Opinion
D058010
09-26-2011
In re D.E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.E., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. J226051)
APPEAL from a judgment of the Superior Court of San Diego County, Andrew Kurz, Juvenile Court Referee. Affirmed.
D.E. entered a negotiated admission to a misdemeanor, bringing a folding knife with a locking blade to school (Pen. Code, §§ 626.10, subd. (a)(1), 17, subd. (b)(4)). The juvenile court adjudged D.E. a ward (Welf. & Inst. Code, § 602) and placed him with his mother under the supervision of a probation officer. D.E. appeals, contending the court abused its discretion by adjudging him a ward based on an issue unrelated to this case (his occasional alcohol use) rather than basing its decision on the factors set forth in section 725.5. We affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
The factual basis for the negotiated admission was the following: D.E. had a pocket knife attached to a key chain; he went to school with the key chain in his pocket; and he did not have the permission of school authorities to have the knife on campus.
D.E. was 16 years old at the time of the instant offense, which occurred in March 2010. His previous delinquent history consists of an arrest in February 2007, along with three others, for striking another juvenile. D.E. was 13 years old at the time of that arrest. The disposition of the 2007 case is listed as "Counseled and Closed."
DISCUSSION
The juvenile court has discretion to place a delinquent minor on probation without declaring him a ward. (§ 725, subd. (a).) Section 725.5 states: "In determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." "[I]t must be apparent from all of the surrounding circumstances that the court at least considered [these] factors." (In re John F., supra, 150 Cal.App.3d at p. 185, fn. omitted.) Failure to consider the factors is an abuse of discretion. (Id. at p. 183.)
"Some of the 'surrounding circumstances' would be the actual dispositional language of the court, comments of counsel at disposition, and any probation, psychiatric or medical reports read and considered by the court in reaching its disposition. This list is not meant to be all-inclusive." (In re John F. (1983) 150 Cal.App.3d 182, 185, fn. 2.)
In In re John F., supra, 150 Cal.App.3d at page 183, there was a true finding the appellant had aided and abetted four other minors in the rape of a 15-year-old girl. At the dispositional hearing, the appellant's counsel asked the court to stay the recommended commitment to a local facility. (Id. at p. 184.) The court responded that three of the four principals had been committed to the facility, " 'and I don't see any reason for treating any of them any differently, let's put it that way. So I'm going to follow the recommendation.' " (Ibid.)Our discussion, below, shows the instant case is distinguishable from In re John F.
D.E.'s attorney requested probation without a declaration of wardship. The People opposed the request, citing D.E.'s "frequent use of alcohol and less frequent but still concerning use of marijuana" and suggesting he would benefit from substance abuse testing that comes with probation. The court questioned D.E. about his drinking and his school performance and asked whether he had tattoos and any gang affiliation. The court praised D.E.'s work and recently improved school performance but, citing his age and drinking, determined that he needed "a little bit more supervision." The court concluded the case was "a close call" but decided to "follow the recommendations."
D.E. said he had no gang affiliation. He said he had tattoos, but they were not gang tattoos. This mirrors the information in the social study.
The court expressly mentioned the first factor in section 725.2, D.E.'s age. Additionally, it is "apparent from all of the surrounding circumstances that the court . . . considered the [remaining two] factors," the circumstances and gravity of the offense and D.E.'s history of delinquency. (In re John F., supra, 150 Cal.App.3d at p. 185.) The social study discussed the instant offense and set forth D.E.'s delinquent history. The minute order of the dispositional hearing states the court read and considered the social study, and this is evident from the court's comments. First, the court expressly stated, "This report say[s] he[] drinks every two weeks," a reference to a statement in the social study that D.E. acknowledged drinking "approximately once every two weeks." Second, the court cited D.E.'s 1.3 grade point average, and his past record of school truancy, reflecting statements in the social study. Third, the court referred to "the recommendations," also found in the social study. Thus, the record does not support D.E.'s contention that the court adjudged him a ward without taking into consideration the factors in section 725.5. There was no abuse of discretion.
The social study describes the offense in more detail than the factual basis. According to the social study, the assistant principal was investigating on campus gambling by students, and D.E. was searched in connection with the investigation. A small pocket knife was found in his pocket. The knife measured about two and a half inches when the blade was extended. D.E. said he kept the knife on the key chain and did not "think about it being on the chain when I came to school." He said he knew it was wrong to bring a knife to school and would not have done so if he had realized it was on the key chain.
In its statement of facts, respondent's brief cites testimony at the hearing on a motion to suppress evidence. That testimony was not part of the factual basis for the plea. Furthermore, the judicial officer who presided at the dispositional hearing had not presided at any of the previous hearings and did not say he had read any transcript or any part of the record other than the social study.
"In any judgment and order of disposition, the court shall state that the social study made by the probation officer has been read and that the social study and any statement has been considered by the court." (§ 706.) Although the reporter's transcript does not reflect such a statement, "in the absence of a contrary showing, the trial judge is presumed to have followed the statutory requirements . . . ." (In re Mikkelsen (1964) 226 Cal.App.2d 467, 471, citing In re Patterson (1962) 58 Cal.2d 848, 853.) Here, there is no indication the court did not follow the dictates of section 725.5.
Despite citing D.E.'s acknowledgement that "he consumes alcohol approximately once every two weeks," the social study lists D.E.'s alcohol consumption as "Weekly."
The court also cited D.E.'s record of school tardiness, which is not reflected in the social study or elsewhere in the record. D.E. denied any tardiness.
--------
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR:
AARON, J.
IRION, J.