Filed 7/31/13 In re Trevor G. CA5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re TREVOR G., a Person Coming
Under the Juvenile Court Law.


THE PEOPLE,                                                                            F066001

         Plaintiff and Respondent,                                          (Super. Ct. No. 513089)

                   v.
                                                                                    OPINION
TREVOR G.,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Nan
Cohan Jacobs and Susan D. Siefkin, Judges.†
         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen McKenna,
Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Gomes, Acting P.J., Franson, J., and Peña, J.
†      Judge Jacobs presided over the deferred entry of judgment hearing. Judge Siefkin
presided over the joint jurisdiction and disposition hearing.
                                    INTRODUCTION
       On September 6, 2012, a first amended petition was filed pursuant to Welfare and
Institutions Code section 6021 alleging that appellant, Trevor G., committed first degree
burglary (Pen. Code, § 459, count 1) and three counts of grand theft of a firearm (Pen.
Code, § 487, subd. (d)(2), counts 2, 3, 4). The prosecutor notified appellant that he was
eligible for deferred entry of judgment (DEJ). The prosecutor and probation officer
recommended appellant was not suitable for DEJ.
        The hearing on whether to grant DEJ was continued on September 4, 2012,
because the original report prepared by the probation department was inadequate. On
September 20, 2012, the juvenile court denied appellant’s request for DEJ. On October
9, 2012, appellant entered into a plea agreement in which he waived his constitutional
rights and admitted counts 2 and 3 in exchange for the dismissal of the remaining
allegations. The court placed appellant on probation upon various terms and conditions
and in his parents’ custody.2
       On appeal, appellant contends the juvenile court abused its discretion in finding
him unsuitable for DEJ.
                  SUITABILITY INFORMATION AND HEARING
       On August 23, 2012, Officer Brar of the Modesto Police Department was
dispatched to appellant’s home to investigate a residential burglary. When appellant’s
mother arrived home after work, she found her bedroom door locked. The sliding glass

1       Except as otherwise indicated, all statutory references are to the Welfare and
Institutions Code.
2      Appellant had served 13 days of his commitment. The juvenile court noted
appellant had been on house arrest and ordered him to remain on house arrest for the
balance of his 60-day commitment on the advice of both the prosecutor and appellant’s
counsel.


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door from the bedroom to the backyard, however, was open. Appellant’s mother entered
through the sliding glass door and found the bedroom had been ransacked. Appellant’s
father kept guns in a locked closet and was the only person with access to the key. Three
of father’s guns were missing after the burglary.
       Appellant’s mother told Brar that appellant was hanging out with the wrong
crowd. Appellant told his mother that at 4:15 p.m. he was locked out of the house and
was waiting for a ride from his girlfriend. When his girlfriend did not arrive, appellant
said he went to J.P.’s home.
       Brar could not find evidence of forced entry into the bedroom. Brar went to J.P.’s
home. J.P.’s mother stated appellant was not at her house but she had seen him two doors
down at N.L.’s home. N.L. told Brar appellant had stayed with him that afternoon for 30
to 45 minutes and that appellant had been bragging about his father’s gun collection.
N.L. warned appellant to stop showing off or someone would take the guns. Brar
searched N.L.’s home for weapons, but did not find any.
       Brar went back to appellant’s home and told appellant he knew appellant was
lying about his whereabouts and appellant was not with J.P. that afternoon but with N.L.
Appellant confessed that he approached a friend with the nickname C. and told him that
he (appellant) wanted a burglary committed. Appellant knew C. was a gang member. C.
told appellant he knew someone who “would be willing to assist.”
       C. set up a meeting between appellant and someone unknown to appellant a few
days before the burglary. Appellant told this third person that no one would be in his
residence on August 23, 2012, between 4:15 p.m. and 6:30 p.m. Appellant told the third
person he could burglarize the home and where his father stored the gun collection.
Appellant told the third person he would leave the sliding glass door to his parents’
bedroom open.



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       Appellant had no prior record except for a misdemeanor arrest for theft. Appellant
had been expelled from school as a sophomore for fighting, but was currently passing all
of his classes. Appellant had 10 to 15 suspensions for talking in class, not following the
dress code, and for being tardy. Appellant told the probation officer that he got along
well with everyone in his family except his father. Appellant reported smoking
marijuana every other day and denied any involvement with gangs. Two letters from
school administrators indicated appellant was an asset to class discussion, had great
manners, interacted with people respectfully, realized he was wrong in his actions, had
been an excellent student for two years, had a good work ethic, had no major discipline
issues, and was on track to graduate at the end of the school year.
       Appellant’s father stated two of the three stolen guns were handed down to him by
his grandfather and were irreplaceable. Father believed his son should be placed on
house arrest, be placed on probation for a long time and receive counseling. Father also
suggested that his son be placed in a “scared straight program.” Appellant had also run
away from home.
       The probation officer determined that appellant’s behavior at home was fair, his
school behavior was poor, and he smoked marijuana every other day. Although appellant
denied membership in a gang, he contacted a gang member to burglarize his parents’
home. The probation officer described the crime as sophisticated and concluded
appellant required the supervision and intervention services provided by a wardship and
did not recommend DEJ.
       At the DEJ hearing, defense counsel noted appellant and his father were willing to
participate in counseling to improve their poor relationship. Defense counsel further
argued appellant’s offense was not sophisticated and that it was not fair to classify him as
criminally inclined. Defense counsel pointed out that appellant had run away for a few
hours three years ago and both parents wanted to monitor appellant.

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       The juvenile court discounted several factors that the probation department and the
prosecutor relied upon as disqualifying appellant for DEJ. The court noted appellant’s
expulsion from school, disciplinary problems at school, and his running away from home
were old news and the court was not concerned with those issues. The court further
explained that if marijuana use was a disqualifying factor for DEJ, “we wouldn’t have
very many kids on D.E.J.” The court indicated the issues of concern were the facts
underlying appellant’s offense.
       The court observed that this case was “really tough” and “difficult” because it did
not fall within a standard category. The court found the facts of the case very troubling
because appellant had invited the burglars into his own home because he was apparently
having a dispute with his father. The court noted it is common for kids in dispute with
their parents to stay out late, hang out with people the parents do not approve of, or wear
objectionable clothing. The court found what happened here was beyond the normal
parent-teen conflict. Appellant deliberately allowed gang members into the family home
to steal weapons, which made this offense a lot more serious.
       The court stated that gang members are known to engage in illegal activity
involving weapons, something reported in the newspaper every day. The problem is so
common that the Modesto Police Department published a booklet on gang awareness that
the court had been providing to parents. The court found appellant had let gang members
into his home and provided them with the information they needed to steal guns that
could be used for future crimes. The court found appellant’s conduct to be sophisticated
and noted it had been planned in advance. The court was troubled by appellant’s
conduct.
       The court also observed appellant’s conduct was going in a backward direction
than he had been headed before. The court found appellant was not likely to be
rehabilitated and denied DEJ.

                                             5
                                      DISCUSSION
       Appellant contends the court abused its discretion in finding appellant
“unsuitable” for DEJ. Appellant argues the juvenile court erred in finding his offense
was sophisticated and he provided overwhelming evidence that he was suitable for DEJ.
We agree with appellant that his crime was not sophisticated, that the juvenile court erred
in relying on this factor, and will remand for a new DEJ hearing.
       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. (§§ 791, subd. (a)(3), 793, subd. (c).)” (Martha C. v. Superior Court (2003) 108
Cal.App.4th 556, 558 (Martha C.).)
       The determination of whether to grant DEJ requires consideration of “two distinct
essential elements of the [DEJ] program,” viz., “eligibility” and “suitability.” (In re
Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10 (Sergio R.).) A minor is eligible for
DEJ under section 790 if he or she is accused in a juvenile wardship proceeding of
committing a felony offense and all of the following circumstances apply: “(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

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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.” (§ 790, subd. (a)(1)-(6).)3
       After eligibility is determined, the juvenile court has the ultimate discretion to rule
on the suitability of the minor for DEJ after it considers the factors specified in California
Rules of Court, rule 5.800 and section 791, subdivision (b), and based on the standard of
whether the minor will derive benefit from treatment, education, and rehabilitation rather
than a more restrictive commitment. (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123
(Luis B.); Martha C., supra, 108 Cal.App.4th at p. 562.) The factors set forth in section
791, subdivision (b) include the minor’s age, maturity, educational background, family
relationships, demonstrable motivation, treatment history, if any, and other mitigating and
aggravating factors. California Rules of Court, rule 5.800(d)(3) identifies those factors,
in virtually identical language and includes the minor’s treatment history. (Cal. Rules of
Court, rule 5.800(d)(3)(A)(i).) A court may deny DEJ to an eligible minor “only if it
determines the minor would not benefit from the education, treatment or rehabilitation
available through the [DEJ] program.” (Martha C., supra, 108 Cal.App.4th at p. 560.)
       The determination to grant or deny DEJ may be reversed only upon a showing of
abuse of discretion. Denial of DEJ is not an abuse of discretion merely because the
minor has satisfied the eligibility requirements of the statute and rule of court. (Sergio R.,
supra, 106 Cal.App.4th at p. 607.) Judicial discretion is abused only if it results in an
arbitrary or capricious disposition, or implies whimsical thinking, or exceeds the bounds
of reason. (People v. Giminez (1975) 14 Cal.3d 68, 72.)
       We initially note the juvenile court in the instant action did not casually evaluate
the evidence of appellant’s suitability for DEJ. We agree with the court that the DEJ

3      There is no dispute that appellant was eligible for DEJ.


                                              7
determination was a close issue. In its evaluation, the court found factors such as
appellant’s prior expulsion from school, running away from home, and poor school
discipline to be what it called “old news.” The court further discounted appellant’s use of
marijuana noting that such use would disqualify many or most juveniles for DEJ.
       The court was most disturbed by two facts: (1) appellant let gang members into
his own home, and (2) the gang members gained access to firearms that could be used in
the commission of additional crimes. The court found appellant’s behavior appeared to
be regressing to his more troubled past when he was expelled from school. The court
further found, however, that appellant’s crime was sophisticated. Talking to a known
gang member, telling him where firearms were stored, when the home would be
uninhabited, and leaving a door open to the would-be burglars were not particularly
sophisticated actions. There was undeniably preplanning involved, but the crime itself
was simple to effectuate.
       Although the court noted there was a conflict between appellant and his father that
appeared to be appellant’s motivation for his conduct, the court placed little or no weight
on the fact that defense counsel stated father was willing to enter counseling with
appellant. This is an important factor because appellant’s poor relationship with his
father appeared to be his primary motivation in committing the offense.
       By the time appellant appeared for the joint jurisdiction/disposition hearing, he
was on house arrest. At the conclusion of the joint jurisdiction/disposition hearing,
appellant was ordered to finish the remainder of his 60-day commitment on house arrest.
Clearly appellant was not seen as a threat to the community and the juvenile court did not
view his parents at any point in the proceedings as ineffectual in disciplining him.
Equally important, school officials spoke very positively about appellant, noting
appellant’s good manners, respectfulness, contribution to class discussion, lack of
disciplinary issues, and excellent academic record.

                                             8
       We are concerned that the juvenile court may have placed too much emphasis on
what it viewed as the sophistication of appellant’s offense as a primary factor for denying
DEJ. As we already noted, appellant’s offense was not sophisticated and was executed
with little planning. We are also concerned that the juvenile court appeared to focus its
findings almost exclusively on gang evidence, but did not review evidence concerning
appellant’s amenability to rehabilitation.
       We agree with the juvenile court that the question of whether appellant is suitable
for DEJ is a close issue. On balance, however, we believe the juvenile court placed too
much weight on the incorrect factor of the sophistication of the offense and failed to more
carefully weigh evidence related to appellant’s capacity to rehabilitate. We therefore
reverse the juvenile court’s order denying appellant DEJ.
                                      DISPOSITION
       The juvenile court’s jurisdiction and disposition orders are vacated. The matter is
remanded to the juvenile court for determination of whether appellant is suitable for
deferred entry of judgment without reference to the sophistication of the offense. In
making this determination, the juvenile court shall consider all of the evidence of
appellant’s amenability to rehabilitation, and may consider evidence bearing on the
questions of whether placing appellant on regular probation is a more restrictive
commitment than DEJ probation and whether appellant requires a more restrictive
commitment to effectuate his rehabilitation. If the juvenile court does not find appellant
amenable to DEJ, it may reinstate its orders from the joint jurisdiction/disposition
hearing.




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