Opinion
A118529
4-21-2008
In re ZACHARY M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ZACHARY M., Defendant and Appellant.
NOT TO BE PUBLISHED
Zachary M. burglarized a friends home and stole her purse and car. After he admitted a charge of receiving stolen property, the court placed him on probation under intensive supervision. Zachary appeals the courts denial of deferred entry of judgment. We affirm.
BACKGROUND
On May 15, 2007, the victim reported the burglary of her home and theft of her car. Zachary M. (born 1990) was identified as a suspect. She had met Zachary through her son and had told him he could sleep over at her house if he needed a place to stay. Zachary stopped by the morning of May 14, but the victim did not give him permission to return that night or to take her purse or car. Zachary was later identified in a bank surveillance video attempting to use the victims ATM card. When confronted with the surveillance video, Zachary admitted attempting to use the victims ATM card, but denied stealing the cards or the victims car and said he had received the cards from someone else.
The district attorney filed a Welfare and Institutions Code section 602 petition charging Zachary with burglary (Pen. Code, § 459; count 1); vehicle theft (Veh. Code, § 10851, subd. (a); count 2); receiving stolen property (Pen. Code, § 496, subd. (a); count 3); and unlawfully obtaining and using personal identification information (Pen. Code, § 530.5, subd. (a); count 4). The district attorney concurrently filed a determination that Zachary was eligible for deferred entry of judgment under the criteria set forth in section 790 and gave notification of this eligibility to Zacharys parents. Meanwhile, Zachary was detained in juvenile hall.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Zachary subsequently admitted the felony offense of receiving stolen property and the other counts were dismissed subject to a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
In the probation departments report to the juvenile court, it was reported that Zachary readily admitted during an interview that he entered the victims residence while she was sleeping and took her money, keys, purse and car. According to Zachary, he knew the victim because he sold her marijuana and he stole from her because he was starving. He expressed remorse. Zachary acknowledged regular heavy use of hard alcohol, which he usually stole, and daily use of marijuana. He had also experimented with cocaine, LSD and psilocybin mushrooms. He acknowledged a mental addiction to drugs and alcohol that could land him in prison or endanger his life due to a defective heart condition. Zachary had attended Hanna Boys Center for about a year and thought returning to the program would provide him with the structure and support he needed to get his life back on track.
Zacharys only other known involvement with law enforcement occurred in September 2005, when he was cited for buying a dollars worth of marijuana. (Health & Saf. Code, § 11357, subd. (b).) His parents told probation that he was placed in a diversion program for this offense and even though he did not comply with the programs requirements the case was ultimately dismissed.
Zacharys adoptive parents advised probation that he had been severely abused as a young child by his biological parents, who had long-term substance abuse problems. He came to live with his adoptive parents at the age of seven. They described him as a very intelligent and sweet child whose weakness was a lack of integrity: he tended to be dishonest and manipulative and he had a long history of running away from home. They said he would do what an adult asked if the adult was right in front of him, but otherwise would do whatever was easiest. Zachary was said to have passive-aggressive tendencies and would benefit from anger management counseling. The parents confirmed his substance abuse and said he was expelled from Hanna Boys Center for possessing marijuana. Since that time, one of the parents had been with him "24/7" but he still managed to run away. Regarding the sustained charge, the parents commented that " `the charge that stuck was the one he couldnt get out of. " They said Zachary needed a safe environment outside of their home and they endorsed his return to Hanna Boys Center.
The probation department agreed it would be in Zacharys best interest to reenroll in Hanna Boys Center if he was ready and willing to take advantage of the program. On the departments recommendation, the court twice continued the disposition while Zachary and his parents pursued reenrollment in the program. In mid-July 2007, Hanna Boys Center decided not to reenroll Zachary because he appeared to lack a genuine willingness to address his substance abuse issues. They said Zachary needed to participate in a residential treatment program and complete 90 meetings in 90 days before they would consider reenrolling him. They expected he would need intensive guidance for the next few years.
The probation department "with some hesitation" recommended Zachary be returned home on intensive supervision. Zachary was not a good candidate for the deferred entry of judgment program, the department wrote, "because if he begins using again, this department believes he should be taken into custody immediately to prevent his substance abuse from escalating any further. It was also noted that if the minor should relapse, placement in a residential treatment facility would probably be the necessary next step." The department acknowledged that Zacharys parents questioned whether he would be able to stay sober at home. Although the department shared this concern, "Ultimately, it was felt that after spending 62 days in Juvenile Hall, the minor should have a chance to work on maintaining his sobriety through resources in the community rather than ordering him immediately into placement. It was noted, however, that an order for placement in a residential treatment program would be the likely outcome if he is unsuccessful at home. Given his level of risk for relapse, it was also felt that the minor is not an appropriate candidate for [deferred entry of judgment] since his treatment needs appear to exceed the scope of the program." The department recommended the court declare Zachary a ward of the court on intensive supervision in his parents home.
At the July 19, 2007 dispositional hearing, Zacharys attorney asked that he be granted deferred entry of judgment "under intensive supervision." "It seems probation was leaning towards [deferred entry of judgment] until Hanna Boys Center would not take him back. It seems that turned their position. [¶] . . . We want to give him an incentive to stay clean and get out of trouble with [deferred entry of judgment] but also have him under intensive supervision, as probation said that he does need the extra care." The prosecutor argued deferred entry of judgment was not appropriate. "[T]he nature of potential drug addiction spawning that kind of behavior is going to require a very intensive probationary period, so I think the wardship would serve him better in the long run." First pointing out that the statutory preference was to place people on deferred entry of judgment if they were eligible, defense counsel argued probation could supervise minors on deferred entry of judgment and the court could provide a very short leash so if there was a violation a section 793 petition could be filed quickly and deferred entry of judgment terminated. The probation officer responded, "I just want to make it very clear that a program of deferred entry of judgment is not a program of intensive supervision. . . . The issue for us is that should he be released from custody[] . . . and relapse, deferred entry of judgment does not provide us the same course of action that we would have[] would he be a ward of the court."
The court found Zachary was not suitable for deferred entry of judgment "because I want to ramp up the level of supervision." It declared Zachary a ward of the court and placed him in his parents home on probation, with conditions that included drug testing, attendance at three or more 12-step meetings a week, a warrantless search condition, community service, and a 9:00 p.m. curfew. Initially, he would be on community detention in juvenile hall for 30 to 45 days, which permitted him to attend school, counseling and medical appointments, and 12-step meetings, and perform his community service. He was ordered to participate in a local substance abuse treatment program. The court also expressly placed him on "intensive supervision." Zachary was advised that failure to comply with the orders would result in his being sent back to juvenile hall.
DISCUSSION
Zachary contends the juvenile court abused its discretion by denying him deferred entry of judgment because it based its decision on the mistaken belief that it would not be able to impose conditions related to substance abuse treatment if it granted him deferred entry of judgment.
The deferred entry of judgment program is designed to " `require[] first time, non-violent juvenile felons to appear in court, admit guilt for their offenses, and be held accountable, but also given a non-custodial opportunity to demonstrate through good conduct and compliance with a court-monitored treatment and supervision program that the record of the juveniles offense should justly be expunged. " (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 561, italics omitted, quoting Proposition 21, Findings and Declarations, subd. (j).)
In lieu of jurisdictional and dispositional hearings, a minor granted deferred entry of judgment admits the allegations in the section 602 petition and waives time for pronouncement of judgment. (§ 791, subds. (a)(3), (b).) The court then imposes conditions of probation and defers entry of judgment for a period of between 12 and 36 months. (§§ 790, subd. (b); 791, subd. (a)(3); 794.) If the minor successfully completes that period, the petition is dismissed, the arrest is deemed never to have occurred, and the record is sealed for most purposes. (§ 793, subd. (c).) If the court finds the minor is not performing satisfactorily in an assigned program, is not complying with the conditions of probation, or is not benefiting from education, treatment, or rehabilitation in the program, the court enters judgment finding the minor is a ward of the court for the offenses specified in the petition and schedules a dispositional hearing. (§§ 791, subd. (a)(4), 793, subd. (a); Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2008) § 3.93[2][f], pp. 3-130-3-131.) The deferred entry of judgment program is administered by the county probation officer or designee, who is "responsible for developing, supervising, and monitoring treatment programs and otherwise overseeing the placement and supervision of minors granted probation pursuant to the provisions of this chapter." (§ 795.)
Minors are eligible for deferred entry of judgment if they meet six criteria set forth in section 790, subdivision (a). It is undisputed that Zachary satisfied these criteria. Once the minors eligibility is established, the court either summarily grants deferred entry of judgment or refers the case to the probation department for a report on the minors suitability for the program. (§ 791, subd. (b).) The probation department must investigate and take into consideration "the defendants 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." (§ 791, subd. (b).) After reviewing the probation departments report, the court makes the final determination whether the minor would benefit from education, treatment, and rehabilitation in the program. (§ 791, subd. (b).) If it so finds, it may grant deferred entry of judgment. (§ 790, subd. (b).) The decision is committed to the discretion of the court. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607.) One court of appeal has held that the court may deny deferred entry of judgment to an eligible minor only if it determines the minor would not benefit from the education, treatment, or rehabilitation available through the program. (Martha C. v. Superior Court, supra, 108 Cal.App.4th at pp. 560-561; see also In re Sergio R., at p. 607 & fn. 10.)
Zachary claims he was denied deferred entry of judgment because the juvenile court mistakenly believed it could not have then imposed substance abuse treatment conditions such as attending three 12-step meetings each week and participating in local substance abuse treatment. Zachary correctly notes that substance abuse treatment conditions could have been imposed even if the court granted deferred entry of judgment. Section 794 authorizes the court to impose any term of probation provided for in the Welfare and Institutions Code, and which the judge believes would assist in the education, treatment, and rehabilitation of the minor and the prevention of criminal activity. (§ 794.)
The record does not support Zacharys contention that the court denied deferred entry of judgment on this ground. Rather, the court denied deferred entry of judgment because it did not believe it could place Zachary under intensive supervision in the program. The court expressly said it was denying the program because it wanted to ramp up the level of supervision over Zachary. The probation officer had reported that the deferred entry of judgment program was not an intensive supervision program and that the probation department would not have the same recourse in the event of a relapse (or, presumably, any other violation of probation conditions) as it would have if Zachary were declared a ward. Zachary was placed on "intensive supervision" by probation and ordered to serve 30 to 45 days in juvenile hall on community detention.
The courts understanding that it could not place Zachary on the same type of intensive supervision in the deferred entry of judgment program as it could on regular probation is supported by the record and the statutory scheme. First, because deferred entry of judgment is a noncustodial program, Zachary could not have been ordered to serve any community detention in juvenile hall as a condition of his participation in the program. A minor who is not adjudged a ward of the court cannot be removed from his parents custody or placed in physical confinement, including juvenile hall. (§§ 726, 730; Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2008) § 3.93[3], p. 3-131.) Second, as the probation officer explained, if Zachary relapsed he could not be taken back into custody as easily as if he were a ward of the court. Under section 625, a ward may be taken into custody if a law enforcement officer has reasonable cause to believe he violated an order of the juvenile court, but other minors can only be taken into custody if the officer has reasonable cause to believe there are new grounds for wardship or in cases of medical need. (§§ 625, 777, subd. (d).) Finally, the court reasonably could take into consideration the realities of how the various programs—deferred entry of judgment, unsupervised probation, supervised probation, and probation on "intense supervision"—were actually administered by the local probation department. The probation officer frankly informed the court that deferred entry of judgment in that county did not involve intensive supervision. That the program theoretically could involve intensive supervision under the statutes does not prevent the court from considering the reality of what Zachary would actually experience if he were placed in the program in Sonoma County.
Moreover, there was ample evidence that Zachary needed intensive supervision. The program staff at Hanna Boys Center, where he resided for about a year, expressed the opinion that he would need intensive supervision for a few years. Zacharys parents told the probation department they could not trust Zachary and that they could not keep him under control even while attempting to supervise him 24 hours a day, 7 days a week. Zachary himself told the probation department he needed structure to pull his life together. The record also shows Zachary had many sources of stress that threatened his ability to remain sober and stay out of trouble: his history of severe child abuse, his history of daily drug abuse and severe alcohol abuse, and his emotional immaturity (dishonesty, manipulation, passive-aggressive behavior, and inability to convincingly demonstrate a commitment to recovery). On these facts, the court quite reasonably found Zachary in need of intensive supervision.
In sum, the trial court appropriately exercised its discretion to deny deferred entry of judgment because Zachary would not benefit from the education, treatment, and rehabilitation available through the program, which did not offer the intensive supervision he needed.
DISPOSITION
The July 19, 2007 dispositional order is affirmed.
We concur.
JONES, P.J.
SIMONS, J.