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People v. Victor L. (In re Victor L.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 23, 2012
B229539 (Cal. Ct. App. Jan. 23, 2012)

Opinion

B229539

01-23-2012

In re VICTOR L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. VICTOR L., Defendant and Appellant.

Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YJ34450)

APPEAL from an order of the Superior Court of Los Angeles County, Wayne C. Denton, Court Commissioner. Affirmed in part; remanded with directions.

Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

Following contested jurisdictional hearings on three petitions under Welfare and Institutions Code section 602, the juvenile court declared appellant Victor L. a ward of the court and imposed probation. In this appeal from the jurisdictional findings and dispositional order, appellant contends that: (1) the findings and order must be vacated and the matter remanded to allow the juvenile court to consider his suitability for the statutory deferred entry of judgment program (§ 790 et seq.) (DEJ); and in any event, (2) the matter must be remanded in order to allow the juvenile court to determine whether the relevant offenses constituted misdemeanors or felonies and to recalculate the maximum term of confinement. We agree with the latter contention and remand for further proceedings.

Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.

BACKGROUND

Three juvenile petitions alleging felony offenses were filed under a single case number on May 11 (first petition), May 27 (second petition), and June 29, 2010 (third petition). Appellant contends, and the Attorney General agrees, that when all three petitions were filed, he was eligible for the DEJ program.

In order to be eligible for the DEJ program, all of the following must apply: "(1) The child is 14 years or older at the time of the hearing on the application for deferred entry of judgment; [¶] (2) The offense alleged is not listed in section 707(b); [¶] (3) The child has not been previously declared a ward of the court based on the commission of a felony offense; [¶] (4) The child has not been previously committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice; (5) If the child is presently or was previously a ward of the court, probation has not been revoked before completion; and [¶] (6) The child meets the eligibility standards stated in Penal Code section 1203.06" for probation. (Rule 5.800(a).)

Before the prosecution may file a juvenile petition that alleges a felony offense, the prosecuting attorney must determine whether the minor is eligible for the DEJ program. (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.) "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](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)(1).) If the requirements of rule 5.800(a) have not been met, the prosecuting attorney must file a JV-750 form indicating that the minor is ineligible for DEJ. (Rule 5.800(e).)

Before the juvenile court will consider whether an eligible minor is suitable for the DEJ program, the minor must admit all of the offenses alleged in the petition in lieu of jurisdictional and dispositional hearings. As the court explained in In re Luis B., supra, 142 Cal.App.4th 1117, "'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. (§§ 791, subd. (a)(3), 793, subd. (c).)' (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)" (Luis B., supra, at pp. 1121-1122.)

Not all minors who are eligible for DEJ are deemed suitable for DEJ by the juvenile court. The program is intended only for those minors who will benefit from "'a non-custodial opportunity to demonstrate through good conduct and compliance with a court-monitored treatment and supervision program that the record of the juvenile's offense should justly be expunged.' (Italics added.)" (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 561.)

In this case, the JV-750 form that accompanied the first petition correctly informed appellant that he was eligible for DEJ. However, the subsequent JV-750 forms that accompanied the second and third petitions erroneously stated that he was not eligible for DEJ.

In any event, before the erroneous JV-750 forms were served and filed, appellant was correctly informed of his eligibility for DEJ prior to the May 11, 2010 arraignment hearing on the first petition. Instead of requesting DEJ at the May 11 hearing, appellant denied the allegations of the first petition, which was tantamount to a rejection of DEJ. (See In re Kenneth J. (2008) 158 Cal.App.4th 973, 979-980 [denial of petition's allegations by a minor who had received notice of his eligibility for DEJ was tantamount to a rejection of DEJ]; In re Usef S. (2008) 160 Cal.App.4th 276, 286 [juvenile court did not err in failing to determine "appellant's suitability for DEJ once it became clear appellant was not admitting the allegations against him, but rather was insisting on contesting them at a jurisdictional hearing"].)

Appellant was then served with the second and third petitions, which were accompanied by JV-750 forms that erroneously stated he was not eligible for the DEJ program. At the May 28 and June 29, 2010 arraignments on the second and third petitions, appellant denied the allegations of both petitions without mentioning the discrepancy in the JV-750 forms or expressing any interest in the DEJ program.

On July 22, 2010, the second and third petitions were adjudicated by the Los Angeles County Superior Court in Compton (Judge Charles R. Scarlett). As to the second petition, the juvenile court found count 1 to be true (minor in possession of a firearm), but did not find count 2 to be true (minor in possession of live ammunition). (Pen. Code, § 12101, subds. (a)(1), (b)(1).) As to the third petition, pursuant to the parties' stipulation, the juvenile court found count 1 to be true (unlawful taking and driving of a vehicle), and dismissed count 2 (evading an officer). (Veh. Code, §§ 10851, subd. (a), 2800.2, subd. (a).)

On October 19, 2010, the first petition was adjudicated by the Los Angeles County Superior Court in Inglewood (Commissioner Wayne C. Denton). The juvenile court found count 1 to be true (graffiti vandalism committed for the benefit of a criminal street gang). (Pen. Code, §§ 594, subd. (a), 186.22, subd. (d).)

The juvenile court then turned to the disposition of all three petitions. At the October 19 hearing, the court declared appellant a ward of the court and found that removing him from parental custody would be in his best interest. After placing appellant on formal probation, the court imposed a camp community placement for the midterm of six months. The court fixed the maximum term of confinement at six years and 10 months.

Appellant timely appealed from the October 19, 2010 dispositional order and all jurisdictional findings.

DISCUSSION

I. After Receiving Proper Notice of His DEJ Eligibility and Proceeding to Jurisdictional and Dispositional Hearings as to the First Petition, Appellant No Longer Has the Option of Requesting DEJ

Appellant requests that we set aside the jurisdictional findings and dispositional order to allow the juvenile court on remand to consider his suitability for DEJ. He argues that because the JV-750 forms that accompanied the second and third petitions erroneously indicated that he was ineligible for DEJ, he is entitled to a postjurisdictional hearing on his suitability for DEJ. We conclude that a remand would be futile because, after receiving proper notice of his DEJ eligibility and proceeding to jurisdictional and dispositional hearings as to the first petition, appellant no longer has the option of requesting DEJ.

As to the first petition, appellant was properly served with a JV-750 form that correctly apprised him of his eligibility for DEJ. Accordingly, as to the first petition, appellant had a full and fair opportunity to request DEJ in lieu of jurisdictional and dispositional hearings. He elected, however, to deny the allegations of the first petition, which was tantamount to a rejection of DEJ. (In re Kenneth J., supra, 158 Cal.App.4th at pp. 979-980.) Once appellant rejected DEJ, the juvenile court had no obligation to conduct a hearing concerning his suitability for DEJ.

In re Kenneth J., supra, 158 Cal.App.4th 973, involved a fairly similar situation. In that case, after the minor (Kenneth) received notice of his eligibility for DEJ, he denied the allegations of the petition and proceeded with a jurisdictional hearing. The juvenile court sustained the allegations and entered a dispositional order declaring Kenneth a ward and placing him on probation. In his appeal from the dispositional order, Kenneth contended that the juvenile court had erred in failing to hold a hearing to determine his suitability for DEJ. In rejecting Kenneth's contention, the court stated:

"Kenneth's approach erroneously assumes that a juvenile court can start the DEJ process in the teeth of the minor's opposition—in effect, that the DEJ procedure can be forced on an unwilling minor. That is clearly illogical, as there is nothing in the statutory language of section 791 or California Rules of Court, rule 5.800 which suggests that a minor can be compelled to accept DEJ. Or to put it conversely, the language in the statute and rule 5.800 requires some measure of consent.

"It is perhaps true the DEJ statutes make no express provision for a minor in Kenneth's position, one who is advised of his DEJ eligibility, who does not admit the charges in the petition or waive a jurisdictional hearing, and who does not show the least interest in probation, but who insists on a jurisdictional hearing in order to contest the charges. But the DEJ is clearly intended to provide an expedited mechanism for channeling certain first-time offenders away from the full panoply of a contested delinquency proceeding. That goal could not coexist with a minor who insists on exercising every procedural protection offered, and who then on appeal faults the juvenile court for not intervening and short circuiting those very protections. This would place a juvenile court in an impossible 'Heads he wins, tails I lose' situation—not to mention apparently compelling a juvenile court to hold a hearing to consider DEJ for a minor who evinces no interest whatsoever in that option. We decline to adopt such a mischievous, if not self-defeating, construction." (In re Kenneth J., supra, 158 Cal.App.4th at pp. 979-980.)

Similarly, the court in In re Usef S. found that "the juvenile court committed no error in failing to hold a hearing to determine appellant's suitability for DEJ once it became clear appellant was not admitting the allegations against him, but rather was insisting on contesting them at a jurisdictional hearing." (In re Usef S., supra, 160 Cal.App.4th at p. 286.) "While the prosecutor indeed satisfied his initial duty to determine whether appellant was eligible for DEJ, appellant thereafter effectively rejected DEJ consideration when he denied the allegations against him and insisted on a contested jurisdictional hearing. As such, as explained above, any duty the juvenile court may have had to determine whether appellant was suitable for DEJ was excused." (Id. at p. 286, fn. 3.)

Although the erroneous JV-750 forms that accompanied the second and third petitions serve to distinguish this case from Kenneth J. and Usef S., the erroneous forms were preceded by an earlier JV-750 form that correctly informed appellant of his eligibility for the DEJ program. Because the arraignment on the first petition was held before the erroneous forms were served and filed, the erroneous forms played no part in appellant's decision to deny the petition's allegations at the first arraignment hearing.

We therefore believe the erroneous JV-750 forms were not unduly prejudicial and do not require us to diverge from the rule that "[a] minor is not entitled to DEJ where he or she does not '"admit the allegations" of the section 602 petition . . . "'in lieu of jurisdictional and dispositional hearings.'"'" (In re Joshua S. (2011) 192 Cal.App.4th 670, 680.) "'If the minor elects to contest some allegations but not others, or to contest an element of an allegation but not others, the statutory scheme does not entitle the minor to DEJ. Similarly, if the minor proceeds to a jurisdictional hearing where the court finds that an element of an allegation was not proven, the scheme does not entitle him to DEJ "in lieu of the hearing that was just conducted.' (In re T.J. [(2010)] 185 Cal.App.4th [1504,] 1511.)" (In re Joshua S., supra, at p. 680.)

As Joshua S. points out, a minor who wishes to be considered for DEJ is not allowed to pick and choose the allegations of the petition to admit or deny. The minor must admit all of the allegations in order to be considered for the DEJ program. (In re Joshua S., supra, 192 Cal.App.4th at p. 680.) In our view, the same holds true where, as here, a minor is charged in the same case with several petitions that result in a single dispositional order. When multiple allegations are filed in the same case, whether by one petition or three, a minor who wishes to be considered for DEJ must admit all of the allegations in lieu of contested jurisdictional and dispositional hearings. Given appellant's initial receipt of notice of eligibility for DEJ, DEJ was not an option unless he admitted the allegations of all three petitions. Setting aside the jurisdictional findings and dispositional order to conduct a postjurisdictional hearing on appellant's suitability for DEJ would be incompatible with the statutory purpose, which is to "provide an expedited mechanism for channeling certain first-time offenders away from the full panoply of a contested delinquency proceeding." (In re Kenneth J., supra, 158 Cal.App.4th at p. 980.) In this case, the juvenile court has already conducted contested hearings and determined that a custodial placement would be in appellant's best interest. There is little likelihood that on remand, the court would suddenly reverse the custodial placement order to provide "' a non-custodial opportunity to demonstrate through good conduct and compliance with a court-monitored treatment and supervision program that the record of the juvenile's offense should justly be expunged.' (Italics added.)" (Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 561.)

Given that appellant received proper notice of his eligibility for the DEJ program prior to his arraignment on the first petition, he must bear some responsibility for not pursuing that option in a timely manner. Even though the second and third petitions were accompanied by JV-750 forms erroneously stating he was ineligible for DEJ, in order to preserve the issue for appellate review, appellant was required to raise the discrepancy concerning the JV-750 forms at the arraignments or request consideration for the program prior to the jurisdictional hearings.

II. Appellant Is Entitled to Clarification of the Jurisdictional Findings and Maximum Term of Confinement

We agree with appellant's contention that the matter must be remanded to allow the juvenile court to determine whether the relevant offenses were misdemeanors or felonies, and to recalculate the maximum term of confinement.

In each petition, appellant was charged with a felony offense that is punishable as either a misdemeanor or a felony. Under section 702, the juvenile court must state whether a so-called "wobbler" offense is a misdemeanor or a felony: "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." This requirement is obligatory and the "failure to make the mandatory express declaration requires remand of this matter for strict compliance with Welfare and Institutions Code section 702." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)

A. Count 1 of the First Petition

In count 1 of the first petition, appellant was charged with graffiti vandalism committed for the benefit of a criminal street gang. (Pen. Code, §§ 594, subd. (a), 186.22, subd. (d).) Although graffiti vandalism is a misdemeanor, it was charged as a gang-related felony under Penal Code section 186.22, subdivision (d) (section 186.22(d)).

We note that section 186.22(d) is not a sentence enhancement: "By definition, a sentence enhancement is 'an additional term of imprisonment added to the base term.' (Cal. Rules of Court, rule 4.405(c); People v. Jefferson (1999) 21 Cal.4th 86, 101 . . . .) Section 186.22(d) is not a sentence enhancement because it does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang. Neither is it a substantive offense because it does not define or set forth elements of a new crime. (See, e.g., People v. Bright (1996) 12 Cal.4th 652, 661 . . . .)" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898899.)

Section 186.22(d) is a so-called "wobbler" because it alternatively provides for "imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years." As appellant correctly points out, the juvenile court found the section 186.22(d) allegation in the first petition to be true without stating whether the offense was a misdemeanor or a felony. Accordingly, the matter must be remanded in order to allow the juvenile court to make that determination.

B. Count 1 of the Second Petition

The juvenile court sustained only count 1 of the second petition, minor in possession of a firearm. (Pen. Code, § 12101, subd. (a)(1).) Although that offense is punishable either as a misdemeanor or a felony (In re Jose T. (1997) 58 Cal.App.4th 1218), both parties agree that the juvenile court failed to state whether the offense constituted a misdemeanor or a felony. Accordingly, the matter must be remanded in order to allow the juvenile court to make that determination.

C. Count 1 of the Third Petition

Pursuant to a settlement agreement, the juvenile court sustained count 1 of the third petition, unlawful taking and driving of a vehicle. (Veh. Code, § 10851, subd. (a).) That offense, which is punishable as either a misdemeanor or a felony (ibid.), was charged as a felony, and the juvenile court repeatedly informed appellant prior to accepting the settlement agreement that he was admitting to a felony with a maximum term of confinement of three years.

Appellant argues on appeal that the matter should be remanded for the juvenile court to exercise its discretion to declare the offense a misdemeanor or a felony. The Attorney General argues that a remand is not necessary because the record clearly shows that the court was aware of, and exercised, its discretion to designate the offense as a felony.

Significantly, the Attorney General does not contend that the settlement agreement contained a stipulation that the offense be declared a felony rather than a misdemeanor. It thus appears that the juvenile court was required to exercise its discretion on that point notwithstanding the settlement agreement. As the record does not allow us to infer that the court was aware that the offense is punishable as either a misdemeanor or a felony, the trial court's statement that the offense constituted a felony is ambiguous. We thus conclude that the matter must be remanded in order to allow the juvenile court to exercise its discretion.

D. Maximum Term of Confinement

Appellant contends that even if all three offenses are deemed to be felonies, the juvenile court's calculation of the maximum term of confinement at six years and 10 months was incorrect. Although the parties disagree on the sentencing choices that are available under section 186.22(d), they concur that, assuming all three offenses are deemed to be felonies, the maximum term of confinement is four years and four months. We direct the court on remand to recalculate the maximum term of confinement.

As previously discussed, section 186.22(d) is not a sentence enhancement "because it does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang. Neither is it a substantive offense because it does not define or set forth elements of a new crime. (See, e.g., People v. Bright (1996) 12 Cal.4th 652, 661 . . . .)" (Robert L. v. Superior Court, supra, 30 Cal.4th at p. 899.) If the trial court determines that the offense is punishable as a felony rather than a misdemeanor, the maximum punishment under section 186.22(d) is three years.
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DISPOSITION

The matter is remanded with directions to determine whether the relevant offenses are misdemeanors or felonies, and to recalculate the maximum term of confinement. In all other respects, the jurisdictional findings and dispositional order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.


Summaries of

People v. Victor L. (In re Victor L.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 23, 2012
B229539 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Victor L. (In re Victor L.)

Case Details

Full title:In re VICTOR L., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 23, 2012

Citations

B229539 (Cal. Ct. App. Jan. 23, 2012)