Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 52004477
RAYE, J.Following a contested hearing, the Placer County Juvenile Court (Judge Gini) found that minor James C. was not suitable for deferred entry of judgment (DEJ). (Welf. & Inst. Code, § 790 et seq.) Following a contested jurisdiction hearing, the court (Judge Gaddis) found that the 17-year-old minor was within the provisions of Welfare and Institutions Code section 602 in that he committed first degree burglary. (Pen. Code, §§ 459, 460, subd. (a).) He was declared a ward of the court; committed to the juvenile detention facility for 30 days, stayed pending appeal; and placed on probation in the home of his father on conditions including number 9, “Do not associate with any person deemed undesirable by Probation or your parents.”
The minor filed a notice of appeal from this ruling. This court dismissed the appeal as having been taken from a nonappealable order. (In re James C. (Oct. 15, 2007, C057053) [order].) Thereafter, the minor requested dismissal of the case to facilitate his entry into the United States Marine Corps; in the alternative, he sought reconsideration of the denial of DEJ. Both requests were denied. The minor filed a petition for writ of mandate, prohibition, or other relief with request for stay. This court denied the writ petition. (James C. v. Superior Court (Jan. 3, 2008, C057717) [order].)
On appeal, the minor contends (1) denial of DEJ was an abuse of discretion, and (2) probation condition number 9 must be modified to require his knowledge of the undesirability determination; the Attorney General concedes this point. We shall modify the judgment.
FACTS
R. J. testified that he went to the victim’s residence on two different occasions. The first time, he went there with a friend, T. R., who entered the victim’s garage and stole some marijuana.
The second time, R. J. went to the victim’s residence with the minor. Before going, the pair discussed stealing money from the victim. While they were inside the residence, the owner entered the house with his girlfriend; as a result, R. J. and the minor hid in a closet. When they had an opportunity, they quickly fled from the house.
Placer County Sheriff’s Detective Paul Long was assigned to investigate the burglary. Three months after the burglary, Long interviewed the minor at his school. He denied having entered the residence. However, about five hours later, the minor telephoned Long and admitted that he had been untruthful during the interview. The minor gave several versions of the events before finally admitting that he had entered the victim’s house with the intent to steal money.
DISCUSSION
I
The minor contends the juvenile court abused its discretion when it denied him DEJ. We are not persuaded.
Background
In May 2007 the prosecution and the juvenile court agreed that the minor was eligible for DEJ. The matter was referred to the probation department for an evaluation of the minor’s suitability for DEJ. (Welf. & Inst. Code, §§ 790-794; Cal. Rules of Court, rule 5.800.)
All further statutory references are to the Welfare and Institutions Code.
In June 2007 the probation department determined that the minor was suitable for DEJ under all the statutory criteria except “maturity.” (§ 791, subd. (b).) The department reasoned: “[The minor] is unsuitable in regard to maturity. Although the minor has displayed above-average academic achievement, his behavior during and following the present offense appeared to demonstrate a lower level of maturity. He conspired then entered the victim’s home without permission, and with the intention of stealing money. Further, for approximately four months after the offense, he failed to come forward and thus remained quiet until he was interviewed by the Sheriff’s Detective. He demonstrated additional immaturity, when he initially lied to the detective, to whom he subsequently admitted his participation.”
The probation department concluded that the minor was unsuitable for DEJ “due to the circumstances of the offense and the minor’s behavior following the offense. The offense is a First Degree Burglary, which is a serious felony as defined by Penal Code section 1192.7(c)(18). The minor conspired and planned to commit the burglary. However, his plans were derailed when the residents and [a person the minor believed to be a sheriff’s] investigator arrived unexpectedly, [following] which the minor hid in the closet for approximately 30 minutes. He failed to admit his wrong-doing early on, rather remaining quiet for nearly four months, when the Sheriff’s detective contacted him. Additionally, the minor initially lied to the detective.”
The minor requested a contested hearing on the issue of suitability for DEJ. At the hearing, the minor called a clinical psychologist, Dr. Eugene Roeder, who had administered psychological testing to him and who testified that the minor “has a normal level of maturity for a 17-year-old.”
On cross-examination, the prosecutor asked Dr. Roeder: “So do you -- having understood from what I have told you in a hypothetical sense, at least, that the DEJ program consists of essentially all the terms and conditions of probation other than an actual formal finding for a delayed period of time, the fact that it is virtually exactly the same as probation, does that cause you to think it would be any different for him from a maturity standpoint than a regular probation?” Dr. Roeder responded, “Probably not.”
In summation, the prosecutor argued: “Unfortunately [Dr. Roeder] was not aware that the probation granted in a DEJ case is virtually identical to that in a formal wardship case with the exception that formal wardship is not ordered. All the other terms and conditions can and usually are the same.”
Following the evidence and argument, the juvenile court ruled as follows: “The Court has considered the evidence presented. The Court has evaluated the report and recommendation of the probation officer, as well as Dr. Roeder’s June 13th report. This is Exhibit Number 4. It is received into evidence. [¶] And in the testimony today Dr. Roeder focused on one aspect of the probation officer’s report on the issue of maturity as the suitability factors were examined by the probation department. They concluded that -- they recommended that the minor was not sufficiently mature to benefit from DEJ. Dr. Roeder arrived at a different opinion. And the Court rejects the notion that Dr. Roeder is either right or the probation officer is wrong. [¶] The Court sees here that there are different bases for the opinion. Dr. Roeder is a psychologist and is reporting on his opinion about maturity as it developed from psychological testing and interviewing the minor. While the probation officer’s perspective comes from a different spectrum of considerations and the field of criminal justice and values those factors different from psychological testing. [¶] Nevertheless, without [sic] regard to the issue of maturity, what the Court does believe is that based on the information that has been presented, the minor is not sufficiently mature to benefit from DEJ. And the court -- even absent findings on maturity, the Court finds that the provisions of DEJ are insufficient to permit the minor to benefit from the education, treatment, and rehabilitation that is offered by the programs. So the requests [sic] for DEJ is denied.”
Analysis
“The DEJ 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. [Citations.]
“Section 790 makes a minor eligible for DEJ if all the following circumstances exist: [¶] (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 [Department of Corrections and Rehabilitation, Division of Juvenile Facilities]. [¶] (4) The minor’s 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 1203.06 of the Penal Code. [Citation.]
“If the minor waives the right to a speedy jurisdictional hearing, admits the charges in the petition and waives time for pronouncement of judgment, the court may summarily grant DEJ or refer the matter to the probation department for further investigation. The department is required to take into consideration ‘the defendant’s age, maturity, educational background, family relationship, 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.’ [Citation.] The [juvenile] court makes ‘the final determination regarding education, treatment, and rehabilitation of the minor.’ [Citation.]” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558-559; see In re Kenneth J. (2008) 158 Cal.App.4th 973, 976-977.)
“[D]enial of deferred entry of judgment is not an abuse of discretion merely because the minor has satisfied the eligibility requirements of section 790, subdivision (a), and rule [5.800(a)]. Instead, the court makes an independent determination after consideration of the ‘suitability’ factors specified in rule [5.800(d)(3)(A)(i)] 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. (§ 791, subd. (b); rule [5.800(b)(2), (f)].)” (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. omitted.)
As the minor concedes, the question “is whether or not [he] would benefit from DEJ programs, not whether formal probation programs are better.” (See In re Martha C., supra, 108 Cal.App.4th at p. 561.) The juvenile court answered this question in the negative; it found that the minor would not “benefit from the education, treatment, and rehabilitation that is offered by the [DEJ] programs.”
Contrary to the minor’s argument, the court did not find that the minor would benefit more from formal probation than from DEJ. Indeed, the court could not have made such a finding on this record; as noted above, the prosecutor effectively conceded that in Placer County the programs offered on formal probation and on DEJ are essentially the same. Because the programs are so similar, it is possible that the minor may lack sufficient maturity to receive optimum benefit from formal probation. But that possibility does not prove or suggest that denial of DEJ was an abuse of discretion.
The minor claims “[n]o factual basis existed for the juvenile court to concluded [sic] that [he] would not benefit from DEJ programs as compared to formal probation programs.” (Italics added.) We have already explained that the court’s ruling did not attempt to compare DEJ to formal probation. The question remains whether there was a factual basis to conclude that the minor would not benefit from DEJ.
In finding the minor unsuitable, the probation department wrote that he had demonstrated a “lower level of maturity” during and following the offense: first, by conspiring and entering a house without permission, and then, by concealing the offense for months, including at an initial interview with law enforcement. The minor did not do these acts from ignorance (i.e., lack of education), from conduct such as substance abuse (i.e., lack of treatment), or from an unchecked criminal propensity (i.e., lack of rehabilitation) in this, his first offense. Rather, he sought to gain financially and to escape the consequences of his actions. The court could conclude that what the minor lacked was the good judgment and self-control that come with maturity; those are qualities that education, treatment, and rehabilitation alone cannot instill. Denial of DEJ was not an abuse of discretion. (In re Sergio R., supra, 106 Cal.App.4th at p. 607.)
II
The minor contends probation condition number 9, “Do not associate with any person deemed undesirable by Probation or your parents,” is unconstitutionally vague and must be modified to require the minor’s knowledge. The Attorney General concedes that the condition should be modified to provide: “[D]o not associate with any person whom you know to be deemed undesirable by Probation or [y]our parents.” We accept the Attorney General’s concession. (In re Sheena K. (2007) 40 Cal.4th 875, 892; In re Vincent G. (2008) 162 Cal.App.4th 238, 245-246.) In re Sheena K. is directly on point and dictates our result. We shall modify the probation condition accordingly.
DISPOSITION
Probation condition number 9 is modified to read: “Do not associate with any person whom you know to be deemed undesirable by Probation or your parents.” As so modified, the judgment is affirmed. The juvenile court is directed to prepare an amended minute order and to forward a certified copy to the officer having custody of the minor.
We concur:, SIMS , Acting P. J., CANTIL-SAKAUYE , J.