Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County, No. JJD063527, Valeriano Saucedo, Judge.
Gabriel C. Vivas, 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, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
Before Hill, Acting P.J., Kane, J. and Poochigian, J.
Appellant, L.R., a minor, admitted an allegation that he carried a dirk or dagger concealed on his person (Pen. Code, § 12020, subd. (a)(4)), a felony, and entered pleas of no contest to allegations that he committed that offense for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (d), and that he committed misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Thereafter, the court found appellant unsuitable for the deferred entry of judgment (DEJ) program (Welf. & Inst. Code, § 790 et seq.); adjudged him a ward of the juvenile court; ordered that he reside in the home of his mother; and placed him on formal probation.
On appeal, appellant’s sole contention is that the court erred in finding him unsuitable for DEJ. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual statement is taken from the report of the probation officer filed February 8, 2010.
Penal Code section 12020, subdivision (a)(4) violation, with gang enhancement
On November 19, 2008, at approximately 1:00 a.m., a police officer stopped a vehicle after observing the front license plate hanging vertically from the vehicle. There were five persons in the vehicle; appellant was one of the passengers.
Upon making contact with the driver, the officer observed “open alcohol beverage containers” and “gang paraphernalia” in the vehicle. After appellant consented to a search of his person, the officer found a “large knife” in appellant’s right front pocket. Appellant “stated he did not know why he had a knife.”
Health and Safety Code section 11377, subdivision (a) violation
On November 3, 2009, a police officer responding to a report of “juveniles shooting paintballs, ” observed appellant “hunched down in the driver’s side of a vehicle with the door closed.” Another minor was standing outside the car, on the passenger side. After appellant got out of the vehicle, the officer “detected a strong odor of marijuana coming from the vehicle.” The officer searched the vehicle and found “marijuana on the floorboard on the driver’s side and what appeared to be marijuana sticking out of a pocket of a pair of jeans that was lying on the floorboard.” In the pockets of the pants the officer found a plastic bag containing marijuana and another plastic bag, inside of which were “several smaller plastic bindles” containing an off-white substance the officer believed to be methamphetamine.
In response to questioning by the officer, appellant stated the following: The vehicle belonged to his friend’s grandmother and he (appellant) “got into the vehicle approximately two minutes before [the officer’s] arrival.” Appellant did not know who the pair of pants belonged to “or how [the pants] got into the vehicle.”
Procedural Background
On November 10, 2009, the Tulare County District Attorney (DA) filed a juvenile wardship petition, alleging, inter alia, the instant felony violation of Penal Code section 12020, subdivision (a)(4) and accompanying gang enhancement. On November 14, 2009, appellant admitted these two allegations, and his counsel asserted that admission was contingent on the court granting DEJ. On November 30, 2009, the court ordered the probation department to prepare a report addressing the issue of appellant’s suitability for DEJ, and ordered that appellant appear in court on January 6, 2010.
On December 21, 2009, the DA filed a one-count petition, alleging misdemeanor possession of a controlled substance, viz., methamphetamine.
A probation officer’s report, filed January 6, 2010, states the following: Both appellant and his mother admitted that appellant was not attending school. Appellant, who was 17 years old at the time the report was filed, told the probation officer he used marijuana for the first time when he was 16 years old, he last used the drug on November 3, 2009, and he “uses marijuana twice a week.” According to the probation officer: “[T]he minor has not been given the opportunity to redirect his behavior and actions, while receiving assistance and guidance by a probation officer. He has not received counseling to address his substance use, academic issues, or behavior problems. It is felt he is a suitable candidate to participate in the [DEJ] Program and that will provide him with additional support and assistance from a probation officer. [¶] It is respectfully recommended the minor be granted [DEJ].”” The probation officer noted the petition filed December 21, 2009, and stated that the recommendation would remain the same if appellant admitted the allegation of possession of a controlled substance or if it was found true.
On January 6, 2010, a hearing was held at which the court noted that the probation officer had recommended granting DEJ, and stated, “I am not confident that I will follow Probation’s recommendation.... [¶]... [¶] My principal concern with respect to this minor is that he has admitted to the use of marijuana, [and ] he is not attending school, and he is receiving all Fs. And I can see the connection because he is using drugs and the drugs are preventing him from attending school. [¶]... [¶]... I am concerned over the fact that this minor has, what appears to the Court, a substantial marijuana addiction that is preventing him from attending school. And no good can come from this minor not attending school.”
After hearing argument from appellant’s counsel, the court stated, “I do not intend to follow Probation’s recommendation that he be found suitable for [DEJ].” At that point, appellant withdrew his admissions. The court then further explained its reasons for denying DEJ: “Because this minor needs greater services than is being proposed right now. DEJ is one of our lowest levels of supervision, and Probation reports that he was receiving all Fs when he was at Charter Alternative Academy. He reports that he’s not even in school.” The court set January 27, 2010, as the next court date, and “order[ed] that [appellant] immediately enroll in school as a condition of him remaining at liberty. And if he does not enroll in school and attend school every day, every class, that may be cause for the Court to change his status.” The court then told appellant: “... [Y]ou have a choice. You can stay home and attend school, or I’m going to take you into custody and you’ll attend school.” Appellant chose the former option.
The next day, the DA filed another petition, which included the allegations contained in the two previous petitions.
On January 27, 2010, appellant admitted the allegation of felony carrying a dirk or dagger concealed on his person and pled no contest to the accompanying enhancement and the methamphetamine possession allegations.
A second probation officer’s report (second RPO), filed February 8, 2010, reiterates that appellant “has not been given the opportunity to redirect his behavior and actions, while receiving assistance and guidance by a probation officer, ” and “has not received counseling to address his substance use, academic issues, or behavior problems.” The second RPO also states, “It is felt the minor’s needs and issues can be addressed with services available in the community, ” and recommends wardship, a grant of probation and placement in the home of appellant’s mother.
Appellant’s disposition hearing was conducted on March 3, 2010. At the outset of the hearing, the court noted that it had received a “glowing letter” from the principal of the school appellant was attending, and that appellant’s grades for the recent session--two “A plus” grades, two “B’s” and three “C’s”--showed a “tremendous turnaround.” Appellant’s counsel renewed her request for DEJ. The court denied the request, stating, “With respect to the minor attending school, the Court specifically stated that as a condition of the minor remaining at liberty, that he had to enroll in school, attend school regularly, and do the very best that he could. [¶]... It was not because the Court indicated that it would give further consideration for DEJ, that was so the minor would remain at liberty and would comply with what the Court was concerned about.” The court concluded, “I’m not inclined to grant the relief requested. I do believe that [appellant] would benefit from regular supervision by Probation.”
DISCUSSION
Appellant contends the court abused its discretion in refusing to grant DEJ. We disagree.
Pertinent Law
Under the DEJ provisions of Welfare and Institutions Code sections 790 et seq., which were enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000, “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).)” (In re Martha C. (2003) 108 Cal.App.4th 556, 558 (Martha C.).)
“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 juvenile's offense should justly be expunged. (Italics added.)’ [¶] These findings express … a strong preference for rehabilitation of first-time nonviolent juvenile offenders....” (Martha C., supra, 108 Cal.App.4th at p. 561.)
The determination of whether to grant DEJ requires consideration of “two distinct essential elements of the deferred entry of judgment program, ” viz., “eligibility” and “suitability.” (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10, italics omitted (Sergio R.).) 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 minor’s 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).)
There is no dispute that appellant was eligible for DEJ.
After eligibility is determined, “[t]he trial court... has the ultimate discretion to rule on the suitability of the minor for DEJ after consideration of the factors specified in [California Rules of Court, rule 5.800] and section 791, subdivision (b)....” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) The factors set forth in section 791, subdivision (b) are: “[the minor’s] age, maturity, educational background, family relationships, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors....” California Rules of Court, rule 5.800(d)(3) identifies those factors, in virtually identical language, as “The child’s 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)(A)(i).)
Suitability for DEJ is within the courts discretion after consideration of the forgoing factors, “with the exercise of [its] discretion based upon the standard of whether the minor will derive benefit from ‘education, treatment, and rehabilitation [efforts]’ rather than a more restrictive commitment.” (Sergio R., supra, 106 Cal.App.4th at p. 607.)
The determination to grant or deny DEJ may be reversed only upon a showing of abuse of discretion. (Sergio R., supra, 106 Cal.App.4th at p. 607.) 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, citations omitted.)
Analysis
Appellant argues the court abused its discretion in denying DEJ because, he asserts, the court found him unsuitable for DEJ based solely on his “marijuana use which in the court’s mind led to his not attending school”; “that in and of itself is not sufficient grounds to deny DEJ”; and the court’s stated reasons “failed to explain why or even take into account whether or not [appellant] would benefit from the education, treatment, and rehabilitation of deferred entry of judgment rather than a more restrictive commitment.” Because appellant had demonstrated that he could change his behavior and achieve rehabilitation, appellant argues, the court’s failure to grant DEJ was “totally inconsistent with the stated purpose of the provisions of the DEJ.”
In our view, appellant has mischaracterized the reasons stated by the court for denying DEJ. Appellant’s marijuana use and academic difficulties were not in and of themselves the reasons for the court’s denial of DEJ. Rather, those factors formed the basis for the court’s conclusion that appellant was in need of a disposition more restrictive than DEJ. And as indicated above, the question before the trial court was whether appellant would “derive benefit from ‘education, treatment, and rehabilitation [efforts]’ rather than a more restrictive commitment.” (Sergio R., supra, 106 Cal.App.4th at p. 607, italics added.) The court’s remarks indicate it applied this standard, and the record demonstrates that in doing so the court acted within its discretion.
While nothing in the record details exactly what level of supervision DEJ can or cannot provide, the court’s statement that DEJ provides “one of [Tulare County’s] lowest levels of supervision” indicates the court was aware of the level of supervision appellant would receive under DEJ. Moreover, the evidence that appellant has performed a “turnaround” in school does not compel the conclusion that he was no longer in need of greater supervision than could be provided under the DEJ program. Given appellant’s history of marijuana use and his past academic performance, it cannot be said, notwithstanding appellant’s recent academic success, that the court’s determination that appellant was in need of a greater level of supervision than could be provided under DEJ “exceed[ed] the bounds of reason.” (People v. Giminez, supra, 14 Cal.3d at p. 72.) Therefore, appellant has not demonstrated that the juvenile court abused its discretion in denying DEJ.
DISPOSITION
The judgment is affirmed.