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In Re C.G., A Person Coming Under the Juvenile Court Law. v. C.G

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


December 7, 2010

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

Super. Ct. No. JJD063882; JV119100

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

In re C.G. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The sole issue in this appeal is whether minor C.G. was statutorily eligible for deferred entry of judgment (DEJ). The probation department and the juvenile court correctly concluded that he was not. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2009 the minor stole two bottles of alcohol from a store in Tulare County. He fled on foot from pursuing officers. In an attempt to detain the minor, an officer was injured and required medical attention.

In May 2009 the Tulare County District Attorney filed a petition alleging that the 17-year-old minor came within the provisions of Welfare and Institutions Code section 602*fn1 in that he committed second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The district attorney also filed a determination of eligibility for DEJ (form JV-750), which indicated it was "unknown" whether the minor had "previously been declared a ward of the court based on a finding that the minor committed a felony" and "unknown" whether the minor had a probation history. A handwritten notation at the bottom of the form indicated that the "[minor] is from Sacramento and has had an adjudication for PC 422--unknown if charge was a felony or mis[demeanor]."

Following the determination of eligibility form is another form, "Explanation of Deferred Entry of Judgment--Welfare and Institutions Code Section [sic] 790-795." Under the heading "Role of Prosecuting Attorney," the form indicates that a minor is ineligible for DEJ if "[t]he minor's record indicates that Probation has been revoked without thereafter being completed."

At a contested jurisdiction hearing in May 2009 the juvenile court found beyond a reasonable doubt that the petition's allegations were true. Because the minor resided in Sacramento County, the case was transferred there for disposition.

In June 2009 the Sacramento County Probation Department filed a social study report indicating that the minor was not eligible for DEJ because he had violated probation in May 2005. (§ 790, subd. (a)(4).)

The report shows that in February 2005 the minor appeared in court on a charge of misdemeanor battery on school grounds. The minor admitted the allegation and was placed on informal probation pursuant to section 654.2 with 60 days of home supervision.

The report shows that in April 2005 the minor appeared in court on a subsequent petition alleging misdemeanor unlawful possession of ammunition. The minor admitted the allegation; the previous charge of battery on school property, which had been held in abeyance pursuant to section 654.2, was found true. This time, the minor was placed on six months' court probation pursuant to section 725, subdivision (a).

The report shows that two weeks later a petition was filed alleging that the minor had violated his probation by being absent from school, being suspended from school for fighting, and by leaving home without permission. The minor admitted that he had been suspended for fighting. In May 2005 he was adjudged a ward and was committed to the youth center. From the probation report's comment that the minor had been supervised on probation for "52 months," the minor deduces that he was placed on formal probation at this time.

At an uncontested disposition hearing in June 2009 the Sacramento County Juvenile Court expressly found that the minor was "not eligible for DEJ." He was continued as a ward, committed to the juvenile hall for a period deemed to have been served, and committed to the custody of the probation department for suitable placement. Twelve days after the hearing, the minor was placed at a group home in Fresno.

In July 2009 the minor filed a notice of appeal from the jurisdiction hearing. The notice was filed in the Tulare County Superior Court and forwarded to the Fifth Appellate District.

In August 2009 the minor absconded from his group home and a warrant was issued for his arrest.

In September 2009 the minor filed a motion in the Fifth Appellate District to, inter alia, construe his notice of appeal as an appeal from the disposition order and transfer the appeal to this court. In November 2009 the California Supreme Court transferred the appeal from the Fifth Appellate District to this court.

On December 28, 2009, the minor was arrested on the warrant and transported to the Sacramento County Juvenile Hall. That same month, the probation department filed a juvenile wardship petition (form JV-600) and a notice of hearing (form JV-735), alleging that the minor violated his probation by remaining away from his group home overnight without permission of the probation officer (count I) and failing to keep the probation officer informed of his living and mailing address and telephone number (count II). At a detention hearing that same day, the minor admitted count I of the notice and count II was dismissed. The minor was continued a ward of the court and committed to juvenile hall for 15 days, with six days' credit for time served. The minor's commitment to the group home was vacated as he would attain the age of majority upon his release from juvenile hall. The court indicated that it would terminate wardship upon proof that restitution had been paid.

In January 2010 the minor filed in this court a motion to, inter alia, construe his notice of appeal as an appeal from the disposition order and transfer the appeal to this court. We granted the motion.

DISCUSSION

In his opening brief, the minor contends the disposition order must be reversed and the matter remanded to the juvenile court for consideration whether to grant him DEJ. He reasons that the Tulare County Deputy District Attorney had failed to perform her duty to determine whether his sole prior adjudication had been for a felony or a misdemeanor. Because it was, in fact, for a misdemeanor, the minor claims he was eligible for DEJ and is now entitled to be considered for that program.

The Attorney General counters that the probation officer's report establishes that the minor is not eligible for DEJ, because he has a previous violation of probation. In the Attorney General's view, the fact that the ineligibility determination was made by the probation department rather than by the Tulare County Deputy District Attorney is irrelevant. Under this view, any error by the deputy district attorney would be harmless.

The minor replies that the probation report's determination that he was ineligible for DEJ is incorrect, because the mere fact he has a previous violation of probation does not establish that the violation resulted in his probation being revoked. (Citing In re T.P. (2009) 178 Cal.App.4th 1, 4.)

The minor's challenge to the probation report's determination is untimely because it is asserted for the first time in the reply brief. (E.g., Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; People v. Dunn (1995) 40 Cal.App.4th 1039, 1055; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.) The probation report was available to the minor at the time he filed his opening brief and its relevance to his contention was readily apparent. How the Attorney General might have responded to the argument made for the first time in the reply brief is unknown.

Were we to consider the untimely argument, we would conclude that it lacks merit. "The DEJ provisions of section 790 et seq. '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. [Citations.]' [Citations.]

"'Section 790 makes a minor eligible for DEJ if all the following circumstances exist: [¶] "(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 [Department of Corrections and Rehabilitation, Division of Youth Facilities]. [¶] (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." [Citation.]' [Citation.]" (In re A.I. (2009) 176 Cal.App.4th 1426, 1432-1433, italics added.)

In this case, the minor was placed on informal probation pursuant to section 654.2 for at least 60 days. Before that period was completed, the minor admitted an allegation of a subsequent petition. As a result, informal probation was not reinstated; rather, the minor was placed on court probation for six months pursuant to section 725, subdivision (a). Before that period was completed, the minor admitted that he had been suspended from school for fighting. As a result, the minor was adjudged a ward, which made him ineligible for reinstatement on court probation. (See § 725, subd. (a) [court probation is imposed "without adjudging the minor a ward of the court" and the only stated sanction for failure to comply is adjudicating the minor a ward].) Instead, the minor was committed to the youth center. The probation report suggests, but does not conclusively establish, that the minor received a new grant of formal probation at that time.

Thus, the minor was placed on two different schemes of less formal probation; he violated probation under both schemes, and he was never reinstated to a previously granted scheme under modified terms or conditions. (In re T.P., supra, 178 Cal.App.4th at p. 4.) Thus, both his informal probation and his court probation were effectively revoked. Nothing in the record suggests that the court terminated informal probation or court probation without considering "whether under all the circumstances [the violations] warrant[ed]" placement in a more restrictive scheme. (Ibid.)

The minor has not analyzed the various probation schemes utilized by the juvenile court or explained why "revocation" can occur within the meaning of section 790, subdivision (a)(4) only if both (or all three) probation grants are terminated. Any such contention is forfeited. (E.g., People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)

In any event, if section 790, subdivision (a)(4) were construed to apply only where the juvenile court has revoked or terminated all extant probation grants prior to their completion, the statute would effectively be limited to minors whose direct supervision has been transferred from the court to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). (See In re Allen N. (2000) 84 Cal.App.4th 513, 515-516 [juvenile court cannot impose probation conditions for youth committed to DJF].) This would transform section 790, subdivision (a)(4) into a duplicate of subdivision (a)(3), which bars DEJ for minors who have "previously been committed to the custody of the [DJF]." We cannot lightly adopt an interpretation of subdivision (a)(4) that renders it a useless duplicate of another provision. (Williams v. Superior Court (1993) 5 Cal.4th 337, 354.)

Because court probation was effectively "revoked without being completed," the minor was statutorily ineligible for DEJ. (In re A.I., supra, 176 Cal.App.4th at pp. 1432-1433.) The juvenile court had no discretion to grant the minor DEJ notwithstanding his ineligibility. That is so regardless of whether the Tulare County Deputy District Attorney breached a duty to determine the minor's eligibility prior to or during the jurisdiction hearing.*fn2 There was no error.

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON, Acting P.J. BUTZ, J.


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