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In re T.J.

June 28, 2010

IN RE T.J., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
T.J., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Troy L. Nunley, Judge. Affirmed. (Super. Ct. No. JV127189).

The opinion of the court was delivered by: Butz, J.

CERTIFIED FOR PUBLICATION

A juvenile wardship petition was filed alleging that T.J., age 15 (the minor), came within the provisions of Welfare and Institutions Code section 602*fn1 in that he committed three forcible lewd acts on a child under age 14. (Pen. Code, § 288, subd. (b)(1)--counts one through three.) The court found that the minor was not eligible for deferred entry of judgment (DEJ) because the alleged offenses are listed in section 707, subdivision (b). (Welf. & Inst. Code, §§ 707, subd. (b)(6), 790, subd. (a)(2).)

Following a contested jurisdictional hearing, the prosecution dismissed count three for insufficiency of evidence. On counts one and two, the juvenile court found that the element of force had not been proved but the lesser offense of lewd acts on a child (Pen. Code, § 288, subd. (a)) was proved beyond a reasonable doubt. The court proceeded to disposition and found that the minor now was eligible, but not suitable, for DEJ. The court adjudged the minor a ward of the court and ordered probation on various terms and conditions.

On appeal, the minor contends the juvenile court erred in denying him DEJ because (1) the court did not hold the suitability hearing required by California Rules of Court, rule 5.800;*fn2 and (2) the court did not, and could not, find that he would not benefit from the education, treatment, and rehabilitation available through the DEJ program. We shall affirm the juvenile court's jurisdictional findings and dispositional order.

FACTUAL BACKGROUND

Prosecution Case-in-Chief

The minor resides with his father. The minor's half brothers, five-year-old C.J. and eight-year-old J.J., reside with their mother and spend most weekends with the father.

One day in October 2007, C.J. and J.J. were babysat by their maternal grandmother. She noticed C.J. touching her puppy's vagina. When she asked him what he was doing, he started to cry. She next asked J.J. about the touching, but he did not want to say anything.

Eventually, J.J. told the grandmother that the minor had touched him with C.J. present. J.J. later confirmed to his mother that the minor was touching him in a bad way sexually.

J.J. testified that, while he was in a room with C.J. and the minor, the minor stuck his finger in J.J.'s butt. It hurt. Then the minor pulled down J.J.'s pants and put his penis in J.J.'s butt. This also hurt. J.J. went to the bathroom and wiped his wet bottom.

A Sacramento sheriff's deputy investigated the case and conducted two interviews of the minor. In the second interview, the minor stated that he may have accidentally inserted his finger into J.J.'s rear while they were wrestling.

Defense

The minor's mother testified that she did not see anything unusual between the ...


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