In re Z.P.

Filed 3/22/07 In re Z.P. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Z.P., a minor, admitted nine counts of lewd acts. Following a contested dispositional hearing, the juvenile court denied Z.P.s request for deferred entry of judgment and placed Z.P. in a residential treatment program. During the pendency of this appeal, the juvenile court modified its order and permitted Z.P. to be treated in the community. In light of the modification, we reverse and remand for reconsideration of denial of deferred entry of judgment.

Procedural Background

On June 19, 2006, a petition was filed pursuant to Welfare and Institutions Code section 602,[1] alleging that Z.P. committed nine felony counts of lewd acts on two children under the age of 14 (Pen. Code, 288, subd. (a)). Z.P. admitted the charges. The matter was referred to the probation department for a disposition/deferred entry of judgment program eligibility report.

The prosecutor opposed Z.P.s request for deferred entry of judgment arguing that Z.P. did not meet the suitability criteria for deferred entry of judgment. He acknowledged that Z.P. was not presumptively ineligible pursuant to section 790, subdivision (a). The probation department recommended that Z.P. be made a ward of the court and placed in a residential treatment program.

The juvenile court declared Z.P. a ward of the court, denied the request for deferred entry of judgment, and ordered Z.P. placed in a residential treatment program. This court granted Z.P.s petition for a writ of supersedeas seeking a stay of the placement order pending appeal on October 30, 2006. On March 2, 2007, during the pendency of this appeal, the juvenile court granted Z.P.s motion to modify the conditions of wardship. The court vacated the residential treatment requirement and placed Z.P. in his grandparents home.[2]

Factual Background

At the time the petition was filed in 2006, Z.P. was 15 years old, his younger brother was 12 years old, and their neighbor was 14 years old.[3] Z.P. began molesting his neighbor in May 2002, and the molestations continued through January 2006 (counts five through nine in the petition). Between December 2005 and March 2006, Z.P. molested his younger brother on several occasions (counts one through four in the petition). Z.P. showed both victims pornographic magazines and videos.

The first molestation of the neighbor occurred at Z.P.s home. Z.P. pressured the neighbor into showing his penis by telling him he would not be considered a man if he didnt do it, and he orally copulated him. In the subsequent years, Z.P. molested the neighbor three or four times a month during the summer. Most of the time, Z.P. orally copulated the neighbor, although he also persuaded the neighbor to orally copulate him. On one occasion, Z.P. inserted his penis into the neighbors anus, but stopped after about a minute because it was uncomfortable for the victim. Z.P. never physically forced or threatened the neighbor, but the neighbor acquiesced because he was afraid to refuse. The first person the neighbor told about the molestations was Z.P.s younger brother, who replied that Z.P. had also molested him.

The incidents with the younger brother began with Z.P. showing him pornography and asking to see his privates. On a subsequent occasion, while Z.P. and his younger brother were taking a shower together at home after a camping trip, Z.P. attempted to insert his penis in his younger brothers anus. On another occasion, Z.P. showed his younger brother a pornographic magazine, told him to pull down his pants, and briefly orally copulated him until the younger brother ran away. There were additional instances of oral copulation, including an instance where Z.P. persuaded his younger brother to orally copulate him until ejaculation. The younger brother reported that he did not refuse because Z.P. was bigger than he was and Z.P. told him that if he reported their conduct to his parents, Z.P. would never talk to him again.

When the police interviewed Z.P., he admitted some sexual activity with the neighbor and his younger brother in the neighbors back yard, describing the incidents as truth or dare games that got out of control. He denied the other incidents but later approached the detective to admit that he had not told the truth. He admitted that everything that [the neighbor and his younger brother] said was true, with the primary exception of the anal stuff with both victims.

Discussion

I.                    Statutory Background

The deferred entry of judgment provisions of section 790 et seq. were enacted as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C.).) 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. (Ibid., citing  791, subd. (a)(3), 793, subd. (c).)

A minor is eligible for deferred entry of judgment under section 790 if 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)-(6); see also Cal. Rules of Court, rule 5.800(d)(3) [former rule 1495(d)(3)]; In re Sergio R., supra, 106 Cal.App.4th at p. 603 & fn. 5.) In this case, it is undisputed that Z.P. was eligible for deferred entry of judgment.

Once eligibility is established, the court must make an independent determination of the minors suitability for deferred entry of judgment. [T]he statutory language empowers but does not compel the juvenile court to grant deferred entry of judgment. (In re Sergio R., supra, 106 Cal.App.4th at p. 605.) The court exercises its discretion based upon the standard of whether the minor will derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment. (In re Sergio R., at p. 607.) 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 child would derive from education, treatment, and rehabilitation efforts . . . (Cal. Rules of Court, rule 5.800(d)(3) [former rule 1495(d)(3)]; see also 791, subd. (b); In re Sergio R., at p. 607, fn. 9.) We review a courts denial of deferred entry of judgment for abuse of discretion. (In re Sergio R., at p. 607.)

II.                 Denial of Deferred Entry of Judgment

During the disposition hearing, Z.P.s counsel argued that the juvenile court must grant Zachary deferred entry of judgment because [T]he law is that the legislature has determined a 288(a) is eligible for deferred entry of judgment and that the court can deny [deferred entry of judgment] only if hes not going to benefit from education, treatment and rehabilitation, that the only factors the Court can look at to make that determination: age of maturity, educational background, family relationship and motivation.

In denying Z.P.s request for deferred entry of judgment, the juvenile court concluded that granting deferred entry of judgment would not benefit Z.P., explaining, I dont think were doing you any favors or anyone else any favors by not making the right choice at this time. And you do have good maturity and your age is appropriate to go forward with the 790, but the main issue is that what I think is the best rehabilitation for youis a residential treatment program for the reasons that I set forth. The court acknowledged that the juvenile court did not often get people . . . that have the skills and intellect and talent that you do and that Z.P.s family certainly have made all the right decisions at this point and made good choices on your behalf. The courts comments reflected the evidence of Z.P.s scholastic excellence and the fact that his parents had gotten Z.P. into appropriate therapy.

Nevertheless, the court reasoned that the offenses occurred over a long period of time and that there were multiple victims. The court connected those facts to Z.P.s amenability to rehabilitation in the community, stating Those are factors that are important to me as to why I think we need to give you every advantage that we can to have you succeed. And to me treatment is the number one issue. . . . My goal is to make sure that you succeed, that you do well, that you get the tools you need, get the support you need, that when you come back into the community that we wont see you again.

Z.P. contends he was entitled to the benefits of deferred entry of judgment because he was eligible for that disposition and his therapist and the court-appointed psychologist, Dr. Glen, concluded that he was amenable. Z.P. asserts that the juvenile court did not make a contrary finding. We disagree. The juvenile courts comments make it clear that it found that Z.P. was not amenable to rehabilitation in the community. It was proper to deny deferred entry of judgment on that ground. (In re Sergio R., supra, 106 Cal.App.4th at p. 607.)

Z.P.s argument that Martha C., supra, 108 Cal.App.4th 556, compels a different result is not persuasive. In Martha C., the juvenile court denied deferred entry of judgment not based on the minors personal characteristics but to send a message to other potential juvenile drug smugglers that there would be permanent consequences flowing from such criminal activity. (Id. at p. 562.) The court of appeal concluded this was not an appropriate basis for denying deferred entry of judgment because it had nothing to do with the minors potential for rehabilitation. (Ibid.) In contrast, the juvenile courts comments in the instant case indicate that it denied deferred entry of judgment because of concerns about whether Z.P. successfully could be rehabilitated in a community setting.

Z.P. next contends that the juvenile courts denial of deferred entry of judgment was error because the court considered the seriousness of the offenses. Z.P. characterizes the courts consideration as an attempt by the court to circumvent the statutory scheme, which does not preclude deferred entry of judgment for violations of Penal Code section 288, subdivision (a). However, the statute does not prohibit a court from considering the circumstances of a crime in determining whether a minor is amenable to rehabilitation. (Martha C., supra, 108 Cal.App.4th at p. 562.) In an appropriate case, the severity, frequency, and other circumstances of the minors offenses are another relevant factor[] regarding the benefit the child would derive from rehabilitation efforts in the deferred entry of judgment program rather than from a more restrictive placement. (Cal. Rules of Court, rule 5.800(d)(3) [former rule 1495(d)(3)]; In re Sergio R., supra, 106 Cal.App.4th at p. 607.) For example, in In re Sergio R., the court upheld denial of deferred entry of judgment because the circumstances of the offenses showed that the minor was an entrenched gang member who required more formal, restrictive measures. (In re Sergio R., at p. 608.)

Although we conclude the juvenile court did not rely on improper considerations in denying deferred entry of judgment, the fact that the juvenile court recently granted Z.P.s motion to modify the conditions of wardship requires that we remand the matter for reconsideration of the deferred entry of judgment request. The courts modification, which allows Z.P. to be treated while residing at his grandparents home, suggests that the court made findings that any obstacles to treatment in the community have been resolved. As is clear from the preceding discussion, previously the juvenile court relied on a perceived need for residential treatment in denying deferred entry of judgment. In fact, at one point during the hearing the court asked whether it could grant deferred entry of judgment but still place Z.P. in residential treatment; the probation officer stated that, for funding and other reasons, it was not possible to place minors in the deferred entry of judgment program in residential treatment. Because it is unclear whether the juvenile courts comments reflected a willingness to grant deferred entry of judgment absent the concern about treatment in the community, it is appropriate to remand. The juvenile court will have the opportunity to exercise its discretion in light of the changed circumstances. We express no opinion on whether other considerations justify denial of deferred entry of judgment on remand.

Disposition

The juvenile court order denying deferred entry of judgment is reversed and the matter is remanded for the juvenile court to reconsider Z.P.s request for deferred entry of judgment.

GEMELLO, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] We take judicial notice of the juvenile courts March 2, 2007 minute order. (See Evid. Code, 452, subd. (d), 459.) Because the juvenile court vacated the residential treatment placement, Z.P.s contention on appeal that the placement was an abuse of discretion is moot.

[3] This factual summary is largely drawn from the probation officers disposition report. (See In re Sergio R. (2003) 106 Cal.App.4th 597, 600, fn. 2.)