Filed 9/24/14 In re C.G. CA1/3
Opinion following rehearing
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


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

PEOPLE,
         Plaintiff and Respondent,
v.                                                                       A140135
C.G.,                                                                    (San Mateo County
         Defendant and Appellant.                                         Super. Ct. No. JV81137)

In re C.G., a Minor,                                                     A141593
         On Habeas Corpus.


         This is an appeal from the jurisdictional and dispositional orders of the juvenile
court in juvenile delinquency proceedings involving minor C.G. Minor raises three legal
issues on appeal, all of which are conceded by the People. Having reviewed the record,
we agree with the parties that the challenged orders must be reversed and the matter
remanded to the juvenile court to correct certain errors made therein.

                      FACTUAL AND PROCEDURAL BACKGROUND
         On August 5, 2013, a juvenile wardship petition was filed pursuant to Welfare and
Institutions Code section 602, subdivision (a) (the petition) alleging that minor committed
an attempted residential burglary and conspiracy to commit attempted residential



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burglary.1 On September 10, 2013, a contested jurisdictional hearing was held at which
the following evidence was presented.
         On August 2, 2013, between approximately 8:00 and 8:45 a.m. in Menlo Park,
minor and another youth were riding bicycles in the neighborhood near 14th and 18th
Avenues. Both boys were wearing hats.
         Upon arriving at the residence at 860 14th Avenue, where a family with three
children lived, the boys left their bicycles and approached the front door. Neighbors
observed one of the boys, later identified as minor, first knock on the door and ring the
door bell, before “kind of lean[in] into the door as if he was trying to hear sound from
inside the house.” The neighbor then saw minor peer into the window to the left of
the front door, before gaining entry into the yard through a gate on the left side of the
house.
         A short time later, the 16-year-old girl who lived in the home heard a noise
outside her bedroom window. Upon peeking through her window, she observed a
person wearing a colorful beanie hat, later identified as being worn by the other
youth. When police responded to the scene, the officer observed a corner of the
screen to the window was bent and actually pulled away from the windowsill. A
neighbor later identified minor as one of the boys who had been seen entering or
exiting the pathway to the side of the house.
         The same morning, another resident of this neighborhood was awoken by
someone knocking on her front door. When she answered the door, she saw a boy
wearing a baseball hat, later identified as minor, looking through the window next to
the door. Minor nervously asked her, “Is Christian there?” The resident did not
know any person named Christian, so closed the door before opening it again to ask
for “Christian’s” last name. Before turning around and leaving on his bicycle, minor
responded with a name sounding like “Aguilara.” The resident called the police.


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


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       A short while later, San Mateo Deputy Sheriff Michael Arguel responded to
the reports of suspicious activity in the area between 14th Avenue and 18th Avenue.
He quickly located two boys wearing hats and riding bicycles who matched the
description of the suspects. One of these boys was minor. When approached by
Deputy Arguel, the boys avoided eye contact and appeared nervous and excited.
Deputy Arguel asked to speak with the boys, at which time minor volunteered that
he was on probation in San Mateo County. Deputy Arguel subsequently recovered a
black sock, a possible burglary tool, from the front yard of a nearby residence that
matched a sock found on minor’s friend.
       Following the contested hearing, the juvenile court found the allegations against
minor true. The juvenile court then continued minor as a ward, removed him from the
custody of his parents, and committed him to the San Mateo County Juvenile
Rehabilitation Facilities Camp Glenwood Program.
       On October 30, 2013, minor filed a timely notice of appeal and, on April 21,
2014, a related petition for writ of habeas corpus contending that the judgment should
be reversed because, among other things, he was denied effective assistance of
counsel. (In re C. G., case no. A141593.) This court thereafter consolidated minor’s
direct appeal with his petition for writ of habeas corpus to promote judicial efficiency.
                                     DISCUSSION
       Minor contends, and the People concede, that the following errors occurred below,
requiring reversal of the jurisdictional and dispositional orders and remand to the juvenile
court for further proceedings. First, neither the prosecutor nor the juvenile court met their
statutory duties under the Deferred Entry of Judgment (DEJ) Program, section 790 et seq.
Second, the juvenile court erred in sustaining a finding that minor committed the crime of
conspiracy to commit attempted burglary, a crime not cognizable under California law.
And, third, the juvenile court erred by failing to discharge its mandatory duty to indicate
the maximum term of minor’s confinement in the dispositional order.




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       We agree with each of these contentions and, thus, consistent with the parties’
joint request, reverse the challenged orders and remand this matter to the juvenile court
for further proceedings consistent with this opinion.

I.     Remand is Necessary for Compliance with the DEJ Program.
       A juvenile court has discretion to grant a minor deferred entry of judgment (DEJ)
for a felony offense if he or she is found “suitable” upon consideration of certain
statutory factors. (In re Sergio R. (2003) 106 Cal.App.4th 597, 608.) However, prior to
this exercise of discretion, a determination must be made regarding whether the minor is
in fact eligible for the DEJ program based upon an initial assessment undertaken by
the prosecutor. Specifically, the relevant statutory provision states: “The prosecuting
attorney shall review his or her file to determine whether or not paragraphs (1) to (6),
inclusive, of subdivision (a) apply. If the minor is found 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 also suitable for deferred entry of judgment and would benefit from education,
treatment, and rehabilitation efforts, the court may grant deferred entry of judgment.
Under this procedure, the court may set the hearing for deferred entry of judgment at the
initial appearance under Section 657. 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.” (§ 790, subd. (b).) In this case, these
statutory requirements were not met.
       Specifically, at the time the wardship petition was filed, the prosecutor
properly submitted the mandatory “Determination of Eligibility” form. However, the
prosecutor erroneously indicated minor was ineligible for DEJ, with the result that no




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declaration of eligibility was made in court, and no information regarding minor’s
eligibility was made available to minor or his attorney.2
       Nonetheless, the parties now agree minor does in fact meet all DEJ eligibility
requirements under section 790. In particular, consistent with the statutory scheme:
(1) 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
section 707, subdivision (b); (3) minor has not previously been committed to the
custody of the Division of Juvenile Facilities; (4) minor’s juvenile record does not
indicate that probation has ever been revoked without being completed; (5) minor is at
least 14 years of age at the time of the hearing; and (6) minor is eligible for probation
pursuant to Penal Code section 1203.06. 3 (§ 790, subd. (a)(1)-(6).)
       Accordingly, in light of the prosecutor’s and the juvenile court’s failures to
comply with the identified requirements of the DEJ program, we reverse the
jurisdictional order, as well as the underlying findings, and the dispositional order,

2
        “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 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.)
3
        The record reflects the prosecutor checked off most of the boxes on the
Determination of Eligibility form indicating minor met the identified requirements for
entry into DEJ. However, the prosecutor left unchecked the boxes relating to whether
minor had been on, and successfully completed, probation, before ultimately
identifying him as ineligible for DEJ. According to the People, this error may have
been made because, although the record does not indicate minor’s probation status had
previously been revoked (§ 790, subd. (a)(4)), it does indicate minor had committed at
least three probation violations. (See In re T.P. (2009) 178 Cal.App.4th 1, 4 [a minor
who commits a probation violation but is not subject to probation revocation remains
eligible for DEJ; however, whether the minor is suitable for DEJ is left to the court’s
discretion].)


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and remand the matter for further proceedings under section 790 et seq. Moreover,
given this outcome, we need not address minor’s remaining arguments with respect to
the DEJ, including those related to the effectiveness of his assistance from counsel,
that are raised in his direct appeal or related petition for habeas corpus.

II. The Sustained Allegation of Conspiracy to Commit Attempted Burglary Must Be Reversed.
       Minor and the People further agree that the juvenile court erred in sustaining the
allegation that minor conspired to commit attempted burglary because “conspiring to
merely attempt to commit a crime, rather than to commit it, is itself not a crime.” We
again agree.
       It is established law that the crime of conspiracy does not lie for the commission
of attempted crimes. “[A] conspiracy consists of two or more persons conspiring to
commit any crime. A conviction of conspiracy requires proof that the defendant and
another person had the specific intent to agree or conspire to commit an offense, as well
as the specific intent to commit the elements of that offense, together with proof of the
commission of an overt act ‘by one or more of the parties to such an agreement’ in
furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416 [fn.
omitted].) And, as explained in People v. Iniguez (2002) 96 Cal.App.4th 75, a case
involving the crimes of conspiracy and attempted murder: “[T]he targeted crime of the
conspiracy, attempted murder, requires a specific intent to actually commit the murder,
while the agreement underlying the conspiracy pleaded to contemplated no more than an
ineffectual act. No one can simultaneously intend to do and not do the same act, here the
actual commission of a murder. This inconsistency in required mental states makes the
purported conspiracy to commit attempted murder a legal falsehood.” (Id. at p. 77.)
       We conclude the reasoning in People v. Iniguez applies squarely in this case, given
that the alleged offense of attempted burglary, like attempted murder, is a specific intent
crime requiring intent to commit burglary and a direct but ineffectual act in furtherance of
the burglary. (Pen. Code, §§ 21a, 664, 459.) Simply put, minor could not have
conspired to commit only an ineffectual act toward the commission of the intended
burglary. (People v. Iniguez, supra, 96 Cal.App.4th at pp. 77, 79.)

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       Accordingly, we agree with the parties the juvenile court erred in sustaining the
allegation that minor committed the nonexistent offense of conspiracy to commit
attempted burglary. The sustained allegation should therefore be reversed.

III. The Juvenile Court Erred by Failing to Indicate the Maximum Term of
Minor’s Confinement.
       Finally, minor contends, and the People agree, the juvenile court erred by failing
to calculate and specify in the dispositional order or on the record minor’s maximum term
of confinement at the San Mateo County Juvenile Rehabilitation Facilities Camp
Glenwood Program, the juvenile facility in which he was placed. The parties are again
correct.
       The applicable code provisions are quite clear. “If the minor is removed from the
physical custody of his or her parent or guardian as the result of an order of wardship
made pursuant to Section 602, the order shall specify that the minor may not be held in
physical confinement for a period in excess of the maximum term of imprisonment
which could be imposed upon an adult convicted of the offense or offenses which
brought or continued the minor under the jurisdiction of the juvenile court.” (§ 726,
subd. (d).) See also In re Julian R. (2009) 47 Ca1.4th 487, 497 [the maximum term
may be stated by the court on the record or written in the confinement order].)
“[P]hysical confinement” includes “placement in a juvenile hall, ranch, camp, forestry
camp or secure juvenile home pursuant to Section 730, or in any institution operated
by the Youth Authority.” (§ 726, subd. (d).)
       Here, the juvenile court removed minor from his parents’ custody and placed him
in the San Mateo County Juvenile Rehabilitation Facilities Camp Glenwood Program, a
juvenile camp within the meaning of section 726, subdivision (d). However, in doing
so, the juvenile court failed to discharge its mandatory duty under section 726,
subdivision (d), to indicate, in the order or on the record, the maximum term of
minor’s confinement. (§ 726, subd. (d); In re Julian R., supra, 47 Cal.4th at p. 491.)
Accordingly, we agree with the parties that if, on remand, the juvenile court should




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determine minor’s placement in the camp, in lieu of DEJ, is the proper disposition in
this matter, it must then determine and specify the maximum term of his confinement.
                                   DISPOSITION
      The jurisdictional order is reversed as well as the underlying findings; the
dispositional order is reversed, and the matter is remanded to the juvenile court for
further proceedings consistent with the opinions reached herein.



                                               _________________________
                                               Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




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