to appellants overall school performance as below expectations and ability. Appellant had received incomplete grades in two of four classes, his school performance had deteriorated, and he needed to show improvement. As in Martha C., appellant had not dropped out of school but was transferred to a continuation school. He had passing grades in two classes, but he had been involved in fights with other students, admitted cutting class, and had several truant days.

The probation officer concluded the report with the opinion that the likelihood of [appellant] re-offending is possible. This opinion is apparently based on the officers summary of appellants home behavior, the circumstances of the offense, and his school performance. While the record is silent as to any involvement in other criminal activities, the facts and circumstances of the case indicated that appellants parents could not control him and such behavior might continue. The juvenile court did not abuse its discretion when it found appellant was not suitable for DEJ, based on the entirety of the record which demonstrated his deteriorating school performance, his repeated evasiveness as to why he was driving a stolen car, and especially his parents admitted inability to control his behavior.

II. Determination of Count I as a Felony or Misdemeanor

Appellant admitted the allegation in count I, that he violated Vehicle Code section 10851, subdivision (a), unlawfully taking or driving a vehicle. This is a wobbler offense, punishable in the courts discretion as either a felony or misdemeanor. (See, e.g., People v. James (1984) 157 Cal.App.3d 381, 389.) Appellant contends the matter must be remanded because the court never declared whether his offense was a felony or a misdemeanor.

Appellants argument is based on section 702, second paragraph, which provides in pertinent part:

If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Section 702 requires the juvenile court to make an explicit declaration whether a wobbler offense is a felony or a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) This requirement is obligatory. (Ibid.) One purpose of this rule is to ensure the juvenile court is aware of and actually exercises its discretion to treat the offense as a misdemeanor. (Id. at p. 1207.)

Section 702 has been interpreted to require an express, formal finding by the juvenile court. [N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.] (Manzy W., supra, 14 Cal.4th at p. 1208.) Where a juvenile court fails to make such a designation, the matter need not be remanded if the record shows that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. (Id. at pp. 1209-1210.) If such a determination cannot be made from the record, the matter must be remanded for the limited purpose of the juvenile court making the appropriate designation. (In re Jose R. (1982) 137 Cal.App.3d 269, 280-281.)

Appellant correctly points out that the court herein did not indicate on the record whether his violation of Vehicle Code section 10851, subdivision (a) was a felony or misdemeanor. The section 602 petition alleged both counts I and II were felonies. On August 9, 2006, after appellant was found eligible for DEJ, he admitted both counts in the juvenile petition and was advised the maximum term of confinement was three years. The probation report stated appellant admitted two felony allegations, and recommended that the court find appellant was not suitable for DEJ because of the nature of the offense and offender, rather than because of admissions to misdemeanor offenses. As explained ante, the court agreed with the probation report and found appellant was not suitable for DEJ, but that finding was not based on the courts determination that he had admitted two misdemeanor offenses. These factors, however, are insufficient to satisfy the requirements of section 702. (Manzy W., supra, 14 Cal.4th at pp. 1207-1208.)

The instant case is distinguishable from Manzy W., however, based on the nature of appellants subsequent admissions. After the court found he was unsuitable for DEJ, appellant was allowed to withdraw his admissions to counts I and II. On September 27, 2006, defense counsel advised the court that appellant was going to admit count I, a violation of Vehicle Code section 10851, subdivision (a), as a felony, and that count II would be dismissed. Manzy W. held that remand for compliance with section 702 is required where the juvenile court fails to make the required felony/misdemeanor declaration of a wobbler offense and the record fails to show the court was aware of its discretion to impose a misdemeanor sentence. (Manzy W., supra, 14 Cal.4th at pp. 1206-1209.) But Manzy W. did not involve, as here, a negotiated disposition for admission to a wobbler offense stipulated to be a felony. Manzy W. simply has no application in these circumstances since appellants admission to count I was part of a negotiated disposition where he admitted the felony offense and the court dismissed count II. Consequently, remand is not required.

DISPOSITION

The judgment is affirmed.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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WISEMAN, J.

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LEVY, J.

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^[1] Given appellants admission in this case, the factual circumstances of the offense are taken from the probation report.

^[2] All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.

^[3] In section II, post, we will address appellants contention that the court failed to find whether count I was a felony or misdemeanor.

^[4] Effective January 1, 2007, former rule 1495 of the California Rules of Court was renumbered as rule 5.800, without significant substantive changes. (See Historical Notes, 23 pt. 2 Wests Ann. Codes, Rules (2006 ed.) foll. rule 5.800, pp. 236-237.) We will refer to the former rule 1495 since it was effective at the time of the instant case.

^[5] We note that while appellants mother suspected appellant was involved with drugs and/or gang activities, appellant denied such conduct, the probation officer specifically stated there was no evidence that appellant was involved with gangs or drugs, and there is nothing in the instant record to indicate the court relied upon the mothers suspicions in finding appellant was not suitable for DEJ.