Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. JU21564
McAdams, J.
O.D., a 17-year-old minor, appeals from an order finding that he came within the provisions of Welfare and Institutions Code section 602, after he admitted one felony count of grand theft (Pen. Code, 487, subd. (a)) and four misdemeanor offenses. The juvenile court found him unsuitable for deferred entry of judgment (hereafter DEJ; § 790, et seq.), declared him a ward of the court, and placed him on probation. On appeal, the minor contends that the juvenile court applied the wrong standard and abused its discretion when it denied his request for DEJ. For the reasons stated below, we affirm.
Unless otherwise stated, all further statutory references are to the Welfare and Institutions Code.
The misdemeanors included one count of driving without a license (Veh. Code, § 12500, subd. (a)), two counts of possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and one count of possession of alcohol by a minor (Bus. & Prof. Code, § 25662, subd. (a)).
Facts and Procedural History
I. Prior Juvenile Record
In August 2006, when he was 15 years old, the minor “engaged in a mutual fight” with another boy in Watsonville. He was charged with misdemeanor fighting in a public place (Pen. Code, § 415, subd. (1)). He admitted the charge and was “diverted”; the order included four hours of community service.
In October 2006, the minor and another youth attempted to shoplift several pairs of headphones from a store in Salinas. The minor denied having the intent to steal and said he took the headphones because it looked “easy.” He was charged with misdemeanor theft (Pen. Code, § 484, subd. (a)). He admitted the charge and was placed on informal probation, which he completed successfully.
In July 2007, the day after his 16th birthday, the minor was stopped while driving a car that had no license plates and was arrested for driving without a license (Veh. Code, § 12500, subd. (a)).
On March 26, 2008, Watsonville police officers responded to a report that the minor’s friend, J.G.1, had battered his mother. When the police arrived, they found the minor and three other boys in a car in a parking lot behind the victim’s home. As the officers approached, two of the boys, including the minor, fled on foot. One of the officers gave chase and ordered the minor to stop, threatening to use his taser. The minor kept running. The minor eventually complied, after being ordered to stop at taser-point. He was charged with misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)) and spent one day in juvenile hall. In the same incident, J.G.1’s brother (J.G.2) was charged with possession of stolen credit cards and resisting arrest.
On April 7, 2008, the prosecution filed a section 602 petition charging the minor with the July 2007 driving without a license offense and the March 2008 resisting arrest offense.
On April 28, 2008, a probation officer in an unmarked car on Main Street in Watsonville observed the minor and J.G.1, who were on foot, approach a car and challenge the occupants to a fight. The minor held a baseball bat in a “ ‘menacing manner’ ” and yelled for the driver to“ ‘get out of the fucking car.’ ” The probation department later described this as a “gang related” fight. When confronted by the probation officer, the boys fled. Both boys were apprehended and the minor was detained in juvenile hall for one day.
The following day, the prosecution amended its petition and added one count, charging the minor with misdemeanor fighting in a public place (Pen. Code, § 415, subd. (1)) arising out of the previous day’s events.
Initially, the minor denied the allegations of the petition and was placed on home supervision. On April 30, 2008, while on home supervision, the minor tested positive for marijuana.
On May 15, 2008, the minor admitted the petition as filed. The court dismissed the misdemeanor counts for driving without a license and fighting in a public place. The court found the resisting arrest charge true. The court placed the minor on probation without wardship for six months (§ 725, subd. (a)). The conditions of his probation included (1) obey all laws, (2) “[h]ave no social contact with” J.G.1 and J.G.2, (3) do not use or possess alcohol or controlled substances, (4) do not use or possess dangerous or illegal weapons.
II. Subject Offenses
On June 11, 2008, at about 4:00 p.m., Watsonville police stopped a car the minor was driving for taillight and license plate infractions. The minor told the police that he had a driver’s license but had left it at home. The officers noticed the smell of burnt marijuana. The officers searched the car and found a small baggie of marijuana, an apple that had been used as a pipe, numerous knives, some screwdrivers, and a crow bar. The minor’s three passengers, who included J.G.2, were released at the scene. The minor was arrested and spent two nights in juvenile hall.
On June 16, 2008, the prosecution filed a new section 602 petition, alleging two new misdemeanor offenses had occurred on June 11, 2008: (1) driving without a license (Veh. Code, § 12500, subd. (a)) and (2) possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The petition also alleged that the minor had violated the conditions of his probation by failing to obey all laws, associating with J.G.2, and being in possession of a knife.
On June 17, 2008, the minor denied the allegations of the new petition.
One week later, on June 24, 2008, Watsonville police responded to a traffic accident. The officers found the minor, J.G.1, and J.G.2 at the scene and detained them. The minor had a full 750 milliliter bottle of whiskey and a bindle of marijuana in his possession. The officers cited the minor for possession of alcohol and possession of marijuana, as well as a probation violation for associating with J.G.2, and released him to his parents.
On June 27, 2008, Santa Cruz County Sherriff’s deputies responded to a report of an auto burglary. The victim reported that his laptop computer and wallet had been stolen from his car, that he had chased two or three suspects, one of whom was carrying his laptop, and that he lost sight of them near Dick Phelps Road. The deputies received an anonymous tip that the suspects were in a house on Dick Phelps Road. The deputies went to the house and found the minor and two other probationers there. The victim identified the minor as the person who was carrying his laptop. The officers found the victim’s laptop in a closet and the victim’s wallet outside the house. The minor was arrested and spent five days in juvenile hall.
On June 30, 2008, the prosecution filed an amended section 602 petition, which added a new count for felony grand theft of the laptop and the wallet (Pen. Code, 487, subd. (a)). This was the first time the minor had been charged with a felony. In addition to the probation violations alleged in the previous petition, the amended petition alleged that the minor had violated his probation by stealing the laptop and the wallet (a failure to “obey all laws”).
On July 1, 2008, the minor denied the allegations of the amended petition. The court ordered the minor to spend 12 days at “Evening Center” and set the matter for a pre-trial hearing. That same day, the minor tested positive for marijuana.
The prosecution filed a second amended petition on July 14, 2008, which added two misdemeanor counts for (1) minor in possession of alcohol (Bus. & Prof. Code, § 25662, subd. (a)) and (2) possession of marijuana (Health & Saf. Code, § 11357, subd. (b)) arising out of the events of June 24, 2008.
On July 17, 2008, the prosecution filed a “Determination of Eligibility — Deferred Entry of Judgment — Juvenile” form, using the form proscribed by the Judicial Council (form JV-750). On the form, the district attorney indicated that the minor was eligible for DEJ. The minor admitted the allegations of the second amended petition “for deferred entry of judgment.” The court found that the maximum period of confinement was three years six months. The court explained how DEJ works and set the matter for a disposition hearing on July 30, 2008.
III. Probation Reports
Prior to the disposition hearing, the probation officer prepared a report regarding the minor’s criminal, education, health, and family histories. The probation officer interviewed the minor’s mother and the minor by phone; she did not interview his father. The probation officer noted that the minor was reluctant to speak with her, but did answer some questions regarding his education and health. The minor was in summer school earning credits through an independent study program at Watsonville Community School. He had previously attended Luna Park School. The minor expected to return to Watsonville High in the fall of 2008 and graduate in January 2009 (one semester early); he was considering a career as a diesel mechanic. Probation had no information regarding why the minor had been diverted to alternative schools. According to his mother, he worked hard on his independent studies and had earned many A’s. His transcripts indicated that he earned below average grades prior to summer school.
The minor reported that he had been in good health, but became defensive and asked how his health history related to his court case. After the probation officer answered his question, the minor declined to make any further statements. The probation officer told him that if he did not participate in the interview, the court would continue the disposition hearing to allow for a complete investigation. The minor accused the probation officer of threatening him and abruptly ended the call.
The minor lived at home with both of his parents; he was the third of four children. Both of his parents were born in Mexico and had become United States citizens. His mother was an in-home daycare provider; information about the father’s employment was “unknown.” The minor’s two older sisters were putting themselves through college. His younger sister was in high school; two of the girls lived at home.
The minor’s mother acknowledged that the minor’s behavior in the community was poor, but “was adamant that his behavior at home [was] excellent.” She said he “hardly leaves home anymore” and believed his friends influenced him negatively. She thought he would benefit from a job, any job.
Juvenile hall staff reported that the minor’s father was uncooperative and did not want them making home visits. The minor’s supervising probation officer described the minor’s father as “evasive,” “extremely guarded and mistrustful.” The father had been unwilling to interview with probation in the past and the department had no information on him.
The probation officer described the minor as “quick thinking and hypervigilant”; “hostile and impulsive.” She opined that since the minor was unwilling to discuss his criminal or social history, the department was unable to gauge his “amenability” to DEJ and stated that without more cooperation the department could not create an appropriate service plan for the minor. She recommended that the disposition hearing be continued for two weeks to allow for additional investigation and that the court order the minor and his parents to meet with the probation department.
The court adopted the probation officer’s recommendations, continued the disposition hearing, and ordered the minor to meet with probation.
The probation officer interviewed the minor and his father in person on August 11, 2008. The minor had encountered obstacles enrolling in Watsonville High. Consequently, he decided to continue his studies at Luna Park, with the condition that he be allowed to complete two automotive classes in the Regional Occupational Program, which were scheduled to begin on August 13, 2008. The minor reported that he was good at reading and bilingual in English and Spanish. He said he uses marijuana twice a week and drinks alcohol less frequently. He stated that he makes his own choices and that he does not believe he is negatively influenced by his friends. He believed it would be easy to stop smoking and drinking and “hanging around with his probationer and gang friends.” However, he thought he would be on probation for only six months and appeared frustrated when he learned that DEJ would be for a minimum of one year. As the interview progressed, he became increasingly agitated and reluctant to speak.
The minor’s father reported that he had been disabled by a back injury and unable to work since 2004. He stated that he did not condone his son driving without a license, drinking, or smoking marijuana. He did not want his son to get into any more trouble, as it affects the entire family psychologically. In response to cues from his son, the minor’s father, who only has five years of schooling and spoke through an interpreter, declined the probations officer’s offer to translate the disposition report for him.
IV. Conduct Pending Disposition
On August 12, 2008, the minor was arrested after he and another minor probationer (A.O.) abandoned a disabled, stolen car at Sunset State Beach. Witnesses stated that A.O. was driving the car. A.O.’s mother said the minor showed up at her house with the car. A.O. was charged with felony auto theft; the district attorney elected not to charge the minor in the case. The minor spent three days in juvenile hall. As a result, he forfeited his spot in the Regional Occupational Program. When the institutional officer called his parents to report the arrest, his father stated that the minor had not been coming home and that he was tired of the minor’s bad behavior.
On August 14, 2008, a probation aide visited J.G.1, who was on an electronic monitoring program, and discovered the minor in J.G.1’s home, which was a violation of the minor’s probation. The probation aide told the minor to leave, which he did. However, when the probation aide returned later that day, the minor was there once again.
In her supplemental report, the probation officer continued to question the minor’s “amenability” to DEJ. She noted that while he was pending disposition, he was arrested in the company of another probationer for an incident involving a stolen car, and that within three hours of his release from juvenile hall, he was at the home of a person he had been ordered not to associate with. The officer recommended that rather than DEJ, the minor be declared a ward of the court for placement in his parents’ home.
V. Disposition Hearing
At the disposition hearing, the probation officer told that court that after her second interview with the minor, she was not opposed to DEJ. However, the very next day he was with a fellow probationer under questionable circumstances involving a stolen car and by 3:00 p.m. on the day he was released from juvenile hall he was with J.G.1, violating his probation. The court concluded the minor was not suitable for DEJ, declared the minor a ward of the court, and placed him on probation in his parents’ home. The terms of his probation included a one-year delay in obtaining a driver’s license.
Discussion
Before addressing the minor’s contentions, we outline the procedures governing DEJ.
I. Principles and Procedures Governing DEJ
The DEJ provisions of section 790 et seq. were enacted in March 2000 as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998. (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558 (Martha C.).) “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).)” (Ibid.)
In determining whether DEJ is appropriate in a particular case, the prosecution, probation department, and the court engage in a multi-step process that involves determinations regarding both the minor’s eligibility and suitability for DEJ.
First, the prosecution reviews the file to determine whether the six criteria set forth in section 790, subdivision (a), apply. (§ 790, subd. (b).) A minor is eligible for DEJ if all of 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 Youth Authority. [¶] (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.” (§ 790, subd. (a)(1)-(6).)
“If the minor is found eligible for deferred entry of judgment, the prosecuting attorney shall file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and shall make this information available to the minor and his or her attorney.” (§ 790, subd. (b); see also Cal. Rules of Court, rule 5.800(b), (e).) “[T]he duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, ….” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123 (Luis B.).)
All further rule references are to the California Rules of Court. Rule 5.800 provides in relevant part: “(b) Before filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review the child’s file to determine if the requirements of [rule 5.800, subdivision (a), which echo the requirements of section 790, subdivision (a),] are met. If the prosecuting attorney’s review reveals that the requirements of (a) have been met, the prosecuting attorney must file Determination of Eligibility — Deferred Entry of Judgment — Juvenile (form JV-750) with the petition.” (Rule 5.800(b).) Subdivision (e) of the rule states: “If it is determined that the child is ineligible for deferred entry of judgment, the prosecuting attorney must complete and provide to the court, the child, and the child’s attorney Determination of Eligibility — Deferred Entry of Judgment — Juvenile (form JV-750).” (Rule 5.800(e).)
Second, “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.” (§ 791, subd. (b).) Alternatively, “[i]f the minor consents and waives his or her right to a speedy jurisdictional hearing, the court may refer the case to the probation department” for further investigation. (Ibid.) If the matter is referred to the probation department, the department is required to 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.” (§ 791, subd. (b); see also Rule 5.800(d)(3).) The department shall also “determine which programs would accept the minor” and “report its findings and recommendations to the court.” (§ 791, subd. (b).)
Third, the trial court exercises its discretion to determine whether the minor is suitable for DEJ. (Luis B., supra, 142 Cal.App.4th at p. 1123; § 790, subd. (b).) That the minor meets the statutory criteria for eligibility does not mean he or she is automatically entitled to DEJ. The “court makes an independent determination” after considering the suitability factors specified in section 791, subdivision (b) and rule 5.800(d)(3), “with the exercise of [its] discretion based upon the standard of whether the minor will derive benefit from ‘education, treatment, and rehabilitation [efforts]’ rather than a more restrictive commitment.” (Martha C., supra, 108 Cal.App.4th at p. 562, citing In re Sergio R. (2003) 106 Cal.App.4th 597, 607, italics omitted; § 790, subd. (b).) “[A] court might find that the circumstances of a crime indicate a minor is not amenable to rehabilitation [citation] and on that basis deny DEJ, ….” (Martha C., at p. 562.)
The duty of the court “to either summarily grant DEJ or examine the record, conduct a hearing, and make ‘the final determination regarding education, treatment, and rehabilitation’ ” is mandatory. (Luis B., supra, 142 Cal.App.4th at p. 1123.) “[T]he court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.” (Ibid.)
II. Analysis
The minor argues that the court abused its discretion in denying DEJ because it failed to consider whether the minor would benefit from education, treatment, and rehabilitation efforts as required by section 790.
A. Eligibility
In the trial court, it was undisputed that the minor was eligible for DEJ.
Citing section 791, subdivision (a)(4), the Attorney General states that given the minor’s admission to having violated the terms of his non-wardship probation, it is unclear whether he was eligible for DEJ. However, the Attorney General also states that for the purposes of this appeal, he “assumes, as did the prosecutor, that [the minor] was eligible for DEF.”
Section 791, subdivision (a) prescribes the content of the prosecution’s written notice to the minor regarding the minor’s eligibility for DEJ. Subdivision (a)(4) of the statute provides: “The prosecuting attorney’s written notification to the minor shall also include all of the following: [¶]... [¶] (4) A clear statement that upon any failure of the minor to comply with the terms of probation, including the rules of any program the minor is directed to attend, or any circumstances specified in Section 793, the prosecuting attorney or the probation department, or the court on its own, may make a motion to the court for entry of judgment and the court shall render a finding that the minor is a ward of the court pursuant to Section 602 for the offenses specified in the original petition and shall schedule a dispositional hearing.” The provision that the Attorney General cites prescribes the content of the prosecution’s notice to the minor regarding the consequences of a failure to comply with probation after DEJ is granted. It does not address the eligibility criteria.
Section 790, subdivision (a) sets forth the six criteria for DEJ eligibility. Subdivision (a)(4) of the statute provides that in order to be eligible, the minor’s record must “not indicate that probation has ever been revoked without being completed.” In this case, there was no evidence that the minor’s probation had ever been revoked. The minor’s admission that he had violated the terms of non-wardship probation is not a revocation and does not render him ineligible for DEJ.
For these reasons, we accept the Attorney General’s concession that the minor was eligible for DEJ.
B. Suitability
The minor argues that the court abused its discretion when it relied on irrelevant circumstances (the minor’s initial reluctance to cooperate with the probation officer during her investigation and concerns that he would not adhere to the program) to determine that he was unsuitable for DEJ. He contends the only thing the court should have considered was whether the minor could benefit from education, treatment and rehabilitation efforts under the program.
More specifically, the minor argues that the court denied DEJ in part because the minor “was not ‘willing to be forthcoming and deal with probation.’ ” He argues that his and his family’s initial reluctance to speak with probation is irrelevant to the question whether he would benefit from education, treatment and rehabilitation efforts and points out that he and his father eventually cooperated with probation. The minor asserts that he shared insights about his family situation with probation, which “suggests that he would benefit from individual counseling sessions that DEJ would... require him to participate in.”
The record on appeal does not support that assertion. Most of the family history came from the minor’s parents. After the first interview, the probation officer reported that she was unable to obtain any information “from the minor about the present offenses, his substance abuse, his negative peer associations, or any of his strengths.” Although the minor provided more information during the second interview, he “became increasingly agitated and reluctant to speak as the interview progressed.” As a result, the probation officer “opted not to ask more probing questions about [his] substance abuse history, his friends, or the present offenses.”
The minor also argues that the court’s “decision to deny DEJ was also based on concerns about [the minor’s] ability to comply with the proposed probation conditions.” The minor contends this was not a valid basis for denial and argues that a valid denial “is narrowly limited to whether a minor would benefit from education, treatment and rehabilitation efforts.”
In our view, the minor states the rule governing the court’s exercise of discretion too narrowly. Section 790, subdivision (b) provides that the court may grant DEJ “upon a finding that the minor is also suitable for [DEJ] and would benefit from education, treatment, and rehabilitation efforts.” As we noted above, in exercising its discretion, the “court makes an independent determination” after considering the suitability factors specified in section 791, subdivision (b) and rule 5.800(d)(3), “with the exercise of [its] discretion based upon the standard of whether the minor will derive benefit from ‘education, treatment, and rehabilitation [efforts]’ rather than a more restrictive commitment.” (Martha C., supra, 108 Cal.App.4th at p. 562, citing In re Sergio R., supra, 106 Cal.App.4th at p. 607, italics omitted; § 790, subd. (b).) The suitability factors specified in section 791, subdivision (b), which are echoed in rule 5.800(d)(3), include “the [minor’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.” (§ 791, subd. (b).) The test is not simply whether the minor would benefit from education, treatment, and rehabilitation efforts, as the minor’s argument suggests. The court must consider all of the statutory factors that weigh into the suitability determination.
In Martha C., the appellate court held that the juvenile court had erred when it denied DEJ 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., supra, 108 Cal.App.4th at p. 562.) The court held that “[t]his was not an appropriate basis for denying DEJ since it had nothing to do with Martha’s potential for rehabilitation.” (Ibid.) The court stated that “a court might find that the circumstances of a crime indicate a minor is not amenable to rehabilitation [citation] and on that basis deny DEJ, ….” (Ibid.)
At the August 15, 2008 disposition hearing in this case, defense counsel objected to the probation officer’s use of the word “amenability” in her report. The court stated that “ ‘suitability’ and ‘amenability’ can be interchanged because, obviously, [the minor] isn’t listening to the words and taking any of this seriously.” The court observed that “the law hates useless act[s]” and stated “if I, in fact, grant deferred entry of judgment for 12 months, probably before Labor Day, at the rate [the minor] is going, he will be back and I will be terminating it. So at this point, I am not willing to and I don’t believe that the minor is suitable for deferred entry of judgment.” Based on these comments, we conclude the court understood and applied the correct standard.
Addressing the suitability factors, we also conclude the court did not abuse its discretion when it denied DEJ. First, the minor’s criminal history did not weigh in favor of DEJ. Although section 791, subdivision (b), does not expressly list a minor’s criminal history as a suitability factor, in our view, it falls under “other mitigating and aggravating factors.” The minor had multiple offenses and his criminal conduct was escalating. While he had two misdemeanor offenses in 2006 and one in 2007, he had committed six misdemeanor offenses and one felony in the first six months of 2008. He also had six probation violations during that time that were not charged as criminal offenses (testing positive for marijuana; associating with J.G.1, J.G. 2, or other probationers, including the incident with the stolen car and possessing a knife). Two of those violations occurred after the minor met with probation and while he was awaiting disposition.
Second, the minor’s educational background did not weigh in favor of granting DEJ. He was in an alternative school and had below average grades.
Third, his family relationships were not favorable for DEJ. Although the minor lived at home, his parents seemed unable to control his conduct. The minor was able to manipulate his father’s lack of education and lack of English-language skills (the probation officer reported that by using non-verbal cues the minor was able to persuade his father that it was not necessary for the probation officer to translate the probation report for him). The parents had not been successful at keeping the minor away from other probationers and shortly before disposition, the father reported that the minor had not been coming home. The minor’s father was evasive and uncooperative.
Fourth, the minor had not demonstrated any motivation to change his conduct. Although he told the probation officer he could stay away from his “probationer and gang friends” while on DEJ, he had not been able to do so while on non-wardship probation. During a critical time, while awaiting disposition and just before he was to begin an automotive training program that he claimed was important to him, he did not stay away from other probationers or stay out of trouble. He told the probation officer that he thought he “would be on probation for only six months and appeared frustrated to learn the [DEJ] would be for a minimum of one year.” All of this demonstrates a lack of motivation to comply with the requirements of his probation and stay on the right track.
On this record, we cannot say the court abused its discretion when it denied DEJ.
Disposition
The trial court’s disposition order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.