Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JV31235A
ELIA, J.Steven B. admitted violating Penal Code section 288, subdivision (a), as alleged in a Welfare and Institutions Code section 602 petition. The court found him eligible and suitable for deferred entry of judgment (DEJ) (§ 790 et seq.) and granted a DEJ. When Steven's suitability for the DEJ program was being determined, the probation department, the deputy district attorney, and the court knew that criminal charges, arising from conduct allegedly occurring on a date not long after the filing of the section 602 petition, were pending against Steven.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
More than a year after being placed in the DEJ program, the court deemed Steven to have failed the DEJ program pursuant to section 793 because Steven had been convicted of a felony (Pen. Code, § 245, subd. (a)(1)) by plea. The court adjudged Steven to be a ward of the court, returned him to the custody of his parents on probation, and then terminated probation. A notice of appeal was filed.
Section 793, subdivision (a), provides in pertinent part: "If after accepting deferred entry of judgment and during the period in which deferred entry of judgment was granted, the minor is convicted of, or declared to be a person described in Section 602 for the commission of, any felony offense or of any two misdemeanor offenses committed on separate occasions, the judge shall enter judgment and schedule a dispositional hearing."
We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 . Counsel has not referred this court to any possible appellate issues. (Anders v. California (1967) 386 U.S. 738, 744 [87 S.Ct. 1396].) We advised appellant that he could submit any argument that he wanted us to consider and no argument has been received from appellant. We affirm.
A. Background
On March 21, 2006, a section 602 petition was filed against appellant who was then under the age of 18. It alleged appellant had committed a violation of Penal Code section 288, subdivision (a). Appellant was identified as eligible for the DEJ program. (See Welf. & Inst. Code, §§ 790 et seq., and Cal. Rules of Court, rule 5.800.) Appellant waived time and the jurisdictional hearing was continued to June 8, 2006.
The Probation Department's Suitability Report, filed June 8, 2006, indicated that appellant had been arrested on April 3, 2006 for conduct occurring earlier that day and criminal charges alleging violations of Penal Code sections 211/212.5 and 245, subdivision (a)(1), felonies, and a violation of Health and Safety Code section 11550, subdivision (a), a misdemeanor, had been filed in adult court on April 4, 2006. The report stated that the incident involved a 63-year-old male victim and defendant and a co-participant had allegedly pulled the victim out of his car, hit the man twice with a hammer, and demanded money. Steven had admitted to a probation officer that he had hit the victim on the left side of the head with his fist and had taken the victim's cell phone, keys, and $31 but he denied hitting the victim with a hammer. The report concluded that appellant was an unsuitable candidate for DEJ. On June 8, 2006, time continued to be waived and the hearing was continued to June 26, 2006.
By memoranda, the Probation Department continued to update the juvenile court on the adult court matters. A June 26, 2006 memorandum specified that two misdemeanor charges of violating Health and Safety Code section 11550, subdivision (a), rather than one count, were pending against appellant. An October 30, 2006 memorandum indicated that appellant had been convicted of one misdemeanor on April 5, 2006. Time continued to be waived.
During the December 6, 2006 hearing, there was a discussion regarding a DEJ. The deputy district attorney indicated that she expected the pending adult matter to result in a conviction. The court told her to disregard the adult matter since it had trailed so long. She told the court that she did not object to a DEJ as strenuously as she ordinarily would in a Penal Code section 288 case because the conduct underlying the section 602 petition was more like a Penal Code section 261.5 violation (unlawful sexual intercourse with minor under 18).
After an off the record discussion between the parties, the deputy district attorney announced that appellant was going to admit the petition and be placed on the electronic monitoring program (EMP) for approximately a month to see how he did. Appellant admitted the truth of the petition's allegation and signed and initialed a written waiver of his rights. The court found appellant came within the provisions and description of section 602. Appellant waived time for disposition; the court ordered an updated DEJ suitability report and continued the matter to January 10, 2007.
The updated suitability report dated January 10, 2007 found appellant suitable for the DEJ program because appellant had, since the December 6, 2006 hearing, attended sex offender treatment, participated in a drug treatment program, tested negative for drugs, and successfully completed a brief EMP. At the hearing on January 10, 2007, the court found appellant eligible and suitable for the DEJ program. An order deferring entry of judgment under section 790 and a DEJ Program Contract were filed that day. The DEJ Program Contract stated appellant's understanding that he could be returned for disposition if he became "involved in a new criminal offense." A progress review was set for April 16, 2007.
At the April 16, 2007 hearing, the court considered an updated Probation Officer's Parte Review Report. The report stated that a trial was scheduled for April 23, 2007 on appellant's pending adult case. The next hearing was set for September 10, 2007.
On September 10, 2007, the court considered an updated Probation Officer's Parte Review Report. The report stated that appellant had twice tested positive for drugs and that the trial on the pending criminal charges had been reset for September 24, 2007. The court expressed a "zero tolerance" for further positive drug tests. The next hearing was set for November 2, 2007.
At the November 2, 2007 hearing, the court considered an updated Probation Officer's Parte Review Report. The report stated that there had been no further positive drug tests and charges were still pending in adult court. The next hearing was set for December 10, 2007.
On December 10, 2007, the court considered an updated Probation Officer's Parte Review Report. The report and attached history indicated that appellant had pleaded nolo contendere to a violation of Penal Code section 245, subdivision (a)(1), a felony, and he had pleaded guilty to the second violation of Health and Safety Code, section 11550, subdivision (a), a misdemeanor, in adult court and he was no longer eligible to participate in the DEJ program. The report stated that appellant would "remain on Probation and supervised in Adult services" and it recommended that the court terminate the DEJ and dismiss the juvenile case. The next hearing was set for January 2, 2007 [sic].
In a written document filed December 31, 2007, appellant's trial counsel argued that termination from the DEJ program was not mandatory because section 793, subdivision (a), should be interpreted as requiring both the criminal conduct and the conviction to occur after the DEJ grant. Counsel further argued that, since the trial court and the deputy district attorney anticipated convictions in the adult case but, nevertheless, elected to proceed with a DEJ and appellant participated in the DEJ program, the government should be equitably estopped from terminating him from the program on the sole basis of his plea in adult court since the public policy of achieving rehabilitation would be "furthered, rather than nullified, by applying the doctrine of equitable estoppel." Lastly, counsel contended that appellant's plea in adult court should not constitute a felony conviction within the meaning of section 793 because he had not yet been sentenced.
The Probation Officer's Report dated January 2, 2008 indicated that section 793, subdivision (a), required appellant to be terminated from the DEJ program. It recommended that the court adjudge appellant a ward of the juvenile court and return him to his parents' custody on probation under the supervision of a probation officer. It recommended that the court order appellant to pay a $110 restitution fine and "pay to the General Fund a fine and Penalty Assessments totaling $125.00" based upon a finding that minor had the financial ability to pay. (§§ 730.5, 730.6.) The report also recommended that probation be dismissed. On January 2, 2008, the court continued the hearing until January 25, 2008.
On January 25, 2008, court deemed appellant to have failed the DEJ program. The court explained that it had given appellant a chance "knowing full well" of the pending adult matter and presuming him innocent but section 793, "by operation of law," had "knocked [appellant] out of Deferred Entry of Judgment . . . ." The court declared appellant a ward of the court and adopted the probation officer's recommended findings and orders regarding return to parental custody under the supervision of the probation officer and the payment of fines. Probation was terminated effective that day.
B. Wende Review
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issue.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.