Opinion
A131079
11-03-2011
In re J.V ., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.V ., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. 36696J)
Defendant J.V., a minor, appeals the judgment entered by the juvenile court after he admitted two counts of felony battery resulting in the infliction of serious bodily injury, in violation of Penal Code section 243, subdivision (d). The minor contends the prosecutor and court erred by failing to consider him for the statutory deferred entry of judgment (DEJ) program (Welf. & Inst. Code, § 790, et seq.), and challenges the findings and orders of the juvenile court. As more fully explained below, the case must be remanded to the juvenile court to properly consider defendant for DEJ.
FACTS
The facts are drawn from the probation officer's report.
At about 3:30 p.m. on October 26, 2010, Petaluma police officers responded to reports of a fight in front of Petaluma High School. Police contacted several witnesses who all identified the minor and A.S. as the aggressors in the assault of the two victims. The witnesses reported that the minor and A.S. attacked the victims from behind. The minor and A.S. punched A.C. several times, threw him to the ground and began kicking him. A.C. did not move while being kicked. J.A. tried to intervene on A.C.'s behalf, and he too was punched, thrown to the ground and kicked by the minor and A.S. After the assault, A.C. was lying on the ground and appeared to be having a seizure. His face was covered in blood. J.A. appeared to be unconscious.
Subsequently, victim J.A. gave a statement to the probation department. He informed probation that A.C. was thrown to the ground and kicked in the head and face by the minor and A.S. While being kicked A.C. "looked like he was having a seizure." J.A. tried to intervene and the minor and A.S. threw him to the ground and began kicking him. J.A. lost consciousness during the kicking episode. A.C.'s family sought $10,000 in restitution for dental expenses arising from injuries sustained by A.C. in the attack.
The minor gave a statement to the probation officer in which he stated that the victim, A.C., harassed minor's girlfriend at school by calling her names. Just prior to the assault, A.C. made derogatory remarks to the minor and his girlfriend, and minor and A.C. fought. The minor stated he "didn't want to fight in front of my girlfriend," and sustained a black eye and swollen lip. On the day of the assault minor stated he attacked A.C. because A.C. was "probably laughing at me and I felt like I had to do something for what he did to me."
PROCEDURAL BACKGROUND
In November 2010, Sonoma County District Attorney (DA) filed a wardship petition pursuant to Welfare and Institutions Code section 602 alleging in counts I and II that the minor committed felony battery resulting in the infliction of serious bodily injury against victims A.C. and J.A., in violation of Penal Code section 243, subdivision (d). The petition also stated these offenses were serious felonies pursuant to Penal Code section 1192.7, subdivision (c). Further, the DA alleged in counts III and IV that the minor committed an assault with a deadly weapon, to wit, hands/feet, against the same two victims, in violation of Penal Code section 245, subdivision (a)(1). With respect to counts III and IV, the petition stated that the offenses were serious felonies pursuant to Penal Code section 1192.7, subdivision (c), as well as felonies within the meaning of section 707, subdivision (b) (section 707(b)).
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The DA also filed form JV-750, "Determination of Eligibility" for deferred entry of judgment (DEJ). On the form, the DA checked all the boxes showing the minor satisfied the requirements for DEJ, including box 1-c stating, "There is no allegation that the youth committed an offense described in [section 707(b)]." However, the DA did not check box 2-a, which states, "The youth is eligible." [for DEJ]: Rather, the DA checked box 2-b stating "The youth is ineligible." Additionally, the DA served the minor with form JV-751, "Citation and Written Notification for Deferred Entry of Judgment," stating, "The District Attorney has determined that this youth is eligible to be considered by the Juvenile Court for a Deferred Entry of Judgment on the offense or offenses alleged in the petition."
The form contains boxes 1(a) through 1(g), allowing the DA to check eligibility criteria for DEJ. Eligibility criteria for DEJ are set forth in section 790, subdivision (a).
The minor appeared at a detention hearing held on November 2, 2010. After reading the allegations in the petition, the court appointed counsel to represent the minor. Counsel accepted the appointment and stated, "There are a couple of things. There's a DEJ notice of ineligibility, . . . but it looks like box 1-C is checked, and it probably shouldn't be. That's what makes [the minor] ineligible for that particular program. [¶] We have a problem in that there's an immigration hold. So I'm not sure about that. I guess we'll find out about that later." At the conclusion of the hearing, the court urged "both sides to take a look at the Immigration and Customs Enforcement hold and see if that is valid." The court found that the minor's return home was contrary to his welfare, ordered him detained, and set a further hearing for November 9, 2010.
At the November 9, 2010 hearing, the minor denied the allegations in the petition. The court inquired about the status of the INS hold. The probation officer stated, "Your Honor, if I may. When INS lets our facility know that they have placed a hold on the minor, typically what happens is we inform INS of disposition after adjudication and then they have 48 hours to pick the minor up. So at this point it's just an active hold pending the outcome of these proceedings."
At a subsequent hearing, the minor's counsel informed the juvenile court that the parties had reached a plea agreement in which the minor intended to admit counts I and II in return for the DA's dismissal of counts III and IV. After the court advised the minor of his constitutional rights, the minor agreed to waive those rights and thereafter admitted the allegations in counts I and II. The court set disposition for December 9, 2010. DEJ was not discussed at the plea hearing.
The probation department prepared a report for the disposition hearing. The report noted the INS hold on the minor, adding, "INS will be notified by Juvenile Hall when the minor is available for pick up. At that time, that agency has 48 hours to pick the minor up. It is unknown to this department at this time whether the minor will be deported." The report recommended that the minor be declared a ward of court and serve "an additional 90-180 days in Juvenile Hall. The report also stated "It is believed that [the minor] should return to Court prior to ninety days so that his progress can be reviewed and at that point it can be decided if further incarceration is warranted prior to the start of his wardship. Immigration authorities will not be notified until the completion of the Juvenile Hall sentence."
A disposition hearing was held in December. At the outset of the hearing, the court questioned the probation officer's recommendation for additional "programming" in light of the minor's poor school performance, with 25 credits out of an attempted 116, his "getting booted out of school for fighting," and the fact the current offenses are not "an anomaly" but rather "a continuation of general lawlessness." The probation officer explained the minor might not be deported, or he might be offered voluntary deportation, therefore he possibly could "return to this community in some fashion." To improve the minor's chances of a successful return to the community, should it occur, probation recommended the minor] "get some programming, some access to the mental health counselors who have been working with him in juvenile hall." The probation officer also opined that it was not "the safest recommendation to just call immigration after wardship is declared and have him picked up in 48 hours, uncertain of where he'll end up or when he might return to this community." After inviting comment from counsel, the court emphasized the importance of community safety before announcing its disposition. The court declared the minor a ward of court, specified the conditions of his wardship, and added: "In addition to the time that you have served in juvenile hall, the Court is going to order that you be committed to the juvenile hall or any other penal institution for a period of 365 to 425 days, the exact time to be determined by the juvenile hall director. All proceedings will be dismissed unsuccessfully upon the completion of your detention time."
The minor filed a Notice of Appeal on January 31, 2011.
DISCUSSION
A. Deferred Entry of Judgment (DEJ)
A minor is eligible for DEJ if all of the following circumstances apply: (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).)
The determination of whether to grant DEJ requires consideration of "two distinct essential elements of the [DEJ] program," viz. "eligibility" and "suitability." (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10.) Once the threshold determination of eligibility is made, "The trial court . . . has the ultimate discretion to rule on the suitability of the minor for DEJ." (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123; § 790, subd. (b) [stating that the prosecuting attorney "shall review his or her file to determine whether or not" the minor satisfies the eligibility requirements: If the minor is eligible, the court, upon a finding that "the minor is also suitable," may grant DEJ].)
As our colleagues at the Court of Appeal, Division One noted in In re Luis B., the provisions under the California Rules of Court "for determination of eligibility under section 790 are quite clear." (In re Luis B., supra, 142 Cal.App.4th at p. 1122.) "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 subdivision (a) are met. If the prosecuting attorney's review reveals that the requirements of subdivision (a) have been met, the prosecuting attorney must file Determination of Eligibility-Deferred Entry of Judgment—Juvenile (form JV-750) with the petition." (Cal. Rules of Court, rule 5.800(b)(1).) Further, "If the court determines that the child is eligible and suitable for a deferred entry of judgment, and would derive benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment". (California Rules of Court, rule 5.800(b)(2) [italics added].) Whereas these provisions grant the juvenile court "ultimate discretion to rule on the suitability of the minor for DEJ[,] . . . the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make 'the final determination regarding education, treatment, and rehabilitation of the minor.' (§ 791, subd. (b) [other citations omitted].)" (In re Luis B., supra, 142 Cal.App.4th at p. 1123.)
The record does not establish that either the prosecutor or the juvenile court made a clear eligibility determination as required by section 790. Indeed, we cannot tell from the record whether the DA deemed the minor eligible or ineligible. The JV-750 form filed by the DA was contradictory — the DA checked all the boxes on the JV-750 form indicating the minor was eligible, then checked box 2-b stating the youth is ineligible. The DA's eligibility determination is further muddled by the fact that the DA served the minor with form JV-751, "Citation and Written Notification for Deferred Entry of Judgment," stating, "The District Attorney has determined that this youth is eligible to be considered by the Juvenile Court for a Deferred Entry of Judgment on the offense or offenses alleged in the petition." Accordingly, we conclude the prosecuting attorney did not satisfy the statutory requirement to determine whether the minor was eligible for DEJ.
Minor asks us to determine eligibility upon de novo review by finding as a matter of law that, as required under section 790, subdivision (a)(2), none of the offenses charged fall within section 707(b). However, because we remand on procedural grounds, we decline to make such a determination. Nor do we think the determination is ours to make in the first instance. Both section 790, subdivision (b), and California Rules of Court, rule 5.800 confer that mandatory duty upon the prosecuting attorney and the trial court. Moreover, because eligibility for DEJ is determined on the basis of the "offense charged" in the petition (§ 790, subd. (a)(2)), we decline the Attorney General's invitation, under authority of People v. Fountain (2000) 82 Cal.App.4th 61 (Fountain), to look behind the allegations of the petition and examine the conduct of the adjudicated offense in order to determine whether it falls within section 707(b) for purposes of DEJ.
Likewise, the court did not enter an eligibility determination either. (See California Rules of Court, rule 5.800(b)(2).) As noted above, it appears defense counsel inferred the DA checked box 1c on the JV-750 form in error, and on that basis assumed the prosecutor intended to declare minor ineligible. The Attorney General argued in her brief, and at oral argument, that the colloquy between defense counsel, the DA and the court reflects a "consensus" or "agreement" between the parties that the minor was ineligible. However, when the colloquy relied upon by the Attorney General is viewed in light of the entire record, we reject the Attorney General's argument that a "consensus" was reached regarding the minor's eligibility for DEJ. The initial eligibility determination falls squarely to the prosecuting attorney and thereafter the court, if it "determines that the child is eligible and suitable" (Cal. Rules of Court, rule 5.800(b)(2)) for DEJ, makes the "final determination regarding education, treatment, and rehabilitation of the minor." (§ 791, subd. (b).) Whereas the juvenile court "is not required to ultimately grant DEJ, [] is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made. (Citation.)" (In re Luis B., supra, 142 Cal.App.4th at p. 1123.) On this record, we are unable to conclude that a determination of the minor's eligibility was made in accord with the requirements of section 790. Accordingly, we remand for further proceedings consistent with this opinion to determine eligibility and suitability for DEJ.
B. Other Issues
The minor also asks that we remand this matter because the juvenile court failed to make a determination under section 702, which states, "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." Rather than reach the merits of this question, we respectfully request that, if the juvenile court reinstates the judgment upon remand (see Disposition, post), the court make an explicit section 702 determination at that time.
Also, the minor raises several challenges to the court's disposition order in this matter. First, the minor contends the juvenile court abused its discretion by prospectively declaring that the minor's wardship proceedings will terminate unsuccessfully. At oral argument, the Attorney General conceded the point and suggested we strike the declaration from the judgment. We concur. Accordingly, if the juvenile court reinstates the judgment upon remand, it shall strike the declaration regarding unsuccessful termination.
The minor also contends the juvenile court abused its discretion by setting his commitment term at 365-425 days based on his undocumented status and INS hold. This contention is meritless. The juvenile court stated that it was imposing 365 to 425 days out of a concern for community safety. We find no inconsistency between the court's disposition and the legislative purposes of juvenile court law, which include protecting the safety of the public and the minor; preserving and strengthening the minor's family ties when possible and when consistent with the minor's and the public's best interests; and holding minors accountable for their behavior. (§ 202, subds. (a), (b).) Accordingly, if the juvenile court reinstates the judgment upon remand, the commitment term stands as well.
Next, the minor contends the juvenile court acted outside the scope of its statutory authority and imposed an unauthorized sentence by ordering the minor committed to the juvenile hall "or any other penal institution." The minor asserts that under the juvenile court's order he could be detained at county jail, which is not an authorized juvenile disposition under section 202, subdivision (e). At oral argument, the Attorney General conceded this point and suggested we strike the reference to "penal institution" from the judgment. We agree that the judgment, as worded, leaves open the possibility that the minor could be detained at county jail during his wardship, which is not authorized by statute. (See In re Kenny A. (2000) 79 Cal.App.4th 1, 6 [dispositional order committing an 18-year-old to county jail is unauthorized by statute].) Accordingly, if the juvenile court reinstates the judgment upon remand, the court shall strike the reference to "penal institution" from the judgment, and is free to substitute any alternative authorized by statute.
Sanctions permissible at disposition are: "(1) Payment of a fine by the minor. (2) Rendering of compulsory service without compensation performed for the benefit of the community by the minor. (3) Limitations on the minor's liberty imposed as a condition of probation or parole. (4) Commitment of the minor to a local detention or treatment facility, such as a juvenile hall, camp, or ranch. (5) Commitment of the minor to the Division of Juvenile Facilities, Department of Corrections and Rehabilitation." (§ 202, subd. (e).)
Last, the minor contends the juvenile court failed to calculate his maximum term of confinement (MTC) and failed to award 42 days of predisposition confinement credit. On the first point, the juvenile court is not required to orally pronounce the minor's MTC — a written statement of that period suffices. (See In re Julian R. (2009) 47 Cal.4th 487, 492.) Here, the juvenile court made the probation officer's worksheet for determining the MTC part of its dispositional order. The worksheet shows a MTC of 60 months with credit for time served of 42 days. However, as the Attorney General acknowledges, the juvenile court erred in its oral pronouncement of judgment by imposing the term of detention in addition to the time served in juvenile hall. (See In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067 ["a minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. (Pen. Code, § 2900.5, subd. (a))"].) Thus, the minor should have received 42 days predisposition credits. Accordingly, if the juvenile court reinstates the judgment upon remand, the judgment should be modified to award the minor 42 days of predisposition custody credits.
DISPOSITION
We set aside the findings and dispositional orders, and remand the case to the juvenile court for further proceedings in compliance with sections 790 et seq., and California Rules of Court, rule 5.800. If, as a result of those proceedings, the juvenile court grants DEJ to defendant, it shall issue an order vacating the findings and orders. If the juvenile court denies DEJ to defendant, it shall make its order continuing in effect the judgment, modified consistent with this opinion, and subject to defendant's right to have the denial of DEJ reviewed on appeal. (See People v. Dyas (1979) 100 Cal.App.3d 464, 470.)
At oral argument, minor's appellate counsel did not renew her request that the matter be remanded to a different juvenile court judge for further proceedings. In all events, the request is denied.
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Jenkins, J.
We concur:
McGuiness, P. J.
Siggins, J.