Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J214774 Janet I. Kintner, Judge.
BENKE, Acting P. J.
Appellant alleges the trial court erred in denying his request for entry of deferred judgment. We affirm.
BACKGROUND
The facts of the offense alleged are not in dispute. On October 13, 2006, an official at Point Loma High School reported that five lockers were broken into or tampered with the previous day. The tool used was flat-edged.
When truant officers contacted appellant on October 16, they found a flathead screwdriver in his backpack. He told police that a friend of his who was not student at Point Loma High School brought the tool and suggested the break-in. He admitted to police that he and his friend performed the break-ins while others served as lookouts. The participants divided up the items taken from the lockers.
On March 5, 2007, a seven-count delinquency petition was filed against appellant. It alleged appellant committed a felony burglary in violation of Penal Code section 459. In addition, it alleged five misdemeanor violations of section 594, subdivision (a)(b)(2)(A), unlawfully and maliciously damaging and destroying property under $400 in value. One additional misdemeanor was alleged, a violation of section 466, possessing instruments and tools with felonious intent to break and enter into a school building.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant admitted the allegations. The matter was then continued to determine if a deferred entry of judgment (DEJ) was appropriate pursuant to Welfare and Institutions Code section 790.
On April 17, 2007, the court denied the DEJ and ordered appellant detained pending deportation because of his illegal alien status. With the permission of the court he withdrew his admission to all but the burglary charge. The other counts were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758, and appellant's agreement to pay restitution.
The court adjudged appellant a ward of the court pursuant to section 602. He was granted probation to the court for one year, and he was released to the probation officer for release to his mother and the Mexican consulate. Appellant was ordered to pay fines of $722.95 and $119. The latter fine was stayed pending successful completion of probation. He filed a timely notice of appeal.
DISCUSSION
Appellant's sole argument is that the trial court abused its discretion in denying appellant participation in the DEJ program available under Welfare and Institutions Code section 790.
Respondent alleges that because appellant did not object below to what he now argues are improper factors used by the court to deny the deferred judgment, he has forfeited his right to object to those factors on appeal. Even assuming we determine the issue is not waived, we conclude the court did not abuse its discretion.
Whether an abuse of discretion exists in a court's denial of the request for placement in the DEJ program is reviewed under a deferential standard. (In re Sergio R. (2003) 106 Cal.App.4th 597, 605.)
Welfare and Institutions Code section 790 permits a court to grant DEJ if a minor is both suitable and eligible. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 562 (Martha C.).) The court may conclude a minor is eligible, yet not suitable, for DEJ. In making an assessment of suitability, the court makes an independent determination after considering the factors specified in the California Rules of Court, rule 5.800(d)(3)(A)(i), and Welfare and Institutions Code section 791, subdivision (b).
California Rules of Court, rule 5.800(d)(3)(A)(i), states: "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 must address the following:
"(i) 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 . . . ."
As to eligibility, California Rules of Court, rule 5.800(a), provides: "A child 14 years or older who is the subject of a petition under [Welfare and Institutions Code] section 602 alleging violation of at least one felony offense may be considered for a deferred entry of judgment if all of the following apply: [¶] (1) The child is 14 years or older at the time of the hearing on the application for deferred entry of judgment; [¶] (2) The offense alleged is not listed in [Welfare and Institution Code] section707[, subdivision] (b); [¶] (3) The child has not been previously declared a ward of the court based on the commission of a felony offense; [¶] (4) The child has not been previously committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice; [¶] (5) If the child is presently or was previously a ward of the court, probation has not been revoked before completion; and [¶] (6) The child meets the eligibility standards stated in Penal Code section 1203.06."
Welfare and Institutions Code section 791, subdivision (b), provides: "If the minor consents and waives his or her right to a speedy jurisdictional hearing, the court may refer the case to the probation department or the court may summarily grant deferred entry of judgment if the minor admits the charges in the petition and waives time for the pronouncement of judgment. When directed by the court, the probation department shall make an investigation and take into consideration the defendant's age, maturity, educational background, family relationships, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors in determining whether the minor is a person who would be benefited by education, treatment, or rehabilitation. The probation department shall also determine which programs would accept the minor. The probation department shall report its findings and recommendations to the court. The court shall make the final determination regarding education, treatment, and rehabilitation of the minor."
The suitability factors thus include the minor's age, maturity, educational background, family relationships treatment history, motivation and any other relevant factors with regard to whether the minor would benefit from the treatment, education, and rehabilitation efforts. (Cal. Rules of Court, rule 5.800(d)(3)(A)(i).) In addition, the circumstances of the crime may also indicate the minor is not amenable to treatment. (Martha C., supra, at p. 562.)
Here, the trial court was aware of the factors impacting its decision, including the statutory factors affecting appellant's suitability and the probation report. After its review, the court noted its "many concerns." These concerns, including appellant's suspension from school numerous times for not following directions and using inappropriate language, his leadership role in the offenses alleged, the multiple number of victim lockers broken into which included his distribution of the items taken, use of alcohol at a young age and the Probation Department's Resiliency Checkup assessment that he was a medium as opposed to low risk in the program. In addition to these factors, the court also appropriately considered appellant's immigration status. (People v. Cisneros (2000) 84 Cal.App.4th 352, 358; People v. Sanchez (1987) 190 Cal.App.3d 224, 231.) It appropriately noted the fact that he was in the United States illegally affects his ability to complete the program. (See People v. Espinoza (2003) 107 Cal.App.4th 1069, 1076.) His ties to the community were also limited and of questionable stability. As the court noted, appellant's mother lives in Tijuana, Mexico, and his brother, who would be his proposed caretaker, indicated they want to avoid situations that draw attention to their illegal status in the country.
The record supports the trial court's conclusion appellant is not suitable for deferred judgment.
The judgment is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.