Filed 11/8/13 In re Ricardo B. CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re RICARDO B., a Person Coming
Under the Juvenile Court Law.


THE PEOPLE,
                                                                       G048160
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL043792)
         v.
                                                                       OPINION
RICARDO B.,

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Gregory W.
Jones and Douglas Hatchimonji, Judges. Affirmed.
                   Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Marissa Bejarano and Stacy Tyler, Deputy Attorneys General, for Plaintiff and
Respondent.
              The court denied a Welfare and Institutions Code1 section 790 deferred
entry of judgment (DEJ) to a 17 year old who, together with some friends, burglarized the
garage of a vacationing homeowner. The minor claims the court abused its discretion in
so doing. We disagree, given the court’s compliance with the requisite DEJ procedures
and the minor’s marijuana use and unexcused absences from school. We affirm.
                                               I
                                          FACTS
A. Background:
              On October 4, 2012, a Fullerton resident telephoned the police about the
suspicious behavior of four young men who appeared to be robbing the house of an
absent neighbor. The caller provided a description of their car, together with the license
plate number. He told the police that the four young men had walked towards the house,
each carrying an empty backpack. Thereafter, they climbed out of the bushes at the side
of the yard, one of them holding a backpack that was “absolutely packed to the hilt.”
              Fullerton Police Officer Andrew Coyle responded to the radio call about a
possible burglary. He located the described vehicle one street over from the house in
question. There were five persons in the car eating ice cream “using writing pens as a
spoon.” Officer Coyle searched the vehicle, with the permission of the driver. He found
a pair of bolt cutters, two pairs of gloves, a yellow and black screwdriver, a backpack, a
knife, and two iPods.


B . Court Proceedings:
              The District Attorney filed a petition to declare the minor a ward of the
juvenile court, pursuant to section 602. It was alleged therein that the minor had
committed first degree residential burglary.

1     All subsequent statutory references are to the Welfare and Institutions Code unless
otherwise specifically stated.

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              The District Attorney thereafter filed a determination of eligibility form,
stating the minor was eligible for DEJ. The court ordered the probation department to
submit a DEJ suitability report.
              According to the suitability report, dated January 14, 2013, the minor was
17 years old and had no prior record. He admitted having been a passenger in the vehicle
in question. He also admitted they had gone “into the garage ‘to make money.’” The
minor indicated that while he initially had entered the garage with some of the others,
“[a]fter a few seconds he exited and stood by the wall as he knew what they were doing
was wrong.” He denied having taken anything from the garage himself, but
acknowledged having eaten some of the ice cream. One of his companions admitted that
they had taken the ice cream and also that he himself had gone into the car in the garage
“looking for something good to take.” A second companion said they had taken three
buckets of ice cream.
              The suitability report further stated that an officer who checked out the
garage noticed that there was “a holder for six screwdrivers on the wall that was missing
three screwdrivers. He noticed the screwdrivers had yellow or black handles.”
              When the homeowner returned from his trip, he confirmed that his ice
cream was missing. However, the suitability report does not indicate whether the
homeowner reported that anything else was missing.
              The suitability report also contains information from an interview with the
minor’s mother. She expressed her belief that “the minor was involved in the present
offense because he was following his older friends.” She did not believe he would repeat
the behavior because he was no longer associating with those persons.
              The mother said the minor was respectful at home, did his chores, and
obeyed his curfew. She did not believe that he had ever been involved in any other thefts
or in any gang or tagging crew. However, the mother said she believed the minor did, at



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times, lie about who he was with and where he was going. She was uncertain whether he
had experimented with alcohol or drugs.
               The suitability report continued: “The minor is currently enrolled in the
11th grade in the ACCESS program. He was previously enrolled at Gilbert High School
but was transferred due to truancy. As of November 9, 2012, the minor had 20
unexcused absences. His disciplinary records from Gilbert High School reflected he was
suspended for five days on May 25, 2012 due to marijuana use on campus. The minor
was transferred to ACCESS on December 12, 2012 and records from the school did not
reflect the minor had earned any credits as of yet, most likely due to the winter recess
occurring just after he began attending.”
               The suitability report concluded the minor was “marginally suitable for
DEJ.” The probation department recommended therein that the minor be placed on a
DEJ program for 12 to 36 months.
               At the DEJ suitability hearing, the court observed that, based on a reading
of the suitability report, the minor “had numerous issues in regards to school attendance,
school discipline.” The court found the minor unsuitable for DEJ. It stated: “The report
indicates that he has been suspended from school for marijuana use. That he is attending
continuation school. That he has not earned any credits. There [have] been issues with
unexcused absences. I think his school attendance and school performance is such that
he needs more intensive supervision than that which would be provided on DEJ.”
               The minor signed an advisement of constitutional rights form, in which he
admitted to unlawfully entering an inhabited dwelling with the intent to steal and to
committing first degree residential burglary. He also signed a disposition agreement. It
provided for 10 days in juvenile hall and a $100 restitution fine. It permitted the minor to
return to court in one year to “request a plea withdrawal, subject to the Court’s
discretion.”



                                             4
              The court found the allegations of the petition to be true beyond a
reasonable doubt and further found the minor to be a person described under section 602.
The court found the offense to be a felony, with a maximum period of confinement of six
years. It ordered the minor declared a ward of the juvenile court, placed him on
probation, and provided that he might be permitted to withdraw his plea in one year
provided he neither further violated the law nor violated the conditions of his probation.
              The minor filed an appeal from the dispositional order. He challenges the
finding that he was not suitable for DEJ.
                                              II
                                       DISCUSSION
              “The DEJ provisions of section 790 et seq. were enacted as part of
Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998, in March
2000. The sections 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 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. (§§ 791, subd.
(a)(3), 793, subd. (c).)” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
              It is true, as the minor in the case before us points out, that there is a
“strong preference for rehabilitation.” (Martha C. v. Superior Court, supra, 108
Cal.App.4th at p. 561.) However, just because a minor is eligible for DEJ under section
790, subdivision (a), that does not mean he is entitled to it. Rather, the court has the
discretion to deny DEJ to an eligible minor. (Martha C. v. Superior Court, supra, 108
Cal.App.4th at p. 560; In re Sergio R. (2003) 106 Cal.App.4th 597, 605.)



                                               5
              “When directed by the court, the probation department shall make an
investigation and take into consideration the defendant’s age, maturity, educational
background, family relationships, demonstrable motivation, treatment history, if any, and
other mitigating and aggravating factors in determining whether the minor is a person
who would be benefited by education, treatment, or rehabilitation. . . . The probation
department shall report its findings and recommendations to the court. The court shall
make the final determination regarding education, treatment, and rehabilitation of the
minor.” (§ 791, subd. (b); accord, Cal. Rules of Court, rule 5.800(d)(3).)
              “If the court does not summarily grant DEJ [to an eligible minor], it must
conduct a hearing at which it must ‘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.’ [Citation.] It is the mandatory
duty of the juvenile court to either grant DEJ summarily or examine the record, conduct a
hearing, and determine whether the minor is suitable for DEJ, based upon whether the
minor will derive benefit from ‘education, treatment, and rehabilitation.’ (Welf. & Inst.
Code, § 791, subd. (b); [citation].)” (In re D.L. (2012) 206 Cal.App.4th 1240, 1243-
1244; In re Sergio R., supra, 106 Cal.App.4th at pp. 604, 607.) “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. [Citation.]” (In re Damian M. (2010) 185
Cal.App.4th 1, 5.)
              In the matter before us, the minor contends the court abused its discretion in
denying him DEJ. He compares the facts of this case to those in two other cases in which
the courts also denied DEJ—In re Damian M., supra, 185 Cal.App.4th 1, 4, and In re
Sergio R., supra, 106 Cal.App.4th 597, 600.
              In In re Damian M., supra, 185 Cal.App.4th 1, the minor participated in a
sophisticated drug smuggling operation and was caught crossing the border from Mexico
into the United States with 10.1 pounds of marijuana hidden in a compartment in the gas

                                              6
tank. (Id. at pp. 3-4.) In In re Sergio R., supra, 106 Cal.App.4th 597, the minor, who
admitted to possession of methamphetamine and first degree burglary, was an entrenched
gang member with a methamphetamine addition and a history of marijuana and cocaine
use. (Id. at pp. 600-601, 608.) The minor in the case before us argues that the facts in his
case are clearly distinguishable from those in either In re Damian M., supra, 185
Cal.App.4th 1 or In re Sergio R., supra, 106 Cal.App.4th 597.
              We agree that when the minor and his friends stole ice cream from a
garage, they did not engage in conduct that rose to the level of participation in an
organized international drug smuggling operation. We also agree that there is nothing in
the record to suggest that the minor is a gang member, carries weapons, is addicted to
methamphetamine, or uses cocaine. But just because his activities are not as egregious as
those of the minors in In re Damian M., supra, 185 Cal.App.4th 1, and In re Sergio R.,
supra, 106 Cal.App.4th 597, that does not mean the court in the matter before us abused
its discretion in denying him DEJ.
              There is every indication that the court followed the procedures it was
supposed to follow and considered the factors it was supposed to consider in reaching the
decision it did. Furthermore, the court’s determination is supported by the evidence. The
probation department suitability report showed that while the minor’s mother claimed to
be “unsure” whether he had experimented with alcohol or drugs, he had been suspended
from school for using marijuana on campus. Furthermore, he had extensive unexcused
absences and had been transferred to continuation school where he had yet to earn any
credits. Even assuming the minor failed to earn any credits because of a school recess,
the court did not exceed the bounds of reason in concluding, based on his school record,
that he was unsuitable for DEJ, and the court’s decision was neither arbitrary nor
capricious. (People v. Lamb (2006) 136 Cal.App.4th 575, 582 [abuse of discretion
standard]; In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682-683 [same].)



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                                       III
                                   DISPOSITION
          The order is affirmed.




                                             MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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