Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. JU20450
RUSHING, P.J.
I. STATEMENT OF THE CASE
On February 14, 2008, the Santa Cruz Count District Attorney’s Office filed a petition under Welfare and Institutions Code section 602 to declare D.B. a 17-year-old minor (the minor), a ward of the court. The petition alleged that the minor had committed vehicular manslaughter with gross negligence and was also guilty of driving under the influence of drugs. (Pen. Code, § 192, subd. (c)(1); Veh. Code, § 23152, subd. (a).) The minor was found eligible for deferred entry of judgment (DEJ) (§ 790 et seq.), and he admitted the allegations in the petition with the understanding that the juvenile court would consider DEJ.
All further unspecified statutory references are to the Welfare and Institutions Code.
At the disposition hearing, the juvenile court denied DEJ and placed the minor on probation at home under an electronic monitoring program (EMP).
On appeal from the disposition order, the minor claims that the court abused its discretion in denying DEJ.
We disagree and affirm the order.
II. FACTS
On November 3, 2007, around 2:30 p.m., the minor was speeding in his car, when he lost control on a curve and crashed, killing his two passengers—his 17- and 22-year-old cousins. After the accident, the minor tested positive for marijuana.
III. THE PROBATION REPORT, THE HEARING, AND THE COURT’S RULING
After the minor admitted the allegations in the petition, the court referred the case to the probation department for an evaluation and recommendation concerning the minor’s suitability for DEJ and the appropriate disposition.
The Probation Report
The probation report addressed the minor’s “age, maturity, educational background, family relationship, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors . . . .” (§ 791, subd. (b).)
When the probation report was prepared, the minor was a senior in high school but had fallen behind due to his hospitalization after the accident. He was catching up in a summer school class and had to take more units to graduate. He intended to enroll in a community college and later transfer to a four-year university. Although he had had problems with studies and attendance, both areas had improved during the last year.
In his statement, the minor claimed to have no memory of the accident. He was sorry that it happened and emotional about losing his cousins, whom he was close to. He felt that there was no reason for the accident. He admitted that he used alcohol and a variety of drugs. Marijuana was his drug of choice because it made him feel happy and helped him sleep. He said that although abstaining made him irritable, he would “try” not to smoke, and his girlfriend of some months was helping him do so. He said he was in a drug program and received grief counseling. He had also investigated various community service options and hoped to be released from the EMP so he could join in family activities like bowling and camping.
In her statement, the minor’s mother also wanted him to join family activities but was reluctant to ask the court for special consideration. She said she would guarantee compliance with an EMP because she did not want the minor to be incarcerated. She liked that the minor’s girlfriend was helping him abstain from marijuana and noticed a difference when he was not using.
In statements by the victims’ mother and sister, they advocated drug treatment, an extended EMP, and supervised probation to help the minor change his lifestyle and peer group, rehabilitate himself, and achieve a clean and sober life.
The probation report summarized the minor’s prior criminal background. In 2004, he was detained for vandalism and drinking, released, but then failed to appear in court. In 2005, he was arrested for possession of marijuana. He failed to complete a three-month diversion contract and was placed on supervised probation, which he completed albeit with some positive tests for marijuana and cocaine. In May 2006, he successfully completed informal probation, which included eight sessions of drug and alcohol counseling. In July 2006, he was involved in a racially-tinged fight and referred to the probation department. In 2007, he was arrested for possession and use of cocaine and diverted to Youth Services for a drug counseling program. His first session was on November 2, the day before the accident. Immediately after the accident, the minor tested positive for marijuana. The probation report further stated that “[t]he minor was placed on EMP on June 12, 2008[,] when he tested positive for marijuana at a THC level of 787. On June 17, 2008[,] he tested positive at a THC level of 552.”
The minor asserts that the report is inaccurate and claims that “[b]oth tests took place in the same week, and happened before [he] was placed on the electronic monitoring program.” However, the minor waived any errors or omission in the probation report because he failed to object and make an offer of proof at the disposition hearing. (People v. Welch (1993) 5 Cal.4th 228, 234; In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344
The probation report opined that while incarceration would not benefit the minor or provide the victim’s with justice, “a sentence of six months Electronic Monitoring, combined with appropriate community service and counseling, will help [the minor] move past his denial and grief and become a clean, sober, and higher functioning young adult.” In finding the minor unsuitable for DEJ, the report noted that the victims and the probation department agreed that some form of wardship and custody was appropriate and noted that upon successful completion, he could have his record sealed.
The Hearing
At the hearing, the victims’ sister described the experience and impact of losing her brothers. She complained that the minor had not shown remorse or accepted responsibility for their deaths. And although she did not think he intended to kill them, she felt that he intended to speed on a dangerous mountain road. So, she blamed him and felt he needed to be punished by house arrest and receive counseling.
Noting that he committed this offense in violation of the terms of probation to abstain from drugs and then again tested positive on the day he was placed on an EMP, the victim’s mother opined that, to fully take responsibility for his conduct, the minor needed a complete and mandatory program that addressed his physical, mental, and emotional needs.
The minor’s counselor, who had seen him approximately 12 times, said that even though the minor may not have always expressed emotion, he had shown emotion, regret, remorse, and survivor’s guilt to her. The counselor also opined that to the extent the minor was capable, he was trying to be responsible.
On his own behalf, the minor said, “I just want to say to you guys I’m so sorry. I wish it didn’t happen like that.”
The minor’s counsel argued that he was suitable for DEJ. He cited Martha C. v. Superior Court (2003) 108 Cal.App.4th 556 (Martha C.) for the proposition that the court should deny DEJ only if it finds that the minor would not benefit from education, treatment, and rehabilitation. He opined that the minor clearly would benefit. He acknowledged that the probation department recommended against DEJ because it considered an additional six-month EMP appropriate. However, he argued that that was not a legally proper reason to deny DEJ.
The deputy district attorney opined that where an adult causes a loss of life due to drugs, alcohol, driving, or a combination of them, he usually seeks a prison term to protect the community. He asserted that this was a difficult case because the minor’s age limited the custodial options. He pointed out, and the minor’s counsel concurred, that the court could not grant DEJ with electronic monitoring because the monitoring was considered custodial time.
The minor’s counsel suggested that the court place the minor on an EMP and postpone ruling on the issue of DEJ until after the minor has completed it.
The Court’s Ruling
The judge opined that when someone is given a chance, they must perform—i.e., be “golden,” and when they fail, the can expect consequences. He said he was stunned that the minor had violated the terms of his initial release, found the minor scary, and considered the disposition a “nightmare.” He continued, “And I still am sort of trying to determine the best way to make this all right. I don’t know that I can. I don’t know that DEOJ works or will work. Don’t know that there is a great difference in reality between that and declaring you a minor—or excuse me—or a ward of the Court as a minor.”
The judge liked the idea of no EMP because if the minor violated terms of release, he potentially would face a longer period of custody. He expressed particular concern about the minor’s admitted drug use during his previous involvement with the juvenile justice system, and the system’s failure to correct the problem. He was not going to let that happen again. He told the minor that the future was in his own hands. “What I have said time and time and time again is if you ask me to do something, generally I will. If you perform and you ask me at the end of the period that I set to terminate successfully, you’ve performed, I don’t have a problem with that. [¶] You screw up, what you’re telling me is that you want me to lock you up. And whether you’re a minor or whether you’re an adult, I have always granted that request. If somebody comes back to me and says lock me up, I do.”
Noting that he had not had the benefit of reading Martha C., the judge said that there are “definitely issues of treatment, rehabilitation, programs, education.” He further noted that even the minor’s counsel acknowledged that the court had discretion concerning DEJ. The judge then stated, “And I believe that there is the difference between suitability and amenability and eligibility.” Disregarding what would happened to an adult under similar circumstances, the judge said that his “biggest concern is the substance abuse at this point; . . . that is evident from this report. And I am going to follow the recommendations of the probation. And I will declare [the minor] a ward of the Court. [¶] I’ll indicate that you’ll be placed in the care, custody, and control of [your] probation [officer] under the usual terms and conditions for placement in the home of your parents.” The first 180 days of custody were to be served on electronic monitoring.
IV. APPLICABLE PRINCIPLES
Deferred entry of judgment is based on determinations of eligibility and suitability. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10.) Where, as here, the minor is deemed eligible for DEJ, he or she does not automatically become entitled to it. (Id. at pp. 602-607 [eligibility does not compel grant of DEJ].) Rather, granting DEJ is addressed to the court’s discretion. (Id. at p. 607.) It may summarily grant DEJ or, as here, refer the matter to the probation department for further investigation and a recommendation. (§ 791, subd. (b).) If the matter is referred, the department is required to take into consideration the minor’s age, maturity, educational background, family relationship, demonstrable motivation, treatment history, if any, other mitigating and aggravating factors, the programs best suited to assist the minor and the minor’s family, and other relevant factors regarding the benefit the minor would derive from education, treatment, and rehabilitation. (Ibid.; Cal. Rules of Court, rule 5.800(D)(3)(A)(i) & (ii),.)
Thereafter, in exercising its discretion, the court considers those same factors and makes an independent determination of suitability “based upon the standard of whether the minor will derive benefit from ‘education, treatment, and rehabilitation’ rather than a more restrictive commitment. [Citations.]” (In re Sergio R., supra, 106 Cal.App.4th at p. 607.) The court’s determination may be reversed only upon a showing of abuse of discretion. (Ibid.) 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. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72; People v. Carmony (2004) 33 Cal.4th 367, 377 [no abuse unless decision is “so irrational or arbitrary that no reasonable person could agree with it”].)
V. DISCUSSION
The minor contends that the court abused its discretion in denying DEF. He notes that the court had not read Martha C., supra, 108 Cal.app.4th 556, and, therefore, was not aware that it could deny DEJ only if it found that the minor would not benefit from education, treatment, and rehabilitation. He argues that the court believed it had “unbridled discretion” to deny DEJ and did so on vague and impermissible bases, including the need to send a message to the community and the need for custody, despite evidence in the probation report that the minor would benefit and was benefiting from education, counseling, treatment, and rehabilitation. We do not find an abuse of discretion.
Section 791, subdivision (b) prescribes factors to be considered by the probation department in “determining whether the minor is a person who would be benefited by education, treatment, or rehabilitation.” These factors are “the defendant’s age, maturity, educational background, family relationships, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors . . . .” (Ibid.; Cal. Rules of Court, rule 5.800(d)(3)(A)(i).) The court may also consider the circumstances of the minor’s underlying conduct. (Martha C., supra, 108 Cal.app.4th at p. 562.)
In determining the minor’s suitability, the court could consider the minor’s history of drug use and the fact he used marijuana before committing the offense and just after starting a second Youth Services drug counseling program due to his use of cocaine. The court also could consider the minor’s use of marijuana just prior to and then after his release in this case.
Although the court had not read Martha C., the minor’s counsel accurately related its core principle without objection, contradiction, or disagreement by the deputy district attorney. Moreover, the court’s comment that there were issues concerning the minor’s education, treatment, and rehabilitation and its comment about the difference between eligibility and suitability indicate that the court was focused on factors relevant to suitability for DEJ. In ruling, the court identified the minor’s drug abuse as its primary concern. Notwithstanding some editorial comments, the court’s ruling implies a finding that the minor would not benefit from the education, treatment or rehabilitation available in a non-custodial placement pursuant to DEJ, especially concerning his drug rehabilitation; rather, the minor’s track record made wardship and custody under an EMP reasonably necessary to facilitate and ensure the minor’s successful education, treatment, and drug rehabilitation at home.
We consider such a finding reasonable and supported by the probation report. Under the circumstances, the court’s decision is not arbitrary, capricious, irrational, or whimsical, and we find no abuse of discretion.
The minor’s reliance on Martha C., supra, 108 Cal.App.4th 556 is misplaced. There, the minor and another person were caught smuggling drugs from Mexico. (Id. at p. 559.) The probation report noted the minor had no juvenile record, her behavior at home was compliant, her home was stable and nurturing, and while she had been habitually truant from school in the past, she was in a new alternative education program and was doing well. Accordingly, her probation officer concluded she would benefit by education, treatment and rehabilitation pursuant to the DEJ procedure and that she would be acceptable to all appropriate programs. (Id. at p. 560, 562.) Without comment on the minor’s suitability, the court denied DEJ solely to send a message to potential drug smugglers that there would be permanent consequences flowing from such criminal activity. (Id. at p. 562.) On appeal, the court found that the court had erroneously denied DEJ for one reason, and that reason was totally unrelated to the minor’s rehabilitation. Accordingly, it reversed and remanded the case for the trial court to reconsider DEJ. (Ibid.)
Martha C. is distinguishable because here, the probation department did not consider the minor suitable for DEJ and did not recommend it. Moreover, in Martha C, the trial court’s send-a-message reason for denying DEJ was unrelated to the minor’s suitability. Here, the trial court’s concern with the minor’s history of drug abuse and performance on release was highly relevant and related to his suitability.
VI. DISPOSITION
The juvenile court’s order is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
Moreover, we note that the “602” petition was filed on February 14, 2008, and the detention hearing was held on February 28, at which time the minor was released to his mother subject to various conditions, including abstention from the use of drugs and alcohol. However, at the next substantive hearing on June 12, 2008, the probation officer reported that the minor had admitted using marijuana, the minor tested positive for marijuana that very morning, and there were witnesses would who testify that the minor had been using drugs and alcohol since his release on February 28. At that hearing, the court put the minor on an EMP.
Thus, the record indicates that one drug test took place on, not before, June 12. Moreover, there is no evidence of a second test before June 12; and no evidence contradicting the assertion in the report that defendant tested positive June 17. The minor’s record references do not suggest otherwise.