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In re Damian M.

May 27, 2010


APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed. (Super. Ct. No. J222843).

The opinion of the court was delivered by: Huffman, Acting P. J.


This case presents the question of whether the juvenile court judge erred in denying the request by the minor, Damian M., for deferred entry of judgment (DEJ) after his admission that he had possessed marijuana for sale in violation of Health and Safety Code section 11360, subdivision (a). We will find no abuse of discretion and affirm.


Damian was arrested at the San Diego border crossing from Mexico into the United States. A search of the car revealed 10.1 pounds of marijuana located in a hidden compartment in the gas tank.

Damian's explanation of the offense was that he needed money to assist his mother. He was put in touch with people involved in smuggling marijuana into the United States. He was instructed in the process of smuggling and after several practice trips, on May 14, 2009, he drove a car containing marijuana across the border, where he was arrested.

Damian admitted possessing marijuana for sale and requested DEJ. Although Damian was statutorily eligible for DEJ and the probation officer recommended granting the request, the juvenile court denied the request stating:

"Basically, I'll tell you what my concerns are . . . . It's that -- one, it's positive that it appears that Damian is about to graduate from high school, so I'd like to see that. However, I'm essentially just very concerned about the level of criminal sophistication that's involved in this offense; the fact that Damian would seek to ally himself with organized crime; and that we've got people who are smuggling drugs, in a sophisticated manner, into the country; and the fact that he had to take several preliminary steps in order to be involved in this offense. It's not just one day where they said, 'Here's a car. Drive this car across the border.' It's that he actually took the step of registering some type of a sham vehicle in his own name, in order to commit this offense. And he indicates that he had to meet with 'Cocaino,' on one or more occasions, in order to facilitate this crime. So, I realize that you may well feel to deny the motion because of the seriousness of the offense is not appropriate, but I'm not basing it simply on the seriousness of the offense. It's the steps that he took in order to commit this offense and the people that he was involved with in committing the crime. It's that level of criminal sophistication that, if not specifically demonstrated by Damian, it's the fact that he would hook up with individuals who are of that level of criminal sophistication."

Based on the denial of DEJ, the court placed Damian on formal probation noting that if Damian successfully completed probation the court would consider dismissing the petition under Welfare and Institutions Code*fn1 section 782. The grant of probation was based on several conditions, including condition number 9, which required Damian's parents to participate in Damian's school programs to the extent as may be required by the rules of Damian's school.

Damian appeals contending the trial court erroneously denied his request for DEJ and that probation condition number 9 denies him due process since it could subject him to sanctions based on the conduct of his parents. Our review of the record indicates the trial court acted well within its discretion in denying DEJ to this minor under the circumstances of the offense he committed and the criminal sophistication shown by his conduct. We are also satisfied that probation condition number 9 is a legitimate remedial measure designed to aid in preventing further delinquent behavior by the minor. Nothing in the language of the challenged condition puts Damian at risk of probation revocation, based solely on the conduct of others.


A. Denial of Deferred Entry of Judgment

Damian contends the juvenile court erred in denying his request for DEJ. He argues that he was statutorily eligible and that the probation officer also supported that request. Damian contends the trial court's stated reasons for denying his application were insufficient. We find no error in denying DEJ.

When the juvenile court denies a request for DEJ where the minor is statutorily eligible, we review the decision under the abuse of discretion standard. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607.) Where the minor is eligible for DEJ it is the responsibility of the trial court to independently review the factors specified in section 791, subdivision (b) and determine ...

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