Filed 1/8/15 In re Juan A. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


In re JUAN A., a Person Coming Under the                             B252829
Juvenile Court Law.

THE PEOPLE,                                                          (Los Angeles County
                                                                     Super. Ct. No. GJ29983)
         Plaintiff and Respondent,

         v.

JUAN A.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Nancy S. Pogue and Robert Leventer, Commissioners. Affirmed.


         Laini Millar Melnick, 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, Assistant Attorney General, Steven D. Matthews and Analee
J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

                          __________________________________________
       The juvenile court found appellant Juan A. committed the crime of using force or
violence to resist an executive officer in the performance of his duty. (Pen. Code, § 69.)
We affirm.
                                         FACTS
       At around 3:30 in the afternoon, Los Angeles County Deputy Probation Officer
Thomas Wilcox was supervising a group of four youths in a restroom at Challenger, a
Probation Department camp in Lancaster, when Juan left his bed without permission and
walked into the restroom without permission. Deputy Wilcox told Juan to return to his
bed. Juan did not comply. Deputy Wilcox told Juan a second time to return to bed. Juan
again did not comply. Instead, Juan walked over to and faced a toilet, and either prepared
to urinate or did begin to urinate. Deputy Wilcox again ordered Juan to leave the
bathroom. At about this same time, Deputy Wilcox “gave [Juan] a left touch prompt on
the side” to get him to leave. Juan shrugged his shoulders, turned around, and started to
walk out of the bathroom. Deputy Wilcox began walking next to Juan and “didn’t think
there was a problem,” but then Juan abruptly turned and punched the deputy on the side
of his face with a closed fist. A struggle ensued and continued until Deputy Wilcox
subdued Juan with pepper spray.1




1
        The facts are reviewed in the light most favorable to the lower court’s judgment.
(People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Deputy Wilcox testified he could
not see whether Juan started to urinate, as the deputy was seeing Juan’s back. Deputy
Wilcox did not hear Juan urinating. Another ward did hear Juan start to urinate. Juan
testified that he was “peeing in the toilet” when Deputy Wilcox pulled him away from the
toilet by the back collar on his shirt. Juan testified he threw a punch while he was being
pulled away from the toilet. We accept Deputy Wilcox’s testimony that he gave Juan a
“touch prompt” on the side, and that Juan shrugged his shoulders and turned around
himself, the reasonable inference being that Juan had either finished urinating or stopped
himself urinating, and turned away from the toilet on his own. Basically, the evidence,
when viewed in the light most favorable to the judgment, shows that Deputy Wilcox was
walking Juan back out of the bathroom after effectively telling him, “C’mon, you cannot
be in here right now,” and that Juan threw a punch at the deputy as he had just started to
escort Juan out of the restroom.

                                             2
       The People filed a petition (Welf. & Inst. Code, § 602) alleging that Juan had
committed the crime of using force or violence to resist an executive officer in the
performance of his duty. (Pen. Code, § 69.) The charge was tried to the juvenile court,
at which time the People presented evidence establishing the facts summarized above.
At the conclusion of trial, the court found Juan committed the charged crime and declared
him a ward of the court. At the disposition hearing which followed, the court terminated
a previous order placing Juan in a community camp placement. The court ordered that
“conditions of probation [were to] remain in effect.” The court ordered Juan suitably
placed under the supervision of the probation department. As custody was taken from
Juan’s parents, the court set a maximum term of confinement of four years and eight
months.
       Juan filed a timely notice of appeal.
                                      DISCUSSION
I.     Deferred Entry of Judgment
       Juan contends the District Attorney erred in determining that he was ineligible for
a deferred entry of judgment (DEJ) program. He asks our court “to remand his case to
the juvenile court for a determination of suitability” for a DEJ program. Inexplicably, the
respondent’s brief filed by the People does not address this contention. We decline to
find error on the record before us on appeal.
       The DEJ process in juvenile proceedings is governed by sections 790 through 795
of the Welfare and Institutions Code.2 Under this statutory scheme, the prosecutor has a
mandatory statutory duty to undertake an initial assessment and to make a determination
of whether a minor is “eligible” for a DEJ program.3 When the prosecutor determines
that a minor is eligible for a DEJ program, the minor may agree that he or she wants to
accept DEJ. In such a case, the matter is presented to the juvenile court for a hearing on

2
      All further undesignated section references are to the Welfare and Institutions
Code unless otherwise specified.
3
      In making the initial eligibility determination, the prosecutor must make findings
on whether six identified circumstances apply. (See § 790, subds. (a)(1)-(a)(6).)

                                                3
whether the minor is “suitable” for a DEJ program based upon the consideration of
certain statutory factors. The juvenile court has discretion in determining whether a
minor is or is not suitable for a DEJ program. (In re Usef S. (2008) 160 Cal.App.4th 276,
283-284.) As part of the DEJ process, the minor must admit a charged offense. Upon his
or her successful completion of a DEJ program, the charge is dismissed in accord with
statutorily prescribed procedures. (§§ 791, 793.) On the other hand, an eligible minor
may decide to reject DEJ, obviating the need for a hearing on the issue of his or her
suitability for a DEJ program, and a trial ensues on a charged offense. (See In re Kenneth
J. (2008) 158 Cal.App.4th 973, 979-980.)
       Section 790, subdivision (b), states: “The prosecuting attorney shall review his or
her file to determine whether or not [a minor is eligible for deferred entry of judgment in
that] paragraphs (1) to (7), inclusive, of subdivision (a) apply. If the minor is [determined
to be] eligible for deferred entry of judgment, the prosecuting attorney shall file a
declaration in writing with the court or state for the record the grounds upon which the
determination is based, and shall make this information available to the minor and his or
her attorney. Upon a finding that the minor is . . . suitable for deferred entry of judgment
and would benefit from education, treatment, and rehabilitation efforts, the court may
grant deferred entry of judgment. . . . The court shall make findings on the record that a
minor is appropriate for deferred entry of judgment pursuant to this article in any case
where deferred entry of judgment is granted.”
       In Juan’s current case, the prosecutor submitted a declaration in conjunction with
the filing of the section 602 petition stating that she had determined Juan to be ineligible
for a DEJ program.4 Based on our review of the record, it does not appear that Juan
objected to or otherwise challenged the prosecutor’s DEJ ineligibility determination prior
to the trial of the charged offense, or any other time. Accordingly, there was no record
developed on the issue of DEJ eligibility, there was no hearing or court finding on Juan’s


4
       Section 790, subdivision (b), does not expressly speak to what procedures are to
be followed when the prosecutor determines that a minor is ineligible for a DEJ program.

                                              4
suitability for a DEJ program, no occasion for Juan to admit the charged offense, and no
indication he was willing to do.
       On appeal, Juan contends the prosecutor’s determination that he was ineligible for
a DEJ program “was wrong.” The implication inherent in Juan’s contention is that the
prosecutor’s determination should be changed to indicate that he is eligible, meaning that
his case should be remanded to the juvenile court so that it can evaluate his suitability and
exercise its discretion whether to grant him a DEJ program.
       On the record before us on appeal, we decline to find error in the prosecutor’s
determination on the issue of Juan’s DEJ eligibility. The prosecutor’s allegedly
erroneous determination that Juan was ineligible for a DEJ program was the type of error
which could have been addressed and corrected had Juan pointed out the error. (See, e.g.,
People v. Simon (2001) 25 Cal.4th 1082, 1103.) Further, had Juan raised a timely
objection, the issue would have been developed, preserving a record for review. In this
vein, there is nothing in the record to suggest that Juan was willing to admit the charged
offense. To permit him to raise the DEJ issue on appeal would mean that a juvenile could
forego admitting a charged offense, and take a chance at trial. Then, if the risk
succeeded, there would be no charge. If the risk proved unsuccessful, a juvenile could
appeal and claim an error associated with a DEJ eligibility determination without a
developed record, and seek to undo the finding of guilt, and then seek a DEJ program
with the end goal of having the charges dismissed after the successful completion of the
program. We are satisfied that the record before us does not allow for meaningful
examination of the DEJ eligibility issue.
II.    Sufficiency of the Evidence
       Juan contends the evidence is insufficient to support the juvenile court’s finding
that he committed the charged crime. Specifically, Juan contends the evidence did not
establish that Deputy Wilcox was engaged in the performance of a legal or lawful duty at
the moment that Juan first punched him. In Juan’s words: “Although [he] had disobeyed
an order, there was no [lawful] need for Wilcox to touch him while he was in the process



                                             5
of relieving himself.” We find the evidence supports the juvenile court’s determination
that Juan violated Penal Code section 69.
       Juan is correct that Penal Code section 69 may be violated in two different ways,
and that the theory upon which his case was litigated required the prosecution to prove
that Deputy Wilcox was engaged in the performance of a legal or lawful duty when Juan
used force or violence to resist the deputy. (See In re Manuel G. (1997) 16 Cal.4th 805,
815-816.) Penal Code language concerning an official’s “performance of his duty” has
long been interpreted to mean that an aggressor who uses force or violence to resist an
official may be found to have committed a public offense. If, however, the
official/victim is ultimately determined to have been engaged in an unlawful act, the
aggressor may be found to have committed a simple assault or battery, but not an act of
violence against an official “‘in the performance of his duty.’” (Cf. People v. Curtis
(1969) 70 Cal.2d 347, 355-356 [discussing Penal Code section 148]; and see also In re
Manuel G., supra, 16 Cal.4th at pp. 815-816.) In short, Penal Code section 69 requires
the prosecution to present evidence proving a person resisted an executive officer who
was engaged in the “performance of his legal or lawful duty.”
       We have no doubt that Deputy Wilcox was performing his legal or lawful duty at
the time he was supervising a group of camp wards in the restroom area, including when
he was giving orders to Juan to leave the restroom and return to his bed, and acting to get
Juan to comply with the deputy’s directives.
       Nonetheless, Juan argues that Deputy Wilcox’s actions inside the restroom may be
parsed into discretely-examined, moment-by-moment increments. Further, that at the
precise moment Deputy Wilcox “touched” Juan, the deputy was acting in an unlawful
manner. Basically, Juan argues a probation camp deputy is acting in an unlawful manner
whenever he applies any type of physical contact upon a ward who is engaged in the act
of urinating. Assuming without deciding that a probation camp deputy is never lawfully
permitted to impart any type of physical contact upon a urinating ward (whether the
contact is a yanking by the shirt collar, or a “prompt touch” on the side), it does not
follow that the juvenile court’s finding that Juan violated Penal Code section 69 must be

                                               6
reversed.5 As we discussed above, the evidence, when viewed in the light most favorable
to the judgment, shows that Juan was not urinating, that he had turned around, and that he
had begun walking out of the restroom, when he sucker-punched Deputy Wilcox, who
was escorting Juan out of the bathroom. Juan’s use of force or violence did not take
place during a time that Deputy Wilcox was purportedly engaged in an unlawful act.
       For similar reasons, we reject Juan’s argument that the evidence failed to prove
that at the instant he punched Deputy Wilcox, Juan acted with the intent to interfere with
or impede the deputy in the performance of his legal or lawful duty. Again using Juan’s
own words: “[My] punching [Deputy Wilcox] was not . . . an attempt to resist the
officer’s performance of his duties, it was a post hoc angry and inappropriate response to
being physically touched or grabbed while [I] was in the act of urinating.” In our view,
Juan’s argument is an invitation to our court to reweigh the evidence, and substitute a
different conclusion for that of the juvenile court. This is not our role on appeal. (In re
Roderick P. (1972) 7 Cal.3d 801, 809; In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-
1089 [a reviewing court does not reweigh the evidence; it examines the record in the light
most favorable to the judgment to determine whether there is credible evidence, including
reasonable inferences from the evidence, which supports the trier of fact’s findings].)
       A person’s intent is rarely susceptible of direct proof. For this reason, the law has
long allowed intent to be inferred from the circumstances surrounding a charged offense,
and recognizes that a trier of fact’s reasonable inferences from the evidence are sufficient
to constitute substantial evidence in support of a finding of a particular intent. (See, e.g.,
People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ceja (1993) 4 Cal.4th 1134, 1138-
1139; People v. Pre (2004) 117 Cal.App.4th 413, 420.) Stated another way, evidence of
a person’s state of mind “‘is almost inevitably circumstantial, but circumstantial evidence
is as sufficient as direct evidence to support a conviction.’ [Citation.]” (People v. Rios
(2013) 222 Cal.App.4th 542, 567-568.)

5
        Juan has not cited any case which directly holds that a camp deputy may never
lawfully touch a urinating ward; the People have not cited any case which directly holds
that a camp deputy may lawfully touch a urinating ward.

                                              7
       Here, the juvenile court could reasonably infer that Juan intended to disrupt and
interfere with Deputy Wilcox’s performance of his legal and lawful duty. The evidence
supports an inference that Juan wanted to disrupt the orderly operation of the restroom
area and that he accomplished his intent. We have no doubt that Juan was, as he says,
“angry” when he punched Deputy Wilcox, but the presence of anger does not defeat the
further reality that he intended to disrupt and interfere with the deputy’s performance of
his duty.
                                     DISPOSITION
       The judgment is affirmed.


                                                        BIGELOW, P.J.
We concur:


                     RUBIN, J.




                     FLIER, J.




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