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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 (Yuba)


December 1, 2011

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. JDSQ110000048)

The opinion of the court was delivered by: Robie , Acting P. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Minor C. G., age 14, admitted that he came within the provisions of Welfare and Institutions Code*fn1 section 602 in that he committed lewd and lascivious acts with a child under age 14. He was declared a ward of the court, placed on probation, and ordered to reside in the custody of his mother and stepfather.

On appeal, the minor contends the prosecutor failed to determine his eligibility for deferred entry of judgment, and the juvenile court abused its discretion by failing to determine his suitability for deferred entry of judgment. We affirm.

FACTS

On February 8, 2011, around 4:00 p.m., the minor's stepfather, E. L., left his home to go to work. E. L. left the minor in charge of E. L.'s six-year-old daughter, K. L., and his four-year-old son, C. L. A half hour later, E. L. returned home because he had forgotten something. When he entered the residence he found the minor lying on his side, naked from the waist down, with an erect penis. K. L. was lying next to the minor, facing him, and naked from the waist down. The minor had his hands near K. L.'s vagina, and K .L. had her hands at her side. E. L. separated the children and contacted his wife, T. L., who is the mother of the minor.

T. L. returned home and spoke to the minor about what had happened. The minor told T. L. that he had been rubbing his erect penis against K. L.'s vagina. He denied penetrating her with his penis or finger and denied engaging in oral copulation. The minor admitted to rubbing his penis on K. L.'s vagina on previous occasions but could not remember how many times he had done so.

K. L. told T. L. that the minor had rubbed his penis against her vagina. K. L. added that this had been occurring since "before she began kindergarten," i.e., since the six-year-old was age four or five. K. L. said that the minor had never penetrated her with anything and never made her touch him.*fn2

DISCUSSION

The minor contends the prosecutor failed to determine his eligibility for deferred entry of judgment, and the juvenile court abused its discretion by failing to determine his suitability for deferred entry of judgment.

The People concede that the prosecutor did not determine eligibility but claims the court nevertheless considered suitability and found the minor unsuitable; thus, the prosecutor's omission could not have been prejudicial. We agree.

The Yuba County District Attorney filed the present petition in March 2011. However, the district attorney did not file a determination of eligibility--deferred entry of judgment--juvenile (form JV-750) with the petition or thereafter.

In May 2011, following the minor's admission of the offense, the probation department prepared a report that stated "[the minor] is statutorily eligible for Deferred Entry of Judgment pursuant to Section 790."

At the outset of the disposition hearing, the minor's counsel stated: "I believe the [probation] report indicates that [the minor] is eligible for deferred entry of judgment. If that's the case, I believe [the minor] would benefit from education and treatment. And I believe that he should be granted deferred entry of judgment."

The prosecutor countered that "the education and treatment necessary in this case" could not "be supplied through" deferred entry of judgment, because the minor "needs longer term treatment than we have here."

The minor's counsel replied that the court "can go up to three years on deferred entry of judgment."

After the court adjudged the minor its ward and placed him on probation, the minor's counsel asked the court to "reconsider its decision not to grant deferred entry of judgment. There has been no indication at all in anything that I can see or anything that's been said by anyone that [the minor] would not benefit from education and treatment under [the] deferred entry of judgment program."

The trial court responded: "And he'll benefit from the education and treatment as a wardship too. This behavior has been ongoing for a number of years. It's the Court's anticipation he'll be continued under the jurisdiction of the Court for a number of years. We expect him to comply with conditions of probation. If he doesn't, he needs to know he can be detained. At this point he's cooperative. We'll see what happens six months from now, a year from now. If he completes sex offender counseling, the wardship can be terminated. And it's my experience that the probation department will fairly promptly file a petition to terminate wardship if supervision is deemed no longer necessary." (Italics added.)

The deferred entry of judgment statutory scheme was recently described as follows: "'"Section 790 makes a minor eligible for [deferred entry of judgment] 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 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.' [Citation]"' [Citations.]

"Rule 5.800(b) of the California Rules of Court directs: '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.' The prosecutor must also make available to the minor and defense counsel 'the grounds upon which the determination [of eligibility] is based.' [Citation.]

"'If the minor consents and waives his or her right to a speedy jurisdictional hearing, the court may refer the case to the probation department or the court may summarily grant deferred entry of judgment if the minor admits the charges in the petition and waives time for the pronouncement of judgment.' [Citation.] When directed by the court, the probation department must investigate and consider specified factors, determine what programs would accept the minor and report its findings and recommendations to the court. [Citation.]

"'The court shall make the final determination regarding education, treatment, and rehabilitation of the minor.' [Citation.] 'Upon a finding that the minor is also suitable for deferred entry of judgment and would benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment.' [Citation.]

"The court thus 'has the ultimate discretion to rule on the suitability of the minor for [deferred entry of judgment] after consideration of the factors specified in [former] rule 1495(d)(3) [now rule 5.800(d)] and section 791, subdivision (b), and based upon the "'standard of whether the minor will derive benefit from "education, treatment, and rehabilitation" rather than a more restrictive commitment. [Citations.]'" [Citations.] The court may grant [deferred entry of judgment] to the minor summarily under appropriate circumstances ([former] rule 1495(d) [now rule 5.800(d)]), and if not must conduct a hearing at which "the court shall consider the declaration of the prosecuting attorney, any report and recommendations from the probation department, and any other relevant material provided by the child or other interested parties." ([Former rule] 1495(f) [now rule 5.800(f)], italics added.)' [Citation.]

"'While the court retains discretion to deny [deferred entry of judgment] to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for [deferred entry of judgment] and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant [deferred entry of judgment] or examine the record, conduct a hearing, and make "the final determination regarding education, treatment, and rehabilitation . . . ." [Citations.] . . . The court is not required to ultimately grant [deferred entry of judgment], but 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.]' [Citation.]" (In re Joshua S. (2011) 192 Cal.App.4th 670, 676-678, fn. and italics omitted.)

In this case, the parties agree that the prosecutor did not perform his mandatory duties to assess the minor's eligibility for deferred entry of judgment and furnish notice with the petition. (See In re Joshua S., supra, 192 Cal.App.4th at pp. 677-678.)

The minor argues that, due to the prosecutor's failure, the juvenile court "had no occasion to make a determination regarding [deferred entry of judgment]." However, as he concedes, the probation report found him eligible for deferred entry of judgment. Moreover, the minor's counsel expressly asked the court to consider, and then reconsider, whether to place the minor on deferred entry of judgment. These developments gave the court the occasion to consider the issue, which it in fact did. Thus, the prosecutor's omission could not have been prejudicial. The minor's reliance on In re Luis B. (2006) 142 Cal.App.4th 1117 is misplaced because the prosecutor's failures to assess the minor and to file the requisite form in that case caused the court to fail to address the issue. (Id. at p. 1123.)

The minor next claims the juvenile court "held no hearing as to suitability for [deferred entry of judgment], and made no such required findings." However, as we have seen, the court addressed the issue with the parties during the disposition hearing. The minor offers no argument or authority for the proposition that a disposition hearing is an inadequate forum for consideration of the issue. The minor's claim that no hearing was held has no merit.

The minor next argues the juvenile court "did not make a determination of suitability for [deferred entry of judgment]." This argument disregards the factual and legal contexts in which the issue arose and overlooks remarks the court made in resolving the issue.

K. L. reported that the minor had been rubbing his penis against her vagina since "before she began kindergarten," i.e., since the six-year-old was age four or five.

Section 791, subdivision (a)(3), provides that when a minor is granted deferred entry of judgment, the court shall dismiss the charge or charges against the minor "no sooner that [sic] 12 months and no later than 36 months from the date of the minor's referral to the program."

With these points evidently in mind, the prosecutor stated that "the education and treatment necessary in this case" could not be supplied through deferred entry of judgment because the minor "needs longer term treatment than we have here." The minor's counsel responded that deferred entry of judgment can "go up to three years." The juvenile court impliedly agreed with the prosecutor's argument because it proceeded to declare wardship and place the minor on probation.

When the minor's counsel asked the juvenile court to reconsider, he effectively argued that the minor was suitable for deferred entry of judgment, stating there had been "no indication at all in anything that I can see or anything that's been said by anyone that [the minor] would not benefit from education and treatment under deferred entry of judgment program."

The juvenile court responded, "And he'll benefit from the education and treatment as a wardship too." Claiming the court "clearly indicated that it found [the minor] would benefit from education and treatment," the minor argues that the court "seemingly implied that [the minor] would be suitable for [deferred entry of judgment]."

This argument overlooks the juvenile court's very next remarks. The court stated: "This behavior has been ongoing for a number of years. It's the Court's anticipation he'll be continued under the jurisdiction of the Court for a number of years."

Although its comments could have been clearer, the juvenile court evidently accepted the prosecutor's argument that the minor needed education and treatment for a greater "number of years" than the 36 months offered by section 791, subdivision (a)(3). The court could deduce that, after the statutory period elapsed, the minor would still benefit from education and treatment but he would be ineligible to receive them through deferred entry of judgment. At that point, the minor could benefit from wardship but he no longer could benefit from deferred entry of judgment.

Nor could the juvenile court declare wardship following completion of deferred entry of judgment. Section 791, subdivision (a)(3), mandates dismissal of the charges no later than 36 months after referral to deferred entry of judgment. On this record, denial of deferred entry of judgment was not an abuse of discretion. (See In re Joshua S., supra, 192 Cal.App.4th at pp. 676-678.)

DISPOSITION

The judgment is affirmed.

We concur: BUTZ , J. MAURO , J.


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