Opinion
F062559 Super. Ct. No. 11JQ0023
05-23-2012
In re L. Z., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L. Z., Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kings County. Harry Papadakis and George L. Orndoff, Judges.
Judge Papadakis presided over the Deferred Entry of Judgment hearing. Judge Orndoff presided over appellant's change of plea and disposition hearings.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On February 18, 2011, a petition was filed pursuant to Welfare and Institutions Code section 602, alleging that appellant, L. Z., possessed for sale a controlled substance, alprazolam (Health & Saf. Code, § 11375, subd. (b)(1), count one) and furnished a substance in lieu of a controlled substance (§ 11355, count two). On March 28, 2011, the matter was set for a hearing to determine appellant's suitability for deferred entry of judgment (DEJ). On March 30, 2011, the prosecutor filed a notice to appellant informing him that he was eligible for DEJ. On April 12, 2011, the juvenile court found appellant unsuitable for DEJ.
Unless otherwise designated, all statutory references are to the Health and Safety Code.
On April 14, 2011, the petition was amended to allege that appellant transported, sold, or furnished a controlled substance, hydrocodone (§ 11379, subd. (a), count one (hereinafter section 11379)). Counts one and two from the original petition were redesignated, respectively, as counts two and three.
On April 19, 2011, appellant waived his rights and admitted the allegations of the amended petition. On May 19, 2011, the juvenile court found that appellant was a ward of the court. Exercising its discretion, the court found all three counts to be felonies. The court found appellant's maximum term of confinement on count one to be four years, counts two and three to be one-third the midterm, or eight months for each count. The court found appellant's maximum term of confinement on all counts to be five years four months. The court ordered appellant's placement with his parents and placed him on probation upon various terms and conditions.
Appellant argues that the juvenile court abused its discretion in finding him unsuitable for DEJ. Appellant also argues that he was improperly convicted of section 11379 because hydrocodone is not on any of the narcotics schedules applicable to section 11379. We agree with appellant that the juvenile court relied on improper facts in denying DEJ and conditionally reverse the orders of the juvenile court and remand for a new DEJ suitability hearing.
Respondent further points out that because appellant was placed in his parents' custody, the juvenile court should not have set the maximum term of confinement for appellant's offenses. We agree and will reverse that order of the juvenile court.
FACTS
Hanford Police Officer Jeremy Ricks was assigned to an undercover operation being conducted at Hanford West High School in November and December of 2010. Ricks posed as a 17-year-old high school student, attending classes and purchasing narcotics from students on campus. On December 14, 2010, Ricks was speaking with several students near the auditorium when appellant asked if anyone wanted to purchase prescription medications. Ricks and appellant exchanged phone numbers and arranged a purchase for the next day.
Later, at the same location on campus, appellant produced a small bindle containing five yellow pills that he identified as Vicodin. Appellant assured Ricks that, "yes, those are vics, my brother." The pills turned out to be another substance. Appellant also sold Ricks one tablet of alprazolam. On December 16, 2010, appellant sold Ricks three Vicodin pills after the second period class. The transaction was set up after appellant and Ricks exchanged phone numbers and a text message dialogue ensued to set up the sale of prescription drugs.
Vicodin is also known as hydrocodone (§ 11055, subd. (b)(1)(I)).
Appellant was expelled from school after his arrest. Prior to his expulsion, appellant was a good student. Appellant was eligible for DEJ. Appellant's father testified that appellant was in a community school and only needed a few more credits to begin college. When appellant was a student at Hanford West High School, he was studying naval science because his goal was to join the military. Prior to his arrest, appellant played on the high school baseball team. Appellant was in ROTC and volunteered for community service activities. Appellant's father worked as a substance abuse counselor for the prior three years. His father had a past problem with substance abuse but does not currently use any drugs.
The probation department noted appellant had no prior record, but the case was aggravated because appellant sold drugs on the grounds of a high school. The prosecutor objected to the minor's suitability for DEJ.
The court noted that appellant's father was a drug counselor and among the places drugs should not be sold are the military and at school. The court stated appellant was intelligent, very capable, had good grades, and knew what he was doing. The court found that this was a sales case on a school campus, not a possession case. The court also found there was evidence of more than one sale and appellant's operation was sophisticated. The court held DEJ would not be appropriate in this case.
When defense counsel asked the judge to reconsider its ruling, the court explained that appellant was not suitable for DEJ because there were multiple sales and the crime was more sophisticated. The court noted that the father had a history of drug abuse 10 years ago and was now a drug counselor. Appellant had seen his father's prior behavior and was "intelligent enough to recognize what he's doing." The court further observed that there was no evidence appellant was forced to sell drugs or that someone else exerted influence on him. The court reiterated its finding that appellant was not suitable for DEJ.
DEFERRED ENTRY OF JUDGMENT
Appellant contends the juvenile court abused its discretion by failing to impose DEJ. Appellant's argument that the juvenile court erred in failing to place him on DEJ rests on a very positive reading of the probation report. Appellant believes there was evidence that he was amenable to education, treatment, and rehabilitation and therefore the juvenile court abused its discretion when it placed him on probation rather than DEJ. Because the juvenile court relied on an improper factor not supported by any evidence in the record, we reverse its finding that appellant was not suitable for DEJ and remand for a new hearing on appellant's suitability for DEJ.
The DEJ provisions of Welfare and Institutions Code section 790 et seq. provide that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a Welfare and Institutions Code section 602 petition and waive time for the pronouncement of judgment, deferring entry of judgment. After the juvenile successfully completes 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 the records of the juvenile court proceeding are sealed. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C.).)
Prior to or shortly after filing a petition, the prosecutor must review the minor's file and make a determination of DEJ eligibility. (Welf. & Inst. Code, § 790, subd. (b).) If the prosecutor finds that the minor is eligible based on these factors, the prosecutor must file a declaration or state on the record the grounds for this determination and notify the minor. (Welf. & Inst. Code, § 790, subd. (b); Cal. Rules of Court, rule 5.800.) The juvenile court must then consider whether to apply DEJ to the minor's case, taking into account several important factors, including the minor's age, maturity, educational background, family relationships, demonstrable motivation, treatment history, and other mitigating and aggravating factors.
All references to rules are to the California Rules of Court.
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A minor who meets the statutory criteria for eligibility is not automatically entitled to DEJ. The determination to grant DEJ is subject to the discretion of the juvenile court. (In re Sergio R. (2003) 106 Cal.App.4th 597, 604-605, 607.) As a result, the juvenile court must make an independent determination of the minor's suitability after consideration of the factors specified in rule 5.800 and Welfare and Institutions Code section 791, subdivision (b), exercising its discretion based on the standard of whether the minor will derive benefit from education, treatment, and rehabilitation rather than a more restrictive commitment. (Martha C., supra, 108 Cal.App.4th at p. 562.)
Suitability factors include the minor's 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. (Rule 5.800; see also Welf. & Inst. Code, § 791, subd. (b).) A court may conclude that the circumstances of a crime indicate that a minor is not amenable to rehabilitation. (Martha C., supra, 108 Cal.App.4th at p. 562.)
We review a court's denial of DEJ for abuse of discretion. (In re Sergio R., supra, 106 Cal.App.4th at p. 607.) Abuse of discretion implies the absence of arbitrary or capricious disposition, or whimsical thinking. Judicial discretion is abused when a court exceeds the bounds of reason given the circumstances under consideration. (People v. Giminez (1975) 14 Cal.3d 68, 72.)
In the case of In re Damian M. (2010) 185 Cal.App.4th 1, 3-4 (Damian M.), a juvenile was arrested in San Diego at the border crossing from Mexico into the United States with 10.1 pounds of marijuana located in a hidden compartment in the gas tank. The juvenile admitted the allegation that he possessed marijuana for sale and, because he was eligible, requested DEJ. The juvenile court denied the juvenile's request, finding that he was not suitable to DEJ because of the sophistication of his offense. The court noted, however, that if the juvenile did well on probation, the court would consider dismissing the petition pursuant to Welfare and Institutions Code section 782. (Damian M., at pp. 3-4.)
The Damian M. court found that even though the minor was statutorily eligible for DEJ, the juvenile court did not abuse its discretion in denying DEJ. Damian M. reasoned that because of the sophistication of the minor's criminal activity, it was difficult to find the juvenile court's decision to place the minor on formal probation to be unreasonable. The Damian M. court found the juvenile court was aware of its discretion, had sound reasons for exercising its discretion, and the juvenile court's reasoning was supported by the record. (Damian M., supra, 185 Cal.App.4th at p. 5.)
Appellant argues that he qualified for DEJ because he was amenable to education, treatment, and rehabilitation. Appellant argues that he was not a sophisticated narcotics seller because he only sold a few pills. Appellant also takes issue with the trial court's reference to his father's vocation as a drug counselor and his father's past drug use, arguing that at best this was tangential evidence.
We are troubled by the juvenile court's reliance on the facts that appellant's father was a drug counselor and had a past drug problem. There was no evidence adduced at the hearing concerning what impact, if any, his father's current vocation, or past conduct, had to do with appellant's knowledge or sophistication concerning narcotics.
Although appellant's father testified that he had a drug problem 10 years earlier, that was all he stated in his testimony. His father said nothing about what, if anything, appellant witnessed of his drug dependency 10 years ago. The juvenile court's discussion of the father's past drug problem and current employment had no factual nexus to the appellant's conduct or knowledge of narcotics. These facts were not relevant evidence on the issue of appellant's suitability for DEJ.
The juvenile court was entitled to rely on relevant factors, such as the fact that appellant was selling drugs on a high school campus. The court erred in relying on irrelevant factors to show that appellant was sophisticated in selling drugs. Because this appears to be a close case, and because we cannot discern the extent to which the juvenile court relied on improper facts to deny DEJ, we will conditionally reverse the orders of the juvenile court and remand for a new DEJ suitability hearing.
ADMISSION OF SECTION 11379
Appellant contends that the juvenile court erred in accepting his admission of a violation of section 11379 because hydrocodone is a Schedule II substance listed in section 11055, subdivision (b)(1)(I) and most Schedule II substances are not proscribed by section 11379, which covers Schedule III, IV, and V as well as other substances, but not hydrocodone. Appellant seeks to set aside the juvenile court's finding regarding count one, arguing that there was no factual basis for his plea to count one.
Respondent agrees that appellant admitted the wrong violation of the Health and Safety Code, but points out Schedule II substances, including hydrocodone, are proscribed by section 11352. Respondent argues that the sentencing triad for a violation of section 11352 is three, four, or five years, and the sentencing triad for a violation of section 11379 is only two, three, or four years. Respondent argues it would be an idle act to remand the matter and that there was no misunderstanding concerning the actual criminal conduct appellant was admitting.
Where, for instance, a trial court improperly imposes an enhancement pursuant to a plea agreement, the court is acting in excess of its jurisdiction but not of its fundamental subject matter jurisdiction. (People v. Ellis (1987) 195 Cal.App.3d 334, 342-343 (Ellis); People v. Collins (1996) 45 Cal.App.4th 849, 864-865.)
Whether a defendant is estopped to complain about the plea bargain depends on the importance of the irregularity, not only to the parties, but to the functioning of the courts. A litigant who has stipulated to a procedure in excess of the court's jurisdiction may be estopped, where to hold otherwise, would permit the party to trifle with the courts. (Ellis, supra, 195 Cal.App.3d at p. 343.) Although there is a strong public policy against allowing defendants to plead guilty to crimes they did not commit, the law also has a strong interest in not allowing defendants to unfairly manipulate the system to obtain less punishment than that called for by the statutes applicable to their conduct. (Id. at p. 345.)
The doctrine of estoppel has been applied to juvenile proceedings. The challenge of the admission of two offenses, one of them being a lesser included offense of the other, has been found to be trifling with the courts. (In re Giovani M. (2000) 81 Cal.App.4th 1061, 1064-1065.) This principle has also been applied where a court improperly employed the provisions of an informal petition procedure pursuant to a plea agreement, the minor fails to comply with probation, and cannot subsequently have the charges against him dismissed. Although the minor on appeal complained about the court's lack of jurisdiction, he was estopped from challenging the procedure after the plea agreement was implemented. (In re Omar R. (2003) 105 Cal.App.4th 1434, 1437-1439.)
This is not a case in which the minor could receive a harsher commitment because of his admission of section 11379 rather than section 11352. Indeed, the offense he admitted has a lower maximum term of confinement. The minor admitted that he possessed hydrocodone for sale. The juvenile court retained fundamental jurisdiction over the case and appellant is estopped from challenging the error.
SETTING THE MAXIMUM TERM OF CONFINEMENT
Respondent points out that the juvenile court calculated and set the maximum term of confinement for appellant even though the court did not commit appellant to a juvenile facility. Respondent asserts that this order has no legal effect. We agree.
The court placed appellant on probation in his parents' custody. The juvenile court, however, cannot set the maximum term of confinement where the minor is placed in his parents' custody rather than in a secure juvenile facility. It was error for the juvenile court to set the maximum term of confinement here. (See Welf. & Inst. Code, § 726, subd. (c); In re Ali A. (2006) 139 Cal.App.4th 569, 572-574.) On remand, the juvenile court shall vacate this order whether or not it finds appellant suitable for DEJ.
DISPOSITION
The juvenile court's orders are conditionally reversed. The case is remanded for the court to conduct a new hearing to determine appellant's suitability for Deferred Entry of Judgment (DEJ). Should the court find appellant suitable for DEJ, it shall vacate its orders subsequent to the original DEJ hearing. If the court finds appellant unsuitable for DEJ, the court shall reinstate appellant's admission of the allegations of the amended petition and conditions of probation. The court shall also vacate its order setting forth the maximum term of physical confinement in a juvenile facility.