Opinion
D041325.
11-13-2003
In re LUIS B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LUIS B., Defendant and Appellant.
The juvenile court declared Luis B. a ward (Welf. & Inst. Code, § 602) after he admitted willfully burning the property of another (Pen. Code, § 451, subd. (d)), possessing material to commit arson (Pen. Code, § 453, subd. (a)), and recklessly setting a fire causing great bodily injury (Pen. Code, § 452, subd. (a)). Luis entered this admission on condition that the court defer entry of judgment. (§ 790 et seq.) However, at the section 790 hearing, the court denied a motion to defer entry of judgment, and later denied a motion for rehearing. The court permitted Luis to withdraw the admissions. Luis subsequently admitted willfully burning the property of another. The court placed him on probation. Luis contends the court erred in refusing to defer entry of judgment.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
On July 30, 2002, Luis, his younger brother, and a companion lit fire to a parked Ford pickup truck, using squirt guns filled with gasoline and a gasoline can. The ex-wife of the owner of the truck requested that Luis and the others burn the truck.
DISCUSSION
Section 790 et seq., which provide for deferred entry of judgment in juvenile cases, were part of Proposition 21. In Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558, we discussed these provisions:
"The DEJ [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, 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. (§§ 791, subd. (a)(3), 793, subd. (c).)"
Section 790, subdivision (a) provides that a minor is eligible for deferred entry of judgment for a felony offense 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 1203.6 of the Penal Code."
The People, Luis, and the court agreed that Luis was eligible for deferred entry of judgment. The supervising probation officer found Luis not only eligible, but also suitable for deferred entry of judgment, and recommended deferred entry of judgment. After reviewing a psychological evaluation and speaking with the officer who monitored Luiss home supervision, the senior probation officer submitted a memo to the court in which he stated that he believed Luis "would make a suitable candidate" for deferred entry of judgment.
The personal information pertaining to Luis supports this conclusion. He was 15 years old. This was his first offense. The probation department advised the court that school records for Luis had been requested, but not received. However, Luis told the psychological evaluator that he was a 10th grader at Rancho Buenavista High School. He had no gang affiliation, he did not use drugs, with the exception of rare use of marijuana, and he came from a stable home. His parents reported that he was compliant at home.
In Martha C. v. Superior Court, supra, 108 Cal.App.4th 564, the juvenile court refused to defer entry of judgment on a minor who admitted possession of marijuana for sale and transportation of marijuana. We pointed out that:
"Section 791, subdivision (b), provides for an investigation by the probation department to determine whether the minor `is a person who would be benefited by education, treatment, or rehabilitation. The court is charged with making `the final determination regarding education, treatment, and rehabilitation of the minor. [Citation.] There is nothing in the section suggesting that any consideration other than the minors non-amenability 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. v. Superior Court, supra, 108 Cal.App.4th at p. 561.)
In granting the minors petition in Martha C., we noted that the juvenile court had refused to defer entry of judgment "because it wished to send a message to other potential juvenile drug smugglers that there would be permanent consequences flowing from such criminal activity." (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 562.) We concluded this was "not an appropriate basis" for refusing to defer entry of judgment since it had nothing to do with the minors "potential for rehabilitation." (Ibid.)
In order to determine whether to defer entry of judgment, "`. . . the court makes an independent determination after consideration of the "suitability" factors specified in [California Rules of Court,] 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.]" (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 562, quoting In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. omitted.)
California Rules of Court, rule 1495(d)(3) provides: "When appropriate, the court may order the probation department to prepare a report with recommendations on the suitability of the child for deferred entry of judgment or set a hearing on the matter, with or without the order to the probation department for a report. [¶] (A) The 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. [¶] (B) The probation report shall be submitted to the court, the child, the prosecuting attorney, and the childs attorney at least 48 hours, excluding non-court days, prior to the hearing."
Here, the court found Luis unsuitable for deferral of entry of judgment based on a lack of information on his performance at school, the seriousness of the crime and the amount of restitution. The court did not address whether Luis would derive benefit from "education, treatment, and rehabilitation." (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 562.) The failure to do so constitutes error. We remand for the trial court to determine whether Luis would benefit from education, treatment and rehabilitation, as discussed in Martha C.
DISPOSITION
The order denying a motion to defer entry of judgment is reversed. The matter is remanded.
WE CONCUR: McDONALD, Acting P. J. and OROURKE, J.